According to the modal account of luck it is a matter of luck that p if p is true at the actual world, but false in a wide‐range of nearby worlds. According to the modal account of risk, it is risky that p if p is true at some close world. I argue that the modal accounts of luck and risk do not mesh well together. The views entail that p can be both maximally risky and maximally lucky, but there (...) is nothing which is both maximally lucky and maximally risky. I offer a novel theory of risk that fits together with the modal account of luck and demonstrate that it is both extensionally and formally superior to extant proposals. (shrink)

A looming deadline. A difficult situation at home. A heated phone conversation that redirects our attention. Certain features of our circumstances can be (at least partially) excusing; sometimes, agents who act wrongly in the face of circumstantial pressures are not (that) blameworthy for having done so. But we’re rather bad at detecting these factors that excuse others from blame. When put together, these two observations yield an under-appreciated problem: we fall short of procedural norms of blame in fairly systematic ways.

The proof paradox results from conflicting intuitions concerning different types of fallible evidence in a court of law. We accept fallible individual evidence but reject fallible statistical evidence even when the conditional probability that the defendant is guilty given the evidence is the same, a seeming inconsistency. This paper defends a solution to the proof paradox, building on a sensitivity account of checking and settling a question. The proposed sensitivity account of legal proof not only requires sensitivity simpliciter but sensitivity (...) of each relevant step of the proof procedure and/or sensitivity concerning all relevant alternatives. This account avoids problems that have been identified for other sensitivity views of legal proof. Moreover, it is argued that sensitivity, rather than safety, is the crucial modal condition for legal proof. It is, finally, shown that the provided account can fruitfully support very different existing views on the relationship between knowledge and legal proof. (shrink)

Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces the standards of proof (...) and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes (e.g. guilty or not guilty) or rather use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system. (shrink)

Must rational thinkers have consistent sets of beliefs? I shall argue that it can be rational for a thinker to believe a set of propositions known to be inconsistent. If this is right, an important test for a theory of rational belief is that it allows for the right kinds of inconsistency. One problem we face in trying to resolve disagreements about putative rational requirements is that parties to the disagreement might be working with different conceptions of the relevant attitudes. (...) My aim is modest. I hope to show that there is at least one important notion of belief such that a thinker might rationally hold a collection of beliefs (so understood) even when the thinker knows their contents entail a contradiction. (shrink)

In this paper I explore some ideas inspired by Federico Picinali’s Justice In-Between: A Study of Intermediate Criminal Verdicts. Picinali makes a case for the introduction of intermediate options in criminal trials – verdicts with consequences that are harsher than an acquittal, but not so harsh as a conviction. From a certain perspective, the absence of intermediate options in criminal trials is puzzling – out of kilter with much of our everyday decision-making and, perhaps, with the recommendations of expected utility (...) theory. I will argue, however, that the lack of intermediate options is much less puzzling when put in the context of our ordinary practices of blame and non-legal punishment. (shrink)

I defend the thesis that legal standards of proof are reducible to thresholds of probability. Many reject this thesis because it appears to permit finding defendants liable solely on the basis of statistical evidence. To the contrary, I argue – by combining Thomson's (1986) causal analysis of legal evidence with formal methods of causal inference – that legal standards of proof can be reduced to probabilities, but that deriving these probabilities involves more than just statistics.

The use of algorithms to support prediction-based decision-making is becoming commonplace in a range of domains including health, criminal justice, education, social services, lending, and hiring. An assumption governing such decisions is that there is a property Y such that individual a should be allocated resource R by decision-maker D if a is Y. When there is uncertainty about whether a is Y, algorithms may provide valuable decision support by accurately predicting whether a is Y on the basis of known (...) features of a. Based on recent work on statistical evidence in epistemology this article presents an argument against relying exclusively on algorithmic predictions to allocate resources when they provide purely statistical evidence that a is Y. The article then responds to the objection that any evidence that will increase the proportion of correct decisions should be accepted as the basis for allocations regardless of its epistemic deficiency. Finally, some important practical aspects of the conclusion are considered. (shrink)

