Tillers on Evidence and Inference

Bogus "Repressed Memory" Theory Still Lives in Some Places

2012-01-23T08:46:00.000-05:00

As I was reading online newspaper articles this morning, an item about David Clohessy, national director of SNAP -- Survivors Network of those Abused by Priests -- caught my attention. It seems that he and SNAP are resisting a court order that he and SNAP disclose communications they may have had, in violation of a gag order, about communications with the press and alleged victims of sexual abuse. This court order, of course, raises First Amendment issues. However, what caught my attention is that the controversy arose out of a civil action in which the plaintiff is apparently relying on the theory of "repressed memory." This is most distressing -- inasmuch it is fairly obvious to any halfway rational person that the theory of repressed & recovered memory is bogus. See, e.g., this article in the Skeptic's Dictionary.

In the underlying civil action the John Doe plaintiff apparently alleges he was abused "in the 1970s." So he allegedly forgot about the sexual abuse for roughly 40 years. Who really believes this sort of stuff? (Well, the Massachusetts Supreme Judicial Court apparently does. Compare this post.)

N.B. SNAP still holds national conventions. (The 2012 convention, SNAP reports, will be in Chicago.) A major focus of such conventions seems to be to encourage victims to come forward. It is possible SNAP's encouragement is a bit too brisk. (One wonders whether in 2020 some person at a SNAP national convention will suddenly remember being abused by a priest in the 1970s. I suppose so!)

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A New Project - in the Footsteps of James Bradley Thayer and Judge Jack B. Weinstein

2012-01-21T12:08:00.000-05:00

I have accepted an invitation to serve as one of the editors of the next edition - the 10th edition - of Jack B Weinstein, John H Mansfield, Margaret A Berger (deceased) & Norman Abrams Evidence: Cases and Materials (University Casebook Series) (West Publishing & Foundation Press, updated 9th ed., 1997). This casebook has a distinguished lineage: it is a descendant of the evidence casebook written by James Bradley Thayer in 1892.

I will continue to work with Scott Brewer and Joannes Vinarao-Pilapil on the projected treatise The Structure of Proof in Modern American Trials (Aspen Publishers) (for multivolume set The New Wigmore).

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Are Entering Law Students Less Well Educated Today?

2012-01-21T09:49:00.002-05:00

Like probably every law professor in the U.S., I sometimes wonder if today's entering law students are less well educated than their predecessors were. I think that's why the following item caught my attention:

Professor [Philip] Babcock has written extensively about college students’ evolving study habits (or lack thereof) over the last 50 years. He found that in 1961, full-time students spent about 40 hours each week in class and studying. By 2003, they were investing about 27 hours a week.

Catherine Rampell, Why Students Leave the Engineering Track, New York Times (online) (Jan. 21, 2012).

This posting might lead you to wonder if Peter Tillers was always an industrious and diligent student in college and law school. Tillers told me he refuses to answer this question here (mainly because, he said, a full answer answer would have to be nuanced -- and, hence, lengthy). But he did say he believes in redemption and he did tell me he thinks it is impossible to learn how to write, how to do higher mathematics, how to reason about evidence, and so on, without doing a lot of work. He also said to me, "Wisdom does not come easily."

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Important Eyewitness Identification Ruling: Perry v. New Hampshire

2012-01-12T10:02:00.005-05:00

In Perry v. New Hampshire No. 10-8974 (Jan. 11, 2012) (8-1; Sotomayor, J., dissenting) the Supreme Court of the United States held that a pretrial identification not conducted by police officers or state agents is not - at least as a general matter - subject to due process scrutiny. This basis for the decision was not unexpected, even if it was unfortunate.

The Court wrote (footnote omitted):

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example,at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

More welcome (as a conceptual or analytical matter) than the Court's flawed view of the requirement of state action was the Court's seeming awareness that the question of reliable or unreliable eyewitness identifications (in criminal cases) cannot readily be distinguished from the question of the reliability or unreliability of other types of evidence. (Such awareness - and perhaps acknowledgment - can be inferred from the Court's brief comparison of eyewitness identifications and testimony by "jailhouse snitches.")

I think the question of the reliability of eyewitness identifications cannot and should not be separated from the even more general and decisive question of the reliability or unreliability of factual adjudication in criminal cases.

The ruling in the case leaves open precisely how the Court and lower courts will use the federal due process guarantee to assure a minimum level of fact finding reliability in criminal cases. Although the Court did not speak as clearly as it might have - but when does it or anyone ever do that? - at least the Court made it tolerably clear, if only by means of a negative pregnant, that the guarantee of due process puts some sort of a ceiling on the risk of erroneous factual adjudication in criminal cases:

Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s 'knowin[g] use [of] false evidence,' because such use violates "any concept of ordered liberty.")

What is not clear from this statement and the Court's other pronouncements in the opinion is whether the Court will, in the near future, embrace the proposition that when the risk of fact finding error is so severe as to "shock the conscience" or offend "fundamental conceptions of justice," the due process guarantee can mandate remedies other than the (mere) exclusion of evidence - whether, for example, a criminal trial can be condemned as constitutionally defective because the accused had insufficient resources to mount a defense.

Statements in the opinion such as the following suggest that support for such an approach will be forthcoming only grudgingly in the near future:

The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.

Cf. Justice Thomas' concurring opinion. He would plainly reject the approach I favor.

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The Hart-Fuller Debate Post-Modernized: Motor Vehicles versus Animals in the Park

2012-01-07T23:48:00.005-05:00

An ordinance originally enacted in 1921 provides that on Sunday afternoons it is impermissible to take motor vehicles into the park but that it is permissible to take animals (even large and noisy ones) into the park on Sunday afternoons. (This is very probably a German city such as Munich.)

One fine Sunday afternoon I take a robotic cat - a robot that functions, in many ways, like a cat, but also, obviously, in some ways, like some other machines - into the park.
How now brown cow?
Shall we use Bayesian logic? (Unlikely.) Shall we flip a coin? ("Heads, it's a motor vehicle, tails it's an animal. That's a fair way to settle this question.") Delphic oracles? (cf. "I will gaze at the starry heavens - especially Sirius - and seek inspiration there.") Our unbridled discretion? ("I can and will rule the way I want. There is no applicable rule here. I will make law. Nothing else is left to me - thank God.") Or shall we (or the judge or the jury) use fuzzy logic? ("This thing partakes of an 'animal' to some degree. This thing partakes of a 'motor vehicle' to a substantial degree. ... [missing matter?] ... Therefore ...[?]")
What will or should we (or the judge or jury) do: How will or should we or they think about this problem?
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Supreme Court's Unacknowledged Recognition of Fuzzy or Rough Sets

2012-01-06T13:52:00.001-05:00

The important thing about Griswold v. Conecticut 381 U.S. 479 (1965) was not what it said about privacy or sex. The important thing about Griswold v. Connecticut is that in it the Supreme Court of the United States put its constitutional imprimatur on the proposition that sets (classes, categories, concepts), in the constitutional realm, are fuzzy or rough. For example, the Supreme Court said:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy.

Lotfi Zadeh's seminal article in fuzzy sets was published in 1965. It is extremely unlikely that any of the Justices had read the article or had even heard of the article or the theory. So there is no direct lineage from Zadeh's theorizing to the Supreme Court's theorizing in Griswold v. Connecticut. Nonetheless, ...

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Fuzzy on Fuzziness

2012-01-05T20:12:00.001-05:00

Words they may regret:

"Fuzzy theory is wrong, wrong, and pernicious. What we need is more logical thinking, not less. The danger of fuzzy logic is that it will encourage the sort of imprecise thinking that has brought us so much trouble. Fuzzy logic is the cocaine of science."

-Professor William Kahan UC Berkeley

"’Fuzzification’ is a kind of scientific permissiveness. It tends to result in socially appealing slogans unaccompanied by the discipline of hard scientific work and patient observation."

-Professor Rudolf Kalman UFlorida

Source: History and Objections [to fuzzy logic]
Professor Zadeh particularly enjoys trotting out the statement by Kahan.

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First Circuit Seems to Approve of Holism and Abduction

2012-01-03T21:45:00.002-05:00

See Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011):

[7] "Unlike a logical inference made by deduction where one proposition can be logically inferred from other known propositions, and unlike induction where a generalized conclusion can be inferred from a range of known particulars, inference to the best explanation—or `abductive inferences'—are drawn about a particular proposition or event by a process of eliminating all other possible conclusions to arrive at the most likely one, the one that best explains the available data." Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1124 n. 5 (10th Cir.2004).

[snip, snip]

At times, the court's error in excluding Dr. Smith's testimony derived from a mistake in its understanding of the weight of the evidence methodology employed by Dr. Smith. The court treated the separate evidentiary components of Dr. Smith's analysis atomistically, as though his ultimate opinion was independently supported by each. For example, the court referred to "Dr. Smith's opinion that because benzene metabolites inhibit topo II and because some classes of topo II inhibitors appear to have a causal relationship to APL, therefore benzene has a causal relationship to APL." Milward, 664 F.Supp.2d at 148 (emphasis added). This overstates Dr. Smith's conclusion as to the topo II evidence, and is indicative of an error in the court's understanding of the nature of Dr. Smith's analysis.

In Dr. Smith's weight of the evidence approach, no body of evidence was itself treated as justifying an inference of causation. Rather, each body of evidence was treated as grounds for the subsidiary conclusion that it would, if combined with other evidence, support a causal inference. The district court erred in reasoning that because no one line of evidence supported a reliable inference of causation, an inference of causation based on the totality of the evidence was unreliable. Cf. Nutra-Sweet Co. v. X-L Eng'g Co., 227 F.3d 776, 789 (7th Cir.2000) (holding that an expert's reliance on individual pieces of evidence, insufficient in themselves to prove a point, "did not render his opinion speculative").[16] The hallmark of the weight of the evidence approach is reasoning to the best explanation for all of the available evidence. Cf. Dalkon Shield, 156 F.3d at 253 (reversing district court's exclusion of expert testimony as "guesswork" or without "basis" when testimony was based on differential diagnosis and there was no showing that any one of the expert's premises was "so faulty that it could not even be tendered to the jury for its consideration"); see also Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 261 (6th Cir.2001).

A hat tip to Phil Segal!
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DNA and Fiber Evidence in the Dobson and Norris Trial

2012-01-03T12:31:00.000-05:00

Go here to see a brief visual summary of the the DNA and fiber evidence in the Dobson and Norris trial in the UK.

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Best Wishes for a Good or Meaningful New Year

2011-12-31T11:47:00.001-05:00

May you have a good new year - assuming, of course, that you follow or recognize the Gregorian calendar.

Let me put it this way: may you have a good new year - perhaps even a dynamic one - when your new year arrives.
And if your new year promises not to be a good one (we know that not every year is filled with blue skies), may the new year at least make sense to you and have some sort of satisfying meaning for you.

Peter Tillers
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Homeless(?) Student at Cardozo Law School!

2011-12-29T22:05:00.001-05:00

Ah yes, so there is (unless his homelessness is a hoax). But the fellow seems to prefer being homeless.

Tip of the hat, I guess, to Steve Simon.

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The Law School Bubble?

2011-12-28T11:28:00.001-05:00

See the interesting article, William D. Henderson & Rachel M. Zahorsky, The Law School Bubble: How Long Will It Last if Law Grads Can’t Pay Bills? ABA Journal (online)(January 1 [sic], 2012).

History of Bayesianism, on YouTube

2011-12-27T20:01:00.007-05:00

"A one hour presentation of 'The Theory That Would Not Die' given by the author [Sharon Bertsch McGrayne] at Carnegie Mellon University in October 2011 is available on CMU’s Youtube channel." Hykel Hosni, "What's Hot in ... Uncertain Reasoning," 6 The Reasoner 11 (Jan. 2012).

