Michael S. Pardo (University of Alabama School of Law) has posted Safety vs. Sensitivity: Possible Worlds and the Law of Evidence (Legal Theory, Vol. 24, 2018, Forthcoming) on SSRN. Here is the abstract:
This article defends the importance 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 explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof.
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