The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion should that proposition meet-that is, to what degree must the actor be persuaded of the merits of the proposition? This is a question that plainly might, and probably should, admit of different answers in different circumstances. Thus, a broader metaquestion is: On what basis should a legal actor or observer determine the standard of persuasion that a proposition should meet? Part II of this Essay approaches this meta-question in general terms. It concludes that only in certain circumstances is the question even coherent. Absent certain simplifying assumptions, it will not help the legal actor in deciding on an optimal course of conduct to determine a single standard of persuasion on a proposition of law in the given circumstances. An accurate decision requires a more complex determination of the expected value of each possible course of conduct. The complexity of this task may explain why, as Lawson notes, this entire matter has nearly been overlooked; whether or not legal actors happen upon sensible ways of dealing with uncertainty concerning the validity of legal propositions, it is probably too difficult for them to articulate just what they are doing. Part III offers some tentative thoughts on a narrower conundrum presented by Lawson in the context of the criminal law. The issue may be posed briefly as follows: Given that a criminal defendant may not be convicted unless facts sufficient to support each element of the crime are proven beyond a reasonable doubt,3 is it acceptable to allow the conviction to stand if the court is not persuaded to that degree that the legal propositions underlying the conviction are valid?. Before addressing these matters, I will offer some comments in Part I on a matter that underlies the discussion, both in Lawson's article and in this Essay-the relation between law and fact.
Friedman, Richard D. "Standards of Persuasion and the Distinction between Fact and Law." Nw. U. L. Rev. 86 (1992): 916-42.