Monday, May 19, 2003

Evidence Exam: Try Your Hand -- Risk-Free!

In my recent Evidence exam I returned to some of my favorite topics: impeachment, character evidence, constitutional right(s) of criminal defendants to adduce evidence and attack adverse evidence, and similar matters. I gave my Evidence students the take-home question found below. Try your hand! I will not question or criticize -- because I already have my hands full with the exam answers (and other materials) that I now have to grade.

Question

The State of Blackacre indicts Albert Accused. It charges him with the robbery and rape of Vila Victim on January 1, 2003. Albert Accused pleads not guilty.

At trial Vila testifies that Albert robbed and raped her on January 1, 2003.

During cross-examination Albert's counsel asks Vila if it isn't true that she suffers from delusions. Vila replies, "No."

Albert’s counsel also asks Vila, “Aren’t your charges against Albert a tissue of lies?” Vila replies, “No.”

Later in the trial Albert's counsel offers to have a social psychologist testify that Vila is a psychotic paranoid schizophrenic who suffers from delusions and makes false statements to relieve social stress.

The prosecutor objects to this proffered testimony. Albert's counsel argues that the testimony of the social psychologist is admissible to impeach Vila's credibility as a witness.

You are the trial judge's law clerk. Prepare a memorandum for the trial judge assessing the admissibility of the testimony of the social psychologist.

Friday, May 09, 2003

The Tournament of Legal Scholars and Legal Scholarship

Ridiculous? Ridiculous!

If two legal scholars have their way, elevation to the Supreme Court of the United States will depend on a tournament in which the pertinent measures of relative judicial merit will be matters such as “opinion publication rates, citations of opinions by other courts, citations by the Supreme Court, citations by academics, dissent rates, [and] reversal rates.” See Stephen J. Choi & Gaurang Mitu Gulati, Abstract of “A Tournament of Judges?,” Legal Scholarship Network: Law School Research Paper Series, 5 Univ. of California, Berkeley, Public Law & Legal Theory No. 3 (May 9, 2003) (Georgetown Law and Economics Research Paper No. 394700, UC Berkeley Public Law Research Paper No. 121, forthcoming in Cal. L. Rev.).

This proposal is both ingenious and bold; it deserves your careful consideration. But, legal scholars, take heed! Do not shoot yourselves in the foot (“feet”?)! There is danger here!

If the proposal by Messieurs Choi & Gulati for the selection of judges gains general acceptance, there is a fair chance that similar measures for assessing the status or worth of legal scholars, legal scholarship, and law schools will gain acceptance. That would be a great calamity!

I concede that my warning may be overdrawn, perhaps even alarmist. Consider the following points:

1. It is not seriously imaginable that legal scholars and law schools will allow themselves and their behavior to be influenced by transparently spurious measures such as rates of publication.

2. It is clear that legal scholars and law schools will know how to protect their own status and integrity.

• For example, legal scholars generally fully and readily recognize that only the judgments of their peers – the opinions of like-minded legal scholars in similar law schools – do and should count.

• Furthermore, our brothers and sisters (if I may be allowed this turn of a phrase), – the members of our brotherhood and sisterhood generally (and, sometimes, passionately) recognize that citation to their works by non-members of their scholarly fraternity/sorority – e.g., by courts – do not, should not, must not, and cannot count! (Judges are not qualified to judge the academic merit of academic work.)

• Finally, it is clear practically beyond any possible peradventure (to practically all legal scholars, in any event) that frequency of citation in non-law journals and books and, more generally, the standing of legal scholars and legal scholarship in the scholarly community at large are wholly irrelevant and must remain wholly irrelevant to the assessment of a legal scholar’s or law school’s qualifications, competence, standing, or worth.

 Even the discredited U.S. News & World Report ranking system – to which, of course, no respectable legal scholar or law school pays any heed – views such measures of academic standing as spurious and irrelevant.

 I do not mean to say that frequency of publications in law journals, particularly in estimable academic law journals – you know which ones I mean, dear Reader –, I do not mean to suggest that frequency of publication in such reputable journals should not count. To the contrary: publication in such law school journals is the only valid measure of the scholarly standing and achievements of law professors!

• Any fear that the use of such a measure of scholarly merit – the use of such a hermeneutic (“hermetic”?) circle – will tend to suppress originality is unwarranted. It is as plain as anything can be that creativity – like cream – always rises to the top. We legal scholars can count on each other, – we can count on the scholarly consensus among us, on our common opinions, to recognize, accept, and reward original and creative legal scholarship whenever and wherever it appears! Cf. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (general acceptance test of admissibility of novel scientific evidence). Do you need proof? Consider this: Did not U.S. law professors readily recognize (ca. 1972) the significance of the philosophy of Georg Wilhelm Friedrich Hegel (1770 - 1831)!?! This precedent suggests that your typical U.S. law professor will be equally quick to recognize the importance (and existence) of novel fields such as fuzzy logic, artificial life, and temporal logic. In any event, when law professors do engage with such novel material, they will sally into this unfamiliar terrain with their customary intelligence. Of this there can be no doubt!

Saturday, May 03, 2003

Simple Heuristics: Simply Smart or Simply Stupid?

