Saturday, June 18, 2011

The Ramshackle -- and Logical -- Character of Explicit Human Factual Inference

I have been musing about the extemporaneous remarks I gave at the Workshop on AI & Evidential Inference about what I take to be the Rube Goldberg character of the conceptual devices & strategies human beings use to explore factual issues and draw factual inference. In the course of  ruminating about this point, I discovered I had put a pertinent "theoretical note" into my MarshalPlan software and I decided to reproduce that note here:

A Note on the Theoretical Underpinnings and Purposes of MarshalPlan

     A Note on the Structure of This Note

My motivations for developing MarshalPlan have been theoretical as much as practical. But I did not and I do not see a tension between my theoretical and practical ambitions. My neo-empiricist inclinations lead me to conclude that a sound theory of inference must be able to prove itself in the world. By developing MarshalPlan I wanted to both explore and illustrate some basic hypotheses about the nature of (wo)man's acquisition of knowledge about his (her) world.

Since my constructivist agenda was positive rather than negative, I have not used any part of the  other notes embedded in MarshalPlan to make arguments against views of evidential inference that I think are mistaken. My thought was that the success or failure of MarshalPlan would be the primary test of whether my own views are or are not mistaken. However, now that I have largely completed the outline of a working model of MarshalPlan, I think it might now be useful for me identify the theoretical premises and perspectives that I do not have and that do not undergird the MarshalPlan project. So I will do that. But I will describe (below) those rejected perspectives only in a shorthand way. This is why I use the word "dogma" below to refer to my view about of this or that perspectives that I find wanting.

After identifying some theoretical perspectives that I do not embrace, I describe (below) some of my key affirmative hunches about the nature and foundations of empirical human knowledge. These are theses that either have supported the development of MarshalPlan or they are theses that are supported by the development of MarshalPlan.

   Theoretical Dogma Number 1.

There is a long-running debate in the American legal academy and elsewhere about the use of mathematics to analyze evidence in trials. This debate is a red herring; it misses the boat; it does not address the fundamental issues about evidential inference. This is not to say that questions about when mathematics might or should play a role in evidential argument in legal settings are uninteresting or unimportant; they are both interesting and important. I also do not claim that discussions that focus of the role of mathematics can or have said nothing about fundamental epistemological issues. That's not the case. Such discussions can and sometimes do touch on fundamental questions and in this way shed light on key facets of inference and reasoning from evidence.  But such a defense of the debate about mathematical analysis of evidence is a bit like saying that WWII was a good thing because it led to the development of V-2 rockets. The debate about mathematical analysis of evidence has caused more intellectual havoc than enlightenment.

   Theoretical Dogma Number 2

There have been arguments, both within the literature on evidential inference narrowly conceived and in the broader philosophical literature, that inference is fundamentally subjective. I have occasionally made such arguments myself.

The claim that human inference is subjective is true but trivial.

Human beings (and sharks and other organisms [see below]) do have some capacity to draw accurate inferences about the world. If they did not, they could not have survived as long as they have -- unless they had an extraordinary amount of dumb luck. In any case, accomplishments such as the development of the internal combustion engine, the development of nuclear weapons, the development of the microchip, and the construction of cathedrals that often manage to stand for decades and sometimes for centuries is evidence enough that accurate factual inference is sometimes possible. Complete epistemological or inferential relativism or skepticism is a non-starter for any serious student of human evidential inference.

   Theoretical Dogma Number 3

The opposing thesis -- the thesis that there are objective methods of drawing inferences about human behavior -- is, however, also incorrect. This thesis is incorrect if by the word "objective" we mean self-standing (or autonomous or largely-autonomous) methods of reasoning, artificial methods of reasoning that can replace ordinary, seemingly-sloppy, and commonsense human methods of reasoning about matters such as human behavior.

Usually such objective methods are not available. This is true even though it is also true that some problems or questions in our world are now configured in such a way that artificial and autonomous methods of ratiocination, rumination, or computation can yield solutions that are less likely to be wrong than those reached by unaided human common sense.

As you can see, this dogma -- Dogma Number 3 -- is closely related to Dogma Number 1, my dogma about the irrelevance of much of the longstanding debate about mathematical analysis of evidence and inference.

The brain -- or the neurobiological system -- or possibly we will have to call it the neuro-electro-magneto-biological system -- is a very complex mechanism. Some persons say that it is the most complex mechanism in the universe. They may be right about that. Whether they are or not right about that, it is unlikely that artificial methods of computation (such as computer-based computation) can replace the human brain anytime soon. True, as I said earlier, in some domains computers can outperform humans; for example, computers can now play chess and checkers better than even the most extraordinary humans can. But in most arenas computers do far less well than human beings do. That's likely to be the case for some time to come.

   Theoretical Dogma Number 4

Given Dogma Number 3, it does not follow that theorizing about inference is pointless. On the contrary: it is possible for theorizing about inference to have both theoretical value and cash-value: it is possible that theorizing about inference can lead to improvements in both our understanding of evidential inference and in the quality of real-world inference in legal settings.

