Friday, December 12, 2003

Evidence and Holism: Judgments about Wholes and Parts in Evidence Assessment

There is an important new article about the assessment of evidence in litigation: Dan Simon, Chadwick Snow & Stephen Read, "The Redux of Cognitive Consistency Theories: Evidence Judgments by Constraint Satisfaction." The authors' abstract states that "making decisions from multiple pieces of evidence is ... is bi-directional - decisions follow from the evidence, but evaluations of the evidence shift towards coherence with the emerging decision." The paper is not pure speculation: the authors report results from five empirical studies that test and substantiate their hypothesis.

I assume that the authors would honor requests for reprints. Write,, or

Wednesday, December 03, 2003

SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"

There are some interesting new reports about another now-notorious UK Sudden Infant Death Syndrome [SIDS] case – the Angela Cannings case – a case in which much was apparently made out of statistics about the relative frequency (and, in particular, about the rarity) of SIDS deaths. See the following BBC reports:

October 28, 2003, BBC Report


“The case against Angela was supported by the same experts who got it wrong in the prosecutions of Cheshire Solicitor Sally Clark and pharmacist Trupti Patel.”

Nov. 3, 2003, BBC News Report


“When Cannings was convicted in April 2002, the jury had been told that the deaths of three of her children could not have been caused by a genetic defect because there was no evidence of other infant deaths in her close relatives.


“The Real Story team discovered Cannings' paternal great-grandmother suffered one infant death and Angela's paternal grandmother two.

“The issue of how investigations and prosecutions of unexplained deaths of infants are conducted came under the spotlight with the acquittal on appeal of solicitor Sally Clark.

“In that case Professor Roy Meadow told the original trial that two cot deaths in one family were a 'one in 73 million chance' - something disputed by statisticians.

“After upholding Clark's appeal, the Court of Appeal judges said the medical evidence of a 'one in 73 million chance' had been grossly misleading.


“In Cannings' case Professor Meadow told the jury her babies could not have died a normal cot death because they appeared healthy immediately before they died.”

Cf. Wilson v. Maryland, 370 Md. 191, 803 A.2d 1034 (Ct. App., August 5, 2002), wherein the Maryland Court of Appeals – Maryland's highest court – emphasized the importance of considering the possibility of dependencies due to genetics when using the product rule to calculate the probability or improbability multiple [innocent] SIDS deaths [clusters of SIDS deaths] within a single nuclear family. While I think the Maryland court is entirely right about this, I cannot help but wonder if in a case such as the Angela Cannings case, researchers should consider the possibility that the clusters of SIDS deaths in a nuclear family might be attributable in part to "family cultures" that result in intergenerational transmission of infant care practices. (I have no particular reason to think that any such factor was at work in the Cannings case but, as a scholar, I have a hunch that this possible alternative explanation – an alternative to (i) a genetic explanation and (ii) chance as an explanation – should be investigated in a situation such as the one in the Cannings case – where it is known that SIDS deaths have occurred among children of the parents or the grandparents. {Perhaps this possibility has been explored: I don't know if it has been studied or not.})

Sunday, November 23, 2003

Latvian Folk Songs

Here is a bit of information about Latvian folk songs.

  • Please note that Latvia's president, Vaira Vike-Freiberga, is, not only a woman, but also a serious (early) contributor to the scholarly study of Latvian folk songs. Did anyone say Latvians are backward? Unintellectual? Male chauvinists? Well ... er, ...
  • The web page linked above states that "more than 1.2 million texts and 30,000 melodies have been identified."

    Latvians Learn Brazilian Portuguese

    Flash! Latvia ties Turkey in second match and moves on to next year's playoffs for the European Cup! (We're talking soccer here. Not American-style football. And that's a good thing -- since both Yale and Ohio State lost on November 22. But watch out for next year! [My university has no U.S.-style football team. So I must root for alien teams.])

    Actually: far more exciting (as far as Latvia goes): The quadrennial folk song festival in Riga. Did you know that Lithuania has the world's largest collection of folks songs, and Latvia, the second largest? (Second-largest is good enough for me.)

    Latvian was purely a spoken language -- a peasant's spoken language -- until the 19th century. Latvian and Lithuanian are loosely -- but only loosely -- related to the Finno-Ungric (& Estonian) language group.

  • I will do some fact-checking. If I have made any errors, this page will change -- in a day or two.

  • Sunday, November 16, 2003

    Latvia: The New Brazil?

    Latvia, having defeated Sweden, defeats Turkey, 1-0, in soccer (aka football), on November 15, 2003. Next match with Turkey: Wednesday, November 19.

    Saturday, November 15, 2003

    Interesting books ...

    ... recently received or acquired:

    Andrew Palmer, Proof and the Preparation of Trials (Sydney: Thomson Lawbook, 2003)

    Joseph Halpern, Reasoning about Uncertainty (MIT, 2003)

    Paul Kirschner, Simon Shum & Chad Carr, eds., Visualizing Argumentation: Software Tools for Collaborative and Educational Sense-Making (Springer, 2003)

    Henry E. Kyburg, Jr. & Choh Man Teng, Uncertain Inference (Cambridge U. Press, 2001)

    Alva Noƫ & Evan Thompson, eds., Vision and Mind: Selected Readings in the Philosophy of Perception (MIT, 2002)

    Lorenzo Magnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (2001)

    Dov M. Gabbay, C. J. Hogger & J. A. Robinson, eds., Epistemic and Temporal Reasoning (Clarendon-Oxford, 1995) (Vol. 4 of HANDBOOK OF LOGIC IN ARTIFICIAL INTELLIGENCE AND LOGIC PROGRAMMING)

    Douglas Walton, Legal Argumentation and Evidence (Pennsylvania State University, 2002)

    Two Interesting Books Generally Ignored, Unjustifiably, by Legal Scholars in Evidence:

    J.S. Covington, Jr., The Structure of Legal Argument and Proof (John Marshall Pub. Co., 1993) (perhaps a victim of insufficient marketing)

    Peter Oehrstroem & Per F. V. Hasle, Temporal Logic: From Ancient Ideas to Artificial Intelligence (Kluwer, 1995)

    Another Interesting Book:

    Anne Applebaum, Gulag: A History (Doubleday, 2003)

    Tuesday, November 04, 2003

    The Authority of History for the Modern Law of Proof and Evidence

    Question: Should the ancient history of Anglo-American judicial treatment of evidence have substantial authority for the interpretation or formation of 21st century rules governing factual adjudication in litigation?

    By "ancient history of Anglo-American judicial treatment of evidence" I am inventing my own terminology for this particular occasion: I am referring to the history of evidentiary practices in English and Colonial courts before ca. 1800.

    Written records about legal treatment of evidence in English and Colonial courts before 1800 are fragmentary. Legal historians sometimes believe that a single documentary source or a single set of documentary sources about historical legal practice is decisive. See, e.g., John Langbein's discussion of the "Ryder sources," Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1 (1983) (Langbein extracts some fairly firm conclusions from the Ryder sources).

    Despite the seemingly fragmentary nature of the historical record before ca. 1800, there are occasional suggestions that centuries-old English historical practice explains some or many features of the contemporary law of evidence. See, e.g., George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575 (1997) (there is no suggestion in this article that modern evidence law should revert to past historical practice, but there is an intimation in the article that the history that Fisher recounts or propounds should have inverse power: it should serve to debunk some evidentiary practices that persist [if only in a fragmentary way] to this very day in the courtrooms of our land; to make his impressive argument, Fisher relies on some very old legal history).

    I wonder if "ancient" legal history (in the realm of the law of evidence) should have such power (whether affirmative or negative). My expertise in legal history is limited or non-existent. But some of the statements that I have heard legal historians make suggest to me that the historical record about the legal treatment of evidence before 1800 is, as I have said, extraordinarily fragmentary. True, we now have some astute legal historians among us -- including, especially, grand figures such as Mirjan Damaska, John Langbein, and, now, George Fisher; and perhaps some or all of these eminent scholars have now got the legal history right (although -- it should be noted -- Langbein and Damaska seem to disagree a bit on some important details). But even if the current generation of legal historians is more talented, more skilled, and better educated than was the prededing generation of legal historians, would it be prudent to resolve important questions of policy and knowledge in the law of evidence today by seeking authoritative answers in the "historical record"?

    I wonder.

    Just a generation or so ago the conventional understanding of the origins of the privilege against self-incrimination was quite different from the account that Langbein now purveys with considerable success. So perhaps Langbein now has the better argument. But it seems entirely possible to me -- indeed, knowing the ways of academia, it seems more probable than not -- that soon some bold young scholar will arrive on the scene and provide us with a well-argued and well-supported reinterpretation of matters such as the origins and causes of the use of rules of evidence in English criminal trials before 1800. (Indeed, perhaps this process of reinterpretation is already under way.)

