Physical and emotional harms are 'embedded'- i.e. confined to a particular body. Communicable Knowledge is not embedded. It is 'non-rival'. It may also be 'non-excludable'. Suppose I hear that you were grievously injured. I may feel as much epistemic pain as you do though truth be told I am laughing my fucking head off. Should I receive equal compensation? If so, what is to prevent everybody from claiming equal compensation? Also, the person who broke your legs could get compensation for the epistemic harm you did him by thinking he was a fucking thug. Clearly, the law should not recognize any general category of 'epistemic harm' as a justiciable tort or crime.
What of a particular group of people granted an epistemic credential? There is the possibility that 'epistemic harm' is done to those not of that group. Should people who feel harmed by Doctors or Lawyers or Teachers or Professors be allowed to sue for 'epistemic harm' over and above any financial, physical, psychological or other harm currently recognized by the Courts?
No. Every credentialized person is likely to be ignorant of some fact or doctrine germane to his or her profession. This ignorance gives rise to 'epistemic harm'.
Consider the epistemic harm done to me by Mitch Woolery- a qualified lawyer who is now an adjunct professor in philosophy- who has written an article for Aeon on 'epistemic harm'. Why, in the course of his article, has he not affirmed my right to sue the Moon for persistently showing me its backside? How is it that he hasn't used the tools of philosophical philology to show that the Moon's 'mooning' me is highly insulting and prejudicial to my mental health? Why did Neil Armstrong not serve a 'cease & desist' order on the Moon? Is it coz the Moon is White whereas I iz bleck? Woolery has a clear duty to write about my pain and suffering. Yet he neglects it. Clearly, this is due to he is RACIST!
Sheilah Miller (a fictional character, though representative of a widespread phenomenon) is a 39-year-old Black woman who was admitted to the hospital to give birth to her child.
I am a 62 year old Bleck Man who is incessantly subjected to 'mooning' by the fucking Moon.
But there were complications. Hours later, she had lost a lot of blood and suffered a debilitating stroke.
If there was medical negligence, she has a case for very substantial damages
Her physician, Dr Smith (likewise, fictional but representative), a white man, repeatedly ignored her complaints of pain and discomfort due to his prejudice against her identity.
In which case, he should be struck off the Medical register. His race or gender is irrelevant. The fact is, unless Smith had a particular grudge against this patient, or harboured hatred for Blacks and only Blacks, then he is an incompetent physician whom nobody- however White or Male- should trust with his own medical care.
The baby lived but Ms Miller was paralysed from the neck down. As a patient, she had knowledge to share about her pain, her discomfort, her suffering. But, for more than 10 hours, Dr Smith refused to consider her knowledge due to his bigotry.
Smith should have noticed something was wrong even if Miller was unconscious. That he ignored what she told him compounds his offense. He should be struck off. The Insurance Company must make a big pay-out including exemplary damages for avoidable pain and suffering.
Ms Miller suffered enormously as a result of Dr Smith’s medical malpractice. She was harmed financially with medical expenses from her hospitalisation, and lost wages due to time away from work. Her physical harm, paralysis, is obvious, and her emotional harm may manifest itself as anxiety or depression or other emotional maladies. But there is another kind of harm she suffered: epistemic.
No. The harm would be the same even if she had no knowledge of what happened. The fact that she told the Doctor what was happening to her means that her pain and suffering was avoidable. That is the aggravating factor here. That is why she gets exemplary damages.
I suffer great epistemic harm because the Moon keeps mooning me in an insulting and psychologically debilitating manner. I have frequently shouted at it to kindly put its fucking pants on. On the advise of my then wife, I even wrote a stern letter to the Moon which, she assured me, NASA had delivered and so could I very kindly shut the fuck up about the Moon mooning me? Just close the fucking curtains and consummate our marriage already. She later ran off with the milk-man. This added to the epistemic harm I continue to suffer.
Epistemic harm, while real, is not widely known.
It is no well enough defined to be justiciable. It is merely an imputation. What is justiciable is 'avoidable' injury- e.g. telling your Doctor or Lawyer something germane which he negligently disregards.
The term ‘epistemic’ is derived from the Ancient Greek word episteme, meaning knowledge.
All knowledge is sublatable. A Doctor who follows professional protocols and best practice has a defence in law even if it later becomes known that those protocols and that practice was misconceived or actively mischievous.
