The Early Life of Korba the Dread

See the book review in the NYTimes of Simon Sebag Montefiore, Young Stalin (Knopf, 2007). Tagline: Stalin was no dummy. He was even a poet. But he was definitely a thug.

A Pean to Vasily Grossman's Life and Fate

See the (slightly belated) book review in 29 London Review of Books No. 20 (October 18, 2007). The reviewer is John Lanchester. The title of the review: "Good Day, Comrade Shtrum." (The caller is the dread Korba, Iosif Vissarionovich, Stalin.)

"Do You Believe in Sociobiology and Law?" - Chapter II

If so (and even if you don't), see the lovely and incisive essay: Jerry Fodor, Why Pigs Don't Have Wings, 29 London Review of Books No. 20 (October 18, 2007).

Freedom Vel Non Sometimes Hangs on a Hair -- or on a Confession

Steven Avery's (earlier) freedom hung on a (single) hair. His alleged accomplice's freedom, it appears, will hang on a confession. See John Lee, Dassey appeal will focus on confession, greenbaypressgazette.com (October 17, 2007). [I proclaim: The day has come when many newspapers will be known by their URL name rather than by their hard copy newspaper name.]

For the story of Steven Avery, Penny Beerntsen, the judicial exoneration of Avery for the brutal rape of Penny Beerntsen, and the story of Avery's subsequent murder of Teresa Halbach -- subsequent to his exoneration for the crime committed against Penny Beerntsen, see, e.g., here and here.

Perhaps in the Dassey appeal we will witness a reprise of the Central Park Jogger Case?

The story of the confessions in the Central Park Jogger case has gone into the history books as a "case study" in how confessions can go wrong and mislead. But the question of the truth or falsity of the confessions in that case is very probably much more complicated than the emerging dominant legend has it. My own guess is that the the Central Park Jogger case -- like the Clarence Thomas-Anita Hill imbroglio -- is a controversy that involves degrees. By this I do not mean to advance the true but (in this context) trivial statement that judgments about historical events are always subject to some degree of uncertainty. I mean instead to emphasize the simple notion of partial truth: it is entirely possible -- and, I suspect, very probable -- that some parts of the confessions in the Central Park Jogger case are true and some parts are false.

It is also possible that some, many, or all of the confessions in the Central Park Jogger case were shaded by the confessors in an effort to deflect suspicion away from the individuals doing the confessing. I remain disturbed by the possibility that Reyes had a motive to make a false confession. And, as always, I insist that DNA evidence by itself is never conclusive evidence of guilt or innocence in any case (see, e.g., here (DNA Redux to the Fourth Power, September 8, 2002) and here). The probative force of DNA evidence depends on a myriad of surrounding circumstances and assumptions. In the Central Park Jogger case, for example, there are multiple scenarios that could explain how the defendants in the Central Park Jogger Case might have been guilty of attacking the Central Park jogger even though only the DNA of Reyes, who was not one of the people charged with and tried for attacking the jogger, was found on the body of the jogger-victim.

But back to the Steven Avery and Brendan Dassey cases. I appear to be one of the very few people on earth who harbors any serious doubt about Steven Avery's innocence of the brutal rape of Penny Beernsten; as I explained in earlier posts -- here and here, a quirk might explain why the hair of a prison colleague of Steven Avery was apparently left on Penny Beernsten's body at the time of the rape. (It is possible that Avery was the carrier of that hair. Avery and his prison colleague lived near each other, and perhaps they were friends or acquaintances, and perhaps Avery's friend visited Avery at his home or had other physical contact with Avery.) I hope that modern folk wisdom dressed up as science -- this time, folk wisdom about confessions -- will not lead in this instance -- in the instance of --- Brendan Dassey -- to the exoneration of a guilty man.

Part of the the reason I worry about the possibility that one of Halbach's actual killers will be improperly "exonerated" is that I still shudder at the possibility that Penny Beernsten was led, probably through no one's moral fault, to hug her rapist and , to apologize to the man who perhaps actually brutally raped and assaulted her for her supposedly mistaken identification of him as the rapist.