It has become fashionable in some circles to assert that because of the complexity of the world -- let us call that world the "human environment" or just the "environment" -- and because of the consequent inability of conscious thought, of conscious or explicit analysis or propositions, to capture, or correctly describe, all important features of that complex environment, human beings both do and should use "simple heuristics" -- simplifying strategies that disregard some features of the environment --, human beings both do and should use simple heuristics and strategies to deal with complex problems in their environment that (by hypothesis) outrun the power of human thought.

I dissent.

This argument for such "simple heuristics" rests on a confusion between (i) the rules and principles that govern the behavior of complex organisms (such as cows, birds, and human beings) and (ii) explicit, or conscious, deliberation by complex organisms about their environment.

The mere fact that complex organisms are sometimes (indeed, probably almost always) incapable of explicitly formulating combinations of rules, principles, propositions, expressions, functions, and operators that describe how such complex organisms best adapt themselves (their behavior) to the world that those organisms inhabit does not demonstrate that complex organisms (such as human beings) are most apt to behave well in their environment if they deliberately decide to follow explicitly-formulated principles that ignore much complexity in the world.

This is a good guess: organisms such as human beings should rarely deliberately choose principles that render their cognitive processes -- their internal operating systems -- less sensitive to detail than those cognitive processes, or operating systems, presently are. Self-conscious organisms such as human beings should instead simply keep in mind that the principles that they manage to explicitly enumerate or formulate ordinarily do not remotely approach the complexity and sensitivity of the tacit cognitive processes that regulate and influence human behavior. The fact that explicit analysis ordinarily must play such a subordinate and deliberate role certainly does not demonstrate that human beings should decide to follow some set of crude explicit regulative principles that human beings happen to be able to formulate explicitly.

There is a better alternative: human beings should try to gain some conscious insight into their tacit cognitive processes in the hope that such insight may somehow enable tacit cognitive processes to work a bit better.

Consider birds. Some recent studies suggest that birds manage to migrate long distances only because their little bird brains do very complex calculations that take into account subtle differences in a wide variety variables such as the earth's magnetic field, the time of day, the time of year, wind speed, and altitude. To tell the bird to use a simpler heuristic -- e.g., pay attention only to sunlight, or sunlight and wind speed alone, dear bird! --, to tell the bird to use simpler proceures, heuristics, for finding its way around the globe will almost certainly doom the bird.

It is time to erase the trait theory of cognition (as well as the trait theory of human personality). Neither human personality nor human thought consists of a trait or some bundle of traits. The behavior of bees, birds, and human beings is the upshot of complex and nuanced operating systems that are remarkably attentive to remarkably fine environmental detail.

That's what I think! Does my view make sense? Or is my point of view for the birds?

Saturday, April 26, 2003

Picturing Dynamic Proof in Litigation

The Flow and Use of Evidence in Litigation

i = information, evidence
P = plaintiff
D = defendant
Ca … n = claim with elements a through n
Dx … z = defense with elements x through z
IA = institutional action (e.g., judicial ruling, verdict)

i
|
collect & analyze
|
\|/
P --marshal-->
deploy & persuade
|
\|/

| Ca .. n | Dx .. z |

------> IA
D --marshal-->
/|\
|
deploy & persuade
/|\
|
collect & analyze
|
i

Friday, April 11, 2003

Comment about Episode #1 of ExxonMobil Masterpiece's "The Jury"

I looked forward to this show, thinking, aha!, here, finally is a show that will tell us how jurors really talk and and deliberate about evidence; those people in the U.K., I thought, -- those sophisticated people in the U.K., unlike the buffoons in the good old U.S. of A., will get it right, I thought.

Ach weh! Disappointment!

Judging by episode #1: the show was produced by waugh-wannabees who, along the way, throw in some progressive social commentary & plot development, presumably to soften the impact of their acid view of human nature -- and, I imagine, to assure funding from non-profits to produce the series.

Perhaps worse yet, along the way, the producers of the show (probably unwittingly) manage to reproduce almost every imaginable class, cultural, and racial stereotype. In mitigation: the stereotypes in the show are those that, presumably, U.K. progressives hold, but, for all that, the stereotypes in the show are stereotypes.

So you see: I too can be a waugh-wannabee!

Thursday, April 10, 2003

An Evidence Conference

See http://tillers.net/inferencebelief.html



PROGRAM
for
Conference:
Inference, Culture, and Ordinary Thinking in Dispute Resolution
Cardozo School of Law
New York City
April 27-29, 2003


Sunday, April 27

9:00 - 11:00 a.m.

Invitation & Introduction

Peter Tillers:
Welcome & Introduction
***
Moderator: Samuel R. Gross

William Twining:
Keynote address

Eileen Scallen: Comment

Charles Nesson:
Jury transparency in a digital age

*******************************
Coffee & tea break: 11:00 - 11:15 a.m.
*******************************

11:15 a.m. - 12:45 p.m.

Culture, Risk & Responsibility

Moderator: Aviva Anne Orenstein

Phoebe C. Ellsworth:
Cultural variations in the concepts of agency and control

Samuel R. Gross & Anna-Rose Mathieson:
A cross-cultural discussion of the concept of error

Aviva Anne Orenstein: Comment

*****************************
Lunch break: 12:45 - 1:45 p.m.
*****************************

1:45 p.m. - 3:45 p.m.

