Toward a general theory of standards of proof

Catholic University Law Review

Volumn 60, Issue 1, 2010, Pages 1-45

  Vars, Fredrick E ^a  

^a UNIVERSITY OF ALABAMA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951704312     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (308)

1. B. Drummond Ayres, Jr., Civil Jury Finds Simpson Liable in Pair of Killings, N.Y. Times, Feb. 5,1997, at Al.
2. Id.
3. See also Nina Bernstein, Views of a Legal Ordeal, N.Y. TIMES, Feb. 5, 1997, at A1.
4. Bernstein, supra note 2, at A1.
5. Whether such doubts are still reasonable is questionable after the publisher labeled O.J.'s aborted account of the murders, If I Did It, a '"confession.'"Julie Bosman, Simpson Publisher Explains, N.Y. TIMES, Nov. 18, 2006, at A11.
6. See Larry Laudan, Truth, Error, and Criminal Law 64-65 (2006) (explaining how standards of proof provide guidance on resolving uncertainties).
7. See infra text accompanying note 60 (describing and providing Equation 4).
8. see also Alan D. Cullison, Probability Analysis of Judicial Fact-Finding: A Preliminary Outline of the Subjective Approach, 1 U. TOL. L. REV. 538, 564-71 (1969) (explaining the theory behind calculating the optimal standard of proof based on the utilities of difficult trial outcomes).
9. See infra Equation 4.
10. Michael L. DeKay, The Difference Between Blackstone-Like Error Ratios and Probabilistic Standards of Proof, 21 LAW & SOC. INQUIRY 95, 99 (1996) (demonstrating that probabilistic standards of proof do not guarantee a constant ratio of judicial errors)
11. Michael S. Pardo & Ronald J. Allen, Juridical Proof and the Best Explanation, 27 LAW & PHIL. 223, 224-25 (2008) (contending that, not only do probabilistic theories incompletely explain the judicial proof process, but also that they "are parasitic on the more fundamental explanation-based considerations")
12. see also Ronald J. Allen, The Restoration of In re Winship: A Comment on Burdens of Persuasion in Criminal Cases After Patterson v. New York, 76 Mich. L. REV. 30, 47 n.65 (1977) ("Without knowing the distribution of guilt probabilities of factually innocent and guilty defendants, we cannot know the actual effect of choosing one standard of proof over another.").
13. See LAUDAN, supra note 5, at 69-74.
14. Id. at 73.
15. See, e.g., Michael S. Pardo, Second-Order Proof Rules, 61 FLA. L. REV. 1083, 1102-04 (2009) ("A fact is proven by clear and convincing evidence when the explanation of the evidence and events in dispute that includes this fact is clearly and convincingly better than explanations that do not."). A parallel probabilistic instruction might read: a fact is proven by clear-and-convincing evidence when you are at least 75% sure of its truth.
16. The Restatement (Third) of Property explains the standard of mental capacity: To have mental capacity to make a will, the law requires the testator to be 'of sound mind.' To be 'of sound mind,' the testator must, when executing a will, be capable of knowing and understanding in a general way the nature and extent of his or her property, the natural objects of his or her bounty, and the disposition that he or she is making of that property, and must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. Restatement (Third) of Prop.: Wills & Other Donative Transfers § 8.1 cmt. c (2003)
17. John Eligon, At Astor Trial, Famous Faces Turn Heads, and Testify, N.Y. TIMES, May 22, 2009, at A23 [hereinafter Eligon, Astor Trial].
18. Id.
19. People v. Marshall, Indictment No. 6044-07, slip op. at 1 (N.Y. Sup. Ct. July 29, 2010), available at http://news.findlaw.com/cnn/docs/brookeastor/ nymrshllll07ind.html
20. see also John Eligon, Mrs. Astor's Son Guilty of Taking Tens of Millions, N.Y. TIMES, Oct. 9, 2009, at AI.
21. 75 AM. JUR. 2d Trial § 1091 (2007) ("In criminal cases, the jury should be instructed that the burden rests upon the state to prove the guilt of the accused beyond a reasonable doubt⋯."). In re Astor, 879 N.Y.S.2d 560, 562 (N.Y. App. Div. 2009).
22. See A. G. Sulzberger, Fate of the Astor Fortune Is Uncertain, Despite a Verdict, N.Y. TIMES, Oct. 9, 2009, at A25 (noting that, in civil court, the standard of proof is by a preponderance of the evidence)
23. see, e.g., In re Will of Buckten, 578 N.Y.S.2d 754, 755 (N.Y. App. Div. 1991).
24. Thomas E. Atkinson, Handbook of the Law of Wills § 196, at 508 (1937) ("According to the orthodox view the proponent has the burden of proof as to mental capacity ")
25. EUNICE L. ROSS & THOMAS J. REED, WILL CONTESTS § 6:14, at 6-67 n.39 (2d ed. 1999) (noting that, in a will contest in New York, "the proponent has the burden of proving that the testator possesses testamentary capacity").
26. ATKINSON, supra note 19 ("[A] substantial number of courts place this burden on contestant."); Unif. Probate CODE § 3-407, 8 U.L.A. 87 (Supp. 2010) ("Contestants of a will have the burden of establishing lack of testamentary intent or capacity ⋯.").
27. Interestingly, Louisiana, for a time, required proof beyond a reasonable doubt of testamentary incapacity. In re Lyons, 452 So. 2d 1161, 1164-65 (La. 1984) (explaining that Louisiana previously "likened the requisite burden of proof to that required to overcome the presumption of innocence in criminal cases") (citing In re Mithoff, 122 So. 886, 887 (La. 1929)). Louisiana currently requires proof "by clear and convincing evidence that the donor lacked capacity." LA. Civ. CODE ANN. art. 1482(A) (2000).
28. William J. bowe & Douglas H. Parker, Page on the Law of Wills § 29.35, at 574 & n.l (2004) (citing thirty-three jurisdictions as requiring the preponderance of the evidence standard to prove capacity); 95 C.J.S. Wills § 40 (2008) ("On the probate of a will, testamentary capacity ordinarily must be proved by a preponderance of the evidence.").
29. See, e.g., Looney v. Estate of Wade, 839 S.W.2d 531, 533 (Ark. 1992) (noting that the contesting party "has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed")
30. In re Estate of Edwards, 520 So.2d 1370, 1373 (Miss. 1988) ("[T]he proponents must prove the testator's testamentary capacity by a preponderance of the evidence.")
31. In re Estate of Dion, 623 N.W.2d 720, 729 (N.D. 2001) ("A will contestant has the burden of proving testamentary incapacity by a preponderance of the evidence.")
32. In re Estate of Roosa, 753 P.2d 1028, 1032 (Wyo. 1988) ("[T]he burden is assigned to the contestants to show by a preponderance of the evidence the claimed testamentary incapacity ⋯.").