&&&

It occurs to me that only the actual words of apology that Peggy Beernsten uttered can fully explain why I shudder at the possibility that Avery was exonerated of a gross crime that he actually committed. Thus Peggy Beernsten, in her own words:

A couple of years after the attack I remember saying to my therapist that although I felt my assailant needed to be in prison, I was struggling with the knowledge that he'd left five children behind. She didn't understand this; like most people her attitude was, “You should want to kill the son of a bitch.”
... It happened in a beautiful place. I was out jogging when a man grabbed me from behind and pushed me into a wooded area. When I screamed, he choked my windpipe; when I fought back as he tried to rape me, he began beating and strangling me. Finally I lost consciousness. My last thoughts were: “I wish I'd kissed my son goodbye this morning” and “my daughter’s last vision of me will be of my dead, beaten body.”
Two good Samaritans found me, bleeding and naked in the sand dunes. ...
Later [the police] put nine photos by my bedside. I presumed the suspect was among them. Steve’s photo was in there and I selected it. ...
At the live line-up I looked at eight men and again picked out Steve Avery. I had selected his photo, and his image had become enmeshed with my memory of the real assailant. In my mind, Steve was the only person in those photos and in that line-up. As it turned out, my actual assailant was in neither.
...
After the assault I went into a deep depression. ... Then one day I read about a young woman, ten years younger than me, who had gone out jogging and been murdered. As I heard how her strangled body had been found in a swamp, I realized that I’d been given a second chance, whereas she had not.
At about the same time I heard a talk on Restorative Justice by a man called Dr. Mark Umbreit. He talked about how liberating it can be for victims to let go of their anger and hatred, and suddenly I felt a huge weight lift. At the next break I headed out to the state park where the assault had taken place. For the first time I wasn't afraid.
...
Then, in 2001, Steve’s attorney contacted The Wisconsin Innocence Project, who agreed to help with his case. A year later there was a motion to release additional biological materials for DNA testing. Two hairs were tested: one was identified as mine, and the other belonged to someone else – but that someone was not Steve Avery. In the CODIS database they got a direct hit with a man named Gregory Allen, who in 1995 had brutally raped a woman in Green Bay, Wisconsin, and was subsequently serving a 60-year sentence. Gregory Allen looks very much like Steve Avery.
When my attorney told me that the judge had reversed the verdict, I wanted the earth to swallow me. After all, I was partly responsible for identifying the wrong man, and no one can give Steve back those lost years. Not a day goes by when I don't think about the woman Gregory Allen raped in 1995, or wonder how many other women’s lives were drastically altered in those years when he was walking free.
I sunk into another deep depression and, feeling utterly powerless, wrote Steve a heartfelt apology letter. In it I stated that I felt like an offender and offered to meet with him. I'm so grateful that he agreed.
Steve is a very quiet man, but he gave me a hearty handshake and I told him how terribly sorry I was. After a bit, I asked if his parents would like to come in so I could apologize to them too. He said his mother would be OK but that his father was still kind of bitter. But in the end both of them agreed to meet me.
When it was time to conclude the meeting I stood up and went over to Steve and said, “Is it alright if I give you a hug?” He didn't even answer but just grabbed me in a big bear hug. Then I whispered, “Steve, I'm so sorry.” And he said, “Don't worry, Penny; it’s over.”
That was the most grace-filled thing that’s ever been said to me ...

Peggy Beernsten was speaking about a man who mutilated a cat, murdered a young reporter, probably dismembered the reporter's body, and torched the reporter's car in an effort to conceal his crimes.

Still More Advance Papers on Visualization of Evidence and Inference in Legal Settings

Please see Law, Probability and Risk advance papers web page:

17 October 2007

Bart Verheij, Argumentation support software: boxes-and-arrows and beyond, Law, Probability and Risk Advance Access published on October 17, 2007. doi:10.1093/lpr/mgm017

Neal Feigenson and Richard K. Sherwin, Thinking beyond the shown: implicit inferences in evidence and argument, Law, Probability and Risk Advance Access published on October 17, 2007. doi:10.1093/lpr/mgm016

John L. Pollock, Reasoning and probability, Law, Probability and Risk Advance Access published on October 17, 2007. doi:10.1093/lpr/mgm014

A Public Relations Disaster -- for Whom?

Whose "fault" is it if an archdiocese in California sells off convents, orphanages, schools, hospitals, or hospices etc. to pay damages in a clergy sex abuse settlement? Some newspapers know the answer, of course: the archdiocese. See, e.g., With Malice toward Nuns, Slate (October 4, 2007). But perhaps one should at least admit the possibility that facilities for worthwhile charitable and religious work will have to be sold even after "lavish" or "unnecessary" church facilities are sold? Moral: there is no free lunch; there is a price for everything, including enterprise liability of non-profits for the wrongful acts of the enterprise's agents.