Given our present understanding of evidential inference and given the limitations on our current understanding of evidential inference, there is reason to believe and hope that images of reasoning about evidence can improve human inference if such images are used ctogether with with ordinary reasoning and common sense logic. More precisely stated,  it is possible for images (or pictures) of inference to be a useful tool of common sense, it is possible for images of evidential inference to support, facilitate, and enhance natural, or pre-existing, methods of human reasoning about evidence. This is roughly the fundamental insight that Timothy van Gelder holds and purveys, and I align myself with him. (However, Tim bears no responsibility for the details of the MarshalPlan system or for its many defects and failings.)

(No more dogmas!)


Those are some of my theoretical beliefs and dogmas. But now I must tackle a hard question rather than an easy one:

What sorts of images of inference, what sorts of cognitive tools, what sorts of models of inference are likely to be helpful?

I begin my attack on this question by making a few more comments about the general direction that theorizing about inference might take and why this general tack might turn out to be productive.

The brain -- or the human neurobiological system, or possibly the human electro-magneto-neuro-biological system -- is a computational mechanism of enormous complexity, subtlety, and power. A model of inference -- an artificial construct -- might try to capitalize on the power of this natural mechanism and make it function more effectively.

How could an image or images of inference do that?

Stated most abstractly, my answer is this: an image or model of evidential inference could improve the quality of human inferential performance if it could trigger natural computational mechanisms and processes (such as those in the brain) and make it possible for human beings to use their native, or inbred, computational mechanisms and processes more efficiently, more effectively, and more productively.

That artificial devices might be helpful or useful in this derivative way -- that images or models of evidential inference could serve as handmaidens of natural human reason -- that some artificial constructs depicting inference might be useful cognitive tools, or helpful cognitive crutches -- that appropriately-drawn images of inference might function as supports for native human reasoning -- is suggested by two considerations.

First, any particular line of reasoning about any real-world problem almost inevitably involves multiple steps. Properly designed artificial devices -- cognitive tools, heuristic devices, inference support tools, whatever they are called -- might well improve the ability of humans literally to keep in mind -- to keep in conscious thought, to be more aware of, to have more awareness of -- the steps in any train of reasoning that they decide to follow when considering any particular factual hypothesis.

Second, human beings reason about evidence and the world along multiple tracks, in a multitude of ways. Even though the brain is a very powerful mechanism, it is not an infallible one, and the different ways of thinking or reasoning or the different tracks the mind takes are difficult to keep in mind (so to speak) at the same time. But these different tracks, these different ways of thinking about a problem, influence each other. So keeping multiple lines of reasoning in mind at the same time is important; indeed, it is essential. Cognitive crutches can help mortals keep in mind the many different tracks along which their minds are running.

In sum, there is reason to think or hope that artificial tools (including, for example, simple diagrams and checklists drawn on paper) can make it easier for human beings to literally better keep in mind their various ways of thinking about a factual question and the numerous steps that human beings characteristically take and construct within each track of the many tracks of thinking that they follow.

The next question is what particular sorts of images or models of evidential inference are likely to be useful and necessary.

Overview of Evidence Marshaling Methods in MarshalPlan.

Much recent theoretical work on inference centers on inference networks. Such work is very important and it must continue. However, MarshalPlan has relatively little to say about inference networks. It focuses on other methods or marshaling or organizing evidence. MarshalPlan emphasizes comparatively simple evidence marshaling strategies methods such as event time lines, scenarios, and marshaling of evidence by legal rules.

Card Number 2 of the stack Network Manager -- the card in which this note is embedded -- serves in part as an outline of the evidence marshaling methods found in MarshalPlan.

The evidence marshaling strategies pictured on Card Number 2 can be sorted into several broad categories.

In one set of methods TIME plays a central role. This is is true of event chronologies, or time lines. It is true of scenarios. And it is true, in a more complicated way, of narrative and story-telling.

Nota Bene: There are several sub-categories of time lines: (1) time lines of the events at issue in a case, (2) time lines that show the history of sources of evidence (both so-called real evidence and human sources, or witnesses), (3) time lines showing the order in which evidence is collected, handled, and presented. Each of these categories can have subcategories or subdivisions: For example, time lines for events at issue include time lines showing the possible events over time related to possible actors in the possible events at issue.

Another set of evidence marshaling methods deals with the influence of legal doctrines and norms on evidence marshaling, analysis, collection, and assessment in legal settings. I am now referring, for example, to the red buttons (or links) called Legal Rules, Legal Argument, Legal Source Material, and Evidence and Material Facts. These and other stacks deal, in the aggregate, with "legal marshaling," which is my shorthand phrase for the way that legal doctrines and legal norms influence the gathering and assessment of evidence.

