M. Pardo - The Field of Evidence and The Field of Knowledge

Law and Philosophy (2005) 24: 321392
DOI 10.1007/s10982-004-4999-6
Springer 2005
MICHAEL S. PARDO*
THE FIELD OF EVIDENCE AND THE FIELD OF

KNOWLEDGE
(Accepted 14 July 2004)
One is often bewitched by a word. For example, by the word know.
Ludwig Wittgenstein
I. INTRODUCTION
The trial is fundamentally an epistemological event. We want

jurors and judges to know. And we want to know that they
know. And we also want to know the conditions when they
know, and when, if at all, these conditions obtain. In this article
I explore the relationship between epistemological theory and
evidence law. Despite recent denials of the relevance of such
theory, 2 I show its relevance and importance by demonstrating
* Visiting Assistant Professor, Northwestern University School of Law
(20032004); Visiting Assistant Professor, Chicago-Kent College of Law
(20042005). My thanks for many helpful comments to Ronald Allen,
Robert Burns, Jules Coleman, Anthony DAmato, Andrew Koppelman,
Corinne OMelia, and Dennis Patterson, as well participants of the 2004
Stanford/Yale Junior Faculty Forum (where a version of this article was
presented in the Jurisprudence and Philosophy category) and faculty
workshops at Northwestern and Chicago-Kent. My thanks also to the
anonymous referees of this journal for their helpful comments.
1
On Certainty, G.E.M. Anscombe and G.H. von Wright (eds.); Denis
Paul & Anscombe (tr.) (Oxford: Blackwell, 1969), p. 57e.
2
See, e.g., Roger C. Park, Grand Perspectives on Evidence Law, Virginia Law Review 87 (2001), p. 2067 (There is a question, for workaday
lawyers and law professors, whether understanding the ins and outs of
Gettier, Quine, and Goldmanis worth the time and eort. We all have
some sort of explicit or implicit idea of a general theory of evidence
lawand the question is whether a grander theory will help achieve the
goals of evidence scholars.).
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MICHAEL S. PARDO
how current conceptual issues in epistemology intersect with,

explain, and clarify conceptual issues in the law of evidence.
But why exactly is knowledge important in this context?
What does it add beyond truth or having reasons? Truth alone
is not good enough. True beliefs can be accidental. A coincidentally true factual conclusion, without any evidence to support it, is not one the legal system should or would endorse. A
decisionmakers simply having good internal reasons is not
good enough either. One could have all sorts of what appear to
be good reasons from that persons perspective but unless
those reasons have some connection with reality the conclusions they engender are likewise not ones the legal system
should or would endorse. Witch trials, for example, were often
founded upon what appeared to those involved to be good
internal reasons; namely, (false) empirical generalizations about
behavior and evidence being indicative of witchcraft.3 So
maybe we need both truth and good internal reasons?
But even this will not be good enough in certain circumstances. Consider the following example. Two ocers plant
cocaine on an automobile driver, and they then give unrebutted
testimony at the drivers trial that they found the cocaine after
a consensual search of the car. The driver, concerned about his
prior record coming out on cross-examination, does not testify
and oers no real defense. The factnder convicts after nding
the ocers credible. Now, unbeknownst to everyone save the
defendant, he really did have cocaine in the car that never was
discovered. Thus the factnders conclusion that the defendant
had cocaine is true and the factnder has good reasons (the
testimony). Are you satised by the conviction? Or is there
something missing? The something missing is knowledge. No
matter what else was going on here, the factnder certainly did
not know the driver had cocaine in the car; the factnders
conclusion was true but only accidentally so. The fact that a
belief is not accidentally true makes it knowledge, and
See Jack B. Weinstein, Some Diculties in Devising Rules for Determining Truth in Judicial Trials, Columbia Law Review 66 (1966), pp. 232
43.
THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE
323
knowledge (or the best possible approximation of it given the

circumstances) is what a fair and just legal system demands.
My general thesis is that a focus on knowledge non-accidentally true belief 4 and the related concept of epistemic justication illuminates laws evidentiary practices and goals.
Epistemological theory allows us to better understand these
practices and goals and to articulate the epistemic commitments
and choices involved. This general thesis is supported with discussions of specic issues in evidence law. The point is not just
that this philosophical theory is benecial and useful (though it
is) for thinking about evidence law; rather, it is that evidence law
is already implicitly and necessarily relying on it. The theory
simply makes explicit the epistemic issues already involved.
The philosophical discussions in the rst two parts of the paper
are cashed out in the third with respect to three dierent areas.
First, the theory allows us to conceptualize the processing of
juridical evidence and makes explicit laws epistemic commitments. Once made explicit, these commitments provide a
coherent explanation and rationale for many practices including,
for example, the standards for summary judgment and judgment
as a matter of law in civil cases, the standard for review of
judgments in criminal cases, and the right to counsel. These
commitments are then compared historically and with alternative modern systems federal laws current epistemological
commitments with respect to factnder conclusions (which will
be explained as a form of weak internalism) are more in line with
contemporary epistemic understanding than the unnecessarily
strong internal commitments imposed on early common-law and
modern civil-law factnders. These unnecessarily strong commitments also prop-up the recent and philosophically sophisticated model of jury decisionmaking with respect to scientic
I refer to knowledge as non-accidental true belief because it appears

to be a general, relatively non-controversial description that captures what
most accounts of knowledge have in common and on which most epistemologists would agree. I am not suggesting that this description provides the
necessary and sucient conditions for knowledge.
324
MICHAEL S. PARDO
expert testimony put forth by Scott Brewer.5 Epistemological

theory reveals why Professor Brewers model is false with regard
to jury decisionmaking and, due to its incorrect epistemic
assumptions, does not lead to the philosophical conclusions he
supposes. The model collapses when these incorrect assumptions
are removed and is thus an unwarranted attack, on epistemological grounds, on the competence of jurors.
Second, epistemological theory is used to articulate a positive theory of probative value. The probative value of evidence
in the juridical-proof context is shown to be a conclusion that
refers to the strength an evidential premise provides an inferential conclusion in a particular multi-premise context. This
view better explains probative value than the current view that
attempts to explain probative value in terms of likelihood ratios. In passing, this view further claries two misunderstandings about probative value, which are reected in the debates
about statistical evidence. It shows that judgments cannot be
epistemically justied by appealing to the probative value of
types or kinds of evidence or by appealing solely to a supposed
causal connection or explanation between evidence and an
underlying event.
Finally, epistemological theory makes plain and then claries
a constitutional puzzle, which is apparent but seldom recognized in the cases and commentary, regarding the review of
First Amendment facts and the Seventh Amendments Reexamination Clause. The Courts decision in Bose Corp. v. Consumers Union of U.S. Inc.,6 has created analytical and doctrinal
confusion regarding how appellate courts are to review First
Amendment facts found by juries in a manner consistent with
both Boses command (in a bench-trial case) to conduct independent review and the Reexamination Clauses command not
to reexamine facts found by a jury. Epistemological theory
helps to esh out the issue and then show why (1) if appellate
judges have superior knowledge on an issue the standard of
review does not matter, and (2) if they do not have such
5
Scott Brewer, Scientic Expert Testimony and Intellectual Due Process, Yale Law Journal 107 (1998), p. 1567.
6
466 U.S. 485 (1984).
325
knowledge then independent review reexamines found facts.

The solution oered is a tentative one: the Court must decide
whether the problem is illusory or the First Amendment
somehow trumps the Seventh Amendment. The analysis contributes by laying the issue bare; the path to take will not be
decided analytically, but rather by weighing competing interests
and values regarding the right to a jury and the First Amendment.
The general idea of a relationship between epistemology and
evidence law is not new. Indeed, the connection between the
two elds has its own interesting history. The remainder of this
introduction provides some of the history of this connection as
the context out of which the later discussions arise.
Jeremy Bentham asserted pithily that the eld of evidence is
no other than the eld of knowledge.7 In one sense, the more
important one, his assertion was exactly right; in another sense
he was wrong, although for reasons he could not likely have
foreseen. He was exactly right because epistemology the eld
of knowledge provides analysis of the appropriate, and
overlapping, concepts and theoretical framework for thinking
about the law of evidence and the related issues that cluster
around the process of juridical proof. These concepts include,
in addition to knowledge and evidence8 themselves, for example, proof, truth, justication, warrant, belief, reliability,
coherence, reason, and so on. Benthams no other, however,
was much too narrow because epistemology itself at least to
the extent it once engaged in the project of discovering a priori
or constructing an infallible foundation against radical skepticism9 is now more robust in scope and less autonomous in
focus. Epistemologists today, while still focusing on the
traditional problem of skepticism, are also engaged in a separate but continuous investigation of knowledge with such elds
An Introductory View of the Rationale of Judicial Evidence, Works VI(5)

(1843) (John Bowring ed.; 2002).
8
See, e.g., Peter Achinstein, The Book of Evidence (Oxford: Oxford
University Press, 2001).
9
More on this shortly.
326
MICHAEL S. PARDO
as cognitive psychology, sociology, and the physical sciences.

The eld of evidence, then, is also these elds.10
A recent symposium on New Perspectives on Evidence reects these observations.11 On the one hand, the angles and disciplines represented helpfully illuminated various aspects of
evidentiary and related practices, and helped to theorize this
relatively under-theorized area in law. Yet, on the other hand, on
a fundamental level undergirding these perspectives, there is an
unavoidable and irreducible conceptual dimension. Evidence
scholarship, as William Twining has observed, has too often
neglected this conceptual dimension.12 This is unfortunate be10
It is also those elds, such as economics, that provide insights into issues
other than knowledge. See, e.g., Ron A. Shapira, Saving Desdemona,
Cardozo Law Review 22 (2001), p. 1771; Chris William Sanchirico, Character
Evidence and the Object of Trial, Columbia Law Review 101 (2001), p. 1227;
Richard A. Posner, An Economic Approach to the Law of Evidence,
Stanford Law Review 51 (1999), p. 1477; Richard D. Friedman, Economic
Analysis of Evidentiary Law: An Underused Tool, An Underplowed Field,
Cardozo Law Review 19 (1998), p. 1531; but see Craig R. Callen, Othello
could not Optimize: Economics, Hearsay, and Less Adversary Systems,
Cardozo Law Review 22 (2001), p. 1791; Richard Lempert, The Economic
Analysis of Evidence Law: Common Sense on Stilts, Virginia Law Review 87
(2001), p. 1619; Ron A. Shapira, Economic Analysis of the Law of Evidence:
A Caveat, Cardozo Law Review 19 (1998), p. 1607.
11
The symposium articles are collected in Volume 87 of the Virginia Law
Review.
12
William Twining, Rethinking Evidence: Exploratory Essays (Evanston,
Ill: Northwestern University Press, 1990), p. 2. One article at the abovementioned symposium, from a leading evidence scholar and a leading legal
philosopher, addressed this dimension in order to provide an appropriate
theoretical framework and philosophical foundation or ground beneath
the feet of evidence law. Ronald J. Allen and Brian Leiter, Naturalized
Epistemology and the Law of Evidence, Virginia Law Review 87 (2001), p.
1492. In response, another leading evidence scholar questioned the importance of this theorizing, see Park, supra note 2, and the assumed level of
philosophical competence among readers at which the rst two were writing,
see id. (I doubt that many lawyers can handle the authors references to what
philosophers have said about each other without more foundation This
author would have beneted from a more accessible treatment of the subject.). In addition to the specic conclusions advanced, part of my aim is show
why such theorizing is important without assuming much familiarity among
readers of the relevant texts or concepts.
327
cause the proliferation of useful empirical work on the process of

proof is necessarily founded upon and dependent on the abovementioned epistemic concepts.
In addition, there is some irony in the limited amount of explicit
epistemological discussion in modern evidence scholarship. Classic
evidence treatise writers from Gilbert through Wigmore routinely included discussions of contemporary epistemological theories. Some examples: Gilberts The Law of Evidence (published in
1754), which discusses the epistemological views of John Locke13;
Glassfords An Essay on the Principles of Evidence and Their
Application to Subjects of Judicial Enquiry (published in 1820),
which discusses the Scottish commonsense philosophers Thomas
Reid and Dugald Stewart14; Stephens A Digest of the Law of
Evidence (published in 1876), which discusses the views of John
Stuart Mill; and Wigmores famous treatise15; not to mention
Benthams own work on the subject.16 As Barbara Shapiro puts it,
13
Although not as relevant for my purposes, the inuence went the other
way as well. For example, Lockes epistemology, in book IV of his Essay
Concerning Human Understanding (ch. 16, sec. 10), makes use of the common-law evidence rules excluding hearsay and copies of documents in
arguing for the unreliability of such evidence in general. For a discussion
and critique of Lockes epistemological views on testimony see C. A. J.
Coady, Testimony (Oxford: Oxford University Press, 1992), pp. 199223.
14
For a discussion of Glassfords book see M.Y. Abu-Hareira, An Early
Holistic Conception of Judicial Fact-Finding, Juridical Review (1986), p.
79. Both Abu-Hareiras article and Glassfords book are discussed in Michael S. Pardo, Comment: Juridical Proof, Evidence, and Pragmatic
Meaning: Toward Evidentiary Holism, Northwestern University Law Review 95 (2000), pp. 422424.
15
John H. Wigmore, Treatise on the System of Evidence in Trials at the
Common Law (19041905). See also John H. Wigmore, The Principles of
Judicial Proof (1913).
16
See Twining, supra note 12, at pp. 3291 (discussing Gilbert, Bentham,
Stephen, Wigmore, and others). For additional examples, see Barbara J.
Shapiro, To a Moral Certainty: Theories of Knowledge and AngloAmerican Juries 16001850, Hastings Law Journal 38 (1986), pp. 175191.
Thayer was the exception to this pattern: Because Thayer distinguished the
evidentiary method of the law from that of the natural sciences and history,
it is not surprising that he did not attempt to ground his treatise on the
epistemological treatises of the day. Id. at 190.
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MICHAEL S. PARDO
One of the most interesting features of the treatises on evidence

is that so many authors found it necessary to place their treatments
of legal evidence in the context of current epistemological
thought.17 Yet, epistemology during these periods was largely
conceived as an a priori endeavor focused on the problem of
skepticism and thus, for reasons discussed below, was to some
extent a mismatch for evidence scholarship. Now, also for reasons
discussed below, epistemologys focus is directly relevant to evidence theory, but it is not a primary focus of such theory, at least
not explicitly.18 Thus historically there may be an inverse relationship between relevance and perceived importance.
Evidence doctrines focus on empiricism (e.g. testimony in the language of

perception) may to some extent be a remnant of this theorizing, which
focused to a large extent on the classic empiricists. See William Twining,
Theories of Evidence: Bentham and Wigmore (Stanford: Stanford University
Press, 1986), pp. 118; Peter Tillers, Webs of Things in the Mind: A New
Science of Evidence, Michigan Law Review 87 (1989), p. 26 (reviewing
David Schum, Evidence and Inference for the Intelligence Analyst (1987))
(Under the rubric of relevancy, the leaders in traditional evidence
scholarship and almost all of their followers subscribed to a theory of
inference impregnated with an epistemological perspective characteristic of
nineteenth-century British empiricism.); see also Shapiro, supra, at p. 175
(It seemed essential to them [the classic treatise writers] to ground the rules
of evidence, which were the bulk of the treatises, on what was considered to
be a sound theory of knowledge.) This is not to say that the turn toward
empiricism was, for the most part, a bad thing. See W.V. Quine, Five
Milestones of Empiricism, in Theories and Things (1981), pp. 6772. Nor
does this deny the inuence of rationalist epistemological assumptions as
well. See L. Jonathan Cohen, Freedom of Proof, in William Twining and
Alex Stein (eds.), Evidence and Proof (New York: New York University
Press, 1992), pp. 323.
17
Shapiro, supra note 16, at p. 175.
18
Given the necessary connection between the two elds epistemological
issues are implicit in almost all evidence theory. Notable exceptions that
present explicit epistemological discussions include, e.g., L. Jonathan Cohen, The Probable and the Provable (Oxford: Oxford University Press,
1977); Allen and Leiter, supra note 12; Craig R. Callen, Hearsay and
Informal Reasoning, Vanderbilt Law Review 47 (1994), p. 43; Peter Tillers,
Mapping Inferential Domains, Boston University Law Review 66 (1986), p.
883; Keith Burgess-Jackson, An Epistemic Approach to Legal Relevance,
St. Marys Law Journal 18 (1986), p. 463; within the philosophy-of-science
329
But if so, not without exceptions. Jerome Michael summed

up succinctly the importance of such discussion for law:
Since propositions are actual or potential knowledge, since proof or disproof is
an aair of knowledge, since, if they are truthful, the parties to legal controversy
assert, and witnesses report, their knowledge, and since knowledge is of various
sorts, you need some knowledge about knowledge.19
Twining cites Michael over forty years later and makes the
same point.20
My goals, then, are rst to provide some accessible knowledge
about knowledge, and second to show how such knowledge
yields valuable understanding of and implications for the law of
evidence and the process of juridical proof. Section II provides
additional background regarding epistemology and focuses on
both traditional epistemological projects and recent developments. Building on the background in Section II, Section III then
explicates the recent work of three philosophers: Laurence
BonJour, Alvin Goldman, and Robert Brandom. My reasons for
focusing on these particular authors are threefold. First, they well
represent current and important conceptual issues in the eld of
knowledge. Second, as discussed in Section IV they illuminate a
number features in the eld of evidence law. Third, they serve the
meta thesis mentioned earlier; namely, they esh out the
unavoidable conceptual (as opposed to empirical) dimension and
concomitant need for epistemological theorizing in both elds. In
context and its relation to scientic evidence see Brewer, supra note 5, at p.
1567; Brian Leiter, The Epistemology of Admissibility: Why Even Good
Philosophy of Science Would Not Make for Good Philosophy of Evidence,
BYU Law Review (1997), p. 805; Heidi Li Feldman, Science and Uncertainty in Mass Exposure Litigation, Texas Law Review 74 (1995), p. 1. And
specic epistemological issues are often discussed in the literature concerning the applicability of Bayes theorem, conrmation theory, and statistical
evidence.
19
Jerome Michael, The Elements of Legal Controversy (West Publishing,
1948), p. 7.
20
Twining, supra note 12. See also Allen and Leiter, supra note 12, at p.
1492 (The developments in epistemology have not, to date, been much
noted in legal scholarship.)
330
MICHAEL S. PARDO
other words, they show that knowledge ascriptions occur, in