N.B. I have lived too long to believe all pieties, including the piety that plaintiffs' lawyers are only interested in doing good or that any and every recovery on behalf of wronged plaintiffs adds to justice. Sometimes it just 'tain't so; e.g., some lawyers (and plaintiffs) act mainly out of mercenary motives and sometimes the wrong people are made to pay for the wrongs and sins of others -- and sometimes the alleged wrongs that lead to settlements did not occur. My nostrils tell me that although sexual abuse of minors by Catholic clergy was (and presumably still is) a very real phenomenon, some archdioceses are settling for grand sums mainly to buy peace, and not because they believe that they are or should be morally or legally responsible for all or most of the sexual predations that are alleged in "survivors'" lawsuits. (I wonder: Does the southern California $600 million settlement foretell the demise of hierarchically-organized religious organizations in the U.S.A.?)

How Far Is the Farthest Star (not galaxy) that We Human Beings Have Seen?

I'm not sure of the answer to my question. But I can report a report that a supernova at a distance of five billion light years has been observed. See NASA's Astronomy Picture of the Day for October 16, 2007.

Another way of expressing this distance: 186,282 x 60 x 60 x 24 x 365.25 x 5,000,000,000 = approximate number of miles; alternative: 5,878,625,373,183 x 5,000,000,000; alternative: very roughly (slight exaggeration): 30,000,000,000,000,000,000,000 miles

This supernova is so bright that it can be seen with a small telescope.

Is the structure of the brain more majestic than the structure of the universe? Or are these two structures equally majestic -- and, indeed, will knowledge of one eventually require and entail knowledge of the other -- or, indeed, is such conjoint knowledge of the macrocosmic and the microcosmic already at work?

Wikipedia and the Law of Evidence

Wkipedia is, I guess, a vast experiment in knowledge organization -- or ... whatever.

In the case of the law of evidence, the experiment is almost a complete failure. See entry Evidence (law). The quality of the entry is ... abysmal.

More Advance Copies of Conference Papers on Visualization of Evidence & Inference

Advance copies of the below papers on visualization of evidence and inference are now available on the website of the Oxford journal Law, Probability and Risk. The hard copy special issue with 20+ papers and comments will be published this November or December.

Douglas Walton, Visualization tools, argumentation schemes and expert opinion evidence in law, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm033

Tim van Gelder, The rationale for Rationale, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm032

Ron Loui, Comment on the Cardozo conference on graphic and visual representations of evidence and inference in legal settings, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm028

Thomas F. Gordon, Visualizing Carneades argument graphs, Advance Access published on October 10, 2007. doi:10.1093/lpr/mgm026

Dale A. Nance, The inferential arrow: a comment on interdisciplinary conversation, Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm035

John D. Lowrance, Graphical manipulation of evidence in structured arguments, Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm011

David A. Schum and Jon R. Morris, Assessing the competence and credibility of human sources of intelligence evidence: contributions from law and probability, Advance Access published on August 28, 2007. doi:10.1093/lpr/mgm025

Vern R. Walker, Visualizing the dynamics around the rule–evidence interface in legal reasoning, Advance Access published on August 19, 2007. doi:10.1093/lpr/mgm015

William Twining, Argumentation, stories and generalizations: a comment, Advance Access published on August 13, 2007. doi:10.1093/lpr/mgm008

Kevin D. Ashley, Comment on Lowrance's ‘Graphical manipulation of evidence in structured arguments’, Advance Access published on July 23, 2007. doi:10.1093/lpr/mgm012

Floris Bex, Susan van den Braak, Herre van Oostendorp, Henry Prakken, Bart Verheij, and Gerard Vreeswijk, Sense-making software for crime investigation: how to combine stories and arguments, Advance Access published on July 7, 2007. doi:10.1093/lpr/mgm007

Amanda B. Hepler, A. Philip Dawid, and Valentina Leucari, Object-oriented graphical representations of complex patterns of evidence, Advance Access originally published on May 24, 2007. This version published June 13, 2007. doi:10.1093/lpr/mgm005

New blog: Open to persuasion

See the fascinating new blog by David Price: Open to persuasion.

It appears that even the office of the prime minister of the UK is interested in strategies for mapping argument, in this instance public argument and debate about political, economic, and social issues.

David Price has software. He calls it Debatemapper. It is online software ("cloud software"?). It is free. Go to http://www.debatemapper.com to get the story (and the software) firsthand.

Your assignment, dear Reader: Discuss the links between Debatemapper and procedures such as neo-Wigmorean charting of inferential argument from and about evidence! (Thank you.)

Evidence-Based Law Librarianship?

There is a phenomenon known as evidence-based medicine (EBM) or evidence-based health care (EBHC). The movement toward EBM -- at least when denominated as such -- seems to be centered in the UK. There is substantial controversy about EBM. Now there is a proposal to explore the possibility of evidence-based (law) librarianship (EBL). See Evidence-Based Librarianship: An Opportunity for Law Librarians?