Another set of evidence marshaling methods amounts to little more than a system for filing evidence and information. These are the methods (or stacks) called Raw Evidence, Legal Source Material, Persons, Analysts, Legal Actors, and so on. It is probably true that the filing of information on the basis of such categories ordinarily does not require great intellectual labor. Nonetheless, the filing of evidence and information on the basis of such categories is not a trivial act. Evidence and information can be more easily accessed and recalled and evidence and information are also more suggestive and evocative if they are stored on the basis of meaningful concepts, i.e., according to categories or classifications that are meaningful to the user.

Another group of evidence marshaling strategies in MarshalPlan's collection of evidence marshaling strategies inches toward the development of inference networks. Thinking of inference as a network or web of inference is mainly but not exclusively useful when the factual questions are stable and the available evidence is know. In situations such as this -- in situations in which the facts in issue seem relatively stable -- a decision maker is most likely to want to focus on evidence sorting methods such as Evidence of Material Facts, Evidence for and against Material Facts, Witness Credibility, and Argument about Evidence, or Probative Value.

This above outline of types of evidence marshaling strategies two important strategies shown on Card Number 2 of Network Manager unaccounted for.

One important strategy not yet discussed is is the cognitive strategy or process here called Case Theory.

As it now stands, the stack Case Theory is less a picture of how this evidence marshaling strategy works than it is a general reminder that, first, there is a very important synthetic or constructive aspect to factfinding and evidential inference, second, the various evidence marshaling strategies identified and described by MarshalPlan influence each other and depend on each other, and,  third, the strength of a claim to have correctly or plausibly determined the important legally-material facts depends in large part on the extent to which the various evidence marshaling strategies that a decision maker uses are in harmony with each other and reinforce each other and, thus, on the the extent to which evidence marshaling strategies taken together generate a state of mind of epistemic equanimity, an epistemic reflective equilibrium. (If I were a brilliant programmer, which I am not, I could figure out how to develop a Case Theory stack that would allow the user to rotate through all of the evidence marshaling strategies shown in the Network Manager stack while still keeping, to some substantial degree, all evidence marshaling strategies in the mind's eye.)

Another group of stacks (or evidence marshaling strategies) lies at almost the opposite pole from the case theory stack (that is, at the opposite pole from thinking about the whole ball of wax). Case theory development involves synthetic thinking -- which in this instances involves the attempt to view the various parts of evidence marshaling in relationship to each other and the attempt to sense the degree to which the results of various evidence marshaling strategies are consistent with each other. This kind of synthetic and global thinking becomes tends to become most explicit once the key ingredients of an inferential puzzle have been identified and studied. But reasoning about evidence also involves and requires exploratory thinking. Several stacks in Network Manager are designed to facilitate and support imaginative thinking about possibilities. See, for example, the stack Possibilities and the stack Loose Thoughts.


You have been presented with a general sketch of the evidence marshaling strategies that are collected in MarshalPlan. The collection of strategies I have described looks a bit like a network. But the collection of  strategies in MarshalPlan is not a true network; it is a quasi-network. This is not an accidental feature of MarshalPlan; it is a central feature of MarshalPlan.

In my picture of evidence marshaling, the results of any one kind of evidence marshaling -- for example, of marshaling by time line, legal rules, etc. -- the results of any one kind of marshaling do not have determinate, or computable, implications for any other type of evidence marshaling. For example, any specific time line is logically compatible with innumerable scenarios. However, it is my hypothesis that the evidence marshaling strategies in my collection nevertheless do influence each other. For example, an assessment of the plausibility of some scenario may be affected and is likely to be affected by my assessment of the credibility of this or that witness. This is why I call my network a quasi-network even though MarshalPlan is not a true network.

On this point, I entirely embrace David Schum's thesis (which he advanced in a different context) that marshaling evidence in one particular way may be evocative of or suggestive of evidence marshaling that has a different axis and follows a completely different logic.

I believe that a quasi-network better portrays how the mind -- the accessible part of the human mind, in any event --, how the mind works when it ruminates about evidence in legal settings (and, putting aside legal marshaling, how the mind works in other settings as well).


But how, you might ask, did I arrive at the evidence marshaling strategies and methods that are included in MarshalPlan, that are found in the catalogues of evidence marshaling operations or methods found in places such as Card Numbers 2 and 3 of Network Manager and in places such as the stack Loose Thoughts?

The answer is that a variety of considerations -- a bit of logic, a bit of philosophy, some personal legal experiences, and so on -- led me to the list of evidence marshaling strategies now found in MarshalPlan. But it is very important for me to say and forthrightly admit that subjective introspection was a critical source of my catalogue of evidence marshaling strategies; that is, I peered into my own mind and I tried to see how I think about evidence and how I organize evidence in legal contexts such as litigation; I tried to identify the different ways that I, Peter Tillers, think about evidence when I try to understand evidence and assess its implications.

So it is fair to say that in many respects MarshalPlan has an affinity with mind maps. However, a mind map isn't worth much if it's just a map of one person's idiosyncratic mind. You and I may think in different ways about evidence. The fact that I think one way may just demonstrate that I have an enormous capacity for self-delusion or that I am very stupid. It is also possible that things I do not understand or see drive me to think the way I do. But there is reason to think and hope that MarshalPlan is more than just a map of the way one particular human creature, Peter Tillers, thinks.