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some (...) unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities. (shrink)

Within the contemporary epistemology of testimony, it is widely assumed that testimonial scepticism can be dismissed without engaging with possible reasons or arguments supporting the view. This assumption of dismissibility both underlies the debate between reductionist and non-reductionist views of testimony and is responsible for the neglect of testimonial scepticism within contemporary epistemology. This paper argues that even given liberal assumptions about what may constitute valid grounds for the dismissal of a sceptical view, the assumption that testimonial scepticism is dismissible (...) should be rejected. For even if familiar sceptical positions and scepticism about testimonial justification can be dismissed on such grounds, scepticism about testimonial knowledge cannot. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

I develop a challenge to reductive views of knowing that φ that appeal to what I call a gradable property. Such appeal allows for properties that are intrinsically very similar to the property of knowing that φ, but differ significantly in their normative significance. This violates the independently plausible claim Pautz (2017) labels the small difference principle.

A theory of rational belief should get the cases right. It should also reach its verdicts using the right theoretical assumptions. Leading theories seem to predict the wrong things. With only one exception, they don't accommodate principles that we should use to explain these verdicts. We offer a theory of rational belief that combines an attractive picture of epistemic desirability with plausible principles connecting desirability to rationality. On our view, it's rational to believe when it's sufficiently likely that you'd know (...) because believing when it's sufficiently likely that you'd know minimises expected objective epistemic undesirability. (shrink)

The aim of this paper is to show that the meaning and significance of legal evidence is being constituted throughout the course of a singular instance of legal proceedings. This is to be achieved by describing what legal agents _do_ while appealing to different propositions of fact and inferring from them throughout the course of legal proceedings. The authors claim that the process of applying the law is ultimately rooted in the inferential discursive practices of exchanging reasons on the part (...) of the participants of legal proceedings. Therefore, they set forth a model of legal proceedings that consists of an interplay between three types of reasons, which are exchanged by the participants of legal proceedings: i.e. legal reasons, epistemic reasons and stake reasons. To illustrate this interplay, the authors deploy a metaphor of law as a game, and provide a description of legal proceedings as a particular instance of playing a game of law. The conclusion is that the legal concept of evidence is (at least in part) constituted by the role that evidence plays in affecting which reasons for action the participants to legal proceedings choose to act on. The other final assumption of this paper is metatheoretical: authors want to show that when analyzing what legal evidence is, one should begin from the perspective of a singular instance of legal proceedings, rather than from the perspective of law in general. (shrink)

James Joyce's article “A Nonpragmatic Vindication of Probabilism” introduced an approach to arguing for credal norms by appealing to the epistemic value of accuracy. The central thought was that credences ought to accurately represent the world, a guiding thought that has gone on to generate an entire research paradigm on the rationality of credences. Recently, a number of epistemologists have begun to apply this same thought to full beliefs, attempting to explain and argue for norms of belief in terms of (...) epistemic value. This paper examines these recent attempts, showing how they interact with work on the accuracy of credences. It then examines how differing judgments about epistemic value give rise to distinct rational requirements for belief, concluding by considering some of the fundamental questions and issues yet to be fully explored. (shrink)

This paper aims to outline, and argue for, an approach to episodic memory broadly in the spirit of knowledge-first epistemology. I discuss a group of influential views of epsiodic memory that I characterize as ‘two-factor accounts’, which have both proved popular historically and have also seen a resurgence in recent work on the philosophy of memory. What is common to them is that they try to give an account of the nature of episodic memory in which the concept of knowledge (...) plays no explanatory role. I highlight some parallels between these two-factor accounts and attempts to give a reductive definition of knowledge itself. I then discuss some problems two-factor accounts of episodic memory face in explaining the distinctive sense in which episodic recollection involves remembering personally experienced past events, before sketching an alternative approach to episodic memory, which takes as basic the idea that episodic memory involves the retention of knowledge. I argue that we can give an exhaustive constitutive account of what episodic memory is, and how it differs from other types of mental states, by considering what particular type of knowledge is retained in episodic memory, and what exactly having that knowledge consists in. (shrink)