    The question I am raising is not just (or even primarily) a question about the wisdom of trying to perpetuate or preserve past practice. The question I am raising is about the way that we should use the past to gain insights into contemporary issues in the law of proof and evidence.

    The question I mean to raise is this: Is there good reason to think that "ancient" history is of much use when the ancient legal history of legal treatment of evidence is used to try to demonstrate that there are certain general verities about the logic or illogic of certain kinds of attempts to use law to get at the truth of matters such as propositions about the world?

    I suspect that the answer to my question is "no."

    There are more modest uses of history than the one I am questioning. Some of these more modest uses are extraordinarily valuable. History, for example, certainly serves to liberate or inspire thought: it serves to suggest previously-unimagined possibilities. But the question that interests me here is whether or not legal history can serve as a kind of empirical test -- a very long-running empirical test -- of the validity or invalidity of particular possible modern approaches to evidence and the legal regulation of evidence and proof.

    I am skeptical -- for a variety of reasons (methodological as well as inferential) -- of the idea that history can serve as a kind of analogue to the principle of empirical verification in science.

  • In this post I do not even attempt to address issues such as (i) the potential conflict between the democratic ideal and the authority of the dead and (ii) the possibility that emphasis on Anglo-American legal history now amounts to a kind of gratuitous cultural chauvinism.
  • Modern human beings are not more stupid than their predecessors. In certain respects we even know more than our ancestors did. It is even possible (though far from certain) that modern advances in the understanding of the mind and of cognate matters such as information, perception, semantics, uncertainty, and probability now enable us to understand just a little bit better than our precursors did how evidence works, how inference works, how evidence and inference work in time, how evidence and inference relate to values and norms, and how "best practices" can improve the ability of societies to get the facts right in a humane fashion.

    Given the fragility of the historical record, given the possibility that we have learned something about evidence over the centuries, and given the near-certainty that we are not less intelligent than our forbears, I vote against according (our momentary understanding of) the ancient history of the law of evidence any very substantial influence in debate and argument today about the future of legal regulation of proof and evidence in litigation (or, for that matter, in most other societal contexts and institutions).

    N.B. This is my second or third manifesto within the last month or two. But my manifestos, it seems, are not strong enough to provoke a storm of comment and controversy. Is this because I am right?!?

    Sunday, November 02, 2003

    War Crimes

    There is a widespread, longstanding, and disturbing indifference to the horrors in Chechnya.

    Do you agree?

    N.B. This thought was spurred by C-Span and the book The Oath by Khassan Baiev, with contributions by Ruth and Nicholas Daniloff.

    Sunday, October 05, 2003

    Legal Theory and Legal Practice: A Manifesto

    Decent legal theory follows legal practice.

    Bad legal theory ignores legal practice.

    Good legal theory improves legal practice.

    Legal theory without legal reality is barren.

    Legal reality is legal practice.

    Legal practice is legal theory in action.

    Good legal theory is good legal practice made manifest.

  • In the spirit of Aristotle ... and the new sciences of the mind.

  • Trial Planning

    Trial lawyers: Does the diagram available at the link below accurately depict some (but certainly not all) of the important jobs that you have to do when you prepare for trial? If so, is the diagram helpful to you -- or might it be helpful to you -- when you go about the job of preparing for trial? (I am assuming that the picture is fairly self-explanatory. If such is not the case, please let me know. Many thanks!)

    Trial Planning
    Science in the Law School World: An Off-the-Cuff View from the Other Side

    My comments about "two cultures" (see post, 9/28/2003) provoked a friend of mine to e-mail me some comments. This friend of mine is a member of the community sometimes known as UAI -- uncertainty in artificial intelligence. After several exchanges, my friend focused on the reception of science and computer science in the law school world. The following is part of what this UAI person said:

    1) Regardless of the validity of a "humanities vs. scientific" dichotomy in university curriculums, I believe that there may be another valid and relevant distinction between academic graduate-level disciplines that mostly train professors vice ones that primarily train practitioners. For example, I would bet (meaning that I don't know the facts) that on the average, a much larger percentage of doctorates in physics, biology and pure mathematics become professors than those in chemistry, architecture or any engineering area - e.g. electrical, mechanical, civil, etc. It may still be true that a larger percentage of humanities disciplines such as sociology, political science, english or history, mostly train professors than the corresponding percentage of the scientific, or perhaps more accurately, the technologically-focused disciplines. What I like about this conjecture is that it should be relatively easy to check the facts (if one was willing to take the time and energy).

    2) Assuming conjecture (1) above is true, i.e. borne out by the statistics, then I would further conjecture that the primary reason is the societal-economic need for practitioners in industry and other business, e.g. the law profession, medical profession, architecture profession, etc. For example, most graduate study in chemistry is aimed at practical experimentation, not theoretical exploration, because most chemistry grad students want to go and get jobs in industry where they can make useful things. It is not unusual, I believe, for chemistry grad students who get more fascinated with the nature of molecules than how to get them to do stuff, to transfer into a physics curriculum where that is the primary focus of the study of matter. After that, of course, they're not fit for anything but teaching and basic research ;^>. This theory implies that at least one of the reasons law schools don't teach much of the scientific theories of evidence at the state of the art, i.e. including its technological implications and possibilities, is because it's not useful when one goes into practice. If this conjecture was true, then i) it follows that it *should* be practitioners, not professors, who have the greatest interest in shifting how things are done in practice, primarily for financial motivations, and ii) when courts start admitting evidence based on such arguments and techniques, then we ought to see a corresponding major shift in law school curricula.

    3) This point is peripheral to the issue of law school curricula, but relevant to your basic argument, I believe, i.e. the cultural dichotomy of "humanity versus technology" or the like. To the extent that thesis holds water, and my gut feeling is that it does or did anyway, I believe we may be in the midst of a paradigm shift wrought by the very progress of technological innovation itself. Innovations such as genetic manipulation, artificial stupidity, er, intelligence I mean, and nanotechnology, for example, raise critical issues in society that come back to basic humanties focused questions - such as the definition of human life and its corresponding protections under governments and their legal and other institutions. And I believe that there is a corresponding shift in technology-focused curricula to incorporate teaching of philosophy and ethics in particular, as a consequence of this phenomena.

    Sunday, September 28, 2003

    Two Cultures: An Update

    Forty four years ago C.P. Snow published a book describing a great divide between the sciences and the humanities. See C.P. Snow, The Two Cultures(Cambridge University Press, 1959; reissued, paper, 1993). See also C.P. Snow, The Two Cultures: A Second Look (1963). I wonder if a strong version of this division is now found in the U.S. law school world. Specifically, I wonder: Despite the enormous popularity of "intellectual property" law in the law school world, do computers, computer technology, computer science, and software tools remain, on the whole, an alien beast in the law school world? (Bernard Hibbitts likes to say that law schools are enamored of the law of technology, but not of the technology of law.) Dear Reader, I welcome your thoughts. I particularly welcome the thoughts of those Gentle Readers in Cyberspace who have more than a nodding acquaintance with law schools in these United States.

    Who Cares about Human Rights?: Burns (NYTimes Reporter) on Iraq

    John Burns, "There Is Corruption in Our Business," Editor and Publisher (September 15, 2003):

    Terror, totalitarian states, and their ways are nothing new to me, but I felt from the start that this was in a category by itself, with the possible exception in the present world of North Korea. I felt that that was the central truth that has to be told about this place. It was also the essential truth that was untold by the vast majority of correspondents here. ...


    Now left with the residue of all of this, I would say there are serious lessons to be learned. Editors of great newspapers, and small newspapers, and editors of great television networks should exact from their correspondents the obligation of telling the truth about these places. ...

    We now know that this place was a lot more terrible than even people like me had thought. There is such a thing as absolute evil. I think people just simply didn't recognize it. They rationalized it away. I cannot tell you with what fury I listened to people tell me throughout the autumn that I must be on a kamikaze mission. They said it with a great deal of glee, over the years, that this was not a place like the others.

    I did a piece on Uday Hussein and his use of the National Olympic Committee headquarters as a torture site. It's not just journalists who turned a blind eye. Juan Antonio Samaranch of the International Olympic Committee could not have been unaware that Western human rights reports for years had been reporting the National Olympic Committee building had been used as a torture center. I went through its file cabinets and got letter after letter from Juan Antonio Samaranch to Uday Saddam Hussein: "The universal spirit of sport," "My esteemed colleague." The world chose in the main to ignore this.

    Friday, September 26, 2003

    Kafkaesque Konstitution

    Ashen Justice: Charges Dismissed, Arrest Him!