Go here for a video of a talk by McGrayne on another occasion -- and this video is not marred by distracting background noise.

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Acedia, or The Noonday Demons of Solitary, Sedentary Workers

2011-12-25T12:16:00.001-05:00

John Plotz,Their Noonday Demons, and Ours NYTimes Sunday [sic] Book Review (Dec. 23, 2011):

By some miracle, you set aside a day to tackle that project you can’t seem to finish in the office. You close the door, boot up your laptop, open the right file and . . . five minutes later catch yourself thinking about dinner. By 10 a.m., you’re staring at the wall, even squinting at it between your fingertips. Is this day 50 hours long? Soon, you fall into a light, unsatisfying sleep and awake dizzy or with a pounding headache; all your limbs feel weighed down. At which point, most likely around noon, you commit a fatal error: leaving the room. I’ll just garden for a bit, you tell yourself, or do a little charity work. Hmmm, I wonder if my friend Gregory is around?

This probably strikes you as an extremely, even a uniquely, modern problem. Pick up an early medieval monastic text, however, and you will find extensive discussion of all the symptoms listed above, as well as a diagnosis. Acedia, also known as the “noonday demon,” appears again and again in the writings of the Desert Fathers from the fourth and fifth centuries. Wherever monks and nuns retreated into cells to labor and to meditate on matters spiritual, the illness struck.

[snip, snip]

...[N]ow that solitary unstructured brainwork has returned with a vengeance, we may be suffering an epidemic of early medieval acedia.

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Christmas Eve

2011-12-24T02:03:00.000-05:00

An Evidence Exam, by Charles Nesson

2011-12-22T15:02:00.000-05:00

See Elie Mystal The Evidence Exam at Harvard Law That Requires No Evidence to Pass Above the Law (Dec. 22, 2011).

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Shaken Baby Syndrome

2011-12-20T21:49:00.000-05:00

For an excellent -- but noncommittal -- review of the growing controversy over the "shaken baby syndrome," see Mark Hansen, Unsettling Science: Experts Are Still Debating Whether Shaken Baby Syndrome Exists ABA Journal (Dec. 1, 2011).

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Of Inference Networks and -- Gasp! -- Onto-Epistemology

2011-12-19T12:15:00.000-05:00

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An Old "Stunt": A Planned Wrongful Courtroom Identification

2011-12-19T11:31:00.000-05:00

Debra Cassens Weiss Lawyer’s Twin Stand-In Stunt at Preliminary Hearing Leaves Judge Furious ABA Online (Dec. 19, 2011).

A snippet:

"[Defense counsel] denied that the twin stand-in was intended to get the alleged victim to identify the wrong man, according to the newspaper’s review of the transcript. 'This honorable court asked for Mr. White [accused's name was "White"], and that’s who’s at the table today, Mr. White,' she said."

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Special Issue on Uncertainty Theorist Henry Kyburg

2011-12-19T11:17:00.000-05:00

The journal Synthese will soon publish a special issue on the uncertainty theorist Henry Kyburg. Advance copies of the papers are available here.
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Spindle Law Interview: Olivier De Schutter

2011-12-16T12:54:00.001-05:00

Spindle Law Interview: Olivier De Schutter

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Colleges (and law schools) "are not simply for the education of students"

2011-12-15T07:26:00.000-05:00

Gary Gutting What Is[College For? NYTimes (Dec. 14, 2011)(blog):

Colleges] are not simply for the education of students. This is an essential function, but the raison d’être of a college is to nourish a world of intellectual culture; that is, a world of ideas, dedicated to what we can know scientifically, understand humanistically, or express artistically. In our society, this world is mainly populated by members of college faculties: scientists, humanists, social scientists (who straddle the humanities and the sciences properly speaking), and those who study the fine arts. Law, medicine and engineering are included to the extent that they are still understood as “learned professions,” deploying practical skills that are nonetheless deeply rooted in scientific knowledge or humanistic understanding.

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The Meaning of Face-to-Face Confrontation in Canada

2011-12-13T02:04:00.000-05:00

Niqab may be worn during testimony: court CBC News Toronto (Oct. 13, 2010):

The Ontario Court of Appeal has ruled that the victim of an alleged sexual assault may not have to remove her niqab while testifying as long as the fairness of a trial is not compromised.

Muslim Woman Wants to Appear Veiled in Canadian Court The World (Dec. 8, 2011):

The Supreme of Canada has heard the case of a Muslim woman who wants to appear veiled in court while she testifies against the two men she has accused of sexual assault.

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Physics, Soup & Legal Reasoning

2011-12-06T05:46:00.005-05:00

Anyone with the slightest appreciation of the character of enormous events such as black holes (which might be said to be enormous non-events), see

NYTimes article on the biggest and baddest black hole yet

and

Wikipedia article on black holes

and

Hubblesite on black holes (highly recommended)

understandably hesitates to say anything that might reek to the slightest degree of absurd deconstructionist talk -- such as talk about "decentering gravity" (see the Sokal hoax). With this in mind, I pose several comments and questions seriatim (comments and questions I first posed on Google+):

First: A participant in the BISC list (Berkeley Initiative for Soft Computing list) asked an interesting question: Is human knowledge of causality fuzzy or is causality itself (also) fuzzy?

Second: Is it possible or desirable to combine the precision of, say, special relativity (ignore quantum mechanics, please) with fuzzy logic and probability?
Third: It is fair or accurate to say, yes?, that some or many or all models generated by "real physics" -- models such as Newtonian mechanics and special relativity -- make sense only as universal models (at least in our universe, i.e., putting aside a possible multiverse and the like)? If so, is it logically coherent to imagine (only to imagine, I say!) that such models are mechanisms, processes, or structures that exist in an ocean, or soup, of fuzziness? Or is such an image (an image of quantitatively-specifiable islands in a murky and elusive soup) too close -- fatally too close -- to the excesses and absurdities of deconstructionism, postmodernism, and all that (see the Sokal hoax and ridiculous talk about matters such as "decentering gravity")? Does "real physics" allow for the existence of soup, soup with an ontological status, i.e., "real (fuzzy?) soup"?
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[I repeat, here:] Even if I am just speculating, should I be embarrassed to be speculating in this fashion? (N.B. I repudiated Hegelianism, neo-Hegelianism, and all that, decades ago!)
My probable motivation for the speculation found here: I am groping for a way to explain and defend sloppy, soupy (and non-numerical) reasoning (which is prevalent in legal discourse and argument).

New Book on Evidence (and Related Matters)

2011-12-02T12:07:00.004-05:00

The following book has finally been officially published: William Twining, Philip Dawid & Dimitra Vasilaki, eds., Evidence, Inference and Enquiry (Oxford & British Academy, 2011).

I have an essay in the book: "Are There Universal Principles or Forms of Evidential Inference? Of Inference Networks and Onto-Epistemology." For an earlier (and free) version of the essay, go here.

The book's table of contents:

Sir Geoffrey Allen: Foreword
1: Philip Dawid: Introduction
2: David Schum: Classifying Forms and Combinations of Evidence: Necessary in a Science of Evidence
3: Jason Davies: Disciplining the Disciplines
4: William Twining: Moving Beyond Law: Interdisciplinarity and the Study of Evidence
5: Philip Dawid; Amanda Hepler; David Schum: Inference Networks: Bayes and Wigmore
6: John Fox: Arguing about the Evidence: A Logical Approach
7: David Lagnado: Thinking about Evidence
8: Jill Russell and Trisha Greenhalgh: Rhetoric and Argumentation in Evidence-Based Policy Making
9: Terence Anderson: Generalisations and Evidential Reasoning
10: Peter Tillers: Of Inference Networks and Onto-Epistemology
11: Nancy Cartwright and Jacob Stegenga: A Theory of Evidence for Evidence-Based Policy
12: Hasok Chang and Grant Fisher: What the Ravens Really Teach Us: The Intrinsic Contextuality of Evidence
13: Alison Wylie: Critical Distance: Stabilizing Evidential Claims in Archaeology
14: David Colquhoun: In Praise of Randomisation
15: Jason Davies: Believing the Evidence
16: Mike Joffe: What Would a Scientific Economics Look Like?
17: Tony Gardner-Medwin: Reasonable Doubt: Uncertainty in Education, Science and Law

Spindle Law Interview: Bill Neukom

2011-12-02T03:08:00.001-05:00

See this interview of Bill Neukom

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Our Billion Dollar Imperial President

2011-11-30T20:07:00.003-05:00

When I arrived at my law school this morning, I found steel barricades in front of the law school (5th Ave.) and along the south side of the building along 12th Street, which was closed to all traffic. I inferred that President Obama would be visiting the neighborhood. Indeed, that is apparently the case: He will be dining for dollars at GOTHAM BAR & GRILL on 12th Street.

I wondered why it was necessary to put up steel barricades more than seven hours before the President's visit.

Then I saw this e-mail to staff at my law school:

President Obama will be attending a fund-raising event this evening on 12th Street. As a result, there are police barricades in the area, which will be set up as early as 5 pm. [They were set up in the morning.] The police will clip the locks and remove any bicycle in the area.

For those of you who have already brought your bikes to school, we are reserving an area in the third-floor lounge for bicycle storage until the close of the building this evening. However, please be aware that we do not have bike racks available, and that storing it here will be at your own risk, since there will be no security presence.

If you have not yet arrived at school but were planning on riding your bicycle here, we suggest that you use an alternate form of transportation.

I then wondered whether it is really necessary to remove all bicycles -- without advance notice and without, I assume, due process or just compensation (did he ever get the hang of that due process stuff?) -- and to do so two hours before the President's scheduled appearance.

Well, you know, better safe than sorry! And I reminded myself that this is a worthy President. He plans to raise a billion dollars to get re-elected. Who am I to grouse if some lousy (and not-so-lousy) bicycles are removed so that he can raise more money for himself? It's all for the greater good, isn't it?

Jimmy Carter, where are you when we need you?

In case you're not feeling Jimmy Carter-like, by all means go to the Gotham Bar & Grill. (Even if George Washington didn't sleep there, the restaurant will be able to say that Barack Obama ate there.)

Postscript: As I pedaled away from the neighborhood, as fast as my legs could manage, I wondered if that colorful little kid's bike locked to a sign at 5th & 12th would also be expropriated in the name of state security. Probably so. (Let the kid get another bike. What's the big deal? It's not as if the kid's parent or parents, who apparently live on 5th Ave., can't afford to buy another one.)

Toilet Paper and the Courts

2011-11-27T08:34:00.000-05:00

Toilet paper for a money-starved court system:

State courts around the country have found many ways, some unusual, to deal with the cuts. In Mount Gilead, Ohio, the Morrow County Municipal Court, like many others, is now working a four-day week. And that is not as large a hardship as the county experienced in 2009, when the court announced that it could not take new case filings for three months, until the end of the budget cycle, unless litigants brought their own paper for the court to use. Money for paper had run out.
“Even though paper is inexpensive, it’s still enough to shut us down,” said Judge Lee W. McClelland. Ultimately, he said, people in the community donated enough paper so that “we were able to limp through the year.”
“We also got about three rolls of toilet paper,” he said. “Obviously, they were confused about what kind of paper we needed.”

John Schwartz Critics Say Budget Cuts for Courts Risk Rights NYTimes (Nov. 26, 2011).

NYTimes

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

2011-11-26T13:48:00.000-05:00

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.
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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.
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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.)
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Thanksgiving Day 2011

2011-11-25T01:23:00.000-05:00

Computing with Words? What Is That All About?

2011-11-23T02:30:00.005-05:00

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.