33. See, e.g., 3 BOWE & PARKER, supra note 22, § 29.35, at 577-78.
34. Id. § 29.35, at 577 (citing case law for a heightened general standard from nine jurisdictions) (footnotes omitted). Medical clinicians observe the presumption of competence, absent "clear evidence" to the contrary. Thomas G. Gutheil, Common Pitfalls in the Evaluation of Testamentary Capacity, 35 J. AM. ACAD. PSYCHIATRY & LAW 514, 515 (2007).
35. Bye v. Mattingly, 975 S.W.2d 451, 455 (Ky. 1998)
36. see also Keasler v. Estate of Keasler, 973 S.W.2d 213, 217 (Term. App. 1997) (stating that "strong evidence" of incapacity must be introduced to rebut the presumption of capacity).
37. In re Flatau's Estate, 76 P.2d 506, 508 (Cal. 1938) (emphasis added).
38. Norton v. Clark, 97 N.E. 1079, 1083 (111. 1912).
39. Id.
40. Down v. Comstock, 149 N.E. 507, 513 (111. 1925) (emphasis added) (quoting Norton v. Clark, 97 N.E. 1079, 1083 (111. 1912)).
41. ROSS & REED, supra note 19, § 6:14, at 6-67.
42. See 2 MCCORMICK ON EVIDENCE § 340, at 487-89 (Kenneth S. Broun ed., 6th ed. 2006) (stating that the clear-and-convincing-evidence standard is used in will contests, as well as other types of cases).
43. In re Estate of Farr, 49 P.3d 415, 426 (Kan. 2002) (requiring "clear, satisfying, and convincing evidence" to prove testamentary incapacity).
44. La. Civ. Code. Ann. art. 1482(A) (Supp. 2010) ("A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor ⋯executed the testament.")
45. In re Lyons, 452 So. 2d 1161, 1164-66 (La. 1984) (requiring that a party "overcome the presumption of capacity by clear and convincing evidence").
46. In re Hoover's Estate, 91 A.2d 155, 156 (N.J. Super. Ct. App. Div. 1952) (requiring clear-and-convincing evidence of testamentary incapacity).
47. In re Estate of Cohen, 284 A.2d 754, 755 (Pa. 1971) (requiring "clear, strong, and compelling evidence" of incapacity (quoting In re Estate of Brantlinger, 210 A.2d 246, 250 (1965))).
48. Pond's Estate v. Faust, 163 P. 753, 753 (Wash. 1917) (requiring "clear and convincing evidence")
49. In re Estate of Sorenson, 274 N.W.2d 694, 696 (Wis. 1979) (citing In re Estate of Debrecevich, 109 N.W.2d 477, 479 (Wis. 1961) (noting that the burden of proof in testamentary capacity cases is "clear, convincing and satisfactory evidence")). One commentator has described imposition of the clear-and-convincing standard as "the trend." Laurie Dearman Clark, Comment, Louisiana's New Law on Capacity to Make and Receive Donations: "Unduly Influenced" by the Common Law?, 67 TUL. L. REV. 183, 212 (1992). I see no support for this assertion. Most of the jurisdictions applying the standard have done so for many years.
50. See, e.g., In re Hoover's Estate, 91 A.2d at 156; Lowrey's Estate, 13 Pa. D. & C. 532, 535 (Pa. Orphans' Ct. 1930); Pond's Estate, 163 P. at 753
51. In re Emerson's Will, 198 N.W. 441, 443-14 (Wis. 1924)
52. see also In re Flatau's Estate, 76 P.2d, 506, 508 (Cal. 1938) (suggesting a heightened standard)
53. Norton v. Clark, 97 N.E. 1079, 1083 (111. 1912) (suggesting a heightened standard).
54. Restatement (Third) of Prop.: Wills & Other Donative Transfers §8.1 cmt. b. (2003).
55. Brown v. Bowen, 847 F.2d 342, 345-16 (7th Cir. 1988).
56. C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 VAND. L. REV. 1293, 1328 tbl.5 (1982)
57. see also United States v. Fatico, 458 F. Supp. 388, 410 tbl. (E.D.N.Y. 1978) (reporting a range of 60% to 75% in a survey of eight federal district judges regarding the probabilities associated with the clear-and-convincing standard of proof)
58. Cf. Cullison, supra note 6, at 568 (describing the four possible outcomes of civil suits)
59. Mathematical equation presention.
60. Frederick R. Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. K.Y. L. REV. 409, 424-25 (1987). Due to incomplete reporting in the article, the 0.28 figure is a best estimate. The possible range of values is 0.25 to 0.35.
61. Marvin B. Sussman et al., The Family and Inheritance 143 tbl.6-2 (1970).
62. Allison Dunham, The Method, Process and Frequency of Wealth Transmission at Death, 30 U. CHI. L. REV. 241, 252 n.20 (1963).
63. Edward H. Ward & J.H. Beuscher, The Inheritance Process in Wisconsin, 1950 WIS. L. REV. 393,414 tbl.10 (1950).
64. Sussman et al., supra note 44.
65. See supra text accompanying notes 32-37.
66. Kenneth I. Shulman et al., Psychiatric Issues in Retrospective Challenges of Testamentary Capacity, 20 INT'L J. GERIATRIC PSYCHIATRY 63, 66-68, 67 tbl.l (2005) (≪ = 25).
67. See generally Aleksandar A. Jovanovid et al., Medical Reasons for Retrospective Challenges of Testamentary Capacity, 20 PSYCH1ATR1A DANUBINA 485, 490 (2008) (finding a statistically significant association between diagnoses and testamentary incapacity).
68. CTRS. FOR DISEASE CONTROL AND PREVENTION, Suicide Facts at a Glance (2008), www.cdc.gov/ncipc/dvp/suicide/suicide-data-sheet.pdf (reporting a 0.013 suicide rate in the United States)
69. Dunham, supra note 45, at 279 tbl.l5 (reporting that the average age of wills in 1963 was 4.9 years); Bridget F. Grant et al., Prevalence, Correlates, and Disability of Personality Disorders in the United States: Results from the National Epidemiologic Survey on Alcohol and Related Conditions, 65 J. CLIN. PSYCHIATRY 948, 949, 951 (2004) (noting a 0.148 prevalence of personality disorders)
70. Ronald C. Kessler et al., Prevalence, Severity, and Comorbidity of 12-Month DSM-IV Disorders in the National Comorbidity Survey Replication, 62 ARCH. GEN. PSYCHIATRY 617, 620 tbl.l (2005) (noting'a 0.156 prevalence of severe and moderate DSM-IV disorders, including alcohol abuse and dependence)
71. Robert A. Stein & Ian G. Fierstein, The Demography of Probate Administration, 15 U. BALT. L. REV. 54, 86 (1985) ("On the average, testate decedents executed a will approximately five to seven years prior to their deaths."). Based on the statistics from the Centers for Disease Control and Prevention and the Dunham article, I estimated dementia rates five years before death.