In my case, my testimony regarding the Moon mooning me, should not be, and is not, disregarded by the police officers, Magistrates & Psychiatrists, I frequently come in contact with by reason of my habit of screaming loudly and displaying my bare ass to the Moon in an effort to get my own back.
Knowledge, and especially seeking and giving knowledge, is essential to being human, as essential as breathing and loving.
It is less essential than farting.
As profoundly social creatures, humans are givers of knowledge but, according to the philosopher Miranda Fricker in her groundbreaking book Epistemic Injustice (2007), epistemic harm prevents, denies and rejects that.
So does farting in people's faces. Sadly my own ground-breaking book on the subject failed to find a publisher.
If our ability to give knowledge is rejected, then so is our humanness and our dignity.
Only in the sense that my humanness and dignity is rejected by those who refuse to let me fart in their faces.
To be harmed epistemically is to be humiliated and degraded as a human being;
I feel very humiliated and degraded when a pretty lady, in whose face I fart while standing on the Tube, makes a face and moves away. True, I take her seat quickly enough and appear well pleased with the outcome. But such appearances are deceptive. Inwardly, I am weeping bitter tears.
it is to be treated not as a someone but as a something.
Philosophers were once respected. Then, the discipline became adversely selective of imbecility. It was then that Philosophers began to bleat about 'inclusivity', and 'dignity' and 'epistemic injustice'. Sadly, this only reinforced the stereotype of the Philosophy Professor being a smelly moron given a wide berth by one and all.
People don’t need to listen to things or regard them with respect or credibility. As the philosopher Pamela Ann Boongaling put it in 2022:
Suppose, for example, that we deny someone the right to be heard or the right to explain their position on an important issue based on a prejudice that we have regarding the social group that the person belongs to.
e.g telling Philosophers to fuck off just because they are smelly morons who eat their own shit
By denying them that right, we would have, in effect, denied them as well of an essential part of their own humanity.
Philosophy is no longer part of the 'Humanities'. It is wholly sub-human and coprophagous.
After all, other things being equal, human beings possess rationality and autonomy,
what Philosophers are equal to is morons who are kept in strait jackets so as to prevent them eating their own shit.
and these characteristics are constitutive of what it means to be a human being.
a stupid and useless human being- sure. I suppose Philosophy Departments are an example of 'Care in the Community'.
Thus, an injustice of this kind cuts deeply since it affects the very core of what it means to be a human being.
Farting is part and parcel of being a human being. It is unjust if you are excluded from a conversation just because the Godess of Eloquence avoided your lips and kissed you on the arse.
A victim of epistemic harm is not regarded as a rational human being but as an infant or an animal or a piece of furniture.
or a fucking moron who teaches worthless shite to credential craving imbeciles.
A great injustice of the United States’ legal system is that it will allow Ms Miller to be compensated for her financial, physical and emotional harm but not her epistemic harm.
It also won't compensate me for the epistemic harm done to me by the Moon's mooning me. On the other hand, it can't penalize me for looking down on this shithead. I may be stupid but I am not stuck teaching morons on the basis of my own Credentialised imbecility and uselessness.
Think about that: Ms Miller suffered serious epistemic harm and yet cannot be compensated for it,
Yes she can. She had knowledge which she communicated to her physician. He, negligently, ignored it. He should be struck off. Punitive damages will be awarded because the harm was avoidable.
even though all (or almost all) of the other harms flowed from her original epistemic harm. Her attempt to give her knowledge was rejected and ignored for 10 hours. Imagine how frustrated and scared she must have felt – hours of pleading and yet being ignored by Dr Smith as one unworthy of care or credibility.
There is no medical protocol which says 'ignore what Black people report about their medical state'. Smith was negligent. He should be struck off and may face further legal penalties.
At some point, Ms Miller may have started to doubt herself and her objectivity and reasoning.
Because she is Black and doesn't have a penis. Thus she has a tiny brain. If she says 'you are standing on my foot' and the guy who is standing on her foot says 'No. I am currently on the planet Uranus where Black Women are not allowed. Thus I can't be standing on your foot', the dim bint is bound to start scratching her woolly head and think that maybe she doesn't have a foot or that she is on the planet Neptune where nobody has feet. They only have fins.