Stories, Narrative, and Culture in Dispute Resolution

Moderator: Mirjan Damaška

L.H. Larue:
Solomon's judgment

Jerome Bruner & Oscar G. Chase:
The role of narrative in dispute resolution: a cultural-legal analysis

Richard Lempert: Comment

Florrie Darwin:
Culture and inference in negotiation

******************************
Coffee & tea break: 3:45 - 4:00 p.m.
******************************

4:00 - 5:30 p.m.

Culture and Patterns of Judicial Proof

Moderator: Oscar Chase

Mirjan Damaška:
On factors that influence fact-finding in the legal process

Burkhard Schafer:
Proof from a comparative perspective

***********************
Dinner: 5:30 - 7:00 p.m.
***********************

7:00 - 8:30 p.m.

Informal event: Roundtable discussion of evidence marshaling software. Participants: Henry Prakken, David Schum, William Twining, Burkhard Schafer & John Zeleznikow.


Monday, April 28

8:30 - 10:00 a.m.

Culture and Patterns of Judicial Proof (continued)

Moderator: Mike Redmayne

John Jackson:
The effect of legal culture and proof on decisions to prosecute

Richard D. Friedman:
The interplay between culture, structure of decision-making, and inference

********************************
Coffee & tea break: 10:00 - 10:15 a.m.
********************************

10:15 a.m. - 1:15 p.m.

Law, Culture, Uncertainty, and Epistemology

Moderator: John Jackson

Scott Brewer:
Skepticism, naturalism, and cultures of inference

Alvin Goldman:
Epistemology and the law

Susan Haack:
Advocacy and inquiry, finality and fallibilism

Mike Redmayne:
Objective probability and evidence

********************************
Lunch break: 1:15 - 2:15 p.m.
********************************

2:15 - 5:00 p.m.

Prejudice, Presuppositions, and Common Sense

Moderator: Branden Fitelson

Douglas Lenat:
[On formalizing, or "computerizing," commonsense reasoning]

Henry Prakken: Comment

David Schum: Comment

Burkhard Schafer:
Prejudice, presupposition, theory: why drawing inferences from prejudices isn't such a bad thing after all

Andrew Palmer: Comment

Charles Yablon:
A theory of presumptions

***********************************
Dinner break: 5:00 - 7:00 p.m.
***********************************

7:00 - 8:00 p.m.

Special videoconference event:

James Franklin:
Hidden priors and Bayesian heuristics

Branden Fitelson: Comment



Tuesday, April 29

9:00 - 10:30 a.m.

Formal Models of Methods of Reaching Conclusions about Matters of Fact

Moderator: Robert Mislevy

Henry Prakken:
Analysing reasoning about evidence with formal models of argumentation

Ronald R. Yager:
Modeling human perceptions using participatory learning and fuzzy logic

********************************
Coffee & tea break: 10:30 - 10:45 a.m.
********************************

10:45 a.m. - 1:00 p.m.

Inference, Science, and Social Science

Moderator: Roger Park

Edward Stein:
The admissibility of expert testimony about cognitive science research on eyewitness identification

Roger Park: Comment

David L. Faigman:
Making moral judgments through behavioral science: the "substantial lack of volitional control" requirement in civil commitments

Robert J. Mislevy:
Educational assessments as evidentiary arguments: what has changed, and what hasn't

************************************
Lunch break: 1:00 - 2:00 p.m.
************************************

2:00 - 2:45 p.m.

Objectivity and Credibility

Moderator: Edward Stein

Audrey Macklin:
Truth and consequences: determining credibility across difference

*************************
Coffee & tea break: 2:45 - 3:00 p.m.
*************************

3:00 - 4:30 p.m.

Inference, Induction, and Automation: Context and Distributed Investigation

Moderator: Henry Prakken

John Zeleznikow:
The Split-Up project: induction, context and knowledge discovery in law




Go to Conference Home Page



Saturday, April 05, 2003

War and Human Rights

I

Nat Hentoff, "Why I Didn't March This Time," Village Voice (March 28, 2003)(online):

I participated in many demonstrations against the Vietnam War, including some civil disobedience.... As I told The New York Sun in its March 14-16 roundup of New Yorkers for and against the war:

"There was the disclosure . . . when the prisons were briefly opened of the gouging of eyes of prisoners and the raping of women in front of their husbands, from whom the torturers wanted to extract information. . . . So if people want to talk about containing [Saddam Hussein] and don't want to go in forcefully and remove him, how do they propose doing something about the horrors he is inflicting on his people who live in such fear of him?"

I did not cite "weapons of mass destruction." Nor do I believe Saddam Hussein is a direct threat to this country, any more than the creators of the mass graves in the Balkans were, or the Taliban. And as has been evident for a long time, I am no admirer of George W. Bush.

The United Nations? Did the inspectors go into the prisons and the torture chambers? Would they have, if given more time? Did they interview the Mukhabarat, Saddam's dreaded secret police?

II

Edward Rothstein, "Looking for Roots of War and Terror" (review of Paul Berman, Terror and Liberalism(W.W. Norton), New York Times (Saturday, April 5, 2003)(online):

[Berman] traces the literary cults of "murder and suicide" and "acts of Satanic transgression" in 19th-century European Romanticism and nihilism. After World War I came death-haunted utopianism: Lenin's Bolsheviks, Stalinists and Spanish, Italian and German Fascists; later there came Maoists, the Khmer Rouge and sundry other ensembles. A totalitarian pattern developed: a lost past or a utopian future is sought, internal enemies are hunted (in many cases, Jews), an absolutist body of law is established and external enemies are fiercely attacked.

