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.