Epistemic Peerhood in the Law

By Wright, R. George | St. John's Law Review, Fall 2017 | Go to article overview

Epistemic Peerhood in the Law


Wright, R. George, St. John's Law Review


INTRODUCTION

The quality of discussion and decision making in various legal contexts often displays substantial departures from the ideal. This Article points to a useful framework with which to understand many such departures. The framework in question also points the way to healthier decision-making processes in the law and to more substantively defensible outcomes of such legal decision-making processes.

The framework in question is adopted, with some modifications, from what contemporary philosophers refer to as the idea of epistemic peer status, or epistemic peerhood. Very roughly, an epistemic peer is a person or group who deserves our recognition as a full contributing partner in group deliberation and decision making. After introducing some important decisionmaking pathologies in the law, in legal decision making, and in public policy making in general, the Article presents the crucial idea of epistemic peerhood.1

In light of the idea of epistemic peerhood, the Article proceeds to examine legal decision-making processes in various legal contexts. These contexts include jury deliberation; the role more specifically of purported religious authority, including appeal to Scripture, in jury deliberation; debate over the merits and effects of diversity and affirmative action on university campuses and elsewhere; and the division of decision-making authority and proper deference as between federal judges and administrative agencies. A concluding section then concisely packages some of the results derived therefrom. The basic theme, and the broad conclusion, is that we would collectively be better off if we adopted broader, more inclusive views as to who should count as our epistemic peer. As it turns out, greater equality and expansiveness in acknowledging others as our epistemic peers generally pays off for all.

The concept of epistemic peerhood would, of course, be of no interest if there were no substantial problems on which it might be usefully brought to bear. As it happens, though, the quality of our legal discussion and decision making in various contexts should strike us as distinctly imperfect.2 Epistemic peerhood issues are intrinsic to this general problem. For example, merely increasing ideological polarization, along with ignorance of and disdain for various out groups, often affect our political and legal decision making.3 Beyond some point, such enhanced polarization and out-group disdain begin to undermine fundamental values and institutions, including the rule of law.4

The key problem in this regard is that the rule of law is largely a public good, the production or the undermining of which neither reaps appropriate rewards5 nor pays appropriate penalties to discrete groups.6 The basic rule of law cannot simply automatically preserve itself.

Worse, there is no guarantee that political groups will always adopt the same tradeoff rate between their own undermining of the rule of law and the further promotion of their own distinctive political goals. The latter goals, in an era of intensifying polarization, may take on greater priority over any incremental damage to the rule of law.7 Our broad legal decisionmaking patterns in this regard may thus intensify the collective pathology of what is called a "Prisoner's Dilemma."8 We may all depend upon a basic underlying rule of law, but still find ourselves disinclined to do what is necessary to preserve it over the long term.

Thus, a legal system with mutual group disdain and lack of mutual respect still crucially depends upon a sufficient rule of law, and on other "values for which no strong partisan contends, but which, nonetheless, are essential to a good society."9 There is under such circumstances a sense on the part of many that their contributing to the maintenance of the rule of law may demand too much self-restraint in promoting their own sense of justice or sound public policy.10 Such self-restraint, if it is not promptly, clearly, and equally matched by one's political and legal opponents, often seems to involve one's disadvantaging and exploitation by those opponents. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Epistemic Peerhood in the Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.