Reflections on Justice Thomas and the Story of His Life

Many readers and most of the media will be interested in Justice Clarence Thomas' memoir mainly because of what the memoir says or hints about Justice Thomas' views about constitutional treatment of matters such as race and abortion. However, personal perspectives and experiences will strongly affect the way the ordinary reader reacts to Thomas' account of his life.

Race plays a central role in Thomas' account of his life. (His bitterness about racial slights and racial mistreatment may surprise some readers.) I am "White" and I have not experienced racial slights and discrimination. However, poverty is also an integral part of the story that Thomas tells. I found this part of Thomas' story to be particularly gripping. This is surely because I also grew up poor. (Some of the time Thomas was poorer than I was, but -- believe it or not -- much of the time I was poorer than he was.)

Justice Thomas has little affection for Yale Law School, which is where he got his law degree. This is partly because he felt patronized by Yale faculty members and by his fellow law students and because he deeply resented being patronized because of his race. But part of his bitterness about Yale stems, I think, from his bitter experiences with poverty.

Because Thomas had been poor, he was relatively "unpolished" when he entered Yale Law School (e.g., no college vacation trips to Egypt to do archeology or to Florence to study Renaissance architecture). And because of his relative poverty while at Yale, he could not afford much ordinary entertainment while he was there. I suspect that both of these factors embittered him about Yale.

Although many observers in the legal profession may sympathize with discomfort experienced by a student at a law school because of the student's poverty, they may find it hard to understand why such discomfort would make someone so bitter about a place such as Yale, which, after all, admitted Thomas and tried -- by its lights -- to treat him and similar students well. But this sort incomprehension about Thomas' feelings about Yale exists, I think, because very, very few people at institutions such as Yale and Harvard (or in the legal profession as a whole) have experienced deep poverty.

I went to Yale College and Harvard Law School. By and large, I loved both of them. But only by and large. I vividly remember not having enough money to go on a date or even to go to a movie for months at a time. I remember, just as vividly, feeling unpolished -- and, worse yet -- being unpolished in comparison with my fellow students. These are hurts that can be forgotten and overcome -- but these sorts of hurts are not easily forgotten, and they are perhaps never fully overcome.

P.S. The above comments do not constitute an endorsement of Justice Thomas' theory of law and judging, his approach to constitutional law, or an endorsement of any other similar thing.

Economic Analysis of Evidence (and Inference)

Economic analysis of evidence and of the law of evidence is a good thing; that is, it is good that it is being done -- that is to say, I am (on the whole) glad that people are doing this sort of thing. However, I do feel compelled to make the following pithy observation:

Decision and inference intersect and interact.
But never shall the 'twain entirely merge.

Isn't that right?

More Mush about Wrongful Convictions from the NYTimes

In a NYTimes article dated August 19, 2007, the reporter wrote:

Why Would Someone Falsely Confess?

Because most suspects who confess to a crime are in fact guilty, it is not surprising that most of us have a hard time accepting the idea that someone would falsely confess. ...

That [innocent people don't confess to crimes they didn't commit] is certainly the conventional wisdom. [Tillers: Oh yeah? Sez who?] ... According to the Innocence Project, 49 people whose convictions relied on false confessions have been proved innocent and released from prison based on DNA evidence.

Another math quiz: If 25% of the wrongful convictions overturned by the Innocence Project [Tillers: assume circa 49/207] are the "result of" [Tillers: What does this mean?] false confessions, does it follow that circa 25% of all confessions are "false"? (Hint: "No, not necessarily." [By now you know the spiel here, right?])

Well now, let me get this straight. The suggestion is that 75% of wrongful convictions are the result of mistaken identifications and 25% are the result of false confessions. Therefore: There are no other causes of wrongful convictions. Can that be? Oh wait; I see now that the Innocence Project (reportedly) asserted that in 25% of the wrongful convictions it overturned there was "reliance" on a false confession. Well, there's mush for you. We want to know the extent to which false confessions (and mistaken identifications etc.) are responsible for wrongful convictions. That's because we want to know how much the frequency of wrongful convictions would be reduced if the frequency of false confessions (or mistaken identifications etc.) were reduced. The mushy numbers we are given here don't give us answers to such questions.

Numbers, numbers, ... ooooh those %$&% numbers!

Does That Depend on What the Meaning of "Led To" Is?

"Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions." Exoneration Using DNA Brings Change in Legal System, NYTimes (October 1, 2007)

Does the Innocence Project therefore mean to assert that false confessions can have led to at most 25% of the 207 wrongful convictions mentioned above? Or does the meaning of the claim about the role of eyewitness identifications in the 207 convictions depend on what the meaning of "led to" is?

