Old Scholars Law Abstracts (OSLA)

Old Scholars Law Abstracts (OSLA)

The Social Science Research Network (SSRN) is pleased to announce the establishment of a new Legal Scholarship Network journal devoted to showcasing the work of scholars who have been in teaching for forty years or more. Edited by Professors Greer Griench and Gary Giezer, the Old Scholars Law Abstracts provides a forum for posting both completed works and works in progress on any subject relating to law.

This Journal provides aging law teachers an avenue for locating decrepit peers working in the same substantive area of scholarship. We hope that this Journal will also be of interest to dis-appointments committees and junior scholars in Venice.

OSLA is printed in large type.

To subscribe to Old Scholars Law Abstracts, please go to http://hq.ssrn.com, where you will find a short registration process. If you have any problems with this process, please consult your personal medical assistant.

Sincerely,

Wesley White
Director emeritus (h.c.), Legal Scholarship Network

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Statistical Sampling, "Fluid Recovery," and Hundreds of Thousands of Smokers

In McLaughlin v. American Tobacco Co., 2008 U.S. App. LEXIS 7093 (April 3, 2008), Judge Walker, speaking for the Second Circuit Court of Appeals, reversed District Court Judge Weinstein's certification of a class of "cigarette smokers allegedly deceived into believing that 'light' cigarettes were healthier than 'full-flavored' cigarettes." Plaintiffs sought (and perhaps will still seek) damages of hundreds of billions of dollars. The legal basis for the smokers' action against the cigarette companies was RICO, the so-called federal racketeering act. The federal trial court's opinion explaining its order for class certification is at Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992 (E.D.N.Y. 2006) (Jack B. Weinstein, Judge).

The reversal of Weinstein's class certification, the NYTimes said, was generally expected. However, even putting aside the huge amount of damages sought, the Second Circuit's opinion is of interest for a couple of reasons.

First -- this point is of interest mainly to some law teachers -- it is very rare for a federal court to hold that a Federal Rule of Civil Procedure or an order interpreting such a Rule violates the Rules Enabling Act. But the Second Circuit effectively said that Judge Weinstein had violated this Act. (The Second Circuit also said that Weinstein's method of calculating damages to individuals violates the Due Process guarantee.)

Second, the Second Circuit's opinion appears to make moot Judge Weinstein's provocative thoughts about methods for calculating damages to individual smokers. Judge Weinstein had said or suggested that a sampling procedure would or might be apopropriate. See Dramatic Use of Statistics in $280 Billion - $800 Billion Cigarette Case.

The Second Circuit, relying on the Rules Enabling Act and the Due Process guarantee, rejected Judge Weinstein's proposed method for calculating damages to individual smokers. See the above extract from Schwab and commentary. Judge Walker was most disturbed by the possibility or probability that aggregate judicially-recovered damages might exceed aggregate actual damages. He also effectively concluded that Judge Weinstein's proposed use of statistical sampling to determine damages to individuals amounts to "fluid recovery." Speaking on behalf of the Second Circuit, Judge Walker said that federal precedent condemns fluid recovery as a violation of Due process. He added a "see also" reference to "2 McLaughlin on Class Actions § 8:16, at 8-95 (3d ed. Dec. 2006 update) ('Courts have repeatedly rejected the use of fluid recovery as a substitute for individualized proof when the class pursues claims that require proof of actual damages.')" But Judge Walker hedged his broad condemnation of fluid recovery and non-individualized proof of damages by saying, "To be sure, this does not mean that defendants are 'constitutionally entitled to compel a parade of individual plaintiffs to establish damages.' In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 289 (S.D.N.Y. 1971)."

Bayesianism Finds Another Home (Outside of the Law) -- but (allegedly) Runs into Difficulties

Dale Purves, M.D., Center for Cognitive Neuroscience, Duke University, writes:

Information in visual stimuli cannot be mapped unambiguously back onto real-world sources, a quandary referred to as the "inverse optics problem." The same problem exists in all other sensory modalities.

In the case of visual perception, Dr. Purvis takes a "probabilistic approach." His approach also emphasizes the role of experience. He writes:

A Primer on Probabilistic Approaches to Visual Perception

A growing body of evidence indicates that visual percepts are generated according to the empirical significance of light stimuli, rather than the characteristics of the stimuli as such. ...

