Professor Peter Tillers
Cardozo School of Law
[very rough & incipient draft of syllabus]
How This Course Works
This course attempts to combine (i) consideration of fundamental epistemological & inferential issues, (ii) examination of the relationship between expert and scientific evidence, on the one hand, and the design or structure of a system of adjudication, on the other hand; and (iii) careful dissection of some specific types of expert and scientific evidence.
Your principal job in this seminar is to (i) study at least two substantial books or other literature with differing or opposing views about one of the problems listed below, (ii) lead a class discussion of that problem, and (ii) write a paper that discusses that problem.
In your class discussion and in your paper you must carefully describe the differing or opposing views and you must evaluate the differing views critically.
One week before the scheduled class discussion of your problem, you must distribute (by e-mail) some background reading that will prepare the class for your class presentation. All members of the seminar must read those handouts in advance.
Unless you have my permission, you must pick one of the topics listed below, and the literature you choose to study and discuss must include at least two starred pieces of literature shown below. (The two pieces of literature must take different positions, though not necessarily directly opposing positions.) Of course, you are encouraged to mention literature in addition to the two pieces of literature that will be the focus of your discussion and your paper.
If you wish to do so, you can pair up with another member of the course so that one of you presents one view of the problem in question and the other presents the differing or opposing view. If you do this, you will have a debate. Such a debate would be entertaining and interesting for the rest of us. But perhaps not for you. It's your choice.
During the first seven weeks of the semester I will try to introduce you to the topic of scientific and expert evidence. (See below.) There are assigned readings for that introduction. (Sometimes you will think you're back in college. That's good!)
I look forward to seeing you in the fall.
Required books:
E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science (Prometheus 3d ed., 1998) (cited here as "Introductory Readings")
Andre Moenssens, Carol Henderson & Sharon Portwood, Scientific Evidence in Civil and Crminal Cases (Foundation 5th ed. 2007) (cited here as "Moennssens Scientific")
I. General Introduction to Expert & Scientific Evidence
A
Review of Principal American Rules & Leading Cases on Expert and Scientific Evidence
Frye v. United States (1923)
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
Kumho Tire Company, Ltd v. Carmichael (1999)
Federal Rule of Evidence 702 & Legislative history of 2000 amendment
The Nature of Science: The Standard Model; Science Relativized; Science Rehabilitated?
(two weeks)
Aristotelian & Medieval Methods & Errors
Christopher Shields, Aristotle on Science in Aristotle, Stanford Encyclopedia of Philosophy (2008) Skim Sections 5-9 of Ralph McInerny, "Saint Thomas Aquinas," Stanford Encyclopedia of Philosophy (1999, rev. 2009) Skim Sections 2-5 of Juergen Klein, "Francis Bacon," Stanford Encyclopedia of Philosophy (2003)
The Standard Model (from mid-19th century? - ca. 1960s)
Editors' Notes on Carl Hempel in E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science pp. 199-205 (Prometheus 3d ed., 1998)
Carl G. Hempel, "Studies in the Logic of Explanation," Introductory Readings at pp. 206-234 Karl Popper, "Science: Conjectures and Refutations," Introductory Readings at pp. 38-47 Wesley Salmon, "Scientific Explanation: How We Got from There to Here," Introductory Readings at pp. 241-263
Science Relativized
John Ziman, "What Is Science?," Introductory Readings at pp. 48-53 Paul Feyerabend, "How to Defend Society against Science," Introductory Readings at pp. 54-65 N.R. Hanson, "Observation," Introductory Readings at pp. 339-351 Thomas S. Kuhn, "Objectvity, Value Judgment, and Theory Choice," Introductory Readings at pp. 435-450
Science Rehabilitated?