I do have an quasi-objective explanation or justification for some of the methods on my list of evidence marshaling strategies. For example, I believe that plausible ontological considerations support the thesis that almost every factual issue either explicitly or implicitly also presents a question about scenarios. I have similar quasi-objective explanations and justifications for several other evidence marshaling strategies. Beyond that, I appeal to common experience -- both your subjective sense of how you think when you think about evidence and how society (e.g., particular legal rules) tends to say that evidence should be marshaled and analyzed.

Conscious Logic (or Folk Logic) versus Subconscious Logic.

But if I purport to be thinking rigorously, I cannot ignore the type of challenge laid down by some very serious students of artificial intelligence, brain science, and consciousness: What is my justification or explanation for focusing on conscious mental processes rather than the real logic that perhaps drives or might drive the workings of our brains?

My general answer is this: although I entirely agree that at least some subterranean brain processes may help to shape the way we think, it does not follow that conscious mental processes are nothing more than epiphenomena. In any case, we do not yet understand subterranean brain processes well enough to show in detail how they make us think as we do. So the thesis of the reality and potency of mental processes that are visible to our consciousness, to introspection, is, at a minimum, a good working hypothesis. (This working hypothesis might even turn out to be true in the long run and it might turn out to be the case that the influence of subterranean neural processes on human thinking has been exaggerated by critics of so-called folk logic.)

                                                         Multiplicity and Simplicity

The evidence marshaling methods found in MarshalPlan are both varied and relatively simple. In some quarters, these features of MarshalPlan might be considered defects because, first, it might be supposed that the process of drawing inferences cannot be that messy and inelegant and because, second, it might be supposed that the process of assessing evidence and drawing inferences from evidence really can't really be as simple as I seem to suggest or suppose.

My general answer would be that the real-world drawing of inferences about real-world factual questions is in fact a very messy business -- a process that involves a large variety of ways of thinking.

If some one were to ask me, What is the key to factual inference?, I might give a variety of answers. But my first response should be to say that there is no magic key to factual inference. I should begin by saying that drawing inferences requires the use of many keys. If someone were to say to me that one logic (e.g., Bayesian logic) animates or underlies all valid factual inference, I should then say, Even if that is true -- even granting your premise -- it does not follow that only that one logic is needed to do inference. It is as if you said to me, A trip to Mars requires the equation F = MA. In response, I would say, Yes, perhaps you're right, but making a trip to Mars requires a great many other things as well. In any event, although some of the things I must do to get to Mars -- for example, get astronauts to read dials carefully or get machines to record sensory signals to a certain degree of accuracy -- may well be governed by F = MA (or by some other universal equation or equations of your choice), I don't yet understand precisely how reading dials is governed by that equation and, until and unless I do, I will have to use something other than F = MA to teach astronauts (or machines) how to read dials carefully and accurately. So, you see, in addition to a rule such as Bayes' Theorem, I need procedures for storing legal rules, making legal arguments, constructing time lines, keeping track of persons, thinking about possibilities, and so on, and on, and on.

This point moves us to the second major feature of the evidence marshaling strategies found in in MarshalPlan: their seeming simplicity. Those methods seem to be little more than common sense. Is that a defect?

Not necessarily.

Common sense is, yes, aw shucks!, quite common. But it does not follow that common sense lacks intelligence. If common sense and intuitive sense were not intelligent, (wo)man would long since have perished from the earth. (I grant you that this argument suggests that sharks are quite intelligent. Yes, in certain respects, they are quite intelligent. That is one reason why they have existed -- apparently -- for hundreds of millions of years.)

The miracle of the human mind is some respects like the miracle of human life: we do not understand very well how we manage to think as well as we do but in fact our seemingly shoddy and shabby and sloppy and simple methods of thinking often work quite well, thank you. So if the evidence marshaling strategies found in MarshalPlan look and are relatively simple, that does not necessarily count against them. Those simple methods may be effective tools for evoking simple but intelligent, or effective, ways of thinking. Yes, I grant you, it almost surely must be the case that very complex processes produce, or underlie, these simple forms of conscious thinking and ordering, and it may also be the case that if we could grasp and explicitly describe those complex processes, we could think and infer much better than we do at present. But we cannot wait until heaven arrives. We must make our best guesses now.

I have often puzzled over fuzzy logic. Despite occasional claims to the contrary (see, e.g., the work of Susan Haack), I have the sense that fuzzy logic is sometimes a powerful tool for the management (control) of real-world processes. That this should be so may seem a mystery -- because fuzzy logic, to the extent that I understand it, is far more akin to a semantic theory than to a causal theory; that is, although fuzzy logic largely or entirely abjures causal accounts of natural processes, it often seems to control those selfsame natural processes quite nicely, thank you. How is this possible?