Wilfrid Sellarss famous phrase, in the logical space of reasons:
The essential point is that in characterizing an episode or a state as that of
knowing, we are not giving an empirical description of that episode or state; we
are placing it in the logical space of reasons [original emphasis] 21
This Section rst provides the broad context in which their views
arise: the debates between internal and external epistemological
theories. Next, this Section describes a developed internal theory,
BonJours coherentism, and a developed external theory, Goldmans reliabilism. Finally, this Section describes ve implications
Brandom draws from these recent epistemological debates. If
there is a pernicious caricature of philosophical theory as the
product of starry-eyed, armchair-bound, empirically uninformed, and just generally out-of-touch-with-reality reection
there is an equally caricatured (and complementary) view that
once all the physical facts, described in some specialized vocabulary, have been found then all the issues regarding knowledge
and evidence will be solved. Section III is an antidote to the latter.
Section IV turns to law. After rst making general observations regarding the relevance of epistemology to evidence law,
this Part examines in depth the three areas discussed in the
opening paragraphs: the laws epistemology with respect to factual decisionmaking, the nature of probative value, and the
puzzle regarding the review of First Amendment facts.
II. THE FIELD OF KNOWLEDGE
An obvious point, but: no matter what else you care about, you
care about knowledge. It is universally valuable.22 As an
individual matter, to achieve any goal or end, you need to know
several facts about the world and the way it works, including
what those goals and ends are, when and whether you achieved
them, and perhaps even when and whether you know that. And
as a social matter, your ascriptions of knowledge to others, and
21
Wilfrid Sellars, Empiricism and the Philosophy of Mind (Cambridge,

MA: Harvard University Press, 1997), p. 76.
22
See Hilary Kornblith, Knowledge and its Place in Nature (Oxford:
Oxford University Press, 2002), pp. 160161.
331
theirs to you, are likewise valuable. You want to rely on the

knowledge of others in your own reasoning, as true conclusions
from which to infer other true conclusions, and have others
likewise rely on you. These concerns and realizations trigger the
second-level question of what they have in common. Well,
knowledge; but whats that? This question and its related issues
animate the eld of knowledge.
One way to begin to think about knowledge is, strange as it
perhaps may rst seem, with intent. In one sense knowledge is
the ipside of intent. Both involve some sort of connection between mind and world; however, the direction of t and concomitant authority run in opposite directions knowledge runs
from world to mind; intent runs from mind to world. To illustrate this point consider G.E.M. Anscombes example of the
grocery shopper and the detective.23 Imagine a shopper with a
grocery list (eggs, milk, etc.) lling a shopping cart with items on
the list. Meanwhile a detective is following the shopper and
writing down a list of the objects being purchased. After the
shopper has checked out, if there is a discrepancy between the
items purchased and the shoppers list, the error is with the items
purchased. But if there is a discrepancy between the detectives
list and the items purchased, the error is with the detectives list.
The rst case illustrates intent, the second knowledge.
A second way to enter the eld of knowledge iswith the concept of knowledge itself.24 The classical
tripartite conception of knowledge is as justied, true,25
23
G.E.M. Anscombe, Intention (Oxford: Blackwell, 1957), pp. 5657.

Kornblith, supra note 22, at pp. 6163, however, suggests that focus on
the concept of knowledge as opposed to knowledge itself, which he thinks of
as a natural kind like rocks and trees, is responsible for directing epistemology
in less fruitful directions. Taking knowledge to be a natural kind is a minority
view, however. See also Timothy Williamson, Knowledge and Its Limits
(Oxford: Oxford University Press, 2002) (arguing that knowledge should be
used to explain justication and belief, not the other way around).
25
The concept of truth has played a feature role in much philosophical
discussion, but neither epistemology nor law requires a complicated theory of truth. See Alvin I. Goldman, Knowledge in a Social World (Oxford:
24
332
MICHAEL S. PARDO
belief.26 The traditional focus has been on the rst element the
nature of justication or warrant. In other words, some sort of
reason to ascribe knowledge to a knowing agent, following the
Oxford University Press, 1999), pp. 4168; Michael Williams, Do We
(Epistemologists) Need A Theory of Truth? Philosophical Topics 14
(1986), pp. 223242; Mirjan Damaska, Truth in Adjudication, Hastings
Law Journal 39 (1998), p. 289. By truth throughout, I refer to its basic,
minimal notion as descriptive success or accuracy. Goldman, supra at p.
60. Much philosophical theorizing has involved trying to explain this
intuitive notion in more basic terms; the theories generally dier on
whether truth is a realist or antirealist notion, and the accounts dier on
whether they are trying to explain the semantic meaning or pragmatic
signicance of truth. Donald Davidson, however, has argued that philosophers should stop trying to search for more basic notions that purport
to explain the meaning of truth; rather, because truth is a primitive notion we already understand (in minimal realist terms), we should focus on
how that concept can explain more problematic ones, such as meaning.
Donald Davidson, The Structure and Content of Truth, Journal of Philosophy 87 (1990), pp. 279328; see also Donald Davidson, Truth Rehabilitated, in Robert Brandom (ed.), Rorty and His Critics (Oxford:
Blackwell, 2000), pp. 6574. (Cf. Williamson, supra note 24, which argues
that knowledge should be treated as a basic concept and used to explain
others.) For other classic and representative accounts in these debates see
Alfred Tarski, The Semantic Conception of Truth, Philosophical and
Phenomenological Research 4 (1944), pp. 341375; Bertrand Russell, Truth
and Falsehood, The Problems of Philosophy (1962) (Oxford: Oxford
University Press, 1998), pp. 119130; F.P. Ramsey, Facts and Propositions, in George Pitcher (ed.), Truth (Englewood Clis, NJ: Prentice-Hall,
1964), pp. 1617; J.L. Austin, Truth, in Id., pp. 1831; P.F. Strawson,
Truth, in Id., pp. 3253; Michael Dummett, Truth and Other Enigmas 1
24 (1978), pp. 124; Hilary Putnam, Two Philosophical Perspectives,
Reason, Truth and History (Cambridge University Press, 1981), pp. 4974;
W.V. Quine, Pursuit of Truth (Cambridge, M: Harvard University Press,
1992), pp. 7782. While epistemology and law do not need complicated
accounts of truth, it should be noted that often the desire to avoid making
truth epistemically inaccessible may tempt the positing of implausible
metaphysical theories of truth. On the integration of ontological and
epistemological accounts see Christopher Peacocke, Being Known (Oxford:
Oxford University Press, 1999), pp. 112.
26
This conception is often rst attributed to Plato in the Meno, which
presents the view that knowledge is true belief plus some connection or tie
between the belief and its truth. See, S Marc Cohen et al. (eds.), Readings in
Ancient Greek Philosophy: From Thales to Aristotle (Indianapolis, IN:
Hackett Pub. Co. Inc., 1995), pp. 185211.
333
intuitive belief that someone who believes a proposition that

coincidentally just happens to be true, without having any
reason at all for believing it is true, cannot be said to know it.
The point here is that we want to rule out accidentally true
beliefs as knowledge.
Given this focus on justication, a classic problem arises: the
innite regress of justication (and of reasons and of evidence).
To be epistemically justied in believing a proposition, an agent
must have some reason or evidence for believing the proposition to be true. But then why is the agent justied in believing
the underlying reason or evidence to be true? It must itself be
based on further reasons or evidence. And so on, and on, and
on. The traditional response, from Descartes through to the
early-twentieth-century movement known as logical positivism, was to ground knowledge on some kind of given, selfevident, or otherwise indubitable foundation. Various candidates were put forth, from Descartes cogito and other incorrigible experiences to the classical empiricists sense data to the
logical positivists combination of veriable propositions and
analytic statements. For a variety of reasons, these projects
failed. But one primary reason was because of the realization
that all of our observations are already shaped by our concepts,
and thus cannot occur prior to having those concepts.27
27
More specically, a purported foundation either already presupposes

acquired concepts and hence is not basic and infallible, or it lacks conceptual content and hence cannot serve as a premise from which to infer further
knowledge. This was demonstrated by exposing that these foundational
accounts relied on oversimplied and problematic notions of the relationships between mind-world, language-world, and mind-language. For the
principal attacks see Sellars, supra note 21 (exposing the myth of the given);
W.V. Quine, Two Dogmas of Empiricism, From a Logical Point of View,
2nd edn. (Cambridge, MA: Harvard University Press, rev. 1994), pp. 2046.
Similar views are expressed by Wittgenstein in The Philosophical Investigations, G.E.M. Anscombe (tr.), (Oxford: Blackwell, 1953), and more recently
and in more developed form by Donald Davidson, see, e.g., Subjective,
Intersubjective, Objective (Oxford: Oxford University Press, 2001), pp.
107121, 205220, and John McDowell, Mind and World (Cambridge, MA:
334
MICHAEL S. PARDO
One favorable consequence of these failed projects was to

direct focus within the theory of knowledge away from the
problem of incorrigible or infallible foundations and toward
both antifoundational approaches to the traditional problem
of skepticism and the exploration of other knowledge
problems.28 These problems relate, for example, to knowledges
nature, limits, values, virtues, and relations to other concepts
such as action, as well as toward a rethinking of epistemological
methodology itself.29 Some of these and other issues are discussed below. In the next section, before turning to legal settings, I discuss the recent30 philosophical works of BonJour,
Goldman, and Brandom. After that, I map insights from their
work and epistemology generally onto evidentiary and other
legal issues. But before doing either, and to complete this
background section and provide context for the next, two
further twentieth-century developments need to be discussed.
The rst is Edmund Gettiers seminal paper Is Justied True
Belief Knowledge? which demonstrated that in certain circumstances the justied-true-belief model was insucient to
establish knowledge.31 This was huge. He essentially smashed the
generally accepted view of the sucient conditions for knowlHarvard University Press, 1996). For general discussions of the failed
foundational projects see Michael Williams, Groundless Belief: An Essay on
the Possibility of Epistemology (Princeton: Princeton University Press,
1999); Richard Rorty, Philosophy and the Mirror of Nature (Princeton:
Princeton University Press, 1979).
28
Maybe redirect focus is more accurate, as some were pursuing these
other knowledge problems prior to the rise of contemporary naturalized
epistemology. See Philip Kitcher, The Naturalists Return, Philosophical
Review 101 (January 1992), pp. 53114. Moreover, naturalism may refer to
a variety of (and varying degrees of) both methodological and substantive
commitments such that many philosophers such as Hume, Spinoza, and
Nietzsche fall under the label. For an excellent discussion see Brian Leiter,
Nietzsche on Morality (2002), pp. 326.
29
See id. Epistemological projects may be normative, descriptive, evaluative, or ameliorative. See Jonathan M. Weinberg, Shaun Nichols, and
Stephen Stich, Normativity and Epistemic Intuitions, Philosophical Topics
29 (2001), p. 429.
30
Recent in the context of philosophy.
31
Analysis 23 (1963), pp. 121123.
335
edge, a view that stretched back at least to Plato.32 (The consequences of this demonstration, however, are not clear,33 and a
qualication sometimes seen in contemporary discussions is
simply to assume away Gettier situations.34) As may already
be clear, a legal example of a Gettier situation would be the
hypothetical presented in the Introduction in which two police
ocers stop an automobile and plant cocaine on the driver.
Again, at the driver-defendants trial, both ocers testify consistently that when they approached the car they saw the driver
attempting to hide the cocaine under the car seat. A factnder
concludes that both ocers were credible witnesses. The defendant chooses not to testify (he has a number of prior convictions
for crimes involving dishonesty and is worried that his convictions may be used to impeach his credibility35). The defense,
unable to impeach the ocers, puts on no other defense. But
unbeknownst to both ocers, the factnder, and everyone else
save the defendant, at the time he was stopped the defendant
actually was concealing cocaine under his seat in the car. The
factnder comes to believe that the defendant possessed cocaine.
This belief is justied (based on the ocers consistent, unrebutted testimony) and the belief happens to be true. Yet the
factnder did not know the defendant possessed cocaine. The
upshot: truth and justication are independent variables; we can
32
See supra note 26.

One possible implication is that knowledge is a prime state and not the
conjunction of an internal and external one. See Williamson, supra note 24,
at pp. 6592. Weinberg et al., supra note 29, present preliminary evidence
that they argue suggests intuitions regarding Gettier situations may be
culturally dependent, which they then use to question the reliance on intuitions at all in epistemological theorizing. Gettier situations are cases at the
margins, however, and so situations where intuitions are likely to vary.
Weinberg et al. would need to show variations in more intuitively clear cases
to undermine reliance on them. The easy cases provide the starting point for
epistemological theorizing.
34
See, e.g., Laurence BonJour, The Structure of Empirical Knowledge
(Cambridge, MA.: Harvard University Press, 1985), p. 5; Williams, supra
note 27, at pp. 512.
35
See Federal Rule of Evidence 609(a)(2).
33
336
MICHAEL S. PARDO
coincidentally believe something that happens to be true for the

wrong reasons.36
The second development is the turn toward naturalized
epistemology. Naturalism is, following Brian Leiters classication, the distinctive development in philosophy over of the
last thirty years [original emphasis] or so.37 In epistemology
the classic locus is W.V. Quines Epistemology Naturalized.38
To paint with a broad brush over some complicated-but-formy-purposes-here-irrelevant details, Quines argument went
roughly as follows. The traditional epistemological project
from Descartes to the foundational empiricism of the logical
positivists attempted to construct some sort of rst philosophy that would provide an independent and suitable foundation for our knowledge, including our scientic practices.39
Accordingly, it would be circular for this project to appeal to
science, as this was part of what the project was attempting to
provide a foundation for in the rst place. But, this project was
36
The examples Gettier presented were narrow; however, Gettier situations are considered more broadly to include any situation, such as the one in
the above text, where one infers a true conclusion from false premises. See
Williams, supra note 27, at pp. 512; Michael Williams, Problems of Knowledge (Oxford: Oxford University Press, 2001), pp. 2829, 5052; Gilbert
Harman, Thought (Princeton: Princeton University Press, 1973), pp. 2123.
37
Brian Leiter, Naturalism and Naturalized Jurisprudence, in Brian Bix
(ed.), Analyzing Law (Oxford: Oxford University Press, 1998), pp. 79104.
See also Brian Leiter, Naturalism in Legal Philosophy, Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/lawphil-naturalism/) (2002).
38
W.V. Quine, Ontological Relativity and other essays (New York:
Columbia University Press, 1969), pp. 6990.
39
See, e.g., the papers collected in A.J. Ayer (ed.), Logical Positivism (New
York: Free Press, 1959). The logical positivists attempted foundation was not
an attempt at metaphysics; indeed, they were rabidly anti-metaphysical, and
tried to construct a foundation for scientic knowledge by logically analyzing
language in order to separate meaningful (i.e. empirically veriable) statements from meaningless ones. See P.M.S. Hacker, Wittgensteins Place in
Twentieth-Century Analytic Philosophy (Oxford: Blackwell, 1997), pp. 3966.
337
a failure.40 Therefore, no reason prevents an appeal to science

in our epistemic theorizing. In other words, epistemology no
longer needs to be an a priori endeavor; it can now engage in a
posteriori investigation along with the sciences and other disciplines and, most important, rely on this additional evidence in
assessing our epistemic practices. In short, philosophical theory
can (and should) rely on and be constrained by empirical
information.
While doing so, however, epistemology may still remain a
largely evaluative, normative endeavor.41 Following Hilary
Kornbliths scheme, (1) the traditional epistemologist asks how
we ought to form beliefs; (2) the empirical psychologist asks
how we do in fact form beliefs; (3) the naturalized epistemologist (along with others) asks if the epistemic practices by which
we form beliefs are the means by which we ought to, and how
those practices (typically evidence gathering and reasoning)
might be improved.42 Two general considerations constrain
40
Thanks partly to Quines own previous work in attacking logical

positivisms reliance on the analyticsynthetic distinction. See Quine, supra
note 27. The rejection of the analyticsynthetic distinction more specically, the notion that even our analytic truths could be revised based on
experience implies that epistemology could not only make use of scientic
results but that such results might also be used to revise our epistemological
methodologies and concepts as well.
41
See Kitcher, supra note 28; Larry Laudan, Normative Naturalism,
Philosophy of Science 57 (March 1990), pp. 4459. See also Kornblith, supra
note 22, at p. 177 (describing philosophy as empirically informed theory
construction.) An exception is the purely descriptive epistemological project
sometimes attributed to Quine. See Jaegwon Kim, What is Naturalized
Epistemology? in Hilary Kornblith (ed.), Naturalizing Epistemology
(1994), pp. 3355; Leiter, supra note 37. But this view is not clearly explicit
in Quines original paper; he refers to reciprocal containment, not just
epistemology as a chapter of descriptive science. See Quine, supra note 38, at
p. 83. See also W.V. Quine, Reply to Morton White, in Hahn and Schilpp
(eds.), The Philosophy of W.V. Quine (1986), pp. 664665 (Naturalization of
epistemology does not jettison the normative and settle for the indiscriminate description of ongoing procedures.); Kornblith, supra note 22 at 137
140.
42
Hilary Kornblith, Introduction: What is Naturalistic Epistemology?,
in Kornblith (ed.), supra note 41, at p. 14. See also Kitcher, supra note 28;
Lauden, supra note 41.
338
MICHAEL S. PARDO
such theorizing.43 The rst is instrumental: practices, processes,

etc. are evaluated for their tendency to produce true beliefs and
to avoid error or ignorance.44 The second constraint recognizes
the practical limitations on potential knowing agents; it recognizes that ought implies can. For example, a normative
theory may recommend one maintain consistency among ones
beliefs, but the theory would violate this constraint if one has so
many beliefs that the computational complexity involved in
keeping them consistent was impossible to perform.45 Or a
more extreme example that violates the constraint: one might
recommend that the best epistemic strategy for jurors is to
travel back in time and witness the event giving rise to the
lawsuit.
Even if one rejected a naturalized approach to epistemology, such an approach (in the normative sense) is still
appropriate for epistemological theorizing within the law. A
primary reason for rejecting a naturalized approach is because one takes the skeptical threat to be the problem for
epistemology; therefore, so the argument might go, it would
be circular to appeal to science in answering the skeptic
43
Leiter oers these constraints in discussing jurisprudential theories.