She might have thought: ‘Maybe I’m not in pain – after all, he’s the expert,’ or ‘Maybe I’m just being irrational or emotional.’
Because she was Bleck and didn't have a penis. White peeps should try to be nice to those morons. Otherwise they might revert to cannibalism.
If Ms Miller did not suffer epistemic harm, she likely would not have suffered the other harms. Fix the epistemic harm, and the other harms likely never arise. If she is to be made whole, she needs to have a legal remedy for her epistemic harm.
Black women suffer epistemic harm from this imbecilic article which claims that if a White dude tells them they aren't living on Earth, then they will jump to the conclusion that they are living on the planet Neptune.
How prevalent is serious epistemic harm resulting from bigotry? We don’t know precisely, but two recent empirical studies show that Black patients are more likely than white patients to suffer epistemic harm. Mary Catherine Beach and co-authors found that physicians discredited Black patients’ assertions more frequently than white patients’, concerning their pain levels.
Physicians discredit claims regarding pain made by those looking to score pain-killers. Their may also be 'service provision discrimination' based on a costly to disguise signal like skin colour. The remedy is 'pattern and practice' investigation backed up by the use of statistical tools developed by, among others, brilliant African American economists. This in turn can lead to 'consent decree' based reform. Philosophers can make no contribution here. They are too fucking stupid.
This is similar to what happened to Ms Miller; she expressed the severe pain she was suffering but her doctor ignored her.
Which is the definition of medical negligence.
In another study, Kelly M Hoffman and co-authors concluded that some medical personnel have ‘false and fantastical’ beliefs about Black patients as compared with white patients, including such appallingly racist beliefs as that ‘Black people’s skin is thicker than white people’s.’ As a result, Black patients are expected to endure pain that white patients are not expected to tolerate. Dr Smith might have assumed that, as a Black patient, Ms Miller was just tougher and could endure more pain.
The appalling racist belief displayed by this White cunt is that darkies, more especially those without a penis, can begin to doubt that they are in pain, or live on this planet, if some White dude tells them differently.
In common law jurisdictions (like in the US and Great Britain), victims of civil wrongs can bring tort claims against their transgressors and seek monetary redress for wrongs.
Damages in tort may be limited by statute in the public interest. Thus if it is known that a particular profession- e.g. Medicine- is statistically likely to produce catastrophic consequences in a certain percentage of cases, then tort awards may be limited because, otherwise, the profession will disappear in the jurisdiction.
The US tort legal system purports to compensate victims for each type of harm they suffer (assuming certain legal standards are met like the burden of proof, timely bringing of claims, and the like).
It also provides plenty of defences in law. A professional who observes relevant protocols and 'best practice' should have a Hohfeldian immunity. If this is undermined, that profession will cease to be practiced in the jurisdiction.
The law is merely a service industry. Its aim is utility- as David Hume said. The public interest militates for all sorts of injuries to be rendered non-justiciable. It is no longer possible to get your neighbour burnt as a witch even though you know she put the evil eye on your chickens.
Damages are intended to make the victims whole (trying to return them to the status quo ante).
But the other party may have a Hohfeldian immunity or not be subject to the jurisdiction.
In Ms Miller’s case, if she lost $100 in wages due to Dr Smith’s negligence, she could recover as damages the $100 she lost. For physical and emotional harm, the system approximates her damages with the intent to make her whole. Ms Miller’s legal complaint would have Claim I (for physical harm), Claim II (for emotional harm) and Claim III (for financial harm). But it could not have Claim IV (for epistemic harm)
or Claim V (for magical harm) or Claim VI (for harm caused by the Doctor failing to tell the Moon to quit mooning her) or Claim VII (for harm caused to Guatemalan goats who are deeply concerned about victims of mooning by the Moon).
because epistemic harm is not legally cognisable.
Magical harm once was. The direction in which the law moves is either utilitarian or else it gets disintermediated. A jurisdiction which adds magical or epistemic harm to its list of torts will find that vendors relocate. Courts are disintermediated or damage awards are unenforceable because vendors operate through zero asset limited liability companies.
As I learned on my first day of law school: a right without a remedy is no right at all.
What he should have learned on the second day was that the remedy disappears unless it is 'incentive compatible'- i.e. it is in the interest of the obligation's holder to provide the remedy. Ebay and Amazon and Paypal provide a remedy for buyers unhappy with what they receive not out of the kindness of their hearts but for sound commercial reasons. That is why they have grown and grown.
