Finding the Law

But if you want to begin your investigation (or your preparation for trial), you will have do some legal research and some legal reasoning.

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The dynamic evidence page

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

Marshaling Evidence by Law

One might begin to marshal evidence on the basis of legal doctrines.

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The dynamic evidence page

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

Various Methods of Marshaling Evidence

There are various ways of marshaling, or organizing, evidence.

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The dynamic evidence page

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

Marshaling Evidence

If you anticipate the possibility of litigation (or if you are planning for a trial), you want and need to marshal evidence.

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The dynamic evidence page

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

The "Clergy Sex Abuse" Litigation Wars Continue

Judge dismisses ‘with prejudice’ sex abuse charges against Catholic priest Catholic News Agency (Sept. 2, 2010):

A judge in West Virginia has dismissed all charges against a Catholic priest from Cincinnati who was accused of molesting a 10-year-old boy in 1991. Attorneys for the priest, who was suspended for over a year because of the allegations, said the ruling found that the accuser had manipulated and falsified evidence.

Ashby Jones, Plaintiffs Drop Sex-Abuse Suit Against Vatican Wall Street Journal Online (August 11, 2010):

Lawsuits over alleged sex abuse by Catholic priests aren't new or unusual. But the Kentucky case gained notoriety because it targeted not U.S.-based priests or bishops, but the Vatican itself. According to the allegation, Catholic clergy in the U.S. engaged in a systematic cover-up of sex abuse under explicit instruction from the Holy See. The plaintiffs charged the cover-up led to numerous incidents of sex abuse.

In his filing, Mr. McMurry blamed earlier legal decisions in the case which supported the Vatican's argument that as a sovereign nation it was largely immune from lawsuits.

"Plaintiffs in this case are permitted only to pursue claims against the Holy See for the acts of its 'officials or employees' in the United States," the filing read. "Plaintiffs are without the legal right to pursue the Holy See for its direct acts."

Jeffrey Lena, a lawyer for the Vatican, said in a statement: "Six years ago, the plaintiffs' lawyers concocted a series of allegations. But they never had the evidence to back those allegations up. And that is the real reason plaintiffs now wish to dismiss their own case."

At least three other cases filed in the U.S. are pending against the Vatican. Michael Finnegan, a lawyer for the plaintiffs in those, said the dismissal of the Kentucky case would have "no bearing at all" on them. "We believe in our cases and we're moving forward," he said.

Belgian church abuse raids ruled illegal BBC News Europe (9 September 2010):

A Belgian court has ruled that recent raids by police investigating alleged child sex abuse by Catholic priests were illegal.

The appeals court also said the documents seized in June's raids on several buildings of Belgium's Catholic Church cannot be used by prosecutors.

[snip, snip]

In April, the Church was shaken when the Bishop of Bruges, Roger Vangheluwe, resigned and admitted to having sexually abused a boy before and after becoming a bishop.

[snip, snip]

On Thursday, the appeals court in Brussels said the raids on the Church headquarters north of the capital and at the home of the former Archbishop of Belgium, Cardinal Godfried Danneels, were disproportionate. The court also ordered that all the seized documents - including nearly 500 files and a computer from the offices of a Church commission investigating allegations of sex abuse - must be returned.

The current Archbishop of Belgium, Cardinal Andre-Joseph Leonard, said after the ruling that it was "in everyone's interests that the fundamental rules of law are respected", the AFP news agency reports.

He stressed that he was "in no way opposed to a correctly-run judicial investigation" had that he was "satisfied that clarity has finally been shone on this affair".

The Church commission [which had been set up with the Belgian Catholic Church's cooperation to investigate clergy sex abuse in Belgium] resigned en masse soon after the raids, and Pope Benedict XVI has denounced the raids as "deplorable".

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The dynamic evidence page

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

Neurocharacter

If neuroscience -- in the form of fMRIs and all that -- could be used to predict human behavior, would evidence such as fMRI evidence amount to prohibited "circumstantial character evidence," the use of character, or disposition, to show the doing of an act on a particular occasion? Is a "neural disposition" or a genetic disposition a disposition? A character trait? Is there a difference (legally speaking) between "character" and "disposition"? Can we answer such questions without knowing the point of the prohibition against circumstantial use of character? (No.) Have courts given reasonably consistent accounts of the purpose of the prohibition against circumstantial use of character? (No.)

Isn't the common use of the word "circumstantial" in this context unfortunate? (Yes.)