Leiter, Naturalized Jurisprudence, supra note 37. Moreover, because legal
questions are not ontologically or epistemologically distinct from factual
questions, see Ronald J. Allen and Michael S. Pardo, The Myth of the LawFact Distinction, Northwestern University Law Review 97 (2003), p 1769,
there is no obvious dierence in the application of epistemological theory.
This is not to deny the possibility of drawing a distinction at a higher level
between natural facts and social facts, with legal questions concerning
examples of the latter. But this distinction would not explain the distinction
between legal and factual adjudicative questions. See id. Much of the
factual subject matter involved in legal disputes also involves social facts
such as monetary damages, intent, duty, breach, the meaning of contract
language based on parol evidence, and so on.
44
Error and ignorance are, of course, two dierent variables. One could
possess epistemic practices that produced only true beliefs, though they
produced so few of them that they would not allow that person to do or
know much of anything.
45
See Christopher Cherniak, Minimal Rationality (Cambridge, MA: The
MIT Press, 1986). See also Christopher Cherniak, Computational Complexity and the Universal Acceptance of Logic, in Kornblith (ed.), supra
note 41, at pp. 239260.
339
because this scientic knowledge is precisely what the skeptic

wanted a justication for in the rst place. Radical skepticism, however, has no place in the law. The very act of
theorizing about laws epistemic practices presupposes a
shared, public, knowable world. Without this supposition,
the notion of law itself is unintelligible.46 (The same point
about skepticism goes for radically subjective notions of
truth also.47) Thus, although much of the following discussion will concern conceptual rather than empirical issues, I
assume that any epistemological theorizing about juridical
proof or law in general must be naturalized in the sense
discussed above.48
A nal word about skepticism. Even if it turned out that,
given our actual or even potential epistemic practices, we were
never justied in believing any of our beliefs, epistemological
theorizing would still be relevant to evidence law. One thing it
would reveal is what practices, beliefs, judgments, etc. were
better or worse, more or less justied than others. Given that
accurate factual judgments are obviously important to any just
legal system, a legal systems epistemic practices even if only
in matters of degree and even if those degrees are insucient to
qualify as justied or knowledge are of critical importance. This is all the more so given that juridical proof is a
comparative-judgment aair.49 So, in the law, then, we are in
an ineluctable epistemic situation.
46
See Damaska, supra note 25; Hilary Putnam, Pragmatism and Realism, Cardozo Law Review 18 (1996), p. 153. If skepticism holds, then we do
not even know that there is law or underlying factual disputes to begin with,
or anything to even dispute for that matter. There would be nothing for law
to do. Skepticism is a conversation stopper in this context.
47
These, though, are often unintelligible on their own terms. Goldman,
supra note 25, at pp. 340. See also supra note 25; Terry Eagleton, After
Theory (New York: Basic Books, 2003), p. 104 (those who do not believe in
truth are quite often inverted dogmatists. They reject an idea of truth that
no reasonable person would defend in the rst place.)
48
For general discussions of naturalism with regard to jurisprudence and
legal theory see Leiter, sources cite in supra note 37.
49
Ronald J. Allen, Factual Ambiguity and a Theory of Evidence,
Northwestern University Law Review 88 (1994), p. 604; Ronald J. Allen, The
Nature of Juridical Proof, Cardozo Law Review 13 (1991), p. 373.
340
MICHAEL S. PARDO
The story told in this Part can be summarized as follows:

contemporary epistemology, for philosophical and historical
reasons, has emerged as a robust, empirically informed eld
investigating not only traditional problems of skepticism, but
also knowledge issues on the ground, as it were. The knowledge
issues on the ground are those that arise after we accept the
minimal-realist assumptions (ones evidence law must make)
that the world exists independently of our senses and knowledge of it is possible. The works discussed in the next section
arise within this context. They all to some extent accept a realist
conception of truth50 and are exploring the connection of what
separates knowledge from accidentally true beliefs. They dier
in how to understand and explain this connection.
III. CONCEPTUALIZING KNOWLEDGE
This section examines contemporary works by Laurence

BonJour, Alvin Goldman, and Robert Brandom.51 I rst
discuss the broad context in which their epistemological
50
This is not to suggest that there arent important dierences between

them, primarily between Brandom on one hand and Goldman and BonJour
on the other. Brandom is dicult to pin down on this point, given his
complex discussion of truth in Making it Explicit: Reasoning,Representing,
and Discursive Commitment (Cambridge, MA: Harvard University Press,
1994), pp. 299305. He might best be referred to as having a pragmatic
realist theory of truth.
51
Specically, BonJour, supra note 34; Laurence BonJour and Ernest
Sosa, Epistemic Justication: Internalism vs. Externalism, Foundations vs.
Virtues (Oxford: Blackwell, 2003) (This book is written in sections and responses by BonJour and Sosa, not as co-authors; here I focus on BonJours
sections); Goldman, supra note 25; Alvin I. Goldman, Epistemology and
Cognition (Cambridge, MA: Harvard University Press, 1986); Alvin I.
Goldman, Discrimination and Perceptual Knowledge, Journal of Philosophy 73 (1976), pp. 771791; Alvin I. Goldman, What is Justied Belief?, in
Kornblith (ed.), supra note 41, at pp. 105130; Robert B. Brandom, Articulating Reasons: An Introduction to Inferentialism (Cambridge, MA: Harvard University Press, 2000); Brandom, supra note 50. BonJour and
Goldman are concerned with epistemology proper; Brandoms discussion of
epistemology concerns its relation to his project in philosophy of language,
primarily his account of semantic content, which he explains in terms of
inference.
341
views arise: internal versus external theories. Then, in order

to esh out the distinction, I explicate a developed internalist
theory, BonJours coherentism, and a developed externalist
theory, Goldmans reliabilism. Finally, I discuss some epistemological conclusions that Brandom draws from these
diering views and their relationship, which he refers to as
insights and blindspots. After that, I turn to the law.
A. Internalism and Externalism
Internalist and externalist epistemological theories of provide

accounts of what makes an agents true belief or judgment
justied or warranted. They also provide accounts of what
makes true beliefs or judgments qualify as knowing, that is, not
accidentally true. They dier in how much the accounts depend
on what is internal to the agents cognitive awareness.
Internalist theories require that the reasons or factors
needed to epistemically justify an agents belief are accessible
to the agent, are internal to the agents cognitive perspective.
These theories come in two avors: strong and weak. Strong
internalism requires that the knowing agent actually be aware
of the reasons that make her belief justied, that, if challenged, she is able to articulate those reasons. Weak internalism requires just that the knowing agent be capable of
becoming aware of the justifying reasons by properly focusing his attention, that he has within his cognitive grasp the
reasons for thinking his belief is true.
This perspective accords with our intuitive, commonsense
notion that belief acceptance must be in some sense rational; in
other words, that an agent, at least when claims to knowledge
are at stake, bears some responsibility in how she formulates
beliefs or judgments that purport to be true.52 The primary
objection to such theories is that they demand too much of
agents by confusing rst- and second-order ascriptions of
knowledge. An agent can know something without knowing
52
In others words, this needs to be the case for a belief or judgment to be

justied for this person. See BonJour and Sosa, supra note 51, at p. 24.
Hilary Kornblith, Justied Belief and Epistemically Responsible Action,
Philosophical Review 92 (1983), p. 33.
342
MICHAEL S. PARDO
that she knows. By requiring that agents engage (or in weak

versions be capable of engaging) in this higher-level reective
processing in order to have knowledge, the internalist, contrary
to our commonsense notions, must deny that inarticulate
adults, pre-verbal children, and certain animals53 have knowledge, because they cannot provide the justifying reasons, cite
the relevant evidence.54
By contrast, externalist theories account for justication and
knowledge through factors external to the knowing agents
cognitive awareness. Under these theories, an agents belief is
justied if it was produced for reasons or via a process or
method that makes it objectively likely to be true. In other
words, the theories explain both justication and knowledge by
appealing to regularities or the reliability of various practices
for producing true beliefs. The knowing agent need not be
aware of this regularity or reliability relation, nor have reasons
for thinking her belief is true, yet so long as the belief or
judgment was formed in a reliable way, the agent is still said to
be justied and to have knowledge of her true belief.55
The externalist theories accord with our commonsense
intuitions that whether a belief or judgment counts as knowledge depends not just on what is going on in the agents
53
There are thorny debates about whether non-discursive animals or prediscursive children have beliefs. See, e.g., Davidson, supra note 27, at pp.
95105. There is a weaker sense of know, however, that refers to some type
of appropriate responsiveness to an environment. An animal responding
appropriately may be said to know how to move about, in a way that is nonaccidentally appropriate, even if this knowing how is not also a knowing
that. See Kornblith, supra note 22, at pp. 2869. On the distinction between
knowing-how and knowing-that see Gilbert Ryle, The Concept of Mind
(1949), pp. 2561. For a lucid and illuminating recent discussion of Wittgenstein and Sensations, Animals, and Knowledge see David H. Finkelstein, Expression and the Inner (Cambridge, MA: Harvard University Press,
2003), pp. 128152.
54
The internalist theories may also be too weak because, in certain circumstances, features external to the agent cause us to withhold ascribing
knowledge even though the agent has strong reasons for believing a true
belief. Gettier situations, described above, are one example; another will be
discussed later in this section.
55
For example, a judge or police ocer with reliable but unexplainable
intuitions.
343
consciousness but also depends on features of the environment.

Also, unlike internalism, externalism does not require that
potentially knowing agents be able to cite all the evidence or
reasons that justify the true propositions of which the agents
have knowledge. Pure externalist theories, however, ascribe
knowledge even to potentially knowing agents who act in an
epistemically irresponsible manner. The standard example
(BonJours56) is someone who believes himself to be clairvoyant, but a more realistic, legally relevant one would be as follows. Imagine a judge who believes himself reliable at making
credibility determinations based on demeanor and forms a
belief based on this putative ability, yet he has (1) strong evidence that such determinations are in general unreliable57; (2)
some (misleading) putative evidence that his recent such
determinations are unreliable (some defendants he recently
convicted based on such determinations were exonerated when
someone else confessed (falsely)); (3) no evidence that they are
reliable; (4) strong evidence that the belief in question is false
(signicant evidence corroborates a witness he believes is not
credible). Nevertheless, the judge forms and accepts the belief,
which happens to be true, based on demeanor, and as it turns
out, his ability to judge credibility based on demeanor is quite
reliable. The externalist theory would say the judge was justied
and had knowledge even though he ignored all the evidence he
had. Thus the agent can behave quite irrationally and irresponsibility with respect to the evidence and still be epistemically justied under a pure externalist theory.58
My point in discussing these two perspectives is not to suggest
that one is correct or even that a choice need be made between
them. Rather, each illuminates features of the nature of epistemic
justication and knowledge, which, in Section IV, I use to make
explicit laws epistemic practices regarding juridical proof and
provide a vocabulary for discussing those practices. Indeed, the
varying perspectives seem to be directing attention toward dif56
BonJour, Structure, supra note 34, at pp. 4145.

Perhaps he read and found persuasive, Olin Guy Wellborn III, Demeanor, Cornell Law Review 76 (1991), p. 1075.
58
It severs justication from rationality, which seems, at least, problematic. See BonJour and Sosa, supra note 51, at p. 29.
57
344
MICHAEL S. PARDO
ferent epistemological issues: they show that crucial epistemological issues arise, and that justication likely depends upon,
both an agents background beliefs, reasoning, and rationality on
one hand as well as on how a belief or judgment was generated
and the external world on the other.59 This will become more
clear is next section, which eshes out more-developed internalist
and externalist theories. In passing, it is worth noting that this
discussion bears more than a supercial resemblance to H.L.A.
Harts distinction between the internal and external aspects of
rules.60 A stop-sign provides a regularity from the external perspective that allows one to predict when people will stop based on
an apparent causal relationship between the sign and people
stopping; but from the internal perspective, the same sign provides a reason, a justication, for stopping. Likewise, the evidence, process, or method that, from the external perspective,
justies a belief by making it objectively likely to be true may also,
from the internal perspective, be a reason, evidence, for accepting
or retaining the belief.
B. Coherence and Reliability
BonJour presents an internalist theory that accounts for epistemic justication in terms of coherence.61 It is a traditional
theory in that it takes skepticism as the primary epistemological
question, consequently attempts to address the redress problem,
and rejects naturalism in doing so. To be clear, the signicance
for the discussion here is not the success of the theory in
answering the skeptic or that the skeptical challenge is even
relevant. Rather, the theory provides a well-developed example
59
Or they may be attempting to articulate dierent concepts or dierent

senses of the same content. For discussions of this possibility see BonJour
and Sosa, supra note 51, at pp. 3541; Williams, supra note 27, at pp. 186
188 (in Afterword to 2nd edn.).
60
H.L.A. Hart, The Concept of Law, 2nd edn. (Oxford: Oxford University Press, 1997), pp. 8291.
61
BonJour, Structure, supra note 34. Harman, supra note 36, also relies to
a signicant extent on internal coherence. Bonjour discusses several previous
coherence theories in Structure at pp. 212229. See generally Ken Kress,
Coherence, in Dennis Patterson (ed.), A Companion to Philosophy of Law
and Legal Theory (Oxford: Blackwell, 1999), pp. 533152.
345
of an antifoundational, internal theory; and the concept of

coherence, while almost certainly not the whole story, is relevant
at least at some minimum level to any theory whatsoever.62
Rather than nding some self-evident foundation on which
to ground knowledge, the coherence theory accounts for
knowledge in term of the coherence of a given set or system of
beliefs. A belief is justied to the extent it coheres with the set or
system of beliefs. The theory answers the skeptical challenge by
rejecting as myth the idea of linear justication, namely, that
each belief is justied by an independent succession of beliefs,
like cars on a train.63 Rather, our beliefs frequently stand in
mutual justicatory and inferential relations with each other,
and it is this network that provides warrant for accepting or
rejecting potential claims. The dependence (hence the defeasibility) of beliefs on each may be extreme (any belief depends
upon and may be defeated by any other or group of them
within the system) or, more plausibly, may be moderate in that
beliefs come in mutually supporting chunks or clusters.
BonJour articulates the following minimal elements for a
coherentist theory of justication. In addition to some level of
logical consistency64, the system must employ a sucient level
of inferential, evidentiary, and explanatory relations, evidentiary and explanatory relations being particularly important
types of inferential connections.65 Accordingly, coherence is
increased by the amount and the strength of the inferential
connections between component beliefs, and it is decreased by
the presence of unexplained anomalies.
The primary objection to the theory as explicated thus far is
that there could a number of extremely coherent, alternative
62
On the importance of coherence for rationality and intelligibility see

Davidson, A Coherence Theory of Truth and Knowledge, in supra note 27,
at pp. 137157.
63
Kornblith rejects the linear view as the argument-on-paper thesis.
Hilary Kornblith, Beyond Foundationalism and the Coherence Theory, in
Kornblith (ed.), supra note 41, at pp. 133134.
64
For a naturalist viewpoint, a requirement of complete consistency
would violate the ought-implies-can requirement; it would be virtually
impossible. See Cherniak, supra note 45.
65
Bonjour, Structure, supra note 34, at pp. 93101.
346
MICHAEL S. PARDO
systems without any contact with reality. Thus there is no reason

to think the beliefs justied in the sense of having any claim to
being true, which is precisely what the theory should tell us. To
meet this objection, BonJour adds in the requirement that
coherence is a dynamic not static aair, and that a system must be
continually receiving a sucient amount of input from the world
that must then be assimilated, causing varying degrees of response and occasional change in the system.66 Alternate systems
out of touch with reality will quickly come to lack the inferential
and explanatory relations when impinged upon by the informational input from the outside world. Systems of belief that are
more or less coherent given this input will be more or less justied,
as will the component beliefs, which will in turn be more or less
likely to be true. In others words, to oversimplify somewhat,
there would be a continual process of inference to the best
explanation67 in a global-belief sense.
Now, the coherence theory is generally seen as a failure to
the extent it attempts to answer the traditional regress problem
and respond to the possibility of radical skepticism. (Even
BonJour has conceded its failure to that end, and he has since
begun to advocate a version of foundationalism to account for
empirical knowledge.68) It failed primarily because coherence
cannot do all the epistemological work by itself.69 Even if
66
Id. at pp. 139146.

