Abstract
In Naturalized Epistemology and the Law of Evidence Revisited, the original target article for the various refutations that I comment on here, I revisited through a slightly different lens the subject of the article that I co-authored with Brian Leiter close to twenty years ago.
Highlights
In «Naturalized Epistemology and the Law of Evidence Revisited», the original target article for the various refutations that I comment on here, I revisited through a slightly different lens the subject of the article that I coauthored with Brian Leiter close to twenty years ago
1 At the time, we focused on the distinction between purely a priori conceptual analysis on the one hand, and empirical inquiry on the other, and the admonition that «should implies can.»
I had been in the grip of this methodology long before we wrote that article, I would not have used the language of epistemology to describe my research program, and remain in its grip today, with a slight evolution in focus if not in meaning
Summary
I am grateful to professor Pardo for taking the time to provide his thoughtful refutation. I think that Pardo attributes to me a skepticism that I do not possess, and more importantly for purposes of this exchange, has no relationship to the original paper He says «I remain more sanguine about the genre of scholarship that Allen critiques—in my view, epistemology may provide a greater source of understanding for legal evidence and proof than Allen’s article may suggest.». The second point is that the use Pardo makes of hypotheticals shows even greater agreement between us than perhaps Pardo suggests In his discussion of the chemist hypothetical, he makes it less weird by adding another layer to the original problem: «Suppose that there is a small range in which the process is unreliable; sometimes the result is slightly over the true amount and sometimes it is slightly under, but (given our best available knowledge) the former tends to happen more often than the latter» (emphasis mine). Using hypotheticals in the way that he does, at least with the elaboration of the case of the chemist, is not at the core, and maybe not even at the periphery of my critique of the use of weird hypotheticals that ignore critical aspects of the legal system and that make impossible epistemological demands
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