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Why It Is Good to Treat Experimental Studies Cautiously

2011-11-22T15:04:00.001-05:00

Peter Norvig on

Warning Signs in Experimental Design and Interpretation

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Decomposition of Judgments about Hearsay Evidence

2011-11-22T14:32:00.002-05:00

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."

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Sequelae to "Law School & Law Practice"

2011-11-20T14:50:00.001-05:00

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.)

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Law School & Law Practice

2011-11-19T18:49:00.001-05:00

"One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital." (David Segal Law Schools That Teach Little About Legal Practice New York Times (Nov. 19, 2011)

I practiced law for a few years; I was a litigator. I teach a course in fact investigation. The course tries to marry theory and practice. I am proud of the course; I have long thought it does useful things. But perhaps I should start calling the course "revolutionary"!?!

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How Law Schools Try to Win Friends and Influence People

2011-11-17T20:16:00.000-05:00

Joe Palazzolo, Law School ‘Porn’: On the Merits, WSJ Blogs (Nov. 17, 2011):

Let’s take a late-morning break to talk porn. Law school porn — those slick mailers law schools send this time of year to influence voting in the U.S. News & World Report’s reputation survey, which is based on voting by legal educators, lawyers and judges, and accounts for 40% of a school’s ranking score.

The National Law Journal, in this story, picked up on a debate among law professors over whether law schools’ dollars aren’t better spent on, um, education.

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The free market at work.

It's a brave new world.

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Spindle Law Interview of Joan Biskupic

2011-11-17T13:39:00.000-05:00

Spindle Law Interview: Joan Biskupic

Picturing Evidence Argument

2011-11-12T22:34:00.000-05:00

Software tools make it easier than ever to picture argument from and about evidence. The hard work is now mainly mental.

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Academic Fraud at the University of Illinois Law School

2011-11-11T07:47:00.000-05:00

Mark Hansen [University] of Illinois Law School Admits To Six Years of False LSAT/GPA Data ABA Online (Nov. 7, 2011)
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The Role(s) of Analogy in Reasoning

2011-11-04T03:06:00.000-04:00

John F. Sowa, a proponent of conceptual graphs, believes that analogy plays a key role in all or almost all reasoning:

6. Analogy and Case-Based Reasoning

Based on the same kind of pattern matching as perception:
● Associative retrieval by matching patterns.
● Approximate pattern matching for analogies and metaphors.
● Precise pattern matching for logic and mathematics.

Analogies can support informal, case-based reasoning:
● Long-term memory can store large numbers of previous experiences.
● Any new case can be matched to similar cases in long-term memory.
● Close matches are ranked by a similarity measure.

Formal reasoning is based on a disciplined use of analogy:
● Induction: Generalize multiple cases to create rules or axioms.
● Deduction: Match (unify) a new case with part of some rule or axiom.
● Abduction: Form a hypothesis based on aspects of similar cases.

Sowa's diagram:

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A Cautionary Note about Research in Psychology

2011-11-03T12:26:00.001-04:00

The fraud case described in this NYTimes article has raised important questions about research in psychology that reach beyond the problem of fraudulent data.

Snippets from the article:

A well-known psychologist in the Netherlands whose work has been published widely in professional journals falsified data and made up entire experiments, an investigating committee has found. Experts say the case exposes deep flaws in the way science is done in a field, psychology, that has only recently earned a fragile respectability.

The psychologist, Diederik Stapel, of Tilburg University, committed academic fraud in “several dozen” published papers, many accepted in respected journals and reported in the news media, according to a report released on Monday by the three Dutch institutions where he has worked: the University of Groningen, the University of Amsterdam, and Tilburg. The journal Science, which published one of Dr. Stapel’s papers in April, posted an “editorial expression of concern” about the research online on Tuesday.

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Researchers in psychology are certainly aware of the issue [unclear antecedent]. In recent years, some have mocked studies showing correlations between activity on brain images and personality measures as “voodoo” science, and a controversy over statistics erupted in January after The Journal of Personality and Social Psychology accepted a paper purporting to show evidence of extrasensory perception. In cases like these, the authors being challenged are often reluctant to share their raw data. But an analysis of 49 studies appearing Wednesday in the journal PLoS One, by Dr. Wicherts, Dr. Bakker and Dylan Molenaar, found that the more reluctant that scientists were to share their data, the more likely that evidence contradicted their reported findings.

“We know the general tendency of humans to draw the conclusions they want to draw — there’s a different threshold,” said Joseph P. Simmons, a psychologist at the University of Pennsylvania’s Wharton School. “With findings we want to see, we ask, ‘Can I believe this?’ With those we don’t, we ask, ‘Must I believe this?’ ”

But reviewers working for psychology journals rarely take this into account in any rigorous way. Neither do they typically ask to see the original data. While many psychologists shade and spin, Dr. Stapel went ahead and drew any conclusion he wanted.

Supreme Court Weighs Eyewitness Identifications

2011-11-03T03:05:00.000-04:00

Adam Liptak of the New York Times provides a useful account of oral argument before the Supreme Court about constitutional limitations on the admissibility of eyewitness identifications (for the prosecution) in criminal trials.

Some of the more interesting comments by the Justices:

“Why is unreliable eyewitness identification any different from unreliable anything else?” (Justice Scalia)

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

Justice Ginsburg:

Justice Ruth Bader Ginsburg also seemed skeptical about the need for a special constitutional rule.

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.
General:

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”
Justice Kagan:

The primary point of excluding eyewitness identifications that were prompted by the police, said Michael A. Delaney, New Hampshire’s attorney general, was to deter police misconduct rather than to address unreliable evidence more generally.

Justice Kagan disagreed. “Well, it’s both,” she said. “The court has certainly talked about deterrence, but the court also has very substantial discussions in all of these opinions about reliability. And from the criminal defendant’s point of view, it doesn’t really much matter whether the unreliability is caused by police conduct or by something else.”

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John McCarthy, Inventor of "AI" and a Founder of AI, Dies

2011-10-29T11:54:00.001-04:00

Sad news: David Perlman John McCarthy, computer science trailblazer, dies Sf Gate (Oct. 29, 2011).

McCarthy was, among many things, a serious student of "common sense."

A Comment on Lotfi Zadeh's Questions about Causality

2011-10-28T20:30:00.003-04:00

In response to Lofti Zadeh's questions about causality I posted the following comment to the BISC Group list:

I want to say a few words about causality from a legal perspective, mainly from the standpoint of (my view of) what goes on in lawsuits and trials:

1. Lotfi is certainly correct that the law takes the view that events – almost all events, in any case – have multiple causes.

2. The law frequently takes the view that there are degrees of causation – that some automobile accident was caused, e.g., “to a substantial extent” by some defendant's actions or carelessness.

3. But it is hard to speak of a unitary theory of causality in law. For example, in litigation normative responsibility and factual causation is often lumped together. Even when factual and normative components are distinguished, the law often speaks only in a “commonsense” way about causation.

4. In the wave of lawsuits and cases involving technical and scientific evidence (a wave that has been passing over us in the United States for more than half a century), there are frequent attempts to develop or use something other than commonsense notions of causation. For example, scientists are routinely invited to testify about their opinions of the cause or causes of this or that disease or this or that failure of some machinery. However, in these cases the scientific or technical models of causality (when they're offered, which is not always) do not usually supplant the law's commonsense view of causation. There are various reasons for this. One reason, I think (see my next post), is that many scientific causal accounts of events depend to some degree on idealized circumstances (e.g., a “complete vacuum”) and in legal contexts there is often a question of the extent to which those idealized conditions existed and, if they did not perfectly exist, to what extent the scientific causal account in question holds for the event or events or states that are in issue in the particular lawsuit or trial.

But note: Much or most expert epidemiological evidence presented in trials does not even purport to be a causal account; much of this sort of evidence is portrayed by those who present it in trials as “purely statistical.” The same can be said of other types of (statistical) expert and scientific evidence presented in trials.

5. I have personally struggled at great length over what are sometimes thought to be the competing claims or Bayesianism and fuzzy logic. I belong to the camp that thinks that these two approaches to uncertainty, vagueness, and similar matters are not necessarily mutually exclusive. I am not a mathematician or logician, but I personally find that fuzzy logic approaches to semantic and conceptual vagueness are more intuitive and illuminating than Bayesian accounts (even though perhaps one cannot deny that Bayesian logic seems to work to some extent in contexts such as Google searches, but then I have been led to believe that fuzzy logic is also very important for Google searches). For partly this reason, the reflective part of my nature is inclined to think that fuzzy logic is a natural and powerful way of thinking about the way the law thinks of causality. The law's notions of causality are extraordinarily vague (though not always extraordinarily disordered)!

6. The next question that always comes to my mind is what the contribution of fuzzy logic to actual legal practice (e.g., trials) can be when (as is almost always the case) the law “believes in” – or assumes – that there are causes, that we live in a world in which there are causes, and undertakes (e.g., in lawsuits) to gather evidence about causes and to that end allows the legally-authorized trier (or “finder”) of fact to hear what are generally regarded as causal accounts – be they Freudian psychoanalytic accounts, accounts based on Newtonian mechanics, accounts about the mechanisms involved in the transmission of AIDS, and so on. My inclination is to believe that in these investigations there has to be a way to marry fuzzy logic to causal reasoning if fuzzy logic approaches are to be useful – because in some circumstances (though definitely not in all) the law simply will not abandon its belief in or supposition of causes and effects.

7. Despite my puzzlement about the matter just mentioned in par. 6, I have a sort of global admiration for fuzzy logic because of my belief that (i) causal explanations of specific phenomena are generally necessarily incomplete both for specific events (“What made Jimmy's car cross the median”?) and (ii) causal accounts are necessarily incomplete theoretically speaking – simply because knowledge of causes of space-time events (if such causes exist) are necessarily imperfect –because human knowledge of the cosmos is necessarily partial. If you grant what I have just said, the capacity of formal scientific models to work and make fairly accurate predictions is something of a mystery. But the same is true of everyday commonsense knowledge of the world: Commonsense knowledge, language, concepts, etc., sometimes or often “work” even though they seem to rest on partial knowledge. This leads me to an inference (and I wonder what all of you think of my naïve insight): Ordinary language and concepts harbor much tacit but genuine knowledge – and this is what makes fuzzy logic useful, what makes some or many fuzzy logic applications possible. Supposing that this drift in my thinking has some validity, I am led to wonder whether formalizations of fuzzy legal ways of talking and thinking about causation might in some sense improve (and not just describe) the law's effort to “establish” the cause or causes of this or that event, events, state, or states. I await edification from the BISC community!

Fuzzy Logic & Causality

2011-10-28T19:41:00.003-04:00

Lotfi Zadeh asks some questions about causality:

Dear Members of the BISC [Berkeley Initiative in Soft Computing] Group:

Few concepts are as pervasive as the concept of causality. Causality has a position of centrality in medicine and legal reasoning. Causality is pervasive in everyday reasoning and decision-making. But what is widely unrecognized is that in the enormous literature of causality what cannot be found are theories which work in real-world settings--settings in which information is uncertain, imprecise, incomplete or partially true. If you know of a working theory developed by yourself or others, please bring it to my attention. I will admit that I am wrong if you are right.

All theories of causality founder on the rocks of multicausality. The problem is that in real-world settings multicausality is the norm rather than exception. I find it helpful to talk about multicausality in the context of a prototypical example which I call the Raincoats Problem, or RP for short. I am a manufacturer of raincoats. I would like to increase my sales. To this end I increase the advertising budget by 20%. Six months later sales have risen by 10%. Was the increase in sales caused by the increase in the advertising budget? Can a theory of causality come up with an answer to this simple question? This is the litmus test. What is the problem? The problem is that the increase in sales may have been caused by a variety of causants other than the increase in the advertising budget--causants such as rainy weather, improvement in economic conditions, lowering price of raincoats, etc. Some of the causants may be known and some not. Given this setting, the question should be restated as: To what degree was the increase in sales caused by the increase in the advertising budget? It is this question that cannot be answered by existing theories. In existing theories, causality is not a matter of degree--as it should be. What should be underscored is that the degree of strength of causality is not the same as the probability of causality. What is the meaning of: The probability that the increase in sales was caused by the increase in the advertising budget, is 0.8?

