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.

A popular informal argument suggests that statistics about the preponderance of criminal involvement among particular demographic groups partially justify others in making defensive mistakes against members of the group. One could worry that evidence-relative accounts of moral rights vindicate this argument. After constructing the strongest form of this objection, I offer several replies: most demographic statistics face an unmet challenge from reference class problems, even those that meet it fail to ground non-negligible conditional probabilities, even if they did, they introduce (...) new costs likely to cancel out any justificatory contribution of the statistic, but even if they didn’t, demographic facts are the wrong sort to make a moral difference to agents’ negative rights. I conclude that the popular argument should be rejected, and evidence-relative theories do not have the worrisome implication. (shrink)

Modal Security is an increasingly discussed proposed necessary condition on undermining defeat. Modal Security says, roughly, that if evidence undermines (rather than rebuts) one’s belief, then one gets reason to doubt the belief's safety or sensitivity. The primary interest of the principle is that it seems to entail that influential epistemological arguments, including Evolutionary Debunking Arguments against moral realism and the Benacerraf-Field Challenge for mathematical realism, are unsound. The purpose of this paper is to critically examine Modal Security in detail. (...) We develop and discuss what we take to be the strongest objections to the principle. One of the aims of the paper is to expose the weakness of these objections. Another is to reveal how the debate over Modal Security interacts with core problems in epistemology — including the generality problem, and the distinction between direct and indirect evidence. (shrink)

Discrimination is a central epistemic capacity but typically, theories of discrimination only use discrimination as a vehicle for analyzing knowledge. This paper aims at developing a self-contained theory of discrimination. Internalist theories of discrimination fail since there is no compelling correlation between discriminatory capacities and experiences. Moreover, statistical reliabilist theories are also flawed. Only a modal theory of discrimination is promising. Versions of sensitivity and adherence that take particular alternatives into account provide necessary and sufficient conditions on discrimination. Safety in (...) contrast is not sufficient for discrimination as there are cases of safety that are clearly instances of discrimination failure. The developed account of discrimination between objects will be extended to discrimination between kinds and between types. (shrink)

If moral properties lacked causal powers, would moral skepticism be true? I argue that it would. Along the way I respond to various arguments that it would not.

This paper discusses the ability of explanationist theories of epistemic justification to account for the justification we have for holding beliefs about the future. McCain’s explanationist account of the relation of evidential support is supposedly in a better position than other theories of this type to correctly handle cases involving beliefs about the future. However, the results delivered by this account have been questioned by Byerly and Martin. This paper argues that McCain’s account is, in fact, able to deliver plausible (...) results in cases involving such beliefs and that explanationism, if properly articulated, is illuminating with respect to the justification we have for holding such beliefs, as it manages to correctly distinguish evidence that only supports believing probabilistic claims about the future from evidence that is sufficient to believe that a particular event will happen. (shrink)

I argue that inferences from highly probabilifying racial generalizations are not solely objectionable because acting on such inferences would be problematic, or they violate a moral norm, but because they violate a distinctively epistemic norm. They involve accepting a proposition when, given the costs of a mistake, one is not adequately justified in doing so. First I sketch an account of the nature of adequate justification—practical adequacy with respect to eliminating the ¬p\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} (...) \begin{document}$$\lnot p$$\end{document} possibilities from one’s epistemic statespace. Second, I argue that inferences based on demographic generalizations tend to disproportionately expose group members to the risks associated with mistakenly assuming stereotypical propositions, and so magnify the wrong involved in relying on such inferences without adequate justification. (shrink)

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)

A challenge we face in a world that has been shaped by, and continues to be shaped by, racist attitudes and institutions is that the evidence is often stacked in favor of racist beliefs. As a result, we may find ourselves facing the following conflict: what if the evidence we have supports something we morally shouldn’t believe? For example, it is morally wrong to assume, solely on the basis of someone’s skin color, that they’re a staff member. But, what if (...) you’re in a context where, because of historical patterns of discrimination, someone’s skin color is a very good indicator that they’re a staff member? When this sort of normative conflict looms, a conflict between moral considerations on the one hand and what you epistemically ought to believe given the evidence on the other, what should we do? It might be unfair to assume that they’re a staff member, but to ignore the evidence would mean risking inaccurate beliefs. Some, notably Tamar Gendler (2011), have suggested that we simply face a tragic irresolvable dilemma. In this chapter, I consider how these cases of conflict arise and I canvass the viability of suggested resolutions of the conflict. In the end, I argue that there’s actually no conflict here. Moral considerations can change how we epistemically should respond to the evidence. (shrink)