See Gilbert B. Harman, The Inference to the Best Explanation,
Philosophical Review 74 (January 1965), pp. 8895; Peter Lipton, Inference
to the Best Explanation (London: Routledge, 1991); see also Harman, supra
note 36, at p. vii (Coherence is a matter of explanation).
68
BonJour and Sosa, supra note 51, at pp. 6096. Michael Williams
argues for a middle way between foundationalism and coherence, contextualism, see Unnatural Doubts: Epistemological Realism and the Basis of
Scepticism (Princeton: Princeton University Press, 1996) and supra note 27,
at pp. 159172.
69
At least to the extent it attempts to show that justied beliefs are likely
to lead to truth in a realist, correspondence sense. One response, which
BonJour rejects, would be to posit a coherence theory of truth. BonJour,
Structure, supra note 34, at pp. 157188. But this would, as he recognizes, do
more harm than good by positing an implausible account of truth and
reality in order to t a problematic epistemological theory. The t should
go the other way. See Peacocke, supra note 25.
67
347
people (implausibly) could be aware of all or a sucient

number of their beliefs to make a coherence assessment, a
question would then arise as to whether an agent adequately
knew their own mental states, which would be necessary before
coherence could even be assessed. And even if these beliefs
could be suciently known the beliefs about the beliefs
(including the belief that the beliefs are known) would need to
be justied, and so on, and on.70 But, notwithstanding these
limitations, the coherence theory helps to reveal the holistic
(whether extreme or moderate) nature of rational, internal belief formation. Although BonJours theory rejects naturalism, it
resembles on a global scale what naturalized epistemology and
cognitive psychology reveal about how we assimilate and draw
inferences from a mass of evidence at the local level. Namely,
by schematically organizing a mass of information in a way to
maximize coherence with coherence being determined by
factors beyond consistency such as completeness (absence of
anomalies), explanatory and other inferential relations, simplicity, and so on.71 Jurors are just one example of this larger
phenomenon of drawing inferences to the best explanation.72
From within the naturalist camp, motivated in part by the
failure of internalist theories, including coherentism, to answer
the traditional skeptical challenge, reliablism seeks to refocus
epistemological discussion onto the question of which processes,
methods, practices, etc., from an external perspective, are likely
to lead to objectively true belief, and to explain justication and
70
So the regress again arises. BonJour originally posits a doxastic

presumption to stop this regress; essentially, justication rests on a
conditional presumption that we adequately know the content of our own
thoughts. See BonJour, Structure, supra note 51, at pp. 101106. But he
now explains further problems with even this adjustment. Id. at pp. 56
59.
71
See, e.g., John H. Holland, Keith J. Holyoak, Richard E. Nisbett, and
Paul R. Thagard, Learning Inferential Rules, p. 359, and Richard Nisbett
and Lee Ross, Judgmental Heuristics and Knowledge Structures, p. 282,
both in Kornblith (ed.), supra note 41.
72
See, e.g., Nancy Pennington and Reid Hastie, A Cognitive Model of
Juror Decision Making: The Story Model, Cardozo Law Review 13 (1991),
p. 519.
348
MICHAEL S. PARDO
knowledge in that manner.73 Reliabilism, thus, seeks to contain

the internalist requirement of an agents being aware of the relevant factors (having evidence or reasons) as being just one of the
potentially many ways that a true belief could be non-accidentally true and hence qualify as knowing.74 One way to show a
belief was reliably produced or is reliably accepted is for the agent
to be able to provide the justifying evidence or reasons that make
it likely to be true. But reasons are not the only way to account for
knowledge; reliability allows one from an external perspective to
see an agents true belief as not produced by accident, but rather
as expected or predictable based on what the external observer
knows about the reliable connection.75
Goldman has espoused the most developed and recognized
reliabilist account, and therefore it is his theory on which I
focus.76 A simple reliabilist theory that a belief is justied or
qualies as knowledge if it was caused in a reliable way does
not by itself tell us very much (other than that reliability is more
important that reasons). Goldman builds on this simple account by exposing that reliability is in a certain sense arbitrary
because it will always be subject to a variety of interests and
qualications. It is only with respect to a baseline (xed by
these interests and qualications) that we can assess whether a
belief was formed in a reliable way, whether the agent is justied, and whether the agent knows. In other words, Goldmans
examples show that reliability is subject to a generality
problem.
For example, consider perception. This is a (perhaps
the) generally accepted, relatively non-controversial way to
73
Goldman, Discrimination, supra note 51 (arguing this focus better

accounts for our commonsense use of know.) Goldman still recognizes the
traditional, skeptical question as legitimate but downplays its importance.
See Goldman, Epistemology, supra note 51, at pp. 2841.
74
And the reverse is true. The internalist theory purports to contain the
external: a reliable process of belief acceptance is one of the reasons an agent
could cite for why her belief is justied.
75
Again, think of Harts distinction between the external and internal
aspects of rules, supra note 60.
76
See the Goldman sources cited in supra note 51. See also Kornblith,
supra note 22, for a recent naturalized, reliabilist account.
349
form reliable beliefs. But does this mean that every belief
formed via perception is justied, and, if true, known? No. If
we want to know whether an agents belief is justied, we
want to know whether her perception produces beliefs that
are objectively likely to be true. And if her perceptual beliefs
are generally true, does this mean every belief she forms via
perception is justied, and, if true, known? No. We would
want to know under which conditions her perception produced mostly true beliefs (in good lighting, at a close distance) and when they did not (at night, without her glasses).
But if we keep specifying more detailed conditions, to sift the
reliable from the unreliable, eventually we will arrive at only
one case of perception, the very one we are trying to assess.77
This collapses the epistemological inquiries of justication
and knowledge solely into a question of whether the belief is
true. So there would be no point of inquiring into reliability
any more. In most cases (and this is primarily the case in the
juridical-proof context) we want to know whether a belief
was reliably formed in order to assess what do not know and
want to know whether the belief is likely to be true. In
short, there will always be some relativity to reliability based
on how close the reliability baseline generalizes the particular
case under examination.
In addition to generality issues, reliability inquiries also face
issues regarding relevant alternatives. Reliability turns on more
than whether a particular belief was caused by conditions that
make the belief true or likely to be true. To illustrate this point,
Goldman presented his famous barn example.78 Imagine an
agent with good eyesight who, driving in his car, passes a farm
and under good perception conditions sees a barn, and thus
believes and reports to a distracted passenger look, theres a
barn. The belief is true, he just passed a barn, and this fact
caused him to perceive he was passing a barn. So, does he know
it? Maybe. It depends, says Goldman, on other external factors,
77
See Goldman, Epistemology, supra note 51, at pp. 4951; Goldman,

What is Justied Belief?, supra note 51, at pp. 105130.
78
Goldman, Discrimination, supra note 51, at pp. 772773. For a similar
example involving thermometers see Goldman, Epistemology, supra note 51,
at p. 45.
350
MICHAEL S. PARDO
regardless of whether the agent is aware of them.79 Imagine

further the agent was traveling through an area where they just
love to make fake barn fronts (perhaps to trick passing
motorists), which from the road are indistinguishable from real
barns. The agent, however, did see a real barn, but it was the
only real barn in an area with hundreds of fake barn fronts.
Under these conditions, even though his belief is true and was
caused by what would normally be reliable circumstances, it is
only accidentally true that his belief is true in these circumstances because he would have formed the same belief even if he
saw a fake barn. So he doesnt know.80 Thus, for a belief to be
reliably generated (and hence, if true, knowledge) the agent or
process must be able to discriminate among relevant counterfactual situations that could potentially undermine the reliability assessment.81 In other words, an agent may qualify as
having knowledge of a belief only if the agent has the belief via
a method suciently sensitive enough that it would not generate the belief were the belief not (likely) true.82
Goldmans example can be translated into a pressing
realistic problem regarding eye-witness identications. Persuasive psychological literature suggests that even true identications made at lineups, show-ups, or photographic arrays
may be only accidentally true based on factors external to
the initial observations conditions regarding testing
79
Goldman is attacking simpler, pure causal theories of knowledge,

including his own, for failing to recognize this potential defeasibility. Discrimination, supra note 51.
80
While most would agree that the agent does not know, a more dicult
question is whether the agents belief is justied. From an internal perspective, the agent appears to be justied because he has what appears to be
good reasons and evidence (his perceptions) and no reason to believe he is in
a fake-barn rich environment. From an external perspective, however, the
agent may not be justied if justication is understood to be based on
objective reliability in the particular circumstances; he is just not a reliable
reporter in this area.
81
See also Harman, supra note 36, at pp. 142154 (discussing evidence
one does not possess).
82
This is oversimplied; there are some exceptions. See Williamson, supra
note 24, at pp. 147163.
351
procedures, conditions, and administrators.83 Specically,

even a true identication may not qualify as knowledge if the
witness would have picked the same suspect even if the
suspect was not the one the witness initially observed.
Before turning to Brandoms views on these issues, two related points sum up the contrasting theories discussed in this
and the previous sections. The internal and external perspectives dier on whether evidence and reasons or objective reliability should be the primary epistemic focus. Second, in many
situations they will converge (think again of Hart on the
external and internal aspects of rules); an agents reliability will
provide good evidence, a reason the agent could cite for a
challenged conclusion. The situations diverge when agents are
reliable but are either unaware of the reliability or believe
themselves to be unreliable, or vice versa.84
C. Reliability and Reasons
This section discusses ve implications that Robert Brandom

draws from the above-described debate between internal and
external theories in general and the rise of reliabilism in particular.85 Whereas BonJour and Goldman are primarily pursuing conclusions for their epistemological signicance,
Brandoms views arise as part of his larger project in the philosophy of language. Nevertheless, the implications reveal
important features of epistemological theorizing, features that
83
See, e.g., Gary L. Wells, Elizabeth A. Olson and Steve D. Charman,

Distorted Retrospective Eyewitness Reports as Functions of Feedback and
Delay, Journal of Experimental Psychology 9 (2003), pp. 4252. A strand in
the Courts Sixth Amendment jurisprudence attempts to deal with this
problem by providing defense counsel to observe and challenge these potential external factors. United States v. Wade, 388 U.S. 218 (1967); Gilbert
v. California, 388 U.S. 263 (1967).
84
In these situations, the reliabilist should win, at least from our perspective. In the legal context, when objective reliability and internal justication conict, the fact that a conclusion is more likely to be true is a better
reason than whether any one particular person or persons is internally
justied or believes themselves to be.
85
Brandom, Articulating, supra note 51, at pp. 97122; Making it Explicit,
supra note 50, at pp. 199229.
352
MICHAEL S. PARDO
will prove useful in the next section in discussing laws epistemic

practices. The following points concentrate on the relation
between reason-based internal theories and reliability-based
external theories. Brandoms primary conclusion is that reliability cannot replace reason-giving (or evidence-citing) as the
primary epistemological question. Indeed, reliability assessments must be understood as a type of reason-based activity. I
follow his labeling.
1. The Founding Insight
The founding insight of reliabilism, as discussed above, is the

recognition that one can have justied (i.e., in the sense of nonaccidental) true beliefs without having gone through a justicatory process of citing the evidence or reasons sucient for justication.86 The insight allows us to see two dierent senses of
justication: (1) a process of justifying, in which a belief has been
justied when it is shown to come about or to be accounted for
through reasoning or appeal to evidence; (2) a belief having a
positive justicatory status, that is, that it could be justied via
reasoning, that the agent is entitled to the belief. This second
sense arises from an observer external to the agent, with more
information, appealing to a reliability relation of which the agent
may or may not be aware in order to confer positive justicatory
status on the belief. The point of the founding insight: an agents
justifying a belief or judgment in sense one (appeals to reasons,
evidence) is just one way of achieving sense-two justication.
For example, consider a police ocer who has such an uncanny intuitive ability that she can almost always tell which
suspects are guilty the rst time she interviews them. Her intuition
is, by hypothesis, reliable in sorting guilty from innocent suspects. Yet she doubts these intuitions, does not put much weight
in them, and always allows further evidence to be gathered before
she forms any kind of judgment. She thus does not rely on the
86
Brandom, Articulating, supra note 51, at pp. 97102. The founding insight
thus is the ipside of the Gettier situations described supra. In those situations
an agent having a justied (in an internal, having-reasons sense) true belief is
not sucient for knowledge. The founding insight shows that having a justied (in an internal, having-reasons sense) belief is not necessary either.
353
reliability of her intuitions as a reason for her judgments. But she

communicates these intuitions to her partner, who does take
these intuitions as reliable evidence for whether particular suspects are guilty or innocent (shes almost always right, after all;
she is reliable). Thus, from the partners perspective, at the time of
the rst interview the ocer already knew whether a particular
suspect was guilty (even if the ocer wants to wait for conrming
evidence).
2. The Conceptual Blindspot
The concept of reliability provides a useful way to think about the

nature of justication and hence knowledge, but it cannot explain
another of knowledges primary components: beliefs.87 This is
the conceptual blindspot of reliabilism. Consider again the
intuitive ocer. She has knowledge because she is a reliable noninferential indicator of guilty suspects; it is just this ability that
makes her intuitive beliefs justied. But the concept of reliability
cannot explain why what she has are beliefs or even judgments
(or, if you prefer, the propositional content of those beliefs or
judgments). Like the intuitive ocer, such things as rusted iron,
thermometers, radar detectors, breathalyzers, parrots, and drugsning dogs may also be reliable non-inferential indicators of
such things as wet environments, temperature, speed, bloodalcohol level, recently uttered sentences, and narcotics.88 Yet
none of the latter possesses a propositionally contentful belief or
judgment, something that x that could even serve as a potential
87
Brandom, Articulating, supra note 51, at pp. 106110. An epistemologist

may object that this criticism is o the mark because it is simply not the job of
epistemology to provide a theory of beliefs; rather, this a job for philosophy of
mind or philosophy of language. This may be correct, but Brandoms criticism
nevertheless reveals potential problems for reliabilist accounts if one takes
beliefs to be a necessary component of knowledge, these accounts ascribe
knowledge to objects like thermometers that lack this necessary component.
88
Rust (a particularly nice one) and parrots are examples given by
Brandom. Id. On the essential normativity of belief, see Kim, supra note 41;
Donald Davidson, Thought and Talk, Inquiries into Truth & Interpretation
(Oxford: Oxford University Press, 1984), pp. 15570.
354
MICHAEL S. PARDO
candidate for knowing that.89 All of these, including the

ocer, are responding dierentially to the environment, but only
the ocer is applying concepts. That is, she possesses a proposition that occurs in the space of reasons;90 it is something that
can be seen as following inferentially from other premises and
leading inferentially to further conclusions, something consistent
with some propositions and incompatible with others.91 Any
propositionally contentful beliefs or judgments in the case of the
other examples are those of an external observer only not of a
potentially knowing agent. Thus, the reliability of the breathalyzer provides propositionally contentful reasons, but for an
external observer only not for the breathalyzer. In other words,
the ocers occupying a position in this inferential network of
reasons makes her a potentially knowing (in the propositional
sense) agent to begin with.92
89
Of course, some may be said to know how to do things, for instance,

detect narcotics. But the relevant knowledge under discussion, and the kind
relevant in legal-proof context, as discussed in the next section, is of the
propositional, knowing-that kind. And this requires the agent to possess a
belief or judgment with propositional content, something the intuitive ocer
possesses and the others do not. This does not mean that knowing that is
not a particular kind of knowing how. Indeed, this is Brandoms view.
90
See Sellars, supra note 21 and accompanying text. See also John
McDowell, Knowledge and the Internal, Meaning, Knowledge and Reality
(Cambridge, MA.: Harvard University Press, 1998), pp. 395413.
91
Brandoms primary project explains semantic content in terms of such
inferential relations. So far as I can tell, nothing Im arguing for in this article
necessarily turns on whether one accepts Brandoms larger, semantic project
as correct. See also Williams, Problems of Knowledge, supra note 36, at p. 36
(This understanding consists in the human reporters grasp of what follows
from his reports, what is evidence for them, how they might be challenged,
how challenges might be met, and so on. Propositionally contentful utterances
and genuine beliefs are, in Brandoms phrase, inferentially articulated. They
are essentially the sorts of things that can function as reasons and for which
reasons can be demanded and given. If this is even roughly right, there must be
something misleading about reliabilist intuitions.).
92
In a similar vein, Williamson argues that evidence is propositional, and
a proposition can be evidence for one only if one grasps the proposition.
Supra note 24, at pp. 184208.
355
3. Goldmans Insight
This insight ows from the fake-barn example discussed

above.93 This example demonstrates that one can have both (1)
good reasons and evidence for a true proposition, and (2) an
unproblematic causal connection between the propositions
truth and an agents coming to believe the proposition (in this
case a direct, non-inferential perception in good conditions)
and still not have knowledge.94 These conditions are not sucient because features of the environment, external to the
agents awareness, can undermine the agents belief and thus
disqualify it as knowledge. In others words, these conditions
show that, even though the agent has good reasons and evidence and the belief was formed with ideal causal antecedents,
it is still just accidentally true given the circumstances in which
it was formed (i.e., the prevalence of fake barns). The potential
defeasibility is Goldmans insight; however, Brandom argues
that it reveals a more signicant implication.
4. The Naturalistic Blindspot
Goldmans example, Brandom argues, shows that the natural

world (regardless of whether the facts are described in commonsense or scientic terms) cannot determine reliability (hence
justication or knowledge) because objective probability can be
specied only relative to a reference class and nothing in the
way the world is privileges one of those reference classes.95
Rather it is our interests and attitudes that do so.96 Returning to
the fake barns, recall that the unfortunate agent was denied
knowledge because of the prevalence of fake barns in the county;
93
See supra at pp. 3132.