Background

The first and most influential advocate of using past experience as a means of contending with the uncertain provenance of visual stimuli was Hermann von Helmholtz (1866/1924). Helmholtz summarized his conception of this empirical contribution to visual percepts by proposing that the raw "sensations" generated by the physiological infrastructure of the eye and the input stages of the visual brain could be modified by information derived from experience. Helmholtz described this process as making "unconscious inferences" about reality, thus generating perceptions more nearly aligned with stimulus sources when input-level sensations proved inadequate (op cit., vol. III, p.10 ff). Despite these speculations and the ensuing debate during the second half of the 19th C., vision science during most of the 20th C. has been understandably dominated by the enormous success of modern neurophysiology and neuroanatomy. A plausible assumption in much contemporary vision research has thus been that understanding visual perception will be best achieved by gleaning increasingly precise information about the receptive field properties of visual neurons and the synaptic connectivity that gives rise to these properties. As a result, the role of past experience in determining what observers see has, until recently, received relatively little attention.

Bayes' theorem

If the visual system uses empirical information to generate perceptions that reflect the real-world conditions and object relationships that observers have always had to respond to by appropriate visually-guided behavior, then understanding vision inevitably means understanding how, in statistical terms, physical sources are related to retinal images. By far the most popular approach to meeting this challenge has been Bayesian decision theory. ... In vision research, Bayes' theorem was initially used to develop pattern recognition strategies for computer vision. ... More recently, however, the framework provided by the theorem has been advocated as a means of rationalizing visual perception (or at least the judgments associated with visual perception). ... With respect to vision, the prior describes the relative probabilities of different physical states of the world pertinent to retinal images, i.e., the relative frequency of occurrence of various illuminants, surface reflectance values, object sizes and so on. The second term, P(E|H), is called the likelihood function. If hypothesis H were true, this term indicates the probability that the evidence E would have been available to support it. In the context of vision, given a particular state of the physical world (i.e., a particular combination of illumination, reflectance properties, object sizes etc.), the likelihood function describes the probability that the state would generate the retinal projection in question. The product of the prior and the likelihood function, divided by a normalization constant, P(E), gives the posterior probability distribution, P(H|E). The posterior distribution defines the probability of hypothesis H being true, given the evidence E. In vision, the posterior probability distribution thus indicates the relative probability of a given retinal image having been generated by one or another of the different physical realities that might be the source of the image.

...

Because the posterior distribution indicates only the relative probabilities of a set of possible image sources, a particular source (i.e., a particular combination of illumination and reflectance in the example above) must be selected from this set if the aim is to predict what an observer will actually see. The usual way of addressing this further issue is to assume that the visual system makes this choice according to the behavioral consequences associated with each perceptual "decision". The influence of various consequences is typically expressed in terms of the discrepancy between the decision made and the actual state of the world, which over the full range of the possible choices defines a gain-loss function. Since there is no a priori way to model this function (indeed, given the enormous number of variables involved, a realistic gain-loss function for some aspect of vision would be extraordinarily difficult to determine), the relative cost of different behavioral responses is assumed. ...

...

In sum, Bayesian decision theory determines the physical source(s) capable of generating a given retinal image and the relative probabilities of their actually having done so; the percepts predicted are therefore explicit models of world structure.

Empirical ranking theory

The application of Bayesian decision theory to vision is clearly an important advance in that it formalizes Helmholtz's general proposal about "visual inferences" as a means of contending with stimulus uncertainty. Nonetheless, its implementation presents both conceptual and practical difficulties. With respect to the conceptual implications of Bayesian theory applied to visual perception, the intuitively appealing idea that percepts correspond to physical characteristics such as surface reflectance is problematic and in many instances false (as we explain in a later section). Practical obstacles are the difficulty determining the physical parameters relevant to any specific prior, and the need for a decision rule based on an assumed gain-loss function. Is there, then, any other way of conceptualizing how vision utilizes empirical information to deal with the inverse optics problem?