Failure to compensate her for epistemic harm means that she has been injured but is not being made whole.
This is also the case for victims of magic or those whose lives have been ruined by the Moon incessantly mooning them.
Various injustices can produce epistemic harm but often it results from ‘testimonial injustice’, a term coined by Fricker.
i.e. 'mean things peeps say about me.'
Epistemic harm is inherent in testimonial injustice – it occurs in every case.
So is magical harm. If you say mean things about me then wicked fairies make those mean things come true. I didn't have a needle dick till my wife told her pals I did. Can I sue her.
In Ms Miller’s case, her epistemic harm resulted from Dr Smith’s testimonial injustice,
Nope. He was negligent. Suppose Miller had complained to the janitor and he disregarded or 'silenced' her, there would be 'testimonial' or 'hermeneutic' injustice but it would be as legally inconsequential as his failing to say 'have a nice day' or 'fuck Whitey. Stay strong Sister!'. On the other hand, his failure to mention my suffering caused by the Moon's mooning me constitutes a crime against Humanity equal to that of Hitler, Trump or Jennifer Aniston.
which has three elements: Negative identity prejudice: the hearer (someone like Dr Smith) is bigoted against the speaker (someone like Ms Miller). (Identity prejudice can be negative or positive but testimonial injustice focuses mostly on negative identity prejudice.)
Woolery has a negative identity prejudice against those who think he and Fricker and full of shit.
Unjustified credibility deficit: the hearer unjustifiably gives the speaker less credibility than the speaker is due because of the hearer’s negative identity prejudice against the speaker.
Woolery unjustifiably gives less credibility to people who think he is full of shit. Also the fucker refused to represent me pro bono in my law suit against the Moon. Fuck you Woolery! Fuck you very much!
Epistemic harm: the speaker suffers epistemic harm from the unjustified credibility deficit.
This may be justiciable in intellectual property cases. Suppose I have an idea for a new type of computer chip. My Professor tells me that it has been proved that the thing is unviable and so I abandon the project. I later find out that he is on the board of a start-up pursuing that same line of research. They have a head start and this is reflected in their market cap. I may have a viable case with a big pay-out at the end of it.
Dr Smith’s negative identity prejudice against Ms Miller
was malpractice pure and simple. Current medical science does not support the thesis that black females are less credible than other patients.
produced an unjustified credibility deficit.
Nope. Malpractice- specifically ignoring current, evidence-based, protocols and best practice- was the problem. He should be struck off. Suppose I'm a White member of the KKK. I still don't want this fucker to treat me because maybe he has a prejudice against people who think Jennifer Aniston is hot & Mel Gibson is not.
He should have listened to her complaints. Because he did not, Ms Miller suffered from Dr Smith’s testimonial injustice and experienced epistemic harm. Negative identity prejudice is what it sounds like: the hearer is bigoted or negatively prejudiced against some aspect of the speaker’s identity. The prejudice is based upon the speaker’s identity characteristics that are (more or less) permanent, characteristics that track the speaker through her life, such as race, gender, disability, ethnicity, accent and a panoply of other attributes.
Why does this cretin keep repeating himself? Is it because he teaches cretins?
Unjustified credibility deficit occurs when the hearer does not afford the speaker the credibility she would otherwise be due.
E.g. this cunt refusing to accept my testimony that he is full of shit. Also, he denied my fucking humanity by refusing to represent me, pro bono, in my case against the Moon.
In other words, there is a gap between the credibility that the speaker is owed and what the speaker is actually afforded due to negative identity prejudice.
Actually, the law upholds this. Some years ago, I attended a friend's Bankruptcy hearing. The Judge asked if I was a lawyer. I said I wasn't. He told me to shut the fuck up. I had no locus standi. Similarly, a Surgeon is welcome to ignore advise given by the janitor even if, in his own country, that janitor was a Professor of Medicine. On the other hand, if the janitor produced evidence- e.g. an X-ray- that evidence should not be disregarded.
When Ms Miller repeatedly told Dr Smith that she was in a lot of pain, he might have thought she was lying or was an incompetent judge of her pain.
No. As a Doctor, he must have known that the stronger likelihood was that she was in a lot of pain.
