This article questions the continued use and application of EVA® (economic value added) because it is epistemologically a non-sequitur, fails to satisfy the requirements of sound research methodology in terms of being a reliable and valid metric, and is unlikely to satisfy the requirements of Rule 702 of the Federal Rules of Evidence. In the light of these insufficiencies, the continued use of EVA® is ethically questionable, and moreover in time is likely to result in class actions.

Social policy, broadly understood, is an intervention by government or other public institution designed to promote the well‐being of its members or intended to rectify perceived social problems. Governmental policy can issue from legislative, executive, or judicial actions. Regulations and rules governing major public establishments, such as universities or medical institutions, and directed at promoting the aims of the larger social body can also be considered instruments of social policy. Social policy is sometimes understood more narrowly as interventions of (...) the state in the domain of distribution or redistribution, when action has been thought necessary to correct for the instability inherent in a given social structure or created by pressures for social change. In this sense, it pertains to welfare policies aimed at the poor. In this article, we will deal primarily with social policy in the broad sense, reserving a brief discussion at the end on social policy in the narrow sense, as welfare policy. (shrink)

Epistemic and practical interests are often in conflict. This also occurs in institutional settings such as the legal one. Rule 407 of the U.S. Federal Rules of Evidence is an example of that because it sacrifices some epistemic interests in favour of practical ones. It is the rule on subsequent remedial measures (SRM), which is mainly designed to answer a practical concern (reducing accidents) instead of the epistemic one of getting some evidence to find out whether (...) the defendant was negligent or whether there was a defect in a product. Some commentators and courts think that the rationale of the rule is more complex and deserves a more careful discussion, as this paper shows. Additionally, this paper discusses a modification proposal (from categorical ban of SRM evidence to case‐by‐case decision) and develops some theoretical considerations, in the spirit of philosophical pragmatism, on the best way to conceptualize the problem addressed. The idea is to see such conflicts as conflicts of goals and to explain them in terms of the incompatible desires that we happen to have. (shrink)

Interest in purchasing local food from suppliers who follow sustainable practices is growing in Canada. Such suppliers wish to have their products recognized in the market so that price premiums might be received, and new markets developed. In response, the organization Local Food Plus (LFP) developed standards and a certification process to authenticate local and sustainable claims. LFP provides certification seals, and labeling provisions for qualifying producers and processors. However, given pre-existing national food labeling rules, it is not evident (...) that existing regulations permit such claims. Using LFP as a case, this study examined whether current federal labeling rules might impede the marketing of local and sustainable claims. Key findings include that the use of the terms natural, sustainable, and local in panel language and on shelf-talkers could be contested; and that the absence of specific regulation of numerous pertinent terms means they can only be assessed against general fraud prevention regulations, resulting in case-by-case determinations of compliance. Sustainability food label approvals in Canada, based on these general provisions, have not always been favorable to sustainable producers and firms. Existing regulation of these potentially contested terms appears to be out of step with other policy-related developments at the federal level and / or conceptual developments in the field. Proposals are made for amending existing rules to better support local and sustainable claims. (shrink)

In this essay, we suggest practical ways to shift the framing of crisis standards of care toward disability justice. We elaborate on the vision statement provided in the 2010 Institute of Medicine (National Academy of Medicine) “Summary of Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations,” which emphasizes fairness; equitable processes; community and provider engagement, education, and communication; and the rule of law. We argue that interpreting these elements through disability justice entails a commitment to both (...) distributive and recognitive justice. The disability rights movement's demand “Nothing about us, without us” requires substantive inclusion of disabled people in decision‐making related to their interests, including in crisis planning before, during, and after a pandemic like Covid‐19. (shrink)

