Hofstra Law Review


In this Article, I use the lost chance cases to examine the logical conditions for such a warranted direct inference in legal fact-finding. I first set out various interpretations of what "probable" means when used in the lost chance cases. This is the topic of part I. In part II, I use this discussion of the meaning of probability, together with an examination of two contemporary epistemological theories of direct inference, to propose an analysis of the appropriate conditions for the type of direct inference central to resolving the lost chance cases. My proposal is that the direct inference is not warranted by any epistemological guarantee of validity, but is required under certain conditions by minimal fairness to the parties. In part III, I use this proposed theory of warranted direct inference to reconceptualize a number of the important legal issues involved in the lost chance cases, and I suggest guidelines for deciding motions for summary judgment or directed verdict and for framing jury instructions in such cases. In particular, I suggest that a number of the fairness concerns that courts have sought to address by modifying the legal concepts of causation or compensable injury are no longer pressing, once certain confusions about direct inference have been cleared away. More traditional means of achieving justice are available within lost chance cases, without tampering with causation or compensable injury.

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