Carl G. Hempel, "Scientific Rationality: Analytic vs. Pragmatic Perspectives," Introductory Readings at pp. 451-464 Jean Bricmont & Alan Sokal, Defense of a Modest Scientific Realism (2001)
C
Science, Logic, Laws, Generalizations, Mathematics & Probability
(two weeks)
Deduction
Introductory Paragraph, Section 1 & Section 2 in J.C. Beall, Logical Consequence Stanford Encyclopedia of Philosophy (2005)Induction
Introductory Paragraph & Sections 1.2 - 4 in John Vickers, The Problem of Induction Stanford Encyclopedia of Philosophy (2006, revised 2010)Abduction
Section 3 in Robert Burch, Charles Sanders [Saunders] Peirce Stanford Encyclopedia of Philosophy (2009)Classification: Subsumption, Similarity & Analogy, Fuzzy & Rough Sets, Metaphor, or Impenetrable Perceptual & Brain Wiring?
[assignment forthcoming]
Science, Mathematics, Probability & Statistics
[other readings to be determined]
Simulated dice games that illustrate the product rule (assuming independence):
1, 2, 6, or 9 dice; 1,10, 20, or 100 rolls
two dice; results
1 or 2 dice thrown up to 500xThe centrality of h/f in avant garde forensic theory
Lempert, "Modeling Relevance"Tillers, "Making (Inverted) Bayesian Thinking More Intuitive"
Optional reading: A more elaborate (i.e., more rigorous & more comprehensive) intuitive explanation of Bayesian logic: Eliezer Yudkowsky, "An Intuitive Explanation of Bayesian Reasoning"
D
Tacit & Subconscious Knowledge & Inference; Intuition in Inference -- in Science?
Review Kumho
Hermann von Helmholtz
Peter Tillers, Unconscious -- and Remarkably Complex! -- Inference (Nov. 15, 2007) (blog post)
Peter Tillers, Perceptual Errors (July 24, 2007) (blog post)
United States v. Llera Plaza, 179 F. Supp. 2d 492 (E.D.Pa. 2002), vacated United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa., 2002)
E
Science in an Adversary System
John Langbein, "The Criminal Trial before the Lawyers," 45 University of Chicago Law Review 263 (1978); John Langbein, "The German Advantage in Civil Procedure," 52 U. Chi. L. Rev. 823, 826-27 (1985); Ronald J. Allen et al., "The German Advantage in Civil Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarship," 82 Nw. U. L. Rev. 705 (1988); Online Ads; Transcript of Expert's Pretrial Questioning in the Michaels Case; The Many Incarnations of Dr. Death; Federal Rule of Evidence 706
II. Possible Discussion & Paper Topics:
Ian Hacking once said that science involves(sometimes?
always?) "speculation, calculation, and experiment."
Represening and Intervening at p. 215.
Daubert's Definition of Science
*Karl R. Popper, The Logic of Scientific Discovery (Routledge 1959, 1968, 172, 1980)
*Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge & Kegan 1963, 1965, 1969; reprinted 1974, 1976, 1978, 1984. and 1985; 1989, reprinted 1991 & 1992)
*Karl R. Popper, Realism and the Aim of Science (Routledge 1983, paperback 1985; reprinted 1992 & 1994)
*Thomas Kuhn, The Structure of Scientific Revolutions (Chicago, 2nd ed. 1969; 3rd ed. 1996)
*Paul Feyerabend, Against Method (3d edn. 1993)
*Susan Haack, Defending Science -- within Reason: Bteween Scientism and Cynicism (Prometheus 2003)
*Ian Hacking, Representing and Intervening: Introductory Topics in the Philosophy of Science (Cambridge 1983)
*David Stove, Scientific Irrationalism: Origins of a Postmodern Cult (Transaction Publishers 2001, paperback 2007)
*Alan Sokal & Jean Bricmont, Fashionable Nonsense: Postmodern Intellectuals' Abuse of Science (Picador 1998)
*James Franklin, What Science Knows and How It Knows It (Encounter Books 2009)
*Matteo Motterlini, ed., For and Against Method: Imre Lakatos and Paul Feyerabend (Chicago 1999) (a delightful book!)