The alternative to Bayesian decision theory that we have used in rationalizing visual percepts begins by abandoning the idea that vision entails inferences (whether conscious or unconscious) about the properties of the physical world, the concept inherent in the application of Bayes' theorem to visual perception. The conceptual basis of this alternative approach is that the percept elicited by any particular stimulus parameter (e.g., the brightness elicited by the luminance of a stimulus) corresponds not to a statistically determined value of the relevant qualities in the physical world (e.g., the most likely illumination and reflectance values underlying that luminance), but rather to the relative frequency of occurrence of that particular stimulus parameter in relation to all other instances of that parameter experienced in the past. For example, with respect to the perceptual quality of brightness, the brightness perceived in response to the luminance of region of a visual scene would be determined by how often the specific luminance had occurred relative to the occurrence of all the other luminance values in that context in the past experience of observers. In other words, the brightness elicited by a target is determined by the empirical rank of the relevant luminance value within the full range of experience with similar scenes ... . This biological rationale of this approach is that it is obviously desirable to have the full perceptual range for any visual quality (from the brightest percept we can have to the dimmest, for example) aligned with the full range of the relevant stimulus parameters generated by the physical world (from the most intense luminance experienced in visual stimuli to the least intense). ...

It should be apparent from this account that the fundamental difference between these two empirical approaches - Bayesian decision theory and the empirical ranking theory - is their different conception of visual perception. Bayesian decision theory, as it has typically been applied to vision, supposes that perceptions are effectively inferences about physical properties of the objects and conditions in the world. In empirical ranking theory visual perceptions are conceived as statistical constructs that have no direct correspondence to the possible real-world sources of a stimulus. In this alternative framework, visual percepts are simply subjective sensations that link visual stimuli to the empirical significance of their sources according to the success or failure of visually guided behavior in past experience. Deciding which approach is the more useful and the more appropriate framework for predicting and understanding will depend on the ability of these theories to explain the full range of the numerous puzzles vision presents.

References

...

Yang, Z, Purves, D (2004). The statistical structure of natural light patterns determines perceived light intensity. Proceedings of the National Academy of Sciences of the United States of America, 101, 8745-8750.

Howe CQ, Purves D (2005) Perceiving Geometry: Geometrical Illusions Explained in Terms of Natural Scene Statistics. New York: Springer.

Catherine CQ, Lotto RB, Purves D (2006) Empirical approaches to understanding visual perception. J Theor Biol 241: 866-875.

I still think that perception involves "unconscious inference" (but my guess is that Bayesian logic and Bayesian statistics are not sufficient to explain how perception works).

Todd Pettys on Jury Autonomy and Exclusionary Rules

Todd Pettys of the University of Iowa has posted a paper on an odd-sounding but interesting question: whether exclusionary rules are "immoral" because they infringe on jury autonomy. See Todd E. Pettys, "The Immoral Application of Exclusionary Rules," University of Iowa Legal Studies Research Paper No. 08-08 (March, 2008). The abstract of the paper informs the reader that Professor Pettys makes some use of Kant's categorical imperative and Kant's injunction that people be treated as ends rather than means. If Professor Pettys does not put an absolutist spin on the notion of jury autonomy, his paper likely makes an important contribution to thinking about exclusionary rules. Indeed, even if he does advocate a categorical version of Kant's categorical imperative, his paper likely makes an important contribution. (I have not yet read the paper.) The interests of jurors and the role of juries -- pedagogical, exemplary, and otherwise -- in the larger society are matters worth considering. (If it also turns out that giving juries more autonomy also increases -- at an acceptable price -- the accuracy and the justice of jury decisionmaking, so much the better.)

Crime, Procedure, and Evidence: New Book: Table of Contents & List of Contributors

Here is the table of contents and a list of contributors for the new book, J. Jackson, M. Langer & P. Tillers, Crime, Procedure and Evidence in a Comparative and International Context (Hart, forthcoming October 2008):

Contents

Acknowledgements
List of Contributors

1. Introduction: Damaška and Comparative Law
John Jackson, Máximo Langer and Peter Tillers

2. Mirjan Damaška: A Bridge between Legal Cultures
Harold H Koh

I. Diverging and Converging Procedural Landscapes, Changes in the Institutional and Political Environment and Legal Transplants

3. The Decay of the Inquisitorial Ideal: Plea Bargaining invades German Criminal Procedure
Thomas Weigend

4. Sentencing in the US: An Inquisitorial Soul in an Adversarial Body?
William T. Pizzi

5. The New Italian Code of Criminal Procedure: A System Caught between Two Traditions
Luca Marafioti

6. The Two Faces of Justice in the Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining and the Inquisitorial Legacy

