Friday, March 21, 2003

Law and Economics in Search of Evidence

To the extent that law and economics people think about the law of evidence at all, they tend to focus on the notion of "search." See, e.g., Richard A. Posner, "An Economic Approach to the Law of Evidence." The notion of "search" seems to be rooted in information theory. (Do I have this right? I readily confess to not knowing many curlicues in the law and economics field.)

My second assumption about the argument made by people such as Posner is that the notion of "search" concerns the problem of figuring out a rational strategy for investing in the acquisition of evidence or information when one has some uncertain hypotheses in hand and wants or needs to collect evidence or information that may tend to confirm or disprove those uncertain hypotheses. Posner (and other law and economics people?) seem to think ("assume"?) that the prescriptions of economic theory and information theory for dealing with this problem -- the problem, "When should one stop investing resources in information?" -- can explain much about (at least) a rational version of the law of evidence.

Perhaps information theory does shed some light on the treatment of evidence in litigation; I suspect that it does. But I suspect that information theory does not shed as much light on evidence in litigation as some law & economics scholars and similar people might suppose. That's because one key assumption that Posner and some other law and economics people make about evidence may not be "as true" -- or as often -- as such people suppose. I am referring to the assumption that the decision makers -- the players in litigation -- know what the (factual) issues are. This state of affairs -- i.e., perfect, certain, and complete knowledge of the hypotheses in question; i.e., perfect knowledge of the identity of the uncertain hypotheses that are in play --, this kind of certainty about what the issues are sometimes -- and, very probably, frequently or always -- does not obtain or does not fully obtain.

Any account of evidentiary processes in litigation -- the dynamics of evidence and inference in litigation -- must take into consideration that actors in the process of litigation sometimes -- and perhaps always; indeed, probably always --, actors in litigation are bereft of perfect or certain knowledge of the identity and countours of pertinent (uncertain) hypotheses (e.g., the factual issues "in contention" or "in play" in a particular episode of litigation) and that one of the central purposes for the gathering of evidence and information -- the "search" for evidence -- is the search for information -- evidentiary information -- that generates (suggests, inspires) new hypotheses or refinements of hypotheses (e.g., including, of course, factual hypotheses or issues in litigation). To wit (in fancy but accurate language): evidentiary trifles have "abductive" force.

A recognition that evidentiary trifles have suggestive or abductive force -- that they have the capacity to generate novel and unexpected hypotheses -- does not mean that what economists and information theorists have to say about "search strategies" is useless and pointless. But if evidence does have the capacity to generate novel hypotheses (or novel and typically-unforeseen refinements of hypotheses), it does follow that the search strategy that a decision maker employs -- and the kinds of search strategies that a system of legal rules permits or encourages -- must be much more subtle and supple and complex than the search strategy that might rationally be employed or favored when the hypotheses in play are known. This seems to follow because the premise that evidence has abductive force -- the hypothesis that evidentiary trifles, for example, suggest new hypotheses (and new refinements of hypotheses) --, this premise suggests that as new new evidence accumulates the number of hypotheses in play both can and will both mutate and greatly multiply. See P. Tillers, "Weighing Decisions about Proof in Litigation" (alternative title: "Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation"); P. Tillers, "The Explosive Dynamic Complexity of Evidentiary Processes" (alternative title: "Can AI Help Resolve Some Fundamental Puzzles of Judicial Proof?: Introductory Comments about the "Explosive Dynamic Complexity" of Evidentiary Processes associated with Litigation"); and P. Tillers, "Spotty Semiotics: Further Notes on the Unpredictability of Investigation & Proof in Litigation."

What say you all? Do I have it (roughly) right? Wrong?

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