Similar patterns developed in the Middle East. The founder of Saddam Hussein's fascist Baath Party studied German Romanticism, including, Mr. Berman notes, "the philosophers of national destiny, of race and of the integrity of national cultures." ...

...

These Arab and Islamic movements have had nightmarish results, "fully as horrible," in Mr. Berman's words, "as the Fascism and Stalinism of Europe." In the Iran-Iraq war of the 1980's, more than a million people were killed, gassed and tortured. ...

...

The war now being faced, Mr. Berman argues, will take years on many fronts using many styles of confrontation and education — just like the cold war. What is needed, he proposes, is a "war of ideas" like the one that eventually toppled Communism, and one that will be accompanied by reform of Arab societies. He supports the war in Iraq but he believes that after a strong beginning, President Bush has failed to make the best case one could for the larger war on terror.

But old political lines are also breaking down and new ones are forming. ... [I]t is unclear how sympathetic many segments of the left would be with Mr. Berman's analysis. Liberalism and the left may now be even more split over the nature of the war on terror than they once were over the nature of Communism. At times, in fact, it seems as if politics is about to become a continuation of war by other means.

III

"British find 200 bodies, grisly photos near Basra," Reuters (April 5, 2003), in Boston Globe (online):

SOUTHERN IRAQ, April 5 -- The desiccated remains of as many as 200 people were found by British soldiers on Saturday in an abandoned warehouse in southern Iraq along with catalogues of grisly photographs of what could be torture victims.

Dozens of wooden coffins and plastic bags full of bones filled one building in the rundown military complex near Iraq's second city of Basra, said correspondents with British forces.

In an adjoining cargo container, soldiers found scrapbooks stuffed with faded photographs of corpses, most of which appeared to have gunshot wounds to the head.

Vanessa Allen, a correspondent with Britain's Press Association, reported that some of the faces had been burned, mutilated or scarred by horrific wounds.

...

Bundles of bones and scraps of military uniforms were visible inside the plastic bags....

... The teeth in some of the skulls were missing.

Outside the warehouse was a wall dotted with a spray of bullet holes, most at head height. Tiny concrete cells were discovered nearby.

... In several, rusting metal hooks dangled from iron poles embedded in the ceiling.

The Limits of Common Sense in Inference and Decision

Of course, not all decisions can be the result of nothing more than common sense.

Democracy, or politics, exists because common sense is not enough.

Some conflicts in preferences and judgments can be resolved only through choice.

So we need politics.

Even in law.

But there must be limits to choice, democracy, and politics in law.

What are they?

Do we need truth-in-labeling for factual inference and proof?

Perhaps.

Hypocrisy may be a particularly grievous wrong in politics and law: it may offend deeply, it may demean, wound deeply.

Hence, if a legal decision maker wishes to push preferences rather than inferences, perhaps (s)he should say so -- or, in any event, confess ignorance.

What say you all?

Is Common Sense Inscrutable?

Well, it can't be entirely inscrutable, now can it?

We manage to argue about it with each other ..

... and sometimes -- though less frequently than we would like -- we manage to hand over some of our common sense to our children, in part (I assume) because of what we say about it to our children.

So there is some reason to think that common sense is not wholly ineffable, completely otiose.

I like that word, "otiose." I hope I'm using it correctly. I mean -- roughly: "impenetrable to the mind's eye."

Stay tuned.

Making Sense of Common Sense in Inference

Residues of positivism present in this person persistently if painfully push the present person to proclaim that if we are to make sense of common sense we must -- at the extremes -- distinguish between common sense about "hard facts" -- e.g., soil, flowers, table tops, fog [a soft hard fact :-) ] -- and common sense about soft moral questions -- e.g., polygamy, deceit by doctors to alleviate patients' dread & fear.

But does the positivist distinction between values and hard, brute facts get us anywhere? There is, first, the considerable difficulty that in real-world affairs real-world people often do gather evidence when they confront moral and "normative" questions. See P. Tillers, "The Value of Evidence in Law," 39 No. Ire. Leg. Q. 167 (1988).

But there is a second difficulty, and it is perhaps more serious for present purposes.

The general object of my interest at the moment is not the question of the sense or nonsense of common sense about moral and normative issues. I am now investigating how much sense there is in our inferences about questions of fact. So it appears, does it not, that the positivist insistence on the distinction between "facts" and "values" is beside the point?

But wait ... er ... hold on ...

The positivist distinction between facts and values -- though it may not show that common sense about questions of fact is always sensible --, that distinction is perhaps not entirely beside the point.

Various observers have noted -- for decades! -- that questions of "fact" in legal proceedings sometimes and perhaps often have soft rather than hard edges and that -- worse(?) yet -- such "factual" issues often seem to have a moral or (at least) a normative character -- e.g., was the alleged tortfeasor's behavior about some matter "reasonable," did the used-car salesman make the representation in "good faith"?

So perhaps some of the uncertainty of judgments about such questions is attributable to the (alleged) inherent "subjectivity" -- which in this context means "unverifiability" -- of judgments about questions of (moral) value. (A close relative of this particular line of reasoning is that questions about matters such as "good faith" involve an admixture of [i] pure factual inference, deliberation about the existence or nonexistence of possible states of the world and [ii] "ascription" of moral or normative qualities or attributes to possible states of the world.)