Stephen C Thaman
7. Some Development Trends in Continental Criminal Procedure in Transition Countries of South-Eastern Europe
Davor Krapac

II. Re-Exploring the Epistemological Environment

8. Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for Truth
Elisabetta Grande

9. Cognitive Strategies and Models of Fact-Finding
Craig R Callen

10. Are There Universal Principles or Forms of Evidential Inference? Of Inference Networks and Onto-Epistemology
Peter Tillers

III. Human Rights Standards and Hybridization in the Transnational and International Prosecution of Crime

11. Extraterritorial Jurisdiction: Applications to Terrorism
M Cherif Bassiouni

12. Faces of Transnational Justice: Two Attempts to Build Common Standards Beyond National Boundaries
John Jackson

13. Reflections on the Hybridization of Criminal Procedure
Mireille Delmas-Marty

14. Confrontation Right across the Systemic Divide
Richard D Friedman

IV. The Challenge for Comparative Scholarship
15. The Good Faith Acquisition of Stolen Art
John henry Merryman

16. Faces of Justice Adrift? Damaška’s Comparative Method and the Future of Common Law Evidence
Paul Roberts

17. Utility and Truth in the Scholarship of Mirjan Damaška
Ronald J Allen and Georgia N Alexakis

18. Sentencing and Comparative Law Theory
Richard S Frase

19. No Right Answer?
James Q Whitman

Postscript

20. Are Marsupials and Mammals That Different? Functions of Trial Procedure
Richard O Lempert

Appendix

Interview of Mirjan Damaška
Máximo Langer

List of Contributors

Ronald J Allen, John Henry Wigmore Professor of Law, Northwestern University School of Law; Fellow, Procedural Law Research Center, and Chair, Board of Foreign Advisors, Evidence Law and Forensic Sciences Institute, China Political Science & Law University

Georgia N Alexakis, JD Northwestern University School of Law

M Cherif Bassiouni, Professor of Law and President, International Human Rights Law Institute, DePaul University College of Law; President of the International Association of Penal Law

Craig R Callen, Professor of Law, Michigan State University College of Law

Mireille Delmas-Marty, Professor of the University of Paris I; Professor of the Collège de France

Richard S Frase, Benjamin N Berger Professor of Criminal Law, University of Minnesota Law School

Richard D Friedman, Ralph W Aigler Professor of Law, University of Michigan Law School

Elisabetta Grande, Professor of Comparative Law, Piemonte Orientale University

John Jackson, Professor of Public Law, Queen’s University Belfast; Fernand Braudel Fellow, European University Institute, 2007-2008

Harold Hongju Koh, Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School

Davor Krapac, Professor of Law, University of Zagreb; Judge of the Constitutional Court of the Republic of Croatia

Máximo Langer, Professor of Law, University of California, Los Angeles

Richard O Lempert, Eric Stein Distinguished University Professor of Law and Sociology, University of Michigan Law School

Luca Marafioti, Professor of Law, University of Rome III

John Henry Merryman, Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus and Affiliated Professor in the Department of Art, Emeritus, Stanford University

William T Pizzi, Professor of Law, University of Colorado School of Law

Paul Roberts, Professor of Criminal Jurisprudence, University of Nottingham School of Law

Stephen C Thaman, Professor of Law, Saint Louis University School of Law

Peter Tillers, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

Thomas Weigend, Professor of Law, University of Cologne

James Q Whitman, Ford Foundation Professor of Comparative and Foreign Law, Yale Law School

Once Again: What Is Evidence?

Lillie v. United States, 953 F.2d 1188, 1190 (10th Cir., 1992) (civil action; view by judge; footnote omitted):

We acknowledge that jurisdictions vary as to whether a view is treated as evidence or simply as an aid to help the trier of fact understand the evidence. However, we believe such a distinction is only semantic, because any kind of presentation to the jury or the judge to help the fact finder determine what the truth is and assimilate and understand the evidence is itself evidence.

Question 1: Under this formulation, is the opening statement or closing argument of counsel "evidence"?

Question 2: If not -- the law is that such matters are not evidence -- why not? Consider a further question in response to Question 2: Are charts and diagrams, when presented to the trier, that serve only as visual aids -- charts and diagrams that seek to clarify other evidence -- "evidence"? Does it matter whether such "demonstrative" material is presented to the trier during "proof" or whether it is, instead, shown to the trier during closing argument or the opening statement? Should such demonstrative material be shown to the trier only during the opening statement or closing argument? (This would be an unwise restriction, no?)

