New York Times' Editorial on Legal Education: A Bit of Progress Immersed in Murk

Like most New York Times' editorials, yesterday's editorial Legal Education Reform does not have much analytical depth, but it is an improvement over the position (it's gotta be either theory or practice) taken in the earlier NYTimes article.  Even so, the value of "useless" theory is not considered in yesterday's editorial. So we do not know if the New York Times thinks that stuff such as European medieval legal history belongs in the law school curriculum.
&&&
Although I think it is possible for law school courses to marry theory and practice (I think my course in fact investigation does so) and although I believe that experience in law practice can be an important source of knowledge about law, some of the reasoning in the editorial is positively silly -- and perhaps even dangerous.
For example, in criticizing the Langdellian version of the "case method," the New York Times says, "The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth. [paragraph] That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems."
The New York Times seems to be blissfully unaware that generations of American law teachers who have not viewed the law as a "science" have used the "case method."
Beyond that, I don't know of many legal scholars (including Langdell) who actually thought that law is an end rather than a means. (Hans Kelsen, a German legal theorist of the first half of the twentieth century, may be one of the very few legal scholars who did so. His cast of mind is hardly that of the typical American law teacher either now or in the past.)
Finally, if the New York Times endorses the view that law is a means -- it is not clear that the Times does so -- what does the Times think is the implication of the possible truth of that proposition? Does the Times think that moral or ethical truths or cultural values cannot be extracted from or discerned in the law? Does the Times think that the law is or should be nothing more than a means of social control? In seemingly endorsing the view that law is not a "source of truth," does the Times believe that no knowledge can be gained by the study and observation of the forms of American law? These are not unimportant questions. But the Times' views about such questions are a murky mess.   
&&&
I very much agree that American legal education requires serious reform. I agree that many law teachers who purport and wish only to prepare law students for law practice do a shabby job at their chosen task. But if the New York Times editorial is an example of the kind of thinking that will guide efforts for the reform of legal education, we are better off leaving legal education in the mess it's in now. We can then at least be reasonably assured that at least some attention will be devoted in law schools to important questions without much immediate cash-value -- such as the question of the meaning of the idea and ideal of the "rule of law." (Some people, including the New York Times, have occasionally asserted that this idea(l) is one of the shining jewels of Western civilization and of civilization in general.)
&&&

The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.

Thanksgiving Day 2011

Computing with Words? What Is That All About?

Shahram Rahimi, Fred Petry & Elham S. Khorasani, CALL FOR PAPERS (2011) for  Special issue on Computing with Words, International Journal of Intelligent Information Technologies:

The “computing with words (CW)” was first introduced in 1996 by Zadeh as: A computational system in which the objects of computations are words and propositions drawn from natural language. It is inspired by the human remarkable capability to perform a wide variety of physical and mental tasks without any measurements or computations.

There may be no more innovative and daring thinker in the last 50 years than Professor Lotfi Zadeh. Think of it: having invented fuzzy set theory (and fuzzy probability,  etc.), Zadeh was not content. Late in life -- in 1996 -- he proposes "computing with words." Long before 1996, the thesis that our words and concepts make our world had fallen into disrepute in many corners of academia. Zadeh was not deterred. He asserted and asserts that words harbor knowledge and that if we can master that knowledge we can (sometimes? always?) get along in our world without measuring things.

There is, dear Legal Reader, something (quite a bit, I think) to the idea that human beings use words to "compute." If words are surrogates for concepts and ideas and if human beings use "ordinary" concepts (words) to calculate how they shall wend their way through this world of ours, there is nothing so very strange about the idea that human beings "compute with words." In our ordinary lives, this notion of computing with words is not really so strange: We use ordinary ideas (language) to understand and contend with our world. 

But wait! What about science? What about F = MA and all that? And not just science. What about those pictures we form in our heads about the way things stand and work in the world -- ideas and pictures such as "up," "down," "afterward," and so on? What about the pictures we form in our minds of the plumbing beneath our kitchen sinks when we tackle the job of unplugging some drain? All of this knowledge is just a matter of words? Is it also (at least) also a matter of images (or, in any event, something other than [mere?] words)?

We must, I think, find some way to reconcile and accommodate both the kind of knowledge we have and use when we use picture-thinking (and calculus etc.?) and the kind of knowledge that is unquestionably (I think) built into at least some of our "ordinary" (non-spatial? non-mathematical?) language and thought.

Well, there is plainly much, much more to be said about all of this. And some of it will be said, I think, at QJustice2012 in Lisbon, Portugal, May 22-24, 2012. (Come one, come all! Write Rainhard Bengez bengez (at) cvl-a.tum.de or me peter.tillers (at) gmail.com for more information.) Professor Lotfi Zadeh himself will participate (by videolink) in QJustice2012. And so will one or two people -- for example, Joseph Halpern of Cornell -- who disagree with Zadeh on some important points.

 &&&
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.