*Michael Friedman, Dynamics of Reason (CSLI 2001)
*Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (Cambridge 1999, reprinted 2001 & 2003)
*Lorenzo Mangnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (Kluwer 2001)
Scientific Evidence in an Adversary System: (Corrupt) Expertise & Experts for Sale?
*Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991 & BasicBooks 1993)
*David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman & Co. 2009, 2000)
*Mike Redmayne, Expert Evidence and Criminal Justice Chapter 7 (Oxford 2001)
*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)
*National Academies of Sciences, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) (online & free) (selected parts of book; you choose the selections). See also Special Issue: Forensic Science For The 21st Century: The ASU Conference, 9 Law, Probability and Risk (April 2010)
*Elisabetta Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in Johhn Jackson, Maximo Langer & Peter Tillers, eds., Crime, Procedure and Evidence in a Comparative and International Context 146 (Hart 2008)
Hard Science versus Soft Science versus Nonscientific Expert Knowledge versus Ordinary Knowledge:
Is There a Difference between between Hard Science and Soft science
and, if so,
What Is that Difference?
and
How Can You Tell (i) Whether a Soft Science Is a Good Science or Just Junk or (ii) Whether a Nonscientist Expert Is an Expert or Just a Charlatan?
And How Ordinary Is Ordinary Knowledge Anyway?
Review Kumho
"The Natural & Social Sciences," in E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science pp. 103-189 (Prometheus 3d ed., 1998)
*Alexander Rosenberg, Philosophy of Social Science (Westview 3d ed., 2008)
*Is Double-Blind Proficiency Testing the Answer?
Do Astrologers Qualify as Experts? Are There Dumb Barometers That Work? See *Paul R, Thagard, "Why Astrology Is a Pseudoscience," Introductory Readings 66*Ian Hacking, The Social Construction of What? (Harvard 1999)
*Testing the performance of black boxes
*Roger Park, "Signature Identification in the Light of Science and Experience," 59 Hastings Law Journal 1101 (2008).
*Nancy Cartwright, Hunting Causes and Using Them: Approaches in Philosophy and Economics (Cambridge 2007)
Racial Profiling
*Frederick Schauer, Profiles, Probabilities and Stereotypes (Harvard 2003)
Fingerprint Evidence
Introduction & Preparation: Moenssens Scientific Chapter 10 p. 615 (paper presenter will assign specific material)
Mark Twain, The Tragedy of Pudd'nhead Wilson and the Comedy of Those Extraordinary Twins (1894) (available in numerous reprints)
*Lyn Haber & Ralph Norman Haber, "Scientific Validation of Fingerprint Evidence Under Daubert," 7 Law Probability & Risk 87 (2008)
*Jennifer Mnookin, "The validity of latent fingerprint identification: confessions of a fingerprinting moderate," 7
Law Probablity and Risk 127 (2008)
*Jennifer L, Mnookin, "Of Black Boxes, Intruments, and Experts: Testing the Validity of Forensic Experts," 5 Episteme 343 (2008)
*Michael D. Risinger, et al., “The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion,” 90 California Law Review 1 (2002)
*United States v. Havvard, 117 F. Supp. 2d 848, 855 (2000); United States v. Plaza, 179 F. Supp. 2d 492 (E.D.Pa. 2002), vacated United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa., 2002); United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (challenge to both handwriting identification evidence and fingerprint evidence rejected); State v. Langill,
Docket No 05-S-1129 (N.H. 2007); Brandon Mayfield Case
See also 7 Law, Probability and Risk No. 2
Handwriting Identification
Introduction & Preparation: Moenssens Scientific Chapter 7 p. 358 (focus on material on handwriting) (paper presenter will assign specific material)
The Dreyfus Case
*United States v. Hines, 55 F. Supp. 2d 62(D.Mass. 1999) (Gertner, J.); United States v. Mooney, 315 F.3d 54 (1st Cir. 2002); cf. United States v. Green, 405 F. Supp. 2d 104(D.Mass. 2005) (Gertner, J.) (ballistics); United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (challenge to both handwriting identification evidence and fingerprint evidence rejected)
*D. Michael Risinger, Mark Denbeaux & Michael J. Saks, "Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise," 137 University of Pennsylvania Law Review 731 (1989); Andre A. Moenssens, "Handwriting Identification Evidence In The Post-Daubert World," 66 University of Missouri at Kansas City 251 (1997)
Are Gang Experts Experts?