72. See CTRS. FOR DISEASE CONTROL AND PREVENTION, supra; Dunham, supra note 45, at 279 tbl.l5.
73. This estimate assumes that these conditions are independent-they are not.
74. See, e.g., Jane E. Brody, An Emotional Hair Trigger, Often Misread, N.Y. TIMES, June 16, 2009, at D7 (reporting that 10% of borderline personality-disorder patients die by committing suicide). Recall that the overall suicide rate in the United States is 1.3%. CTRS. FOR DISEASE CONTROL AND PREVENTION, supra note 50. The conditions' lack of independence is another reason that the true percentage of testate deaths involving the most common comorbid conditions must be lower than 0.45.
75. See Fayaz Roked & Abdul Patel, Which Aspects of Cognitive Function Are Best Associated with Testamentary Capacity in Patients with Alzheimer's Disease?, 23 INT'L J. Geriatric Psychiatry 552, 553 tbl.l (2008) (finding that 92.6% of Alzheimer's patients with mild cognitive impairment and 51.9% of those with moderate cognitive impairment had testamentary capacity).
76. Restatement (Third) of Prop.: Wills and Other Donative Transfers §3.1 cmt. o (2003) ("A will is validly executed if it is in writing and is signed by the testator and by a specified number of attesting witnesses under procedures provided by applicable law."); cf. Jovanovii et al., supra note 49, at 490 (revealing that wills in a narrow study were primarily holographic).
77. Shulman et al., supra note 49, at 64-65.
78. Dilip V. Jeste et al., Magnitude of Impairment in Decisional Capacity in People with Schizophrenia Compared to Normal Subjects: An Overview, 32 SCHIZOPHRENIA BULL. 121, 123 tbl.l, 126(2005).
79. SUSSMAN ET AL., supra note 44, at 125, 184.
80. See id.
81. See, e.g., Gen. Motors Corp. v. Toyota Motor Co., 467 F. Supp. 1142, 1173 (S.D. Ohio 1979) ("[I]f it is unlikely that a type of allegation can be supported, clear and convincing evidence will be required to meet the burden of persuasion."), rev'd in part on other grounds, 667 F.2d 504 (6th Cir. 1981)
82. see also 2 MCCORMICK ON EVIDENCE, supra note 31, at 489 n.25 (suggesting disapproval of this approach).
83. Cullison, supra note 6, at 569 eq.lOb; DeKay, supra note 8, at 111 eq. 17 (1996)
84. John Kaplan, Decision Theory and Reasonable Doubt, in COMMUNICATION SCIENCES AND THE LAW: Reflections from the Jurimetrics Conference 251, 253 (Layman E. Allen & Mary E. Caldwell eds., 1965).
85. Some wrongly accuse Professor Alan Cullison of failing to consider the utilities of accurate results. Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C. DAVIS L. REV. 85, 107-08, 108 n.59 (2002) (criticizing Cullison's model for not discussing the effects of utilities from accurate verdicts). Cullison, however, expressly measures the costs of Type I and Type II errors relative to accurate results. Cullison, supra note 6, at 565-66.
86. Professor Laurence Tribe levels a more potent, yet still unpersuasive, attack on the statistical approach and, by implication, the mathematical method of the present Article. Laurence H. Tribe, Trial By Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1381-82 (1971). First, Tribe argues that the four utilities depend on the particular case: "[T]he trier might justly regard as worse the erroneous conviction of a man to whose guilt he had attached a probability [just above the decision standard] than the erroneous conviction of one whose guilt had seemed to be virtually certain."
87. Id. at 1382. That thought may accord with human psychology, but it misses the point. The question is not how the trier evaluates utilities,
88. Cf. Daniel L. Rubinfeld & David E.M. Sappington, Efficient Awards and Standards of Proof in Judicial Proceedings, 18 RAND J. ECON. 308, 314 (1987) (explaining that although reducing the penalty for crime can increase accuracy, such a reduction may "encourage more crimes to be committed").
89. However, many individuals execute multiple wills during their lifetimes and many rely on family attorneys who have a long-term relationship with the testator. In either case, it is more likely that the standard of proof will be taken into account in deciding when to execute a will.
90. Even if the distribution is more or less independent of the standard of proof, it may be dependent on the low value of /. The lack of congruence between the intestate distribution and testator intent may operate as a penalty default, pushing individuals to make wills. Cf. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 91 (1989) (discussing penalty defaults and explaining that they "are designed to give &mellip; an incentive to contract around the default rule").
91. See supra Part II.
92. See supra Part W1.A.
93. See Vern R. Walker, Preponderance, Probability and Warranted Factfinding, 62 BROOK. L. REV. 1075, 1114, 1114 n.98 (1996).
94. Cf. id. at 1115 ("If the decision value is set too high, then the party that does not have the burden of persuasion may be more inclined to rest on the noncredibility of the proponent's proofs, and less inclined to produce affirmative evidence.").
95. See Mike Redmayne, Standards of Proof in Civil Litigation, 62 MOD. L. REV. 167, 181-82(1999).
96. See Walker, supra note 66, at 1115 ("The three standards of proof employed in litigation all help to create an incentive to produce more evidence than is sufficient to avoid suffering judgment as a matter of law.").
97. McCauliff, supra note 40, at 1328-29, 1328 tbl.5. It should be noted that many courts resist quantification.
98. See, e.g., Mass. Inst, of Tech. v. Harman Int'l Indus., 584 F. Supp. 2d 297, 307 n.7 (D. Mass. 2008) (describing the clear-and-convincing standard as "vague and impressionistic" (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 272 (1986) (Rehnquist, J., dissenting))); Lockard v. Carson, 287 N.W.2d 871, 874 (Iowa 1980) ("'[C]lear and satisfactory' refers to the character or nature of the evidence, whereas 'preponderance' of the evidence is a quantitative measure" (citing Hall v. Crow, 34 N.W.2d 195, 201 (Iowa 1948)).
99. See McCauliff, supra note 40, at 1328 tbl.5.
100. See id. (supplying the values upon which Figure 4 is based).
101. See id. at 1331 & tbl.7. Whether judges actually apply the standards faithfully has been questioned: "We doubt very much that an experienced trial judge is much bothered by euphemisms such as clear and convincing or preponderance of the evidence."
102. In re Estate of Bennett, 865 P.2d 1062, 1067 (Kan. Ct. App. 1993). But even the Bennett court stated that citing the wrong standard would be reversible error. Id.
103. Eleven states and the District of Columbia do not permit jury trials in will contests. ROSS & REED, supra note 19, § 4:9, at 4-18 n.67.
104. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-54 (1986) (discussing the judge's use of evidentiary standards of proof).
