Post-9/11 Reflections on Immigration and Liberty

A Post-9/11 View of Liberty

Late yesterday afternoon -- in the early evening -- I rode my bicycle through Battery Park City and near the site of the World Trade Center. I rode on the walkway (and bikeway) that lies along the Hudson River. When I came to the lower end of Battery Park City -- this is an area that lies near Battery Park itself --, I brought my bike to a halt. I wanted to take a good look around.

The vista was grand. Although the day had been blustery, the sky to the west was clearing -- just as the sun was setting. The dense post-9/11 ferry traffic made the Hudson's ever-churning waters even more turbulent. Looking across the Hudson, in a southerly or southwesterly direction, I could see the Statue of Liberty.

While the vista was grand, the Statue of Liberty did not look monumental; the large office towers behind me (in lower Manhattan) and the new office towers springing up on the other side of the Hudson (in New Jersey) made one of the world's largest statues look a bit shrunken. Despite this, the statue, which was caught now and then in the rays of the setting sun, made a very pleasant impression. Furthermore, even in its diminished form, the Statue of Liberty brought to my mind some events that took place half a century ago, at a time when my perspective was rather different.

Liberty as Vehicle

Liberty brought me to the United States.

Literally.

A "Liberty Ship" brought me to the United States. Liberty Ships were troop carriers during World War II. They were used to transport refugees to the United States after WW II.

The Priority of Liberty

The first thing I saw in the United States was Liberty.

Literally.

At dawn on a day in May of 1950 I was six years old, I was awake, and I was on the deck of the Liberty Ship that had brought my family and me (all three of us) -- and many other "Displaced Persons" -- across the Atlantic. The sun was literally rising out of the ocean in the east -- it was a rosy-fingered dawn --, the sun was just breaking above the eastern horizon when an announcement was made and somehow communicated (I spoke no English) --, an announcement was somehow communicated that our ship was nearing the harbor of New York City. I peered toward the west and saw nothing. (It was a misty morning, I think.) I looked again and I saw a large golden statute (holding a beacon) standing on the ocean water. It was the Statue of Liberty, I later learned. Moreover, this statue -- the Statue of Liberty -- was the very first thing I saw in America. And, as I have already said, the Statue of Liberty that I saw before me was -- apparently because of the rising sun behind me --, the physical symbol of liberty that I saw that day was thoroughly and brilliantly golden. (I had not been told that in America all the streets are paved in gold.)

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The Moral of my Little Memoir of Liberty: It's a pretty good country over here. Let's keep it free.

Rethinking Relevance

Perhaps you have heard it said that relevance is the first principle of the law of evidence.

A. What does this high-sounding principle mean?

1. Does it mean that irrelevant evidence is inadmissible?

2. If so, why is irrelevant background evidence -- background evidence that neither decreases or increases the probability of a fact in issue --, why is such evidence admissible?

3. And how often can it safely be said that evidence is irrelevant?

B. You may have heard it said that (i) there is a difference between relevance and weight and (ii) the weight of evidence is a question for the jury rather than the (trial) judge.

1. If the trial judge does not have the authority to weigh the probative force of evidence, how is the trial judge to determine whether an alleged risk connected with relevant evidence substantially outweighs the probative value of the allegedly prejudicial but relevant evidence?

2. If the trial judge does not have the authority to weigh evidence, how can the trial judge determine whether or not the factual conditions for the application of a privilege have been satisfied?

3. If the trial judge cannot weigh evidence, how can the trial judge determine that the evidence in a case is insufficient to support a verdict?

C. You may have heard it said that when a trial judge assesses the relevance of proffered evidence, the trial judge must assess the chain of inferences upon which the relevance of the proffered evidence depends.

1. Is the judge to assess the net force of such a chain of inferences? If so, must the trial judge assess the probative force of the proffered evidence in such circumstances in order to determine the relevance of the proffered evidence in such circumstances? But isn't it supposedly the job of the jury to weigh evidence?

1A. Don't both the relevance and the weight of evidence always depend on a multitude of ancillary inferences and assumptions and judgments?

2. If neither the offeror nor the trial judge can articulate the inferences upon which the relevance of proffered evidence depends, does it follow that the proffered evidence must be considered irrelevant? Are some sound evidentiary judgments beyond analysis or explanation?

D. You may have heard it said that proof of facts in trials is a matter of probabilities and you may have heard it said that probability determines whether or not evidence is relevant.

1. Does it follow that only probability theory can describe how factual proof works?

2. Does it follow that the law should be honest with jurors and tell jurors precisely what probabilities are necessary for various kinds of verdicts in various kinds of cases or situations?

3. Is it the case that sometimes we speak most imprecisely when we (attempt to) speak with precise numbers?

4. Are numbers (necessarily) dehumanizing? Mechanical? Inappropriately objective? Is their use emblematic of scientism? What is scientism? Is talk about scientism bunk? Philistine? Cf. James Franklin, The Sokal Hoax .

5. Do most jurors suffer from the malady of mathematical or numerical illiteracy, from "innumeracy"? Most judges? Lawyers? If so, is it possible that innumeracy -- particularly the innumeracy of legal professionals -- is the real reason why the law refuses to express burdens of proof and persuasion in numerical terms? Or is there a better reason for the seeming antipathy to numbers in this part of our law?

E. Should our system of factual proof be cleansed of the pretense(?) that the quality and quantity of proof of facts are amenable to rational analysis? Should we expressly tell judges and jurors that their intuitions about evidence and facts should be their sole guide in their efforts to determine the facts?

1. Does it follow that we should prohibit all expert testimony?

2. Does it follow that we should prohibit all mathematical evidence (including, e.g., statistical evidence in employment discrimination litigation)?

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All sorts of edibles and inedibles are mushed up in the pottage of "relevance." See Rethinking Relevancy.