Memory; Repressed & Recovered Memories; Hypnotism; Guided Imagery; Similar Matters
*Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1988); Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (4th ed., 2008); Wikipedia Article
*Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (Wall Street Journal Book, Free Press 2003)
Commonwealth v. Shanley, 455 Mass. 752, 766, 919 N.E.2d 1254, 1266 (Jan. 15, 2010)
Quattrocchi 1; Quattrocchi 2; Quattrocchi 3
Logerquist v. McVey
State v. Hungerford
Paul Ingram
State of New Jersey v. Michaels
*Martin A. Conway, Recovered Memories and False Memories (Oxford 1997)
*Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994, paperback 1996)
*Daniel L. Schachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Mariner Books, 2002)
*Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)
*August Piper, Linda Lillevik & Roxanne Kritzer, What's Wrong with Believing in Repression?: A Review for Legal Professionals, 14 Psychology, Public Policy & Law 223 (2008)
Other material:
Wikipedia on memory
Skeptic's Dictionary (by Robert Todd Carroll) on memory
Stanford Encyclopedia of Philosophy on memory
Hypnosis (legal issues)
People v. Shirley (1982)
People v. Hughes (1983)
Rock v. Arkansas (1987)For the U.S. Supreme Court's later (re-)interpretation of Rock, see United States v. Scheffer (1998).
American federal constitutional limits on retroactive extensions of statutes of limitations periods for criminal prosecutions:
Stogner v. California, 539 U.S. 607 (2003) (this case involved extension of limitations period for "sex-related child abuse crimes"; the extension was held unconstitutional)
Syndromes
Sexual Abuse Accommodation Syndrome; Child Sexual Abuse Accommodation Syndrome; Rape Trauma Syndrome; Battered Spouse Syndrome; Death Row Syndrome; Munchausen Syndrome by Proxy; Battered Child Syndrome; Battered Patient Syndrome; Justice Obsession Syndrome; Organic Delusional Syndrome
Introduction & Preparation: Moenssens Scientific Section 21.08 p. 1342, Section 21.09.3-4 pp. 1352-1357, Section 23.05 p. 1436, Section 23.10 p. 1441
Estelle v. McGuire, 502 U.S. 62 (1991) (battered child syndrome)
People v. Bledsoe, 681 P.2d 291 (Cal. 1984) (rape trauma syndrome)
Cal. Evidence Code Section 1107
*David L. Faigman, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," 72 Virginia Law Review 619 (1986); David L. Faigman & Amy J. Wright, "The Battered Woman Syndrome in the Age of Science," 39 Arizona Law Review 67 (1997)
*Robert P. Mosteller, "Syndromes and Politics in Criminal Trials and Evidence Law," 46 Duke Law Journal 461 (1996)
*John Monahan, Laurens Walker & Gregory Mitchell, "Contextual Evidence of Gender Discrimination: The Ascendance of 'Social Frameworks,'" 94 Virginia Law Review 1715 (2008)
Note: selected cases on syndrome evidence
Insanity & Mental Disorder: Fact or Social Construct?
Introduction & Preparation: Moenssens Scientific Chapter 20 Part III pp. 1278-1291, Part IV pp. 1291-1306, Chapter 21 Parts I & II pp. 1321-1342 (paper presenter will assign specific material)
*Ian Hacking, The Social Construction of What? (Harvard 1999) (esp. Chapter 4) & *Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)
*Allan v. Horwitz, Creating Mental Illness (Chicago 2002)
The New Language of Science: Probability and Statistics
Induction, Statistics, Generalizations & Individualized Justice
In Life and Fate, c. 19, p. 94 (1980, translated by Robert Chandler, 1985), Vasily Grossman wrote:There is a terrible similarity between the principles of Fascism and those of contemporary physics.