105. Rita James Simon & Linda Mahan, Quantifying Burdens of Proof: A View from the Bench, the Jury, and the Classroom, 5 LAW& SOC'Y REV. 319, 325 (1971)
106. Dorothy K. Kagehiro & W. Clark Stanton, Legal vs. Quantified Definitions of Standards of Proof, 9 LAW & HUM. BEHAV. 159, 164, 168 (1985) (finding greater variation injury verdicts with quantified, rather than qualitative, legal standards)
107. James R. P. Ogloff, A Comparison of Insanity Defense Standards on Juror Decision Making, 15 LAW & HUM. BEHAV. 509, 516, 519 (1991) (noting no deviance when comparing jury comprehension of criminal rules and standards as applied to the insanity defense)
108. see also id. at 521 (reporting that only "51.6% of participants identified the correct standard of proof'). Cf Murray Levine, Do Standards of Proof Affect Decision Making in Child Protection Investigations?, 22 LAW & HUM. BEHAV. 341, 344-45 tbl.l (1998) (noting that "the legal definitions of standards of proof taken alone had no effect on the rate of mock jurors' decisions for plaintiffs, but that quantified definitions of the standards of proof did have an effect[]"); David U. Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to Justice, 59 JUDICATURE 478,481 (1976) ("After seeing and hearing the video [standard criminal]instructions, only 50 per cent of the instructed jurors understood that the defendant did not have to present any evidence of his innocence, and that the state had to establish his guilt, with evidence, beyond any reasonable doubt.").
109. But see SANFORD H. KADISH ET AL., CRIMINAL Law AND ITS PROCESSES 31-32 (8th ed. 2007) ("Empirical studies confirm that jurors convict more readily when instructed under a more-likely-than-not standard than when instructed under the reasonable doubt standard ⋯.").
110. Kagehiro & Stanton, supra note 77, at 164-65.
111. More research is needed, but verbal instructions may suffice to achieve this goal.
112. See, e.g., Kagehiro & Stanton, supra note 77, at 173 ("Our results suggest that legal definitions may have their intended effect on verdicts if they are presented in some form of comparative context.")
113. see also J.P. McBaine, Burden of Proof: Degrees of Belief, 32 CALIF. L. REV. 242, 246-47 (1944) ("The only sound and defensible hypotheses are that the trier, or triers, of facts can find what (a) probably has happened, or (b) what highly probably has happened, or (c) what almost certainly has happened.").
114. This is applicable to Brooke Astor's son, Anthony Marshall. See Joseph A. Rosenberg, Regrettably Unfair: Brook Astor and the Other Elderly in New York, 30 PACE L. REV. 1004, 1048-49(2010).
115. See Addington v. Texas, 441 U.S. 418, 425 (1979) ("In cases involving individual rights, whether criminal or civil, '[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.'" (alteration in original) (quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir. 1971) (Sobeloff, J., concurring in part and dissenting in part))).
116. Alf C. Zimmer, Verbal vs. Numerical Processing of Subjective Probabilities, in Decision Making Under Uncertainty 159,180 (Roland W. Scholz ed., 1983).
117. See, e.g., id. at 163-64, 179-80 (providing survey research involving memory, college-performance predictions, and exchange-rate predictions).
118. For a persuasive response to a catalogue of other counter-arguments, see Dorothy K. Kagehiro, Defining the Standard of Proof in Jury Instructions, 1 PSYCH. SCI. 194, 198 (1990), and Peter Tillers & Jonathan Gottfried, Case Comment-United States v. Copeland, 369 F. Supp. 2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim that Proof Beyond a Reasonable Doubt Is Unquantifiable?, 5 LAW, PROBABILITY & RISK 135,141-51 (2006).
119. Professor Kevin Clermont argues that quantification would reduce accuracy because hard variables mesh poorly with soft or unquantifiable variables, dehumanize legal procedure, mask complexity with illusory precision, and fail to "accord with our ingrained way of thinking." Kevin M. Clermont, Procedure's Magical Number Three: Psychological Bases for Standards of Decision, 72 CORNELL L. REV. 1115, 1147-48 (1987). None of these arguments is persuasive. Hard and soft variables mesh equally poorly under the current system, but the problem is hidden in ambiguity. If quantified standards can lead to better, more consistent results, then a little "dehumanization" and change from ingrained ways of thinking are prices worth paying. Numerical standards incorporating a modest range could mitigate the illusory precision concern.
120. See id. at 1147
121. see also infra note 88 and accompanying text. Most importantly, Clermont's premise that the present legal standards meaningfully convey information, Clermont, supra at 1148, is apparently false in light of the research findings reported above.
122. See, e.g., Elisabeth Stoffelmayr & Shari Seidman Diamond, The Conflict Between Precision and Flexibility in Explaining "Beyond a Reasonable Doubt," 6 PSYCHOL. PUB. POL'Y & L. 769, 784 (2000) ("A single uniform standard across cases is not an optimal resolution when the decisions to which the standard is being applied carry different costs.").
123. See Tillers & Gottfried, supra note 84, at 156. Again, clearer verbal standards are another possible solution that might eliminate confusion and still retain some flexibility.
124. See sources cited supra note 77.
125. See James Franklin, United States v. Copeland, 369 F. Supp. 2d 275 (E.D.N.Y. 2005): Quantification of the "Proof Beyond Reasonable Doubt" Standard, 5 LAW, PROBABILITY & RISK 159, 164-65 (2006) (advocating a quantitative description of "well above a probability of 0.8" for the beyond-a-reasonable-doubt standard)
126. Stoffelmayr & Diamond, supra note 85, at 782 ("An alternative to the single probability standard for beyond a reasonable doubt might be to provide a range (e.g., .87 to .92) that jurors would be invited to apply according to their assessments of the costs of error associated with a particular offense."). Cf. Neil B. Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, 60 N.Y.U. L. REV. 385 (1985) (arguing for a confidence-interval approach to quantifying standards of proof).
127. Tillers & Gottfried, supra note 84, at 155
128. see also Redmayne, supra note 68, at 183 (stating that the weighing of utilities is a policy decision "better made by the legislature than by judges"). Cf. Josef Athanas, Comment, The Pros and Cons of Jury Trials in Will Contests, 1990 U. CHI. Legal F. 529, 551 (arguing against jury trials in will contests, in part because "the legislature should simply change the law rather than having juries misapply it").
129. Michael L. Davis, The Value of Truth and the Optimal Standard of Proof in Legal Disputes, 10 J. L. ECON. & ORG. 343, 351 (1994).
130. See, e.g., id. (describing a hypothetical situation where a judge, knowing that the prison is full and an additional inmate would increase costs, instructs a jury to be 99% certain of a decision to convict).
131. See, e.g., Lillquist, supra note 60, at 87-89 (arguing for "a reasonable doubt standard that&mellip; varies from case to case").
132. Jack B. Weinstein & Ian Dewsbury, Comment on the Meaning of "Proof Beyond a Reasonable Doubt," 5 LAW, PROBABILITY & RISK 167, 168-69 (2006).
