Many have attempted to justify various courts’ position that bare or naked statistical evidence is not sufficient for findings of liability. I provide a particular explanation by examining a different, but related, issue about when and why stereotyping is wrong. One natural explanation of wrongness of stereotyping appeals to agency. However, this has been scrutinised. In this paper, I argue that we should broaden our understanding of when and how our agency can be undermined. In particular, I argue that when we take seriously that our agency is exercised in the social world, we can see that stereotyping can and does undermine our agency by fixing the social meaning of our choices and actions as well as by reducing the quality and the kinds of choices that are available to us. Although this improves the agency-based explanation, it must be noted that undermining agency is not an overriding reason against stereotyping. Much depends on the balance of reasons that take into account moral stakes involved in a case of stereotyping. This results in a messier picture of when and why stereotyping is wrong, but I argue that this is a feature, not a bug. I end by applying this agency-based explanation to cases that have motivated the so-called Proof Paradoxes.
{"title":"Proof Paradoxes, Agency, and Stereotyping","authors":"Aness Kim Webster","doi":"10.1111/phis.12191","DOIUrl":"https://doi.org/10.1111/phis.12191","url":null,"abstract":"Many have attempted to justify various courts’ position that bare or naked statistical evidence is not sufficient for findings of liability. I provide a particular explanation by examining a different, but related, issue about when and why stereotyping is wrong. One natural explanation of wrongness of stereotyping appeals to agency. However, this has been scrutinised. In this paper, I argue that we should broaden our understanding of when and how our agency can be undermined. In particular, I argue that when we take seriously that our agency is exercised in the social world, we can see that stereotyping can and does undermine our agency by fixing the social meaning of our choices and actions as well as by reducing the quality and the kinds of choices that are available to us. Although this improves the agency-based explanation, it must be noted that undermining agency is not an overriding reason against stereotyping. Much depends on the balance of reasons that take into account moral stakes involved in a case of stereotyping. This results in a messier picture of when and why stereotyping is wrong, but I argue that this is a feature, not a bug. I end by applying this agency-based explanation to cases that have motivated the so-called Proof Paradoxes.","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44939802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When facts are proven within the formal process of legal proof, in virtue of what are they proven? This deceptively simple question is both a matter of enormous practical importance and a matter of intense, ongoing dispute within evidence scholarship. A conventional story purports to answer this question in terms of probabilistic facts (or, alternatively, in terms of beliefs about probabilistic facts). An alternative to this conventional story answers this question in terms of explanatory facts (facts about the relationships between possible explanations, evidence, and disputed events). This article examines legal proof, and the debates in legal scholarship, through the lens of “grounding.” In employing this perspective, one asks: in virtue of what are facts proven within legal proof? Another way of asking this question is to ask: what grounds the fact that a disputed fact is proven, when it is proven? This article argues for a general thesis and a specific thesis. The general thesis is that the philosophical literature on grounding provides a useful analytical framework for understanding both legal proof and the ongoing debates in legal scholarship. The specific thesis is that when facts are proven within the process of legal proof, they are proven in virtue of various explanatory facts. The article concludes by discussing some of the implications of the analysis for philosophers analyzing the epistemology of legal proof.
{"title":"Grounding legal proof","authors":"Michael S. Pardo","doi":"10.1111/phis.12195","DOIUrl":"https://doi.org/10.1111/phis.12195","url":null,"abstract":"When facts are proven within the formal process of legal proof, in virtue of what are they proven? This deceptively simple question is both a matter of enormous practical importance and a matter of intense, ongoing dispute within evidence scholarship. A conventional story purports to answer this question in terms of probabilistic facts (or, alternatively, in terms of beliefs about probabilistic facts). An alternative to this conventional story answers this question in terms of explanatory facts (facts about the relationships between possible explanations, evidence, and disputed events). \u0000 \u0000This article examines legal proof, and the debates in legal scholarship, through the lens of “grounding.” In employing this perspective, one asks: in virtue of what are facts proven within legal proof? Another way of asking this question is to ask: what grounds the fact that a disputed fact is proven, when it is proven? This article argues for a general thesis and a specific thesis. The general thesis is that the philosophical literature on grounding provides a useful analytical framework for understanding both legal proof and the ongoing debates in legal scholarship. The specific thesis is that when facts are proven within the process of legal proof, they are proven in virtue of various explanatory facts. The article concludes by discussing some of the implications of the analysis for philosophers analyzing the epistemology of legal proof.","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42929859","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The state's right to evidence and duties of citizenship","authors":"Youngjae Lee","doi":"10.1111/phis.12198","DOIUrl":"https://doi.org/10.1111/phis.12198","url":null,"abstract":"","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43475265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Political action, epistemic detachment, and the problem of white‐mindedness","authors":"Darien Pollock","doi":"10.1111/phis.12194","DOIUrl":"https://doi.org/10.1111/phis.12194","url":null,"abstract":"","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46193826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Realizing the value of public input: Mini‐public consultation on agency rulemaking\u0000 1","authors":"E. J. Martínez","doi":"10.1111/phis.12196","DOIUrl":"https://doi.org/10.1111/phis.12196","url":null,"abstract":"","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49053740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The legal scholar Henry Wigmore asserted that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth.’ Was Wigmore right? Instead of addressing this question upfront, this paper offers a conceptual ground clearing. It is difficult to say whether Wigmore was right or wrong without becoming clear about what we mean by cross-examination; how it operates at trial; what it is intended to accomplish. Despite the growing importance of legal epistemology, there is virtually no philosophical work that discusses cross-examination, its scope and function at trial. This paper makes a first attempt at clearing the ground by articulating an analysis of cross-examination using probability theory and Bayesian networks. This analysis relies on the distinction between undercutting and rebutting evidence. A preliminary assessment of the truth-seeking function of cross-examination is offerred at the end of the paper.