My guess is that the power of fuzzy logic in the world of nature is possible because (i) fuzzy logic is indeed at heart a semantic theory and (ii) our words and concepts (including our ordinary words and concepts) somehow harbor, in a way we do not understand, much knowledge about our world. An analogous notion may explain why the ordinary and commonsense procedures found in MarhalPlan work -- and why they work as well as they do (if, that is, they do indeed work well, which remains to be seen): carefully disassembling and then reassembling some of our common ways of making good guesses about our world may lead to important advances in our general understanding of how human beings manage to understand the world to the extent that they do.


I cannot claim sole credit for MarshalPlan. I have hesitated to identify my collaborators because I don't know if they want to take credit or blame (as the case may be) for the current version of MarshalPlan. But I do feel impelled to note that the current version of MarshalPlan grew out of a joint NSF reserach project that David Schum and I conducted years ago. We summarized many of the major results of our  research in P. Tillers & D. Schum, "A Theory of Preliminary Fact Investigation," 24 University of California at Davis Law Review 931 (1991).

I may not know much about evidential inference or much about matters such as investigative discovery. But if I know anything worthwhile about such things, it is largely because I had a master teacher, David A. Schum. (I am also deeply indebted to William Twining, Richard Lempert, David Kaye, and many other luminous intellects and wonderful human beings. I hope the rest will forgive me for failing to name them here.)



Some of you may be interested in my crude software "implementation" of the (evolving) MarshalPlan theory. If so, go here for detailed instructions on how to download or access my evidence marshaling software.

Tuesday, June 14, 2011

Is Tillers Part of a French Revolution?

Is Tillers on the edge of the cusp of a French revolution, an epistemological revolution with American rivulets?

I sincerely hope not!

Just four days after giving a talk called A Rube Goldberg Approach to Factual Inference in Legal Settings, I awakened to a New York Times report that some French cognitive scientists are propounding what they call an "argumentative" theory of reasoning, according to which "lack of logic and other supposed flaws that pollute the stream of reason are instead social adaptations that enable one group to persuade (and defeat) another." In the course of describing this theory the article refers some theorists' views that the brain is a conglomerate of Rube Goldberg contraptions.

I have been musing for some time about the mind's conscious inference procedures as a collection of devices that resembles a Rube Goldberg process. But I would like to say here & now that my take on the seemingly irrational nature of the mind's mechanisms differs sharply from some of the views reported in the newspaper article:
First, I reject an unadulterated consensus theory of truth. (We have had enough of that sort of thing.)
Second, I deny that the evidence marshaling methods I discuss and their interaction are irrational. I say that the interaction of those methods is to a substantial extent mysterious (which is a different claim), that the subconscious workings of the brain determine the interactions of such conscious evidence marshaling strategies, that these non-explicit mental operations connecting the explicit evidence marshaling methods to each other have a lot of rationality to them, and that tools can and should be devised that make some of these tacit mental operations become more explicit and perhaps work better than they presently do.

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Monday, June 13, 2011

The Plain Meaning of Plain Words

The plain meaning of plain words is apparently not plain. My authority? The Supreme Court. See Adam Liptak, Dictionary Citations by Justices Rise Sharply, NYTimes (June 14, 2011).



The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, June 12, 2011

Goodbye to Wikipedia

If you have been a diligent reader of this blog, you know I have struggled hard to create a Wikpidedia entry for James H. Chadbourn. Now a Wikipedia editor or editors have stripped everything of interest from the biographical sketch. (The entry may be deleted altogether.) The editor or editors cite Wikipedia rules,  policies, and protocols that for incomprehensibility and abstruseness are rivaled only by the Uniform Commercial Code or the Internal Revenue Code.

I am giving up. I give up, Wikipedia!  I am only a  poor law professor: I can't decipher your rules -- and I don't want to spend the rest of my life trying to do so.


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

To Save the Memory of James H. Chadbourn

Since the Wikipedia entry for James H. Chadbourn is in danger of being deleted or radically pruned, I will reproduce that entry here:

James Harmon Chadbourn (born Spartanburg, South Carolina, 1905; died, Cambridge, Massachusetts, 1982) was an American legal scholar and an expert in civil procedure, Federal jurisdiction and evidence.[1][2] 

He was a Fessenden Professor of law at Harvard University from 1963 until his retirement in 1974.[2]



Chadbourn received a B.A. from The Citadel, The Military College of South Carolina in 1926.
He received an LL.B. from the University of North Carolina at Chapel Hill School of Law in 1931.



Assistant Professor & ---, University of North Carolina School of Law, 19-- - 19--
Professor, University of Pennsylvania School of Law, 1940-1950
Professor, University of California at Los Angeles School of Law, 1950-1963
Visiting Professor, Harvard Law School, 1961-1963
Fessenden Professor of Law, Harvard Law School 1963-1974



Chadbourn wrote about (and against) lynching when and where it took courage to do so. See James Chadbourn, Lynching and the Law (1933), reprinted in 2008 by the Lawbook Exchange, Ltd.; James Chadbourn, "Lynching and the Law," 20 American Bar Association Journal 71 (1934); Note (by James Chadbourn), "Plan for Survey of Lynching and the Judicial Process," 9 North Carolina Law Review 330 (1931). See also the blog post Tillers on Evidence and Inference (December 31, 2008),

Chadbourn was a master teacher and an expert in several fields, particularly civil procedure and the law of evidence. He authored or co-authored numerous casebooks and articles in these fields.