Brandom, Articulating, supra note 51, at p. 115; Making it Explicit,
supra note 50, at pp. 209210.
95
Brandom, Articulating, supra note 51, at pp. 112, 116.
96
This is so in the full range of real-world situations to which epistemological theories apply, as opposed to the carefully idealized situations
described in articially restricted vocabularies to which concepts of objective
probability are applied in the special sciences. Id. at pp. 112113. And, it
probably goes without saying, the epistemological issues in the law concern
the full range of real-world situations.
94
356
MICHAEL S. PARDO
he was an unreliable reporter of barns in the county. But suppose

that in the state in which he and his passenger were traveling real
barns outnumber fake barns by a large number; he is thus now a
reliable reporter in the state. But suppose that fake barns out
number real ones in the country; he is now unreliable. Back and
forth as the relevant jurisdiction expands, or collapses.97 (And all
along its the very same belief and report.) Now, of course this
example is extreme, but it is not meant to support an empirical
claim that we very often have these neatly nested situations with
alternating assessments of reliability. Rather, the articial
example is making the conceptual point that there are always
some reference classes with respect to which one is reliable. [original emphasis]98 And unreliable. What is going on as the
jurisdiction expands and the agent ip-ops between being reliable and unreliable is not some natural fact about the world
regarding the reliability of the agents report; what is going on is
that as the boundary conditions (which can be gerrymandered in
all sorts of bizarre ways) of the reference class change so do the
inferences drawn from the original report. Because we (often
tacitly via our interests and attitudes) provide the boundary
conditions:
[a]n argument place remains to be lled in, and the way the world
objectively is does not, by itself, ll it in. Put another way, the reliability
of the belief-forming mechanism (and hence the status of its true products
as states of knowledge) varies depending on how we describe the mechanism and the believer.99
If Brandom is right here (and I think he is), then a purely naturalistic, descriptive account of objective reliability (therefore of
justication and knowledge) cannot replace conceptual, normative epistemological theorizing in accounting for knowledge.
It is this conceptual, normative dimension of knowledge that
97
But recall that trying to dene the reference class can collapse to the
very belief or report under consideration, and thus would reduce the reliability inquiry to a truth one. See supra pp. 3031.
98
Brandom, Making it Explicit, supra note 50, at p. 11.
99
Brandom, Articulating, supra note 51, at p. 116. Kornblith points out,
however, that sometimes the interests pick the animals. Kornblith, supra
note 22, at pp. 6369.
357
provides non-empirical work for the epistemologist to do. And it

does so as well for those theorizing about the unavoidable epistemological aspects of evidence law. Indeed, Brandom goes further and suggests that reliability itself must be understood from
within this dimension, namely, as a particular type of social,
inferential practice. This is the implicit insight of reliabilism.
5. The Implicit Insight
The implicit insight synthesizes the founding and Goldmans

insights and avoids the conceptual and naturalist blindspots by
focusing on the external observer, that is, the third-party
assessing reliability, justication, and knowledge.100 In other
words, us. The ascription of knowledge involves a three-part
social, inferential structure, corresponding to the three components in the traditional justied-true-belief framework. First,
the assessor attributes to another a propositionally contentful
doxastic101 commitment, a belief or judgment or report
that. Second, in assessing whether the commitment was
reliably generated and whether it is justied the assessor is
examining whether the agent is entitled to the commitment.
Third, in conferring entitlement and taking the commitment to
be a genuine case of knowledge, the assessor is endorsing the
commitment oneself, that is, taking it to be true. So what the
assessor is doing is using the reliability assessment (entitlement)
as evidence or a reason for the truth of the commitment. In
other words, when an assessor concludes that an agent has
knowledge, or at least is epistemically justied, the assessor can
100
Brandom, Articulating, supra note 51, at pp. 117122. In Making it

Explicit, supra note 50, at p. 217, the subheading speaks for itself:
Attributing Reliability is Endorsing an Inference: An Inferentialist Middle
Way between Justicatory Internalism and Reliabilist Externalism.
Knowledge, in Brandomese, is thus a complex hybrid deontic status. Id.
at p. 201.
101
The relevant distinction here is between doxastic (or credal) mental
states, which involve intellectual assessment (e.g., believing likely, doubting,
and being certain) toward a proposition and conative (or optative) mental
states, which involve mere preferences for or against a proposition. See
Goldman, Epistemology, supra note 51, at p. 14.
358
MICHAEL S. PARDO
then rely on that commitment as a premise in her own reasoning.102 Thus, this social, inferential, reason-based practice
contains the reliability inquiry and not the other way around.
The reason-based practice could exist without inquiring into
reliability (entitlement could be ascribed for other reasons, like
having good internal reasons103); the reliability inquiry could
not replace the reason-based practice because it can only be
understood as occurring within that practice.104
In sum, in ascribing knowledge the person doing the
ascribing is endorsing an inference from a commitment to an
entitlement of that commitment. (Internal and external theories
102
Brandom, Articulating, supra note 51, at p. 107, (attribution of reliability (when conjoined with a claim about what the reliable one believes or
is inclined to say) inferentially underwrites a conclusion. [original emphasis]). Within Brandoms larger project, the analysis gets more complicated at
this point. One other thing going on is the agent is held responsible for her
commitments; certain inferences are required or not required, compatible or
incompatible. And this is so based on two dierent dimensions, the agents
other ascribed beliefs and the interpreters own commitments. The interpreter must keep score in two sets of books. See Making it Explicit, supra
note 50, at pp. 180199.
103
But note that conferring entitlement this way rather than based on
objective reliability makes one less likely to endorse the truth of the commitments. One can imagine someone with all sorts of good evidence and
reasons but not take this as a sign of truth because one (the external observer) has better, contrary evidence and reasons that the agent does not
have.
104
Brandom, Articulating, supra note 51, at p. 107, puts it this way:
A community precluded from giving reasons for beliefs cannot so much as
have the concept of reliability nor, accordingly (by anyones lights), of
knowledge. Its members can serve as measuring instruments that is, reliable indicators both of perceptible environing states and of one anothers
responses. But they cannot treat themselves as doing that. For they do not
discriminate between reliable indication and unreliable indication. Absent
such discrimination, they cannot be taken to understand themselves or one
another as indicators at all. For the notion of a correlation between the
states of an instrument and the states that it is a candidate for measuring is
unintelligible apart from the assessments of reliability. Although they are
reliable indicators, they do not in fact rely on their own or one anothers
indications, since they draw no conclusions from them [original emphases].
359
dier about whether the potentially knowing agents must

themselves endorse the inference.105) This inferential structure
also provides insight into the juridical-proof context. To which
I now turn.
IV. EPISTEMOLOGY AND EVIDENCE LAW: THREE
INTERSECTIONS
Why talk about knowledge or epistemic justication at all in the

evidence-law context? Why not focus solely on truth and accuracy? Factual accuracy is the primary goal of laws epistemic
practices; why complicate matters? The federal rules of evidence,
after all, describe their purpose as the ascertainment of truth not
the ascertainment of knowledge or justication.106 With regard
to knowledge, the planted-cocaine hypothetical in section I (and
iterated in section II) provides a reason: truth may be accidental,
knowledge is not; a fair and just legal system wants the latter.107
To the extent one is dissatised with the outcome in the example,
the dissatisfaction comes from the failure to establish knowledge
(the true conclusion was accidental). Knowledge or at least
some connection between proered evidence and arrived-at true
conclusions is thus an ideal toward which laws evidentiary
practices strive. The law seeks to rely on juries knowledge (and
jurors likewise rely on witnesses knowledge). While knowledge is
an ideal, we often are not in a position to judge whether factnders have knowledge because we often do not know whether
their conclusions are true. Thus, the concept of epistemic justication becomes of primary importance.
The law decides whether to rely on what a factnder has done
by assessing primarily epistemic justication. If we knew the
truth to all the material factual questions at issue in a trial, there
105
Note also that reasons may play a normative, justicatory role, a

causal role, or both; but the reasons that justify a commitment need not be
those that caused it.
106
Federal Rule of Evidence 102.
107
For a dierent argument why, namely, that knowledge explains what
evidence is see Williamson, supra note 24, at chapters 9 and 10. Also,
knowledge may provide greater explanatory power than truth in many situations. See id. at pp. 6263.
360
MICHAEL S. PARDO
would be no need for a trial. 108 In taking a jury to be epistemically

justied in its conclusion, we take that entitlement as a sign of its
truth; and we take a jury to be epistemically justied in a conclusion in just those situations where we think it the case that,
from an external view, the conclusion is suciently likely to be
true (given the applicable standard of persuasion). In terms of the
implicit insight of reliabilism (discussed above), we are endorsing
(or withholding) an inference from a commitment (the factnders conclusion) to entitlement of the commitment.
In addition to justication, the concept of belief another
of knowledges components does important explanatory
work as well. Jurors are not pieces of litmus paper, thermometers, or machines computing conjunctions of objective
likelihood ratios. Meaning, they are not just reliable indicators who respond dierentially to proered evidence in a way
that allows us to sort the guilty from the innocent, the
worthy claims from the unworthy, the true propositions from
the false. This is a good thing because such mechanical
sorting while it might be nice if jurors (or some other
device) could do it is virtually impossible. Its virtually
impossible for (at least) three reasons. First, the world is too
complicated to specify in advance all the potential combinations of evidence that would and would not warrant the
relevant material inferences. Second, the signicance of
proered evidence, and therefore which inferences it does and
does not warrant, will be shaped in important ways by the
stories the parties are telling (their theories of the case) and
the subsidiary hypotheses within these stories and theories.109
Jurors will be continually interpreting the evidence in light of
these theories, and vice versa.110 Third, much of the factual
108
John H. Wigmore, The Problem of Proof, Illinois Law Review 8

(1913), pp. 7980; Judith Jarvis Thomson, Liability and Individualized
Evidence, Law and Contemporary Problems 49 (1986), p. 213 (jurors act in
awareness that reliance will follow). An exception is when there is suppressed, highly probative evidence.
109
See Allen, sources cited in supra note 49. For an example of this
occurrence, see Robert P. Burns, A Theory of the Trial (Princeton: Princeton
University Press, 1999), pp. 103123.
110
Id. at pp. 155182. Jurors are sense-makers. Id. at p. 149 n. 106.
361
subject matter jurors are asked to decide involves the application of vague concepts such as negligence, obscenity, or
malice, or even may itself involve the ascription of meaning to vague language, for example, in a contract (based on
parol evidence).111 The point here is that jurors must draw
complex inferences (and inferences from inferences and)
and to be able to do so they must (1) already possess a rich
background of propositionally contentful beliefs, which can
then serve as anterior, auxiliary premises from which to draw
multi-premise inferences; (2) interpret the proered evidence
(form propositionally contentful beliefs about it), which can
then serve as further premises from which to draw inferences
based on the background premises; in order to (3) infer
propositionally contentful conclusions, which can then serve
as potential candidates for knowledge.112 This rich inferential
practice, and not a general theory speciable in advance,
determines what does and does not follow from what, and
what is or is not relevant to what.113 In sum, the generation
of non-accidentally true conclusions is a fundamental goal of
the proof process, and the path to that goal is through
factnders as potentially justied believers, and, when suc111
See Allen and Pardo, supra note 43, at pp. 17781789.

Much of this occurs tacitly. And these practices are, of course, governed by all sorts of norms (specialized and commonsense) specifying what
is and what is not acceptable to infer from what. See Tillers, supra note 18.
But they will frequently involve complex inferential judgments. Adrian A.S.
Zuckerman, Law, Fact or Justice?, Boston University Law Review 66
(1986), p. 487. These generalizations may be commonsensical, culturally
based, experience based, or specialized-knowledge based. See Terence J.
Anderson, Wigmore meets The Last Wedge, in William Twining and Ian
Hampshire-Monk (eds.), Evidence and Inference in History and Law:
Interdisciplinary Dialogues (Evanston, Illinois: Northwestern University
Press, 2003), pp. 140215.
113
In other words, relevance and probative value are retail not wholesale
aairs. See J.L. Montrose, Basic Concepts in the Law of Evidence, Law
Quarterly Review 70 (1954), pp. 537541. Thus the problem of faulty
inferences cannot be eliminated with general rules. Witch trials had elaborate procedural protections, but they were futile when combined with
common assumptions about which facts putatively reliably indicate witchcraft. See Weinstein, supra note 3, at pp. 232234.
112
362
MICHAEL S. PARDO
cessful, as potential knowers the heartland of epistemological theorizing.

Like the above legal system-factnder relation, the jury-witness relation replicates this inferential structure on another level
within the trial itself but with an important dierence. While
the legal system-factnder relation is itself in some sense a type
of free proof system in determining whether to endorse the
inference from commitment to entitlement114, the jury-witness
relation is not. The rules of evidence shape and restrict potentially knowing agents (witnesses) commitments in ways
deemed ex ante to be generally reliable. Most obviously, by
requiring that, save certain exceptions115, witnesses testify in the
language of perception, that is, that their commitments be
tied as closely as possible to noninferential perceptual reports,116 and by excluding the types of hearsay deemed to be
generally unreliable.117 But within this shaped setting, factnders then ultimately judge the credibility of witnesses and
decide whether to endorse the inference from commitment to
entitlement. And if they do endorse this inference, the commitment then becomes a premise in their own reasoning in
inferring the factual conclusions they are asked to decide, their
commitments, which takes us back to the level discussed above.
This section next examines three issues in more depth: the
laws implicit epistemological commitments and their conse114
One limitation on whether to endorse factnder conclusions is the

constitutional commitment, under the Double Jeopardy Clause, not to engage in epistemic evaluation when the factnder acquits in a criminal case.
See Green v. U.S., 78 S. Ct. 221 (1957); Benton v. Maryland, 396 U.S. 784
(1969) (incorporating Double Jeopardy Clause under the Fourteenth
Amendment).
115
For example, those allowing for expert opinions, Federal Rules of
Evidence 702703, lay opinions, Federal Rule of Evidence 701, and the
hearsay exemptions and exceptions, Federal Rules of Evidence 801(d), 803
804, 807.
116
Also this makes them easier to get at on cross-examination because the
reliability details are more external and less internal to the inferential network in the witnesss mind. But this is a matter of degree. To testify at all,
the witness must form beliefs and conclusions about the perceptions, at the
very least what they are perceptions of, which is inferential.
117
See Federal Rule of Evidence 802.
363
quences, the concept of probative value, and the scope of review of First Amendment facts.
A. Factnders and Knowing Agents
Proered evidence, more than any other factor, determines trial

outcomes.118 This makes epistemological theorizing not only
theoretically relevant but also practically important for understanding factual decisionmaking at trial. In general, such theorizing usefully allows us to conceptualize how jurors and judges
process evidence and infer conclusions, how laws various evidentiary rules and procedural practices aect those processes in
forming true conclusions, and how the law evaluates the epistemic performances of factnders.119
118
See Harry Kalven, Jr. and Hans Zeisel, The American Jury (1966);
Valerie Hans and Neil Vidmar, The American Jury at Twenty-Five Years,
Law and Social Inquiry 16 (1991), p. 323. For a general discussion and
interpretation of the empirical literature on juries see Burns, supra note 109,
at pp. 141154.
119
There is some additional complexity here, which I will largely pass
over, based on the fact that jury ndings involve group judgments rather
than individual ones. Im avoiding any tricky metaphysical issues about
whether groups have beliefs, Cf. Frank H. Easterbook, Statutes Domains,
University of Chicago Law Review 50 (1983), p. 533 (skepticism toward
legislative intentions), and referring either to individual juror beliefs or jury
conclusions as potential candidates for knowledge. The epistemological
distinction here is between social and primary epistemology. I am also, for
simplicity sake, avoiding potential situations where the two conict; where,
for example, group knowledge goes up based on evidence but the knowledge
of individual members goes down. For more on these diering projects see
Goldman, Knowledge, supra note 25; Alvin I. Goldman, Pathways to
Knowledge: Private and Public (Oxford: Oxford University Press, 2002).
Also, to the extent that initial individual assessments predominate in outcomes, and therefore deliberation has a less signicant eect, primaryepistemological issues are crucial independent of social-ones. See Robert P.
Burns, A Conservative Perspective on the Future of the American Trial,
Chicago-Kent Law Review 78 (2003), p. 1330 (Deliberation, though signicant, is less important than the encounter of the individual juror with the
evidence. citing Valerie P. Hans and Neil Vidmar, Judging the Jury (1986),
p. 110). Of course, this point applies only to the social-knowledge issues
involved with deliberation; social epistemology is obviously relevant to both
how jurors develop the background knowledge they bring to court and the
social atmosphere of the trial itself.
364
MICHAEL S. PARDO
On a supercial level, the internal and external epistemic

viewpoints (discussed above) illuminate many features of the
proof process. As already mentioned, juror processing of evidence operates at the local level the way the internalist,
coherence theory of justication does at the global level,
namely, the continual development of more or less coherent
holistic explanations of the evidence.120 Recall one initial
objection to this account of justication is its potential nonresponsiveness to outside information, the possibility that one
could develop coherent theories or stories without much connection to reality. Many of features of the proof process, then,
can be seen as structuring the informational input that must be
explained in ways that are deemed ex ante to be reliable, in
touch with reality. This explains, obviously, the evidence rules
that exclude evidence on truth-conducive grounds, either because it is irrelevant, unreliable, or potentially confusing or
misleading. It also explains features such as cross-examination
(and hence excluding certain forms of hearsay), which allow
parties to continually disrupt the putative coherent stories
parties are telling with informational demands from outside
it.121 Finally, and perhaps less obviously, it also explains features such as the constitutional right to the eective assistance
of counsel: criminal defendants have the right in order to ensure
reliable outcomes,122 that is, ones the legal system and hence
society can rely on (endorse). 123
Pressing more deeply, one way of applying epistemological
theory to this situation is to examine the extent to which these
rules or practices do indeed lead to truth. This method would,
for example, ask general questions from an external perspective
about (1) the general reliability of types of evidence in warranting desired inferences; (2) the epistemic competence of
120