Martin Smith has recently proposed, in this journal, a novel and intriguing approach to puzzles and paradoxes in evidence law arising from the evidential standard of the Preponderance of the Evidence. According to Smith, the relation of normic support provides us with an elegant solution to those puzzles. In this paper I develop a counterexample to Smith’s approach and argue that normic support can neither account for our reluctance to base affirmative verdicts on bare statistical evidence nor resolve the pertinent (...) paradoxes. Normic support is, as a consequence, not a successful epistemic anti-luck condition. (shrink)

Smith argues that, unlike other forms of evidence, naked statistical evidence fails to satisfy normic support. This is his solution to the puzzles of statistical evidence in legal proof. This paper focuses on Smith’s claim that DNA evidence in cold-hit cases does not satisfy normic support. I argue that if this claim is correct, virtually no other form of evidence used at trial can satisfy normic support. This is troublesome. I discuss a few ways in which Smith can respond.

This paper examines Lockie’s theory of libertarian self-determinism in light of the question of prediction: “Can we know (or justifiably believe) how an agent will act, or is likely to act, freely?” I argue that, when Lockie's theory is taken to its full logical extent, free actions cannot be predicted to any degree of accuracy because, even if they have probabilities, these cannot be known. However, I suggest that this implication of his theory is actually advantageous, because it is able (...) to explain and justify an important feature of the practices we use to determine whether someone has acted culpably: our hostility to the use of predictive evidence. (shrink)

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...) The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

In this paper, we present the results of two surveys that investigate subjects’ judgments about what can be known or justifiably believed about lottery outcomes on the basis of statistical evidence, testimonial evidence, and “mixed” evidence, while considering possible anchoring and priming effects. We discuss these results in light of seven distinct hypotheses that capture various claims made by philosophers about lay people’s lottery judgments. We conclude by summarizing the main findings, pointing to future research, and comparing our findings to (...) recent studies by Turri and Friedman. (shrink)

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...) Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question. (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 article, I argue that faith’s going beyond the evidence need not compromise faith’s epistemic rationality. First, I explain how some of the recent literature on belief and credence points to a distinction between what I call B-evidence and C-evidence. Then, I apply this distinction to rational faith. I argue that if faith is more sensitive to B-evidence than to C-evidence, faith can go beyond the evidence and still be epistemically rational.

The paper takes a closer look at the role of knowledge and evidence in legal theory. In particular, the paper examines a puzzle arising from the evidential standard Preponderance of the Evidence and its application in civil procedure. Legal scholars have argued since at least the 1940s that the rule of the Preponderance of the Evidence gives rise to a puzzle concerning the role of statistical evidence in judicial proceedings, sometimes referred to as the Problem of Bare Statistical Evidence. While (...) this puzzle has led to the development of a multitude of accounts and approaches in the legal literature, I argue here that the problem can be resolved fairly straightforwardly within a knowledge-first framework. (shrink)

There are currently two robust traditions in philosophy dealing with doxastic attitudes: the tradition that is concerned primarily with all-or-nothing belief, and the tradition that is concerned primarily with degree of belief or credence. This paper concerns the relationship between belief and credence for a rational agent, and is directed at those who may have hoped that the notion of belief can either be reduced to credence or eliminated altogether when characterizing the norms governing ideally rational agents. It presents a (...) puzzle which lends support to two theses. First, that there is no formal reduction of a rational agent’s beliefs to her credences, because belief and credence are each responsive to different features of a body of evidence. Second, that if our traditional understanding of our practices of holding each other responsible is correct, then belief has a distinctive role to play, even for ideally rational agents, that cannot be played by credence. The question of which avenues remain for the credence-only theorist is considered. (shrink)

Recent attempts to resolve the Paradox of the Gatecrasher rest on a now familiar distinction between individual and bare statistical evidence. This paper investigates two such approaches, the causal approach to individual evidence and a recently influential (and award-winning) modal account that explicates individual evidence in terms of Nozick's notion of sensitivity. This paper offers counterexamples to both approaches, explicates a problem concerning necessary truths for the sensitivity account, and argues that either view is implausibly committed to the impossibility of (...) no-fault wrongful convictions. The paper finally concludes that the distinction between individual and bare statistical evidence cannot be maintained in terms of causation or sensitivity. We have to look elsewhere for a solution of the Paradox of the Gatecrasher. (shrink)

