Burdens of Proof in Modern Discourse

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This legal, philosophical, and rhetorical study by Richard H. Gaskins provides the first systematic treatment of arguments-from-ignorance across a wide range of modern discourse-from constitutional law, scientific inquiry, and moral philosophy to organizational behavior, computer operation, and personal interaction.
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Product Details

  • ISBN-13: 9780300063066
  • Publisher: Yale University Press
  • Publication date: 2/28/1995
  • Edition description: REISSUE
  • Pages: 388
  • Product dimensions: 6.14 (w) x 9.21 (h) x 0.80 (d)

Table of Contents

Introduction 1
Arguing from Ignorance 1
The Risk of Non-Persuasion 3
The Varieties of Ignorance 4
The Challenge to Authority 6
The Rhetorical Significance of Legal Proceedings 7
Beyond the Crisis of Authority 9
Pt. I Jurisprudential Analogies
Ch. 1 The Burden of Proof: From Rhetoric to Dialectic 15
Judicial Procedure as a Model of Practical Reasoning 15
The Burden of Proof in American Law 21
Between Logic and Rhetoric 30
Dialectic and the Problem of Authority 37
Ch. 2 Shifting the Presumptions of Social Order: Equality through Nondiscrimination 47
Judicial Strategies and Public Discourse 47
Out of the Ashes of Legal Realism: Warren Court Activism 50
The Judicial Management of Proof: Brown v. Board of Education 54
The Invention of Strict Scrutiny 57
Using Strategic Burdens: Poverty, Gender, and Affirmative Action 61
The Presumption of Constitutionality 69
Ch. 3 Institutionalizing the Challenge to Authority: Justice through Correct Procedure 75
Court Procedure as a Model of Social Justice 73
Due Process and the Burden of Proof 79
The Procedural Challenge to Bureaucratic Authority 84
Skeptical Views of Bureaucratic Action 89
Due Process Rhetoric in Family Law: Shifting Cultural Presumptions 94
Conclusion: Ironies of Institutionalized Skepticism 101
Ch. 4 Antinomies of Interpretation: Critical Perspectives on Burden-Shifting 103
Jurisprudential Perspectives on Bounded Rationality 103
The Revolt against Ignorance: Taking Control of Rational Boundaries 108
Transcendental Skepticism: The Anti-Foundationalist Presumption 114
Pragmatic Reason and the Boundaries of Legitimacy 123
Argument as Process: Transcendental Dialectics 128
Pt. II Philosophical Presumptions
Ch. 5 The Erosion of Scientific Authority 141
Authority and Community in Science and Technology 141
Technical Authority and the Uses of Presumption 145
Paradigm Shifts and the Dialectic of Scientific Theories 152
The Judicialization of Scientific Conflict: The Science Court 161
Postulating a Higher Reality 167
Ch. 6 The Rise of Ethical Authority 169
The Transcendental Turn 169
Ethicizing the Law: The Shift to Transcendental Authority 171
Ethical Authority: Foundations in Transcendental Procedures 178
Ethical Authority: The Search for Temporal Foundations 183
The Dispersion of Ethical Authority 190
Putting Ethics into Practice: Judicializing the Professions 197
Ch. 7 Transcendental Foundations 205
Modern Discourse and thc Conflict of Authorities 205
Kantian Origins of the Argument-from-Ignorance 209
The Transcendental Argument-from-Ignorance: A General Model 217
Neo-Kantian Variations on Transcendental Polemics 224
The Fragmentation of Transcendental Authority 230
Ch. 8 Dialectical Alternatives 240
Presumptions, Paradoxes, and Conceptual Blind Spots 240
The Hegelian Response to Kantian Antinomies 244
A General Model of Hegelian Dialectical Procedure 251
Dialectic in the Public Sphere: Institutional Presumptions 262
Notes 275
Index 359
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