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The dynamic evidence page

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

Fact -- or Chauvinism?

D.D. Guttenplan, In Europe, Fund-Raising Lessons From Americans NYTimes (Sept. 5, 2010):

Dr. Salmi points to France and Germany, two prosperous countries, both with a long tradition of scientific achievement, yet whose best universities “are hardly recognized as elite institutions.”

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The dynamic evidence page

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

Large Numbers

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The dynamic evidence page

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

Law and Philosophy

There were, I think, a lot of things wrong with German Idealism. But, in my dotage, I occasionally miss the grand aspirations and vision of philosophers such as Immanuel Kant and G.W.F. Hegel (and, long before that, Plato and Aristotle). Modern legal "theorists" -- some of them, in any event -- should have the courage to talk once again about ontology as well as epistemology. They could take their inspiration (and guts) from the AI-Folk, many of whom have not hesitated to talk about "ontologies."

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The dynamic evidence page

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

Recent Article on the Baffling Case of Edward Jackson, Medical Doctor and Rapist

See The Case of Rapist Dr. Edward F. Jackson, which I discussed earlier here.

Sometimes there are too few degrees of separation from horrors.

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The dynamic evidence page

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

Panel Discussion on Statistical Inference in Legal Proceedings

The current chair of the AALS Evidence Section -- Ed Cheng -- recently announced the following event:

EVIDENCE SECTION PANEL, Saturday, January 8, 2011, 10:30am-12:15pm, The Future of Statistics and the Law.

The panel this year is something of an homage to the fortieth anniversary of the Finkelstein-Fairley-Tribe debates in the Harvard Law Review over the use of statistical evidence in legal proceedings. Given the recent popularity of quantitative methods in the legal academy and the growth of computationally intensive methods in areas like on-line retailing, I thought it would be a good time to revisit the question of the place of statistics in the law.

The panel, comprised of Erica Beecher-Monas (Wayne State), George Fisher (Stanford), Jay Koehler (Northwestern), and Mike Pardo (Alabama), will look at the future of statistical evidence from a variety of angles. In addition to a historical look at the old chestnut, People v. Collins, the panel will examine the promise of statistics in generating more rigorous inferences, the philosophical objections to this promise, and how statistics have played out in real courtroom battles.

This looks like a very interesting program.

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The dynamic evidence page

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

Classes Start Monday across the River

Yes, that river.

I will show my Evidence students various images of inference and proof. I mean literal images (pictures).

Of course, I'll show them -- or they will see -- various other things as well.

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The dynamic evidence page

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

Spindle Law and the Evidence Module in Legal Education

Spindle Law, which carries the evidence module that I edit, got favorable comment in Prism Legal (August 15, 2010). Ron Friedmann wrote (in part):

Spindle Law is “is a new kind of legal research and writing system”. It presents a taxonomy of law through which a user can drill down to find authority for points of law. It is a ’social media’ or ‘crowd sourcing’ approach. Ambrogi writes

“Spindle Law resembles a treatise, in that it assembles rules of law together with the authorities to back up those rules. Structurally, it organizes the law into a tree, with each branch leading to ever-narrowing branches. Thus, the broad branch “courts” leads to narrower branches for “evidence” and “civil procedure,” and each of those branches leads to increasingly narrower branches.”

I can see how Spindle Law’s graphic approach, coupled with community contributions, could lead to a valuable legal research tool. While not an immediate threat to law firms, a system like this could evolve to be an important resource for in-house counsel. Why pay even associate rates if a quick consultation of Spindle Law were to yield a reasonably reliable answer?

Although I doubt that Spindle Law will make lawyers or junior lawyers superfluous -- for one thing, authority and cases run often run in different directions; for another thing, the law changes; and for yet another thing, the stated rules are often or always fuzzy to some degree -- I do think Spindle Law can become an efficient tool for legal research -- and for legal education. This is why I have incorporated the evidence module into my Evidence course: Spindle Law is a lovely way to describe (and find) relatively settled corners of legal doctrines such as subsequent remedial measures. (The comments sections of Spindle Law allow and encourage discussion of legal doctrines and practices: Spindle Law is not just about black-letter rules -- though it does operate on the premise that some legal rules and principles are relatively settled and are therefore relatively black-letter.)

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The dynamic evidence page

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

Do Jurors Need Tools?