    What's going on here? Kafka? Der Prozess? Ja?

    I admit it: I am a johnny-come-lately. But this (see below) is really too much.

    Flash!: NYTimes, p. 1 September 26, 2003 (as paraphrased & disbelievingly interpreted by Prof. P. Tillers) :

    In the unlikely event that the U.S. Court of Appeals for the Fourth Circuit upholds the federal trial court's apparent ruling that the U.S. government's refusal to allow Moussaoui to interview prosecution witnesses violates M's constitutional rights and that this constitutional violation requires dismissal of the criminal charges against him, my government(!) intends to "move[] Moussaoui to a military tribunal."

    Can this be? [Hmm... The newspaper in my hands certainly looks like the New York Times ....]

    If the story is true -- and I have my doubts that it is: the story is intrinsically implausible --, but if this unlikely story is true, the only principle I can extract from it is the following: You -- i.e., Mr M and other denizens of this great and grand country, -- y'all have constitutional rights, BUT if we [my government] think it's important enough, we'll imprison you anyway, without regard to any such rights. But we have overstated the point here. (We are a bit excited.) Yes, Mr M, you can have your constitutional rights -- at least in a U.S. District Court, perhaps ["perhaps," we say!] -- BUT, in any event, you can't have those rights in our military tribunals, b'gosh!

  • By what right does anyone call such a military agency or entity a "tribunal"?

  • You see, Mr M (my government seems to be saying), we won't be denying you any rights if we send you there, to Guantanamo -- because there, you see, you don't have any rights. [Of course, by the grace of the Supreme Commander, we have chosen to confer certain procedural privileges on unlawful combatants, but only those privileges, of course, that suit Our Glorious Supreme Commander, and only as long it suits us to let them have those freely revocable privileges. {You will recall that the operative language is somewhat like the following, which, as you will see, we have borrowed from health club contracts: "Grantor retains unbridled and absolute discretion to revoke, at any time and without notice and without cause, any of the privileges enumerated herein and nothing said anywhere shall be construed to the contrary."}])

    Ach, weh! (Forgive me: I occasionally lapse into New Yorkese.) One of my worst fears has come true. A year or so ago I thought I was being a bit paranoid, a bit overwrought, a bit of a Chicken Little. But no, hindsight suggests that's not the case: I wasn't overly anxious 'tall. For my government really, truly, and actually wants to deny criminal defendants (not to speak of "unlawful combatants" waiting in their legal black holes for "trials" -- "hearings"? "events"? -- in military "tribunals") --, my government wants to deny such targets of its prosecutorial activity the right to prepare their cases and defenses prior to trial.

    Need I say this?: A right to a trial without a right to pretrial preparation and meaningful pretrial investigation is a paper right, and such a paper right is not worth whatever paper it's written on. Every trial lawyer who knows anything knows this. (Perhaps the Supreme Court does too. We shall see. But some people will probably spend years in prison -- indeed, they already have -- before the Supreme Court deigns to speak to this issue. [But perhaps I'm being unfair: Surely the Supreme Court will act just as decisively and as quickly as it did during the Vietnam War crisis. So I take it back! Really!])

  • BTW: The government thought that the normal criminal process was good enough for it and for Mr M -- until, of course, the government found that it couldn't have its way with Mr M.
  • It is a scandal; it is an outrage.

    Immanuel Kant once said that it is better for the world to perish than for one innocent person to suffer unjust punishment. Mr. John Ashcroft has his own moral principle: he apparently believes that it is better for most of the U.S. to suffer great pain than for one guilty terrorist to escape punishment.

    What price security? And whose security is being purchased? Apparently Mr. Ashcroft's. Perhaps Pres. Bush's. Anyone else's?

  • Who but Mr. Ashcroft really believes that pretrial interviews of imprisoned terrorists by counsel for Mr M will severely imperil national security?
  • Well, o.k., o.k., I will grant you that in this grand country of ours -- perhaps particularly in Missouri? -- we can always find some people who will believe any crackpot thesis that you care to name. Furthermore, it is possible that the imprisoned terrorists ["alleged" terrorists?] that Mr M wants to interview --, it is possible that those guys have telepathic powers or electronic transmitters implanted in their shin bones. Or perhaps Mr M, by interviewing them through his craven surrogates, his untrustworthy counsel, -- perhaps Mr M, acting through such devious agents, can manage to supply those imprisoned unlawful combatants with the guts that they need to fend off our government's determined efforts to win their hearts and unlock their mouths: perhaps Mr M, clever fellow that he is, has the magic potion. Who knows? Anything is possible, you know. And we CAN'T TAKE ANY RISKS.)
  • It's an outrage, I say.

    I have an announcement to make: I have made up my mind. Yes, I have. This is my decision: I will not -- I cannot --, I WILL NOT vote for a Presidential candidate who will grant us four more years of Attorney Ashcroft.

  • Mr A's title, BTW, is not "general" -- as in "General Ashcroft." Mr A -- I am informed -- is an attorney, an attorney general. But he is not a "general." See William Safire, NYTimes, Section 6; p. 20; col. 1 (Late edition, July 20, 2003) (Citing & quoting my Cardozo colleague & office neighbor Prof. Michael Herz). BTW: Did Mr Ashcroft disabuse the interrogators from the media? Did he tell them, "You know, I'm not really a general. I wouldn't want to put on airs or pretend to be what I'm not"? To balance things out, I will not use the word "general" when referring to Mr Ashcroft here. I think "Mister Ashcroft" is sufficiently dignified. [If this displeases him, he is free to call me "mister" rather than "professor."])
  • As I recall, Mr. Ashcroft's immediate predecessor also seemed to enjoy the title "general." Vanity has no party affiliation.
  • Are you listening, President Bush? My message: Because of Mr. Ashcroft, I will vote for ANYONE other than you, Mr. President Bush -- and I will do so despite my intense distaste for some of the Democrats who want to take your place. (It's a shame! [Well, o.k., it's not a great shame: because I admit I would like this country to have a decent health care system. But, still, it's a bit of a shame that Pres. Bush has no chance to capture my vote because he wants to have Attorney Ashcroft be the Guardian of this country's security and liberty. {I think Mr A forgot the 2d part -- the "liberty & rights" stuff.}])

    Tuesday, September 23, 2003

    Fatal Disease: "Punch those Chads -- but Don't Muss Your Hands with Evidence!"

    Yesterday, courtesy of MSNBC, I watched oral arguments before the 9th Circuit's en banc panel about the postponement or non-postponement of the California recall vote. I am only a lowly Evidence teacher, but, with the greatest humility and the utmost diffidence, I would like to make a suggestion to the high-minded counsel -- scholastic counsel, practically -- who do reform litigation about matters such as chads, punch card voting machines, and similar matters. I would like to suggest that sometimes you pay a bit more attention to evidence. Now I realize that mundane matters such as evidence are beneath you; I do appreciate that you feel you should be talking about high constitutional principle, and not about uninteresting stuff such as evidence and facts. But, you see -- if I may be so bold -- even in the noblest crusades constitutional crusaders sometimes just have to muss their hands with earthy [i.e., evidentiary] matter. For example, in the proceedings regarding the California recall, you might just want to make sure that the record amply supports -- that the evidentiary record amply supports the reasonable-sounding but potentially a priori proposition that punch card voting machines are more prone to error than are alternative voting systems, such as the electronic ones that are apparently in use in some other parts of California. (I keep thinking of my Mother, who gets flustered by a TV set, not to speak of an electronic voting machine.) I offer my advice with humility and charity. "Charity?," you might say. I would reply: Yes, well, you see, the sentiment of charity arises in my breast because it was extraordinarily painful to watch you struggle to find some way to assert that punch card machines are less accurate than alternative electronic voting methods without, apparently, actually having any good evidence that what you claimed to be true about punch card voting machines (in comparison to alternative voting systems) is actually true. Your strong aversion to evidence is what apparently accounts for your stratagem of emphasizing that some California official or other had concluded that punch card machines are less accurate than available alternatives. Your difficulty -- the source of which you may not yet realize, which is why I go to the trouble of offering my humble opinion here -- the source of your difficulty in the California oral argument before the 9th Circuit panel was reminiscent of the agonies and embarrassment that your fellow crusaders experienced in Florida, in Bush v. Gore, when, in that lowly Florida trial court, it was finally time for the pro-Gore lawyers to put up or shut up -- i.e., to show, with evidence, that some of the things they had been saying about punch card voting and similar matters were actually true -- and what we got instead, after all of the millions of dollars that had been expended on the pro-Gore legal campaign, were [a mere] four or so pro-Gore witnesses, including one expert on statistical aspects of voting systems who was so badly prepared by the pro-Gore lawyers that today he might well wish that he had never met a lawyer. The point I wish to make, my dear legal brothers and sisters, is that even when it comes to high constitutional principle, evidence and facts do matter. You really must learn this lesson. Otherwise I expect to see further legal shipwrecks -- such as the one I witnessed yesterday.

