Michael S. Pardo

The Problematic Value of Mathematical Models of Evidence

This paper discusses mathematical modeling of the value of particular items of evidence. We demonstrate that such formal modeling has only limited use in explaining the value of legal evidence, much more limited than those investigators who construct and discuss the models assume, and thus that the conclusions they draw about the value of evidence are unwarranted. This is done through a discussion of several recent examples that attempt to quantify evidence relating to carpet fibers, infidelity, DNA random‐match evidence, and character evidence used to impeach a witness. This paper makes the following contributions. Most important, it is another demonstration of the complex relationship between algorithmic tools and legal decision making. Furthermore, at a minimum it highlights the need for both analytical and empirical work to accommodate the reference‐class problem and the risk of failing to do so.

The Gettier Problem and Legal Proof

This article explores the relationships between legal proof and fundamental epistemic concepts such as knowledge and justification. A survey of the legal literature reveals a confusing array of seemingly inconsistent proposals and presuppositions regarding these relationships. This article makes two contributions. First, it reconciles a number of apparent inconsistencies and tensions in accounts of the epistemology of legal proof. Second, it argues that there is a deeper connection between knowledge and legal proof than is typically argued for or presupposed in the legal literature. This connection is illustrated through a discussion of the Gettier problem in epistemology. It is argued that the gap or disconnect between truth and justification that undermines knowledge in Gettier cases also potentially undermines the success of legal verdicts.

Bayes Wars Redivivus - An Exchange

An electronic exchange among 10 evidence scholars that began with a discussion of the restyled Federal Rules and grew into a significant restatement of debates in evidentiary scholarship over the last 50 years, touching on relevance, probative value, inference, Bayesianism and the foundations of evidence, with an introduction by Michael Risinger.

Probability, Explanation, and Inference: A Reply

This essay, published in a symposium issue on the “reference class problem” and legal evidence, replies to articles by Dale Nance, Mark Colyvan and Helen Regan, Robert Rhee, and Larry Laudan. We discuss the limits of probabilistic modeling of evidence and the relationship between such modeling and explanatory accounts of legal proof.

Facts in Law and Facts of Law

The nature of the distinction between issues of fact and issues of law is considered. Courts in the United States and England have failed to articulate the distinction. Arguments that a distinction may be drawn on ontological, epistemological or analytical grounds are considered and rejected. It is argued that the law/fact distinction involves a complex interaction between three variables: (1) conventional meanings of the terms ‘law’ and ‘fact’; (2) structural relationships within the legal process; and (3) a distinction between matters of general import and specific, localised phenomena. It is concluded that this interaction is too complex to be reduced to simple rules and that the labelling of a particular issue as ‘legal’ or ‘factual’ is essentially a functional decision made on pragmatic grounds.

Symposium on Minds, Brains, and Law: A Reply

This essay, forthcoming in a symposium issue of Jurisprudence, replies to reviews of our book, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (Oxford University Press, 2013), by Stephen Morse, Teneille Brown, and David Faigman. Morse and Brown are largely in agreement with many aspects of our arguments. But they each raise challenges with respect to some of the details. We first discuss the extensions, amendments, and objections they each have raised. Faigman takes a more critical stance. Accordingly, we devote the bulk of our reply to correcting several misunderstanding and misinterpretations that underlie his critique.

Philosophy, Neuroscience and Law: The Conceptual and Empirical, Rule-Following, Interpretation and Knowledge

The intersection between law and neuroscience is one of the most-discussed subfields in legal scholarship. In this article, we consider fundamental issues in the field. These include: the distinction between the conceptual and the empirical, rule-following, and the nature of knowledge. We maintain that the conceptual issues are fundamental to all aspects of this enterprise.