But it is unlikely she lied for 10 hours, and even more unlikely she was not competent to judge her own pain. His negative identity prejudice – perhaps unconsciously – kept him from believing her.
No. This was a conscious decision.
Epistemic harm is different from emotional harm.
Emotions may have an epistemic basis and vice versa. The law, in some jurisdictions, recognises emotional harm but not epistemic harm. The former is an 'aggravating' or 'compounding' factor and can give rise to punitive or exemplary damages.
The latter may result in PTSDs (post-traumatic stress disorders) or severe anxiety or depression or other debilitating emotional conditions. An epistemic-harm victim is prevented from giving her knowledge because the aggressor epistemically objectifies her.
Courts are guilty of 'epistemic harm'. They prevent people from interrupting testimony to 'speak truth to power'. Denial of parrhesia is a denial of a fundamental human right. Everybody should have the right to audience. Also, I should be allowed to address a Joint Session of Congress at least twice a day to complain about the Moon mooning me.
Objectification includes denying the victim’s autonomy and denying the victim’s subjectivity.
Which is why the prison system must be dismantled immediately.
Dr Smith might be denying Ms Miller’s autonomy, meaning she lacks self-determination and should be treated as a child or an incompetent person.
But he isn't. He is a bad Doctor guilty of malpractice and negligence.
Alternatively, Dr Smith might be treating her not as a rational subject but as an object like furniture, ie, one whose feelings and experiences need not be accounted for.
I suppose this guy, as a lawyer, appeared for Surgeons charged with having chopped the wrong limb off. His argument was that the victim was actually a bean bag chair and thus didn't have, or ought not to have had, legs of any type. There's a good reason why people give up remunerative professions- like the law- in order to teach useless shit.
Tort claims can be created legally by legislatures and by courts. I will focus on courts. Judges have inherent legal authority to recognise new remedies for civil wrongs.
But a particular jurisdiction can be disintermediated or ignored if Judges do stupid shit. Legislatures can step in to expand Hohfeldian immunities or to put a ceiling on damages.
As society changes, and the types of wrongs change, courts can recognise and then remedy the wrongs.
They can be disintermediated. Also, Judges can be threatened with a beating till they resign. That's what just happened to the Chief Justice of Bangladesh. 'Inherent power' is inherently limited because the Law, like Pedagogy, is just a service industry. If you have crap Judges or crap Professors, then the Courts, or Academia, have mere 'nuisance value'. But a nuisance can be easily curbed by beating.
This happens gradually. The law is conservative; it takes its cues from culture and society and, as appropriate, fashions remedies responsive to society’s demands.
This nutter hasn't noticed that the culture of his own country has moved sharply to the Right. Nobody cares about the epistemic harm done to special little snowflakes.
In broad patterns, the path involves naming, dissemination and acceptance.
A fundamentally principle of Jurisprudence- or mathematical set theory- is that an 'intension' (name) should have a well-defined 'extension' (i.e. the set of things which it applies to). True, there may be an element of impredicativity in this- i.e. the extension changes as more and more case or statute law accumulates- but the law is protocol bound and 'buck stopped' (i.e. there is a final court of appeal).
Speaking generally, jurisprudence can evolve better with 'bright line' judgments then in fields where there is ambiguity. Why? It is 'regret minimizing' to disintermediate jurisdictions where there is greater uncertainty. Thus the courts end up dealing only with nuisance law suits or ones where the defendant promptly declares bankruptcy. This is bad for lawyers because they lose valuable business. Poorer lawyers means less talent is attracted and thus the pool from which judges are chosen becomes shallow and shitty. You then have a vicious circle which impacts the real economy.
Naming a thing allows people to identify it and therefore focus on it. As Plato writes in Cratylus, naming a thing can be instrumental to understanding the thing named.
No. Understanding is quite separate. I know that 'quark' is the name of some sciencey elementary particle. I don't understand quarks at all.
Dissemination involves a broader societal understanding of the thing.
No. The word God is very widely disseminated. Nobody understands God. Why the fuck does he allow the Moon to moon me? Is it coz I iz bleck?
The case of #MeToo is instructive. Named in 2006, it did not have societal dissemination until 2017 when the actress Alyssa Milano Tweeted #MeToo, acknowledging she had been sexually harassed and assaulted. After that, the Tweet went viral and millions of people used the hashtag, sharing their own experiences of sexual harassment and assault.
