A Difficult Problem: Deciding What To Investigate

Talk to the Newsroom: Investigations Editor Matthew Purdy, New York Times Online (May 14, 2007):

Q. I've always been interested to know how you decide WHAT to investigate? After all, you can't investigate everything — yet many things warrant investigation. I also understand that investigative reporting is an expensive process, taking reporters and editors away from other stories. For some news organization, it seems a luxury/indulgence they can't afford. So what's the calculus, the criteria, at The Times?

— Thomas Hackett

A. Your question is a good one because deciding what to investigate is often the most difficult decision. ...

Exactly! See Assignment No. 1, Assignments Page, Fact Investigation Course (Fall 2006):

I believe it is important for students of investigation to experience the "agony of exploratory investigation" for themselves.

My experience with prior incarnations of this course shows that the process of identifying a suitable investigation topic can be both arduous and time-consuming. Beginnings of any kind are usually hard. The beginnings of investigations are no exception to this rule: in the initial phases of investigation -- phases that are usually exploratory in nature -- everything often seems to be a bloomin' buzzin' confusion.

See also Beginnings Are Hard: Notes on Starting an Investigation

Hidden Harms

The prose is restrained in Leonie Star's biography JULIUS STONE: An Intellectual Life (Oxford University Press and Sydney University Press, 1992). But at times it is almost heartbreaking to read the story of Stone's life. For example, in 1941 there was a major public controversy about the appointment of Julius Stone and James Williams to two chairs at the University of Sydney's Faculty of Law. Part of the opposition to Stone was fueled by anti-Semitism. After the university's senate narrowly (and publicly) voted to rescind the offers of the chairs to Stone and Williams, Stone wrote to Williams suggesting that both of them should withdraw their candidatures for the chairs. Williams rebuffed Stone's suggestion. After the university senate reversed itself again and reinstated its earlier approval of the offer of the chairs to Stone and Williams, Stone cabled Williams suggesting that the two men now should both accept the offers. Leonie Star writes (id. at p. 65):

Williams wrote to Stone on 10 November [1941]. He did not agree that decisions by either one would so affect the other that neither could act independently; he was not sure there were not factors which affected only one of them. It is clear that he had still not decided whether to accept; his indecision seems not to have been based on principle but on dislike of Stone. He asked a colleague by letter on 12 November whether he thought Stone's letter of 7 November was hostile and 'a declaration of war without any rules'. Williams seems to have believed that the main question was whether it would be worth his while trying to work with Stone, for he elsewhere expressed concern that a position which could be regarded as superior to a New Zealand Supreme Court judgeship [Williams held an academic position in New Zealand] could be lost for no better reason than 'I don't want to be plagued by a Hebrew for the rest of my life'.

It should be noted that in the end Stone was awarded the chair. Furthermore, the support for Stone among the faculty and students of the University of Sydney was very strong from the beginning. The times they were already a'changin'. Furthermore, Stone apparently vowed, on this occasion and others, only to work harder, believing that this was the way forward for him. But one naturally wonders how deep were the wounds. (Perhaps I will find out the answer as I read on.)

Stanford's Plan for 3D Legal Education

Stanford Law School has an enterprising plan:

Stanford Law School today [Nov. 28, 2006] announced changes that are transforming the JD into a three-dimensional degree program that combines the study of other disciplines with team-oriented, problem-solving techniques and expanded clinical training that enables students to represent clients and litigate cases—before they graduate.

This plan, announced months ago, sounds excellent to me. Indeed, it sounds exciting and alluring: it offers the prospect of successfully combining interdisciplinary (and "theoretical") education with practical training.

Tillers Tries To Be Rationale

I have tried to use Rationale to diagram part (but only part!) of the inference problem presented by United States v. Robinson, 544 F.2d 611 (2d Cir., 1976) & United States v. Robinson, 560 F.2d 507 (2d Cir., 1977) (en banc). See http://tillers.net/ev-course/materials/robinson.html (scroll down about 4/5 of the page). Here is the most comprehensive map I produced of the problem in Robinson:

Note that my representation of the Robinson problem is incomplete -- both by necessity and by design. For example, I make no attempt to portray how questions about matters such as the number of revolvers, the number of .38 caliber revolvers, or the legality and illegality of the possession of revolvers in New York City, New York State, or beyond affect the argument about the problem in Robinson. (By the way: What is "the" [inference] problem in Robinson?) Perhaps I will ask my students this fall to develop their own maps. Do you think that doing so would amount cruel and unusual punishment of students who are taking a basic Evidence course?

Some people (William Twining, David Schum, Terry Anderson) have been courageously asking their students to do this sort of thing -- to map arguments from and about evidence -- for literally decades. I have used inference maps (on a limited basis) in my basic course in the law of evidence, but I have not asked my students to produce their own maps in the basic Evidence course. I am a bit ashamed of this. In my defense: (my) long experience in academia suggests that traveling solo in this fashion in the American law school world presents hazards. But perhaps now I am in a position to withstand student complaints? Or perhaps not. (In any event, an ingratiating classroom manner usually counts for far more than does the substance of the stuff one teaches. The parallel to quackery in expert testimony is unmistakable. [A pleasing courtroom manner will take an "expert" far. {Am I too cynical?}])

The maps one makes by using Rationale or other tools for mapping (inter alia) evidential inference vividly illustrate why it is useless and impossible to talk (coherently) about the law of evidence or about proof in adjudication (or pretrial or prelitigation investigation) without talking about chains and webs of evidence and inference.