I agree that the magnitude of the proposed deprivation is highly relevant to the burden of proof. The social benefit from taking the action on a true positive, and the individual harm from acting on a false positive also weigh in the balance.
In my view, the appropriate burden of proof also takes into account the extent of other process provided. A heightened burden of proof is one procedure for reducing the risk of erroneous deprivations, but it is not the only or even the most important one.
In most cases, I would say that the thinner the other process, the higher the BOP needs to be. For example, discipline by the bar, medical board, etc is usually more likely than not . . . but you get a lot of process like an independent adjudicator, subpoena power, and judicial review. So we accept 51 percent with other procedural protections in play. (And as a practical matter, the bar generally wouldnt prosecute a case it thought was 51 percent anyway due to resource constraints). With significantly fewer protections, I’d argue that a higher BOP would be required—both as a legal matter (these are government agencies) and a practical one. Although not beyond a reasonable doubt.
Of course, more process has costs both financial and on those involved. But it’s a possible way to deal with some situations where the current evidence seems too strong to do nothing and too uncertain to take significant action.
I agree that the magnitude of the proposed deprivation is highly relevant to the burden of proof. The social benefit from taking the action on a true positive, and the individual harm from acting on a false positive also weigh in the balance.
In my view, the appropriate burden of proof also takes into account the extent of other process provided. A heightened burden of proof is one procedure for reducing the risk of erroneous deprivations, but it is not the only or even the most important one.
In most cases, I would say that the thinner the other process, the higher the BOP needs to be. For example, discipline by the bar, medical board, etc is usually more likely than not . . . but you get a lot of process like an independent adjudicator, subpoena power, and judicial review. So we accept 51 percent with other procedural protections in play. (And as a practical matter, the bar generally wouldnt prosecute a case it thought was 51 percent anyway due to resource constraints). With significantly fewer protections, I’d argue that a higher BOP would be required—both as a legal matter (these are government agencies) and a practical one. Although not beyond a reasonable doubt.
Of course, more process has costs both financial and on those involved. But it’s a possible way to deal with some situations where the current evidence seems too strong to do nothing and too uncertain to take significant action.