I explore how rational belief and rational credence relate to evidence. I begin by looking at three cases where rational belief and credence seem to respond differently to evidence: cases of naked statistical evidence, lotteries, and hedged assertions. I consider an explanation for these cases, namely, that one ought not form beliefs on the basis of statistical evidence alone, and raise worries for this view. Then, I suggest another view that explains how belief and credence relate to evidence. My view (...) focuses on the possibilities that the evidence makes salient. I argue that this makes better sense of the difference between rational credence and rational belief than other accounts. (shrink)

Belief is a familiar attitude: taking something to be the case or regarding it as true. But we are more confident in some of our beliefs than in others. For this reason, many epistemologists appeal to a second attitude, called credence, similar to a degree of confidence. This raises the question: how do belief and credence relate to each other? On a belief-first view, beliefs are more fundamental and credences are a species of beliefs, e.g. beliefs about probabilities. On a (...) credence-first view, credences are more fundamental and beliefs are a species of credence, e.g. credence above some threshold. In this thesis, I develop and defend a third view that I call belief-credence dualism. On this view, belief and credence are independent, equally fundamental attitudes, and neither reduces to the other. I begin by motivating the project: why should we care about the relationship between belief and credence? I argue it has broad implications for many debates in epistemology and beyond. Then, I defend dualism, arguing that it can explain features of our mental lives that a credence-first view and a belief-first view cannot. I also argue that dualism has attractive, interesting implications when applied to the pragmatic encroachment debate. Finally, I explore implications of dualism, both for the nature of evidence and how faith might go beyond the evidence but nonetheless be epistemically rational. I conclude that the human mind is, in some ways, complex, but we should be happy with this conclusion also long as each mental state we posit has a clear role to play. (shrink)

© The Author 2018. Published by Oxford University Press on behalf of The Analysis Trust. All rights reserved. For Permissions, please email: journals.permissions@oup.comThis article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model...Philosophy of law was until recently dominated by abstract investigation into the nature of law, a pursuit known as ‘general jurisprudence’. In this way, it resembled a branch of metaphysics or mid-twentieth century philosophy of mind, seeking to uncover the essential properties (...) of a general and multiply realizable phenomenon. Today, philosophers study law with a sharper focus, and with a more specialized lens – that of ethicists, for example, or epistemologists, or philosophers of action.That is not to say there has been a drop in groundbreaking work in general jurisprudence (see, for... (shrink)

Suppose one hundred prisoners are in a yard under the supervision of a guard, and at some point, ninety-nine of them collectively kill the guard. If, after the fact, a prisoner is picked at random and tried, the probability of his guilt is 99%. But despite the high probability, the statistical chances, by themselves, seem insufficient to justify a conviction. The question is why. Two arguments are offered. The first, decision-theoretic argument shows that a conviction solely based on the statistics (...) in the prisoner scenario is unacceptable so long as the goal of expected utility maximization is combined with fairness constraints. The second, risk-based argument shows that a conviction solely based on the statistics in the prisoner scenario lets the risk of mistaken conviction surge potentially too high. The same, by contrast, cannot be said of convictions solely based on DNA evidence or eyewitness testimony. A noteworthy feature of the two arguments in the paper is that they are not confined to criminal trials and can in fact be extended to civil trials. (shrink)

I argue that inferences from highly probabilifying racial generalizations are not solely objectionable because acting on such inferences would be problematic, or they violate a moral norm, but because they violate a distinctively epistemic norm. They involve accepting a proposition when, given the costs of a mistake, one is not adequately justified in doing so. First I sketch an account of the nature of adequate justification—practical adequacy with respect to eliminating the ~p possibilities from one’s epistemic statespace. Second, I argue (...) that inferences based on demographic generalizations tend to disproportionately expose group members to the risks associated with mistakenly assuming stereotypical propositions, and so magnify the wrong involved in relying on such inferences without adequate justification. (shrink)

In recent years, the argument from inductive risk against value free science has enjoyed a revival. This paper investigates and clarifies this argument through means of a case-study: neonicitinoid research. Sect. 1 argues that the argument from inductive risk is best conceptualised as a claim about scientists’ communicative obligations. Sect. 2 then shows why this argument is inapplicable to “public communication”. Sect. 3 outlines non-epistemic reasons why non-epistemic values should not play a role in public communicative contexts. Sect. 4 analyses (...) the implications of these arguments both for the specific case of neonicitinoid research and for understanding the limits of the argument from inductive risk. Sect. 5 sketches the broader implications of my claims for understanding the “Value Free Ideal” for science. (shrink)

In an ideal epistemic world, our beliefs would correspond to our evidence, and our evidence would be bountiful. In the world we live in, however, if we wish to live meaningful lives, other epistemic strategies are necessary. Here I attempt to work out, systematically, the ways in which evidentialism fails us as a guide to belief. This is so preeminently for lives of a religious character, but the point applies more broadly.