The epistemological debate about radical skepticism has focused on whether our beliefs in apparently obvious claims, such as the claim that we have hands, amount to knowledge. Arguably, however, our concept of knowledge is only one of many knowledge-like concepts that there are. If this is correct, it follows that even if our beliefs satisfy our concept of knowledge, there are many other relevantly similar concepts that they fail to satisfy. And this might give us pause. After all, we might (...) wonder: What is so great about the concept of knowledge that we happen to have? Might it be more important, epistemically speaking, to investigate whether our beliefs satisfy some other relevantly similar concept instead? And how should questions such as these even be understood? This paper discusses the epistemological significance of these issues. In particular, a novel skeptical stance called ‘meta-skepticism’ is introduced, which is a kind of skepticism about the idea that some knowledge-like concepts are epistemically more important than others. It suggested that it is unclear whether this form of skepticism can be avoided. (shrink)

The notion of individualised evidence holds the key to solve the puzzle of statistical evidence, but there’s still no consensus on how exactly to define it. To make progress on the problem, epistemologists have proposed various accounts of individualised evidence in terms of causal or modal anti-luck conditions on knowledge like appropriate causation, sensitivity and safety. In this paper, I show that each of these fails as satisfactory anti-luck condition, and that such failure lends abductive support to the following conclusion: (...) once the familiar anti-luck intuition on knowledge is extended to individualised evidence, no single causal or modal anti-luck condition on knowledge can succeed as the right anti-luck condition on individualised evidence. This conclusion casts serious doubts on the fruitfulness of the move from anti-luck conditions on knowledge to anti-luck conditions on individualised evidence. I expand on these doubts and point out further aspects where epistemology and the law come apart: epistemic anti- luck conditions on knowledge do not adequately characterise the legal notion of individualised evidence. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology (...) and suggest a way to vindicate it. (shrink)

In this paper, I provide an account of the wrong that is done to women when everyday people fail to believe allegations of sexual assault made by women. I argue that an everyday person wrongs both the accuser and women causally distant from the accuser when they fail to believe the accuser’s allegation. First, I argue that there are responses that we, as everyday members of society, owe to victims of sexual assault. A condition enabling everyday people to respond in (...) the way owed to victims is that they have an outright belief that the accuser was assaulted. Actively suspending judgement about whether a crime occurred is in tension with the ability to respond to the victim in a way that supports and validates them. When an everyday person fails to have an outright belief in the truth of an allegation, they wrong the accuser because they risk failing to satisfy the conditions enabling them to fulfill their obligation to her. Second, I argue that everyday people wrong women who are causally distant from the accuser because in our social context, women are often treated in particular ways – especially in the sexual domain – because they are women. As a result, when women hear that an everyday person fails to believe a particular allegation, they easily project themselves into the accuser’s position and reasonably worry that if they were to be assaulted, they too would be met with doubt and disbelief by the people in their community. (shrink)

We argue that there is nothing that can do the work that normative reasons are expected to do. A currently popular view is that in any given situation, a set of normative reasons (understood as a set of facts, typically about the agent’s situation) always determines the ways we prospectively should or should not respond. We discuss an example that we think shows no such collection of facts could have this normative significance. A radical response might be to dispense with (...) reasons and explain the facts about the ways we should respond using something else entirely (e.g., expected value). We think a more fruitful approach is to explore the possibility of using decision-theoretic tools in a reasons-centred framework. (shrink)