Many jurisdictions prohibit or severely restrict the use of evidence about a defendant’s character to prove legal culpability. Situationists, who argue that conduct is largely determined by situational features rather than by character, can easily defend this prohibition. According to situationism, character evidence is misleading or paltry. -/- Proscriptions on character evidence seem harder to justify, however, on virtue ethical accounts. It appears that excluding character evidence either denies the centrality of character for explaining conduct—the situationist (...) position—or omits probative evidence. Situationism is, after all, presented as antithetical to virtue ethics. -/- This essay provides a virtue ethical defense of character evidence exclusion rules. We show that existing virtue ethical rebuttals to situationism themselves support prohibitions on character evidence; even if behavior arises from stable character traits, character evidence should be prohibited. In building our case, we provide a taxonomy of kinds of character judgment and reconcile the ubiquity and reasonableness of character judgments in ordinary life with the epistemic legitimacy of character evidence prohibitions in law. (shrink)

Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize (...) that evidentiary rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation—particularly its prohibition of deceptive stratagems—plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends. (shrink)

Rules 405(a) and 608(a) of the Federal Rules of Evidence allow the use of testimony about a witness’s reputation to support or undermine his or her credibility in trial. This paper analyzes the evidential weight of such testimony from the point of view of social epistemology and the theory of social networks. Together they provide the necessary elements to analyze how reputation is understood in this case, and to assess the epistemic foundation of a reputational attribution. (...) The result of the analysis will be that reputational testimony is extremely weak from an epistemological point of view, and that in many cases there are more reliable substitutes that achieve a similar purpose. The obvious fix, in my view, is to eliminate the use of reputation testimony to support or undermine the credibility, honesty, chastity or peacefulness of a witness. (shrink)

This paper explores whether brain images may be admitted as evidence in criminal trials under Federal Rule of Evidence 403, which weighs probative value against the danger of being prejudicial, confusing, or misleading to fact finders. The paper summarizes and evaluates recent empirical research relevant to these issues. We argue that currently the probative value of neuroimages for criminal responsibility is minimal, and there is some evidence of their potential to be prejudicial or misleading. We also (...) propose experiments that will directly assess how jurors are influenced by brain images. (shrink)

The Corpus Delicti Rule prohibits the introduction of the defendant’s confession to a crime to count as evidence against the defendant in the absence of independent evidence of the crime in question. The common law rule, designed to protect the defendant who confesses to the commission of a fictitious crime, has fallen out of favor with federal courts and a number of state courts. Moreover, the rule has its academic detractors. This essay is an attempt to investigate (...) the value of the rule, the academic criticisms of the rule and to analyze the federal substitute for the rule. If the analysis is not completely astray, the rule serves a most admirable social purpose. The academic arguments are not so telling as to justify jettisoning the rule. Finally, the federal rule is argued to be either completelyinadequate a protection or an adequate protection only to the extent that the federal substitute is coextensive with the rule it is designed to replace, namely, the original Corpus Delicti Rule. (shrink)

The Corpus Delicti Rule prohibits the introduction of the defendant’s confession to a crime to count as evidence against the defendant in the absence of independent evidence of the crime in question. The common law rule, designed to protect the defendant who confesses to the commission of a fictitious crime, has fallen out of favor with federal courts and a number of state courts. Moreover, the rule has its academic detractors. This essay is an attempt to investigate (...) the value of the rule, the academic criticisms of the rule and to analyze the federal substitute for the rule. If the analysis is not completely astray, the rule serves a most admirable social purpose. The academic arguments are not so telling as to justify jettisoning the rule. Finally, the federal rule is argued to be either completelyinadequate a protection or an adequate protection only to the extent that the federal substitute is coextensive with the rule it is designed to replace, namely, the original Corpus Delicti Rule. (shrink)

A substantial body of empirical evidence shows that individuals overweight extreme events and act in conflict with the expected utility theory. These findings were the primary motivation behind the development of a rank-dependent utility theory for choice under uncertainty. The purpose of this paper is to demonstrate that some simple empirical rules of thumb for choice under uncertainty are consistent with the rank-dependent utility theory.