This paper argues that several leading theories of subjunctive conditionals are incompatible with ordinary intuitions about what credences we ought to have in subjunctive conditionals. In short, our theory of subjunctives should intuitively display semantic humility, i.e. our semantic theory should deliver the truth conditions of sentences without pronouncing on whether those conditions actually obtain. In addition to describing intuitions about subjunctive conditionals, I argue that we can derive these ordinary intuitions from justified premises, and I answer a possible worry (...) for my derivation by refuting a subjunctive triviality result modeled on (Lewis 1976). I conclude that the debate over the correct theory of subjunctive conditionals requires settling meta-philosophical questions about the relative value of various virtues of first-order theories of subjunctive conditionals. (shrink)

A recent argument by Nadelhoffer et al. defends a cautious optimism regarding the use of neuroprediction in relation to sentencing based, in part, on an assessment of the offender’s dangerousness. While this optimism may be warranted, Nadelhoffer et al.’s argument fails to justify it. Although neuropredictions provide individualized, non-statistical evidence they will often be problematic for the same reason that basing sentencing on statistical evidence is, to wit, that such predictions are insensitive to the offender’s dangerousness in relevant counterfactual situations (...) and, accordingly, fail to provide the court with knowledge of the offender’s dangerousness. Admittedly, it could be replied that standard clinical assessments of dangerousness possess the same objectionable feature, but doing so undermines a different part of Nadelhoffer et al.’s argument. Finally, I criticize an incentives-based rationale for sentencing informed by neuropredictions of dangerousness. (shrink)

Journal of Political Philosophy, EarlyView.

ABSTRACTThis article defends the importance of epistemic safety for legal evidence. Drawing on discussions of sensitivity and safety in epistemology, the article explores how similar considerations apply to legal proof. In the legal context, sensitivity concerns whether a factual finding would be made if it were false, and safety concerns how easily a factual finding could be false. The article critiques recent claims about the importance of sensitivity for the law of evidence. In particular, this critique argues that sensitivity does (...) not have much of an effect on the value of legal evidence and that it fails to explain legal doctrine. By contrast, safety affects the quality of legal evidence, and safety better explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof. (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)

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.

Over almost a half-century, evidence law scholars and philosophers have contended with what have come to be called the “Proof Paradoxes.” In brief, the following sort of paradox arises: Factfinders in criminal and civil trials are charged with reaching a verdict if the evidence presented meets a particular standard of proof—beyond a reasonable doubt, in criminal cases, and preponderance of the evidence, in civil trials. It seems that purely statistical evidence can suffice for just such a level of certainty in (...) a variety of cases where our intuition is that it would nonetheless be wrong to convict the defendant, or find in favor of the plaintiff, on merely statistical evidence. So, we either have to convict with statistical evidence, in spite of an intuition that this is unsettling, or else explain what (dispositive) deficiency statistical evidence has. -/- Most scholars have tried to justify the resistance to relying on merely statistical evidence: by relying on epistemic deficiencies in this kind of evidence; by relying on court practice; and also by reference to the psychological literature. In fact, I argue, the epistemic deficiencies philosophers and legal scholars allege are suspect. And, I argue, while scholars often discuss unfairness to civil defendants, they ignore a long history of relying on statistical evidence in a variety of civil matters, including employment discrimination, toxic torts, and market share liability cases. Were the dominant arguments in the literature to prevail, it would extremely difficult for plaintiffs to recover in a variety of cases. -/- The various considerations I advance lead to the conclusion that when it comes to naked statistical evidence, philosophers and legal scholars who argue for its insufficiency have been caught with their pants down. (shrink)

The primary objective of this paper is to introduce a new epistemic paradox that puts pressure on the claim that justification is closed under multi premise deduction. The first part of the paper will consider two well-known paradoxes—the lottery and the preface paradox—and outline two popular strategies for solving the paradoxes without denying closure. The second part will introduce a new, structurally related, paradox that is immune to these closure-preserving solutions. I will call this paradox, The Paradox of the Pill. (...) Seeing that the prominent closure-preserving solutions do not apply to the new paradox, I will argue that it presents a much stronger case against the claim that justification is closed under deduction than its two predecessors. Besides presenting a more robust counterexample to closure, the new paradox also reveals that the strategies that were previously thought to get closure out of trouble are not sufficiently general to achieve this task as they fail to apply to similar closure-threatening paradoxes in the same vicinity. (shrink)