See Burns, supra note 109 at pp. 5967.
122
See Strickland v. Washington, 466 U.S. 668 (1984) (concluding that
reliability is the purpose of the right).
123
And outside of the proof process reliability also explains standards
such as probable cause and reasonable suspicion in Fourth Amendment
analysis. See Illinois v. Gates, 462 U.S. 213 (1983) (probable cause); Florida
v. J.L., 120 S. Ct. 1375 (2000) (reasonable suspicion).
121
365
judges to apply the secondary rules governing how and when to

employ the primary rules governing the admissibility of evidence; (3) how successful jurors are at properly interpreting
kinds of evidence.124 Another way of applying this theory, and
the tack I take in this section, is to examine the epistemic
commitments that law itself makes and the epistemic demands
it makes on jurors.125 In other words, how the law goes about
determining when jurors are entitled to their epistemic commitments, that is, when the law takes them as having knowledge.
The epistemological discussion in section III now provides
a vocabulary for (1) illuminating and discussing how law
ascribes knowledge, (2) comparing those practices along both
historical and comparative dimensions, and (3) critiquing
other accounts of these practices that focus on epistemic
issues.
First, with respect to jury conclusions (commitments),
federal law adopts a rather systematic form of weak internalism. That is, it confers entitlement (epistemic justication)
so long as jurors had cognitive access to and could cite the
reasons justifying a particular conclusion to the relevant
burden of persuasion.126 It is internal because the law for
the most part measures performance (justication) based on
124
Allen and Leiter employ this approach in discussing character evidence, demeanor, and probabilistic evidence, see supra note 12.
125
A methodological point: I take this tack to be roughly consistent with
what Coleman and Leiter have expressed about the role of philosophical
theory in law, namely, that philosophical theories give explanations or
justications for practices; thus, criticism of such theories generally is not
directed at the practices themselves but at the way of looking at or understanding the practice the theories engender. See Jules L. Coleman and Brian
Leiter, Determinacy, Objectivity, and Authority, University of Pennsylvania Law Review 142 (1993), p. 572. Of course, the acceptance of a way of
looking at a practice can then cause us to revise those parts of the practice
that deviate from the accepted way of looking. In other words, the process
resembles the GoodmanRawls notion of reective equilibrium.
126
Recall, though, by this point the law has already made external,
reliability judgments about which information to give the jury.
366
MICHAEL S. PARDO
the evidence presented to the jury, within their cognitive

landscape.127 (Were the law only concerned with epistemic
assessment, it could, for example, assess acquittals in criminal
cases, and also consider external, perhaps excluded, evidence
in determining whether juries reached accurate verdicts.) It is
weak because the law demands only that the jury could
cite justifying reasons, not that they do so, nor need there be
any showing that they did indeed arrive at their conclusions
based on the justifying reasons, either causally or after the
fact in justifying it to or among themselves. Recall the
founding insight of reliabilism (discussed above), this is prima facie a perfectly acceptable epistemic stance to take
being able to justify ones beliefs by citing the justifying
reasons is only way for them to acquire positive justicatory
status.
This weak internalist stance is reected in a number of features. On the civil-procedure side, the standards for summary
judgment and judgments as a matter of law require only that
the jury not be able rationally to form a coherent explanation
of the evidence that favors the nonmoving party.128 On the
criminal-procedure side, a defendant challenging the suciency
of the evidence of a conviction likewise needs to show that no
rational jury could plausibly conclude that the evidence proved
127
An exception would be granting postjudgment or postconviction relief

based on newly discovered evidence.
128
Federal Rules of Civil Procedure 50(a), 56(c); Anderson v. Liberty
Lobby Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986). For recent criticism of these decisions for, among other reasons, the
lack of guidance they provide lower courts see Arthur R. Miller, The Pretrial Rush to Judgment: Are the Litigation Explosion, Liability Crisis,
and Eciency Cliches Eroding Our Day in Court and Jury Trial Commitments?, New York University Law Review 78 (2003), p. 982. Whether
factnders can rationally form such an explanation in favor of the nonmoving party will depend on the plausibility of the moving partys explanation. See Allen, sources cite in supra note 49. See also Fleming James, Jr.,
Suciency of the Evidence and Jury-Control Devices Available Before
Trial, Virginia Law Review 47 (1961), p. 218.
367
his guilt beyond a reasonable doubt.129 The inferential processes of jurors do not factor in; indeed they are prohibited
from factoring in. Specically, the weak internalist position is
also reected in Federal Rule of Evidence 606(b), which precludes inquiry into juror reasoning processes, and in the irrebuttable presumption that jurors follow all instructions.130
Second, the weak internalist position the law instantiates
diers historically and among alternative modern systems. For
example, John Langbeins discussions of late-seventeenth to
mid-eighteenth century jury trials reveal a much stronger internalism at work. There were frequent questions, comments,
and collaboration between judges and jurors on their reasoning processes in cases, with judges refusing to accept verdicts if the jurors explanations were deemed inadequate.131
The judge would probe juror reasoning to identify the jurys
mistake and correct it.132 One judge in 1697 explained, The
jury were very shy of giving a reason for their verdict,
thinking that they have an absolute, despotic power, but I did
rectify that mistake, for the jury are to try cases with the
129
Jackson v. Virginia, 443 U.S. 307, 324 (1979) ([n]o rational trier of
fact could have found proof of guilt beyond a reasonable doubt.). There is
no epistemic position taken at all when the jury acquits in a criminal case, or
alternatively, the jury automatically counts as having knowledge. While this
ban arose primarily for political and pragmatic reasons, see Green v. U.S.,
78 S. Ct. 221, 223 (1957) (the State with all its resources and power should
not be allowed to make repeated attempts to convict an individual for an
alleged oense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity), it is still possible and valuable, given that knowledge is a goal of the
trial, to describe and evaluate in epistemic terms even those features that
arose for other reasons.
130
Richardson v. Marsh, 481 U.S. 200, 211 (1987) (The rule that juries
are presumed to follow their instructions is a pragmatic one, rooted less in
the absolute certitude that the presumption is true than in the belief that it
represents a reasonable practical accommodation of the interests of the state
and the defendant).
131
John H. Langbein, Historical Foundations of the Law of Evidence: A
View from the Ryder Sources, Columbia Law Review 1168 (1996), pp. 1190
1202.
132
John H. Langbein, The Criminal Trial Before Lawyers, University of
Chicago Law Review 45 (1978), p. 294.
368
MICHAEL S. PARDO
assistance of the judges, and ought to give reasons. . . .133

The historical shift is one from strong to weak internalism. In
the former a conclusion is epistemically justied only if the
jury possesses and if challenged provides justifying reasons; in
the latter it is justied if it is possible that a rational jury
could provide justifying reasons. They are dierent explanations of when the law endorses the inference from commitment to entitlement, when it will rely on jury conclusions,
when it takes them to know. Likewise, the spectrum from
strong to weak internalism sheds light on modern systems,
depending on the epistemic demands they make on factnders.
Unlike the epistemic demands made on jurors discussed
above, lower courts in France and Italy face strong-internalist
demands: the personnel are trained ocials, whose decisions
even on questions of fact have to be reasoned and are subject
to regular review by and appeal to higher authority.134
And, to a lesser extent, the U.S. system does place more
demand on judges as factnders as opposed to juries by
133
Langbein, supra note 131, at p. 1191 (quoting Chief Justice Holt in

Ash v. Ash, Comb. 357 58, 90 Eng. Rep. 526 (K.B. 1697).
134
Twining, Rethinking, supra note 12, at p. 181. This is obviously
facilitated by the fact that more of the trial is submitted on paper rather than
in open court and, therefore, there is not much dierence in how lower and
higher courts see evidence. But the signicant point for my purposes is the
epistemic demand that justicatory reasons be provided. Also, there is
perhaps some irony that, in comparing the epistemic merits of legal proof
processes and concluding that inquisitorial civil-law systems are superior to
adversarial common-law ones, Goldman omits the fact that inquisitorial
systems may be making unnecessary epistemic demands on factnders.
Goldman, Knowledge, supra note 25, at pp. 272314. He is, after all, the
philosopher best known for advancing the view that they are unnecessary.
This is not a criticism; his inquiry is comparative and it may be that the
systems that make those demands are epistemically superior.
369
requiring judges to list the individual found facts that underlie

their conclusions.135
Finally, the epistemological discussion in section III provides
a vocabulary for examining other accounts of laws epistemic
practices. Scott Brewer, for example, provides a sophisticated
and erudite philosophical explanation and rational reconstruction of how jurors reasoning processes work when they
defer to scientic expert testimony.136 According to Brewer
(who is applying the philosophical views of Larry Laudan137),
the scientic conclusions testied to in court are reticulated
inferences, that is, they result from a number of competing
cognitive norms, namely, those concerning the aims, methods,
and judgments of persons trained in a given eld.138 To make
an epistemologically non-arbitrary choice among competing well-credentialed experts, then, jurors must understand
these cognitive norms but, given that they lack the necessary
training, they dont, therefore their choices are epistemologically arbitrary and we have no reason to believe even a true
belief was arrived at other than by accident.139 In arriving at
135
Federal Rule of Civil Procedure 52(a) (the court shall nd the facts
specially and state separately its conclusions of law thereon). Thus any
demands for more special verdicts or jury interrogatories are demands for a
stronger form of epistemological internalism. See, e.g., Lars Noah, Civil
Jury Nullication, Iowa Law Review 86 (2001), p. 1601; Andrew D. Leipold,
The Problem of the Innocent, Acquitted Defendant, Northwestern University Law Review 94 (2000), p. 1297; Mark S. Broclin, Accuracy, Eciency, and Accountability in the Litigation Process The Case for the Fast
Verdict, University of Cincinnati Law Review 59 (1990), p. 15. For an
argument for more stringent review of jury conclusions in general see Albert
W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory
Challenges, and the Review of Jury Verdicts, University of Chicago Law
Review 56 (1989), p. 153.
136
Brewer, supra note 5, at p. 1567. Brewers model applies not only to
juror decisions but to judicial gatekeeping functions as well. My focus is on
the model as it applies to jury conclusions not to decisions about questions
of admissibility. Brewers model has considerable force when applied to the
latter.
137
Larry Laudan, Science and Values (University of California Press,
1984).
138
Brewer, supra note 5.
139
Id. at 16701671.
370
MICHAEL S. PARDO
this conclusion, Brewer reconstructs jurors mental processes as

engaged in practical reasoning to determine what they epistemically ought to do, what they ought to believe. His model
begins with the following step:
(1) If an experts scientic process (P) produces a judgment (j) that rises to the
level of condence of the appropriate standard of epistemic appraisal specied by the practical reasoner (call the specied level L), then the judgment
that P produces is true for given practical purposes (call these purposes R).140
Brewer contends that when jurors are faced with conicting

scientic expert testimony they will not be able to make this
determination, and this defect in the rst step will cascade
through the rest of the steps (2)(10), rendering the whole
chain arbitrary, from an epistemic point of view.141 From
this putative epistemic arbitrariness, Brewer infers larger
conclusions about the proof process in general: such decisions by jurors are illegitimate because they violate the norm
of intellectual due process, which requires that decisions
made by the legal system not be made in an epistemically
arbitrary fashion.142
As may already be clear, Brewers analysis makes a
problematic epistemological assumption in inferring epistemic
arbitrariness from the failure to satisfy his model. But rst,
the model itself varies in important ways from what it purports to be modeling. With regard to jurors, the model best
captures reality in those narrow situations where competing
expert testimony is the only evidence oered on a factual
140
Id. at 1647. The rest of the steps are
(2) If j is true for R, then if a practical reasoner has R (and has no other
inconsistent practical purposes), then that reasoner ought to infer j. (3) If
a practical reasoner ought to infer j, then j. (4) P produces judgments that
satisfy L. (5) j is the result of P. (6) j is true for R. (7) If a practical
reasoner has R (and has no other inconsistent practical purposes), then
that reasoner ought to infer j. (8) The practical reasoner has R (and has
no other inconsistent practical purposes). (9) The practical reasoner
ought to infer j. Therefore, (10) j.
141
142
Id. at 1671.
Id. at 16721679.
371
question that must be decided one way or the other by the

jury. Not to all scientic expert testimony put before the
jury.143 Often other evidence will be introduced on the given
element or question, in which case jurors may simply ignore
the expert testimony (as canceling each other out) and decide
based on the other evidence. Or, alternatively, the issue on
which the experts testify may be relevant to a cause of action
but a nding one way or the other may not be necessary to
the jurys conclusions motive is one example. In which case
jurors may once again simply ignore the conicting testimony. But even when a nding is necessary and the only
evidence is scientic expert testimony, the conclusions Brewer
draws may still not be warranted. In step one of the model,
the appropriate standard of epistemic appraisal is not just
the jurors; it is the burden of proof. And if jurors cannot
rationally determine which testimony is more plausible based
on the expert testimony (which by hypothesis is the only
evidence on the issue), then it is not clear why the issue
should not just go against the party with the burden rather
than forcing jurors to decide and declaring what they do
decide arbitrary. Related to this is Brewers assumption that
jurors must rise to the epistemic demands made by the
parties evidence rather than placing the epistemic responsibility on the parties who have great leeway in presenting
their cases and in the level of generality at which they attempt to prove them to present cases in a manner in which
knowledge can be conveyed. The only exception might be
cases where the law requires parties to present certain kinds
of scientic evidence, for example, to prove causation in a
143
Brewer refers to situations where competing claims are put before the
jury as actual competition, and he refers to situations where competing
scientic evidence could be oered but is not as implied competition. Id. at
1595. My discussion here concerns actual competition; the issues of implied
competition have to do with gatekeeping or admissibility considerations.
But, to the extent the law takes better care at the front end in regulating
experts and the manner in which they testify, the less force Brewers argument has with respect to jury decisions. His argument with regard to these
gatekeeping functions raises further dicult challenges for law. Most
notably, the potential regress of having non-expert judges identify who are
experts. Id. at 16251627.
372
MICHAEL S. PARDO
toxic-tort case. And this narrow situation may be where

Brewers argument is most plausible.
The purpose of the above paragraph was ground clearing, my
interest here is in Brewers epistemological assumptions and
conclusions. For Brewer, a jurys conclusion is epistemically
arbitrary unless jurors (all of them? one?) satisfy his inferential
model. This is an extremely strong version of internalism. In
order not to be arbitrary, jurors must not only be aware of all
the reasons that epistemically justify all their conclusions, they
must also know that the reasons are sucient to endorse
themselves as knowing in order to know they must know that
they know. This is unnecessary (recall the founding insight of
reliabilism); being able to cite the reasoning that justies a
conclusion is only one way for a conclusion to acquire positive
justicatory status. Brewer mistakenly assumes that unless this
second-level knowledge exists then no rst-level knowledge does
either and any true beliefs are true by accident.144 But this is
incorrect. Knowledge requires an inference from commitment to
entitlement; but it does not require, as Brewer in particular and
strong internalism in general assume, that the potential knower
make the inference (as opposed to a third, external party).
All of this is not to suggest that scientic evidence is not
qualitatively dierent than other evidence; perhaps it is, and
thus may require epistemic demands beyond the weak internalist
ones the law imposes. Concern over juror competence in this
area may make the legal system want to impose more internal
demands (second-level rather than rst-level knowledge).145 The
system could do this for all evidence and make jurors explain
their reasoning or answer detailed interrogatories. But the key
point is that these are epistemic choices, which will in many ways
be a function of other features of the proof process. Like with
other evidence, greater attention to epistemic details at the front
end with scientic evidence, not only with respect to those who
testify and to what they testify to but also to the manner in
which they do so, may lessen the need for increased internal
144
Id.
Or why not third-level, make them know that they know that they
know?
145
373
epistemic demands on jurors. And the need for these internal

demands may be lessened to the extent the law adopts an education-based as opposed to a deference-based approach to expert testimony146, either by requiring party witnesses to perform
this function or through court-appointed experts.147
In sum, jurors lack of second-level knowledge does not
mean they do not know nor does it mean any true beliefs they
arrive at are accidental.148 In others words, knowing does not,
as Brewer supposes, entail knowing one knows. Therefore, the
lack of second-level knowledge does not entail that any true
conclusions are merely accidentally true, as Brewer also supposes. Whether they are reliable or not in their conclusions
depends on whether they are reliable or not from our perspective and given our interests: an empirical question.149 The
146
See Ronald J. Allen and Joseph S. Miller, The Common Law Theory
of Experts: Deference or Education?, Northwestern University Law Review
87 (1993), p. 1131.
147
See Federal Rule of Evidence 706.
148
Although perhaps this second-level knowledge is what is required to
satisfy Brewers notion of intellectual due process (rather than epistemic
non-arbitrariness, as he argues). We do make this demand on judges
deciding legal question by requiring they explain their reasoning in
written opinions and orders. But there are a number of rationales that
might explain the dierent treatment, for example, that legal decisions
have general applicability beyond the case and reasoning gives more
guidance. Therefore, it does not follow that fact decisions are illegitimate, like legal decisions may be, if the decisionmaker does not or
cannot provide justifying reasons. (Indeed, these sorts of pragmatic differences are all that explain the distinction between law and fact. See
Allen and Pardo, supra note 43. Legal questions are factual questions;
hence the use of quotes above.) As explained above, the weak internalism
the law now adopts suggests that decisions are legitimate so long as a
rational jury could have done what the jury did.
149
But it is an empirical question only after our interests and descriptions
are xed. (See Section IV for more on this issue.) If it turned out that, from
our perspective, jurors were reliable in arriving at true beliefs based on
scientic expert testimony, it would not matter one bit from an epistemic
viewpoint whether they knew or could explain how (or if they satised any
of the steps of Brewers model). So long as they were reliable, they would
know, and we could rely on them. Bismarcks famous statement about
sausage and legislation may apply to factnder inferential conclusions as
well.
374
MICHAEL S. PARDO
conceptual point, though, is that it is simply incorrect to conclude from a jurors failure to satisfy the unnecessary strong
internalist demands imposed that their conclusions are epistemically arbitrary.150
B. Inferences and Probative Value
The naturalistic blindspot, discussed in section III, claries two

related, important conclusions about the concept of probative
value.151 The rst is that probative value is a conclusion that
refers to the strength an evidential premise provides a particular
inference in a particular multi-premise context and not (less
plausibly) to kinds of evidence or (more plausibly) likelihood
ratios. The second is that the probative value of evidence is not
suciently captured by the extent to which there is a causal
connection between the evidence and an underlying event. In
other words, probative value concerns having good reasons, not
necessarily likelihood ratios or causal facts although such
ratios and facts could be some of the good reasons. Both points
are explained in part through discussions of the statistical-evidence debates, in which contrary claims are made, but the
points generalize to all juridical evidence.
150
Another minor point: Brewers model seems to assume that an

unjustied inference anywhere within a jurors reasoning process that
underlies an ultimate conclusion renders that conclusion arbitrary. Given
the complexities involved in these decisionmaking processes, this is probably
all decisions. In which case, the problem is more likely with the assumption;
it seems to be an example of the argument-on-paper thesis, the implausible
demand that potential knowers be able to write down all their beliefs and
what justies them, and then what justies those beliefs, and so forth. See
Kornblith, supra note 63. In short, Brewer may be replicating foundational
demands for epistemological certainty. This desire for epistemological certainty also appears to manifest itself in Brewers discussion of the regress
involved in selecting experts. See supra note 143.
151
In addition to relevance, probative value is one of the most important
evidence-law concepts for determining the admissibility of evidence. See
Federal Rule of Evidence 403 (Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the dangers of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.)
375
Recall Brandoms amendment to the barn example in which

the prevalence of fake barns ips back and forth as the jurisdiction expands, and consequently the very same true report by
an observer switches between being reliably and unreliably
generated.152 The lesson there was the conceptual point that each
description of a dierent reference class led to a dierent inference, and our interests in those dierent inferences and not the
classes themselves privileged one over another and dened the
appropriate boundaries. Now consider that famous hypothetical
alleged tortfeasor: The Blue Bus Company.153 Under one variation, a plainti is run down by a bus at night and, while she
knows it was a bus that hit her, she could not see the color or any
other distinguishing characteristic of the bus. There are only two
bus companies in town, the Blue Bus Company and the Green
Bus Company, and Blue owns 60% and Green 40% in the town
where the accident took place. The standard structure of the
debates involves the relevance and evidential weight or probative
value of such evidence, for example, assuming such evidence was
the only presented, whether it is sucient to support a judgment
as a matter of law for the plainti against Blue.154 But in this very
152