    Mistrial by "Withdrawal" of Juror

    The following snippet of oral argument was reported in Sacher v. United States, 343 U.S. 1 (1950):

    Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.

    In Sher v. Stoughton, 666 F.2d 791 (2d Cir., 1981), the U.S. Court of Appeals referred to the following statement made in a New York State murder trial:

    Defense counsel then moved for the withdrawal of a juror and for a mistrial ....

    In United States v. Russel Means, 513 F.2d 1329 (8th Cir., 1975), the court stated (footnote omitted):

    In 1815 Justice Story, sitting as a Circuit Justice, in United States v. Coolidge, 25 F. Cas. 622 (No. 14,858) (C.C.D. Mass. 1815), approved the withdrawal of a juror, creating a technical mistrial in a situation where the jury could not agree on a verdict.

    From Wood v. Allstate Ins. Co., 1997 U.S. Dist. LEXIS 14663 (E.D. Pa. 1997):

    In response, the [federal trial] Court gave Defendant the option of moving for a recess in the trial so that Defendant could depose Mr. Ashby or moving for the withdrawal of a juror, which would result in a mistrial.

    Summers v. State, 2003 Md. App. LEXIS 114 (2003):

    Not every trivial act on the part of a juror during the course of the trial amounts to such misconduct as requires the withdrawal of a juror and the continuance of the case. A contrary holding would result in a multiplication of mistrials ....

    Monday, September 22, 2003

    Third Degree in Oakland

    Sam Spade: "Johnny, you can go home once you tell us the truth."

    Johnny: "But I've told you the truth. I really have!"
    Sam Spade: "Now Johnny, we can sit here as long as you like -- we can sit here until hades freezes over. We'll sit here as long as it takes -- we'll just sit here until we get to the bottom of this."

    ...[long pause]..

    Johnny: "O.k. I'll tell you what you want."
    Sam Spade: "Now, Johnny, that's not the way this game is played. We just want the truth, you know. That's all we're after. Do you understand?"

    ...[long pause] ...

    Johnny: "O.k., o.k. I vote guilty. He's guilty. Now can I go home?"

    Jury forewoman: "Good work, Sam. Call the bailiff. Tell him the jury has agreed on its verdict. We can all go home now."

    Mutiny on the County!

    Defense attorneys in the "Riders" case (see earlier posts) said that jurors could become "mutinous." (San Francisco Chronicle, Final Edition, September 20, 2003.)

    Free the Alameda Twelve! [or Six, as the Case May Be]

    Do you suppose the Alameda County jurors (see first post for 9/21/2003) -- ah yes, I see: there are 12 of them --, do you suppose those jurors have an action for false imprisonment? For intentional infliction of emotional distress? Could they bring a habeas corpus action? In an appropriate case, an action to recover damages for loss of employment? An action for the alienation of the affections of their spouses (if any), children (if any), and friends (if any)? Would they have a good defense -- necessity, for example -- if they simply failed to appear for their next tour of duty? Would a joint juror decision not to appear for further jury duty -- the word "duty" takes on new meaning here -- amount to a conspiracy to obstruct justice?

    The situation is rife with possibilities (and immunities and privileges, I suppose)!

  • In the old days trial judges would achieve a judicially-desired mistrial by ordering the "withdrawal of a juror." I don't know when this quaint and thoroughly non-transparent language disappeared from U.S. courtrooms.
  • How Hard Is Hard Science?

    New York Times, Week in Review p. 2 (September 21, 2003):

    "There's a Reason It's Called Hard Science

    "Apparently the life of the typical scientist isn't filled with 'Eureka' moments ... 'There are aspects of science ... that sound at best distateful and at worst unbearable,' William Speed writes [in Popular Science].

    "High on the list of most-unpalatable professions ... [is] 'dysentery stool-sample analyzer' .... Most of the other jobs are too disgusting to print here."

    Sunday, September 21, 2003

    California Will Go to Any Length for (In)Justice

    "After nearly four months of deliberations, exhausted jurors said they remained hopelessly deadlocked in the trial of three former Oakland police officers charged with beating suspects and lying on police reports.

    "... The seven-man, five-woman jury has deliberated since May 29, when the judge gave them 122 pages of instructions.


    "[Alameda County Superior Court Judge Leo Dorado] ... ordered [the jurors] to get back to work Monday." Center (September 19, 2003)

    Saturday, September 13, 2003

    Fairy Tales for Grownups:

    Living on Earth, the public radio program on which announcers discuss, in sonorous voices, matters such as the problem of the overabundance of non-native starlings in the Northwest and the earth-conscious preparations of bee populations for the coming of winter. All is well but all is not well. ("If only we could get those darned starlings to go back home, somewhere in Europe, where they belong! Sigh.... Well, at least the peregrine falcons will prosper. ... [pause] ... Next week, our program on a special kind of vegetarianism: one farmer who decided that he and his family don't need meat or leather.")

    Friday, September 12, 2003

    Background evidence ...

    isn't always what you think it is.


    ... "social background .....

    .... evidence."

    I'll bet that the first two words in this verbal trio tripped you up: I'll bet you thought you were going to read about background evidence with a social flavor. But in fact when you encounter this label -- "rotten social background evidence" -- in a criminal trial, you are more likely to encounter evidence about a person's (rotten) social background -- and such evidence about background may not be background evidence 'tall. See generally Mythri A. Jayaraman, "Rotten Social Background Revisited," 14 Cap. Def. J. 327 (2002).

    P.S. The pedant in me thought you might want to know.

    P.P.S. Isn't the title of Jayaraman's article delicious?

    P.P.P.S. And don't you think it's time for the publication of a legal treatise with the title Rotten Social Background Evidence? The book would be a best seller -- if, at least, there were a pinch of humor in the tome. And the book could not fairly fail in the scholarly community either: the author could always say (justly), "But I promised you rotten evidence. And I delivered. What's your beef? It takes skill and intelligence to craft consistent nonsense." And you, the expert in criminal evidence (or a similarly-nomenclatured field) might only be able to respond with a splutter -- unless, that is, you are juvenile enough (sufficiently open-minded?) to be surprised (and perturbed) by the law's verbal quirks. Criminal law indeed!

    Monday, September 08, 2003

    September 11

    I am watching a program on the building of the World Trade Center. I look forward to September 11 with dread. (The weather is almost as beautiful now as it was on the original September 11.) I hope that the building of the replacement for the Twin Towers begins next summer. That will be a glorious sight.

    Friday, August 29, 2003

    Legal Tulips

    Many years ago Holland experienced the famous or infamous Tulip Bubble: tulips suddenly became popular and individual tulips commanded the equivalent of thousands of dollars. So the story goes.

    More recently -- in the 1990s -- the stock of dot coms whose only apparent assets were their internet addresses achieved market valuations of billions of dollars.

    Now it is the legal world's turn. Not too long ago federal judges, law school administrators, and some other people decided that both students and judges were spending too much of their time each year either applying for or evaluating applications for judicial clerkships. So it was agreed that at certain times of the year there should be a moratorium: applications for clerkships with judges should not be sent, received, or considered at certain times of the year.

    A moratorium of this sort is about to run out shortly; a present moratorium expires on September 2.

    Guess what. The line is forming. Thousands of applicants and law school placement offices are waiting to mail their applications on September 2.

    Not by using the U.S. Postal Service, mind you. No: nothing less than Federal Express will do. And same day delivery.

    Some applicants and placement offices are not content with even that. Some applicants, it is said, are planning (with the encouragement of law school placement offices) to hand deliver their applications bright and early on the morning of Tuesday, September 2, 2003.

    It doesn't stop there: applicants are also being urged, it is said (by the most reputable {if not sensible} sources) to try to arrange for personal interviews on September 2; viz., to be interviewed by the judges of their choice on September 2.

    This just goes to prove that if almost everyone wants something, that something must be worth something? Else why would almost everyone want it?

    Question: What is a judicial clerkship worth?

    Would you sell your soul for one?

    The frenzy is enough to drive me back into the arms of a medieval just price theory: some things, just intrinsically, are not worth a damned lot. (How would you like to spend two years in the law library of some "prestigious" appellate court -- after spending three or so years in the library of some "prestigious" law school? Exciting, eh?)

    Well, there's some profit in all of this, yes there is: whether we like it or not, we will all learn something again about the emerging science of ...? Chaos theory? Complexity? But fractal theory? No, that doesn't sound right. It's ... oh, you know ... maybe it's that froth theory stuff, bubbles (literally) and all that. Or? ... Wait a minute, I have to do some internet research.