Monica Davey & Susan Salney, "Jurors Fault Complexity of the Blagojevich Trial," NYTimes (August 18, 2010):

As the jurors in the corruption case against Rod R. Blagojevich, the former Illinois governor, entered a 25th-floor conference room here, one problem was instantly clear: They were overwhelmed. The judge had handed them instructions that ran to more than a hundred pages. The verdict sheet was as elaborate as some income tax forms. And many of the 24 counts they were being asked to consider came in multiple parts and were highly technical and interconnected.

"It was like, 'Here’s a manual, go fly the space shuttle,'" Steve Wlodek, one of the jurors, said Wednesday. Jurors said it took them several days just to figure out how to begin to break down their assignment into manageable tasks — not to mention how to understand the legal terminology (what exactly is conspiracy to commit extortion?). These were early hints of the multiple stumbling blocks they would find as they struggled, but failed, over 14 days of deliberations, to reach a verdict on any of the counts but one.

Was the problem mainly complexity? Or was the problem mainly that the jurors were not given tools for managing the complex task they were asked to perform?

The article reports that the jurors used Post-it notes. Could they have been given something more flexible and comprehensive?

Did the jurors have a simple computer with, say, Word at their disposal? Would that have helped them manage their assignment?

The article reports, unsurprisingly I think, that the jurors developed their own tools:

After initial frustration and confusion upon arriving in the deliberation room with little sense of what to do next, the jurors laid out a plan. 

On large sheets of paper, they wrote down crimes Mr. Blagojevich was accused of committing, and taped each one on the walls around the room. On the sheets: a claim that he had sought political contributions in exchange for legislation to help a local pediatric hospital; another that he had sought a political fund-raising event in exchange for state financing for a school; another that he had sought payments for a law that would benefit the horse racing industry; and so on.

The jurors did pretty much what any rational person would do when faced with the many questions they had to resolve.


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

"Images" and "Text" to Model Evidential Inference in Legal Settings

Many law teachers do not like to use images to think about law. This is a great shame. Compare James Franklin, Diagrammatic reasoning and modelling in the imagination: the secret weapons of the Scientific Revolution.

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The dynamic evidence page

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

Review of Jim Franklin's What Science Knows and How It Knows It

See this review in the Spectator.

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The dynamic evidence page

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

Be Nice on Your Way Up but Kick Them When You're on Top?

Jonah Lehrer of the Wall Street Journal reports that research shows that nice people are more likely than are nasty people to reach the top of an organization but that when nice people reach the top, they stop being nice.

If the hypothesis is true (whether or not the cited research supports it), does the same principle apply to law school deans?

I did research for James H. Chadbourn for a number of years while he taught at Harvard Law School. He later asked me to work on the revision of Wigmore's treatise. I got to know Chadbourn very well. (His wife privately called him "bunny.") Chadbourn hated deans -- without exception. I still recall one day when a person, an administrator, dropped by his office at Harvard. (I was sitting behind a small desk doing research -- the old-fashioned way, by reading cases in "hard copy" form.) Chadbourn had been friendly with this administrator. She told him she had been named an assistant dean. From then on, Chadbourn was hostile to her.

I don't know what lay at the root of Chadbourn's contempt for deans. Part of the reason may have been philosophical and temperamental: he was a curmudgeon -- a gentle curmudgeon -- and a skeptic, and he was generally distrustful of authority. Another part of the reason may have been his experiences with authority while he taught at UCLA: the story has it that he fought bitterly against a McCarthyite attempt to purge two junior faculty members who were accused of being Communist sympathizers. (I do not know the details of this story. Does someone in Cyberland have them?)

I have known one person whose perspectives I am fairly certain did not dramatically change when he became a law school dean. Perhaps some of the others were also not corrupted; I'm not sure. However, some of deans I have known in my life were apparently transformed after their ascent to power.

Postscript No. 1: Toward the end of his life, Chadbourn's enmity toward deans abated a little. Initially Chadbourn did not like Dean Albert Sacks of Harvard Law School, particularly because Sacks (possibly on behalf of a law school committee) once chastised Chadbourn after Chadbourn ordered a rude grade-grubbing law student to leave his office. Chadbourn eventually got cancer. Sacks apparently visited Chadbourn often while Chabourn was ill. For this Chadbourn was grateful. To his great credit, Sacks wrote a touching tribute to Chadbourn, 96 Harvard Law Review 91 (1982). He wrote:

I came to know Jim well during the past decade -- the period when I was Dean. Clearly, he had established a very special relationship with his students. Year after year, one heard from excited, happy students of his colorful way of teaching, which combined meticulous care for content and pedagogy with a vivid style laced with humor and wit. ... Obviously, he had achieved a genuine mastery of his subjects and his craft.