Fascism has rejected the concept of a separate individuality, the concept of ‘a man’, and operates only with vast aggregates. Contemporary physics speaks of the greater or lesser probability of occurrences within this or that aggregate of individual particles. And are not the terrible mechanics of Fascism founded on the principle of quantum mechanics, of political probability?
Fascism arrived at the idea of the liquidation of entire strata of the population, of entire nations and races, on the grounds that there was a greater probability of overt or covert opposition among these groupings than among others: the mechanics of probabilities and of human aggregates.
The Case of SIDS (Sudden Infant Death Syndrome)
Material on probability theory:
Simulated dice games that illustrate the product rule (assuming independence):
1, 2, 6, or 9 dice; 1,10, 20, or 100 rolls
two dice; results
1 or 2 dice thrown up to 500xMore Material on Probabilities
Prosecutor's Fallacy (which mathematicians view as an example of the more general fallacy of transposing probabilities)
*The Sally Clark Case:
Sally Clark - victim of a miscarriage of justice
Blog, July 14, 2005: SIDS a/k/a Cot Death & the Doctrine of Chances in the UK: The Sally Clark Case
Blog, Dec. 3, 2003: SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"
Helen Joyce, Beyond Reasonable Doubt
Compilation of Well-Reasoned Newspaper Articles about Sally Clark Case
"Sally Clark Doctor Wins GMC case" -- BBC Feb. 17, 2006
Wikipedia: Prosecutor's Fallacy and the Sally Clark CaseCf. Evaluating Legal EvidenceN.B. Sally Clark apparently committed suicide on March 15, 2007. See this Wikipedia entry
The Shonubi Case & The Reference Class Problem
*United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y., 1992) (Weinstein, J.) ("Shonubi I"); United States v. Shonubi, 998 F.2d 84 (2d Cir, 1993) (Oakes, Newman & Cardamone, JJ.) ("Shonubi II"); Joint Report (Testimony) of Schum & Tillers (Dec. 21, 1994) in United States v. Shonubi; United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) ("Shonubi III") (Weinstein, J.); United States v. Shonubi ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) ("Shonubi V"(!)); Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article, bereft of footnotes, available here); Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003); Peter Tillers, If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes 4 Law, Probability and Risk 33 (2005).
The Reference Class Problem and the Problem of Induction
Carl Hempel (maximal specificity)
*Nelson Goodman, Fact, Fiction, and Forecast (2d ed., 1965)
*Alan Hájek, The reference class problem is your problem too 156 Synthese 563 (2007)
*D.C. Stove, The Rationality of Induction (1986)
Fuzzy or Rough Reference Classes? Analogy? Metaphor? Brain Wiring?
*Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic (1993)
*Susan Haack, Deviant Logic, Fuzzy Logic: Beyond the Formalism (Chicago 1974, 1996)
*Timothy Williamson, Vagueness (Routledge 1994)
*Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy, 109 Harv. L. Rev. 923-1028 (1996)
Cf. Edward Levi, Introduction to Legal Reasoning (Chicago 1949 & revised 1962); H.L.A. Hart, The Concept of Law (1961, 2d ed. 1997)
Can Scientific and Expert Evidence Be (Made) Understandable to Triers of Fact in Legal Proceedings?
*Mike Redmayne, Expert Evidence and Criminal Justice Chapter 4 (Oxford 2001)
*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)
J. Weinstein's experiments (e.g., glossaries); Nance on DNA
Is There a "Gold Standard" in Forensic Evidence (or in Evidence Pure and Simple)? Is DNA Evidence the Gold Standard?