    Pause. ... Time passes .... Diddle, diddle. ...

    Hi. I'm back. Here it is (the explanation, the model):

    irrational exuberance!

    At more length:
    Economic reality is rife with nonlinearity, discontinuity, and a variety of phenomena that are not so easily predicted or understood. At the same time the broad coherence of economic systems is more impressive than ever in the face of such phenomena. The order of the economy appears to emerge from the complex interactions that constitute the evolutionary process of the economy.

    These phenomena have come to be labeled as complexity in economics. Even what seems simple in economics generally arises from behavior not reflecting rational expectations; we live in a world that reflects the enormous variety and diversity of humanity in their knowledge, attitudes, and behaviors, interacting with each other in an enormous range of institutional frameworks. What emerges in the aggregate may have little to do with what happens at the individual level. But this aggregate cannot be simply described by some set of aggregate equations. It emerges out of the soup of the individual and particular with all its multiform interactions and peculiarities.

    J. Barkley Rosser, Jr. & Edward Elgar, eds., "Introduction: The Emergence of Complexity in Economics," Complexity in Economics, (2003), Complexity in Economics.

    Or perhaps direct analogies to stock market crashes will help explain the judicial clerkship madness? See, e.g., Didier Sornette, Why Stock Markets Crash: Critical Events in Complex Financial Systems (January, 2003).

    Coming soon?: "Hey! Clerkships for sale!"

    Good Lord.

    Monday, August 18, 2003

    Work in Progress

    Dear Gentle Reader,

    There are now some lecture notes awaiting your perusal. They are notes, and not a paper. And the notes are disheveled: they sprawl. But there may be tidbits there that interest you. More important, you may be able and willing to give me some advice. In any event, please see Konstanz 2003 International Summer School Lecture Notes (Peter Tillers) on Probability and Uncertainty in Law.

    Thursday, August 14, 2003

    Frau Mosley Did It Her Way

    "'I regret nothing,' [Diana Mosley] told the daily Le Figaro in a 2002 interview, when questioned about her life." Gulf Daily News (14 Aug. 2003).

    Filial Piety

    "[Diana Mosley's] son, Alexander Mosley, said: 'She had many friends and a very active life, especially considering she was 93 when she died.'" The Scotsman (14 Aug. 2003).

    "In 1998, with her health failing she moved to Paris, close to her son Alexander and his wife." (14 Aug. 2003).

    Several Degrees of Separation: Alex Mosley & Jessica Mitford

    The New York Sun today reports the death of Diana Mosley, the wife of Sir Oswald Mosley, the hated British fascist. (The Sun reports that Diana Mosley never abjured her admiration of Hitler.)

    In 1969 or 1970 I accompanied a person, a newspaper reporter, who interviewed Jessica Mitford in northern California. Jessica Mitford was one of Diana's sisters.

    In the summer of 1961, in Columbus, Ohio, I met a tall British youth who called himself Alex Mosley and who claimed he was the son of Oswald Mosley. If the story was true, he was also the son of Diana Mosley. See British Boyhood: Alexander Mosley

    It seems that in 1980 there was a publishing company in France called "Alexander Mosley Publications." My cursory internet research suggests the possibility that this publishing company published Diana Oswald's memoirs.

    This is all very improbable.

    Was the fellow in Columbus an impostor? But why would he have wanted to pretend to have such despicable parents? (The person who called himself "Alex" said that he had to leave Britain because he, "Alex," faced too many difficulties in Britain because his father was a notorious British fascist.)

    Relatively More Cheerful News from Lands Across the Waters

    I learned much from my colleagues at the Konstanz 2003 International Summer School. As I had expected, a law teacher must approach scientists, mathematicians, biologists etc. with humility and respect -- with awe, really -- since scholars in such fields employ a degree of rigor -- I speak here not merely of "formal rigor" --, scholars in the sciences employ a degree of rigor that is rare in the world that law professors inhabit. (This is not to say that law teachers have no interesting tidbits or problems to offer mathematicians, physicists etc.; certain types of problems that routinely arise in legal proceedings only rarely surface in many fields such as physics, biology etc.)

    I have much news to report -- but too much to report just here and now. Stay tuned!

    Innocence Abroad

    I am back from my trip to Germany and Turkey.

    America's reputation abroad seems to be at an all time low. But I grow defensive: many Europeans and Turks seem to place an extraordinary low value on human rights.

    Reasonable people can differ on whether war against Iraq was justified. But reasonable people cannot differ on mass torture and extermination. I saw little concern in the European media about the widespread use of torture by Saddam Hussein and the estimated extermination of some 200,000 people. (I am not even counting the fatalities in Saddam's various wars; I am speaking only of "jailhouse executions," death by firing squad or worse.)

    Perhaps it really is true that "old Europe" is too sophisticated -- too cynical and indifferent -- for its own good a/k/a for the good of humanity?

    Wednesday, July 23, 2003

    Cultural Studies

    Now I'll have a chance to see how evidence and inference look from (i) the Alps and (ii) Turkey.

    I'll report my findings in three weeks.

    Saturday, July 19, 2003

    Non-Network Networks of Non-Network Networks: Non-Deterministic Evidence Marshaling Strategies and Time's Wiles

    There are different "templates," or intellectual strategies, for organizing evidence associated with possible and actual legal proceedings: e.g., webs of evidence & conditional inferences, time lines, scenarios, narratives, possibilities (hypotheses suggested by evidentiary details), and legal rules and their elements. See P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation.

    In some U.S. legal literature there is talk about "non-bank banks," institutions that work much like banks, but are not quite banks. In the same spirit: It may be appropriate to refer to the "templates" mentioned above -- time lines, etc. -- as "non-network networks" -- because, although each of the ingredients in each of the templates (viz., patterns of marshaling evidence) interacts with and influences one or more ingredients in its template, given the non-recurring nature of the evidence typically found in legal proceedings, it is possible -- nay, it is likely -- that the uncertainties associated with each of the ingredients in each of the enumerated templates (marshaling methods) propagate to other ingredients in the same network in non-deterministic ways, which means that human judgment and intuition must do their work at each step.

    If real-world inference typically involves (as I think it does), the use of a set of such evidence marshaling methods ("templates" for organizing evidence and thought about evidence) rather than any single evidence marshaling strategy, it is probably also appropriate refer to such collections of evidence marshaling methods as non-network networks -- because, although each evidence marshaling method interacts with and influences one or more other evidence marshaling methods, these interactions are also non-deterministic, which means, again, that human judgment and intuition must do their work at every step.

    Things get worse yet -- at least for people who would like to have deterministic or quasi-deterministic methods or strategies for assessing evidence and facts, evidence marshaling strategies that strictly or substantially regulate or channel human inference in litigation -- , things get yet worse for people so minded when time enters the picture -- because when time enters the picture -- i.e., when the assessment of evidence and facts becomes dynamic -- the number of inferential possibilities generated or suggested by the various non-network evidence marshaling networks readily and frequently explodes. Cf. P. Tillers, Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation. Worse yet, sometimes it may become almost impossible to predict the new inferential possibilities that will emerge as time works its will and, consequently, sometimes it may be next to impossible to anticipate the inferential and investigative tasks that a rational trier of fact would want to perform (if she were in a position to do so) before possible future states of the world (including the institutional legal world) become realities. Cf. Id; P. Tillers, The Explosive Dynamic Complexity of Evidentiary Processes

    So, when time enters the picture, there is a very real chance that the inference problems that are associated with legal proceedings or possible legal proceedings will become quite like mush, rather like a mess of pottage -- if, that is, such problems haven't already become mushy as a result of the complex and non-deterministic interactions among individually-complex and non-deterministic patterns of evidence marshaling!
    This is the sort of conclusion toward which I seem to be heading. Do you, Gentle-but-Critical Reader, have any words of warning or wisdom for me before I rush or stumble along to such a desultory conclusion?

  • N.B. Is the conclusion "desultory"? And even if the anticipated conclusion is valid, does it follow that mushy methods of evidence marshaling becoming dispensable, unnecessary? Even for the participants in investigation and proof in and for litigation? For example, would you advise lawyers to forget about organizing evidence on the basis of the elements of claims and affirmative defenses? But if not, does it follow that the system in which such participants must play is "rational"? Or does the need of players to use certain methods of organizing evidence merely show that under certain institutional conditions, all participants must play a game of blind-man's-buff?
  • Postscript: Some of the above matters (and many much more interesting questions about probability [in arenas other than law]) will be discussed at the Konstanz 2003 International Summer School. Join us!

