Colb surfaces the "statistical versus concrete harms" disparity in judicial (and more broadly, human) reactions to probability-based behavior. In particular, it identifies the disparity in case law that either explicitly relies on the distinction as a normatively proper ground for legal decisions or that operates in a manner best explained by resort to this distinction. Though the paper is primarily descriptive, it suggests, tentatively, that lawmakers, judges, and juries should exercise greater care and deliberation in applying what may seem like a "natural" approach to distinguishing between permissible and impermissible harm. It is thus a plea for "conscious" consideration of the statistical-concrete distinction, which is sometimes applied in an unthinking fashion.
Sherry F. Colb,
Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms,
73 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol73/iss3/3