Forty years ago, Vaughn Ball demonstrated that the then received notion of conditional relevance served no useful purpose, as it would only come into effect if the probability of an element were 0.0. But, if the probability of an element were 0.0, a directed verdict would be in order and so once again conditional relevancy was doing no work. I extended that analysis to include the relationship between proffers of evidence and facts of consequence to demonstrate that the work (...) that conditional relevancy was supposedly doing was isomorphic to that done by relevancy in all significant ways, and yet the Federal Rules of Evidence provide different standards for the two situations to determine admissibility. I thus proposed an amendment to FRE 104(b) to provide for the same standard to be applied to ‘relevancy’ and ‘conditional relevancy’. In a recent article, Matthew Kotzen appears to subject this work to intense scrutiny and criticism, yet at the same time reaches, so far as I can tell, identical conclusions. This raises the question, which I examine, whether this is an example of cross-disciplinary difficulties in communication. (shrink)

Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to (...) making them only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally. (shrink)

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to (...) the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...) "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

This experiment investigated the use of positive and negative hypothesis and target tests by groups in an adaptation of the 2-4-6 Wason task. The experimental variables were range of rule (small vs large), amount of evidence (low vs high), and trial block (1 vs 2). The results were in accordance with Klayman and Ha's (1987) analysis of base rate probabilities of falsification and with additional theoretical considerations. Base rate probabilities were more descriptive of participants' behaviour in target than in (...) hypothesis tests, under low than under high amount of evidence, and at the beginning of the process than at its end. The percentage of positive tests was higher under small than large range of rule. More falsifications than verifications resulted from hypothesis tests than would be expected by a random process. When evidence is richly available, the relative importance of falsification seems to decrease. An analysis of the group compositions before and after group discussion by the PCD model (Crott, Werner, & Hoffmann, 1996) revealed that the normative weight was approximately twice as large as the informational. Groups produced fewer false answers than their members individually. (shrink)

The rapidly increasing role of automation throughout the economy, culture and our personal lives has generated a large literature on the risks of algorithmic decision-making, particularly in high-stakes legal settings. Algorithmic tools are charged with bias, shrouded in secrecy, and frequently difficult to interpret. However, these criticisms have tended to focus on particular implementations, specific predictive techniques, and the idiosyncrasies of the American legal-regulatory regime. They do not address the more fundamental unease about the prospect that we might one day (...) replace judges with algorithms, no matter how fair, transparent, and intelligible they become. The aim of this paper is to propose an account of the source of that unease, and to evaluate its plausibility. I trace foundational unease with algorithmic decision-making in the law to the powerful intuition that there is a basic moral and legal difference between showing that something is true of many people just like you and showing that it is true of you. Human judgment attends to the exception; automation insists on blindly applying the rule. I show how this intuitive thought is connected to both epistemological arguments about the value of statistical evidence, as well as to court-centered conceptions of the rule of law. Unease with algorithmic decision-making in the law thus draws on an intuitive principle that underpins a disparate range of views in legal philosophy. This suggests the principle is deeply ingrained. Nonetheless, I argue that the powerful intuition is not as decisive as it may seem, and indeed runs into significant epistemological and normative challenges. At an epistemological level, I show how concerns about statistical evidence's ability to track the truth can be resolved by adopting a probabilistic, rather than modal, conception of truth-tracking. At a normative level, commitment to highly individualized decision-making co-exists with equally ingrained and competing principles, such as consistent application of law. This suggests that the “rule of law” may not identify a discrete set of institutional arrangements, as proponents of a court-centric conception would have it, but rather a more loosely defined set of values that could potentially be operationalized in multiple ways, including through some level of algorithmic adjudication. Although the prospect of replacing judges with algorithms is indeed unsettling, it does not necessarily entail unreasonable verdicts or an attack on the rule of law. (shrink)

Biologists, historians, lawyers, art historians, and literary critics all voice arguments in the critical dialogue about what constitutes evidence in research and scholarship. They examine not only the constitution and "blurring" of disciplinary boundaries, but also the configuration of the fact-evidence distinctions made in different disciplines and historical moments the relative function of such concepts as "self-evidence," "experience," "test," "testimony," and "textuality" in varied academic discourses and the way "rules of evidence" are themselves products of (...) historical developments. The essays and rejoinders are by Terry Castle, Lorraine Daston, Carlo Ginzburg, Ian Hacking, Mark Kelman, R. C. Lewontin, Pierre Vidal-Naquet, Mary Poovey, Donald Preziosi, Simon Schaffer, Joan W. Scott, Eve Kosofsky Sedgwick, and Barbara Herrnstein Smith. The critical responses are by Lauren Berlant, James Chandler, Jean Comaroff, Arnold I. Davidson, Harry D. harootunian, Elizabeth Helsinger, Thomas C. Holt, Francoise Meltzer, Robert J. Richards, Lawrence Rothfield, Joel Snyder, Cass R. Sunstein, and William Wimsatt. (shrink)