Existing discussions of legal proof address a host of apparently disparate questions: What does it take to prove a fact beyond a reasonable doubt? Why is the reasonable doubt standard notoriously elusive, sometimes considered by courts to be impossible to define? Can the standard of proof by a preponderance of the evidence be defined in terms of probability thresholds? Why is statistical evidence often insufficient to meet the burden of proof? -/- This paper defends an account of proof that addresses (...) each of these questions. Where existing theories take a piecemeal approach to these puzzles, my theory develops an insight that unifies them—namely, the thesis that legal proof requires knowledge. Although this thesis may seem radical at first, I answer several common objections to it, and I argue that it does better than several competing accounts when it comes to making sense of our intuitions about what legal proof requires. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 188-209, October 2021.

Philosophical Issues, Volume 31, Issue 1, Page 167-187, October 2021.

This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does not suffice for legal (...) proof. I then introduce and motivate a knowledge-centred explanation of this fact. The knowledge-centred explanation rests on two premises. The first is that legal proof requires knowledge of culpability. The second is that one cannot attain knowledge that p from bare statistical evidence that p. To motivate the second premise, I suggest that beliefs based on bare statistical evidence fail to be safe—they could easily be wrong—and bare statistical evidence cannot eliminate relevant alternatives. -/- I then cast doubt on the first premise; I argue that legal proof does not require knowledge. I thereby dispute the knowledge-centred explanation of the inadequacy of bare statistical evidence for legal proof. Instead of appealing to the nature of knowledge, I suggest we should seek a more direct explanation by appealing to those more foundational epistemic properties, such as safety or eliminating relevant alternatives. (shrink)

Many philosophers have pointed out that statistical evidence, or at least some forms of it, lack desirable epistemic or non-epistemic properties, and that this should make us wary of litigations in which the case against the defendant rests in whole or in part on statistical evidence. Others have responded that such broad reservations about statistical evidence are overly restrictive since appellate courts have expressed nuanced views about statistical evidence. In an effort to clarify and reconcile, I put forward an interpretive (...) analysis of why statistical evidence should raise concerns in some cases but not others. I argue that when there is a mismatch between the specificity of the evidence and the expected specificity of the accusation, statistical evidence—as any other kind of evidence—should be considered insufficient to sustain a conviction. I rely on different stylized court cases to illustrate the explanatory power of this analysis. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

Why can testimony alone be enough for findings of liability? Why statistical evidence alone can’t? These questions underpin the “Proof Paradox” (Redmayne 2008, Enoch et al. 2012). Many epistemologists have attempted to explain this paradox from a purely epistemic perspective. I call it the “Epistemic Project”. In this paper, I take a step back from this recent trend. Stemming from considerations about the nature and role of standards of proof, I define three requirements that any successful account in line with (...) the Epistemic Project should meet. I then consider three recent epistemic accounts on which the standard is met when the evidence rules out modal risk (Pritchard 2018), normic risk (Ebert et al. 2020), or relevant alternatives (Gardiner 2019 2020). I argue that none of these accounts meets all the requirements. Finally, I offer reasons to be pessimistic about the prospects of having a successful epistemic explanation of the paradox. I suggest the discussion on the proof paradox would benefit from undergoing a ‘value-turn’. (shrink)

While many of us would not want to abandon the requirement that a defendant can only be found guilty of a serious criminal offence by a unanimous jury, we should not expect epistemology to give us the resources we need for justifying this requirement. The doubts that might prevent jurors from reaching unanimity do not show that, say, the BARD standard has not been met. Even if it were true, as some have suggested, that rationality requires that a jury composed (...) of epistemic peers should coalesce around one view about the defendant’s guilt, the failure to reach unanimity might be a good reason to worry about the epistemic failings of some small number of jurors but no reason to worry that we’ve failed to protect the defendant from an unjustified imposition of, say, the risk against wrongful conviction. The arguments for the unanimity requirement will need to come from outside of epistemology. (shrink)

This paper defends the heretical view that, at least in some cases, we ought to assign legal liability based on purely statistical evidence. The argument draws on prominent civil law litigation concerning pharmaceutical negligence and asbestos-poisoning. The overall aim is to illustrate moral pitfalls that result from supposing that it is never appropriate to rely on bare statistics when settling a legal dispute.