    Saturday, July 12, 2003

    Elvis and Wigmore Sightings

    Elvis Presley is reported to have died in 1977; John Henry Wigmore reportedly died in 1943. There are persistent reports, however, of post-1977 sightings of a living and breathing Elvis. There are almost as many reports of post-1943 sightings, if not ordinarily of a living Wigmore himself, then of Wigmore's post-1943 handiwork.

    It is not easy to discount all of the reports of (allegedly!) posthumous appearances of Wigmore's handiwork. For one thing, many of these sightings are by estimable and knowledgeable judges and courts. For another thing, there have been many, many post-1943-Wigmore-handiwork sightings: numerous courts and judges -- one cannot treat them all as cranks! --, numerous judges and courts have reported seeing statements penned by Wigmore that appear to have been written after 1943. For example, very recently a judge of the Florida Supreme Court reported that Wigmore had stated that
    single inferences, though weak when taken individually, may be substantial and powerful when added together . . . . The probative strength of an underlying inference is a factor that affects the strength of the final factum probandum, but . . . no mechanical rule can be laid down concerning how strong any underlying inference must be. The question is not whether any given inference in a chain is too weak but is always whether, in view of all patterns of corroborating and contradicting evidence at all levels of all inferential chains, the final factum probandum has been shown to the degree of likelihood required by the applicable standard of persuasion . . .
    Castillo v. E.I. du Pont de Nemours & Co., 2003 Fla. LEXIS 1159, 52*-53* (July 10, 2003) (Pariente, J., concurring, joined by Anstead, C.J.).

    Judge Pariente traces the quoted language to the 4th edition of Wigmore's massive treatise on the law of evidence; the source of the quotation was said to be 1A John Henry Wigmore, Evidence in Trials at Common Law, § 41, at 1138 (4th ed., 1983).

    While it is true that volume 1A first appeared in 1983, it is of course possible that the language quoted by Judge Pariente is indeed Wigmore's handiwork. Volume 1A is a part of a revision of the third edition of volume 1. The third edition of volume 1 of the Treatise appeared in print in 1940, well before Wigmore's death.

    I am compelled to report, however, that I took a gander at the third edition of Wigmore's Treatise and I regret to report that the language quoted by Judge Pariente does not appear in the 1940 edition. But by itself this possible fact again proves nothing. (Not for nothing am I a professor of Evidence!) It is possible that Wigmore wrote the quoted passage and left it for a reviser to insert it into a subsequent revision of his Treatise. Furthermore, it is also possible that Wigmore lives!

    Being puzzled by this puzzle of possible post-mortem scholarly activity, I resolved to speak directly, not with Wigmore himself, but, at least, with the reviser ("revisor"?) of volume 1. He assured me that he, and not Dean Wigmore, had penned (typed, to be precise) the passage quoted by Judge Pariente.

    Now I happen to know the reviser well; I am personally acquainted with him. Nevertheless, the question of whether Wigmore is still alive cannot be seen as having been conclusively resolved. Despite my personal friendship with the reviser, I cannot claim that I have an ironclad guarantee of the reviser's credibility. (I trust that a scholar's privilege will protect me from any defamation action.) Furthermore, the quoted passage is so penetrating, so intelligent, so persuasive, and, ...well, ... so dogmatic (dare I say), that a reasonable person would have to conclude that only a person of Wigmore's stature and character could have crafted it!

    What say you, Gentle-but-Critical Reader?

    Sunday, July 06, 2003

    Causation, Explanation, and (what shall we call it?) Quasi-Intuition, a wee bit of Tacit Knowledge, or a touch of Unknowing Knowing

    One possible escape from the riddle of causation and inference that I have been exploring is the notion that there is a distinction between causal theory and explanation: there are (some observers think) valid or good explanations that are not yet -- or theories or accounts that fall short of -- potentially deeper causal theories or explanations.

    If this distinction between causal and other explanations works, it provides a solution to the mystery of why "mere association" bereft of causal theory works. The suggested answer: sometimes mere association is not mere association at all: the so-called mere association sometimes rests on an explanation.

    But in science -- and perhaps (one hopes) in other fields as well -- mere explanation is not enough, an explanation must be a good explanation).

    In science -- and, again one hopes, in other intellectual domains as well -- a theory, even a "merely explanatory" one [n.b., my phrase], must prove its mettle, it must be put to the test. In science this often means that it must be shown that the theory or explanation in question can predict the occurrence or non-occurrence of phenomena or events better than pot-shot strategies do, better than helter-skelter guessing does.

    By embracing "explanation" some theorists do seem to be advancing the claim that a theory short of a causal one can achieve have predictive force, that it can achieve a genuine understanding of Nature without having in hand anything that we might call a theory of what causes Nature to act as it does.

    But if explanation sans causality can achieve such understanding -- if it can indeed have this kind of epistemological power --, a big question quite naturally arises:
    How? How does "explanation without causation" achieve such understanding?
    The difficulty here is that a "mere explanation" falls short (by hypothesis) of a causal theory: it is short of, it is less than, a theory that rests on an understanding of the mechanisms or principles that (may) underlie phenomena and events in nature.

    The move to "explanation" suggests that those who make this move accept the notion that ignorant human beings can (somehow) achieve (scientific) understanding. Paolo Garbolino -- revealingly and perceptively -- points to this issue (and attempts to resolve it) by suggesting that the proper epistemological alternative to reliance on (i) causal explanation and, alternatively, (ii) statistical explanations is the deployment of (iii) "potential explanatory accounts" [P. Garbolino, "Explaining Relevance," The Dynamics of Judicial Proof: Computation, Logic, and Common Sense 179, at 187-191 (M. MacCrimmon & P. Tillers, eds., Physica-Verlag, 2002].

    A problem is not solved merely because it is named -- even if the name happens to be a seductive word such as "explanation." (But, note, attaching a name to a problem or process sometimes does advance understanding "simply" by identifying a problem, phenomenon, or process).

    The label "explanation" does not fully explain -- but whoever thought it would? --, the label "explanation" does not resolve the question of how ignorant human beings -- human beings who lack a full understanding of Nature and the mechanisms or principles that drive or explain it --, a phrase such as "explanatory theory" does not by itself explain how such ignorant human beings sometimes manage to make very good judgments about the behavior of Nature.

    The riddle just posed may provide us with part of an answer; it may at least yield or suggest a useful "non-answer answer," viz., a partial answer that helps even if it does not altogether satisfy the hunger for knowledge.

    The non-answer answer I have in mind is that human beings know more than they know, they have understanding that eludes their comprehension, they have some tacit knowledge.

    There can no longer be any serious doubt that this is the case; it is no longer possible to doubt that people have knowledge that they cannot articulate, spell out, make (fully) explicit. (This general insight is not new; it goes back at least to Plato.)

    But, of course, there is at least one big problem with being told that you know more than you know, that you already have much knowledge: sometimes -- and now is one of those times! -- you would like to know more than you now know. Does it do any good to be told you know more than you know? For example, does the notion of unknowing knowing tell us -- or help us to decide -- how a judge should instruct a jury to think about evidence that suggests that this or that substance causes cancer or does or when if ever evidence that this or that substance causes cancer or did cause cancer should be withheld from a jury?
    So -- to repeat the general question -- is the notion of unknowing knowing helpful?
    I must, alas, suspend discussion of this big question for now. But let us leave our conversation (are we having a conversation?)--, let us suspend this discussion with one caveat in mind: no theory of knowing that fails to account for advances in human knowledge can satisfy. It is true that know more than we know. But we also manage to learn; there are new things -- and new insights -- under the sun; and knowledge -- including our knowledge of how we know -- is not entirely circular.

    Thursday, July 03, 2003

    In Response to Popular Demand: Causality and Inference: Back to Basics

    Consider conditions X, A, and B.

    We have observed conditions A and B.

    We suspect condition X but we have not observed or studied it.

    We have observed -- but only to the extent that we have observed -- that A almost invariably follows B. We have also observed that A rarely or never occurs when B does not occur (whether before A or after A).

    In the absence of further observations, can we view B as a pretty good or excellent indicator of A?

    In the absence of further observations, can we presume that B is a cause of A?

    Can we say "yes" to the former question if we are unwilling to say "yes" to the latter?

    Now suppose that A is "motorcycle trashing"; and that B is "motorcycle tattoo on forearm."

    We might well think that it would be unwise to try to do away with motorcycle trashing A by doing away with motorcycle tattoos on forearms B. We might be so inclined to think because even though we have seen (thus far) that motorcycle trashing A always or almost happens when motorcycle tattoos on forearms B (of the eventual culprits) are present, we might have strong doubts that motorcycle tattoos on forearms B cause motorcycle trashing A. We might instead suspect that some third factor (e.g., X, which happens to be "gang membership") causes both motorcycle tattoos on forearms B and motorcycle trashing A.