133. Some have argued that quantifying the reasonable-doubt standard would make society's acceptance of false convictions damagingly explicit. Tribe, supra note 60, at 1375. In light of the publicity surrounding recent criminal exonerations, this worry seems almost quaint. Erik Lillquist, Absolute Certainty and the Death Penalty, 42 AM. CRIM. L. REV. 45, 90 (2005).
134. See Davis, supra note 90, at 350-51 ("If the marginal cost of error varies with the total number of errors, a trial court that wished to set the optimal standard would need information about facts not directly before it."). Two commentators recommend telling jurors about likely criminal sentences in order to allow better weighing of costs in setting the standard of proof. Stoffelmayr & Diamond, supra note 85, at 783.
135. See Redmayne, supra note 68, at 171 ("[C]an the right to consistent weighing of moral harm be protected if the determination of the relevant utilities is left to each individual factfinder?").
136. George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 8 fig.l (1984).
137. See, e.g., Paskvan v. Mesich, 455 P.2d 229, 231, 238-10 (Alaska 1969); Brown v. Brown, 287 P.2d 913, 914, 917 (Okla. 1955).
138. See infra Part III.J.
139. Data from two nonrepresentative samples suggest that the jury-verdict error rate is at least 11-13%. Bruce D. Spencer, Estimating the Accuracy of Jury Verdicts, 4 J. EMPIRICAL Legal Stud. 305,326 (2007).
140. Computations on file with author; see supra fig. 2. One commentator has noted that [u]nder any standard of proof, there will be a certain number of inaccurate estimates of probability, wrongly placing the probability of the required fact on one or the other side of the prescribed line. Some of the erroneous estimates of probability under a clear and convincing standard-those that wrongly conclude that the required fact is highly probable when in actuality it is merely more probable than not-will now produce correct outcomes from the standpoint of truth. But the number of outcomes that fit this description will be overshadowed by the number of wrong outcomes that result from the skewed standard. Emily Sherwin, Clear and Convincing Evidence of Testamentary Intent: The Search for a Compromise Between Formality and Adjudicative Justice, 34 CONN. L. REV. 453, 463 n.47 (2002).
141. See infra Part III.J.
142. See SUSSMAN ET AL., supra note 44, at 143 tbl.6-2
143. Dunham, supra note 45, at 251-52
144. Schneider, supra note 43, at 424-25
145. Ward & Beuscher, supra note 46, at 413-14.
146. See infra Part III.E. Cf Stein & Fienstein, supra note 50, at 60-61, 61 tbl.2.1. In fact, using the will as the gold standard goes farther and assumes that all wills, not just good wills, accurately reflect a testator's intent. Obviously, wills infected by undue influence or testamentary incapacity are almost certainly inconsistent with this assumption. However, although there is no way to isolate good wills based on the studies, there is reason to think the vast majority of wills are good.
147. Ronald J. Scalise, Jr., Honor Thy Father and Mother?: How Intestacy Law Goes Too Far in Protecting Parents, 37 SETON HALL L. REV. 171, 183 n.64 (2006) ("The drafters of wills are subject to influences by lawyers and other advisors that may be motivated by cultural standards, rather than an individual's actual desires.").
148. Mary Louise Fellows, An Empirical Study of the Illinois Statutory Estate Plan, 1976 U. ILL. L. F. 717, 722 (1976) [hereinafter Fellows, Empirical Study] ("The attorney who typically drafts the will may have influenced the testate's distributive pattern by suggesting that certain will provisions are customary.").
149. SUSSMAN ET AL., supra note 44, at 89 tbl.5-1 (studying the preferences of those persons with wills in Ohio).
150. Mary Louise Fellows et al., Public Attitudes About Property Distribution at Death and Intestate Succession Laws in the United States, 1978 Am. B. FOUND. RES. J. 321, 351 tbl.7 (1928). The Sussman study exclusively involved Ohio wills. SUSSMAN ET AL., supra note 44, at 36. Fellows's survey included Ohio and studied four additional states.
151. See Fellows et al., supra, at 352 tbl.8 (showing results for Ohio as well as Alabama, California, Massachusetts, and Texas). The Ohio respondents in Fellows's study were particularly generous to their surviving spouses- 82.8% gave their spouses the entire estate, id., a figure consistent with Sussman's findings.
152. See SUSSMAN ET AL., supra note 44, at 89.
153. Fellows et al., supra note 107, at 358, 359 tbls.l 1 & 12. Again, Ohioans were the most generous to their spouses.
154. See id. at 361 tbls.l3& 14.
155. See Laura A. Rosenbury, Two Ways to End a Marriage: Divorce or Death, 2005 UTAH L. REV. 1227, 1263-69 (2005) (discussing estate distribution when there is a surviving spouse and surviving children)
156. Scalise, supra note 104, at 177-80 (discussing the two general approaches used to determine a decedent's parents' share when there is a surviving spouse).
157. Mahoney v. Granger, 186 N.E. 86, 86-87 (Mass. 1933).
158. Id at 86.
159. Id at 87.
160. Jesse Dukeminier et al., Wjlls, Trusts, and Estates 335-36,352 (8th ed. 2009).
161. Using the.mathemaeical equation presention distribution, G would be less than 79.7%.
162. One could argue that these are not errors at all. The lawyer who convinces a testator to dispose of property in a way different than the testator originally requested most likely acts in good faith. The testator's changed mind may reflect his new intent and is not necessarily a custom-induced error.
163. SUSSMAN ET AL., supra note 44
164. Dunham, supra note 45, at 252 n.20
165. Schneider, supra note 43, at 412 (indicating wills examined were probated before 1982)
166. Ward & Beuscher, supra note 46, at 414 tbl. 10.
167. See SUSSMAN El Ah., supra note 44, at 89
168. Fellows, supra note 107, at 350-51.
169. SUSSMAN ET AL., supra note 44, at 89.
170. See, e.g., Fellows, supra note 107, at 348, 354.
171. Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & 1NEQ. 1, 2 n.8 (2000).
172. See Rosenbury, supra note 109, at 1266 ("In &mellip; thirty-four states, the surviving spouse never receives the deceased spouse's entire estate in any situation where the deceased spouse left children, even if the surviving spouse is the other parent of those children.").
173. At least in cases where there are no children from a previous marriage. See infra text accompanying note 126. MS-1. Marital Status of the Population 15 Years Old and Over, by Sex and Race: 1950 TO Present, http://www.census.gov/ populatiori/socdemo/hh-fam/msl.xls(last visited Oct. 2, 2010).
174. U.S. Census Bureau, Statistical abstract of the United States: 2009, 37 tbl.33 (2009); U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2000, 42 tbl.40 (2000).
175. Melonie Heron et al., Deaths: Final Data for 2006, 57 NAT'L VITAL STAT. REPS. 1, 20, 22 tbl.3, available at http://www.cdc.gov/nchs/data/nvsr/nvsr57/ nvsr57-14.pdf. Fellows et al., supra note 107, at 366 tbl.18 (reporting that 23% of respondents wanted their spouses to take their entire estate; 29% wanted their spouses to take between 51-99%; 37% wanted an equal split between their spouses and children; and 11% wanted their spouses to take less than 50%).