The famous example is based on dicta in Smith v. Rapid Transit, 58
N.E.2d 754, 755 (MA, 1945).
154
See, e.g., Ronald J. Allen, On the Signicance of Batting Averages
and Strikeout Totals: A Clarication of the Naked Statistical Evidence
Debate, the Meaning of Evidence, and the Requirement of Proof Beyond
A Reasonable Doubt, Tulane Law Review 65 (1991), p. 1093; Craig R.
Callen, Adjudication and the Appearance of Statistical Evidence, Tulane
Law Review 65 (1991), p. 457; Daniel Shaviro, Statistical-Probability and
the Appearance of Justice, Harvard Law Review 103 (1989), p. 530; Richard
W. Wright, Causation, Responsibility, Risk, Probability, Naked Statistics,
and Proof: Pruning the Bramble Bush by Clarifying the Concepts, Iowa
Law Review 73 (1988), p. 1001; Mary Dant, Gambling on the Truth: The
Use of Purely Statistical Evidence as a Basis of Civil Liability, Columbia
Journal of Law and Social Problems 22 (1988), p. 31; Thomson, supra note
108; Charles Nesson, The Evidence or the Event? On Judicial Proof and the
Acceptability of Verdicts, Harvard Law Review 98 (1985), p. 1357; David
Kaye, Naked Statistical Evidence, Yale Law Journal 89 (1980), p. 601;
Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal
Process, Harvard Law Review 84 (1971), p. 1329. See also U.S. v. Veysey,
334 F.3d 600, 603-06 (7th Cir. 2003).
153
376
MICHAEL S. PARDO
same situation, imagine (again, assume there only two bus

companies) that, while Blue owns 60% in the town, Green owns
60% in the county, yet Blue 60% in the state, yet Green 60% in
the country, and so on.155 Or the reverse: while Blue owns 60% in
the town, Green owns 60% on the road, but Blue 60% on that
side of the road, and so forth. (Recall this could be collapsed all
the way until the only member in the class is the very one trying to
be determined, the one in the crash.)156 Assuming this evidence is
sucient to direct a verdict against a bus company, whether it is
for Blue or Green would have depended on the specied reference class picked under a given description, because they yield
dierent inferences based on how they are specied and
described.
Because in the example we want the likelihood of it being a
particular bus at a particular location at a particular time, we
may want the smallest geographically- or temporally bounded
reference class.157 For example, the town numbers may get
more weight than the county numbers but less weight than the
street ones and so on. But this is so because of our interests, in
what we trying to infer. In other situations, a smaller reference
class will be either irrelevant or inappropriate. Consider the
other chestnut hypothetical: the gatecrashers at a sporting
event.158 If it is known that 75% of those at a given event did
not pay the admission fee, can the owner of the venue sue
155
Cf. George F. James, Relevancy, Probability and the Law, California

Law Review 29 (1941), p. 697 (If absolutely all one knew about B was that
he was a person, it would be apparent nine-to-one chance that B had dark
eyes. But if one knew B to be a Swede the percentage of dark eyes in the
total population of the world would no longer be important.).
156
One could do the same ip-opping temporally as well, or in a number
of other ways for that matter.
157
Time is a helpful variable to illustrate this point because we likely
dont want the smallest reference class if it doesnt take account of busschedule regularities. We could also have all sorts of arbitrarily nested
classes within the geographically or temporally bounded classes. For a
discussion of reference classes in statistical explanations see Cohen, supra
note 18, at pp. 295309.
158
Id. at 7475.
377
anyone there (or all of them separately) and win? Putting that
question aside, does it matter if the person sued was in section
A or in an odd row and we know 75% of those in section A or
51% of those in odd rows did pay? Perhaps; perhaps not; it
might depend on what would account for the distributions. Or
in a case where a plainti presents evidence that 95% of those
who took the same drug she did developed the same medical
condition she did, it would clearly be inappropriate for the
defense to contend that in the smaller reference class of those
who took the drug and have the same birthday as the defendant
(ve people) she is the only one with the problem and thus there
is only a 20% likelihood of causation.159
The point here is that describing the boundary conditions of
a reference class in dierent ways may yield dierent inferences,
and it is our interests in certain inferential conclusions (shaped
in part by the substantive law and in part by parties theories)
that determine evidential weight or probative value.160 And
these inferences take place within a multi-premise, evidential
context (which includes the statistical premise, other evidentiary premises, and the factnders propositional knowledge).
Because the statistical premise is just that (a premise) it cannot
instruct in its own interpretation, a fortiori nor can it instruct in
its weight or value in a particular inferential conclusion, and it
is always potentially defeasible by the evidentiary context in
which it is embedded.161 In other words, the inferences come
159
This last hypothetical is an example of Simpsons paradox. E.H.

Simpson, The Interpretation of Interaction in Contingency Tables, Journal
of the Royal Statistical Society 13 (1951), p. 238; see also Ron A. Shapira,
The Susceptibility of Formal Models of Evidentiary Inference to Cultural
Sensitivity, Cardozo Journal of International and Comparative Law 5 (1997),
p. 165. The paradox is just one example of drawing inferences from inappropriate reference classes.
160
On the role of interests in explanation see Morton White, A Philosophy
of Culture: The Scope of Holistic Pragmatism (Princeton: Princeton University Press, 2002), pp. 77107.
161
See Pardo, supra note 14.
378
MICHAEL S. PARDO
rst in the order of explanation, not weight or probative

value.162 Weight or probative value (like relevance) is, of
course, a relational concept referring to the connection between
a premise and a conclusion in a particular multi-premise context. Thus, it is nonsensical to discuss the weight or probative
value of types of evidence in the abstract (as some of the nakedstatistical-evidence literature does163), for example, whether
statistical evidence is necessary or sucient to support a judgment. What does make sense is whether a particular evidentiary
proposition described in a particular way (a premise) yields, in
a given multi-premise context, an inference to a conclusion of
material interest. If it yields an inference that such a conclusion
is more or less likely, it is relevant, and the strength it provides
the inference in that context is its weight or probative value.164
This view of probative value provides a more accurate
explanation of the concept than those found in the evidence-law
literature that seek to explain probative value in terms of
likelihood ratios. A leading proponent of the latter, D.H. Kaye,
puts it this way: The best developed and most plausible theory
of probative value articulated by legal scholars builds on a
statistical concept known as the likelihood ratio.165 And an
inuential evidence treatise explains:
162
This is so regardless of whether one employs a Pascalian or Baconian

concept of probability in the juridical-proof context. See Cohen, supra note
18. The relativity of reference classes means that the inferential relation
determines weight regardless of whether the degree of proof is understood as
a mathematical or inductive probability.
163
A point exposed in Allen, supra note 154, at pp. 10981103.
164
Again, this is a retail not wholesale aair.
165
D.H. Kaye, The Relevance of Matching DNA: Is the Window Half
Open or Half Shut?, Journal of Criminal Law and Criminology 85 (1995), p.
676; see also Jonathan J. Koehler, The Psychology of Numbers in the
Courtroom: How to Make DNA-Match Statistics Seem Impressive or
Insucient, Southern California Law Review 74 (2001), p. 1300, n. 69
(Many scholars agree that the probative value of statistical evidence can be
represented in terms of a likelihood ratio.)
379
Indeed, the likelihood ratio of P(E / H) to P(E / not-H) can be used to

quantify the probative value of evidence E the larger the ratio, the more
strongly the evidence supports the hypothesis H.166
This view is eshed out with the following example:

Consider a behavioral pattern said to be characteristic of abused children.
If research established that the behavior is equally common among
abused and non-abused children, then its likelihood ratio would be one,
and evidence of that pattern would not be probative of abuse And if it
were a thousand times more common among abused children, its probative value would be far greater.167
This is not necessarily true. The evidence for which probative

value is being assessed is certain behavior. Even if the behavior
is equally common among abused and non-abused children, it
still might be highly probative of abuse or non-abuse if, for
example, (1) abused children exhibiting the behavior have (or
lack) some additional characteristic that non-abused children
do not (or do) and (2) the child at issue does or does not possess
this characteristic.168 Likewise, even if the behavior is 1000
times more likely in abused children, the probative value of
evidence of that behavior may be quite low and perhaps zero if
the child possesses (or lacks) a characteristic that places the
child in the group of non-abused children who exhibit the
behavior. In these examples, the evidence and the likelihood
ratios specied remained constant, yet the probative value of
the evidence varied radically. Probative value thus is not the
166
McCormick, Evidence, John W. Strong (ed.) (West Publishing, 5th

edn, 1999), p. 277. See also Dale A. Nance, Reliability and the Admissibility
of Experts, Seton Hall Law Review 34 (2003), p. 218 (As a theoretical
matter, it has been suggested that the probative value of an item of evidence
be identied with its likelihood ratio relative to the contending hypotheses in
the case.); Jonathan J. Koehler, When do Courts Think Base Rate Statistics are Relevant?, Jurimetrics Journal 42 (2002), p. 375 (The ratio of
these likelihoods (known as the likelihood ratio) captures the probative
value of the evidence.); Richard O. Lempert, Modeling Relevance,
Michigan Law Review 75 (1977), p. 1026.
167
McCormick, supra note 166, at p. 277.
168
And one can construct a nested-class hypothetical like those above by
positing additional characteristics that make the probative value of the
behavior ip back and forth between being highly probative of H and highly
probative of not-H.
380
MICHAEL S. PARDO
likelihood ratio. Probative value is a conclusion about the

strength the evidential premise provides to a certain inferential
conclusion in a given context. The multi-premise context in
which the evidence is embedded is the carrier or vehicle of
probative value.169 But maybe we just need to take the likelihood given all the known characteristics in the context?
The point is not just (the true one) that probative value is
conditioned on the probative value of additional evidence.170
Its also that likelihoods are always relative to a reference
class, the boundaries of which are in an important sense
arbitrary. Of course, likelihood ratios for evidence given a
specied class, if known, are themselves evidence: for example,
certain behavior among abused and non-abused children. But
the particular child exhibiting particular behavior is a member
of virtually limitless reference classes, each with its own likelihood ratio for abuse. And trying to specify the most precise
reference class will eventually collapse into the event itself or
the very thing we are trying an answer.171 Short of that, the
varying reference classes generate dierent inferences and our
interests in those inferences determine which are more
appropriate, and perhaps, if known, which likelihoods ratios
are more relevant as evidence.
This is not just a point about statistical evidence; it generalizes to all juridical evidence. Brandom showed that reliability is not a natural fact about belief-forming processes;
rather, reliability is a conclusion about whether one has su-
169
Consistent with this point is the observation, in the Advisory Committee Notes to Federal Rule 403, that probative value includes not just a
connection between evidence and a putative conclusion but also the parties
need for the evidence and availability of other evidence to prove the putative
conclusion. The likelihood-ratio theory fails to account for these contextual
considerations.
170
See Richard D. Friedman, Conditional Probative Value: Neoclassicism Without Myth, Michigan Law Review 93 (1994), 430.
171
Nor is there any guarantee that likelihood ratios picked out by smaller
or more detailed classes will be more probative than larger or less detailed
ones.
381
cient reasons to endorse particular inferences from particular

descriptions.172 Thus one cannot argue, without begging the
question (or reciting a tautology), that a particular inference is
justied because it was generated by a reliable process.173
Evidential weight and probative value are like reliability in
this respect; they are conclusions about premises in multi-premise inferences, not themselves the reasons for the inferences.
Evidence does not justify (provide reason) for a judgment because it has high probative value; evidence has that value because of the strength it provides the inferences in which it serves
as premises (the strength of the reasons in the context). Thus
those on both sides in the naked-statistical-evidence debates
who argue that statistical evidence provides or does not provide
sucient evidence to justify judgments get things exactly
backward. But the same could be said about eyewitness testimony, hearsay, ngerprints, or whatever. It is not the fact that
some evidence has sucient probative value that justies an
inference the fact that a particular inference is suciently
strong means that evidence has the probative value it does.
The second point about probative value concerns the role of
causation. Some have argued, for example, that a verdict based
solely on naked statistical evidence is insucient or unjust because verdicts require individualistic or particularistic
evidence.174 This evidence is required because unlike some
172
This is a deeper relativity than those articulated with regard to expert

testimony in Edward J. Imwinkelried, The Relativity of Reliability, Seton
Hall Law Journal 34 (2003), p. 269 ((1) the specicity of the theory or
technique the expert asserts; (2) the use to which the experts proponent
wants to put the claim; and (3) the deniteness with which the expert proposes couching his or her ultimate opinion.), but it is consistent with his
analysis. This is not to say that we cant make generalizations about which
types of evidence yield certain types of inferences. Indeed, this is what
underlies most of the rules of evidence.
173
When we speak in this way we may be using reliable process elliptically to refer to the fact that there are strong reasons for accepting the
inference; but the conclusion is standing-in, as it were, for the elided reasons,
and they are what justify the inference.
174
Thomson, supra note 108; Wright, supra note 154; Dant, supra note
154.
382
MICHAEL S. PARDO
statistical evidence it provides a causal explanation of the relevant actions and events:
To determine what actually happened we must provide a causal explanation of
the particular occurrence, and providing a causal explanation requires proof
through particularistic evidence of the instantiation of the purportedly
applicable causal generalization and its underlying causal law.175
And
[a]t most, ex ante causal probabilities, or naked statistics in conjunction with
ex ante causal probabilities, can be used for placing a bet on what actually
happened a causal prediction or postdiction. They cannot be used to
resolve the bet to determine what actually happened.176
The failure of some statistical evidence to support such an

explanation renders any true conclusions based on it just
luck rather than in an appropriate way causally connected
the (putative) fact.177 Individualized evidence can be either
backward (a witness saw the bus was blue) or forwardlooking (a witness saw the driver drinking a large amount of
alcohol shortly before the accident).178
Now, it should be clear, as both Thomson and Wright recognize, that the issue here is not statistical v. non-statistical but
whether statistical (like any other) evidence adequately explains
or is explained by the underlying event.179 My focus is not on
whether such individualized (whether statistical or not) evidence is necessary, but rather to show that it itself, no matter
175
Wright, supra note 154, at p. 1062.

Id.
177
Thomson, supra note 108, at p. 214.
178
Id. at 203.
179
For example, as statistical evidence in a race-discrimination claim
would. If jurors are involved in inference to the best explanation this might
explain the uneasiness some people feel about certain types of statistical
evidence, namely, the found facts do not explain it. A juror hypothesis (and
conclusion) that a blue bus caused the accident explains why the witness saw
a blue bus at the scene; the hypothesis does not explain why the Blue Bus
Co. owns 60% of the buses in town, even though the latter may increase the
likelihood of the hypothesis. But hypotheses that an employer had a discriminatory hiring practice or a product was faulty might explain statistics
regarding an underrepresented group or the number of product users that
were injured.
176
383
how strong, is not always sucient. Goldmans barn example

showed the inadequacy of simple causal theories of justication
and knowledge, and an analogous point can made about
juridical evidence. Just like the barn observer (who recall was
denied knowledge despite forming his belief after perceiving a
real barn under good conditions), a witness (or ten or a hundred) who saw under good conditions a blue bus (and hence
factnders relying on the witness(es)) may not have knowledge
the Blue Bus Company was responsible if there are undermining external conditions. Such conditions for example, a
number of green buses accidentally painted blue that day, or
out-of-town blue buses present, or fake blue buses, or whatever
would render any true conclusions by the witness and factnder only accidentally true, and hence not knowledge.180
The point is that even a strong causal explanation between
the evidence and the event e.g., a real Blue Bus Company
bus caused ten or hundred witnesses to perceive and testify
that a blue bus caused the accident, and that testimony explains what occurred cannot guarantee or even necessarily
be particularly probative evidence of whether it was, as it
were, a Blue Bus blue bus. Likewise, even if there is a strong
causal connection between a witness identifying a suspect in
a line-up and the suspect being the person she saw commit
the crime, the identication may not be particularly probative
if the testing procedures were such that the same identication would have been made regardless of a causal connection. To tie this to the rst point above: what matters is
the inference. And the strength of the inference and
therefore the probative value of the evidence turns on
factors external to the causal relationship, in particular the
strength of alternative explanations and sensitivity to relevant
counterfactuals, both of which will be shaped by the legal
systems interests and the theories and stories the parties are
telling.
180
Thomson, supra note 108, at p. 204, recognizes this point: the more
non-cabs there are on the road that are disguised as cabs, the less weight we
are entitled to place on the causal hypothesis that Mrs. Smiths believing it
was a cab which caused her accident was caused by its being a cab which
caused her accident.
384
MICHAEL S. PARDO
C. First-Amendment Facts and the Reexamination Clause
This subpart provides an epistemological view of a constitutional puzzle. New York Times v. Sullivan held that public gures suing media defendants for defamation must prove by
clear and convincing evidence that the defendants acted with
actual malice.181 Bose Corp. v. Consumers Union of U.S. Inc.,
faced the question of under what standard appellate courts
should review district court conclusions on actual-malice
determinations.182 The Court held that, because of the important First Amendment issues at stake, appellate courts should
conduct independent review of the district courts determinations rather than applying the clearly erroneous standard
applicable to other factual determinations.183 Because Bose
involved a district courts factual nding, this then posed the
question of how appellate courts should review similar jury
ndings. The Court in Bose suggested that the review would not
change.184 But, on the other hand, how could an independent
review at all be consistent with the Seventh Amendments
Reexamination Clause? This question has yet to be clearly
answered. For example, in a recent opinion Judge Diane Wood
explained:
In cases in which we are reviewing a jury verdict rather than the ndings
of a lower court, the question is even more complex, because we must
somehow reconcile the defendants First Amendment rights against the
command of the Seventh Amendment that no fact tried by a jury shall
be otherwise re-examined in any Court of the United States, than
according to the rules of the common law. U.S. Const. amend. VII. Bose
itself involved review of facts found by the district court under Fed.R.Civ.P. 52(a), and thus the Court had no occasion to consider this problem. For a dierent reason, we conclude that it is not necessary here to
decide whether or not a broader version of the re-examination of jury
ndings is permissible when First Amendment rights are at issue. Even
assuming that the Bose dicta requires us to conduct a plenary review of all
of the factual ndings relevant to the First Amendment issues before us
181
182
183
184
376 U.S. 254 (1964).