A (simple) math (or logic) quiz: If 75% of ALL wrongful convictions are the result of mistaken eyewitness identifications, does it follow that eyewitness identifications are mistaken 75% of the time? (Hint: The answer is "no." For example, the statistic 75% may be true and yet it may also be true that eyewitness identifications are correct 99.9999997% of the time [and it may also be true that eyewitness identifications are correct only .0000001% of the time].)

In the same NYTimes article the reporter (Solomon) reports:

“It’s become clear that eyewitnesses are fallible,” said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques.

Does Mr. Patenaude mean to say that until the advent of DNA, people such as judges, lawyers, law teachers, jurors, and so on believed that eyewitness identifications are infallible?

What utter nonsense!

I recall an editorial by the New York Times a few years ago that made a similar claim about confessions -- an editorial that asserted that DNA had revealed that confessions are not infallible. There too we unquestionably -- infallibly -- witnessed utter nonsense: in that instance, the ludicrous tacit assertion that before the advent of DNA people did not realize that confessions can be false. I wonder: Had the New York Times heard of Miranda, Escobedo, et al.? And in connection with the question of the fallibility or infallibility of false identifications, I wonder: Have NYTimes reporters heard of pre-DNA identification cases such as Gilbert v. California, 388 U.S. 263 (1967)? If not, perhaps NYTimes reporters -- and NYTimes editorial writers -- should get a bit of legal training.

Vox Putin-Populi

David Remnick, Letter from Moscow: The Tsar's Opponent, The New Yorker (October 3, 2007):

In recent years, Putin has insured that nearly all power in Russia is Presidential. The legislature, the State Duma, is only marginally more independent than the Supreme Soviet was under Leonid Brezhnev. The governors of Russia’s more than eighty regions are no longer elected, as they were under Yeltsin; since a Presidential decree in 2004, they have all been appointed by the Kremlin. Putin even appoints the mayors of Moscow and St. Petersburg. The federal television networks, by far the main instrument of news and information in Russia, are neo-Soviet in their absolute obeisance to Kremlin power. “Putin is no enemy of free speech,” Ksenia Ponomareva, who worked on his first Presidential campaign, told the St. Petersburg Times. “He simply finds absurd the idea that somebody has the right to criticize him publicly.”

Smearing a Witness versus Impeaching a Witness

The by-line to Prof. Anita Hill's NYTimes Op-Ed piece proclaims, "The Smear This Time."

Assume -- for the sake of argument -- that Prof. Anita Hill lied. Question 1: Granting that assumption, did Prof. Hill smear Justice Clarence Thomas by charging him with sexual misconduct? Question 2: Granting the same assumption, by mentioning matters that raise questions about Prof. Hill's credibility did Justice Thomas smear Prof. Hill?

In a typical trial the trier of fact is not afforded the privilege of being able to tell -- without having any evidence -- who is telling the truth and who isn't. Sometimes one way of figuring out which story is true and which story is false is by figuring out who is lying and who isn't. Sometimes one can better figure out if a witness is lying is by having evidence about what might lead a person to lie. Justice Thomas suggested some matters that might have led Prof. Hill to lie. It is of course possible that Justice Thomas lied. But it is also possible he didn't.

Some Advance Copies of Papers on Graphic and Visual Representation of Evidence and Inference in Legal Settings

See Advance Access, Law Probability and Risk (check with your university's or law school's librarian about getting a password; if you do not have a password, this web page provides access only to the abstracts).

The advance papers include:

John D. Lowrance, "Graphical manipulation of evidence in structured arguments," Law, Probability and Risk Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm011

Kevin D. Ashley, "Comment on Lowrance's ‘Graphical manipulation of evidence in structured arguments’," Law, Probability and Risk Advance Access published on July 23, 2007. doi:10.1093/lpr/mgm012

Floris Bex, Susan van den Braak, Herre van Oostendorp, Henry Prakken, Bart Verheij, and Gerard Vreeswijk, "Sense-making software for crime investigation: how to combine stories and arguments?," Law, Probability and Risk Advance Access published on July 7, 2007. doi:10.1093/lpr/mgm007

William Twining, "Argumentation, stories and generalizations: a comment," Law, Probability and Risk Advance Access published on August 13, 2007. doi:10.1093/lpr/mgm008

Vern R. Walker, "Visualizing the dynamics around the rule–evidence interface in legal reasoning," Law, Probability and Risk Advance Access published on August 19, 2007. doi:10.1093/lpr/mgm015

David A. Schum and Jon R. Morris, "Assessing the competence and credibility of human sources of intelligence evidence: contributions from law and probability," Law, Probability and Risk Advance Access published on August 28, 2007. doi:10.1093/lpr/mgm025