I argue that traditional views on which beliefs are subject only to purely epistemic assessment can reject demographic profiling, even when based on seemingly robust evidence. This is because the moral failures involved in demographic profiling can be located in the decision not to suspend judgment, rather than supposing that beliefs themselves are a locus of moral evaluation. A key moral reason to suspend judgment when faced with adverse demographic evidence is to promote social equality—this explains why positive profiling is (...) dubious, along with more familiar cases of negative profiling, and why profiling is suspect even when no particular action is at stake. My suspension-based view, while compatible with revisionary normative positions, does not presuppose them. Philosophers of all stripes can reject demographic profiling both in thought and deed. (shrink)

The paper investigates what type of motivation can be given for adopting a knowledge-based decision theory. KBDT seems to have several advantages over competing theories of rationality. It is commonly argued that this theory would naturally fit with the intuitive idea that being rational is doing what we take to be best given what we know, an idea often supported by appeal to ordinary folk appraisals. Moreover, KBDT seems to strike a perfect balance between the problematic extremes of subjectivist and (...) objectivist decision theory. We argue that these alleged advantages do not stand up to a closer scrutiny: KBDT inherits the same kinds of problems as alternative decision theoretic frameworks but doesn’t retain any of the respective advantages. Moreover, differently from other knowledge-action principles advanced in the literature, KBDT cannot fully explain the intuitive connections between knowledge and rational action. We conclude that the most serious challenge for knowledge-based decision theorists is to provide a substantive rationale for the adoption of such a view. (shrink)

Statistical evidence—say, that 95% of your co-workers badmouth each other—can never render resenting your colleague appropriate, in the way that other evidence (say, the testimony of a reliable friend) can. The problem of statistical resentment is to explain why. We put the problem of statistical resentment in several wider contexts: The context of the problem of statistical evidence in legal theory; the epistemological context—with problems like the lottery paradox for knowledge, epistemic impurism and doxastic wrongdoing; and the context of a (...) wider set of examples of responses and attitudes that seem not to be appropriately groundable in statistical evidence. Regrettably, we do not come up with a fully general, fully adequate, fully unified account of all the phenomena discussed. But we give reasons to believe that no such account is forthcoming, and we sketch a somewhat messier account that may be the best that can be had here. (shrink)

In this paper I respond to Marcello Di Bello’s criticisms of the ‘normic account’ of the criminal standard of proof. In so doing, I further elaborate on what the normic account predicts about certain significant legal categories of evidence, including DNA and fingerprint evidence and eyewitness identifications.

Many who think that naked statistical evidence alone is inadequate for a trial verdict think that use of probability is the problem, and something other than probability – knowledge, full belief, causal relations – is the solution. I argue that the issue of whether naked statistical evidence is weak can be formulated within the probabilistic idiom, as the question whether likelihoods or only posterior probabilities should be taken into account in our judgment of a case. This question also identifies a (...) major difference between the Process Reliabilist and Probabilistic Tracking views of knowledge and other concepts. Though both are externalist, and probabilistic, epistemic theories, Tracking does and Process Reliabilism does not put conditions on likelihoods. So Tracking implies that a naked statistic is not adequate evidence about an individual, and does not yield knowledge, whereas the Reliabilist thinks it gives justified belief and knowledge. Not only does the Tracking view imply that naked statistical evidence is insufficient for a verdict, but it gives us resources to explain why, in terms of risk and the special conditions of a trial. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of (...) incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