Chadbourn's approach to his fields was—to put it mildly—historical. This was most apparent in his approach to the teaching of civil procedure. There have been three major phases of civil procedure in America: common law procedure, the nineteenth century Field Codes, and the Federal Rules of Civil Procedure. Chadbourn devoted a lot of time to common law procedure, a considerable amount of time to the code system of pleading and procedure, and only a little bit of time to the twentieth century Federal Rules of Civil Procedure. He had an "utterly mad" interest (so said his Harvard colleague John Dawson) in the common law forms of action. He delighted in constructing elaborate hypotheticals that illustrated how the vindication of seemingly valid claims could be frustrated at every conceivable turn by the intricate rules governing the common law forms of action.

One of Chadbourn's major accomplishments (not widely known by today's forgetful legal professoriate) was writing a series of preliminary studies for the California Law Revision Commission in the early 1960s on the then-pending proposal to codify California's law of evidence. Chadbourn can fairly be called the father of the California Evidence Code. This Code was one of the earliest codifications of American evidence law. It had a substantial influence on the codification of the federal law of evidence roughly a decade later.

Chabourn's most monumental accomplishment was the revision of almost all of the volumes of John Henry Wigmore's classic and mammoth multi-volume treatise on the American law of evidence, a treatise that is widely regarded as the greatest English-language legal treatise ever written. (Chadbourn managed to do much of this arduous work while fighting cancer.) Chadbourn was proud that readers found it hard to distinguish his additions to the treatise from Wigmore's original work.

Family, Personal, Extracurricular


Personal, Anecdotes:

Chadbourn liked to cook. He generally left work each day at 4:00 or 5:00 p.m. to go home and cook supper. (He was an excellent cook.)

Chadbourn liked to fish. On one occasion he went to New Hampshire on a fishing trip with a research assistant. Chadbourn rarely spoke about personal matters to other people. However, during this fishing trip he and his research assistant took a rowboat out to the middle of a small lake and there, while fishing, Chadbourn asked his assistant, "How can we keep doing this stuff?" Chabourn was referring to studying and writing about the law of evidence. There was a deep strain of skepticism in Chadbourn. (The befuddled research assistant, who did not know how to fish, did not answer the possibly-rhetorical question.)

Peter Tillers recounts at

I did research for James H. Chadbourn for a number of years while he taught at Harvard Law School. ... Chadbourn hated deans -- without exception. I still recall one day when a person, an administrator, dropped by his office at Harvard... (I was sitting behind a small desk doing research -- the old-fashioned way, by reading cases in "hard copy" form.) Chadbourn had been friendly with this administrator. She told him she had been named an assistant dean. From then on, Chadbourn was hostile to her. I don't know what lay at the root of Chadbourn's contempt for deans. Part of the reason may have been philosophical and temperamental: he was a curmudgeon -- a gentle curmudgeon -- and a skeptic, and he was generally distrustful of authority. Another part of the reason may have been his experiences with authority while he taught at UCLA: the story has it that he fought bitterly against a McCarthyite attempt to purge two junior faculty members who were accused of being Communist sympathizers. ...
... Toward the end of his life, Chadbourn's enmity toward deans abated a little. Initially Chadbourn did not like Dean Albert Sacks of Harvard Law School, particularly because Sacks (possibly on behalf of a law school committee) once chastised Chadbourn after Chadbourn ordered a rude grade-grubbing law student to leave his office. Chadbourn eventually got cancer. Sacks apparently visited Chadbourn often while Chabourn was ill. For this Chadbourn was grateful. To his great credit, Sacks wrote a touching tribute to Chadbourn, 96 Harvard Law Review 361 (1982). He wrote:

