Friday, September 19, 2014

Wigmore Lifetime Achievement Award

Peter Tillers will be the recipient of the Wigmore Lifetime Achievement Award at this year’s (Jan. 2015) AALS meeting; the presentation will be made during our section’s joint luncheon with the Criminal Justice section. Thanks to all of you who nominated candidates, and thanks to the officers and executive committee members of the evidence section for discussing the nominations and voting. 

David S. Caudill (Chair, AALS Section on Evidence)
Professor and Goldberg Family Chair in Law
Villanova University School of Law


Thursday, September 18, 2014

Precise reasoning about reasoning with fuzzy words

Comment by Tillers: legal scholars might avoid uttering a great deal of nonsense about imprecise legal concepts if they took the trouble to study fuzzy logic.

Lotfi A. Zadeh:

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Dear members of the BISC Group: 

    The concept of FL-generalization was introduced in my 2008 paper "Is there a need for fuzzy logic?" Information Sciences. The basic importance of FL-generalization has not been fully recognized as yet. For those who are not familiar with FL-generalization, a brief explanation is provided in the following.  

    In large measure, science -- including mathematics -- is based on the classical, Aristotelian, bivalent logic. Bivalent-logic-based science has achieved brilliant successes. But what is striking is that bivalent-logic-based science ignores a basic reality. In human cognition, almost all classes have unsharp (fuzzy) boundaries. Bivalent logic is not the right logic for dealing with such classes, nor is bivalent-logic-based probability theory. What is needed for this purpose is fuzzy set theory and, more broadly, fuzzy logic, FL. Informally, fuzzy logic is a system of reasoning and computation in which the objects of reasoning and computation are classes with unsharp (fuzzy) boundaries.  

    The point of departure in fuzzy set theory is a generalization of the concept of a set to the concept of a fuzzy set. A fuzzy set, A, in a space, U, is a graduated class of elements of U. Graduation involves association of each element, u, of U with its grade of membership in A. This very simple generalization has wide-ranging ramifications. 

    Let T be a bivalent-logic-based theory, formalism, algorithm, concept, etc. T is FL-generalized by adding to T the concept of a fuzzy set along with associated concepts and techniques. The result of FL-generalization is fuzzy T.Examples. Fuzzy arithmetic, fuzzy linear programming, fuzzy control, fuzzy stability, fuzzy support vector machine, fuzzy group theory, fuzzy topology, fuzzy convex set, fuzzy back-propagation algorithm, fuzzy probability, etc. T may be viewed as a special case of fuzzy T. FL-generalization is a matter of degree, reflecting the extent to which sets in T are replaced by fuzzy sets. In the limit, FL-generalization of T involves a shift in the foundations of T from bivalent logic to fuzzy logic. 

    What is gained by FL-generalization? There are two principal rationales. First, FL-generalization opens the door to construction of better models of reality. There is a fundamental conflict between two realities. In the world of human cognition, almost all concepts are classes with unsharp (fuzzy) boundaries, that is, are a matter of degree. In the world of science, almost all definitions are bivalent, with no degrees allowed. Here are a few examples. In economics, the official definition of recession is bivalent. Specifically, economy is in a state of recession if the GDP declined in two successive quarters. Realistically, recession is not a bivalent concept -- it is a matter of degree. In probability theory, stationarity is defined as a bivalent concept. Realistically, stationarity is a matter of degree. In stability theory, stability is defined as a bivalent concept. Realistically, stability is a matter of degree, and so on, and on and on. FL-generalization of definitions, serves an important purpose--replacement of bivalent definitions with fuzzy-logic-based definitions which are better models of reality. 

