“I Reckon”: The Standard of Proof Applied by Judges to Restraining Order Cases

TALKING BACK to restraining orders

As the story goes, civil restraining orders are awarded to plaintiffs who demonstrate by a “preponderance of the evidence” that they need one. According to this story, a judge determines by actuarial science that there’s a 51% or greater probability that the petitioner’s need is valid, that is, that s/he’s representing some facts and his or her feelings about them more sincerely than not and that those facts and feelings fall into some legal definition of trespass (that’s typically as voluminous as interstellar space).

So concludes Harvard Law Prof. Louis Kaplow (who actually does the math).

The important thing is that the process sounds just.

Restraining order judges rule with mallets—and no subtler instruments. While they may be formulaic, their opinions (and they’re not called “opinions” for nothing) aren’t arrived at by the application of algebra. The phrase preponderance of the evidence is a rhetorical affectation…

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