Burdens of Proof in the Blogosphere
Now that my evidence exam is a couple days behind me, I am able to allow that subject material back into my system without getting nervous twitches. I've been thinking that the rules regarding burden of persuasion and burden of production might serve as a good proxy/analogy for looking at the tenor of debate in the blogosphere (and elsewhere).
Most people seem to believe either that a) the other side in any debate always carries the ultimate burden of persuasion, or b) on the rare occasion when they carry the burden of persuasion, they have some presumption that (in a Morgan jurisdiction at least), would shift the burden onto their opponent.
As such, they will declare victory unless the other side can establish by a preponderance of the evidence that the other side is correct.
This, by itself, would be a strange but not debilitating system in which to debate. But there is an additional psychological phenomenon at work which mucks everything up. Either because of self-confidence or bitter partisanship, most people seem to believe that the evidence on their side is SO strong, and the evidence on the other side SO weak, that there is not even a "jury question" involved. They feel that their side deserves a directed verdict on the question, because no reasonable person (jury) could find for their opponent.
In any given debate in which both sides make such a claim, two things are clear. First, at least one side is wrong. Directed verdicts for opposing sides are fundamentally impossible. Second, each side thinks the other is not only wrong, but unreasonably wrong. They believe their opponents are actually advocating a position that can not be reasonably held.
So what is really going on? In a few cases, one side is probably correct that their evidence really is that much stronger, and a "directed verdict" would be appropriate.
But in the vast majority of debates, the issue at stake is contested with sufficient weight on both sides that it is unlikely a "directed verdict" would be appropriate. Instead, there is some combination of over-estimating the weight of one's own evidence and discounting that of the opponent. In these cases, which I am asserting make up the vast majority of the most controversial issues, both sides have met their burden of production. As a result, there is sufficient evidence on each side that a reasonable person (jury) could come out either way.
That is why you will often see me include a clause in my posts such as "reasonable people can differ." This is something largely lost in many debates, but a cursory look at the rules of evidence provides some guidance on how important it is to remember. On many questions of considerable and prolonged controversy, the very cause of that controversy is that reasonable people can differ, that there is evidence on both sides. In such cases, we ought not treat our debate opponents as if they should be tossed out of court on a directed verdict. Instead we should engage and debate them as if we carry the burden of persuasion, and a reasonable jury is listening to and judging our arguments.