176. Rosenbury, supra note 109, at 1268.
177. Note that, assuming a uniform distribution, if / >0.375, that would not necessarily tilt the scale in favor of the preponderance standard. One would need to know B, the probability of a bad will reflecting intent.
178. Gary, supra note 120, at 29-30.
179. Ralph C. Brashier, Inheritance Law and the Evolving Family 156-57 (2004) ("On the whole, the instances in which stepchildren inherit from an intestate stepparent are negligible.").
180. Id. at 157 ("The sweeping but easily administered objective rule that denies stepchildren an intestate share under the laws of most states undoubtedly is at odds with the wishes of many stepparents who die intestate.").
181. Jennifer K. Robbennolt & Monica Kirkpatrick Johnson, Legal Planning for Unmarried Committed Partners: Empirical Lessons for a Preventive and Therapeutic Approach, 41 ARIZ. L. REV. 417, 418 (1999)
182. see also BRASHIER, supra note 130, at 2 (arguing that census numbers are "probably underrepresentative because some unmarried cohabitants are reluctant to identify themselves as such and because the number excludes unmarried couples who reside in a household headed by someone else")
183. JASON FIELDS, U.S. CENSUS BUREAU, AMERICA'S FAMILIES AND LIVING ARRANGEMENTS: 2003 16, Current Population Reports, U.S. Dep't of Commerce (Nov. 2004) ("The proportion of all households that were unmarried-partner households [opposite-sex only] has been steadily increasing, from 2.9 percent of all households in 1996 to 4.2 percent in 2003.").
184. See, e.g., Robbennolt & Johnson, supra note 132, at 419 (acknowledging that the passage of the Defense of Marriage Act "allows states to refuse to reconcile same-sex marriages authorized in other states").
185. Mary Louise Fellows, Committed Partners and Inheritance: An Empirical Study, 16 L. & INEQ. 1, 38, 47, 50 (1998); accord Robbennolt & Johnson, supra note 132, at 441.
186. Fellows, supra note 134, at 38, 47.
187. SUSSMAN ET AL., supra note 44, at 84
188. Dunham, supra note 45, at 252 tbl.9; Schneider, supra note 43, at 425.
189. 96 C.J.S. Wills § 862 (2001) (stating that courts make a presumption against intestacy and favor effectuating the testator's true intent).
190. 95 C.J.S. Wills § 39 ("A prior will executed by a testator who was admittedly of sound mind is admissible on the theory that such a will tends to show the fixed and settled purpose of the testator.")
191. see, e.g, In re Brink's Estate, 161 N.W.2d 438,440 (Mich. Ct. App. 1968) (holding that a testator's prior will "was material and admissible evidence on the issues of mental incompetency and undue influence")
192. In re Bailess's Estate, 569 P.2d 543, 545 (Okla. Civ. App. 1977) (holding that prior will could be considered in deciding whether a testator lacked capacity when executing a subsequent will)
193. Burns v. Kabboul, 595 A.2d 1153, 1162 (Pa. Super. Ct. 1991) (explaining that a previously executed, valid will "tends to show the fixed and settled purpose of the testator, and any sudden change in such purpose without adequate cause may be evidence from which an unsound mind may be inferred").
194. See Eligon, Astor Trial, supra note 13, at A25.
195. People v. Marshall, Indictment No. 6044-07, slip op. at 6-7 (N.Y. Sup. Ct. July 29, 2010), available at http://news.findlaw.com/cnn/docs/brookeastor/ nymrshllU07ind.html.
196. See Sherwin, supra note 100, at 463 n.49 ("[A]n informal document offered as a will often reflects a disposition that the testator at least considered, even if the disposition was ultimately rejected.").
197. Skewing the distribution to the left (toward capacity) favors the clear-and-convincing standard, but it is probably not enough to change the bottom line. Applying the mathematical equation presention distribution, the clear-and-convincing standard dominates if B >P - 0.64, which still seems very unlikely.
198. Cf. Stoffelmayr & Diamond, supra note 85, at 782 (suggesting that "a legislature might set different quantitative [proof] levels for different offenses")
199. See Lawrence W. Waggoner, Marital Property Rights in Transition, 59 MO. L. REV. 21, 29 (1994) ("No intestacy regime can hope to be 'suitable' for every person who dies intestate.").
200. See supra notes 139-40 and accompanying text.
201. SUSSMAN ET AL., supra note 44, at 86, 89.
202. Atkinson, supra note 19, § 78, at 186.
203. Id., § 77, at 186; see also George J. Alexander & Thomas S. Szasz, From Contract to Status via Psychiatry, 13 SANTA CLARA L. REV. 537 passim (1973) (making a similar argument for contracts).
204. See Fredrick E. Vars, Illusory Consent: When an Incapacitated Patient Agrees to Treatment, 87 OR. L. REV. 353, 355 (2008) ("Assent without capacity is not an expression of autonomy; it is at best an illusion of autonomy.").
205. ATKINSON, supra note 19, § 26, at 186.
206. DUKEMINIER ET AL., supra note 113, at 167; Mary Louise Fellows, In Search of Donative Intent, 73 IOWA L. REV. 611, 621 (1988).
207. DUKEMINIER ET AL., supra note 113, at 166-68.
208. Cf. Bailey H. Kuklin, The Asymmetrical Conditions of Legal Responsibility in the Marketplace, 44 U. MIAMI L. REV. 893, 925 (1990) ("Autonomous choices entail knowledge (information and foreseeability) and capability (reason and sense).").
209. DUKEMINIER ET AL., supra note 113, at 167.
210. See Pamela Champine, Expertise and Instinct in the Assessment of Testamentary Capacity, 51 VlLL. L. REV. 25, 53-55 (2006) (describing the need to balance the tension between testator protection and family protection).
211. See id. at 55 ("As important as the family preference is, it takes second place to the overriding policy of wills law, which is effectuating the testator's intent.")
212. see also id. at 54 ("[T]he family's interest, in all cases, derives from the testator's presumed intention to benefit them."). But see Jeffrey M. Alden, Testamentary Capacity in a Nutshell: A Psychiatric Reevaluation, 18 STAN. L. REV. 1119, 1123-24 (1966) ("[T]he primary purpose of testamentary capacity &mellip; is the protection of the family.").
213. See, e.g., UNIF. PROBATE CODE § 2-202 (amended 2008), 8 U.L.A. 102 (1998 & Supp. 2010) (providing an example of an exception to the general rule that a valid will controls the elective share of a surviving spouse).
214. Milton D. Green, Public Policies Underlying the Law of Mental Incompetency, 38 MICH. L. Rev. 1189, 1216 (1940) ("[PJrotection of the family lay at the root of the statutes of descents and distributions."). Id. at 1218-19.