{"title":"A probabilistic analysis of cross-examination using Bayesian networks","authors":"M. Bello","doi":"10.1111/PHIS.12209","DOIUrl":"https://doi.org/10.1111/PHIS.12209","url":null,"abstract":"The legal scholar Henry Wigmore asserted that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth.’ Was Wigmore right? Instead of addressing this question upfront, this paper offers a conceptual ground clearing. It is difficult to say whether Wigmore was right or wrong without becoming clear about what we mean by cross-examination; how it operates at trial; what it is intended to accomplish. Despite the growing importance of legal epistemology, there is virtually no philosophical work that discusses cross-examination, its scope and function at trial. This paper makes a first attempt at clearing the ground by articulating an analysis of cross-examination using probability theory and Bayesian networks. This analysis relies on the distinction between undercutting and rebutting evidence. A preliminary assessment of the truth-seeking function of cross-examination is offerred at the end of the paper.","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43798884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper defends the heretical view that sometimes we ought to assign legal liability based on statistical evidence alone. Recent literature focuses on potential unfairness to the defending party if we rely on bare statistics. Here, I show that capitulating in response to ‘epistemic gaps’—cases where there is a group of potential harmers but an absence of individuating evidence—can amount to a serious injustice against the party who has been harmed. Drawing on prominent civil law litigation involving pharmaceutical and industrial negligence, the overall aim is to illustrate moral pitfalls stemming from the popular idea that it is never appropriate to rely on bare statistics when settling a legal dispute.
{"title":"Justice in epistemic gaps: The ‘proof paradox’ revisited","authors":"Lewis Ross","doi":"10.1111/phis.12193","DOIUrl":"https://doi.org/10.1111/phis.12193","url":null,"abstract":"This paper defends the heretical view that sometimes we ought to assign legal liability based on statistical evidence alone. Recent literature focuses on potential unfairness to the defending party if we rely on bare statistics. Here, I show that capitulating in response to ‘epistemic gaps’—cases where there is a group of potential harmers but an absence of individuating evidence—can amount to a serious injustice against the party who has been harmed. Drawing on prominent civil law litigation involving pharmaceutical and industrial negligence, the overall aim is to illustrate moral pitfalls stemming from the popular idea that it is never appropriate to rely on bare statistics when settling a legal dispute.","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":"65 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138512410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal epistemology seems to be exploding. More and more philosophers seem to be taking an interest in the theory of evidence law, and to bring along with them to legal theory the freshest news from the abstract study of epistemology . This is understandable, of course: The law in general, and evidence law in particular, seems to be employing the same natural-language terms epistemologists are (or are at least supposed to be) interested in (“knew or should have known”, “reasonable doubt”, “evidence”, “presumption” (of innocence), and so on) . In this paper we argue that a large part of this project is based on a mistake, roughly analogous to the mistake involved in thinking of studies of intelligence as relevant to the understanding of military intelligence. With qualifications shortly to emerge, epistemology is not, we think, intrinsically and directly relevant to normative evidence law theory, at least, that is, as long as the relevant perspective is that of designing the evidence law regime. When it comes to the conscientious fact-finder, things may be – we’re not sure about this – importantly different.
{"title":"Does legal epistemology rest on a mistake? On fetishism, two‐tier system design, and conscientious fact‐finding","authors":"David Enoch,Talia Fisher,Levi Spectre","doi":"10.1111/phis.12203","DOIUrl":"https://doi.org/10.1111/phis.12203","url":null,"abstract":"Legal epistemology seems to be exploding. More and more philosophers seem to be taking an interest in the theory of evidence law, and to bring along with them to legal theory the freshest news from the abstract study of epistemology . This is understandable, of course: The law in general, and evidence law in particular, seems to be employing the same natural-language terms epistemologists are (or are at least supposed to be) interested in (“knew or should have known”, “reasonable doubt”, “evidence”, “presumption” (of innocence), and so on) . \u0000 \u0000In this paper we argue that a large part of this project is based on a mistake, roughly analogous to the mistake involved in thinking of studies of intelligence as relevant to the understanding of military intelligence. With qualifications shortly to emerge, epistemology is not, we think, intrinsically and directly relevant to normative evidence law theory, at least, that is, as long as the relevant perspective is that of designing the evidence law regime. When it comes to the conscientious fact-finder, things may be – we’re not sure about this – importantly different.","PeriodicalId":46360,"journal":{"name":"Philosophical Issues","volume":"65 3","pages":"85-103"},"PeriodicalIF":0.7,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138512409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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