Friday, August 14, 2009

Legal Reason and Unreason

Tim van Gelder put an interesting post on his blog about his struggle to restate the reasoning in a judicial opinion. I sent him the following brief (and slightly-edited) private message in which I said, "Your discussion reminds me of the difficulties that many first year law students have with judges' reasoning. The message typically sent by law teachers to their charges is that students have to learn to think logically when in fact, in a real sense (as Tim's post illustrates), people who wish to learn the law have to learn to think illogically."


The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Run MarshalPlan (all of it) in Your Web Browser

You can now use your web browser (except Internet Explorer) to run the complete and fully-functional version of the evidence marshaling software MarshalPlan. To run MarshalPlan click on

this link

But keep the following three things in mind:

1. Do NOT use Internet Explorer, at least for the time being. (IE won't work.)

2. You will have to accept a plug-in.

3. When the browser page MarshalPlan appears, click on the button "Enter Marshalplan." If nothing seems to happen, shrink your browser or look under your browser window (but do not close your browser). You should see the stack "Network Manager." You are in MarshalPlan. Click buttons (links).

If you do not wish to use a browser to run MarshalPlan, you still have the option of downloading MarshalPlan. To do so, go here and follow the instructions.


As always, please keep in mind that MarshalPlan is not a prototype of a real-world real-time operating system. In its present configuration, it is more akin to a tinker-toy, suitable for use mainly in the classroom.

In the weeks and months to come, I will post messages that further explain the nature and purposes of MarshalPlan. Stay tuned.


The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Wednesday, August 12, 2009

It Takes a Good Theory to Build a Good (Cognitive) Tool -- or What's Wrong with Most Constitutional Theorizing

I once heard Wards Edwards say that it takes a great theory to build a good tool. Or perhaps this is what David Schum once told me that Ward Edwards once said to him when David had wondered aloud about the value of some his research. There is much wisdom in what Edwards said.

I gnash my teeth or break out in hives when I hear or see a legal scholar say or write that this or that legal field or problem is "undertheorized." This sort of statement suggests that these legal scholars believe that law encrusted with theory is inherently better than law that is not so encumbered. The statement also suggests that these legal theorists believe that coming up with good theories is just a matter of willpower and determination.

Of course, inventing theories is in fact very easy. For example, it is not hard to theorize that the world is an egg laid by a great big turtle. The difficulty, of course, is developing good theories.

There have been various verificationist theories of science, and these theories have gone wrong in various ways. But what they have in common and what remains true in them is the belief that a good theory must be put to the test -- the belief that one must, ultimately, determine whether one's theory stands up to the facts, to the actual workings of the world.

This is one big reason why evidence is or ought to be important in legal scholarship (as well as in science).

The attitude of legal scholars instead is often, "I have an alluring theory. Let me me see if I can make the pertinent legal phenomena fit my theory." This attitude is the path to perdition. It is the legal equivalent of the search for epicycles.


The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Student Investigation into Public Corruption in New Jersey

It's time to 'fess up: in the spring semester of 2009 a team of students in my course in fact investigation began an investigation of public corruption in New Jersey. The investigation centered on one public official in Jersey City. I mention this because the cat is, so to speak, already out of the bag: on July 23, 2009, the FBI arrested 44 persons in the New York City metropolitan area. Many of those persons were public officials in New Jersey who were effectively charged with taking bribes from a person they mistakenly thought was a real estate developer who was seeking official favors in exchange for money. The person who offered and gave the bribes was in fact a fellow who had gotten into a bit of trouble with the law himself -- in part by successfully(!) passing a bad check for $25 million at a bank drive-through window -- and who decided to cooperate with federal authorities and set up a massive sting, all in an effort to mitigate the punishment that he would eventually be given for his own federal crimes.

I am teaching fact investigation again this fall. My class and I will have to decide whether it is both possible and prudent to try to complete the investigation that the spring semester's fact investigation class began. The difficulties facing any such investigation are formidable: witnesses with something to hide will be especially wary, and federal authorities may not appreciate efforts by law students to investigate matters they may still be investigating. So the hurdles facing a continuation of last semester's investigation are substantial. But perhaps there is a sensible and useful way for my students to go forward with this investigation into public corruption in New Jersey. My students and I will discuss this issue in several weeks, which is when classes at my law school start up again. But I will not report in public the decision that my students and I reach. Sorry!