215. See Milton D. Green, Proof of Mental Incompetency and the Unexpressed Major Premise, 53 Yale L.J. 271, 298-302 (1944) (discussing the "unnaturalness" of a testator's disinheriting his family and courts' responses to such).
216. Alexander M. Meiklejohn, Contractual and Donative Capacity, 39 CASE W. RES. L. Rev. 307, 365-66 (1988-89). Fairly applied, the capacity doctrine could strike down a will that gives the bulk of an estate to family (e.g., Brooke Astor's son) in favor of a prior will that gave the lion's share to charity.
217. See Jane B. Baron, Empathy, Subjectivity, and Testamentary Capacity, 24 San DIEGO L. REV. 1043, 1051 (1987) ("If family protection is sought, obviously better ways exist to achieve it.").
218. See Ronald Chester, Should American Children Be Protected Against Disinheritance?, 32 REAL Prop. Prob. & Tr. J. 405, 408, 414-18 (1997) (advocating adoption of the British Columbia family maintenance system). Louisiana promotes testator intent through a high incapacity standard, and family protection through forced heirship. La. CONST., art. XII, §5; La. Civ. CODE. ANN. art. 1477 (2000).
219. See Baron, supra note 162, at 1051 ("[RJegulatory effects of holding a testator incompetent on mental incapacity grounds are considerably more draconian than the explicit regulations set forth in elective share statutes and the like.").
220. SUSSMAN ET AL., supra note 44, at 184 (reporting that, in Ohio, 6 out of 453, or 1.32%, of testate cases involved will contests)
221. Jeffrey P. Rosenfeld, Will Contests: Legacies of Aging and Social Change, in INHERITANCE AND WEALTH IN AMERICA 173, 185 tbl.8.3 (Robert K. Miller, Jr. & Stephen J. McNamee, eds., 1998) (finding that 90 out of 7817 probates, or about 1.14%, were contested); Jeffrey A. Schoenblum, Will Contests-An Empirical Study, 22 REAL PROP. PROB. & TR. J. 607, 613 chart 3 (1987) (noting that 66 out of 7638, or 0.86%, of filed wills were contested). Will-contest rates were historically higher in some jurisdictions. See Kristine S. Knaplund, The Evolution of Women's Rights in Inheritance, 19 HASTINGS WOMEN'S L.J. 3, 30 & n.183 (2008) (providing data that indicates will contests ranged from 1% to 8.89%).
222. Schoenblum, supra note 165, at 648 chart 22 (finding allegations of testamentary capacity in forty-eight out of sixty-six, or 73%, of will contests). Priest & Klein, supra note 96, at 7-9; see Bruce L. Hay & Kathryn E. Spier, Settlement of Litigation, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 442, 443 (Peter Newman ed., 1998) (describing divergent-party expectations as "the most influential account of why cases may fail to settle").
223. Priest & Klein, supra note 96, at 20 ("According to the model, given some error in the parties' estimates of Y, an interval will exist around the decision standard which will contain some large fraction of the set of litigated disputes.").
224. This result corresponds to a uniform distribution. Note that the dominance of the clear-and-convincing-evidence standard is even stronger with a leftward skew, or.Mathematical equation presention.
225. Sherwin, supra note 100, at 470-73
226. see also supra Part III.C.
227. See swpra Part III.A.
228. See supra Part III.C.
229. Robert D. Cooter & Daniel L. Rubinfeld, Economic Analysis of Legal Disputes and Their Resolution, 27 J. ECON. LIT. 1067, 1075-76 (1989).
230. Hay & Spier, supra note 167, at 442; see infra text accompanying note 186 (referring to "strategic litigation"). I argue that there are almost always gains to be achieved through settlement because, for example, a party may value trial as an opportunity for self-expression or publicity.
231. See Hay & Spier, supra note 167, at 445 ("As an initial approximation, &mellip; we might anticipate that cases will generally settle for an amount roughly equal to the expected judgment at trial.").
232. Robert Cooter & Thomas Ulen, Law & Economics 445 (5th ed. 2008)
233. see also Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497, 499 (1991) ("Moreover, the available theoretical models of settlement behavior predict or imply that settlement outcomes will approximate trial outcomes.").
234. Diane J. Klein, A Disappointed Yankee in Connecticut (or Nearby) Probate Court: Tortious State Approaches in the First, Second, and Third Circuits, 66 U. PITT L. REV. 235, 238 & n.4 (2004) ("Generally, the estate bears the cost of defending the proffered will."); see, e.g., Tex. Probate Code Ann. § 243 (West 2003) (providing that "necessary expenses and disbursements" relevant to probate come from the estate).
235. Edmund Nathaniel Cahn, Undue Influence and Captation: A Comparative Study, 8 TUL. L. REV. 507, 517 (1934) ("Estates are consumed with fees and expenses, costs being but rarely imposed upon unsuccessful contestants.")
236. John H. Langbein, Living Probate: The Conservatorship Model, 11 MICH. L. REV. 63, 65 (1978) (explaining that estates bear the costs of will contests, thus "failing to charge a losing plaintiff with attorney fees and other costs incurred by the defendant").
237. See Cahn, supra note 178, at 519.
238. See ATKINSON, supra note 19, at 579 (noting that a temporary administrator may be appointed pending a trial, which demonstrates that the beneficiary is not in charge of the litigation).
239. See id. (indicating that courts have authority to replace executors if they are unduly hostile to the estate or if charged with undue influence in administering the estate).
240. See In re Estate of Roosa, 753 P.2d 1028, 1031 (Wyo. 1988) (noting that the sole beneficiary is allowed to intervene in will contests). But see Estate of Peery v. Swafford, No. 03A01-9803-CV-00087, 1998 WL 744109, at *1 (Term. Ct. App. Oct. 2, 1998) (rejecting beneficiary's motion for intervention because it was untimely and because his interests were adequately represented by the proponents of the will).
241. Schoenblum, supra note 165, at 613 chart 3.
242. See Alexander, supra note 176, at 499-500.
243. Id. at 597.
244. Id.
245. Schoenblum, supra note 165, at 617
246. Accord Rosenkld, supra note 165, at 185 tbl.8.3.
247. Hay & Spier, supra note 167, at 444 ("[T]he likelihood of settlement decreases as the amount at stake in the case increases."). The asymmetric cost effect described supra, text accompanying note 186, is mitigated to the extent the parties are motivated by factors other than money.
248. E.g., Avery Katz, The Effect of Frivolous Lawsuits on the Settlement of Litigation, 10 INT'L REV. L. & ECON. 3 (1990).