I came to know Jim well during the past decade -- the period when I was Dean. Clearly, he had established a very special relationship with his students. Year after year, one heard from excited, happy students of his colorful way of teaching, which combined meticulous care for content and pedagogy with a vivid style laced with humor and wit. ... Obviously, he had achieved a genuine mastery of his subjects and his craft. These accomplishments, impressive as they are, disclosed only one part of the man. Aside from what he revealed of himself in the classroom (and visitors were discouraged), Jim Chadbourn was essentially a private person. Instinctively modest, he preferred to speak little of achievements and undertakings. Sentimental or other emotive feelings were masked, if not buried, by the use of irony, recourse to wit, or a not very convincing display of grumbling. But he and I dealt with each other at a time when he confronted limitations of age and serious illness. I too had recently confronted a difficult illness, and so we were able to achieve a perhaps unusual openness. Jim Chadbourn revealed a clear-eyed sense of his vulnerability, a reluctantly exercised capacity to accept whatever limitations he had to face, accompanied by an unshakeable determination to achieve the goals dictated by his work. Notwithstanding his success as a teacher and the satisfaction it gave him, he chose to retire early in order to devote his time to Wigmore's treatise. His cancer required treatments that were temporarily debilitating. After each treatment, he would bide his time and then go back to work. What emerged for me was a picture of something more than the great professor and the master craftsman. Here was an indomitable spirit, quietly expressing itself in a cause that could have only one final outcome. Of course he was now limited and vulnerable -- aren't we all, ultimately? Still, he not only completed the work he had set for himself, but he also continued to appreciate the people and experiences around him for which he could still find time. Indeed, I sensed at times that in this period of trial and hardship he felt a special satisfaction, which he characteristically masked. His friends offered support and encouragement, but we were of little help. What help he received came from within and from one other person -- his remarkable wife, Erika, for whom this time was also one of great trial and, in the deepest sense, of triumph as well. I was not at all surprised that Jim's students left his classes with the sense that they had learned the subject and, beyond that, had been touched by a man of memorable character. And it was natural for him to tell his first-year classes, during their last hour together, that the students should become not only good lawyers -- that would not be hard for them -- but also good people. His contribution to us all -- his students, colleagues, family, and friends -- was the example he set of quiet professional excellence, of courage and determination in confronting adversity, and of an understanding and appreciation of life that were genuine and deep though not seen on the sleeve. This is the measure of our loss. This is also the measure of our gain.
Peter Tillers reports that he heard from Chadbourn's family or friends, not only that Chadbourn came to detest the dean that he initially served under at UCLA, but also that Chadbourn, after declining to become one of the law school's founding faculty members, agreed to join the law school in 1950. Chadbourn, who had been teaching at the University of Pennsylvania, thought he would become one of the senior faculty members at UCLA. But on arriving at UCLA, he discovered, to his horror, that Roscoe Pound had become a faculty member at UCLA's new law school. Chadbourn - for some reason - detested Roscoe Pound.

It turned out that Chadbourn had ample reason to detest both Roscoe Pound and the first dean of UCLA Law School, L. Dale Coffman. The wave of the post-World War II anti-communist fervor had reached California by 1050. The board of regents of the University of California resolved that all faculty members had to take loyalty oaths. Dean Coffman and Roscoe Pound agreed that law faculty members should also be required to do so.[3]

Chadbourn was renowned for his dry wit. In a civil procedure class at Harvard Law School Chadbourn was discussing the common law action of trespass. In the course of doing this, he mentioned the common law maxim that the possessory rights of an owner of a fee simple absolute extend from heaven to hell. ("It is one of the oldest rules of property known to the law that the title of the owner of the soil extends, not only downward to the center of the earth, but upward usque ad coelum." Hannabalson v. Sessions, 116 Iowa 457 (1902).) A student raised his hand and earnestly asked (roughly), "But Professor Chadbourn, planes fly over land all the time. How high do the rights of a property owner extend?" Chadbourn paused, furrowed his eyebrows, looked down at his notes, and then said, "Real high."



Books, treatises, casebooks & reports:

Chadbourn revised seven volumes (turning them into eight) of the third edition of the classic treatise John H. Wigmore, Evidence in Trials at Common Law (3d ed. 1940).
J. Chabourn, Lynching and the Law (1933), reprinted in 2008 by the Lawbook Exchange, Ltd; T. Atkinson & J. Chadbourn, Cases and Other Materials on Civil Procedure (1948); T. Atkinson & J. Chadbourn, Introduction to Civil Procedure (1948); J. Chadbourn, L. Levin & P. Shuchman, Cases and Materials on Civil Procedure (2d ed. 1974) (original edition published by Chadbourn and Levin in 1961); R. Magill & J. Chadbourn, Cases and Civil Procedure Preface (3d ed. 1939); J. Chadbourn & L. Levin, Procedure Portfolio: Pleadings, Process and Appeal Papers in Facsimile (1962); J. Chadbourn, H. Grossman & A. Van Alstyne, California Pleading -- Civil Actions (1961); J. Chadbourn, A. Van Alstyne & H. Grossman, California Discovery Practice (1972); C. McCormick, J. Chadbourn & C. Wright, Cases and Materials on Federal Courts (6th ed. 1976) (federal courts casebook first published by McCormick and Chadbourn in 1946); 6 California Law Revision Commission Reports 39-45, 58-74, 133-69, 307-09, 328-416, 439-80, 509-25, 627-79, 727-71, 831-60, 925-50, 1049-107 (1964).