These accomplishments, impressive as they are, disclosed only one part of the man. Aside from what he revealed of himself in the classroom (and visitors were discouraged), Jim Chadbourn was essentially a private person. Instinctively modest, he preferred to speak little of achievements and undertakings. Sentimental or other emotive feelings were masked, if not buried, by the use of irony, recourse to wit, or a not very convincing display of grumbling. But he and I dealt with each other at a time when he confronted limitations of age and serious illness. I too had recently confronted a difficult illness, and so we were able to achieve a perhaps unusual openness. Jim Chadbourn revealed a clear-eyed sense of his vulnerability, a reluctantly exercised capacity to accept whatever limitations he had to face, accompanied by an unshakeable determination to achieve the goals dictated by his work. Notwithstanding his success as a teacher and the satisfaction it gave him, he chose to retire early in order to devote his time to Wigmore's treatise. His cancer required treatments that were temporarily debilitating. After each treatment, he would bide his time and then go back to work.

What emerged for me was a picture of something more than the great professor and the master craftsman. Here was an indomitable spirit, quietly expressing itself in a cause that could have only one final outcome. Of course he was now limited and vulnerable -- aren't we all, ultimately? Still, he not only completed the work he had set for himself, but he also continued to appreciate the people and experiences around him for which he could still find time. Indeed, I sensed at times that in this period of trial and hardship he felt a special satisfaction, which he characteristically masked.

His friends offered support and encouragement, but we were of little help. What help he received came from within and from one other person -- his remarkable wife, Erika, for whom this time was also one of great trial and, in the deepest sense, of triumph as well.

I was not at all surprised that Jim's students left his classes with the sense that they had learned the subject and, beyond that, had been touched by a man of memorable character. And it was natural for him to tell his first-year classes, during their last hour together, that the students should become not only good lawyers -- that would not be hard for them -- but also good people. His contribution to us all -- his students, colleagues, family, and friends -- was the example he set of quiet professional excellence, of courage and determination in confronting adversity, and of an understanding and appreciation of life that were genuine and deep though not seen on the sleeve. This is the measure of our loss. This is also the measure of our gain.

Postscript 2: Judge Jack B. Weinstein also wrote a touching reflection about Chadbourn after Chadbourn's death. See Jack B. Weinstein, "In Memoriam: James H. Chadbourn," 96 Harv. L. Rev. 364 (1982). Weinstein said in part (footnotes omitted):

In the broad range of James H. Chadbourn's work, there is in each article and book a sense of almost total control of the entire field under discussion in its historical, conceptual, and practical aspects. Chadbourn's work demonstrates a meticulous precision in using supporting data; each sentence is polished, each footnote finely tuned. In a tribute written upon Chadbourn's retirement from teaching in 1974, Professor John A. Dawson referred to Chadbourn's "utterly mad pursuit of the differences between the forms of action." This historical grasp gave his work a sense of context sometimes lacking in contemporary scholarship. His great interest in music, biography, and English literature, his fondness for fishing, as well as his friendships with colleagues and students, helped him "pass on through instruction in law the heritage of humane culture." Dawson's conclusion -- that Chadbourn "is an extraordinary[] teacher, indeed unique, and this in large part because he is a formidable scholar" -- seems unassailable.

...Although his contributions in each of these areas merit analysis, his antilynching works and his contributions to the law of evidence warrant particular attention.

It took a great deal of courage and legal skill to do the necessary field work and then to write Lynching and the Law in the early 1930's in the South. At that time, as Chadbourn pointed out, "[a] new wave of lynchings [had] again made the nation acutely aware of the perennial problem of mob killing." It is a sign of how far we have come -- in large part because of the bravery of Southerners like Chadbourn -- that it is almost impossible today, fifty years after he wrote, to feel the horror evoked by the pattern of lynchings that terrorized and degraded blacks -- and many whites -- in this country.

See also the blog post of December 31, 2008 James H. Chadbourn, Lynching and the Law (1933)

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The dynamic evidence page

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

Drawing Inferences about a Tree

When I visited Scott Brewer's home recently, I discovered a magnificent tree in his yard.




I asked if it was a Sycamore tree. Scott and his mother said it was a beech tree. I said the massive tree must be at least 200 years old. Scott said it was 100 years old.