Judges were never bound by law to convict a defendant unless they considered him guilty. Yet, they could be prohibited by law from convicting a person they consider guilty due to the absence of legally prescribed or the presence of legally prohibited evidence.Evaluation of Evidence addresses the question: should the law restrict the freedom of judges in assessing the probative value of evidence in the criminal process? Tracing the treatment of evidence from pre-modern to modern times, (...) Mirjan Damaška argues that there has always been some understanding about rules regarding the use and treatment of evidence, and these rules should not be looked askance as a departure from ideal arrangements. In a time when science and technology have the ability to contribute to factual inquiry, there needs to be acceptance of rules that expand or corroborate evidence produced by our native sensory apparatus. (shrink)

In this paper, the relationship between the e-value of a complex hypothesis, H, and those of its constituent elementary hypotheses, Hj, j = 1… k, is analyzed, in the independent setup. The e-value of a hypothesis H, ev, is a Bayesian epistemic, credibility or truth value defined under the Full Bayesian Significance Testing mathematical apparatus. The questions addressed concern the important issue of how the truth value of H, and the truth function of the corresponding FBST structure M, relate to (...) the truth values of its elementary constituents, Hj, and to the truth functions of their corresponding FBST structures Mj, respectively. (shrink)

Information is a peculiar quantity. Unlike matter and energy, which are conserved by the laws of physics, the aggregation of knowledge from many sources can in fact produce more information (synergy) or less (redundancy) than the sum of its parts. This feature can endow groups with problem‐solving strategies that are superior to those possible among noninteracting individuals and, in turn, may provide a selection drive toward collective cooperation and coordination. Here we explore the formal properties of information aggregation as a (...) general principle for explaining features of social organization. We quantify information in terms of the general formalism of information theory, which also prescribes the rules of how different pieces of evidence inform the solution of a given problem. We then show how several canonical examples of collective cognition and coordination can be understood through principles of minimization of uncertainty (maximization of predictability) under information pooling over many individuals. We discuss in some detail how collective coordination in swarms, markets, natural language processing, and collaborative filtering may be guided by the optimal aggregation of information in social collectives. We also identify circumstances when these processes fail, leading, for example, to inefficient markets. The contrast to approaches to understand coordination and collaboration via decision and game theory is also briefly discussed. (shrink)

We compare the performance of liability rules for managing environmental disasters when third parties are harmed and cannot always be compensated. A firm can invest in safety to reduce the likelihood of accidents. The firm’s investment is unobservable to authorities. The presence of externalities and asymmetric information call for public intervention in order to define rules aimed at increasing prevention. We determine the investments in safety under No Liability, Strict Liability, and Negligence rules, and compare these to (...) the first best. Additionally, we investigate how the ability of the firm to fully cover potential damage affects the firm’s behavior. An experiment tests the theoretical predictions. In line with theory, Strict Liability and Negligence are equally effective; both perform better than No Liability; investment in safety is not sensitive to the ability of the firm to compensate potential victims. In contrast with theory, however, prevention rates absent liability are much higher and liability is much less effective. (shrink)

As a recent special report in the Hastings Center Report demonstrates, many bioethicists are rethinking the way we regulate both biomedical research and clinical practice, as well as the sharp boundary that the field has assumed can and should exist between them. Such a rethinking is long overdue. There is surely a meaningful normative distinction between activities whose expected risk‐benefit profile is and is not “reasonable” for participants (to echo the language in the Common Rule—the core set of human research (...) guidelines found in many federal regulations). But neither the research‐practice distinction nor the criteria underlying it—the intention of the actor, whether the activity is “systematic,” and whether its results are “generalizable”—closely track good and bad outcomes for research participants and patients or justify either the bureaucratic, paternalistic licensing system that governs human subjects research or the comparatively lax governance of medical practice. The specious distinction between research and practice is especially ripe for dismantling in light of the embarrassing fact that evidence‐based medicine remains more aspiration than reality. (shrink)