In the case of RP, a theory of causality should suggest a procedure for assessing the degree to which the increase in sales was caused by the increase in the advertising budget. One such procedure may involve interviewing all purchasers of my raincoats, to identify in each case what led to the purchase of a raincoat? The problem is that no such procedure can be devised. The problem becomes more apparent when the advertising budget is increased by 20% but the sales declined by 10%. Consider the question: Was the 10% decline in sales caused by a 20% increase in the advertising budget? How should it be interpreted? Can an existing theory of causality deal with this question?

As an underlying issue, causality plays an important role in political debates. Was the financial crisis caused by Wall Street? To improve the economy, the Federal Reserve lowered the interest rate from 1% to 0.8%. Six months later, the economic activity rose by 5%. Was the increase in economic activity caused by lowering the interest rate? Will a particular initiative cause a decrease in unemployment? Is Obama's stimulus program a success or failure? What lessons can be drawn from RP to answer such questions?

A sobering thought is that no theory of causality can answer such questions. Is Obama's stimulus program a success or failure? Republicans argue that it is a failure because the unemployment rate remains above 9%. The democrats can argue, counterfactually, that it is a success because without the stimulus the unemployment rate would be over 12%. The problem is that counterfactual arguments are much less convincing than factual arguments. Nevertheless, the fact remains that in the instance of political debates, most causality assertions can neither be proved nor disproved. It would be much more realistic to accept that basically causality is a matter of degree. Once this is accepted, debates will become less polarized. A fundamental conclusion is that in realistic theories of causality, causality should be a matter of degree. To put it another way, realistic theories of causality should necessarily be based on fuzzy logic. Having said that, a word of caution is in order. Introduction of degrees into theories of causality is an undertaking which is far from simple to formalize. Comments are welcome.

Regards to all,

Lotfi

-- 
Lotfi A. Zadeh 
Professor in the Graduate School
Director, Berkeley Initiative in Soft Computing (BISC) 

Address: 
729 Soda Hall #1776
Computer Science Division
Department of Electrical Engineering and Computer Sciences
University of California 
Berkeley, CA 94720-1776 
zadeh@eecs.berkeley.edu 
Tel.(office): (510) 642-4959 
Fax (office): (510) 642-1712 
Tel.(home): (510) 526-2569 
Fax (home): (510) 526-2433 
URL: http://www.cs.berkeley.edu/~zadeh/

BISC Homepage URLs

URL: http://zadeh.cs.berkeley.edu/

A Possible Difficulty with Subjective Bayesian Argument

2011-10-28T09:48:00.000-04:00

Hykel Hosni, "...Uncertain Reasoning," 5 The Reasoner No. 11, 196, 197-198 (November, 2011):

Going back to [Andrew] Gelman’s analysis of the standard view, he points out that one very negative consequence of subscribing to the bayesian bundle, is that it encourages bayesians to cultivate the bad habit of disregarding model checking. This, according to Gelman, depends crucially on the subjective view of probability which Bayesians embrace. One is easily reminded here of the classic line by F.J. Anscombe: “To anyone sympathetic with the current neo-Bernoullian neo-Bayesian Ramseyesque Finettist Savageous movement in statistics, the subject of testing goodness of ﬁt is something of an embarrassment”, F.J. Anscombe (1963, “Tests of Goodness of Fit”, Journal of the Royal Statistical Society. Series B Vol. 25, No. 1, pp. 81-94).

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A Very Interesting Monthly Magazine: The Reasoner

2011-10-28T08:44:00.000-04:00

Some of you may not be aware of the online monthly magazine The Reasoner. If you are philosophically inclined or are interested in matters such as logic, argumentation theory, and inference, I strongly suggest you subscribe (free) to this magazine.

The magazine's own blurb describes itself this way:

The Reasoner (www.thereasoner.org) is a monthly digest highlighting exciting new research on reasoning, inference and method broadly construed. It is interdisciplinary, covering research in, e.g., philosophy, logic, AI, statistics, cognitive science, law, psychology, mathematics and the sciences.

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Clifford Winston Asks: Are Law Schools and Bar Exams Necessary?

2011-10-25T16:53:00.000-04:00

Clifford Winston Are Law Schools and Bar Exams Necessary? New York Times (Oct. 24, 2011)
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Thinking about and Picturing Places and Events in Time

2011-10-24T01:35:00.001-04:00

Long ago a perceptive acquaintance suggested that time lines are not enough. Space-time lines are needed, he said. He had a point.

These particular space-time lines are designed to show, not the movement of things in time, but to show events over time associated with specific places (lots).

A more sophisticated version of this idea would have four dimensions (and would facilitate visualizing the movement of things and persons in space).

But some or many events associated with specific places happen in other places. Tricky complications.

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A Lesson in Probability by the Massachusetts Supreme Judicial Court

2011-10-21T22:41:00.000-04:00

A slight shudder goes over me when I realize that I am about to encounter another judicial disquisition on probability and factual inference.

I will give you the citation first, and I will discuss the opinion in a later post or posts: Commonwealth v. Ferreira, No. SJC-10902, 2011 Mass. LEXIS 977 (Oct. 21, 2011).

But I feel compelled to make very brief comment on two points now:

1. The case involved a pretrial identification. The prosecutor made an off-the-cuff argument about the improbability that the victim would have picked, out of two photo arrays containing a total of 14 people, two suspects who happened to know each other. Whether or not the court got the final result right, the court failed to understand the point of the prosecutor's argument about random selection.

2. Whether or not the court got the final result right, the court -- like practically every other court before it -- parroted vacuous and misleading cliches about the non-mathematical character of the reasonable doubt standard:

The prosecutor also erred in equating proof beyond a reasonable doubt with a numerical percentage of the probability of guilt, in this case, ninety-eight per cent. "[T]o attempt to quantify proof beyond a reasonable doubt changes the nature of the legal concept of 'beyond a reasonable doubt,' which seeks 'abiding conviction' or 'moral certainty' rather than statistical probability." Commonwealth v. Rosa, 422 Mass. 18, 28 (1996). "The idea of reasonable doubt is not susceptible to quantification; it is inherently qualitative." Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 806 (1985). See Commonwealth v. Mack, 423 Mass. 288, 291 (1996) ("the concept of reasonable doubt is not a mathematical one").

Compare P.Tillers & J. Gottfried, United States v. Copeland: A Collateral Attack on the Legal Maxim that Proof Beyond a Reasonable Doubt Is Unquantifiable?, 5 Law, Probability and Risk 135 (Oxford University Press, 2006).

David Brooks on Daniel Kahneman and Human Irrationality

2011-10-21T13:56:00.001-04:00

The New York Times Columnist David Brooks writes in praise of Kahneman & Tversky. He emphasizes the tendency of the work of Kahneman & Tevrsky to show that fhuman beings frequently act irrationally. Fair enough. But what Brooks needs to emphasize a bit more is that subconscious processes have both successes as well as failures -- and it is possible that the rate of success is as striking as or even more striking than the rate of failure. If that weren't the case, we probably would all have been dead a long time ago.

The question of to what extent and under what circumstances "unthinking" human beings make mistakes is pertinent to many debates about evidence in legal cases -- for example, about false eyewitness identifications. The proponents of eyewitness identification reform sometimes exaggerate the relative frequency of incorrect identifications and perhaps underestimate or underplay the capacity of the legal system to correct for such errors (for example, by allowing or insisting on multiple lines of evidence of identity and by allowing adversaries to test the accuracy of eyewitness identifications by using devices such as cross-examination and evidence about witnesses' eyesight and the circumstances under which an identification was made).

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Spindle Law Interview of Arthur Bryant

2011-10-21T02:33:00.000-04:00

See the Spindle Law Interview of Arthur Bryant

MarshalPlan 5.0 in Your Browser (Firefox)

2011-10-18T02:46:00.003-04:00

I just discovered, to my pleasure and surprise, that MarshalPlan 5.0, the most recent version of my evidence marshaling software, runs in Firefox 4.0 as well as in Firefox 3.x. To give the most recent iteration of MarshlPlan a trial spin, using Firefox 3.x or 4.0, click on this link and, when asked, accept the plug-in.

MarshalPlan 5.0, unlike MarshalPlan 4.0, has a stack that facilitates planning for the order of submission of evidence at trial.

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The dynamic evidence page

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

Trial Advocacy at Temple & Pretrial Fact Investigation

2011-10-17T11:10:00.001-04:00

What do think of Prof. Herb Kolsby's course (see below) on "speechmaking" by trial lawyers?

	1719 N. Broad Street Philadelphia, PA 19122 215-204-1857 law@temple.edu

TRIAL ADVOCACY

	Temple Law’s New Certificate in Trial Advocacy and Litigation.
	Herb Kolsby on Persuasive Speechmaking for Adversaries.

Certificate in Trial Advocacy and Litigation

Temple Law proudly announces the launch of our new Certificate in Trial Advocacy and Litigation.

Grounded in Temple’s ongoing commitment to legal education that bridges theory and practice, the Certificate in Trial Advocacy and Litigation offers a developmental and experiential curriculum, instruction from faculty and advocates who have proven themselves in the field, and live client clinical experiences.

	Participate in Temple’s award-winning full-year Integrated Trial Advocacy Program
	Take a minimum of 4 electives from a robust list of advocacy courses
	Join licensed attorneys in our path-breaking LL.M. program for instruction in Litigation Strategy and Courtroom Performance
	Serve as trial lawyers in one of 16 litigation clinical placements
	Learn about cutting edge issues from leading litigators in our Distinguished Advocates’ Lecture Series
	Gain insight into the courtroom process by serving as jurors, witnesses, and teaching assistants in mock trials and advanced trial advocacy courses

Temple Law has long been a leader in training trial lawyers. Our graduates are courtroom ready and litigation savvy. With the addition of the Certificate in Trial Advocacy and Litigation, Temple Law School formally recognizes this accomplishment.

Herb Kolsby on Speechmaking

Lawyers do two things in courtrooms: They ask questions and make speeches. Only at Temple Law can students take a class dedicated exclusively to one of these acts – speechmaking – taught by one of the best speech makers at the bar.

In Speechmaking, Herb Kolsby takes students through every stage of a trial, from voire dire to closing. Along the way, they learn that there are keys to persuasive speech; that lawyers need to become storytellers because juries decide based on the stories they hear; and that the visual, verbal, and vocal aspects of a speech must support the speaker’s goal in making it.

Enrollment is capped at 12, therefore students are required to make a speech in every class and then receive direct feedback both during class and in a private session with Professor Kolsby. Students study the fundamentals of speechmaking by applying Kolsby’s model to formal speeches like eulogies before turning to the range of adversarial speeches, from motions and objections to argument, opening, and closing. By the end of the semester, students understand how to persuade their listeners – every time they rise to speak.

Professor Emeritus Herb Kolsby ’51 is the former and founding director of Temple Law’s LL.M. in Trial Advocacy program. He is currently of counsel to Kolsby Gordon in Philadelphia and a fellow of the American College of Trial Lawyers.

I like the idea for the course by Kolsby. But I confess I would like to see more emphasis on pretrial preparation in the form of informal fact investigation and formal discovery. (To judge by the blurb below, this part of trial lawyering is missing from Kolsby's course.) Trial advocacy without meticulous pretrial preparation is lifeless, it is doomed to fail. But I am probably being unfair: There are other courses in Temple's program in advocacy and some of them probably deal in detail with pretrial fact investigation (which is my favorite shtick, see http://tillers.net/fi-course/fi-home.html).

