Varieties of Risk

Abstract

The paper was jointly devised and written by Ebert and Smith. Survey design is due to Ebert, Smith, and Durbach. Ebert and Durbach are responsible for survey recruitment and survey analysis.

Evidence, Risk, and Proof Paradoxes: Pessimism about the Epistemic Project

“…On these accounts, managing legal risk doesn't require minimising error. It requires ruling out modal risk (Pritchard, 2016(Pritchard, , 2018, normic risk (Ebert et al, 2020) or all the relevant alternatives to the litigated claim (Gardiner, 2019(Gardiner, , 2020. Crucially, I argue that they all struggle to meet these requirements.…”

“…Despite their differences, these epistemic accounts all share the idea that managing legal risk is not a matter of minimising error. Instead, managing legal risk requires ruling out modal risk (Pritchard, 2018), normic risk (Ebert et al, 2020;Smith, 2018) or all the relevant alternatives to the litigated claim (Gardiner, 2019(Gardiner, , 2020. Crucially, I argue that these accounts struggle to meet the three above-mentioned requirements.…”

“…Alternatively, one could purse the 'Propositional Approach', which focuses on the relation between the admissible evidence and the proposition that the defendant is liable. For instance, it's been argued that evidence should be sensitive (Enoch et al, 2012) 7 or causally connected to the litigated claim (Thompson, 1986); make it probable that we know the litigated claim (Blome-Tillmann, 2017); rule out relevant alternatives where the litigated claim is false (Gardiner, 2019); rule out normic or modal risk that the litigated claim is false (Ebert et al, 2020;Pritchard 2016Pritchard , 2018Smith, 2018). In this paper, I take a step back from this recent trend and argue that the Epistemic Project is wrongheaded.…”

“…possible worlds either. And yet, as recently pointed out by Ebert et al (2020), Pritchard's account predicts that determining whether a negative event (finding an innocent liable) is at high risk of occurring will require to know in advance whether the negative event occurs in a close or far possible world. In other words, given our inaccessibility to the objective ordering of possible worlds, Pritchard's modal account clashes with the guiding role we expect standards of proof to play.…”

“…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.…”