Introduction & Preparation: Moenssens Scientific Chapter 17 p. 1082 (paper presenter will assign specific material)
NYTimes quotations aplenty: 1/quadrillion etc.; sub-populations; source uncertainties; operator (lab) error; 1/quadrillion if done right (have you heard this before?; cf. cold fusion experiments); Wisconsin case
Mechanical Detection of Deception
Introduction & Preparation to Polygraph Evidence: Moenssens Scientific Sections 20.12-20.20 pp. 1389-1408
Frye
United States v. Scheffer
*National Academies of Sciences Report on Polygraphy (2003)
fMRI
Mr. Astronomer, "What does that galaxy really look like? What is its true color?"
Science & Visual Images
Photos; Movies; Day-in-the-Life Films; Simulations; Virtual Reality Films; Mind Maps
Introduction & Preparation: Moenssens Scientific Chapter 2 p. 112 (paper presenter will assign specific material)
Federal Rules of Evidence 401-402; Federal Rule of Evidence 403; Federal Rule of Evidence 702; Federal Rule of Evidence 901
*Stuart K. Card, Jock D. Mackinlay & Ben Shneiderman, Readings in Information Visualization: Using Vision to Think (Academic Press 1999)
Alva Noe & Evan Thompson, eds., Vision and Mind: Selected Readings in the Philosophy of Perception (MIT 2002)
*Sidney Perkowitz, Empire of Light: A History of Discovery in Science and Art (Joseph Henry Press 1996) (esp. but not only chapter 2, "Seeing Light")
Why does the illusion work? See Explanation.
What is the moral of this story?
*Timothy van Gelder, What Is Argument Mapping? (Feb. 17, 2009)
Peter Tillers, Picturing Inference (2004 & 2005)
*Irwin Rock, The Logic of Perception (MIT 1985)
*Gerald Edelman, Second Nature: Brain Science amd Human Knowledge (Yale 2006)
Literature
*Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1988); Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (4th ed., 2008); Wikipedia Article
*Erica Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process (Cambridge 2007)
*Scott Brewer, "Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy," 109 Harv. L. Rev. 923-1028 (1996)
*Scott Brewer, "Scientific Expert Testimony and Intellectual Due Process, 107 Yale L.J. 1535
*Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (Cambridge 1999, reprinted 2001 & 2003)
*Susan A. Clancy, The Trauma Myth (Basic Books 2009)
*Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003)
*Martin A. Conway, Recovered Memories and False Memories (Oxford 1997)
*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)
**Gerald Edelman, Second Nature: Brain Science amd Human Knowledge (Yale 2006)
*David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman & Co. 2009, 2000)
*David L. Faigman, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," 72 Virginia Law Review 619 (1986); David L. Faigman & Amy J. Wright, "The Battered Woman Syndrome in the Age of Science," 39 Arizona Law Review 67 (1997)
*Paul Feyerabend, Against Method (3d edn. 1993)
*James Franklin, What Science Knows and How It Knows It (Encounter Books 2009)
*Michael Friedman, Dynamics of Reason (CSLI 2001)
*Timothy van Gelder, What Is Argument Mapping? (Feb. 17, 2009)
*Alvin I. Goldman, Knowledge in a Social World (Oxford 1999)
*Nelson Goodman, Fact, Fiction, and Forecast (2d ed., 1965)
*Elisabetta Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in Johhn Jackson, Maximo Langer & Peter Tillers, eds., Crime, Procedure and Evidence in a Comparative and International Context 146 (Hart 2008)
*Susan Haack, Defending Science -- within Reason: Bteween Scientism and Cynicism (Prometheus 2003)
*Susan Haack, Deviant Logic, Fuzzy Logic: Beyond the Formalism (Chicago 1974, 1996)
*Ian Hacking, Logic of Statistical Inference (Cambridge 1965, reprinted numerous times)
*Ian Hacking, Representing and Intervening (Cambridge 1983)
*Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)
*Ian Hacking, The Social Construction of What? (Harvard 1999)
*Alan Hájek, The reference class problem is your problem too 156 Synthese 563 (2007)
Hanson, Is There Logic of Scientific Discovery? 38 The Australasian Journal of Philosophy 91 (1960)
*Hanson, Patterns of Discovery: An Inquiry Into the Conceptual Foundations of Science (Cambridge 1958)
*Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991 & BasicBooks 1993)
*E.T. Jaynes, Probability Theory: The Logic of Science (Cambridge 2003) (only for people with considerable proficiency in mathematics and probability theory)
Philip Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis (Oxford 1996)
**E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science (Prometheus 3d ed., 1998) (required book)
Arthur Koestler, The Act of Creation (1964, reprinted 1989)
*Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic (1993)
*Thomas Kuhn, The Structure of Scientific Revolutions (Chicago, 2nd ed. 1969; 3rd ed. 1996)
Imre Lakatos, Proofs and Refutations: The Logic of Mathematical Discovery (Cambridge 1976)
*John Langbein, "The German Advantage in Civil Procedure," .....; Ronald J. Allen, ...
*Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994, paperback 1996)
*Lorenzo Mangnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (Kluwer 2001)
Grover Maxwell & Robert M. Anderson, Jr., eds., Induction, Probability and Confirmation (University of Minnesota 1975) (vol. VI Minnesota Studies in the Philosophy of Science)
*Andre A. Moenssens, "Handwriting Identification Evidence In The Post-Daubert World," 66 University of Missouri at Kansas City 251 (1997)
**Andre Moenssens, Carol Henderson & Sharon Portwood, Scientific Evidence in Civil and Crminal Cases (Foundation 5th ed. 2007) (cited as "Moennssens Scientific") (required book)
*John Monahan, Laurens Walker & Gregory Mitchell, "Contextual Evidence of Gender Discrimination: The Ascendance of 'Social Frameworks,'" 94 Virginia Law Review 1715 (2008)
*Matteo Motterlini, ed., For and Against Method: Imre Lakatos and Paul Feyerabend (Chicago 1999)
*Robert P. Mosteller, "Syndromes and Politics in Criminal Trials and Evidence Law," 46 Duke Law Journal 461 (1996)
*National Academies of Sciences, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) (online & free)
*Roger Park, "Signature Identification in the Light of Science and Experience," 59 Hastings Law Journal 1101 (2008)
*Sidney Perkowitz, Empire of Light: A History of Discovery in Science and Art Chapter 2 (Joseph Henry Press 1996) ("Seeing Light")
*August Piper, Linda Lillevik & Roxanne Kritzer, What's Wrong with Believing in Repression?: A Review for Legal Professionals, 14 Psychology, Public Policy & Law 223 (2008)
*Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy (Chicago 1958, 1962)
*Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge & Kegan 1963, 1965, 1969; reprinted 1974, 1976, 1978, 1984. and 1985; 1989, reprinted 1991 & 1992)
*Karl R. Popper, The Logic of Scientific Discovery (Routledge 1959, 1968, 1972, 1980)
*Karl R. Popper, Realism and the Aim of Science (Routledge 1983, paperback 1985; reprinted 1992 & 1994)
*Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (Wall Street Journal Book, Free Press 2003)
*Mike Redmayne, Expert Evidence and Criminal Justice (Oxford 2001)
*D. Michael Risinger, Mark Denbeaux & Michael J. Saks, "Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise," 137 University of Pennsylvania Law Review 731 (1989)
*Daniel L. Schachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Houghton Mifflin 2001)
*Frederick Schauer, Profiles, Probabilities and Stereotypes (Harvard 2003)
Tom Siegfried, Odds Are, It's Wrong: Science fails to face the shortcomings of statistics Science News (March 27, 2010)
*Alan Sokal & Jean Bricmont, Fashionable Nonsense: Postmodern Intellectuals' Abuse of Science (Picador 1998)
*David Stove, Scientific Irrationalism: Origins of a Postmodern Cult (Transaction Publishers 2001, paperback 2007)
*D.C. Stove, The Rationality of Induction (1986)
*Peter Tillers, If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes 4 Law, Probability and Risk 33 (2005)
*Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article, bereft of footnotes, available here)
*Peter Tillers, Picturing Inference (2004 & 2005)
*Peter Tillers, Unconscious -- and Remarkably Complex! -- Inference (Nov. 15, 2007) (blog post)
Mark Twain, The Tragedy of Pudd'nhead Wilson and the Comedy of Those Extraordinary Twins (1894) (available in numerous reprints)
*United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y., 1992) (Weinstein, J.) ("Shonubi I"); United States v. Shonubi, 998 F.2d 84 (2d Cir, 1993) (Oakes, Newman & Cardamone, JJ.) ("Shonubi II"); Joint Report (Testimony) of Schum & Tillers (Dec. 21, 1994) in United States v. Shonubi; United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) ("Shonubi III") (Weinstein, J.); United States v. Shonubi ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) ("Shonubi V"(!)); Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article available here); Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003); Peter Tillers, If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes 4 Law, Probability and Risk 33 (2005).