466 U.S. 485 (1984).
Id. at 514.
Id. at 501.
385
(which is the most favorable position we can take for the defendants), we
nd that the jurys determinations are fully supported by the record.185
A focus on the epistemology involved reveals the structure of

the review process on these issues: a fundamental choice must
be made as to whether the putative problem is illusory or the
First Amendment somehow trumps the Reexamination Clause.
The actual-malice element, as developed in Sullivan and Bose,
requires the plainti in a defamation case to prove with convincing clarity that the defendant published a false statement of
material fact that the defendant either knew was false or with
reckless disregard for its truth.186 The Bose Court further
articulated the inquiry as whether the defendant realized his
statement was false or that he subjectively entertained serious
doubt as to the truth of his statement.187 Actual malice is thus
a factual state-of-mind determination.188 In Bose, for example,
the district court concluded that the defendant acted with actual malice for publishing a statement the writer knew to be
false, and the court found the writer had this knowledge because it found his testimony to the contrary not to be credible.189 The Supreme Court ultimately concluded that the
district courts credibility determination was insucient to
provide clear and convincing evidence of actual malice.190
185
National Organization for Women Inc., v. Scheidler, 267 F.3d 687,

701 (2001), revd on other grounds, 123 S. Ct. 1057 (2003). Judge Kozinski
raises similar concerns in his dissent from a denial of rehearing en banc in
Suzuki Motor Corp. v. Consumers Union of U.S. Inc., 330 F.3d 1110, 1113
(9th Cir. 2003) (The majoritys analysis is tainted throughout by its failure
to articulate, much less apply, a coherent theory of the independent
examination rule, a key element of the New York Times regime.)
186
466 U.S. at 491.
187
Id. at 511 n. 30.
188
While factual, the Court based some of its decision for independent
review on the vague rationale that it involves a constitutional fact. Id. at
508 n. 27. See Henry P. Monaghan, Constitutional Fact Review, Columbia
Law Review 85 (1985), pp. 261262. For a discussion and critique of this
rationale and its relation to the law-fact distinction, as well as a critique of
Monaghans analysis, see Allen and Pardo, supra note 43.
189
466 U.S. at 497.
190
Id. at 511514.
386
MICHAEL S. PARDO
Assume a jury makes a similar nding as to a defendants

state of mind, whether based on credibility or not. Because the
issue was given to the jury in the rst place, it must not be the
case that there was a clear answer on this question. And once
the trial is over, and the evidentiary landscape is determined, it
must again not be clear whether or not the plainti met the
burden of proving this element. Otherwise summary judgment
in the rst case and judgment as a matter of law in second (at
least on that element if the plainti has met the burden) are
appropriate.191 So before the nding goes up for review, from
the district courts perspective the jury has knowledge of whether or not the defendant acted with actual malice. In other
words, the district court endorses the inference from the jurys
undertaking a commitment that the plainti proved (or failed
to prove) this element to the necessary degree to the jurys
entitlement to that commitment. And the court determines
whether to endorse this inference based on the weak-internalist
standard (discussed above), namely, whether a reasonable
jury could cite evidence sucient to justify or warrant its
conclusion.
Now, on appeal the court either does or does not take itself
to have superior knowledge compared to the jury on
whether the actual-malice element has been proven.192 In other
191
Assume at this point the district court made proper rulings on these
issues, and they were properly raised. See also Galloway v. United States,
319 U.S. 372 (1943) (directed verdicts consistent with Seventh Amendment).
Also assume that summary judgment and judgments as a matter of law (and
the standards for each) are consistent with the Reexamination Clause and
thus constitutional. See Baltimore and Carolina Line Inc., v. Redman, 295
U.S. 654 (1935). For a recent argument that they might not be see Ellen E.
Sward, The Seventh Amendment and the Alchemy of Fact and Law, Seton
Hall Law Journal 33 (2003), p. 573.
192
One reason it may have superior knowledge is because the appellate
court has access to other appellate decisions interpreting what actual malice means and when it should be applied. Supposed factual questionssuch
as whether one has intent or is an employer or whatevercan be turned
into ones of legal interpretation simply by construing the question as one
about the legal meaning of the terms. See Ronald J. Allen and Michael S.
Pardo, Facts in Law and Facts of Law, International Journal of Evidence
and Proof 7 (2003), 169170.
387
words, it must decide whether to rely on the jurys conclusion,

that is, whether to endorse the jurys commitment. The
appellate court takes itself to have knowledge only if it also
considers there to be a correct, true or false, answer to the
question of whether the plainti has proven the actual-malice
element (otherwise it does not have knowledge). If the jury
reached a conclusion contrary to what the court perceives as
the correct one, then the court and legal system have no
reason to rely on the jurys conclusion. In terms of the laws
weak-internalist standard, because the evidence compels conclusion X (if it didnt then the appellate court could not take
itself to know the correct answer), then the jury was irrational
or unreasonable in concluding not-X; they are not entitled to
their commitment. If, on the other hand, the court takes the
evidence to underdetermine the plausible conclusions that may
be inferred, and the jurys conclusion is one of the plausible
ones, then the law endorses their commitment, it takes them
to know. If in that case the court, which by hypothesis is
without knowledge, substitutes its own conclusion for the
jurys this is plainly reexamining the jurys conclusion. Either
(1) its the rst scenario, in which case a judgment as a matter
of law should have been granted and whether the standard of
review is deferential or independent makes no dierence; or
(2) its the second scenario, in which case independent review
violates the Reexamination Clause if applicable. Thus Boses
command to conduct independent review either doesnt mean
anything because at base its a deferential, reasonableness
inquiry,193 or it means that jury determinations can be reexamined and the First Amendment may trump the Seventh
193
You can iterate independent review (of independent review of) as

many times as you want, but if the rst-level judgment is viewed deferentially they all collapse to that deferential review.
388
MICHAEL S. PARDO
Amendment.194 In any event, there is no balancing of the

amendments either way.
The Courts subsequent construal of Bose in a case involving
a jury, Harte-Hanks Communications Inc., v. Connaugton195,
left things ambiguous. In this libel case, the jury found actual
malice and the court of appeals armed after articulating a
number of reasonable inferences the jury could have drawn
from the evidence to support its conclusion.196 The Court stated, [w]e agree that the jury may have found each of those
facts, but conclude that the case should be decided on a less
speculative ground.197 The Court, however, armed and deferred to three facts the jury must have found based on its
answers to interrogatories: [w]hen these ndings are considered, alongside the undisputed evidence, the conclusion that the
newspaper acted with actual malice inexorably follows.198
Justice Scalia concurred, I would have adopted the Sixth
Circuits analysis in its entirely, making our independent
assessment of whether malice was clearly and convincingly
proved on the assumption that the jury made all the ndings it
reasonably could have made.199 The majoritys analysis left
things ambiguous because, on the one hand, they did not
reexamine any facts found by the jury, but, on the other, the
Court refused to accept all the reasonable inferences the jurors
may have drawn from the evidence.
194
If the First Amendment trumps, then this should be made explicit. Its
not the case, after all, that all constitutional amendments need to be balanced or harmonized. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547
(1978) (no additional protection when a search under the Fourth Amendment implicates First Amendment interests). If this is one of those situations
the Court should say so. Vague dicta in a Bose footnote suggests de novo
review of a jurys nding may be authorized because actual-malice determinations involve intermingling of law and fact. 466 U.S. at 508 n. 27. This
is only one of the rationales sometimes invoked to label something a constitutional fact. For others see Monaghan, supra note 188, at pp. 261262;
Allen and Pardo, supra note 43.
195
491 U.S. 657 (1989).
196
Id. at 689.
197
Id. at 690.
198
Id.
199
Id. at 700 (Scalia, J., concurring).
389
But a recent Second Circuit opinion illustrates the inevitable choice nicely.200 The case involved a defamation suit by
a radio commentator and a broadcast company against a
newspaper. Judge Weinstein, sitting by designation, writing
for the majority took the rst option. Judge Jacobs dissented
and took the second option. After reciting Boses command
to conduct independent review of the record on the actualmalice element, Judge Weinstein concluded
A reasonable juror considering the ill will, and the factual similarity between the basis for that ill will and the publication of the challenged
statement here could conclude that Pelayo was imposing in-kind retribution on Celle by exaggerating the status of the legal proceedings against
him.201
And
Considering the evidence of ill will Pelayo felt towards Celle, a reasonable
juror could conclude that Pelayo knowingly and recklessly ignored the
probable falsity of the story and printed it.202
Judge Jacobs in dissent criticized the majority for not engaging

in more exacting review:
With respect, I must say that the majority opinion recites the duty of independent review without performing it. The majority opinion holds only that
the evidence is sucient to convince a reasonable juror, but fails to recognize
that evidence sucient to convince a reasonable juror is not enough.203
And
Under the independent review required by law and prudence, I conclude
that the liability ndings as to the rst and third articles are unsupportable
under applicable principles of law.204
The two positions dier over whether independent review collapses into a deferential, reasonableness inquiry or authorizes
reexamination. My point is not to suggest one is correct, but
rather to show that analytically a choice must be made.
200
Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163 (2d Cir. 2000).
Id. at 186.
202
Id. at 190.
203
Id. at 193.
204
Id.
201
390
MICHAEL S. PARDO
Focusing on the epistemological structure of the decision makes

this plain: if appellate courts have superior knowledge, the
standard of review does not matter; if they dont and dont rely
on the jurys conclusion they have reexamined it in violation of
the Seventh Amendment. But it seems that a primary reason we
would want independent review in the rst place is because
appellate courts indeed have superior knowledge on the issue,
in which case the standard does not matter.205
This conclusion generalizes readily to all First Amendment
factual determinations, not just actual malice. Eugene Volokh
argues, for example, that appellate courts should conduct
independent review of factnder conclusions of whether
workplace speech creates a hostile environment.206 But
again: either the standard of review doesnt matter or else when
the jury is the factnder independent review violates the Seventh Amendments Reexamination Clause if applicable.207
205
Something Yossarian would appreciate. In the First Amendment

context, however, we may also want independent review is order to give to
certain parties, such as newspapers, clear notice of what is and what is not
permissible. This would appear to be a good reason for independent review,
but, again, this does not address how the practice ts with the Reexamination Clause.
206
Eugene Volokh, Freedom of Speech and Appellate Review in
Workplace Harassment Cases, Northwestern University Law Review 90
(1996), p. 1009. Volokh and Brett McDonnell make a similar argument in
Freedom of Speech and Independent Judgment Review in Copyright
Cases, Yale Law Journal 107 (1998), p. 2431 (discussing substantial similarity of expression determinations).
207
42 U.S.C. 1981a(c)(1) provides that any party may demand a trial by
jury if the complaining party is seeking compensatory or punitive damages.
One additional problem here is that the scope of the Reexamination Clause
with respect to the right-to-jury clause may not be clear. In other words,
whether the two are independent, see, e.g., Gasperini v. Center for
Humanities Inc., 518 U.S. 415 (1996); Parsons v. Bedford, 28 U.S. 433, 447
(1830) (Justice Story describing the Reexamination Clause as a substantial
and independent clause). For recent discussions of the amendment in
general see Suja A. Thomas, Re-examining the Constitutionality of
Remittitur Under the Seventh Amendment, Ohio State Law Journal 64
(2003), p. 731; Sward, supra note 191; Margaret L. Moses, What the Jury
Must Hear: The Supreme Courts Evolving Seventh Amendment Jurisprudence, George Washington Law Review 68 (2000), p. 183.
391
Volokh obviously thinks it makes a dierence (he took the time

to write the article after all). It only makes a dierence if the
First Amendment trumps here. But again, independent review
seems most warranted when appellate judges have superior
knowledge, and when they do, the standard of review does not
matter.
V. CONCLUSION
The epistemological theory discussed throughout emphasized

the conceptual dimension of knowledge and showed examples
of where such theory intersects with evidence laws conceptual
dimension. It revealed the laws weak-internalist epistemic
commitment with regard to factnder conclusions and showed
how this commitment, a perfectly plausible one, diers historically and comparatively from the strong internalism instantiated elsewhere in time and place. Moreover, this discussion also
provided a vocabulary for criticizing an alternative model of
jury decisionmaking, namely, the unnecessarily strong one put
forth by Professor Brewer. The epistemological discussion also
aided in clarifying and explaining probative value as a conclusion that refers to the strength an evidential premise provides an inference in a particular multi-premise context. This
view was shown to better explain the concept than the current
view of probative value as likelihood ratios. Finally, the discussion revealed the structure of a constitutional puzzle
regarding First Amendment facts: when appellate courts are
taken to have superior knowledge the standard of review does
not matter and the problem is illusory; when appellate courts
are taken to not have superior knowledge de novo review
reexamines found facts and violates the Seventh Amendment.
Thus such review is appropriate only if the First Amendment
trumps the Seventh Amendment in these instances.
Aside from these specic conclusions, I also hope to have
shown the general thesis with which I began: the importance of
epistemological theory for evidence law. And thus the correctness of Benthams view that the eld of evidence is the eld
of knowledgeso long as the view and the eld of knowledge
392
MICHAEL S. PARDO
are understood in the broadest possible sense. Shortly after the

statement the makes up the epigraph above about the
bewitchment created by know, Wittgenstein asks, What can
I rely on?208 Expand the I to include we and we have, I
submit, the fundamental question underlying both of the elds.
208
Wittgenstein, supra note 1, at p. 66e.

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Law and Philosophy (2005) 24: 321392

THE FIELD OF EVIDENCE AND THE FIELD OF

The trial is fundamentally an epistemological event. We want

how current conceptual issues in epistemology intersect with,

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

knowledge (or the best possible approximation of it given the

I refer to knowledge as non-accidental true belief because it appears

expert testimony put forth by Scott Brewer.5 Epistemological

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

knowledge then independent review reexamines found facts.

An Introductory View of the Rationale of Judicial Evidence, Works VI(5)

as cognitive psychology, sociology, and the physical sciences.

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

cause the proliferation of useful empirical work on the process of

One of the most interesting features of the treatises on evidence

Evidence doctrines focus on empiricism (e.g. testimony in the language of

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

But if so, not without exceptions. Jerome Michael summed

other words, they show that knowledge ascriptions occur, in

Wilfrid Sellars, Empiricism and the Philosophy of Mind (Cambridge,

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

theirs to you, are likewise valuable. You want to rely on the

G.E.M. Anscombe, Intention (Oxford: Blackwell, 1957), pp. 5657.

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

intuitive belief that someone who believes a proposition that

More specically, a purported foundation either already presupposes

One favorable consequence of these failed projects was to

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

See supra note 26.

coincidentally believe something that happens to be true for the

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

a failure.40 Therefore, no reason prevents an appeal to science

Thanks partly to Quines own previous work in attacking logical

such theorizing.43 The rst is instrumental: practices, processes,

Leiter oers these constraints in discussing jurisprudential theories.

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

because this scientic knowledge is precisely what the skeptic

The story told in this Part can be summarized as follows:

This section examines contemporary works by Laurence

This is not to suggest that there arent important dierences between

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

views arise: internal versus external theories. Then, in order

Internalist and externalist epistemological theories of provide

In others words, this needs to be the case for a belief or judgment to be

that she knows. By requiring that agents engage (or in weak

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

consciousness but also depends on features of the environment.

BonJour, Structure, supra note 34, at pp. 4145.

Or they may be attempting to articulate dierent concepts or dierent

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

of an antifoundational, internal theory; and the concept of

On the importance of coherence for rationality and intelligibility see

systems without any contact with reality. Thus there is no reason

Id. at pp. 139146.

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

people (implausibly) could be aware of all or a sucient

So the regress again arises. BonJour originally posits a doxastic

knowledge in that manner.73 Reliabilism, thus, seeks to contain

Goldman, Discrimination, supra note 51 (arguing this focus better

THE FIELD OF EVIDENCE AND THE FIELD OF KNOWLEDGE

See Goldman, Epistemology, supra note 51, at pp. 4951; Goldman,

regardless of whether the agent is aware of them.79 Imagine

Goldman is attacking simpler, pure causal theories of knowledge,