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

FBI’s DNA database upgrade plans come under fire

2011-10-17T02:12:00.000-04:00

Paul Rincon FBI’s DNA database upgrade plans come under fire BBC News (Oct. 16, 2011):

A major upgrade of the Federal Bureau of Investigation's (FBI) DNA database system has come under fire from members of the forensic science community. The Codis system is used to generate the genetic profiles stored in the US national DNA database. The FBI wants to expand the number of genetic markers used by Codis to classify individual DNA profiles. But a former science chief at the bureau says the plan is not being driven by scientists' needs. Dr Bruce Budowle, along with colleagues Arthur Eisenberg and Jianye Ge, outlined the objections at the Promega 22nd International Symposium on Human Identification (ISHI) in Maryland, US. Another scientist told BBC News the changes were vitally important because they would set down how DNA profiles were recorded in the United States for perhaps "the next 20 years".

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

Controversy about Law School Data about Students' Employment Prospects Goes (More) National

2011-10-17T01:22:00.001-04:00

Mark Hansen, Senators Seek Decade of Detailed Law School Placement, Bar Passage and Student Debt Data ABA Journal (online) (Oct. 14, 2011):

Two U.S. senators have asked federal educational officials to turn over detailed information about law school enrollment, tuition, finances, job placement, bar passage and student debt rates over the past 10 years. In a statement Friday, the two—Sen. Barbara Boxer (D-CA) and Sen. Tom Coburn (R-OK)—said they were acting in response to "serious concerns" that have been raised lately about the accuracy and transparency of information law schools are providing prospective students.

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Evidence marshaling software MarshalPlan

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

The Brain: Stupid or Smart -- or Something Else?

2011-10-14T15:29:00.000-04:00

Some people believe that ordinary people are pretty stupid on the whole and prone to fall into all sorts of cognitive, visual, aural, tactile, etc., illusions & delusions. Camp 1. Some people believe the human brain is a remarkably sophisticated mechanism. Camp 2. Some people are agnostic on the issue of human stupidity v. human intelligence, and some people are indifferent to the issue. Camp 3.

I generally belong to Camp 2 -- while believing (as every sensible person should) that people should use whatever tools are available to augment their extant intelligence and capacities (so that they can build trains, planes, computers, etc., and do calculus, play chess, etc.). See, e.g., "Trial by Mathematics - Reconsidered," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1798906

Even the NYTimes is beginning to creep (ever so slightly) into this debate. See Christoper Chabris, "Is the Brain Good at What It Does?" http://www.nytimes.com/2011/10/16/books/review/is-the-brain-good-at-what-it-does.html?pagewanted=1&nl=books&emc=booksupdateema3

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

Simplicity (it is said) Is Not Always Better Than Complexity

2011-10-12T23:23:00.002-04:00

"The dissent, ... (opinion of SCALIA, J.), criticizes the complexity of our approach, but we, at least, are unwilling to sacrifice accuracy for simplicity. Simpler is not always better...." Michigan v. Bryant, 131 S.Ct. 1143, 1162 (2011) (Sotomayor, J., for the Court).

Of course, Scalia's real point was that the majoity's approach in Bryant is unnecessarily complex -- and disordered. But never mind about that: Justice Sotomayor succeeded in making her point in a catchy way.

The issue in Bryant was whether certain pretrial statements were "testimonial" or "non-testimonial" under the Court's current theory of the reach of the Sixth Amendment's guarantee of a right of confrontation in criminal cases. See Crawford v. Washington, 541 U.S. 36 (2004).

The truly troubling thing about the complex methodology in Bryant is its incoherence: The multiplicity of factors considered by Sotomayor (for the Court) serves as camouflage for the failure of the Court to give any grounds for the factors that Sotomayor and the Court chose to consider. (But this is a pickle that Scalia's opinion in Crawford created: In Crawford Scalia went to great lengths to try to make the reach of the Confrontation Clause independent of its purposes. Scalia effectively thinks that judges who confont confrontation problems should reason that the only purpose of confrontation is confrontation. However, even though some starting premises have to be granted or assumed, Scalia's preference for circular reasoning in this context is not viable: The purposes attributed to or discerned in Constitutional guarantees such as the Right of Confrontation will creep into judicial discourse willy-nilly More about this point later, dear Reader.)

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Evidence marshaling software MarshalPlan

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

QJustice 2012

2011-10-07T03:21:00.002-04:00

The planning for the conference QJustice 12, May 22-24, 2012, Lisbon, Portugal, is proceeding apace.

The three general conference topics are:

Module 1: Inference and causality;
Module 2: Consequentialism;
Module 3: Distributive justice.

Organizers & program committee members include

Rainhard Z. Bengez, TU Munich, Germany
Lothar Philipps, LMU – Munich University, Germany
Maria Fernanda Palma, FDUL – IDPCC, Portugal
Augusto Silva Dias, FDUL – IDPCC, Portugal
Paulo de Sousa Mendes, FDUL – IDPCC, Portugal
David Duarte, FDUL – Institute of Juridical and Political Sciences (ICJP), Portugal
Rui Soares Pereira, FDUL – IDPCC, Portugal
José de Sousa e Brito, New University of Lisbon, Portugal
José Manuel Aroso Linhares, University of Coimbra Law Faculty, Portugal
Giovanni Sartor, European University Institute, Law Department, Florence, Italy
Feliciana Tafuri, LMU -- Munich, Germany
Peter Tillers, Cardozo School of Law, Yeshiva University, USA
Joseph Gastwirth, George Washington University, USA
Scott Brewer, Harvard Law School, Harvard University, USA
Vern Walker, Hofstra University, USA

Institutional sponsors include:

Carl von Linde Academy, Technical University of Munich
Institute of Penal Law & Criminal Sciences, University of Lisbon Law Faculty
Portuguese Association for Law Theory, Philosophy of Law and Social Philosophy, Lisbon
Benjamin N. Cardozo School of Law, Yeshiva University, New York

Panelists include ... many interesting & important people (stay tuned for details).

Conference papers will be published, some of them in a special issue of Law, Probability and Risk, http://lpr.oxfordjournals.org/

QJustice 12 is part of a series of conferences organized by Rainhard Bengez, under the umbrella of the network "Quantitative Justice and Fairness." See http://www.quantius.org/ The general mission of this network is to address "the use, the limits and mediation aspects of formal/quantitive methods in connection with any of the the following topics:
* Ethics, moral theories and theories of human rights (e.g., assessment as of harms & benefits to other persons; quantitative models of justice and fairness)
* Legal theory (balancing rights and duties; formal and quantitative models of legal argumentation/justification)
* Law (quantification and the application of the law, e.g., compensation for economic harm, for pain & suffering; criminal punishment and deterrence)
* Analytical philosophy (ontology and metaphysics of quantification)
* Science, technology and legal responsibilities (neurosciences and the measurement of mind, assessing environmental and human impacts of dangerous technologies, responsibilities of scientists)
* Mathematics & Computer science (mathematical and computational approaches to model justice and fairness, e.g., game theory, geometry, fractals, etc)
* Evidence (mathematical & statistical analysis of factual inferences in trials; burdens of persuasion and proof)
* Economics (economic and decision-theoretic models of justice and fairness)
* Medicine & Health care (e.g., measuring the quality of medical care; allocating medical resources, etc)
* Theology (views in Buddhism, Christianity, Islam, Judaism, etc., of quantitative aspects of justice and fairness )
* STS - Science and Technology Studies (e.g. breaking down the black boxes of social behavior and social actions)
* Public Understanding of Complex Decisions and Mediation (e.g. how can a better understanding of our underlying quantitative measures and concepts be helpful in cross-cultural discussions, politics, etc. )

Quantitative Justice and Fairness | ::proportionality//humanity//reasoning//technology::

www.quantius.org

Fuller and Hart Want to Know: What Is a "Sidewalk"?

2011-10-06T12:57:00.001-04:00

H.L.A. Hart and Lon Fuller famously discussed whether roller skating in a park amounts to operating a motor vehicle in a park. Cf.

Monday, January 02, 2006

Riding While Under the Influence: Is a Horse a Vehicle?

and

Monday, April 04, 2011

The Hart-Fuller Debate Resurrected: What Is a Vehicle in a Park?

In September 2011 the Is-roller-skating-in-the-park-driving-a-motor-vehicle-in-the-park? hypo took on yet another guise. Marc Weber pointed out a case he was involved in: People v Pena (Joshua) 2011 NY Slip Op 21340 (Sept. 28, 2011). There defendant "was charged with riding a bicycle on a sidewalk in violation of section 19-176(b) of the Administrative Code of the City of New York, upon allegations that he rode the bicycle "on a pedestrian pathway inside the entrance of a [specified] subway station." The prosecutor argued that "'sidewalk' ... encompass[es] all manner of 'pedestrian conduits,' even those 'set back from the street.'" The court rejected this argument:

[W]e agree with defendant that the underlying information was facially insufficient since it failed to set forth, prima facie, defendant's commission of the charged offense. Even if established as true, allegations that defendant was observed riding a bicycle inside a subway station entrance would not make out a legally sufficient case that defendant violated Administrative Code § 19-176(b), an essential element of which is proof that the bicycle riding take place on a "sidewalk," a term narrowly defined in the ordinance as "that portion of the street ... between the curb lines or the lateral lines of a roadway and the adjacent property lines, intended for the use of pedestrians." We decline to adopt the People's broad reading of the term "sidewalk" as encompassing all manner of "pedestrian conduits," even those "set back from the street." Had the City Council intended to extend the definitional reach of the term "sidewalk" in [*2]such an expansive fashion, it would have been a simple matter to include appropriate language to that effect, as it did elsewhere in the Administrative Code (see Code § 7-201[c][1][b] [The Pothole Law], defining a sidewalk to include "a boardwalk, underpass, pedestrian walk or path, step and stairway"]).

This bicycle rider knows that the issue was never in doubt. Nothing in New York City constitutes a "sidewalk" for purposes of bicycle riding in New York City (if, that is, the rider proceeds slowly and cautiously and does not swear at pedestrians who obstruct his [her] path).
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A Useful Perspective on Life from the Late Steve Jobs

2011-10-06T01:07:00.001-04:00

Although I was not one of those people who wanted to deify Steve Jobs, he did make a perceptive comment a few years ago:

"Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose," Mr. Jobs said in a commencement speech at Stanford University in June 2005, almost a year after he was diagnosed with cancer.

Yukari Kane & Geoffrey Fowler, Steven Paul Jobs, 1955-2011 Wall Street Journal (Onloine) (Oct. 6, 2011).
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Criminal Educational Choice; Energy Production in the United States

2011-10-02T01:56:00.003-04:00

The following matter is not precisely on topic -- but it is interesting:

Micheal Flaherty The Latest Crime Wave: Sending Your Child to a Better School Wall Street Journal Onlline (Oct. 1, 2011):

In case you needed further proof of the American education system's failings, especially in poor and minority communities, consider the latest crime to spread across the country: educational theft. That's the charge that has landed several parents, such as Ohio's Kelley Williams-Bolar, in jail this year. An African-American mother of two, Ms. Williams-Bolar last year used her father's address to enroll her two daughters in a better public school outside of their neighborhood. After spending nine days behind bars charged with grand theft, the single mother was convicted of two felony counts. Not only did this stain her spotless record, but it threatened her ability to earn the teacher's license she had been working on.