Moon fucking Me too'd me by incessantly mooning me. Sadly, others who may have been similarly traumatized were too epistemically challenged to stand with me.
The sheer number of women sharing their stories profoundly altered the social landscape and, despite some immediate pushback, society started to accept that sexual abusers could not be tolerated any longer.
Very true. That's why Trump is in the Oval Office. He refused to tolerate sexual abuse from porn stars.
Acceptance comes in two forms: societal acceptance and legal acceptance. Societal acceptance almost always precedes legal acceptance.
Does this cunt know that sexual abuse was always illegal? The term sexual harassment was popularized in the Seventies. But 'anti-mashing' laws existed in some Cities at the beginning of the Twentieth Century.
When societal acceptance occurs, the intent is for the thing named to be preserved and enhanced (in the case of a societal good), or to be rejected and diminished (in the case of a societal harm). Legal acceptance is when the thing named has a legally cognisable status. In the case of #MeToo, society is still working through what legal acceptance means.
No. 'Me Too' refers to actions already illegal. Sadly, it does not apply to the Moon displaying its rump to me in a lubricious manner.
Two tort claims – privacy rights and emotional distress – have followed this route of naming, dissemination and acceptance, and epistemic harm claims could too.
No. Privacy is well defined. Emotions are well defined. People can see when a person is happy or sad. Nobody knows the epistemic harm caused to me when the Moon moons me as if to say my hero Neil Armstrong pleasured it anally thus violating his marital vows. So did Buzz Aldrin but he went to MIT and thus couldn't afford to be too picky in such matters.
Around the year 1900, courts and plaintiffs in the US recognised that the technology of photographic images could invade one’s private life, but a direct remedy for this privacy invasion did not exist. Society wanted privacy protected and courts fashioned a remedy for this wrong, relying in part on Samuel Warren and Louis Brandeis’s seminal legal article, ‘The Right to Privacy’ (1890). Prior to publication, there was not a name for privacy rights but, afterwards, it was named and identified. Once named, it became easier to protect. In 1905, one of the first reported privacy rights cases was successful in the US.
Germany introduced a law to the same effect in 1907. However, beating and killing photographers had an even more salutary effect. The best remedies are the ones you can yourself provide.
Legal remedies for emotional distress took a more circuitous path. Although emotional distress claims are rooted in the ancient tort for outrage, courts were cautious in recognising emotional distress claims. Judges were sceptical, thinking emotional distress claims could be too speculative or frivolous. At first, judges allowed emotional distress claims only if they were based upon the aggressor’s intentional conduct or if they were tied to physical injury to the victim (or a close bystander). Later, these guardrails were relaxed or even abandoned in some jurisdictions as courts became comfortable with emotional distress claims. The courts allowed claims based upon the aggressor’s negligence. These are called NIED (or ‘negligent infliction of emotional distress’) claims. In addition, the courts allowed standalone claims, meaning the claims were tied to emotional distress only and did not require physical injury.
One reason for the change was that new markets emerged where it was in the collective interest that 'bad actors' be weeded out. Trust is what permits a market to burgeon. There is an emotional component to trust. An industry benefits when those employed in it are attentive to the emotions of the paying public.
The ‘naming’ moment came in 1980 when the American Psychiatric Association updated the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) to recognise PTSDs.
The UK was slower off the mark. I suppose people thought PTSD was 'shell shock'- i.e. something that happened to guys in the trenches.
Recognition by the DSM-III meant there was ‘[g]reater rigor in diagnosing emotional harm’, according to the commentary to the Restatement (Third) of Torts. Courts then had an independent assessment of emotional harms, as recognised by the psychiatry profession. As society understood the dangers from PTSD and other emotional harms, it demanded victims be compensated and wrongdoers be held liable. As an example of a standalone NIED claim, a mother sued her doctor for malpractice when her baby died after his umbilical cord was wrapped around his neck, causing deprivation of oxygen during his birth. The Supreme Court of California in 1992 allowed the mother to seek damages for her emotional anguish even though she was not herself physically injured.
This is a bad example. The Court decided not to use the common law remedy relating to loss of companionship for 'public policy' reasons. In other words, they understood that professional indemnity insurance would go through the roof if a person could be compensated for not having the company of a son or daughter for fifty or sixty years. That would mean less provision of medical care for expectant mothers.