Amanda B. Hepler, A. Philip Dawid, and Valentina Leucari, "Object-oriented graphical representations of complex patterns of evidence," Law, Probability and Risk Advance Access originally published on May 24, 2007. This version published June 13, 2007. doi:10.1093/lpr/mgm005

Dale A. Nance, "The inferential arrow: a comment on interdisciplinary conversation," Law, Probability and Risk Advance Access published on September 25, 2007. doi:10.1093/lpr/mgm035

The hard copy version of the special triple issue containing all of the papers and comments will very probably appear in November, 2007. Additional papers will appear on the "Advance Access" web page from time to time. Stay tuned!

Do You Believe in Sociobiology and Law?

Ibn al-Shatir's model for the appearances of Mercury, showing the multiplication of epicycles in a Ptolemaic enterprise. 14th century C.E.

&&&&

If you are an enthusiast for law and sociobiology -- law's version of ultra-Darwinism (or the modern equivalent of Mr. Herbert Spencer's Social Statics) --, you should take a gander at David Stove, So You Think You Are a Darwinian?

Extract:

Of course most educated people now are Darwinians, in the sense that they believe our species to have originated, not in a creative act of the Divine Will, but by evolution from other animals. But believing that proposition is not enough to make someone a Darwinian. It had been believed, as may be learnt from any history of biology, by very many people long before Darwinism, or Darwin, was born.

What is needed to make someone an adherent of a certain school of thought is belief in all or most of the propositions which are peculiar to that school, and are believed either by all of its adherents, or at least by the more thoroughgoing ones. In any large school of thought, there is always a minority who adhere more exclusively than most to the characteristic beliefs of the school: they are the ‘purists’ or ‘ultras’ of that school. What is needed and sufficient, then, to make a person a Darwinian, is belief in all or most of the propositions which are peculiar to Darwinians, and believed either by all of them, or at least by ultra-Darwinians.

I give below ten propositions which are all Darwinian beliefs in the sense just specified. Each of them is obviously false: either a direct falsity about our species or, where the proposition is a general one, obviously false in the case of our species, at least. Some of the ten propositions are quotations; all the others are paraphrases.

One of Stove's targets -- Stove died in 1994 -- was Richard Dawkins. Extract:

...I start from the present day, and from the inferno-scene - like something by Hieronymus Bosch - which the 'selfish gene’ theory makes of all life. Then I go back a bit to some of the falsities which, beginning in the 1960s, were contributed to Darwinism by the theory of ‘inclusive fitness’. And finally I get back to some of the falsities, more pedestrian though no less obvious, of the Darwinism of the 19th or early-20th century.

1. The truth is, ‘the total prostitution of all animal life, including Man and all his airs and graces, to the blind purposiveness of these minute virus-like substances’, genes.

This is a thumbnail-sketch, and an accurate one, of the contents of The Selfish Gene (1976) by Richard Dawkins. It was not written by Dawkins, but he quoted it with manifest enthusiasm in a defence of The Selfish Gene which he wrote in this journal in 1981. Dawkins’ status, as a widely admired spokesman for ultra-Darwinism, is too well-known to need evidence of it adduced here. His admirers even include some philosophers who have carried their airs and graces to the length of writing good books on such rarefied subjects as universals, or induction, or the mind. Dawkins can scarcely have gratified these admirers by telling them that, even when engaged in writing those books, they were ‘totally prostituted to the blind purposiveness of their genes Still, you ‘have to hand it’ to genes which can write, even if only through their slaves, a good book on subjects like universals or induction. Those genes must have brains all right, as well as purposes. At least, they must, if genes can have brains and purposes. But in fact, of course, DNA molecules no more have such things than H2O molecules do.

For more from Stove see Darwinian Fairytales, Aldershot: Avebury Press, 1995, repr. New York: Encounter Books, 2006. A reviewer (Martin Gardner) said of this book:

Whatever your opinion of "Intelligent Design," you’ll find Stove’s criticism of what he calls "Darwinism" difficult to stop reading. Stove’s blistering attack on Richard Dawkins’ "selfish genes" and "memes" is unparalleled and unrelenting. A discussion of spiders who mimic bird droppings is alone worth the price of the book. Darwinian Fairytales should be read and pondered by anyone interested in sociobiology, the origin of altruism, and the awesome process of evolution.