The following item is even more off-topic (the topic of evidence and inference) but it is also very interesting:

Stephen Moore How North Dakota Became Saudi Arabia Wall Street Journal Online (October 1, 2011):

When OPEC was at its peak in the 1990s, the U.S. imported about two-thirds of its oil. Now we import less than half of it, and about 40% of what we do import comes from Mexico and Canada.

I fancy myself an old-fashioned liberal: I think economic welfare (both of the nation and the individual) is very important. Energy costs are therefore important in my mind.
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Oscar Handlin, Dead; "Anyone Can Be President"

2011-09-25T01:48:00.006-04:00

I got thrown out of my high school "Problems of Democracy" class for challenging the teacher when he said that anyone could become President. (I guffawed at the statement.)

Oscar Handlin, the eminent scholar of immigration to the United States, died recently. In the late 1970s he gave a talk to some group at Harvard Law School -- the Law & Humanities Fellows, I believe -- and he said that in America anyone could become President of the United States. I challenged that statement.

I admit it: I was a snotty kid.

But I wasn't wrong to challenge the statements of these two very different eminences was I? (It must be said, however: Oscar Handlin -- unlike my P.O.D. teacher -- was a genuinely warm and courteous person.)

It should be noted that in the U.S.S.R., as it was then, which I despised, anyone could become General Secretary of the Communist Party. It was theoretically possible for that to happen, was it not?

N.B. Henry Kissinger would have faced some special difficulties had he campaigned to be POTUS yes? I was born in Riga, Latvia, of parents who were not U.S.citizens. So my campaign for the Presidency foundered early, at birth actually.

P.S. My erstwhile high school P.O.D. teacher peddled moral rearmament He did that in the classroom, in a public high school. The days, they were a different then, at least in Columbus, Ohio.

Big Brother by GPS?

2011-09-25T01:14:00.001-04:00

I missed this article when it came out: Martha Neil, Secret GPS Tracking of Suspects, Without Warrants, OK’d By Courts ABAJournal (online) (August 13, 2008):

In what one critic describes as a signpost of our "always-on, surveillance society," police departments increasingly have been secretly using GPS, without seeking search warrants, to track the movements of uncharged suspects.

The satellite technology can be highly effective for this purpose: Although authorities are reluctant to discuss their investigative techniques, GPS has apparently resulted, for example, in the arrest of a convicted rapist in Virginia after a series of attacks on women in Fairfax County and Alexandria, the Washington Post reported. "After his arrest on Feb. 6, the string of assaults suddenly stopped." None involved a rape, notes an NBC article.

A Fairfax police detective had placed the device on the suspect's van, in a few seconds, while it was parked on the public street, the newspaper writes. It apparently helped them catch the suspect Feb. 6 as he was allegedly dragging a woman into a wooded area in Falls Church. He was not charged in any of the prior attacks.

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Juristerei (Legal Rigamarole)

2011-09-18T18:35:00.000-04:00

In Goethe's Faust Dr. Faust speaks the following lines when he first appears:

Habe nun, ach! Philosophie,
Juristerei und Medizin,
Und leider auch Theologie
Durchaus studiert, mit heißem Bemühn.
Da steh ich nun, ich armer Tor!
Und bin so klug als wie zuvor;
Heiße Magister, heiße Doktor gar
Und ziehe schon an die zehen Jahr
Herauf, herab und quer und krumm
Meine Schüler an der Nase herum-
Und sehe, daß wir nichts wissen können!
...
Bilde mir nicht ein, was Rechts zu wissen,
Bilde mir nicht ein, ich könnte was lehren,
Die Menschen zu bessern und zu bekehren.

A crude prose translation perhaps best conveys Faust's mood and sentiments:

Oh, I've thoroughly and passionately studied
Philosophy, law, and medicine
And also, I'm sorry to say, even theology.

Now here I am, poor fool.
And I'm just as smart as I was before.
I'm called "master" and -- would you believe it -- even "doctor."
For ten years I've led my students around by their noses, up and down, this way and that.
And in the end I see that it is impossible to know anything.
...
I don't fool myself that I know what's right.
I don't fool myself that I could teach anything that would improve or reform mankind.

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So the fellow turns to magic. Hmmm...

Confronting a Forgetful Witness

2011-09-18T12:27:00.003-04:00

In United States v. Owens, 448 U.S. 554 (1988), the United States Supreme Court appeared to hold that the mere presence of a prosecution witness in a criminal trial satisfies accused's Sixth Amendment right to confront that witness -- even if the witness has or feigns no memory of a hearsay statement that the prosecution offers against accused. However, as Colin Miller noted in a blog today, the Supreme Court of Mississippi recently held that this reading of Owens is incorrect and that the mere presence of the witness whose pretrial hearsay statement is used against accused does not satisfy the Sixth Amendment Confrontation Right. Goforth v. State, 2011 WL 4089967 (Miss. 2011). The Mississippi Supreme Court acknowledged that its reading of Owens is a minority view.

Will the prosecution seek review in the United States Supreme Court? If so, will the U.S. Supreme Court grant review? If so, will the U.S. Supreme Court slap down the Mississippi Supreme Court or will it say that its holding in Owens was a mistake -- or will it say, unconvincingly, that Crawford v. Washington, 541 U.S. 36 (2004), impliedly overruled or "undermined" Owens?

If the Court wishes to take this third tack, it faces the task of explaining why its "plain language" cum history approach in Crawford should not extend to the question of whether a witness can be said to "testify" against a criminal defendant merely by taking the witness stand. (But, having the last word, the Court does not always feel obliged to explain itself. The Court sometimes finds it is more convenient simply to ignore the plain language and meaning of a prior decision.)

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A Petition for More Transparency about Employment Prospects of Law School Graduates

2011-09-17T23:07:00.001-04:00

See this post.
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Charges and Evidence of Lax Screening Practices at Logan Airport on 9/11

2011-09-17T08:38:00.002-04:00

Ever since hearing (long ago) that one or more of the 9/11 hijackers had been asked to go through a weapon-detecting device at Boston's Logan Airport a second time after the initial pass-through had triggered an alarm, I had wondered about the claim that the 9/11 hijackings were unforeseeable and unpreventable. I had once lived in the Boston area and on 9/11/2001 (i) I recalled Logan Airport's reputation as a "patronage dump" for superannuated Massachusetts politicians, and (ii) I recalled earlier newspaper reports that some months or a year before 9/11 there had been government tests of the screening process at Logan and that these tests had revealed serious deficiencies in those procedures. Now -- with a trial impending -- we may finally learn more about the screening process at Logan and whether some part of it -- the part run by United Airlines -- was badly run. The lawyer in me, however, cannot resist also asking whether United Airline's prior screening practices at Logan will be admissible at trial.

The upcoming trial in (I gather) the United States District Court for the Southern District of New York concerns the death of "Mark Bavis, a 31-year-old passenger on Flight 175, in the only remaining wrongful-death lawsuit out of nearly 100 filed after the attacks." Benjamin Wesier, Court Filing Details Shortcomings of Airport Screeners on 9/11 NYTimes (September 16, 2011). The NYTimes claims that "documents" filed in this civil action show that "[t]he five terrorists who boarded United Airlines Flight 175 in Boston on the morning of Sept. 11, 2001, passed through a security checkpoint that was staffed by some screeners who could not speak or understand English, did not know who Osama bin Laden or Al Qaeda were, and, in one case, could not identify what Mace was...." Id.

The following passage in the newspaper article is the one that piqued the lawyer's side of this blogger's curiosity:

The Bavis lawyers, in their filing, contended that United had “a long history of failing to substantially comply with the federal aviation security regulations.” They cited a former United security executive retained as an expert by the plaintiffs, who contended that the airline had failed to heed warnings in the years before Sept. 11 about the need for greater staffing and training.

Will evidence of United's prior screening practices be admissible at trial? Or does such evidence fail to pass muster under Federal Rule of Evidence 406, the federal habit and routine practices rule?

The passage quoted above suggests that counsel for plaintiff plan to try to take advantage of one standard avenue for the admissibility of prior conduct that falls short of being a "habit" or a routine business practice: the other conduct is offered to show notice. This avenue is open in cases in which the law applicable to the case allows notice or foreseeability to be an issue at trial.

A more esoteric argument for admissibility would be that before the enactment of the Federal Rules of Evidence and Rule 406, federal law did not bar admission of evidence of non-routine or non-habitual other conduct of "unnatural" persons such as corporations and that, hence, on the question of the admissibility of United's pre-9/11 screening practices and failures, it is quite immaterial whether those failures were or were not "routine." Cf. 1A Wigmore on Evidence Section 98.1 (P. Tillers rev. 1983) (focusing on question of whether evidence of an organization's practices, routine or not, amounts to evidence of "character," which under some circumstances is barred by the "character evidence rule").

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Another Reminder of the Porousness of the Prohibition against Character Evidence

2011-09-13T18:28:00.002-04:00

In this prosecution for a variety of crimes, including securities fraud and obstruction of justice, United States v. Polusen, Nos. 08-4218; 09-3658, 2011 U.S. App. Lexis 17715; 2011 Fed App. 0235P (6th Cir. August 25, 2011), the Sixth Circuit Court of Appeals rejected a character rule challenge to the trial court's admission of defendant's acts amounting to spoliation on the ground that the spoliation evidence, the Court of Appeals held, was admissible to show "consciousness of guilt," which, the Court of Appeals held, is not the same as the sort of "character" barred by Federal Rule of Evidence 404:

In March 2008, Poulsen was convicted in the Obstruction Case of conspiracy, witness tampering, and obstruction of justice. Prior to his sentencing in that case, Poulsen filed a motion in limine in his Securities Case to exclude certain types of evidence, including his conviction in and the facts underlying the Obstruction Case. The district court denied this motion, holding that the "obstruction conviction and its underlying facts are admissible under Rule 404(b)."
...

Other bad acts are probative and admissible if relevant to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. (citing Fed. R. Evid. 404(b)). This list is "neither exhaustive nor conclusive." United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). Our courts admit "spoliation evidence, including evidence that a defendant attempted to bribe . . . a witness," because such spoliation evidence shows "consciousness of guilt." Id.; see also United States v. Anderson, 333 F. App'x 17, 24 (6th Cir. 2009). Poulsen's conviction in the Obstruction Case was supported by evidence of his attempts to pay Sherry Gibson to give favorable testimony. This evidence was not offered to prove Poulsen's character in conformity with this prior bad act but rather was offered as evidence of his consciousness of guilt. The district court was aware of this distinction and clearly stated how Poulsen's "prior acts" were admissible under Rule 404(b): "Evidence of witness tampering was admissible as an 'other purpose' under Rule 404(b) because it 'tends to establish consciousness of guilt without any inference as to the character of the spoliator.'" Because, as the district court recognized, evidence of Poulsen's "attempts to bribe Gibson to testify favorably at his fraud trial is probative of his consciousness of guilt," the evidence was admissible. We take no issue with this finding, and move on to the question of whether the district court abused its discretion in determining that the evidence was not impermissibly prejudicial.

Note that although defendant attempted to raise an entrapment defense, the Court of Appeals did not rely on Federal Rule of Evidence 405(b), which allows the admission of character evidence when character is an element of a claim, charge, or defense. Earlier in its opinion the Court of Appeals had held that the trial court had properly rejected a request for an entrapment jury instruction because defendant had not presented sufficient evidence at the trial to make his claim of entrapment a triable issue.

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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.

Run MarshalPlan 5.0 with Firefox 3.x

2011-09-13T02:42:00.001-04:00

Use Firefox 3.x and run MarshalPlan 5.0 in your web browser:http://tillers.net/MarshalPlan.5.0/Web/MarshalPlan.html

This will NOT work with Chrome. And it may or may not work with Internet Explorer.

The browser version of MarshalPlan 5.0 produces spoken versions of some of my explanatory notes.