    But, if we suspect that factor X is lurking in the background, perhaps causing both B and A, and, if we believe that X, if present, may expose B as a spurious cause of A -- we may believe this, perhaps, because we may believe that further investigation will show (we suspect) that if a potential culprit is a gang member, this factor of gang membership makes the probability of motorcycle trashing high and, furthermore, that any added information about a tattoo on the potential culprit's forearm would add nothing to the probability that the potential culprit trashed a motorcycle -- if, in short, (we strongly suspect) the following pattern of causal influence obtains



















    If we suspect that this pattern of causal influence obtains -- or if we suspect that it just cannot be that motorcycle tattoos on forearms increase the frequency of motor trashing or makes motorcycle trashing more probable -- does it follow that we should forego the use of B as evidence of A -- if, for example, (i) we have not made any observations in the past to confirm our suspicion about the causal potency of X (or some other factor); or -- alternatively -- (ii) we have made such observations about X but in this case we happen not to know if X -- gang membership -- is or is not present?

  • Note: In situation #(ii) the occurrence of B may be a good indicator of the (prior) existence of X. If so, the failure to observe X directly may be immaterial. So focus on scenario #(i) in the question directly above.
  • In the absence of something like causation -- or, if you prefer, in the absence of some "natural stability" in the phenomena that we may observe --, it may turn out that the observed connection (in the past) between A and B is just an accident, a coincidence and, thus, cannot be trusted to recur. This thought is what gives the belief in the importance of causality for inference its power! But ..., again, does it follow that human beings should abandon reliance on all "mere associations" when they are bereft of an articulable causal theory (or when they have no evidence to support whatever choate or inchoate causal theory they may happen to entertain)? But, by the same token, it really is true, isn't it, that mere association is not enough? The world is full of coincidences -- and you can find them (easily! everywhere!) -- you can find meaningless coincidences all around you -- if you just look for them.

    Further Comments and Questions about Causality and Inference

    Comment 1: Even if you are a believer in causation -- even if you believe that events in the space-time continuum can and do influence later events --, you may reject the intimation in my last blog that you (as a believer in causality) must believe in some underlying mechanism, some device or process that lies in some substratum, in some stratum below the level of phenomena. You might protest that the sort of notion of causation that I seem to be peddling is both unnecessarily mechanistic and unnecessarily reductionist. You might argue that you are entitled to believe in causation even if all that you believe is that phenomena can be explained by principles that express relationships between events in space and time and that there is no need to suppose that these causal principles or explanations somehow exist in or beneath the events that they describe. It is sufficient, you might say, that the "laws" -- or, better said, principles or law-like statements -- that you embrace -- such as [F = MA] or [e = m(c-squared)]? -- predict the relationships among phenomena in a wide variety of circumstances.

    Question: If this is what you think, why is it that causal "laws" or principles often or ordinarily do seem to rest on some image of a mechanism or real process that generates or controls the phenomena that one both uses as evidence and that one wants to explain -- e.g., an image such as a spinning atom surrounded by electrons in odd orbits; an image of a double helix? Granted, these "spatial" images sometimes or often collapse -- they come be seen as inadequate -- as scientific understanding progresses -- but perhaps this merely shows that science progresses. Is it the case that the progress of science often involves, not the elimination of spatial images of (hidden) processes or mechanisms, but, rather, the modification of old images or their replacement with new and better ones? (So: Kepler posits elliptical orbits rather than circular ones.) So is it true, after all, that a belief in causality involves or requires, at least sometimes, a belief -- a provisional belief, to be sure -- in the existence of underlying mechanisms or processes; and is it true that it cannot be said that "causal mechanisms" are merely or nothing more than disguised non-spatial principles that describe observed regularities or phenomena in nature? If one is to arrive at causal explanations, is it necessary to have a kind of "persuasive local ontology," a kind of vision of how (some) things just must work? (By the way: Why should we presume that spatial representations are not "principles"? Graphs are "spatial" {at least in two dimensions, and graphs can be multi-dimensional} -- but properly-constructed graphs are rigorously logical things. If they aren't "principles," what are they?)
    Counterpoint: Would one say of a causal explanation for, say, a social phenomenon -- e.g., "gang behavior" -- that it is necessary to have or develop a spatial representation or image of the mechanism or process that causes or influences this kind of phenomenon? (Answer: probably not, which may be a reason for the persistent belief in the existence of "souls." The causal explanation {if any} in this sort of situation might be in terms of the incorporeal principles -- principles and rules that exist but that cannot be seen (even in the mind's eye) -- principles that, it might be supposed, animate or govern (to some extent) the behavior of the members of a gang and the gang itself.)
    Comment 2: Causality implies that prior events influence future events. But human beings (and perhaps other animals) peer into the future and allow their vision(s) of the future -- of future events -- to influence their actions in the present. Does this mean that the future influences the present? If you are a believer in unidirectional causality, you will reply, "Certainly not!" You will say that the future influences prior events only in this sense: people's projections at time t of future events influence their decisions or choices at time t + 1, which in turn presumably influence yet later events. Hence, there is no violation of the premise that causality runs only in one direction and -- to be sure -- from the "past" to the "future." (You say my last statement is circular? I know the past, present, and the future when I see it ["them"?], b'gosh!)

    Comment 3: [I am preparing a comment -- a question, a hypothetical problem -- involving the "variables" (1) gang membership, (2) burglaries, and (3) tattoos. And at some appropriate point I will try to confound everything by mentioning the additional variable or factor, (4) the drinking of gin. This problem, if I can construct it, will raise two basic questions: (a) Can any set of numbers (alone) establish any causal relationship(s) among these three or four variables or factors?; and (b) If not, is evidence of the existence of any one of these three or four factors necessarily bereft of any probative value for any other factor (e.g., the commission of a burglary vel non)? But I do not yet have a suitably-crafted version of this hypothetical problem in hand -- and it is possible that I won't have the time to formulate it properly. Perhaps you can do so, Gentle and Wise Reader? (One of the matters or questions I have in mind is Judea Pearl's "d-separation" criterion for inferring causes from statistical data.)]

    Tuesday, July 01, 2003

    Causality and Inference Redux: Evidence Blogfans, Your Reading Assignment!

    On the topic of the relationship between causation and inference (which was the subject of my previous blog), please see Christian Borgelt & Rudolf Kruse, Probabilistic Networks and Inferred Causation, 18 Cardozo Law Review 2001 (1997).

  • You need the hard copy version of this article -- a LEXIS or WESTLAW version will not do -- because you need to see the authors' diagrams.
  • If you are not familiar with graph theory -- and even if you are --, you might want to skim (the more difficult) portions of Part I of the article. But plow ahead! Fear not! With a bit of effort, you can get the drift of the rest of the argument. And you will reap rewards from your labor -- and, to be sure, from your labour.
  • The main point of the article is a critique -- a gentle critique -- of a proposal by Judea Pearl for inferring causation from correlation, associations, or observed regularities. This critique is in itself very interesting, illuminating, and suggestive: it raises fundamental questions about the structure of causation or causal influence. But even if that critique does not interest you or if the phrasing of the athors' critique eludes your comprehension, read on!

    While (gently) questioning a particular approach to the problem of inferring causation, the authors remain largely convinced -- but with qualifications and hedges -- , the authors remained convinced of the importance of causal explanations for inference, and they serve up some familiar but very useful reminders of the perils of drawing conclusions on the basis of correlation or association alone. (I found it particularly reassuring to be reminded that "causal correlations are fairly rare." [I found this assertion reassuring because I agree with it: the notion that experience alone is "voiceless" plays a large part in my thinking about inference.])

    I am personally ontologically attracted -- what awful language, eh?! --, I am attracted to the thesis that in many or most domains of human life something like a principle of causation holds, that prior events do, in some way, generally influence subsequent events in the space-time continuum in which we seem to exist. I am also very strongly attracted to the hypothesis that the power of inference is greatly enhanced when human actors have and use plausible accounts of the mechanisms or processes that underlie "surface" phenomena, events, and associations. (One of my favorite cliches: experience does not speak for itself.)

    But there is a great practical difficulty (and, in an important sense, a theoretical one -- because the absence of human omniscience must figure large in any "theoretical" analysis of inference), -- there is, let me simply say, a VERY BIG difficulty: In many situations human comprehension of "causes" is extraordinarily frail. In these situations, how is inference to work (ideally, but for real human beings)?

    Even when human knowledge of underlying causes or mechanisms is limited, it remains true that experience and associations do not speak for themselves. The world is replete with spurious and misleading associations! So some sort of sense of how the world works perhaps -- very probably -- remains important for the drawing of sound inferences from observed or reported regularities in the world.