The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Monday, August 10, 2009

The Importance of Being Open-Minded, Persistent, and Meticulous in an Investigation

Several years ago I wrote and published a paper "The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey." The paper appeared in Richard Lempert, ed., Evidence Stories (Foundation Press, 2006). The paper recounted an investigation that some students in my course on fact investigation conducted. The students' investigation demonstrated, in part, the way in which a stereotype ("He was a lousy and dangerous drunkard") can blind both the participants in an investigation and the participants in a trial.

A little while ago I received an interesting e-mail message from Paul Masley, an investigator in West Virginia. With his permission, I have reproduced below a very slightly-edited copy of his message.


From: Paul D. Masley / [name of company deleted]
Date: Fri, Jul 31, 2009 at 4:01 PM
Subject: The Death of a Youth and a Drunkard

Dear Professor Tillers:

I am an insurance claims investigator by profession. While working on a case that I just could not figure out what happened and doing research on the internet, I came across this fantastic paper written by you [about the criminal case State of New Jersey v. Radziwil].

A little background. My client was accused of a hit and run with a pedestrian (death). My client stated that he had hit a deer in another county. The vehicle had been repaired using OEM parts. The only difference was that the repairing shop had used a newer model grille as the original could not longer be purchased.

Even though this case was different [from yours], the similarities were vaguely the same. The more I dug into the cause, the more clueless I became as to the cause. The item that caught my attention in your paper was the evidence for the vehicle. I must have reread your document ten times in my attempt to pick through what I had on my case and each time it pointed back to the evidence submitted on the vehicle. It was wrong.

It took several more weeks of digging and during this time I found that another severe crash had occurred with a similar model vehicle. The only difference was the year models and that the grilles were different. With this in mind, I went back to the family in hopes that they had photos of the vehicle prior to the crash. After digging through hundreds of photos, we found what were looking for.

Upon producing these photos and having several witnesses testify that these photos were of the correct vehicle, producing the repaired photos, and then comparing them to the items that the police used, the case was thrown out. The best document that I was able to obtain for my client was the vehicle production run. The document lists exactly what grille was used in the vehicle, down to the part number. My client's vehicle had not been damaged prior to the incident with the deer. The grille parts that the police had used in their attempt to prosecute my client listed the wrong part number. They had almost 80% of the grille.

I do wish to thank you for listing this document. It made me think. I do have a copy of it in my claims guide and have shared it with other claims examiners when they have been stumped. One other thing I did learn from reading between the lines of your document is to trust no one but your own instincts and to believe in your client.

With best regards,

Paul D. Masley
Charleston, West Virginia 25302

XXXXX (Personal Company Email)
XXXXX (Main Company Email)



Sunday, August 09, 2009

An Old Story Retold: Inference and Theoretical Variety

Part of what I wrote more than two decades ago bears repeating here and now:

The symposium papers [presented at the Boston University symposium on probability and inference in the law of evidence] offer a variegated theoretical menu; it is not easy to find a common thread. If one views the papers at a high level of abstraction and generality, it may be fair to say that the various papers deal with the same thing--matters such as probability, uncertainty, and inference--but nonetheless make very different claims about this 'thing.' From this perspective, one could argue that the variety found in the symposium papers is something of an embarrassment. In fact, however, the variety in the symposium papers is only an embarrassment of riches. There are many reasons for differentiated theoretical perspectives and explanations. It does not follow from this multiplicity of perspectives either that nothing has been learned or even that fundamental and irreconcilable theoretical conflicts exist. For example, in some instances the differences in the propositions being advanced may be attributable simply to the fact that different processes in the real world are being talked about under rubrics such as 'inference' or 'proof.' This is not to say, to be sure, that close analysis of the papers would show that no true disagreements exist; they do. Nonetheless, the profusion of formal theory, theoretical perspectives, normative theory, and social, political, and ethical theory that surfaces in the symposium papers hints that the way lies open for a synthesizing approach that would use this theoretical diversity to offer a more systematic and comprehensive description of the characteristics-- both logical and empirical--of processes of proof in law. Possibly, each of the papers reveals something true or significant about proof processes. If so, the job is not to grade or rank the various theoretical approaches, but to try to determine what sort of logical and theoretical matrix relates and orders the various contributions made by the various papers to our understanding of inference, proof, and related matters. Regardless of whether all the papers objectively reveal something significant about processes of proof and inference, there is good reason to think that one should entertain this supposition for purposes of further investigation. 'Proof,' in its various guises, is a very complex set of processes and activities. It would be surprising to find that a relatively comprehensive description of its characteristics could be given without resort to a wide variety of theoretical perspectives.


The dynamic evidence page

Coming soon: the law of evidence on Spindle Law