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As usually defined, the preponderance test is a standard of proof which directs the jury to accept the plaintiff's version of the disputed facts if they are more probably true than not. But what happens when the most important disputed "facts" are judgments about probability? This paper offers an interpretation of the preponderance test which can be applied to this situation. In the example of the paper, B is the benefit of a drug, C is the health cost if it is a teratogen, and p is the probability of teratogenicity. The contested "fact" is the magnitude of p, the probability of harm. In the interpretation considered by the paper, the jury finds in favor of the plaintiff if the jury decides that it is more likely than not that p is greater than B/C. This definition of the preponderance test does not quite minimize expected costs, and compared with expected cost minimization it is likely to be biased toward under-protection when the health costs are high compared with the benefits. But when the mean and median of the second order probability of p are the same, the definition coincides with expected cost minimization. It is also shown that under a criterion of expected cost minimization, contrary to Posner, judicial error costs are not in general the same and the number of erroneous judgments favoring undeserving plaintiffs is not likely to be the same as the number of erroneous judgments favoring undeserving defendants.

On the Meaning of the Preponderance Test in Judicial Regulation of Chemical Hazard