    So, Gentle Reader, where does all of this leave us -- and, for example, where does it leave jurors or where should it leave them when they turn to the job of assessing evidence of, say, the past criminal behavior of a defendant on trial for a crime or the defendant's habit of "associating with criminals"? What, if anything, should we tell jurors or what evidence, if any, should be withhold from their gaze to make sure that they do not make inferential mistakes?

    Your thoughts, Gentle Reader? (Don't be bashful! ... O.k., o.k., not-so-gentle readers can chime in too.)

    Saturday, June 28, 2003

    Causal Explanation and Inference in the Law

    What is the relationship between causal explanations and ordinary inference in legal proceedings?

    Judea Pearl has developed a powerful theory about the importance of causal explanations. See, e.g., J. Pearl, Causality: Models, Reasoning, and Inference (2000). He believes that, for at least certain purposes, causal reasoning is superior to associationist reasoning. He thinks the superiority of causal explanations is particularly evident or pronounced when human beings are faced with the problem of intervening in the world.

    Question: Is there a legitimate place for non-causal explanations -- and, by extension, for inference not based on causal explanations and hypotheses? Are legal proceedings distinguishable {forgive the legal parlance!} --, are the factual issues in legal proceedings generally fundamentally different from the sorts of situations, questions, and tasks that Pearl posits and considers in his discussions of causality -- are such issues in legal contexts generally different, perhaps, because, in either some or most some legal proceedings, the problem confronting the adjudicator(s) is generally not how to intervene in the world to efficaciously control or influence the course of future events?

    Or is it the case that Pearl's argument (which, as I say, is extraordinarily powerful) has broader and deeper epistemological (and ontological) roots, roots that suggest or say that associationist explanations -- explanations that {let me stipulate} are bereft of causal hypotheses and that putatively rest solely on observed or hypothesized regularities or observations --, is it the case that "pure" associationist explanations cannot support valid inference?

    What say you all?

  • The question I pose here is an important one: it goes to the heart of the question of the nature of inference and the possibility of rational regulation of or deliberation about inference.
  • I thank you in advance for your thoughts, suggestions, and questions.

    Friday, June 27, 2003

    Law Professor: The Sequel (Already)

    Mmmm ..., brief Google research unearths the following sizzling description:

    No one could be more surprised than Ike Goldman, a seventy-eight-year-old retired contract law professor at Columbia, when he discovers that the much younger woman whom he keeps from suicide on the George Washington Bridge opens a new world of love for him. (Blurb by publisher, Harcourt, about Howard Fast, Redemption (1999))

    But, alas, apart from the fact that this book is apparently already out of print, the difficulty here is that this is not the sort of book I had in mind: the author, it seems, had to conjure up a trial to keep the attention of his readers -- and, besides, the hero is retired and doesn't have to attend any faculty meetings. Law professor? Hah! As one Barnes & Noble "customer reviewer" wrote, this book is "not up too snuff."

    Law Professor: A Life?

    I have no talent for fiction -- except of the unwitting kind -- but I sometimes wonder if the life of a law professor warrants fictional treatment.

    After extraordinarily brief reflection I invariably conclude that the answer is "no" -- unless, of course, a writer is capable of crafting a well-told tale that largely ignores the professorial (anti)hero's professional life.

    How much drama can one expect to unearth in even the stormiest faculty meeting or in LEXIS research? (I am reminded of Bob Woodward's largely-futile attempt to find drama in the backroom wrangling of Supreme Court Justices. [Even the backrooms were in that case merely metaphorical -- since most of the spell-binding wrangling seems to have been done through memos and written notes, as I recall.])

    But I may be wrong. (I am often wrong.) So, pray tell, what's your opinion? Should someone do a fictional expose [an accent over this last "e," please] of the life of a law professor?

    My favorite (but nonfictional) anecdote -- a sad anecdote -- about the lives of famous academicians is the story of Nobel Prize-winning economist who died of a heart attack at the side of the Merritt Parkway shortly after learning that he had been awarded the (Nobel) Prize. This story is a reminder that practically all of us -- except, possibly, Donald Trump -- have to pull their socks on one at a time. (I presume that people such as Donald Trump can afford to hire other people to perform such tasks.)

    I know, I know: Someone has already done it recently, someone has already written such a novel!

  • Well, ... er ..., ... actually ..., I don't know. So tell me: Who has written a novel recently about the trials (metaphorical) and tribulations (real) of a law professor in the United States? And is the novel any good?
  • Monday, June 23, 2003

    Constitutional Twaddle

    For aught it matters: I personally believe in the use of racial and ethnic preferences to overcome the effects of past societal discrimination and I personally think that the use of racial preferences for this purpose should not be said to run afoul of the Equal Protection Clause. Having voiced this opinion, I feel compelled to add that the Court's view (voiced today in Grutter v. Bollinger) that the presence of a "critical mass" of African-American students at an institution of higher education is essential to the realization of the benefits of "diversity" is twaddle. Justice Rehnquist's rejoinder is unanswerable:

    If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,* how can this possibly constitute a “critical mass” of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,” one would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans.
    The only plausible justification for preferential treatment of African-Americans, Native Americans, and other such groups is the judgment that such groups have been improperly disadvantaged and that steps to remedy such disadvantages are warranted. The constitutionality of such remedial steps should be directly confronted and resolved. Hypocrisy about the nature of the problem presented by racial and ethnic preferences will cause justifiable resentment. The public is not stupid: it is likely to think that the Court takes it for a fool.
    Big Books and Little Books; Sprawling Books and Lean Books; Rich Books and Thin Books

    Consider two recent books:

    Mike Redmayne, Expert Evidence and Criminal Justice (Oxford, 2001);


    James Franklin, The Science of Conjecture: Evidence and Probability before Pascal (Johns Hopkins, 2001).

    Both of these books, I am convinced, are very good books. Yet Franklin's book will not win -- it has not won -- consistent praise from academicians. It has gotten high praise -- extravagant praise -- in some quarters. But some reviewers have given the book rather lukewarm praise.


    Perhaps Franklin's book is not as good a book as I think it is.

    That explanation does not wash: Franklin's book is magnificent

    So what is the explanation?

    This: Today's academicians prefer monographs or books written in the style of a monograph.

  • Redmayne's excellent book is in fact a monograph.
  • Monographs are "economical," they are "spare," they deal with a single and narrow topic, and they dispense with all extraneous material.

    But is a monograph intrinsically superior to a big and sprawling book?

    I say, "No."

    It is true that sprawling books are harder to read.

    But there is much to be said -- there is a great deal to be said -- for the sheer wealth of detail that a big book can contain.

    Details are an important form of wealth, and they are particularly when the matter under discussion is history.

    In a work about history, it is (sometimes) a pleasure to have an author's conclusions. But it is an equally great pleasure to have the basis for the author's conclusions, it is useful to have the historical record on which an author's conclusions rest.

    There is room for both kinds of books: monographs and sprawling, leisurely, expansive, exploratory excursions into foreign and complex terrain.

  • It is worth keeping in mind that some matters cannot be reduced to a simple or single formula or theme. The history of probability may be such a matter.
  • In any event, if you are interested in uncertain human knowledge, I strongly recommend that you take Franklin's book with you on your two-month vacation. (Less time will not do.) Think of The Science of Conjecture as a non-fiction equivalent of Tolstoy's War and Peace, which, I confess, I have never had the time and leisure to read.

    Saturday, June 14, 2003

    Historic National Historic Landmark Status Recognized; Interior Secretary Vows that National Patrimony Will Not be "Wiped Away" under Her Watch

    New York City, June 13 – U.S. Secretary of the Interior Gale Norton today designated the bird droppings on the office window in room 433 in Cardozo Law School as a National Historic Landmark. She observed that the bird droppings had been on the window for more than a decade and, thus, were almost certainly unique in the annals of Western civilization. In the face of protests from Tillers, the occupant of room 433 and a professor of law at Cardozo Law School, Secretary Norton noted that law teachers do not count for much, “particularly not at Cardozo,” and that, in any event, the English common law right to “ancient lights” had never been recognized under U.S. law or by Cardozo Law School. The Secretary noted that National Historic Landmark status means that a showing of overwhelming necessity would now have to be made to make removal of the bird droppings lawful. Secretary Norton rejected as inadequate Tillers’ contention that Cardozo Law School plainly has no intention or ability to remove the bird droppings from the window in room 433. The Secretary noted, “That is like saying that the crime of murder should be abolished because the risk of unlawful homicide is low.” The Interior Secretary added, “Cardozo Law School and Yeshiva University are to be warmly praised for steadfastly ignoring repeated requests for the removal of the bird droppings. Had the requests been granted, an important part of our national patrimony would have been washed away.”