    The second rationale has a position of centrality in applications of fuzzy logic. Specifically, the second rationale involves an exploitation of tolerance for imprecision through replacement of numbers with precisiated words. A word is precisiated by representing it as a label of a fuzzy set which has a specified membership function. A striking example of exploitation of a tolerance for imprecision is the problem of stabilization of an inverted pendulum. The traditional approach starts with formulation of differential equations of motion, followed by application of stability theory. In the fuzzy-logic-based approach, a small number of very simple fuzzy if-then rules, with precisiated words in the antecedents and consequents, are employed to describe the dynamics of the inverted pendulum. This is the essence of what is called the Fuzzy Logic Gambit. Fuzzy Logic Gambit is an essential ingredient of the formalism of Computing with Words (CWW). Basically, CWW may be viewed as a progression from the use of numbers to the use of precisiated words. 
     In summary, FL-generalization may be viewed as an important instrument of generalization in which the point of departure is replacement of the concept of a set with the concept of a fuzzy set. In large measure, scientific progress is driven by a quest for better models of reality. What I see in my crystal ball is the following. In coming years, more and more theories, formalisms, algorithms and concepts will be FL-generalized. This is likely to be the case even in mathematics--a discipline in which the word "fuzzy" strikes a dissonant note. What should be recognized is that shifting foundations of a theory from bivalent logic to fuzzy logic need not involve a loss of rigor and precision. Example. Fuzzy topology is every bit as rigorous and precise as classical topology. Comments are welcome.

                 Regards,

                 Lotfi
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Lotfi A. Zadeh
Professor Emeritus
Director, Berkeley Initiative in Soft Computing (BISC)
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Wednesday, September 10, 2014

The Trouble With Harvard


Steven Pinker The Trouble With Harvard New Republic (September 4, 2014)


Extract:

Deresiewicz writes engagingly about the wacky ways of elite university admissions, and he deserves credit for opening a debate on policies which have been shrouded in Victorian daintiness and bureaucratic obfuscation. Unfortunately, his article is a poor foundation for diagnosing and treating the illness. Long on dogmatic assertion and short on objective analysis, the article is driven by a literarism which exalts bohemian authenticity over worldly success and analytical brainpower. And his grapeshot inflicts a lot of collateral damage while sparing the biggest pachyderms in the parlor. 



But the biggest problem is that the advice in Deresiewicz’s title is perversely wrongheaded. If your kid has survived the application ordeal and has been offered a place at an elite university, don’t punish her for the irrationalities of a system she did nothing to create; by all means send her there! The economist Caroline Hoxby has shown that selective universities spendtwenty times more on student instruction, support, and facilities than less selective ones, while their students pay for a much smaller fraction of it, thanks to gifts to the college. Because of these advantages, it’s the selective institutions that are the real bargains in the university marketplace. Holding qualifications constant, graduates of a selective university are more likely to graduate on time, will tend to find a more desirable spouse, and will earn 20 percent more than those of less selective universitiesevery year for the rest of their working lives. These advantages swamp any differences in tuition and other expenses, which in any case are often lower than those of less selective schools because of more generous need-based financial aid. The Ivy admissions sweepstakes may be irrational, but the parents and teenagers who clamber to win it are not.



Likei many observers of American universities, I used to believe the following story. Once upon a time Harvard was a finishing school for the plutocracy, where preppies and Kennedy scions earned gentleman’s Cs while playing football, singing in choral groups, and male-bonding at final clubs, while the blackballed Jews at CCNY founded left-wing magazines and slogged away in labs that prepared them for their Nobel prizes in science. Then came Sputnik, the '60s, and the decline of genteel racism and anti-Semitism, and Harvard had to retool itself as a meritocracy, whose best-and-brightest gifts to America would include recombinant DNA, Wall Street quants, The Simpsons, Facebook, and the masthead of The New Republic.
This story has a grain of truth in it: Hoxby has documented that the academic standards for admission to elite universities have risen over the decades. But entrenched cultures die hard, and the ghost of Oliver Barrett IV still haunts every segment of the Harvard pipeline. 
At the admissions end, it’s common knowledge that Harvard selects at most10 percent (some say 5 percent) of its students on the basis of academic merit. At an orientation session for new faculty, we were told that Harvard “wants to train the future leaders of the world, not the future academics of the world,” and that “We want to read about our student in Newsweek 20 years hence” (prompting the woman next to me to mutter, “Like the Unabomer”). The rest are selected “holistically,” based also on participation in athletics, the arts, charity, activism, travel, and, we inferred (Not in front of the children!), race, donations, and legacy status (since anything can be hidden behind the holistic fig leaf).
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Criminal Corporate Character


Criminal Corporate Character


Robert E. Wagner 


City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law

August 15, 2014

65 Florida Law Review 1293 (2013) 

Abstract:   