249. Id. at 4.
250. See Alexander, supra note 176, at 499-500.
251. Schoenblum, supra note 165, at 613-14, 626-27.
252. See id. at 613 chart 3, 614 n.33.
253. SUSSMAN ET AL., supra note 44, at 122-25.
254. Id. at 122.
255. Id. at 122-23.
256. Id. at 89.
257. Id. at 122-23 (reporting that three cases involved disinheritance or near disinheritance).
258. See supra notes 40 & 76 and accompanying text.
259. See supra note 77 and accompanying text.
260. See supra Part III.C.
261. See supra Part III for a discussion of each of these considerations.
262. If one accepts the argument for quantification, the question becomes whether the standard should simply be set at 0.69. Indeed, more refined proof levels are already at work in this context; recall the dizzying array of verbal formulations.
263. See supra text accompanying notes 16-22. Some have argued that three is a magic number. Clermont, supra note 84, at 1115 (noting that the standard of proof divides into three standards, despite the fact that it may more properly be understood as a "continuum")
264. see also McBaine, supra note 79, at 245-47 (discussing three burdens of persuasion). Whether more refined standards are appropriate is outside the scope of this Article.
265. See supra Figure 2.
266. Researchers could ask respondents not only how they would prefer their estates to be distributed under different factual scenarios,
267. see, e.g., Fellows et al., supra note 107, at 351 tbl.7, but also how they feel about the intestate distribution. For example, the researcher could ask a follow-up question to respondents who deviate from the intestate pattern. This could be phrased, "If the distribution you just selected is given a score of 100 on a 100-point scale where 100 is 'exactly what you want' and 0 is 'totally unacceptable,' where does the following intestate distribution fall on that scale?" Answers could help generate a more refined estimate of/.
268. To these three considerations, one could add consistency. If the case for the preponderance standard is relatively strong for replacement wills and codicils, consistency argues in favor of applying it generally.
269. See Pierce v. Pierce, 127 S.W.2d 791, 794 (Tenn. 1939) (rejecting the clear-and-convincing standard in favor of preponderance, and noting that "[recognition and application of exceptions to the fixed rules governing the proof required in civil and criminal cases, respectively, would give rise to great confusion "). This argument should not prevail; the existence of a prior will creates a bright-line rule, and lawyers who currently practice in this area must be sensitive to standards of proof.
270. Alex Stein, Foundations of Evidence Law 153 (2005). Accord Redmayne, supra note 68, at 174 (arguing that the preponderance standard "should only be abandoned where the reasons for doing so are compelling"). Elsewhere, Professor Stein appears to back away somewhat from this statement.
271. See Richard A. Bierschbach & Alex Stein, Overenforcement, 93 GEO. L.J. 1743, 1758 (2005) (explaining that their "theory offers no concrete prescriptions for a perfectly tailored counterbalancing approach," such as a heightened evidentiary requirement, "that would do exactly right on a case-by-case basis " and, furthermore, that such a theory is "unattainable").
272. Cf. Epstein, supra note 61.
273. See STEIN, supra note 216, at 141.
274. Id. at 153.
275. Schoenblum, supra note 165, at 648 chart 22 (indicating that 49 out of 66 contests, or 74%, involved undue influence claims; 48, or 73%, involved incapacity claims; and, the next most common claim, lack of testamentary formalities, was alleged in only 9 cases, or 14%). Undue influence is a slippery concept, but it has been defined as follows: "[a] donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made." RESTATEMENT (THIRD) OF Prop.: Wills AND OTHER Donative Transfers § 8.3(b) (2003).
276. There obviously can be overlap between incapacity and undue influence. Fraud is also a basis for will contests and may, too, overlap with the other two contest grounds. A definitive answer to the question of which standard of proof is optimal for any one of these grounds would have to account for their potential interchangeability. Such second-order effects are outside the scope of this Article.
277. ROSS & REED, supra note 19, § 7:12, at 7-76 to 7-79 nn.17-18 (listing authority from twenty-nine states following the preponderance rule and authority from fourteen states requiring clear-and-convincing evidence).
278. Id. §7:1, at 7-3.
279. Id. (demonstrating that innocent, mistaken conduct will not inculpate an individual under the undue influence standard).
280. ROSS & REED, supra note 19, § 7:12, at 7-79 n.18. This treatise places Iowa and Ohio on both sides of the divide. Id. (1999 & Supp. 2010). However, the authority it cites puts both states in the preponderance camp.
281. See In re Estate of Todd, 585 N.W.2d 273 (Iowa 1998); West v. Lucas, 139 N.E. 859 (Ohio 1922).
282. ROSS & REED, supra note 19, § 6:14, at 6-67 n.39, 6-75 n.43.
283. Id. § 7:12, at 7-76 n.17, 7-79 n.18. Section 7:12 lists Louisiana citations in support of both standards, id, but the controlling statute indicates that the state applies the clear-and-convincing-evidence standard. See LA. ClV. CODE ANN. art. 1483 (2000).
284. STEIN, supra note 216. Accord Addington v. Texas, 441 U.S. 418, 424 (1979).
285. STEIN, supra note 216.
286. Id.
287. see supra Equation 4.
288. In this sense, Stein fails his own unequivocal-evidence test. STEIN, supra note 216. In fairness, Stein may have intended to offer an explanation rather than a full justification.
289. Id.
290. Even without that concern, however, this Article suggests that there is a reasonably strong case for the clear-and-convincing-evidence standard for undue influence.
291. See Richard A. Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477, 1504 (1999). Even those who criticize this rationale cite the costs of false convictions in favor of the high standard.
292. See Richard Lempert, the Economic Analysis of Evidence Law: Common Sense on Stilts, 87 Va. L. REV. 1619, 1665 (2001) (relying on "an aspiration to never convict innocent people and a moral judgment about the wrongfulness of inflicting the pain of criminal conviction on people who are not guilty of crimes").
293. POSNER, supra note 193, § 22.4, at 648. Note, however, that the reasonable-doubt standard applies to all crimes, not just those leading to imprisonment.
294. See, e.g., Dept. of Rev. of Mont. v. Kurth Ranch, 511 U.S. 767, 778 (1994) ("A government may not impose criminal fines without first establishing guilt by proof beyond a reasonable doubt.").
295. See supra note 56 and accompanying text.
296. See Posner, supra note 233, at 1504-07.
297. See, e.g., McCullough v. State, 657 P.2d 1157, 1159 (Nev. 1983) ("The concept of reasonable doubt is inherently qualitative. Any attempt to quantify may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than clarify."); Lillquist, supra note 60, at 91 ("[T]he traditional understanding wrongly assumes that we know how to weigh these costs and benefits.").
298. Posner, supra note 233, at 1505
299. See supra Part III.J.
300. See, e.g., TEX. PROBATE CODE ANN. § 243 (West 2003).
301. POSNER, sapra note 193, § 22.4, at 648-9.
302. Id. at 649.
303. See id.
304. See supra text accompanying note 59.
305. See POSNER, supra note 193, § 22.4, at 648.
306. See id.
307. See supra Part 1II.B.
308. POSNER, supra note 193, § 22.4, at 649-50.