*Timothy Williamson, Vagueness (Routledge 1994)
Cf. Edward Levi, Introduction to Legal Reasoning (Chicago 1949 & revised 1962); H.L.A. Hart, The Concept of Law (1961, 2d ed. 1997)
It's here: the law of evidence on Spindle Law. See also this post and this post.
8 comments:
Wow! You'll be offering an online version of this seminar for the rest of us, right?
My reach always exceeds my grasp.
If no Cardozo students sign up for my seminar, I'll try teaching part of the course free online. Of course, since my course is a seminar, most of the work is done by other members of the seminar and the online course would work only if there are volunteers in cyberspace who are willing to pick a topic, make a presentation, etc. (I would have to learn to work with YouTube? I don't know if I'm fit for the camera.)
But perhaps I should consider putting some lecture notes for some of the course online no matter what? I might try doing so on my second go-around with this particular seminar; I probably wouldn't do so this fall.
How did that seminar go? I'm very sorry for not having followed up my earlier (genuine) expression of interest.
By the way, the link to "Daubert" seems to be broken -- it takes me to an error page.
Philosoraptor,
I think the workshop went very, very well (but I'm biased). See http://tillerstillers.blogspot.com/2011/06/proclamation.html The talks were very interesting, the participants actually understood other people's views, and people seemed to enjoy themselves. The papers will be published in late 2011 or early 2012.
Thanks for the heads up about the link. The author of that blog died. His wife (who is not a lawyer, I think) thought she might be able to maintain it. But I guess she was not able to do so. That's a shame.
Peter T
Philosophoraptor, It now occurs to me you were talking about my seminar, and not about my workshop on AI & Evidential Inference. The seminar went well, I think. I'll post details later. Peter
Philosoraptor, I just tried the link to the Daubert blog. On my computer the link works. (But the material would be old material, I assume - material posted before the blogger's death.) Peter T
Philosoraptor,
Several brief comments about my seminar:
1. The seminar in scientific & expert evidence was scheduled at a most unfortunate time: Thursdays at 6:00 p.m. I think I have to get on the better side of administrators at my law school.
2. As I said in an earlier post, my reach consistently exceeds my grasp. I consistently overestimate the scientific knowledge of students. If I were to teach the seminar again, I might try to do some basic science education (even though I'm not a scientist). But I wonder how much such basic education can be done in such a seminar. Some or many courses in "scientific evidence" turn into courses in statistical methods. This mistake, though understandable, is, I think, lamentable; there is, of course, much more to science than statistical analysis.
3. Having said #1 and #2 above, there was some nice discussion in the seminar and there were some reasonably good papers.
4. Instead of teaching scientific evidence, I will be teaching an expanded version -- a two-semester version -- of my course in fact investigation. See http://tillers.net/fi-course/fi-home.html This newly-expanded course will in part slake my thirst -- through the back door, as it were -- for discussion of some matters that are important in science, particularly the mysterious process of discovery and formation of fruitful hypotheses.
Peter T
P.S. Scott Brewer at Harvard has at times run an utterly lovely course on scientific reasoning and law. I have some of his materials. I wish I could take his course! You might want to ask him for a copy of his materials.
Peter
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