In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals.
Number of Pages in PDF File: 37
Keywords: corporations, evidence, white collar crime, character, corporate crime
JEL Classification: K22, K14
Accepted Paper Series 


Download This Paper

Date posted: August 15, 2014  

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Wednesday, September 03, 2014

New Jersey's eyewitness identification jury instructions

"The New Jersey instructiondid not improve juror's ability to discern quality; rather, jurors indiscriminatingly discounted “weak” and “strong” testimony in equal measure. "


"The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity"
Arizona Legal Studies Discussion Paper No. 14-17


ATHAN P. PAPAILIOU, University of Arizona
DAVID V. YOKUM, University of Arizona - James E. Rogers College of Law, University of Arizona - College of Science
Email: dyokum@email.arizona.edu

CHRISTOPHER T. ROBERTSON, University of Arizona - James E. Rogers College of Law, Harvard University - Edmond J. Safra Center for Ethics, Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics
Email: chris.robertson@law.arizona.edu


In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. The courts have only recently begun to react to this evidence, and New Jersey has, in particular, reformed its instructions to jurors, notifying them about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of certain lineup procedures including blinding of the administrator.

Our experiment tested the efficacy of New Jersey’s real-world intervention. In a 2×2 between-subjects design, mock jurors (N = 335) watched a 35-minute murder trial, wherein identification quality was either “weak” or “strong” and either the New Jersey or a “standard” jury instruction was delivered. Jurors were less than half as likely to convict when the New Jersey instruction was used (OR = 2.55; 95% CI = 1.37 – 4.89, p < .001). The New Jersey instruction, however, did not improve juror's ability to discern quality; rather, jurors indiscriminatingly discounted “weak” and “strong” testimony in equal measure. Trial judges should consider only giving the instruction for weak eyewitness evidence, to thereby increase the diagnosticity of trials.


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Tuesday, August 05, 2014

Kevin Clermont on the "conjunction paradox"


The so-called conjunction paradox has bedeviled modern theorizing about burdens of proof ever since L Jonathan Cohen introduced the paradox some decades ago. Kevin Clermont makes a powerful argument that multivalent logic rather than bivalent logic describes the task that factfinders encounter when they engage in fact-finding in legal proceedings and that, if that's the case, the conjunction paradox disappears. See Kevin Clermont Conjunction of Evidence and Multivalent Logic (July 24, 2014).


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Wednesday, July 30, 2014

The Central Park Jogger Case: A Dissenting View


MICHAEL F. ARMSTRONG, WSJ Persistent Myths in the Central Park Jogger Case (July 29, 2014)

Extract:

"The defendants were convicted in 1990 for participating, with 30 or 35 other 14- to 16-year-olds, in a series of attacks in Central Park on the evening of April 19, 1989. The convictions were based largely on the defendants' own statements to the police. By far the most serious of the assaults was the horrific, bloody rape and near-murder of a 29-year-old female jogger, who survived, but without any memory of what had happened. The defendants served prison sentences from six to 13 years.

"Their convictions were vacated in 2002 when Matias Reyes, an imprisoned serial rapist and killer, volunteered that he had raped the jogger, a claim confirmed by DNA tests, and that he had done it alone, a claim resting solely on his credibility.

"In the lawsuit against the city that followed, police and prosecutors honored a court request not to discuss the case publicly. The defendants—now civil plaintiffs—launched a high-powered publicity campaign that has persuaded many that they were completely innocent, that they had been coerced and fed false stories by the police, and that they have been exonerated. None of these contentions is accurate."



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Sunday, July 27, 2014

"Don't Send Your Kid to the Ivy League"

This is a very interesting essay (but – perhaps this is a minor point – I have grave reservations about William Deresiewicz's suggestion to weight SAT scores to help offset the disadvantages that applicants from lower socioeconomic backgrounds suffer from).

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Sunday, July 13, 2014

On the recording of confessions


See Jennifer Mnookin's Op-Ed  on the recording of confessions.



Extract:

Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice.
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Thursday, July 03, 2014

Period. Full Stop?