But where do these ruminations leave us? They do not, it should be noted, address the possibility that at least some questions in legal proceedings about normative matters are questions about the existence or non-existence of some moral, normative, evaluative, or ascriptive criteria in some pertinent sector of the cosmos (e.g., on Tuller Street in Columbus, Ohio, in 1959) rather than the decision maker's -- e.g., a juror's or trial judge's or mediator's -- moral or normative preferences and sentiments.

And the reasoning above does not yet address the fact -- is it a fact? -- that the common sense -- or, in any event, the ordinary common sense -- of people about questions with hard edges also sometimes or often diverges (but perhaps people without much sound common sense about matters such as diseases, explosives, and diet live, in the long run, shorter or less satisfying lives).

Well, these last two objections are not necessarily fatal to the proposition that common sense about at least some types of questions ("almost always"? "generally"? "under the right introspective or dialogic circumstances"?) makes a great deal of sense. But the above objections and the above discussion do suggest that we need to make many, many distinctions if we are to make headway in our deliberations about the question of the reliability or unreliability of common sense and the question of the possibility of ridding ourselves (in legal proceedings, in any event) of rotten common sense.

Incidentally: Might it ultimately be both necessary and correct to suppose that some good ideas are buried in our heads and that (only) if we think about them well enough and conscientiously enough -- no Thrasymachuses here, if you please! --, that then (and only then) we can discern, disinter them, bring them to light? To wit: are some good ideas "hard-wired" in the human brain or mind?

Stay tuned!

Friday, April 04, 2003

Judicial Proof, Common Sense, and Common Nonsense

Being a common man and a bit of a populist, I am reluctant to admit it, but admit I must:

Common sense is sometimes nonsense.

See Marilyn MacCrimmon, "What is 'Common' About Common Sense: Cautionary Tales for Travelers Crossing Interdisciplinary Boundaries," 22 Cardozo Law Review 101(2001).

So if inference is a matter of common sense (see the preceding post), what follows?

Specifically: how do we distinguish common sense from common nonsense?

Note bene: It is not really possible to "scientifically validate" (or invalidate) or "empirically verify" (or disprove) all of the many common sense propositions that are deployed in even "simple" inference from "ordinary" evidence about a "common" factual issue. (Proof: just think -- carefully -- about any concrete -- any actual -- problem involving actual evidence and any real-world factual issue.)

But if "science" and empirical tests fail us, how do we -- how can we -- gain an external vantage point on our presuppositions and "common sense"? Is it -- inference, that is --, is it all then just a matter of personal preference -- or "politics" -- or prejudice?

Can "dialogue" save us? Introspection? Vox populi?

Stay tuned.

Common Sense and Inference

Evidence scholarship -- the kind of evidence scholarship conducted by legal scholars, I mean -- has a variety of common presuppositions. Two presuppositions -- or are they canards? -- are very common:

P or C #1: factual inference involves common sense.

P or C #2: common sense involves ineffable intuition.

But now consider this: Douglas Lenat is engaged in an audacious effort to "formalize" and "computerize" common sense knowledge and reasoning.

Is this project not only audacious, but also ... quixotic? Absurd? Bizarre?

Perhaps. But first give the man a break -- and consider the following account in Stanford Magazine (March/April 2002):

To become smarter, the former Stanford professor [Lenat] argues, computers don’t need faster chips or bigger memories. They need an infusion of common sense—all those ordinary facts and assumptions about the world that enable people to survive and communicate with each other. ...

The fruit of his work is Cyc, smart software that according to Lenat knows and applies common sense. Cyc’s schooling has consumed $60 million and 600 person-years of effort from programmers, philosophers and others—collectively known as Cyclists—who have been codifying what Lenat calls “consensus reality” and entering it into a massive database.

...

No other AI project comes close to Cyc’s scale and ambition, says Nils Nilsson, MS ’56, PhD ’58, an emeritus professor of computer science at Stanford. Though AI researchers acknowledge that the “common sense problem” has to be cracked, most are trying to solve it part by part, he says. “I don’t know that anyone is trying to master all of common sense, apart from Doug.”

...

After 18 years of painstaking tutorial sessions, Cyc now holds some 1.5 million mostly banal assertions of this kind, all rendered in a formal language developed for the purpose. A few examples:

Water is wet.

Every person has a mother.

When people die, they stay dead.

...

Will his brainchild live up to its billing? Vaughan Pratt ... expresses doubt. ... [Pratt, an emeritus professor of computer science at Stanford,] ... thinks the problem is Cyc’s premise. Instead of stuffing computers full of knowledge to make intelligent machines, he says, we need to focus on improving their ability to reason and manipulate facts.

Lenat derides this approach as the result of physics envy. He says many AI researchers are consumed with finding the “Maxwell’s equation of human thought”—a simple, elegant formulation that “you could put on a T-shirt and that would unlock the secret of intelligence.” Until that happens, Lenat says, his way is the only way to get a computer to learn common sense.

Is Doug Lenat a post-modern Don Quixote? Or does he hold an important key to intelligence, even human intelligence?

To find out, come to my conference on "inference, culture, and ordinary thinking in dispute resolution" in New York City! Doug will deliver his spiel on Monday, April 28, 2003, at 2:15 p.m. et seq.; and then Henry Prakken, Glenn Shafer, other panelists, and, yes, even you Dear Reader!, will have the chance to question Doug and challenge his views and his audacious bodacious project.