The second card in my new order of proof stack does not wish to appear in my Firefox 3.x browser. If this happens to you as well, just click the arrow on this card to go to the next card. I will try to remedy the problem of the missing image on the second card in this stack sometime soon.

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The dynamic evidence page

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

MarshalPlan 5.0

2011-09-13T01:47:00.001-04:00

Go to this folder and download and run, from the sub-folders you see there, the version of MarshalPlan that works with your computer's operating system (Windows, MacOSX [Apple], or Linux).

MarshalPlan 5.0 has the beginnings of a stack (file) that you can use to plan the order of proof at a trial or evidentiary hearing, the order of submission of evidence at a trial or hearing.
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The dynamic evidence page

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

MarshalPlan Stack to Plan Order of Proof at Trial

2011-09-07T13:23:00.002-04:00

I am developing a new MarshalPlan stack.

This new stack is meant to ease the job of figuring out the order in which witnesses will or should testify and the order of the questioning of each witness. This my initial draft of the heart of such a stack:

The following diagram illustrates schematically how planning for the order of proof at trial might work out in a particular case:

Student Misery at Harvard Law School -- Now in the Past?

2011-09-06T15:15:00.000-04:00

"For most of the past fifty years, attending Harvard Law School was a miserable experience for the majority of its students." Kevin K. Washburn, "Elana Kagan and the Miracle at Harvard," 61 Journal of Legal Education 67, 67 (August, 2011).
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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.

Editor's Choice

2011-09-03T01:32:00.000-04:00

Law, Probability and Risk

EDITOR'S CHOICE

The following articles have been selected by the editor are available FREE online. Click on the article titles below to read them.

Discussion paper: The structure and the logic of proof in trials
Peter Tillers
Volume 10, Issue 1, March 2011

Irreversibility
Cass R. Sunstein
Volume 9 Issue 3-4 September-December 2010

What ‘Strengthening Forensic Science’ today means for tomorrow: DNA exceptionalism and the 2009 NAS Report
Prof. E. Murphy
Volume 9, Number 1, April 2010

Height measurements in images: how to deal with measurement uncertainty correlated to actual height
Gerda Edelman and Ivo Alberink
Volume 9, Number 2, June 2010

Is the civil ‘higher standard of proof ’ a coherent concept?
Ennis McBride
Volume 8, Number 4, December 2009

Painting the target around the matching profile: the Texas sharpshooter fallacy in forensic DNA interpretation
William C. Thompson
Volume 8, Number 3, September 2009

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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.

Proportionality and Quantitative Justice

2011-09-03T01:22:00.001-04:00

SPECIAL ISSUE: Proportionality and Quantitative Justice

Volume 10 Issue 3 September 2011

Articles

- Rainhard Bengez,
- Scott Brewer,
- Giovanni Sartor,
- and Vern Walker
Proportionality and quantitative justice. An introduction to the special issue
Law, Probability and Risk (2011) 10(3): 161-165 doi:10.1093/lpr/mgr014
- Full Text (PDF)
- Permissions
Select this article
- Peter Tillers
Trial by mathematics—reconsidered
Law, Probability and Risk (2011) 10(3): 167-173 doi:10.1093/lpr/mgr011
Select this article
- Scott Brewer
Logocratic method and the analysis of arguments in evidence
Law, Probability and Risk (2011) 10(3): 175-202 doi:10.1093/lpr/mgr013
Select this article
- Douglas Walton
Teleological argumentation to and from motives
Law, Probability and Risk (2011) 10(3): 203-223 doi:10.1093/lpr/mgr012
Select this article
- Joseph L. Gastwirth,
- Efstathia Bura,
- and Weiwen Miao
Some important statistical issues courts should consider in their assessment of statistical analyses submitted in class certification motions: implications for Dukes v. Wal-mart
Law, Probability and Risk (2011) 10(3): 225-263 doi:10.1093/lpr/mgr009
Select this article
- Daniela Tiscornia,
- Tommaso Agnoloni,
- and Maria-Teresa Sagri
Balancing rights and values in the Italian Courts: a statistical and conceptual analysis
Law, Probability and Risk (2011) 10(3): 265-275 doi:10.1093/lpr/mgr010

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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.

Fact Investigation & Dynamic Inference

2011-08-30T16:08:00.000-04:00

Inference is dynamic: It changes over time; it exists in a changing environment (the world is constantly changing, the actors who draw inferences change); inference suffers the slings and arrows of changing preferences, emotions, desires, passions, etc.; inference changes when subjective judgments change and when generalizations or beliefs about the world change; it often changes when the evidence changes, which evidence always does (to some degree); inference changes when standards of judgment (e.g., burdens of persuasion, or what decision theorists call "decision rules") change; and inference changes for yet other reasons I can't think of at the moment.

Fact investigation is also hard in part because, as someone, said, "Predictions are hard, particularly about the future." An investigator, who always suffers from some ignorance, must make decisions about what to investigate and what lines of investigation are worth pursuing. Such prophecies about future evidentiary rewards are intrinsically hard to make -- given the investigator's ignorance of the evidence that will ultimately be found (or not found). Cf. "value of information" theory.

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The dynamic evidence page

What Are the Most Useful Law School Courses?

2011-08-26T21:27:00.000-04:00

Nathan Koppel, One View on the Most Useful Courses in Law School (August 25, 2011):

Over at The Volokh Conspiracy [a blog], George Washington Law School professor Orin Kerr has written this useful item about a George Washington Law School survey that asked alumni which elective courses had proven the most useful to them and which electives they wish they had taken.

Here are the top 3 ranked courses on the usefulness scale:

1. evidence — (27% of respondents)

2. administrative law — (21%)

3. corporations — (18%)

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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.

Supreme Court Takes Eyewitness Identification Case

2011-08-24T22:11:00.001-04:00

The Supreme Court granted certiorari in an eyewitness identification case, Perry v. New Hampshire, No. 10-8974. The petitioner's brief states the issue thus:

QUESTION PRESENTED
Do the due process safeguards against the State’s use of unreliable eyewitness identification evidence at trial apply to all identifications which arise from impermissibly suggestive circumstances and which are very substantially likely to lead to misidentiﬁcation, or only to those identiﬁcations which are also the product of “improper state action”?
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The American Psychological Association submitted an amicus brief.

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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.

New Jersey Revises Its Procedures for the Handling of Eyewitness Identifications in Criminal Cases

2011-08-24T20:07:00.002-04:00

The opinion of the New Jersey Supreme Court is here.

The opinion in State v. Larry R. Henderson (A-8-08)(062218) (August 24, 2011) reviews a wide swath of literature and research about eyewitness identifications and lays down new rules governing judicial assessment and regulation of eyewitness identifications in criminal cases.

This long opinion requires careful study.

The decision, said to be pathbreakng, will probably prove to be pathbreaking only if it proves to be persuasive. The legal grounds for the decision seem to apply only to New Jersey. The New Jersey Supreme Court wrote:

10 We have no authority, of course, to modify Manson [v. Brathwaite, 432 U.S. 98 (1977) [a United States Supreme Court decision dealing with the the implications of the federal due process guarantee for the handling of eyewitness identification evidence in criminal cases]. The expanded protections stem from the due process rights guaranteed under the State Constitution. Compare N.J. Const. art. I, § 1 (“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”), with U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”); see Jamgochian v.N.J. State Parole Bd., 196 N.J. 222, 239 (2008) (“[W]e have, from time to time, construed Article 1, Paragraph 1 [of the New Jersey Constitution] to provide more due process protections than those afforded under the United States Constitution.”); see also State v. Reid, 194 N.J. 386, 396-97 (2008) (recognizing greater protection of individual rights under New Jersey Constitution).

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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.

Reflections on Campos v. Leiter: The Purpose(s) of Legal Education and Legal Scholarship

2011-08-24T05:56:00.002-04:00

In the grand scheme of things, it is not very important whether one "likes" Professor Campos more than Professor Leiter, or vice-versa. But the question of what ought to be taught in law schools is important.

Although I (now) personally prefer to pursue scholarship that makes some difference to the practice and administration of the law, in my preferred scheme of things there would be no single answer to the question of how law should be studied and taught at law schools. "All other things being equal," I would make scholarly & pedagogical diversity an important value; "all other things being equal," I would let different law schools pursue different pedagogical and scholarly objectives.
But if law schools are to be given the latitude to decide how their faculty members are to study and teach law, it is critical that law schools be up front about what they do and do not do for their students. Then students who have no interest in Rorty and similar matters could avoid law schools where Rorty's philosophy or whatnot is emphasized. But the hooker is the phrase "all other things being equal." For example, it is fair to ask if law schools are capable of transparency about what their faculty members do and do not do. And it is fair to wonder how prospective students are to judge the importance of Rorty and similar matters to the study of law before they know much of anything about Rorty, similar matters, or the law.
I also put to one side the important and troublesome question of whether publicly-funded law schools fall into a special category -- whether, because (and if) they receive (large amounts of) public money, such law schools cannot go whichever way they please and must do whatever (someone thinks, but who?) best prepares their students for work as legal professionals -- as practicing lawyers, judges, legislators, and so on.

N.B. The word "best" adds a inherently tricky wrinkle to the stated hypothesis about the obligations of state-funded law schools: "best" in what sense(s)?

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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.

An Academic Donnybrook: Professor Campos v. Professor Leiter

2011-08-22T20:05:00.003-04:00

It has now been made public (by Professor Campos) that Professor Paul Campos is the author of the blog Inside the Law School Scam. Professor Campos has used that blog and other outlets to attack alleged scams and frauds by law schools. These attacks have apparently aroused the ire of Professor Brian Leiter (but I have no personal knowledge of this). Professor Campos replied thus to Professor Leiter's presumed positions:

It is thus with a certain sadness that I note one of the leading lights of contemporary legal academia, Professor Brian Leiter, the Karl N. Llewellyn Professor of Jurisprudence and Director, Center for Law, Philosophy, and Human Value, at the University of Chicago Law School, has, I have been told, chosen to point out to the world that, in comparison to himself, I am a poor scholar and have reprehensible work habits, rather than responding to any of my arguments about the state of the contemporary law school. This is unfortunate, as who could doubt that someone with Professor Leiter's extensive training in the analytic philosophical tradition would not have many valuable contributions to make regarding such questions as precisely why law school costs have increased exponentially, even as the job prospects of law school graduates have declined? (When I was doing background research for this piece I was reminded that the law faculty on which Professor Leiter currently serves includes several legal academics whose own professional work is in every sense admirable. I can only imagine how pleased they are to have acquired someone with Professor Leiter's unique set of talents). Nor can anyone doubt that Professor Leiter would add a valuable voice to the debate regarding how much contemporary legal academic scholarship is actually worth the remarkably high price students are required to pay for it. One must admit that it would be unrealistic to expect someone as busy as Professor Leiter to take time away from the rest of his many professional obligations to note the substance of this blog, let alone that he should be expected to put in the effort necessary to evaluate the academic talents and personal character of its author. Professor Leiter already makes a significant sacrifice of his time and talents by maintaining a blog that catalogs in exquisite detail the professional comings and goings of legal academics and professors of philosophy. He also devotes his remarkably wide-ranging abilities to constructing and maintaining a set of law school rankings (as well as another one for philosophy faculties), that does a far more rigorous job of determining the precise academic quality -- or at least prestige -- of the publications of law school faculty than the rightly-reviled set published by U.S. News & World Report. Without Professor Leiter's exemplary work on the subject, legal academics and the world at large would both find it much more difficult to determine whether, for example, the faculties of the NYU and Columbia law schools have had the fifth and sixth greatest scholarly impact on their fields over the past five years, or vice versa. (Professor Leiter's deans and faculty colleagues must find it especially gratifying that his rankings consistently discover that whatever school currently employs him deserves a a higher spot in the legal academic hierarchy than is assigned to it in the USNWR rankings). Nor can anyone blame Professor Leiter for refusing to bring his expertise and experience to bear on such matters as the extent to which law schools actually train students to engage in some aspect of the practice of law, given that he has never held any professional position for which a law degree (let alone bar admission) is a requirement. On this subject, his silence reflects a becoming and characteristic modesty. I am hardly in a position to dispute Professor Leiter's evaluation of the quality of my scholarship, both because I haven't seen it, and because, as I believe Freidrich Nietzsche observed (or perhaps it was Lord Coke), no man should be a judge in his own case. That Professor Leiter's scholarship, touching on such complex and important subjects as those explored in "Rorty and the Philosophical Tradition: Comment on Professor Szubka." 25 Diametros 159 (2010)," and in "Explaining Theoretical Disagreement." 76 University of Chicago Law Review 1215 (2009) (also published in Spanish in Analisis y Derecho), neither of which I have read, but which I plan to give my full attention as soon as time permits, is of both the highest quality and the deepest relevance to the mission of the contemporary law school is a proposition that surely no one qualified to evaluate the question would bother to dispute. As for a comparison of our work habits and moral character, I have never met, let alone worked with, Professor Leiter, so I must regretfully leave such comparisons to the tools employed by others.