WE AIM HERE to outline a theory of evidence for use. More specifically we lay foundations for a guide for the use of evidence in predicting policy effectiveness in situ, a more comprehensive guide than current standard offerings, such as the Maryland rules in criminology, the weight of evidence scheme of the International Agency for Research on Cancer (IARC), or the US ‘What Works Clearinghouse’. The guide itself is meant to be well-grounded but at the same (...) time to give practicable advice, that is, advice that can be used by policy-makers not expert in the natural and social sciences, assuming they are well-intentioned and have a reasonable but limited amount of time and resources available for searching out evidence and deliberating. (shrink)

The philosophy of evidence-based medicine -- What is EBM? -- What is good evidence for a clinical decision? -- Ruling out plausible rival hypotheses and confounding factors : a method -- Resolving the paradox of effectiveness : when do observational studies offer the same degree of evidential support as randomized trials? -- Questioning double blinding as a universal methodological virtue of clinical trials : resolving the Philip's paradox -- Placebo controls : problematic and misleading baseline measures of effectiveness (...) -- Questioning the methodological superiority of "placebo" over "active" controlled trials -- Examining the paradox that traditional roles for mechanistic reasoning and expert -- Judgment have been up-ended by EBM -- A qualified defence of the EBM stance on mechanistic reasoning -- Knowledge that versus knowledge how : situating the EBM position on expert clinical judgment -- Moving EBM forward. (shrink)

The Role of Dorsal Premotor Cortex in Resolving Abstract Motor Rules provides alternative hypotheses about the cognitive functions affected by the application of repetitive transcranial magnetic stimulation. Their model simulated the effect of stimulation of the left dorsal premotor cortex right as participants provide a Models were used to demonstrate that the increased variability in observed response times can result from interference in replanning during the process of responding to the uninstructed stimulus.

Diversity of evidence is widely claimed to be crucial for evidence amalgamation to have distinctive epistemic merits. Bayesian epistemologists capture this idea in the variety-of-evidence thesis: ceteris paribus, the strength of confirmation of a hypothesis by an evidential set increases with the diversity of the evidential elements in that set. Yet, formal exploration of this thesis has shown that it fails to be generally true. This article demonstrates that the thesis fails in even more circumstances than recent (...) results would lead us to expect. Most importantly, it can fail whatever the chance that the evidential sources are unreliable. Our results hold for two types of degrees of variety: reliability independence and testable aspect independence. We conclude that the variety-of-evidence thesis can, at best, be interpreted as an exception-prone rule of thumb. (shrink)

Proposed changes to the Common Rule are proffered to save almost 7,000 reviews annually and consequently vast amounts of investigator and IRB-member time. However, the proposed changes have been subject to criticism. While some have lauded the changes as being imperfect, but nevertheless as improvements, others have contended that ‘neither the scientific community nor the public can be confident that improved practices will emerge from the regulatory changes mandated by the NPRM.’ In the present article, I discuss an important aspect (...) that has been overlooked: the question of whether benefits will emerge is demonstrably empirical, yet data upon which to draw conclusions are conspicuous by their absence. This is thrown into sharp relief when we consider the current environment in which health research is increasingly focused on providing evidence of need or benefit, where there is greater emphasis on evidence-based practice, and when we have the nascent field of implementation science. (shrink)

In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as ominous (...) evidence of the rule of law's fragility in modern liberal democracy. (shrink)

This is a study of the logic of the concept of evidence. Two distinct concepts of evidence will be explicated and analyzed: confirming evidence by means of which an hypothesis is established, and supporting evidence which does not establish the hypothesis, but merely renders it more tenable. The formal characteristics of each of these concepts of evidence will be examined in detail in Part II. In Part III these considerations are used as a basis for (...) a survey of rules of evidence in order to establish the systematic character of the evidential relationship from the standpoint of formal logic. Finally, the Conclusion appends a brief indication of the methodological bearing of the logical theory of evidence. (shrink)