Sunday, March 23, 2003

Does Posner Say What Simon Says?

A friend -- another knowledgeable observer (who I think wishes to remain anonymous) --, this extremely astute and knowledgeable friend & observer has confirmed my suspicion that (Richard) Posner (in his recent paper on evidence) does not say what (Herbert) Simon says. But in mentioning information theory in my earlier post I was not trying to delve into theories of "bounded rationality," which are now much in fashion. [For one interesting collection of papers about this topic, see G. Gigerenzer & R. Selten, BOUNDED RATIONALITY : THE ADAPTIVE TOOLBOX (MIT, 2001).] I wanted, instead, merely to get a handle on the type of "search" or "value of information" theory that Richard Posner embraces in his recent paper on evidence in litigation.

My knowledgeable friend's comment indirectly supports a hunch that I had had about Posner's theory making rational decisions about gathering evidence: Posner's theory of "search" is an application of EU theory, "expected utility" theory -- or MEU theory, "maximization of expected utility" theory; or, SEU, "subjective expected utility" theory; or, a bit redundantly: MSEU, "maximization of subjective expected utility" theory --, a theory that, in this context, would assert, I would think, that a rational decision maker will or should continue to invest in gathering new evidence or information only as long as the marginal (expected) benefit of gathering new evidence exceeds the marginal (expected) cost of doing so -- or, more precisely, only as long as (S)EMC ([subjectively-] expected marginal cost) of gathering new evidence does not exceed (S)EMB ([subjectively-] expected marginal benefit) of gathering additional evidence. {My notation is both unorthodox and crude, but ... you follow me, right, Dear Reader?}

Dear Reader, is this -- such talk about subjective expectations of marginal benefits and the like -- does such talk capture (roughly) the way Posner thinks about the problem of determining an appropriate individual or institutional "stopping point" for further investment in information or evidence? {N.B. There is the complication that in an institutional context -- e.g., a societal context -- we would need to determine whose (subjective) expectations count. But let's leave this little(?) complication aside.}

Here again is my principal argument about Posner's account of evidence in litigation: if Posner does indeed adhere to a simple and "classic" version of value of information theory, the sort of simple MEU theory that I have just tried to describe, then my original thesis holds: viz., the project of calculating benefits and costs of acquiring additional (unknown) information or evidence becomes more difficult -- and, in extremis, perhaps impossible; or, in any event, rather mysterious, a bit ineffable -- to the extent that new evidence contains "surprises," to the extent that new evidence routinely generates new hypotheses or produces mutations in previous hypotheses.

Glenn Shafer has pointed out that bits of evidence often function as "hints," that bits of evidence suggest previously unimagined hypotheses and refinements of existing hypotheses. [Here I must concede, Dear Reader, that Shafer's emphasis seems to be on the capacity of evidence to produce refinements of existing hypotheses rather than on its capacity or tendency to generate entirely novel hypotheses.] If one thinks that the suggestive, abductive, or hint-like character of evidentiary details is pronounced, very substantial, one must, at a minimum, concede -- yes? no? -- one must then concede the possibility that the ability to calculate -- even intuitively -- the probable costs and benefits of acquiring previously unknown information or evidence is limited, perhaps radically limited.

Consider the converse proposition: if one is able to identify the hypotheses about which there is uncertainty (and about which one would like to improve the quality of one's judgments & guesses), then one may (sometimes) be able to make some good guesses -- if one has some knowledge of the pertinent portion of the cosmos, if one has some pretty good "ontologies" at hand -- then one may be able to make better than random estimates about the knowledge-payoff that will result if one takes the time, trouble, and resources to examine particular sources of evidence and information that one had not hitherto examined. But this sort of calculation becomes more "problematic" if one thinks that the process of examining previously-unexamined sources of evidence and information will generate new hypotheses or cause original hypotheses to mutate. (And if one cannot predict such hypothesis-mutation -- to any extent -- then the project of making guesses and estimates about the value of new information becomes altogether inconceivable, no? -- a fact that suggests that human beings to have, must have, some way of guessing about the value or fruitfulness of the "surprises" that acquisition of new evidence might generate. Right? Or? [The moral of this last hedge: it is not my ambition here to turn us all into radical fact-skeptics. I just want to have a theory of evidence that is adequate to the way the world, the mind, and evidence work. In reality, of course, human beings sometimes do {seem to} have an ability to sense which lines of factual investigation are likely to prove fruitful. This sense, one would think, characterizes both good detectives and great scientists.])

Saturday, March 22, 2003

Memory & Metaphysics

After many years of meaning to do so, I finally read Giuseppe di Lampedusa's THE LEOPARD. As an Evidence teacher -- and just as a simple human being -- I was struck by the following passage in the book's last chapter, "Relics":

If Tassoni had told the truth, then the long hours spent in savoring her hatred before her father's picture ... had been stupidity .... From the timeless depth of her being being a black pain came welling to spatter her all over at that revelation of the truth.

But was it the truth? Nowhere has truth so short a life as in Sicily; a fact has scarcely happened five minutes before its genuine kernel has vanished, been camouflaged, embellished, disfigured, squashed, annihilated by imagination and self-interest; shame, fear, generosity, malice, opportunism, charity, all the passions, good as well as evil, fling themselves onto the fact and tear it to pieces; very soon it has vanished altogether. And poor Concetta was hoping to find the truth of feelings that had never been expressed but only glimpsed half a century before! The truth no longer existed. Precarious fact, though, had been replaced by irrefutable pain.