The blurb by Encounter Books states:

Philosopher David Stove concludes in his hilarious and razor-sharp inquiry that Darwin’s theory of evolution is “a ridiculous slander on human beings.” But wait! Stove is no “creationist” nor a proponent of so-called “intelligent design.” He is a theological skeptic who admits Darwin’s great genius and acknowledges that the theory of natural selection is the most successful biological theory in history. But Stove also thinks that it is also one of the most overblown and gives a penetrating inventory of what he regards as the “unbelievable claims” of Darwinism. Darwinian Fairytales is a must-read book for people who want to really understand the issues behind the most hotly debated scientific controversy of our time.

Quasi-Libertarian Reflections on Sex, Statutes of Limitations, Evidence, Money, Malleable Memory, and Zealotry

Yesterday and today I was musing about an announcement of a forthcoming (September 25) Oprah-style and politician-studded event at my law school.

The event is styled a "call to action for state & national laws lifting the statute of limitations on sexual abuse victims' lawsuits."

Among the speakers are to be a number of "survivors" -- alleged victims of alleged sexual abuse. These survivors, it appears, are to explain to the assembled law students, lawyers, law professors, and, presumably, reporters -- why remedial legislation is necessary.

Adding their voices to this "call for action" are be two New York State legislators, who also apparently favor the "lifting" of limitations periods for "sexual victims' lawsuits."

Professor Marci Hamilton, it appears, is to be the principal speaker at the event and it appears that she is the principal organizer of the event. She is identified as a visiting professor at Princeton University (and there is also an allusion to her status as a faculty member at my law school, Benjamin N. Cardozo School of Law, Yeshiva University). The announcement also states that Prof. Hamilton serves as "legal advisor to victims of sexual abuse in several noteworthy cases around the country."

Indeed, I am given to understand that prof. Hamilton is the principal legal advisor to SNAP, the "Survivors Network of those Abused by Priests." Via brief GOOGLE-ing I discovered that SNAP holds annual conferences. A SNAP web page states that the expected benefits of the 2008 conference include a "great opportunity to network with survivors and supporters, learn, heal, and visit the sites of beautiful Chicago!" (emphasis in the original text).

Professor Hamilton, the "call to action" announcement recites, is to "talk about the growing national grassroots movement for legislation" and about her book which, the announcement recites, "identifies (the proposed legislation's) rather surprising opponents."

One assumes that Prof. Hamilton was surprised by the identity of the opponents rather than by their behavior. Which opponents were unexpected, I wonder. Civil libertarians? Did Professor Hamilton expect that only sexual predators would oppose her legislative proposals?

For aught that appears from the announcement of the "call to action" event, the sought-for remedy is abolition of all statutory limitations on the time within which civil actions for sexual abuse must be commenced -- rather than merely an expansion of the the time period within which civil actions for sexual misconduct must be commenced.

So the aim of the campaigners is to allow civil actions for wrongful conduct regardless of how much time has passed since the alleged misconduct? Do the campaigners want to allow civil actions to be brought, say, ten years after the alleged abuse? Twenty years? Three decades? Four? More? Really?

Are the campaigners indifferent to the dangers of claims based on long-distant events? Or did they consider the possible dangers and conclude only after due deliberation that the benefits of allowing lawsuits based on very old transactions are outweighed by the benefits?

As I thought along these lines, I became a bit less professorial in my thinking at this point; i.e., my mind wandered. I thought to myself: "These folks -- these campaigners -- evidently believe in a zero tolerance policy towards sexual predators and wrongdoers of like ilk. Do they therefore think that any price is worth paying and any risk, worth taking for the sake of vindicating the claims of victims of sexual abuse?" As I thought this thought, Senator Barry Goldwater's dictum came to my mind: "Extremism in the defense of liberty is no vice." Perhaps this saying should be modified to say this: "Zealotry in the pursuit of justice is no evil." (Or something like that.) So I wondered: Are the "call to action" campaigners zealots? (One important duty of a lawyer, it used to be said, is zealous representation of the client.)

The original zealots were apparently Zealots, who were a faction of Jews in the first century C.E. who waged a fierce military struggle for independence from Roman Imperial rule. This campaign ended with the sack of Jerusalem in 70 C.E. See Henry Chadwick, The Church in Ancient Society: From Galilee to Gregory the Great pp. 6-7 (Oxford University Press, 2001).

So, to summarize the point toward which I am slithering, is it possible that the real theory of the campaign for justice for survivors of sexual predation is fairly simple and straightforward: the only important thing is to nail those &%$*%% (alleged) miscreants -- and if a lot of eggs have to broken to make this omelette, so be it?