Question 3: Is expert opinion "evidence"? (The law says that it is.) But isn't some expert opinion just (fancy) "argument"? If so, why aren't the statements of counsel during closing argument treated as witness testimony? Is it because we expect and want trial lawyers to lie (i.e., to make assertions they do not believe are true) during this phase of the trial? If so, what about the assertions of counsel in their opening statements? (Opening statements, the law usually proclaims, are not to contain "argument.") Should counsel be sworn to tell the truth during their opening statements and be prosecuted for perjury if they knowingly fail to do so?

Would it be better to ignore the question of what is and is not "evidence"? (Should we ignore the tyranny of the label "evidence"?) If we did that, it would still be necessary to decide which of the legal restraints and controls that we now place on "evidence" apply to the thing or process whose legal treatment is in question. (A vast number of constitutional and nonconstitutional legal rules and principles apply to things and processes that courts and legislatures have chosen to call "evidence.")

Cardozo on Evidence

In Snyder v. Massachusetts, 291 U.S. 97 (1934) Justice Cardozo, speaking on behalf of a divided Court, made some provocative comments about views, trials, and definitions. In Snyder the defendant was charged with murder. At his trial the jury was taken to the crime scene and allowed to view the crime scene. But defendant was not allowed to be be present during the view. The question was whether defendant's constitutional right to a fair trial and his right of confrontation had been violated. Justice Cardozo said:

There is an approach to the subject from the viewpoint of history that clarifies the prospect. We may assume that the knowledge derived from an inspection of the scene may be characterized as evidence. Even if this be so, a view is not a "trial" nor any part of a trial in the sense in which a trial was understood at common law. This is seen from two circumstances. In the first place, the judge is not required to be present at a view, though he may go there if he will. In the second place, the practice for many years was to have a committee of the jurors, the usual number being six, attend at the view to represent the whole body. ... We have no thought to suggest that a view by a part of a jury is permissible today. That question is not before us. There is significance, none the less, in the fact that it was permissible in England, the home of the principle that a defendant charged with felony has the privilege of confronting his accusers and of being present at his trial. Certain it is that in the land where these maxims had their genesis and from which they were carried to our shores the proceeding known as a trial was thought of as something very different from the proceeding known as a view. To transfer to a view the constitutional privileges applicable to a trial is to be forgetful of our history.

A fertile source of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form, though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence. A defendant in a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel, Powell v. Alabama, supra, and cross-examine his accusers, Dowdell v. United States, supra; Commonwealth v. Slavski, supra. ... Let the words "evidence" and "trial" be extended but a little, and the privilege will apply to stages of the cause at which the function of counsel is mechanical or formal and at which a scene and not a witness is to deliver up its message. In such circumstances the solution of the problem is not to be found in dictionary definitions of evidence or trials. It is not to be found in judgments of the courts that at other times or in other circumstances the presence of a defendant is a postulate of justice. There can be no sound solution without an answer to the question whether in the particular conditions exhibited by the record the enforced absence of the defendant is so flagrantly unjust that the Constitution of the United States steps in to forbid it.

Of course, in the absence of some kind of tyranny of labels, the rule of law can hardly exist, can it? What Cardozo wanted is a sensible, or appropriate, or "just," interpretation of the scope of constitutional "labels" such as "trial," confrontation," and "due process." (In this particular case, Justice Cardozo emphasized in part that the reach of constitutional language must be sensitive to the purpose or purposes of the constitutional language. [Of course, Cardozo could not really escape the tyranny of labels: even matters such as purposes and historical practice must ordinarily be communicated by "labels." The true question question is which label or set of labels controls.])

In any event, is a view evidence or isn't it? Answer: the courts are divided on the question, but the trend is toward the answer "yes."

What Is Evidence?

Legal scholars have not done a very good job of defining "evidence." However, if one looks to philosophical literature on the definition of evidence, one may not find much enlightenment there either. For example, the author of the entry Evidence (11 August 2006) in the online Stanford Encyclopedia of Philosophy seems to believe that evidence in legal proceedings consists mainly or exclusively of tangible things. Hence, for purposes of legal scholarship the discussion in the Stanford Encyclopedia seems to be a non-starter.