Sensitivity, Safety, and the Law: A Reply to Pardo

Abstract

In a recent paper, Michael Pardo argues that the epistemic property that is legally relevant is the one called Safety, rather than Sensitivity. In the process, he argues against our Sensitivity-related account of statistical evidence. Here we revisit these issues, partly in order to respond to Pardo, and partly in order to make general claims about legal epistemology. We clarify our account, we show how it adequately deals with counterexamples and other worries, we raise suspicions about Safety's value here, and we revisit our general skepticism about the role that epistemological considerations should play in determining legal policy.

Naturalized Epistemology and the Law of Evidence Revisited

“…1945). 16 See, e.g., Enoch et al, 2019 for a version of the Blue Bus hypothetical that concludes that if there is no other evidence, and even if "the Blue Bus Company controls 70 percent of the market in the relevant area, the law … refuses to find the Blue Bus Company liable". This is usually equivalent to the statement that statistics are an inadequate basis for liability.…”

Legal proof and statistical conjunctions

“…So, their view, at least by their own lights, promises to license sanction in 22 Although a thought implicit in much of the recent philosophical literature seems to be that providing a unified explanation covering all proof-paradoxical cases is a desideratum insofar as the cases all seem structurally similar, for our purposes we need express no view on whether this is correct. 23 For further development of this view, see Enoch and Fischer (2015) and Enoch and Spectre (2019). 24 A technical note: Enoch, Spectre and Fisher's incentive view is a hybrid view that combines an epistemic condition concerning sensitivity with forward-looking consideration to do with incentives.…”

“…In a nutshell, the idea is as follows: the reason that the law should care about making epistemically sensitive judgements-they explicitly warn against epistemic 'fetishism'-is because it promotes the right sort of legal incentives. Elsewhere, Enoch and Spectre (2019) clarify that the incentive component of the view is central and the epistemic component peripheral-if another epistemic condition turned out to better capture the cases, then it should be substituted for sensitivity.…”

Knowledge‐norms in a common‐law crucible

“…The problem for Mere Likelihood is thought to be: Defendant's mere membership in some class makes it (statistically) more likely than not that liability obtains purely in virtue of the (naked) statistic. While common-law courts do not permit verdicts on naked statistical evidence (see Kaye et al (1980)), many nonetheless use the apparent permissibility of such verdicts on Mere Likelihood to argue for a rather more demanding standard of proof based on relatively recent work in epistemology, e.g., verdicts need to satisfy a normality constraint (Smith, 2018), a safety requirement (Pardo, 2018), or be epistemically sensitive (Enoch et al, 2012;Enoch & Spectre, 2019). In my view, the common-law rule against verdicts on naked statistical evidence only brings out a feature of Mere Likelihood that is sometimes missed.…”