A new way to transpose the virtue epistemologist’s ‘knowledge = apt belief’ template to the collective level, as a thesis about group knowledge, is developed. In particular, it is shown how specifically judgmental belief can be realised at the collective level in a way that is structurally analogous, on a telic theory of epistemic normativity (e.g., Sosa 2020), to how it is realised at the individual level—viz., through a (collective) intentional attempt to get it right aptly (whether p) by alethically (...) affirming that p. An advantage of the proposal developed is that it is shown to be compatible with competing views—viz., joint acceptance accounts and social-distributive accounts—of how group members must interact in order to materially realise a group belief. I conclude by showing how the proposed judgment-focused collective (telic) virtue epistemology has important advantages over a rival version of collective virtue epistemology defended in recent work by Jesper Kallestrup (2016). (shrink)

Modalists think that knowledge requires forming your belief in a “modally stable” way: using a method that wouldn't easily go wrong, or using a method that wouldn't have given you this belief had it been false. Recent Modalist projects from Justin Clarke-Doane and Dan Baras defend a principle they call “Modal Security,” roughly: if evidence undermines your belief, then it must give you a reason to doubt the safety or sensitivity of your belief. Another recent Modalist project from Carlotta Pavese (...) and Bob Beddor defends “Modal Virtue Epistemology”: knowledge is a belief that is maximally modally robust across “normal” worlds. We'll offer new objections to these recent Modalist projects. We will then argue for a rival view, Explanationism: knowing something is believing it because it's true. We will show how Explanationism offers a better account of undermining defeaters than Modalism, and a better account of knowledge. (shrink)

According to the Rational Threshold View, a rational agent believes p if and only if her credence in p is equal to or greater than a certain threshold. One of the most serious challenges for this view is the problem of statistical evidence: statistical evidence is often not sufficient to make an outright belief rational, no matter how probable the target proposition is given such evidence. This indicates that rational belief is not as sensitive to statistical evidence as rational credence. (...) The aim of this paper is twofold. First, we argue that, in addition to playing a decisive role in rationalizing outright belief, non-statistical evidence also plays a preponderant role in rationalizing credence. More precisely, when both types of evidence are present in a context, non-statistical evidence should receive a heavier weight than statistical evidence in determining rational credence. Second, based on this result, we argue that a modified version of the Rational Threshold View can avoid the problem of statistical evidence. We conclude by suggesting a possible explanation of the varying sensitivity to different types of evidence for belief and credence based on the respective aims of these attitudes. (shrink)

In some cases, there appears to be an asymmetry in the evidential value of statistical and more individualized evidence. For example, while I may accept that Alex is guilty based on eyewitness testimony that is 80% likely to be accurate, it does not seem permissible to do so based on the fact that 80% of a group that Alex is a member of are guilty. In this paper I suggest that rather than reflecting a deep defect in statistical evidence, this (...) asymmetry might arise from a general constraint on rational inquiry. Plausibly the degree of evidential support needed to justify taking a proposition to be true depends on the stakes of error. While relying on statistical evidence plausibly raises the stakes by introducing new kinds of risk to members of the reference class, paradigmatically `individualized' evidence---evidence tracing back to A's voluntary behavior---can lower the stakes. The net result explains the apparent evidential asymmetry without positing a deep difference in the brute justificatory power of different types of evidence. (shrink)

Recent years have seen fresh impetus brought to debates about the proper role of statistical evidence in the law. Recent work largely centres on a set of puzzles known as the ‘proof paradox’. While these puzzles may initially seem academic, they have important ramifications for the law: raising key conceptual questions about legal proof, and practical questions about DNA evidence. This article introduces the proof paradox, why we should care about it, and new work attempting to resolve it.

I argue that the concept of knowledge is a relic of a bygone age, erroneously supposed to do no harm. I illustrate this claim by showing how a concern with knowledge distorts the use of statistical evidence in criminal courts, and then generalize the point to show that this concern hampers our enterprises across the board and not only in legal contexts.

Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. A prominent line of argument—endorsed by Blome-Tillmann 2017; Smith 2018; and Littlejohn 2018—rejects the use of such evidence by appealing to epistemic norms that (...) apply to individual inquirers. My aim in this paper is to rehabilitate purely statistical evidence by arguing that, given the broader aims of legal systems, there are scenarios in which relying on such evidence is appropriate. Along the way I explain why popular arguments appealing to individual epistemic norms to reject legal reliance on bare statistics are unconvincing, by showing that courts and individuals face different epistemic predicaments (in short, individuals can hedge when confronted with statistical evidence, whilst legal tribunals cannot). I also correct some misconceptions about legal practice that have found their way into the recent literature. (shrink)

There is much to like about the idea that justification should be understood in terms of normality or normic support (Smith 2016, Goodman and Salow 2018). The view does a nice job explaining why we should think that lottery beliefs differ in justificatory status from mundane perceptual or testimonial beliefs. And it seems to do that in a way that is friendly to a broadly internalist approach to justification. In spite of its attractions, we think that the normic support view (...) faces two serious challenges. The first is that it delivers the wrong result in preface cases. These cases suggest that the view is either too sceptical or too externalist. The second is that the view struggles with certain kinds of Moorean absurdities. It turns out that these problems can easily be avoided. If we think of normality as a condition on *knowledge*, we can characterise justification in terms of its connection to knowledge and thereby avoid the difficulties discussed here. The resulting view does an equally good job explaining why we should think that our perceptual and testimonial beliefs are justified when lottery beliefs cannot be. Thus, it seems that little could be lost and much could be gained by revising the proposal and adopting a view on which it is knowledge, not justification, that depends directly upon normality. (shrink)

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases suggests (...) standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

In this discussion, we look at three potential problems that arise for Whiting’s account of normative reasons. The first has to do with the idea that objective reasons might have a modal dimension. The second and third concern the idea that there is some sort of direct connection between sets of reasons and the deliberative ought or the ought of rationality. We can see that we might be better served using credences about reasons (i.e., creasons) to characterise any ought that (...) is distinct from the objective ought than possessed or apparent reasons. (shrink)

Facts about moral disagreement and human evolution have both been said to exclude the possibility of moral knowledge, but the question of how these challenges interact has largely gone unaddressed. The paper aims to present and defend a novel version of the evolutionary “debunking” argument for moral skepticism that appeals to both types of considerations. This argument has several advantages compared to more familiar versions. The standard debunking strategy is to argue that evolutionary accounts of moral beliefs generate skeptical implications (...) because they attribute those beliefs to factors that are unrelated to their truth. That strategy is vulnerable to “third-factor” responses, which invoke first-order moral claims to challenge the assumption that Darwinian factors and the moral truths are really unrelated in that way. In contrast, our version is immune to those responses, as it does not proceed via assumptions about how Darwinian factors relate to the moral facts. Instead, it focuses on what evolutionary accounts of moral beliefs have to say about the fact that people often reach divergent moral beliefs. The argument thereby illustrates how the debunking strategy can join forces with the argument from moral disagreement. The combination of those strategies presents, we think, a challenge that is more formidable than when they are considered separately. (shrink)

In this paper, I provide an argument for rejecting Sarah Moss's recent account of legal proof. Moss's account is attractive in a number of ways. It provides a new version of a knowledge-based theory of legal proof that elegantly resolves a number of puzzles about mere statistical evidence in the law. Moreover, the account promises to have attractive implications for social and moral philosophy, in particular about the impermissibility of racial profiling and other harmful kinds of statistical generalisation. In this (...) paper, I show that Moss's account of legal proof crucially depends on a moral norm called the rule of consideration. I argue that we have a number of reasons to be sceptical of this rule. Once we reject the rule, it is not clear that Moss's account of legal proof is either plausible or attractive. (shrink)

The primary aim of this paper is to defend the Lockean View—the view that a belief is epistemically justified iff it is highly probable—against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections—The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities (...) Argument—but argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing. (shrink)