Jennifer Schuessler, If Only Thomas Jefferson Could Settle the Issue NYTimes (July 2, 2014)

Extract:

Every Fourth of July, some Americans sit down to read the Declaration of Independence, reacquainting themselves with the nation’s founding charter exactly as it was signed by the Second Continental Congress in 1776.

Or almost exactly? A scholar is now saying that the official transcript of the document produced by the National Archives and Records Administration contains a significant error — smack in the middle of the sentence beginning “We hold these truths to be self-evident,” no less.

The error, according to Danielle Allen, a professor at the Institute for Advanced Study in Princeton, N.J., concerns a period that appears right after the phrase “life, liberty and the pursuit of happiness” in the transcript, but almost certainly not, she maintains, on the badly faded parchment original.

That errant spot of ink, she believes, makes a difference, contributing to what she calls a “routine but serious misunderstanding” of the document.

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. ...


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Tillers: It has often been said that in the 18th century and before English-speaking peoples were remarkably lackadaisical about punctuation. If this is true, whether or not the period was there in the original Declaration of Independence was less significant than it would be to a 21st Century mind – and 18th-century "sloppiness" about punctuation suggests that "close textual analysis" to ascertain the meaning or intent of 18th-century documents will go badly wrong if the text being studied is studied in isolation. Are you listening, original intent theorists?
 
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Friday, May 23, 2014

Larry Laudan on seriatim versus v. contemporaneous eyewitness identifications



Abstract:      
Recent research has revealed that sequential lineup eyewitness identifications are less likely to falsely identify an innocent suspect as the culprit than are traditional simultaneous lineups. This has led numerous reformers to advocate (and many jurisdictions to accept) that the latter procedure should be replaced by the former. Clark has rightly pointed out that mis-identification data has another twist that almost everyone else has ignored; to wit, sequential lineups are much more likely to lead to false negatives than are simultaneous lineups. 

If, as we have every reason to believe, both types of lineups are more likely to include a guilty party than to include only innocent suspects, there are powerful reasons to say, as Clark does, that sequential lineups are apt to have higher aggregate error rates than simultaneous lineups do. That should give pause to the growing movement to replace the latter by the former.

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Thursday, May 22, 2014

How is fuzzy logic doing? Is it passé?

Professor Lotfi Zadeh sent the following message today to his discussion list (BISC):
How is fuzzy logic doing? A significant measure is the number of publications with "fuzzy" in title (annually). My administrative assistant, Ixel Chavez, has compiled the information which follows. Comments are welcome.

    Regards,

    Lotfi






 Annual number of publications with "fuzzy" in title (
Google Scholar)1993: 5,030
1994: 5,700
1995: 6,340
1996: 6,620
1997: 6,810
1998: 7,130
1999: 7,650
2000: 7,620
2001: 8,260
2002: 8,650
2003: 9,240
2004: 10,900
2005: 12,300
2006: 13,900
2007: 14,800
2008: 16,000
2009: 17,900
2010: 18,700
2011: 18,900
2012: 18,700
2013: 17,000

Total: 238,150 (20 year total)



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Monday, April 28, 2014

Wednesday, April 23, 2014

Michigan - Sufficiency of Evidence; Inference on Inference


People v. LaFountain, 495 Mich. 968 (March 28, 2014):

In this case, defendant only disputes whether there was sufficient evidence to support the jury's finding that her operation of a methamphetamine laboratory “involve[d] the possession, placement, or use of a firearm.” ... Contrary to the dissent's suggestion, there is absolutely nothing wrong with “conviction[s] built on inferences derived from circumstantial evidence ....” People v. Hardiman, 466 Mich. 417, 430, 646 N.W.2d 158 (2002). Indeed, it is important for appellate courts to remember that “[i]t is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” Id. at 428, 646 N.W.2d 15.

