The DOI matches its Crossref record; 2 of the 2 references it cites were found in a registry or an index.
The ‘She Said, He Said’ Paradox and the Proof Paradox 1
Open accessAbstract
This chapter introduces the ‘she said, he said’ paradox for Title IX investigations. ‘She said, he said’ cases are accusations of rape, followed by denials, with no further significant case-specific evidence available to the evaluator. In such cases, usually the accusation is true. Title IX investigations adjudicate sexual misconduct accusations in US educational institutions; I address whether they should be governed by the ‘preponderance of the evidence’ standard of proof or the higher ‘clear and convincing evidence’ standard. Orthodoxy holds that the ‘preponderance’ standard is satisfied if the evidence adduced renders the litigated claim more likely than not. On this view, I argue, ‘she said, he said’ cases satisfy the ‘preponderance’ standard. But this consequence conflicts with plausible liberal and feminist claims. In this chapter, I contrast the ‘she said, he said’ paradox with legal epistemology's proof paradox. I explain how both paradoxes arise from the distinction between individualised and non-individualised evidence, and I critically evaluate responses to the ‘she said, he said’ paradox.
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“In this context, it may be difficult for Adam to come forward to others about his experiences and to correctly assess them as an instance of bullying, even if he was familiar with the concept, due to a protective psychological mechanism (Gardiner, 2021).”
From Algorithmic profiling as a source of hermeneutical injustice (2025) · cites this paper as Gardiner, 2021
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Cites
Naturalized Epistemology and the Law of Evidence Revisited
Allen, R. J. (2020) · Quaestio facti Revista internacional sobre razonamiento probatorio · doi:10.33115/udg_bib/qf.i2.22446 · Cited by 10
Naturalized Epistemology and the Law of Evidence RevisitedPreprint
Allen, R. J. (2020) · SSRN Electronic Journal · doi:10.2139/ssrn.3610994 · Cited by 8
Cited by
Relevance and risk: How the relevant alternatives framework models the epistemology of risk
Gardiner, G. (2020) · Synthese · doi:10.1007/s11229-020-02668-2 · Cited by 61
Self-citationAlgorithmic profiling as a source of hermeneutical injustice
Milano, S., & Prunkl, C. (2025) · Philosophical Studies · doi:10.1007/s11098-023-02095-2 · Cited by 38
Horniczak, K., Porębski, A., & Skoczeń, I. (2024) · International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique · doi:10.1007/s11196-023-10055-6 · Cited by 1
Doxastic Precautionary Principle as Political Encroachment
Juzaszek, M. (2025) · Acta Analytica · doi:10.1007/s12136-025-00642-6 · Cited by 1
Testimony, legal epistemology, and #BelieveWomen
Mac, L. (2026) · Synthese · doi:10.1007/s11229-026-05738-z
Metadata
- Authors
- Gardiner, G.
- Affiliations
- University of Tennessee at Knoxville (US)
- Corresponding author
- Gardiner, Georgi
- ORCID
- Gardiner, Georgi
- Venue
- The Social Epistemology of Legal Trials
- Publisher
- Routledge
- Published
- 2021-02-16
- Pages
- 124-143
- OpenAlex
- W3113031243
- Cited by
- 4
- References
- 2
- Citations by year
- 2026: 1 · 2025: 1 · 2024: 1
- FWCI
- 2.69
- Type
- book chapter
- Language
- en
- Open access
- bronze
- doi.org
- Locations
- Routledge eBooks (publishedVersion)
- PhilPapers (PhilPapers Foundation) (submittedVersion)
- Topics
- Social Sciences › Law › Legal processes and jurisprudence
- Social Sciences › Arts and Humanities › Philosophy › Epistemology, Ethics, and Metaphysics
- Social Sciences › Sociology and Political Science › Feminist Epistemology and Gender Studies
- Keywords
- sexual misconduct, rape allegations, preponderance of the evidence, clear and convincing evidence, standard of proof, epistemology of law, feminist legal theory, liberal legal theory
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