***

Speaking of Charles Peirce (as I did in a recent post) I (once again, finally!) purchased a copy of Louis Menand's book THE METAPHYSICAL CLUB (2001). The book was well reviewed in the New York Times Book Review. I sense that the book will charm, but also edify, partly by making connections between the Americans and broader European intellectual trends. Will my hopes be met? In any event the telling of the story of the main characters -- Oliver Wendell Holmes, William James, Charles Peirce, and John Dewey -- surely cannot entirely disappoint!

Friday, March 21, 2003

Peirce Pronounced; Of Abduction, Seduction, and Deduction

Having mentioned "abduction" several times, I feel obliged to mention Charles Peirce, who, it seems, first gave "abduction" its modern philosophical-epistemological-logical connotation.

Having mentioned Charles Peirce, I feel obliged to remind you, gentle readers, that "Peirce" rhymes with "purse." The reason for this counterintuitive pronunciation, it is said, is that the aforesaid CP's surname is descended from the surname "Pers." See, e.g., 1 Peirce Project Newsletter Nos. 3/4 (December 1994). But, as with all things scholarly, there is some dispute about this explanation for the pronunciation of CP's "Peirce."

Having mentioned Charles Peirce and abduction, I also feel impelled to mention that when Peirce used the word "abduction" he probably generally had "deduction" rather than "seduction" in mind; i.e., he probably was thinking that the formation of possible conclusions by deduction is one thing; and by abduction, another. This hypothesis about CP's mental states, however, might also be disputed: CP was a notorious "womanizer."

A Further Note about Information Theory

Isn't the following proposition true: it is possible to calculate the probable benefits of acquiring unknown evidence only if one can make a judgment in advance that the unknown evidence will (certainly or probably) be pertinent to a hypothesis or hypotheses of interest; and, if so, isn't it true that to the extent newly-acquired evidence causes unanticipated and unforeseeable mutations in hypotheses of interest, to that extent it is difficult ("impossible"?) to calculate -- or, even, intuit -- the probable benefits of evidence and information that one does not yet have?

I wonder if my comments about Posner's theory of "search" should be directed at some version of what is sometimes called "value of information" theory. Can someone enlighten me on this point?

Varieties of Information Theory

There are various species of information theory. I by no means claim (see my prior post) that Richard Posner embraces all varieties of that theory. If Posner embraces information theory ("properly so-called"?) -- if Posner embraces information theory at all, he embraces a particular version of that theory. (A knowledgeable person has told me, for example, that Posner does not use Herbert Simon's version of this theory. Whether or not this is true, I don't know.)

I will do some research and post a further note later -- in a day or two, perhaps.

Law and Economics in Search of Evidence

To the extent that law and economics people think about the law of evidence at all, they tend to focus on the notion of "search." See, e.g., Richard A. Posner, "An Economic Approach to the Law of Evidence." The notion of "search" seems to be rooted in information theory. (Do I have this right? I readily confess to not knowing many curlicues in the law and economics field.)

My second assumption about the argument made by people such as Posner is that the notion of "search" concerns the problem of figuring out a rational strategy for investing in the acquisition of evidence or information when one has some uncertain hypotheses in hand and wants or needs to collect evidence or information that may tend to confirm or disprove those uncertain hypotheses. Posner (and other law and economics people?) seem to think ("assume"?) that the prescriptions of economic theory and information theory for dealing with this problem -- the problem, "When should one stop investing resources in information?" -- can explain much about (at least) a rational version of the law of evidence.

Perhaps information theory does shed some light on the treatment of evidence in litigation; I suspect that it does. But I suspect that information theory does not shed as much light on evidence in litigation as some law & economics scholars and similar people might suppose. That's because one key assumption that Posner and some other law and economics people make about evidence may not be "as true" -- or as often -- as such people suppose. I am referring to the assumption that the decision makers -- the players in litigation -- know what the (factual) issues are. This state of affairs -- i.e., perfect, certain, and complete knowledge of the hypotheses in question; i.e., perfect knowledge of the identity of the uncertain hypotheses that are in play --, this kind of certainty about what the issues are sometimes -- and, very probably, frequently or always -- does not obtain or does not fully obtain.

Any account of evidentiary processes in litigation -- the dynamics of evidence and inference in litigation -- must take into consideration that actors in the process of litigation sometimes -- and perhaps always; indeed, probably always --, actors in litigation are bereft of perfect or certain knowledge of the identity and countours of pertinent (uncertain) hypotheses (e.g., the factual issues "in contention" or "in play" in a particular episode of litigation) and that one of the central purposes for the gathering of evidence and information -- the "search" for evidence -- is the search for information -- evidentiary information -- that generates (suggests, inspires) new hypotheses or refinements of hypotheses (e.g., including, of course, factual hypotheses or issues in litigation). To wit (in fancy but accurate language): evidentiary trifles have "abductive" force.