Judge Viviano, joined by Cavanah and McCormack, dissenting:

I believe the jury's conclusion that the firearms were involved in the drug activity simply because they were nearby and could have been useful was, at best, speculation.Speculation, even based on the reasonable observation that defendant could have used the firearms for defense, is not sufficient to sustain a criminal conviction. For the due process right described in Jackson v. Virginia20 to be meaningful, there must be some point above which the evidence presented at a trial must rise in order to justify rational inferences of guilt beyond a reasonable doubt.21[21. To be clear, I do not believe that this Court should resurrect the “no inferences upon inferences” rule that it wisely rejected in People v. Hardiman, 466 Mich. 417, 646 N.W.2d 158 (2002). In that case, we relied heavily on the analysis provided by Professor John Henry Wigmore, and as noted in Wigmore's treatise, the proper question concerning the sufficiency of evidence “is always whether, in view of all patterns of corroborating and contradicting evidence at all levels of all inferential chains, the final [fact to be proved] has been shown to the degree of likelihood required by the applicable standard of persuasion, whatever that may be.” 1A Wigmore, Evidence (Tillers rev.), § 41, p. 1138. In a criminal trial, in which the standard of persuasion is proof beyond a reasonable doubt and an individual's liberty is usually at stake, it is of the utmost importance that reviewing courts enforce the rule that “[j]uries are not permitted to convict a defendant based on speculation or mere suspicion.” United States v. Michel, 446 F.3d 1122, 1127 (C.A.10, 2006).]

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Saturday, April 12, 2014

PASSING OF JOHN H. MANSFIELD


John H. Mansfield, obituary, Boston Globe (April 13, 2014):


MANSFIELD, John Howard Of Brookline, MA, died on April 10, 2014 at the age of 85. He was the John Watson Professor of Law (Emeritus) at Harvard Law School. Beloved husband of Maria Luisa Fernandez y Espinosa and loving brother of Charlotte Mansfield Murphy, Mary Elinor "Polly" Mansfield Post, and Diana Mansfield Russell. Son of the late Lewis Mansfield and Elinor Perkins of Boston. John was spiritual and intellectually active Roman Catholic, for fifty years he attended Saint Paul Church in Cambridge. Since 2012 he attended Saint Mary of the Assumption Parish in Brookline. John H. Mansfield earned his A.B. from Harvard College and his L.L.B. from Harvard Law School. He then served as clerk for Justice Royer Traynor of the Supreme Court of California and Justice Felix Frankfurter. He joined the faculty of Harvard Law School in 1958, retiring in 2008. He was completely dedicated to the Harvard Law School, where he worked for a half-century. He left a profound mark on the school, as well as on every student he taught and advised. Many of his much-loved foreign students have kept in touch with him and his wife over many years. He was, indeed, a member of the last great generation, together with his friends and colleagues Mark Howe, Philip Areeda and David Westfall. To be well prepared, on time, and appropriately dressed for class came naturally to John. His work in comparative and interdisciplinary areas put him in the avant-garde of legal thought. Professor Mansfield was known for his brilliant courses in constitutional law, evidence, and issues of church and state. As James A. Sonne wrote in The Harvard Law School Bulletin (Fall 2008): In his scholarship, he has written landmark works on the jury system, scientific evidence, law and religion, and legal history, and has written extensively on the law of India. All his work shows the dexterity of mind and clarity of thought of a true teacher-scholar. Funeral Mass at 10 a.m. on Wednesday, April 16 at St. Mary of the Assumption Church at 3 Linden Place in Brookline, 02445. A Novena at St. Mary will follow: May: Monday 26 at 9 a.m.; Tuesday 27 at 12:10 p.m.; Wednesday 28 at 12:10 p.m.; Thursday 29 at 12:10 p.m.; Friday 30 at 12:10 p.m.; Saturday 31 at 8 a.m. June: Sunday 1 at 10:30 a.m.; Monday 2 at 12:10 p.m.; Tuesday 3 at 12:10 p.m. In lieu of flowers, donations may be made to: *Holy Land Christian Ecumenical Foundation. www.hcef.org which is dedicated to helping Christians concerned about Christianity's survival in the Holy Land. *Saint Boniface Haiti Foundation. www.haithealth.org which provides healthcare to the poor in the rural area of Fond Des Blancs in Haiti through Saint Boniface Hospital. */Medecins Sans frontiers.www.doctorswithoutborders.org which is an international medical humanitarian organization treating people where the need is greatest


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Monday, April 07, 2014

Time to mobilize


It is time for Estonians, Latvians, and Lithuanians in the United States to mobilize. Mr. Putin probably wants to expand westward next. And Obama and Merkel cannot yet be counted on.

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