Genomic biobanking research is undergoing exponential growth in Africa raising a host of legal, ethical and social issues. Given the scientific complexity associated with genomics, there is a growing recognition globally of the importance of science translation and community engagement for this type of research, as it creates the potential to build relationships, increase trust, improve consent processes and empower local communities. Despite this level of recognition, there is a lack of empirical evidence of the practise and processes for (...) effective CE in genomic biobanking in Africa. To begin to address this vacuum, 17 in-depth face to face interviews were conducted with South African experts in genomic biobanking research and CE to provide insight into the process, benefits and challenges of CE in South Africa. Emerging themes were analysed using a contextualised thematic approach. Several themes emerged concerning the conduct of CE in genomic biobanking research in Africa. Although the literature tends to focus on the local community in CE, respondents in this study described three different layers of stakeholder engagement: community level, peer level and high level. Community level engagement includes potential participants, community advisory boards and field workers; peer level engagement includes researchers, biobankers and scientists, while high level engagement includes government officials, funders and policy makers. Although education of each stakeholder layer is important, education of the community layer can be most challenging, due to the complexity of the research and educational levels of stakeholders in this layer. CE is time-consuming and often requires an interdisciplinary research team approach. However careful planning of the engagement strategy, including an understanding of the differing layers of stakeholder engagement, and the specific educational needs at each layer, can help in the development of a relationship based on trust between the research team and various stakeholder groups. Since the community layer often comprises vulnerable populations in low and middle income countries, co-development of innovative educational tools on genomic biobanking is essential. CE is clearly a component of a broader process best described as stakeholder engagement. (shrink)

Degrees of belief; Dempster's rule of combination; Simple and separable support functions; The weights of evidence; Compatible frames of discernment; Support functions; The discernment of evidence; Quasi support functions; Consonance; Statistical evidence; The dual nature of probable reasoning.

This paper is about a tension between two theses. The first is Value of Evidence: roughly, the thesis that it is always rational for an agent to gather and use cost‐free evidence for making decisions. The second is Rationality of Imprecision: the thesis that an agent can be rationally required to adopt doxastic states that are imprecise, i.e., not representable by a single credence function. While others have noticed this tension, I offer a new diagnosis of it. I (...) show that it arises when an agent with an imprecise doxastic state engages in an unreflective inquiry, an inquiry where they revise their beliefs using an updating rule that doesn't satisfy a weak reflection principle. In such an unreflective inquiry, certain synchronic norms of instrumental rationality can make it instrumentally irrational for an agent to gather and use cost‐free evidence. I then go on to propose a diachronic norm of instrumental rationality that preserves Value of Evidence in unreflective inquiries. This, I suggest, may help us reconcile this thesis with Rationality of Imprecision. (shrink)

There is no necessary connection between leadership in basic science and leadership in the applications of science, because scientific progress is a cooperative endeavour and not a competitive game; indeed, there may be a conflict between basic research and applied science. The notion of “a position of leadership”; in science raises questions of what leadership consists in and what its value is to the nation. The two main arguments for government support of science are cultural-social, and economic. The cultural-social argument (...) stresses scientific activity as a form of social consumption of wealth and raises the question of whether other uses of the resources employed would contribute more to the greatness of the society. The economic argument stresses basic scientific research as a form of investment for the future, and raises the questions of what the rate of return on such investment is and whether and to what extent government support is called for. Relevant economic research results bearing on this problem are scarce. Economic theory suggests that competition in the market will supply less than the optimal amount of basic research; but our society substantially supplements the market through private contributions to and government support of science, and the question is whether this supplementation is deficient or excessive. Here difficult problems arise, on which more economic research is needed; one of these concerns the relative merits of government and private support of science. The rule-of-thumb procedures generally recommended for determining the volume and allocation of government support to basic scientific research generally ignore these problems, and amount to endorsing the present level of government support or recommending that it be increased. Allocation of federal support of science should take account of the possibility of stimulating the economic development of poor regions of the country by locating scientific research facilities in them. (shrink)

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)