A recognition that evidentiary trifles have suggestive or abductive force -- that they have the capacity to generate novel and unexpected hypotheses -- does not mean that what economists and information theorists have to say about "search strategies" is useless and pointless. But if evidence does have the capacity to generate novel hypotheses (or novel and typically-unforeseen refinements of hypotheses), it does follow that the search strategy that a decision maker employs -- and the kinds of search strategies that a system of legal rules permits or encourages -- must be much more subtle and supple and complex than the search strategy that might rationally be employed or favored when the hypotheses in play are known. This seems to follow because the premise that evidence has abductive force -- the hypothesis that evidentiary trifles, for example, suggest new hypotheses (and new refinements of hypotheses) --, this premise suggests that as new new evidence accumulates the number of hypotheses in play both can and will both mutate and greatly multiply. See P. Tillers, "Weighing Decisions about Proof in Litigation" (alternative title: "Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation"); P. Tillers, "The Explosive Dynamic Complexity of Evidentiary Processes" (alternative title: "Can AI Help Resolve Some Fundamental Puzzles of Judicial Proof?: Introductory Comments about the "Explosive Dynamic Complexity" of Evidentiary Processes associated with Litigation"); and P. Tillers, "Spotty Semiotics: Further Notes on the Unpredictability of Investigation & Proof in Litigation."

What say you all? Do I have it (roughly) right? Wrong?

Wednesday, March 19, 2003

Chirac: Man of Peace

William Drozdiak, "Gulf Crisis [1990] Ends 15 Years Of French-Iraqi Closeness; Paris Was Baghdad's Prime Patron in West," The Washington Post, First Section p. A-13 (October 12, 1990, Friday, Final Edition):

Jacques Chirac, prime minister under president Valery Giscard d'Estaing, launched France's quest for high-stakes contracts with Baghdad and soon cultivated a warm rapport with Saddam. Welcoming the Iraqi leader on a visit to France in September 1975, Chirac surprised even his staff by speaking of his affection for his "personal friend."    

A year later, France began constructing the Osirak nuclear research facility at Tammuz that would be bombed in 1981 by Israeli aircraft. Even though France insisted that sufficient controls would have prevented any misuse of the center, Saddam declared in 1976 that "the accord with France is the first concrete step toward the production of an Arab nuclear weapon."    

The close rapport established by Chirac between Paris and Baghdad persisted through several changes of government, as French politicians from right to left on the ideological spectrum helped sustain the strategic friendship. Even the left-wing Socialist Jean-Pierre Chevenement, the current defense minister, became so enamored of Iraq that he helped found the French-Iraqi Friendship Society in 1985.

***

Douglas Davis, "An explosion of Gallic chutzpah," Jerusalem Post, News p. 14A (February 14, 2003):

"The Americans think they have a monopoly on the truth, and they think they have a right to impose it on us," an outraged French guest told me at a smart dinner party in Paris last weekend. "Well, we don't accept it. We don't accept their imperial ways."    

Even the Picasso figure on the wall behind him, which had remained impervious to this haughty explosion of Gallic chutzpah, seemed to blush slightly when high principle turned to hypocrisy and then to outright opportunism.

***

Joshua Glenn, "The Examined Life; Chirac's Other Iraq Policy," Boston Globe, Section Ideas p. E3 (March 2, 2003, Third Edition):

   JACQUES CHIRAC'S OPPOSITION TO the Bush administration's march to war may have won him the applause of antiwar activists, but others have noted that the French president may have less than principled reasons for his position. After all, France has economic ties to Iraq, and Chirac has millions of Muslim voters to worry about, too. And a photograph which has recently been circulating online offers a mute, though eloquent, J'accuse of its own.

In this 1975 photo, then-Vice President Hussein is seen touring the Cadarache nuclear power station in France, accompanied by a bespectacled Chirac, France's prime minister at the time. Chirac freelanced a deal to sell Saddam two nuclear reactors, and arranged to have French nuclear scientists and engineers train their counterparts in Iraq-most of whom are now on the list of Iraqi scientists and engineers that UN weapons inspectors want to chat with. Not only did Chirac help build Iraq's "Osirak" reactor-the Israelis dubbed it "O-Chirac"-near Baghdad, but he also sought to ship Iraq weapons-grade uranium, even though a safer grade was available. (France's president, Valery Giscard d'Estaing, scotched the plan.) By the end of the Iran-Iraq war, Iraq was France's single largest arms customer; Iranians referred to Chirac as "Shah-Iraq."  In 1981, Israeli fighter pilots-including a 26-year-old Ilan Ramon, who died last month on the space shuttle Columbia-destroyed the Osirak reactor shortly before it was due to deliver nuclear capacity to Iraq. Chirac, echoing the views of many world leaders at the time, described the Israeli raid as "unacceptable."

Tuesday, March 18, 2003

Does the Character Evidence Rule Exist in Colorado?

The Supreme Court of Colorado says that such a rule does exist in Colorado. But if the reasoning in Colorado v. Rath, 44 P.3d 1033 (Colo. 2002), is followed, when (if ever) would the Colorado character evidence rule require the exclusion of the "other bad acts" of an alleged rapist or similar [alleged] miscreant -- or any alleged criminal miscreant of any kind (e.g., alleged robber, burglar, murderer, thief)?

Of course, irrelevant bad acts would {presumably} still be inadmissible in Colorado. But Colorado trial judges don't need a character evidence rule to figure that out: the familiar maxim that irrelevant evidence is inadmissible should suffice.
If the Colorado Supreme Court wants to do away with the character evidence rule in Colorado, perhaps it should 'fess up and do so openly.