Why It Is Good to Treat Experimental Studies Cautiously

Peter Norvig on 

Warning Signs in Experimental Design and Interpretation

&&&

The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.

Decomposition of Judgments about Hearsay Evidence

David Carson & Ray Bull, Handbook of Psychology in Legal Contexts 335 (Wiley 2003):

"The decomposition approach is suggested by the work of David Schum and Peter Tillers (Schum, 1992; Tillers and Schum, 1992  [P. Tillers & D. Schum, "A Theory of Preliminary Fact Investigation," 24 University of California at Davis Law Review 931 (1991)]), who have used 'cascaded inference' models to describe the judgments required to evaluate hearsay evidence. Their models show how a 'global' judgment regarding the overall value of a piece of hearsay evidence can be decomposed into a series of more 'local' judgments about such matters as the observational sensitivity, objectivity and veracity of the declarant and hearsay witness. These models are potentially useful to psychologists because they provide a means for testing the logical consistency of 'global' and 'local' judgments about hearsay (Thompson and Pathak, 1999). A psychologist who is interested in whether information about the reliability of a declarant is correctly integrated into people's global judgments about the value of hearsay, for example, can test to see whether global and local judgments are equally sensitive to that variable.

"The global-local comparison can also yield helpful information about the reasons for people's insensitivity to important factors. If people are insensitive to a particular factor because they fail to appreciate its importance, then both local and global judgments should be insensitive. On the other hand, if people appreciate the factor but are insensitive due to a failure to correctly integrate information about it into their judgments, then the local judgments should be more sensitive to the factor than global judgments."

  &&&
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.

Sequelae to "Law School & Law Practice"

I have gathered together some of my comments to my original post "Law School & Law Practice":

Comment 1:

from the same NYTimes article: "'Where do these students go?' says Michael Roster, a former chairman of the Association of Corporate Counsel and a lecturer at the University of Southern California Gould School of Law. 'There are virtually no openings. They can’t hang a shingle and start on their own. Many of them are now asking their schools, "Why didn’t you teach me how to practice law?"'"

Comment 2:

... but I am a fervent believer in interdisciplinary scholarship ... I believe in a triad: (1) Theory 1 (legal theory); (2) Theory 2 (other theory -- e.g., probability, neuroscience, physics, information theory); and (3) Practice (private law practice; drafting legislation; etc.) ... cf. the statement on my personal web site: "The Golden Triad: Theory, Law & Technology," http://tillers.net ...

Comment 3:

the same NYTimes article: "Still others crossbreed law and some other discipline, a variety of scholarship that seems to especially irk John G. Roberts Jr., chief justice of the United States. 'Pick up a copy of any law review that you see,' he said at a conference this summer, 'and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.'"

This sort of anti-intellectualism is most unfortunate (and, in the case of Roberts, surprising). The fact is that _good_ theory is not incompatible with practice. And learning to be a bit reflective wouldn't be bad for lawyers.

Comment 4:

This is the NYTimes article: http://www.nytimes.com/2011/11/20/business/after-law-school-associates-learn-to-be-lawyers.html?_r=2&hpw

After Law School, Associates Learn to Be Lawyers

www.nytimes.com

Law schools have long emphasized the theoretical over the useful, leaving law fi...rms fairly resigned to training their hires how to actually practice law.

Comment 5:

Oh, by the way, Mr. Justice Roberts: Thinking hard about Immanuel Kant's seemingly-odd dictum that it is better for the world to perish than for one innocent person to suffer punishment might be a fruitful way to attack the riddle of "proof beyond a reasonable doubt." It might even be useful to know what befell a country (Bulgaria? really?) that tried to put Kant's dictum into practice. (A long-ago conversation with some South American legal scholars leads me to believe that Chile or Argentina might be a more apt case study.)

Comment 6:

I am thinking about Roberts (Justice) and the NYTimes article once again: Why is the debate over teaching Theory or Practice so simple-minded? Have Justice Roberts and the NYTimes ever heard of "necessary but not sufficient" or of the fallacy of the excluded middle? Is it not possible to say (as I suggest), not only that (some) "theory" is is part of effective training for law practice, but also that law schools can teach BOTH practice and "useless" theory, that they can prepare students sufficiently for law practice even if they devote some energy to teaching stuff that does not demonstrably improve "practice skills" as commonly understood? If so, is there not a case for teaching stuff that, e.g., gives law students a general vision or sense of the nature of the rule of law or the function(s) of law in society? (Yes, there is.) But I don't want to be a Pollyanna: It is probably true that there is a tradeoff between teaching students "useless" theory and teaching them how to be effective members of the "bar" (in Justice Roberts's sense). But perhaps some tradeoffs are acceptable for the sake of training "broad-minded" lawyers: perhaps it's OK to give students a pinch of "useless" theory at the price of a mote of preparation for law practice, yes? (That being said, law schools perhaps should not ignore the needs of law practice to the extent that some of them perhaps do.)

 &&&
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.