All of which is to say that I welcome substantive discussion and disagreement about the issues raised on this blog, but have no interest in pursuing evaluations of personal character and the like. No reasonable person can deny that, in the course of what to all outward appearances is a brilliant career, Professor Leiter has played the legal academic game superbly well, and I wish him the best of luck in his future endeavors (assuming, of course, that those endeavors do not involve any actionable statements regarding the targets of his ire). For the moment, it is enough to note that the kind of work he does has its rewards, and that which I do has others.

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The dynamic evidence page

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

46,656 Varieties of Bayesianism (at least)

2011-08-22T01:12:00.000-04:00

Legal theorists sometimes speak of "the" Bayesian interpretation of evidence, inference, proof, and probability. However, see Sharon Bertsch McGrayne, The Theory That Would Not Die 129 (Yale 2011):

Bayesian theories mushroomed in glorious profusion during the 1960s, and Jack Good claimed he counted "at least 46656 different interpretations," far more than the world had statisticians.1 [1. I.J. Good, "46656 Varieties of Bayesianism," Letter to the Editor, 25 American Statistician 62-63 (1971).] Version included subjective, personalist, objective, empirical Bayes (EB for short), semi-EB, semi-Bayes, epistemic, intuitionist, logical, fuzzy, hierarchical, pseudo, quasi, compound, parametric, nonparametric, hyperparametric, and non-hyperparametric Bayes. ... When asked how to differentiate one Bayesian from another, a biostatistician cracked, "Ye shall know them by their posteriors."

Australia's High Court on Difficulties with Conditionally Admitted Expert Evidence

2011-08-21T14:11:00.001-04:00

Dasreef Pty Ltd v. Hawchar, No. S313/2010, 2011 HCA 21 (High Court of Australia, June 22, 2011) (unreported judgment):

[¶ 121] Procedural advantages of a proof of assumption rule. A construction of s 79 which does not require establishment at the time of tender that there either has been, or will be, evidence admitted capable of proving the assumed facts permits more expert opinion evidence to be received. It permits postponement of the difficulties by seeking to solve them as questions of weight at a later time -- even as late as the end of the trial. 167 But increasing the amount of this type of evidence is not necessarily valuable. It may be unfair to the opposing party. It is indecisive. Its indecisiveness inflicts uncertainties on the parties. The additional evidence received may have a cloud over it for the rest of the trial.

[¶ 122] In contrast, a proof of assumption rule diminishes the risk of clouds. It encourages early and decisive rulings. Early and decisive rulings are important, both for the party opposing tender and for the tendering party.

[¶ 123] From the point of view of the party opposing tender, it is vitally important to know what evidence is or is not in, and how much utility expert opinion evidence is likely to have. That knowledge affects decisions about cross-examining the witnesses called by the tendering party; decisions by defendants whether or not to submit that there is no case to answer; decisions whether or not to call particular categories of evidence; and, if rulings are delayed until after the close of the trial, decisions about what is to be said in address. A practice of deciding whether a proof of assumption rule has been complied with at the time when expert opinion evidence is tendered avoids a dilemma for cross-examiners. One horn of the dilemma is that to cross-examine a witness about expert evidence which may later be rejected or treated as useless carries the risk of giving it a foothold in the record which it lacked at the time of the tender. The other horn of the dilemma is that, if the opposing party avoids that danger by not cross-examining on the expert evidence, there is a risk that it will be accepted despite its feebleness. It is a dilemma which cross-examiners should not have to face.

[¶ 124] From the point of view of the tendering party, it is desirable that the admissibility of expert opinion evidence tendered by that party be clear by the moment when the case for that party closes. It is undesirable that expert opinion evidence admitted in that party's case should later be held -- perhaps as late as the time of judgment -- to be subject to such doubts about its weight that it lacks utility. It is undesirable that its admissibility be in suspense until a time after the tendering party's case has closed. If the admissibility of expert opinion evidence which is tendered and conditionally admitted is not finally ruled on until after the case for the tendering party is closed, and the evidence is then rejected, or its weight has become so questionable that it is useless, the tendering party may have lost an opportunity to repair the position before its case closed, either by calling further witnesses or tendering further documents, or by recalling witnesses who had already been in the box. The capacity of tendering parties who are the prosecution or the plaintiff to reopen their cases rests on a discretion in the court which may not be favourably exercised; their capacity to tender evidence in reply is constricted by fairly strict rules, particularly in criminal cases.

[¶ 125] Jury trials. There are yet further difficulties in relation to jury trials. If evidence is rejected when tendered, the jurors are not confused by it, for they will ordinarily be absent during the debate about the tender: s 189(4) of the Act. If circumstances change and evidence once rejected becomes admissible, it can be re-tendered successfully. Again there is no risk of jury confusion. However, considerable confusion can flow where, although opinion evidence is admitted conditionally, later it becomes apparent that the condition is not satisfied. The evidence must be removed from the record, otherwise there would be no difference between conditional and unconditional admission. The same problems arise where opinion evidence is admitted, not on any formal condition, but simply in the expectation that at some time after the tender of the opinion evidence, witnesses will be called to establish the factual assumptions on which the opinion was pronounced, but that expectation is disappointed. In either event the jury will have heard evidence which is inadmissible. Should it be struck out? Should it be withdrawn from the jury? Should the jury be directed that the issue to which the expert's evidence was directed no longer arises? Should the jury be told not to consider the expert's evidence? Should the jury be told to disregard the expert's evidence on the ground that the factual basis has not been proved? 168 (168. See Wigmore, Evidence in Trials at Common Law, Tillers rev (1983), Vol 1 at 702-731 [Sections] 14 - 14.1 and 847-855 [Section] 19.) All these courses are possible. Each course is less attractive than a regime having a proof of assumption rule and a practice of rejecting the tender until it has been satisfied.

[¶ 126] And what is to be done with any evidence that was called in relation to that conditionally admitted but inadmissible evidence, whether it was elicited by the cross-examination of the party opposing tender or tendered by that party in its own case? That problem is reduced if decisive rulings about compliance with a proof of assumption rule are made.

[¶ 127] Conclusion. A construction of s 79 which holds that there is no proof of assumption rule in relation to s 79 tenders is difficult to reconcile with the practical exigencies pursuant to which parties conduct their cases. It is necessary for trials to be conducted in a businesslike and efficient way. That is a matter of context pointing to the view that there is a proof of assumption rule with which those tendering expert opinion evidence must comply by reason of ss 55, 56 and 79 read against the background of the common law.

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The dynamic evidence page

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

Most-Read Articles in ... Law, Probability and Risk

2011-08-20T18:18:00.000-04:00

See ... harrumph ... the most-read articles in Law, Probability and Risk in July 2011.

How to download or access my evidence marshaling software (MarshalPlan)

2011-08-20T00:44:00.006-04:00

A. Background

Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan."

Some of my more recent thoughts about the theoretical foundations of MarshalPlan may be found here (long blog post called "The Ramshackle -- and Logical -- Character of Explicit Human Factual Inference" (June 18, 2011)).

In the years following my seven(!)-year NSF-supported collaboration with David Schum, I continued to tinker with MarshalPlan. I did so by both modifying and adding "stacks," or files. (Each stack corresponds to an evidence marshaling strategy, or method.) The most recent iteration of the evidence marshaling software is MarshalPlan 4.0.

A few years ago I began to make MarshalPlan available via the internet. However, since I am not a programmer and since I lack many basic computer skills, I have not managed to devise a single method of accessing or download in MarshalPlan 4.0 that works for everyone. This is why I lay out below a variety of ways -- four ways -- for you to download or use MarshalPlan. Surely at least one of these methods of downloading or accessing MarshalPlan will work for you!

B. Caveats

Before you download or access MarshalPlan, however, please consider the following important caveats:

1. The current iteration of MarshalPlan -- MarshalPlan 4.0 -- is not a prototype of a working application suitable for real-time and real-world use. Far from it! However, MarshalPlan 4.0 goes beyond scratchings (text) that state how an evidence marshaling application might work. But it is not far from the truth to say that MarshalPlan is mainly an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take. But, but ... MarshalPlan 4.0 is a bit more than an illustration of possible future directions for research and development. MarshalPlan, as it now stands, is useful for pedagogical (i.e., teaching) purposes. Moreover, MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use.

2. In MarshalPlan 4.0 there are only brief explanations of some of the evidence marshaling strategies found there. Other marshaling strategies, however, are described and explained more fully. For a comprehensive account of the thinking that went into MarshalPlan, please see the readings mentioned above. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

3. A few buttons and links may not work. If that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)

4. MarshalPlan 4.0 is not set up to be linked to a database. This is a most serious deficiency for any possible real-world use in a context such as law practice.

C. Instructions

Try one or more of the following methods to view and play with MarshalPlan 4.0:

1. MarshalPlan on the web: If you use Firefox 3.x and you are willing to accept a plug-in, you may be able to view MarshalPlan 4.0 in your (Firefox) browser. To try this, click this link.

2. This is the simplest method and should work for almost everyone: Go to this folder and download the version of the software that works with your operating system (i.e., Windows, Linux, or some Apple operating system).

The main disadvantage of this method of downloading MarshalPlan is that some of the otherwise spoken explanations and notes appear only as text. But this is not a significant disadvantage -- unless you hunger for the sound of the (virtual) human voice.

3. To retrieve MarshalPlan 4.0 as a single long stack (file) for use on a Windows or Apple computer, first, go here to download and launch Revolution Player and, second, to download and launch (using the previously-downloaded Revolution Player) the stack (file) Network. (This download yields the most recent version of MarshalPlan 4.0.) Important: If you use this method to run MarshalPlan, instruct Revolution Player to look for "all files" rather than just files ending with the suffix "rev".

4. To retrieve MarshalPlan for Windows click on this link. Download all of the (many) Revolution stacks and "Revolution Player" into a single folder on your computer. These stacks have the suffix "rev".

If your computer doesn't use a Windows operating system, go here and download the version of the rev stacks you need. (This may or my not work. Try it.)

Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run Revolution Player and, using the Player, open all of the "rev" stacks. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks.

"Decision Fatigue" in Investigation?

2011-08-17T11:29:00.001-04:00

Fact investigation is a dynamic process in which numerous decisions have to be made (and revisited). Should investigators take special measures to avoid decision fatigue? See John Tierney, Do You Suffer from Decision Fatigue? NYTimes (August 17, 2011).

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The dynamic evidence page

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