Law review articles:

J. Chadbourn, "Lynching and the Law," 20 A.B.A. J. 71 (1934); Note (by Chadbourn), "Plan for Survey of Lynching and the Judicial Process," 9 North Carolina Law Review 330 (1931); Chadbourn, "A Summary Judgment Procedure for North Carolina," 14 North Carolina Law Review 211 (1936); Chadbourn, "Trial by Jury Under the Seventh Amendment," 92 University of Pennsylvania Law Review 92 (1943); Chadbourn, Book Review, 41 Iowa Law Review 719 (1956); Chadbourn, Book Review, 33 Texas Law Review 151 (1954); Chadbourn, Book Review, 87 University of Pennsylvania Law Review 633 (1939); James Chadbourn & Leo Levin, "Original Jurisdiction of Federal Questions," 90 University of Pennsylvania Law Review (1942; James Chadbourn, Book Review, 29 Tulane Law Review 608 (1955); James Chadbourn, Book Review, 98 University of Pennsylvania Law Review 455 (1950); Chadbourn, "The Activities of the North Carolina Bar Association in Stimulating Legislation," 8 North Carolina Law Review 101 (1929); Chadbourn, "High Ethical Standards and Professional Ideals -- The Problem of Inculcation at the Student Level: Teaching Legal Ethics in Law School," BRIEF, Fall 1955, at 17; Comment (by Chadbourn), "Taxation -- Patents and Copyrights as Immune Federal Instrumentalities," 9 North Carolina Law Review 475 (1931), reprinted in 14 Journal of the Patent Office Society 421 (1932); Comment (by Chadbourn), "Evidence -- Impeaching Witness by Showing Religious Belief," 9 North Carolina Law Review 77 9 (1930); Comment (by Chadbourn), "Quasi-Contracts -- Liability of Municipality for Benefits Conferred Under Illegal Contract," 8 North Carolina Law Review (1930); Comment (by Chadbourn), "Public Utilities -- Distinction Between License and Franchise -- Cotton Ginning as a Business Affected with a Public Interest," 8 North Carolina Law Review 87 (1929); Comment (by Chadbourn), "Criminal Law -- Self-Defense -- Duty to Retreat -- Reasonableness of Appearance of Necessity," 7 North Carolina Law Review 460 (1929); Chadbourn, Book Review, 8 North Carolina Law Review 228 (1930); Chadbourn, "Bentham and the Hearsay Rule -- A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence," 75 Harvard Law Review 932 (1962); Chadbourn, "History and Interpretation of the California Dead Man Statute: A Proposal for Liberalization,' 4 UCLA Law Review 175 (1957); Chadbourn, "The 'Uniform Rules' and the California Law of Evidence," 2 UCLA Law Review 1 (1954); Chadbourn, Book Review, 43 California Law Review 365 (1955); Chadbourn, Book Review, 29 California State Bar Journal 501 (1954); Chadbourn, Book Review, 98 University of Pennsylvania Law Review 610 (1950); Chadbourn, Book Review, 89 University of Pennsylvania Law Review 256 (1940); Chadbourn, Book Review, 10 Tulane Law Review 480 (1936); Chadbourn, Book Review, 30 Illinois Law Review 128 (1935).



  1. ^ JAMES H. CHADBOURN obituary, New York Times, October 1, 1982. Accessed June 9, 2011
  2. ^ a b James Chadbourn, Retried Professor, Dies of Cancer, Harvard Crimson, September 30, 1982. Accessed June 9, 2011
  3. ^ Renee Y. Rastorfer, "THOMAS S. DABAGH AND THE INSTITUTIONAL BEGINNINGS OF THE UCLA LAW LIBRARY: A CAUTIONARY TALE," 95 Law Library Journal 347, 357 (2003) ("[T[he dean of the law school, L. Dale Coffman, became a vocal supporter of the loyalty oath. In later years, he recalled that Regent Edward Dickson was unhappy about the controversy embroiling the system. 'Indeed so. As a matter of fact, that's why he came to me to see if [Roscoe] Pound and I and other members of the faculty would make public statements in that regard. I did to the Examiner. Pound did, too .... I stated publicly that I'm not a communist, I never have been, I never expect to be, and I don't see where in it interferes with my academic freedom to say so.') See generally, N.E.H. Hull, Chapter 6 ("Pound Moves to the Right and Llewellyn Applies Himself") in Roscoe Pound and Karl Llewellyn: searching for an American jurisprudence (Chicago, 1997).


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Save the Memory of James H. Chadbourn (in Wikipedia)!

Some whippersnapper has proposed that the Wikipedia entry for Professor Chadbourn be deleted. If you wish to save the entry, promptly go to by midnight tonight (U.S. eastern daylight time? central time? etc.?) and register your vote or opinion!

I may have to abandon my faith in "democratic" encyclopedias. Do not let the rabble rule (scholarship and history)!?

Fans of Evidence Do Not (always) Bowl Alone

No bowling alone at Wasserman's Evidence!


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post


I hereby proclaim that the workshop on AI & Evidential Inference in Pittsburgh was a success. Kudos to the panelists.

The workshop papers will be published in Law, Probability and Risk. The images found below, however, will not be published there.

Left to right: Boaz Sangero, Michael Risinger, Michael Pardo, David Hamer, Thorne McCarty, and Giovanni Sartor

Left to right: Michael Pardo, David Hamer & Federico Picinali

Clockwise from foreground: Boaz Sangero, Jim Franklin, Ron Allen, Michael Risinger, Michael Pardo & David Hamer


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.