That's the way I was thinking. But then I regained self-control of my mind. I decided to do a brief internet search. Here is what popped up first: a Denver Post newspaper article reporting that the Colorado Supreme Court had rejected the attempt of the Roman Catholic Archdiocese of Denver to intervene in a civil action and terminate a lawsuit against two priests (one of them now dead) for sexual abuse -- alleged sexual abuse -- that occurred (if it did) forty (40) years ago. See Electra Draper, "Sex abuse lawsuits proceed," Denver Post p. B-2 (September 14, 2007).

I assume that the dead priest's estate became the defendant in the lawsuit against that priest. But this led me to wonder: How good is that dead priest's memory now of forty year-old events?

Prof. Hamilton reportedly said of the Colorado Supreme Court's ruling: "Gradually, more judges are realizing that children can't recognize and report sex crimes immediately. The survivors of these heinous crimes need time to understand and overcome their trauma." Id.

Well, that's an interesting thought, for at least a couple of reasons.

The first interesting thing is the notion that it takes some alleged victims forty years (sometimes more?) "to understand and overcome their trauma."

Another interesting thing is that these particular survivors managed "to understand and overcome their trauma" after forty years and not, for example, after twenty, thirty, or fifty years. In this instance this was rather convenient timing for the plaintiffs. Is it impertinent to ask what opened the minds and emboldened the hearts of these survivors at this particular time -- rather than at some other time? Is it possible that the prospect of a substantial financial recovery did so? Is it therefore possible that the supposed recovery of allegedly long-suppressed memories of many supposed victims is not a genuine recovery but is the result of invention or the formation of honestly-held but false beliefs and memories that are caused by the hope of gaining a very substantial financial benefit? (If you don't think so, I would like to sell you a well-known bridge at a very reasonable price.)

A spokesman for SNAP dismissed the Denver Archdiocese's effort to terminate these lawsuits as being belated with these words: "It's sad every time a Catholic bishop tries to exploit legal technicalities to protect himself from tough questioning in court." I thought to myself: "The gall of the Denver Archdiocese! To invoke a plausible legal defense -- a defense that if recognized might even serve, on balance, to reduce rather than increase miscarriages of justice! Let's keep such technicalities out of our courtrooms and out of our law, no?"

The Denver case reminded me of the Massachusetts case in which a Massachusetts federal trial judge allowed a female plaintiff to commence a civil action against her cousin for allegedly sexually abusing her 47 years earlier, when she was a young woman. See Shahzade v. Gregory, 930 F. Supp. 673 (D. Mass. 1996). The plaintiff was 68 years old and her cousin was even more elderly when she commenced her lawsuit. Judge Harrington denied her cousin's motion for summary judgment. He had argued that plaintiff's civil action was barred by the applicable Massachusetts statute of limitations. Judge Harrington disagreed. See "Time and Justice in Massachusetts," August 25, 2002. (Harrington's theory was, roughly, that the plaintiff's impaired or turbulent emotional state might have prevented her from adequately appreciating the abuse that she had intellectually believed for quite some time had happened.)

There is no doubt -- or very little doubt -- that memory degrades over time. And I think few reasonable people would disagree that memories often degrade severely, or even vanish, over a period of decades -- and this is true even of memories of events that are important to the person who has them. Thus, the argument in favor of generally barring litigation about very old claims is a strong one. (Exceptions might be made, I would suppose, for situations in which it could be shown that the strength of the evidence does not depend on human memory. The advisability of this sort of exception, in any event, might be worth studying.) Perhaps the main obstacle to the argument against the elimination of legal rules that bar claims dependent on decades-old memories is the fact that in most or all states there are no limitations periods for murder charges. But it's not self-evident that this fact proves, or even strongly suggests, that the elimination of limitations on the bringing of other kinds of charges or claims is the prudent and just thing to do.

I am aware that by making the comments I make here I am in some danger of being put in unsavory company; I am aware that some observers will think that Tillers sympathizes with sexual predators. In response I say this: Not so long ago -- in the mid-1980s onwards and in the early 1990s -- legions of people were criminally prosecuted for allegedly abusing large numbers of children in child care facilities. Despite the inherent implausibility of many of the events and criminal acts that were said to have transpired in such cases ("mass child-care abuse cases," they might be called), many people so accused were convicted, even when they had very good lawyers. Yet only a decade later almost all of those convictions were overturned (at least in those cases in which the defendants had insisted on trials and had refused to plead guilty), and it is now almost universally conceded that almost all of those defendants were improperly convicted and were innocent. I fear that the burning desire to obtain redress for victims of sexual abuse and to wreak vengeance on sexual predators will once again victimize many innocent defendants. The experience with the child care cases of the 1980s and 1990s suggests that my fear is not unfounded. Excessive zeal in the pursuit of a good cause is not a virtue; it is in fact dangerous.