Legal acceptance of epistemic harm claims could follow the same path as claims for privacy violations and emotional distress.
This would permit Dr. Gupta to countersue the woman because she inflicted epistemic harm on him by thinking he was a negligent piece of shit.
Epistemic harm claims today are somewhere between naming and dissemination, but not quite at broad societal acceptance. The concepts of testimonial injustice and epistemic harm are fairly well known in academic circles, but they need greater dissemination to the general public.
They are like the concept that heterosexual dicks cause RAPE! Biden should have chopped them all off. That's the real reason the Dems lost.
They need, in other words, their #MeToo moment.
Did you know the Moon keeps mooning me? You didn't? That's a fucking epistemic injustice right there! I'm gonna sue the pants off you.
If that ever comes, epistemic harm might find social and ultimately legal acceptance but the process could take decades from naming to the first successful legal case (privacy rights claims took 15 years, and standalone NIED claims took 12 years).
In both cases there were alternative remedies.
Epistemic harm claims, if and when legally recognised, could parallel NIED claims because the types of injury claimed are adjacent (epistemic vs emotional), and both would be negligence claims, whose elements are familiar to courts.
Maybe it would be a good thing if this Professor's students could sue him or the University where he teaches for 'epistemic injustice'- i.e. indoctrination in stupid shite.
In a civil tort lawsuit, to prove a defendant is liable for a NIED claim, a victim must prove the following elements by a preponderance of evidence: the defendant was negligent; the victim suffered ‘serious emotional distress’; and the defendant’s negligence caused victims’ serious emotional distress. A similar process could well hold for epistemic harm.
So, if you are told by the College that a degree in Philosophy will make you smarter, you can sue because you are demonstrably stupider and more useless than before you entered that course of study.
Of course, courts may become concerned about victims bringing meritless and frivolous claims for epistemic harm and, as such, might impose guardrails such as tying epistemic harm to victims’ physical injury.
You can sue a College for fraudulent mis-representation. What about the epistemic harm you suffer because you come to learn that some of the faculty have dicks- heterosexual dicks? You are traumatized by your complicity in the rape of the Environment! That's totes triggering dude.
Ms Miller’s would be a good test case because physical harm resulted from her epistemic harm.
It is double counting- just like 'intersectionality'- and should be excluded for that reason.
Courts could later decide whether to allow standalone epistemic harm cases.
They can decide to do stupid shit. But they will be disintermediated or ignored.
All negligence claims are predicated on defendants having a legal duty to certain persons to exercise reasonable care.
Nobody has a duty to have such a duty. Why not push the 'obligation' onto a private limited company or just operate outside the jurisdiction?
The legal term ‘duty’ has a specific meaning in negligence torts, and is different from the philosophical term. Philosophers often think of duties as derived from natural rights or epistemic principles and as being imposed uniformly on everyone.
Which is why we consider them stupid and useless.
Legal duties, however, are not imposed uniformly on all persons but apply only to limited persons, and are imposed solely by statute or contract and from common law relationships like the duties parents owe minor children, attorneys owe clients and doctors owe patients.
It is always possible to shuffle off the obligation or severely limit when it can arise.
Legal liability for negligence is imposed only on a person who has a legal duty to another person. ‘Negligence in the air’ (that is, negligence to the general populace, without a corresponding duty) is not a legally cognisable concept.
Which is why I can't sue the Moon or even such clouds as are negligent in shielding me from its mooning.
Applying the proposed epistemic harm elements to Ms Miller’s case shows that Dr Smith negligently caused her epistemic harm.
Also, he had a penis. Penises cause RAPE! including rape of the Environment. That's totes triggering not just to Miller but also to me. I'm owed damages- right?
Unjustified credibility deficit may be the most difficult legal element to prove
unless a statistical approach is taken.
because hearers generally do not have any obligation to afford credibility to speakers.
Doctors are obliged to believe patients are in pain when they say so unless there is evidence that the patient is a drug addict who wants opioids or has Munchausen's syndrome or something of that sort.
Hearers can listen to speakers, or not; believe them, or not; believe select parts, or not. Legally, hearers don’t have to extend any credibility to anyone unless they have a legal duty to that person.
