This paper argues that neither sensitivity nor safety can explain popular intuitions and legal practices regarding so-called “naked” statistical evidence. I begin by introducing these intuitions and practices, introducing the notions of sensitivity and safety, and summarizing two recent papers arguing that these epistemological notions can solve our legal puzzles. I then argue that they cannot. I show that neither sensitivity nor safety is either necessary or sufficient for admissibility, that criteria of admissibility using factive modal notions such as these would not be action-guiding, that it is difficult even to formulate plausible versions of modal criteria because it is unclear what they should hold fixed, and that these notions bear little relation to the legal concept of probative value. Together, these considerations strongly suggest that, however we construe the project of explaining popular intuition and legal practice regarding “naked” statistical evidence, neither sensitivity nor safety can do the job.
This paper was previously presented at New Directions In Philosophy of Law 2019, and at the second Dartmouth workshop on Truth, Power, and the Foundations of Democracy. Here’s the latest draft.