I had recently purchased a lovely book, John Laird Farrar, Trees of the Northern United States and Canada (Blackwell, 1995). I was determined to confirm that the tree was a beech tree. I turned to pp. 268-269 and I saw:

I then snatched a leaf from the tree and the leaf looks like this:



The leaf looks very much like the leaf of the American beech tree shown in the book.
But then I noticed:

1. The book entry states that there are 9-14 lateral veins on each side. The leaf snatched from the tree appeared to me to have 8 lateral veins on each side. Scott said he saw 9 lateral veins.

2. The book entry said that American beeches are as much as 25 meters high. The beech in Scott's yard, it seemed to me, was taller.

3. An entry in the book states that "[b]ark remains smooth even on mature trees." The bark at the bottom of the tree was gnarled and contorted. But Scott's mother later noted that the tree had become infested with a fungus.

5. An entry in the book states the veins of the American beech trees end in a tooth. I wondered if those were or were not "teeth" I saw on the leaf.

Then I looked over at an entry on the lower part of page 269. That entry deals with the European Beech. I had ignored that entry because the European Beech is a non-native species and I thought it unlikely that the tree in the back yard had been planted there 200 years ago. But then I looked at the picture of a leaf of the European Beech and it looked less serrated than the pictured leaf for the America Beech. Moreover, the entry for the European Beech said that its leaves have 5-9 veins on each side.

So is the tree in the back yard an American Beech or a European Beech?


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

Easterbrook on Defense Counsel's Failure to Object to Hearsay

Professor Ann Murphy noted a recent opinion, authored by Judge Easterbrook, on the admission of hearsay against a criminal defendant after defense counsel's failure to object. See United States v. McGee, No. 07-CR-177 (July 20, 2010). According to Judge Easterbrook, everyone -- the prosecutor, defense counsel, and trial judge -- knew that the evidence in question was inadmissible hearsay -- but nevertheless suffered the evidence to come in. For this, Easterbrook casttigated both defense counsel and the prosecutor (and the trial judge). But I find Easterbrook's reasoning mystifying. Here is what I said on an Evidence list after I had scanned the opinion:

I am struggling to understand J Easterbrook's opinion in McGee. Perhaps this is because it is late at night. ...

Easterbrook's opinion seems to paint a picture in which everyone -- the prosecutor, the trial judge, and defense counsel -- fully understood and agreed that hearsay evidence would be admitted. My criticism here does not go to the question of whether the former Texas rule "hearsay evidence is no evidence" is wise or unwise. But I thought that [Judge] Easterbrook is a great believer in freedom of contract and I would have thought he would also be a great believer in the freedom, right, or whatnot of parties to waive or decide to forfeit the benefits of a "technical" rule of evidence such as the hearsay rule. Does he now think that the hearsay rule is so fundamental that a defense counsel should not waive or forfeit its protections in a criminal case? (The opinion emphasizes, not [the] Confrontation [Right], but the hearsay rule.) If Easterbrook thinks defense counsel should retain the option to waive or forfeit the benefits the HS rule, why is he so angry at defense counsel? This would not be the first time (or even a rare time) that defense counsel has appealed on a ground forfeited or waived at trial.

I am clearly missing something, yes?

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The dynamic evidence page

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

Judge Richard Posner on the Teaching of the Law of Evidence

Richard Posner, "Clinical and Theoretical Approaches to the Teaching of Evidence and Trial Advocacy," 21 Quinnipiac Law Review 731, 736 (2003):

[T]he conventional approach to teaching evidence illustrates what seems to me a common, though by no means universal, characteristic of legal education: that it tends to be at one and the same time both insufficiently practical and insufficiently theoretical. The traditional course in evidence manages, on the one hand, to avoid giving the student the flavor of the courtroom or the strategic dimension of evidence law and, on the other hand, to avoid giving the student the theoretical perspectives on evidence law, the sort of thing one finds, for example, in Peter Tillers' recent edited volume [The Dynamics of Judicial Proof: Computation, Logic, and Common Sense (Marilyn MacCrimmon & Peter Tillers ed. 2002)] The result is a course that many students find boring and useless.

Of course, Judge Posner thinks that the right theoretical perspective on the law of evidence is given by economic theory. I think no evidence theory that fails to talk about the workings of inference is sufficient. But I give Judge Posner ample credit for pointing out the failings of conventional Evidence courses.

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The dynamic evidence page

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