They may have a superior Hohfeldian immunity- e.g. the Doctor who has a duty to alleviate the suffering of a patient by performing an abortion may have an immunity arising from religious belief that abortion, even to save the mother's life, is forbidden.
The extent of the credibility that is due varies from situation to situation, and any formulation must be flexible in recognising this.
This is a matter of fact subject to a 'reasonable person' test. Juries can decide on this. Some rough and ready heuristic may be incorporated into relevant protocols.
There is not some Platonic ideal providing an algorithm that the speaker is owed, say, 70 units of credibility but received only 30 units, leaving a 40-unit deficit.
So a trainee Doctor may be told to discount 70 percent of a 'pain claim' made by an outpatient who shows obvious signs of being a drug addict. Give him something by all means. Just don't give him as much of the opiate as he wants. It will worsen his underlying condition.
Rather, it is the legal duty that provides the context for what credibility is due. +
No. Credibility is a matter of fact, not law. It is permissible to say 'I don't believe you. Maybe that's because of some shortcoming of mine. Some other lawyer/Doctor/Professor may believe you. Get a second or third or fourth opinion till you hit paydirt.
So a balance must be struck.
That balance must consider public policy. Hard cases make bad law. We may feel strongly against Smith. But that's not a reason to fuck up jurisprudence by introducing stupid shite like 'intersectionality' or 'epistemic injustice' or 'getting triggered by heterosexual dicks'.
How much credibility is the speaker owed and was the speaker’s credibility decreased due to the hearer’s negative identity prejudice against the speaker?
This is a factual matter regarding what a reasonable person- or a fellow professional- would do.
Typically, plaintiffs would try to establish an unjustified credibility deficit through testimonial, documentary, expert and other evidence, which is then sifted and weighed by the jury. Ms Miller may be able to adduce her own testimony (‘I told Dr Smith repeatedly I was in pain!’) and perhaps nurses or other staff could corroborate her statements. Expert testimony might be shown allowing the jury to infer that doctors, in general, may have negative identity prejudices or unduly assign credibility deficits to Black patients, citing the aforementioned Beach and Hoffmann studies.
That won't cut it. It would be easy to show that Beach & Hoffman was 'junk social science' based on p-hacking.
The doctor’s notes would be produced if they included incriminatory or exculpatory language. Consider, in the alternative, the following statements from Dr Smith’s hypothetical notes about Ms Miller:
Note 1: ‘Patient’s pain is 8 on a scale of 10.’
Versus
Note 2: ‘Patient claims her pain is 8 on a scale of 10.’
That should be Patient 'reports'.
In a lawsuit, Note 1 might be used to assert that Dr Smith knew of Ms Miller’s pain and yet did nothing for it. Note 2 is ambiguous but one reading is Ms Miller ‘claimed’ she was in pain but Dr Smith did not believe her. There is a significant but unfortunate difference between a doctor describing the pain of a Black patient as she ‘is in pain’ and as she ‘claims she’s in pain’, according to a 2024 study by Courtney R Lee and co-authors.
That's why 'reports' is better.
The Lee study reviewed clinicians’ notes about their patients and found clinicians were more likely to cast doubt when Black patients said they were in pain, compared with white patients. As one Black patient put it, doctors ‘just don’t believe us.’ In philosophical terms, the clinicians had an unjustified credibility deficit against the Black patients likely due to a negative identity prejudice. Proving an unjustified credibility deficit may be difficult but it should not be insuperable.
Why not focus on the real issue- service provision discrimination- using statistical analysis of a type promoted by Roland Fryer? Will they not fit with this dude's 'White Saviour' complex?
Philosophers have named the concept of epistemic harm.
Philosophers have eaten their own shit so as to shit out shittier shit for their students to partake of.
Now it is being disseminated into the broader society.
Broader society is laughing at you, mate.
Miranda Fricker
who taught at Sheffield. Sheffield! How fucking shitty do you have to be to graduate from Oxford and end up teaching in Sheffield?
stated that her goals for exploring testimonial injustice are identifying it, protesting it, and avoiding it. These goals are laudable. To that list, I would add one more goal: remedying it.
By eating your own shit. Meanwhile the Moon continues to moon me and thus affront my dignity and deny me my fundamental human right to sue- not its pants off because it has already removed its pants- but get a shedload of money in damages from it.
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