Claims Analysis

About the Book

Theme: The application of traditional logic and the adaptation of methods from risk analysis enable the law to successfully resolve disputes.

A claim to ownership may appear wherever some combination of cultural values assures reliability and exclusivity to an individual´s decision. The claim must fit somewhere within the social contract to obtain such recognition.

The social contract is a consensus on risk and opportunity. It is a consensus accepted widely enough in society that a person can rely upon it. There are two possibilities: either a person accepts opportunities and risks alone, or she shares them with others.

Each society defines the specifics of its contract, but each uses the same general framework. 1. Each person has an exclusive claim to the fruits of her own labor. 2. No one holds an exclusive claim to wealth that has come to her through some method for which she is not responsible. There exists the possibility that the holder must share this wealth with others. 3. Each person must bear alone any losses that result from her independent actions. 4. Each person may demand that others help cover losses when the losses result from events outside her control.

The four causes of change are the analytical method that links the client to an area of the social contract. Most commonly, the four causes are used to show that some area of human activity has become subject to rights legitimately held by the client.

The four causes describe the situation before the client’s problem started (material cause); the process that created the problem (efficient cause); the situation when this process was finished (formal cause); and the purpose of this change (final cause).

The techniques of risk analysis measure the probability that the client’s claim is valid. For example, the null hypothesis in science becomes the presumption of innocence in law. The law sets the limits of behavior that is so far from society’s expectations that the behavior is illegal; here, the law applies the idea of a standard deviation.

The burden of proof performs the same function as a level of confidence. But the law takes this technique a step farther. If the jury is persuaded to the relevant burden of proof, then a statement is accepted not merely within a range of probability, but as a certainty. That statement becomes the finding of fact.

Comparing this finding to the pertinent legal standard creates the familiar syllogism where the law is the major premise, the finding of fact is the minor premise, and the judgment is the conclusion. A syllogism is a statistical comparison where the level of confidence is set at 100%.

Developments in legal theory have paralleled developments in the natural sciences. The writing of John Locke and Sir William Blackstone (absolutes in law) paralleled the work of Sir Isaac Newton (absolutes in space and time).

As Albert Einstein published his theories of relativity, Wesley Hohfeld identified eight fundamental legal relationships, each of which transformed itself in relation to the others. By century’s end, Laurence Tribe wrote of the curvature of constitutional space much as gravity curves physical space.

Excerpts of the book appear at Claims Analysis.

About the Author

Mark Andrews is a 1975 law graduate of Georgetown University. He is currently Associate Counsel for Tanana Chiefs Conference, a tribal organization. He has worked in private practice, rural legal services, and municipal government. Andrews lives with his family in Fairbanks, Alaska.