Teaching Students How to Read Cases

I once heard a story that Karl Llwellyn once proclaimed that he would or should read all judicial opinions of American courts issued in a single calendar year. I don't know if he ever actually tried doing this. Doing this would no longer be even imaginable today.

I think I also heard (from more than one source) that Karl Llewellyn devoted some or all of his class sessions to careful reading and discussion of every last detail of judicial opinions (and that he sometimes or often stormed out of the classroom when students weren't prepared or when he found their comments and arguments unsatisfactory).

I have been thinking about Karl Llewellyn because in recent years -- indeed, for many years -- I have been disturbed by how little law students (even very smart law students) seem attuned to the nuances of the judicial opinions they (supposedly) read.

So perhaps I should try to do something about this problem.

Perhaps I have the necessary qualifications to do something. I did practice law for a while. But I really learned how to read cases carefully when I worked for James H. Chadbourn while he was revising various Wigmore volumes and when I did my own revision of one of the Wigmore volumes.

In some academic quarters, reading judicial opinions is not fashionable. But it is a great mistake for ostensible law teachers to forget (or never learn) how to read cases. This is not only because law schools are expected to help prepare students for law practice. It is also because in real-world judicial opinions there are many (interesting & important) notions and arguments that cannot readily be converted into or captured by the preferred formal argument of the day.

Perhaps I can combine my plan to have students present and defend particular constitutional perspectives (relating to criminal procedure) with the objective of teaching students how to read and interpret full-bodied judicial opinions. I'll have to think about this. (I don't want to turn my criminal procedure course into an "elements of law" course.)

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Football Hearsay and Non-Hearsay

Flip Bondy, Mark Sanchez, not offensive coordinator Brian Schottenheimer, called Jets big play in win over Colts New York Daily News (Jan. 9, 2010):

[New York Jets quarterback]Sanchez didn't even have the stomach to watch [his team's] winning field goal. Instead he watched the reaction of the Colts, who didn't look too happy about the course of events. Only then Sanchez knew that one obstacle had been cleared, that he had graduated from an impossible matchup against Manning to another one against Tom Brady.

This conduct was non-assertive conduct and thus non-hearsay under the Federal Rules of Evidence, correct?

But question: Suppose the Colts had thrown up their hands, cheered, and jumped around. Would that have been non-assertive conduct or would it have been assertive -- "Hey, we won!" -- conduct?

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The Costs & Benefits of Getting a Law Degree

See David Segal, Is Law School a Losing Game? NYTimes (Feb. 8, 2011).

The article begins with the following eye-catching sentence:

If there is ever a class in how to remain calm while trapped beneath $250,000 in loans, Michael Wallerstein ought to teach it.

Another eye-catching passage:

...Mr. Wallerstein and a generation of J.D.’s face the grimmest job market in decades. Since 2008, some 15,000 attorney and legal-staff jobs at large firms have vanished, according to a Northwestern Law study. ...

And with corporations scrutinizing their legal expenses as never before, more entry-level legal work is now outsourced to contract temporary employees, both in the United States and in countries like India. ...

But improbably enough, law schools have concluded that life for newly minted grads is getting sweeter, at least by one crucial measure. In 1997, when U.S. News first published a statistic called “graduates known to be employed nine months after graduation,” law schools reported an average employment rate of 84 percent. In the most recent U.S. News rankings, 93 percent of grads were working — nearly a 10-point jump.

In the Wonderland of these statistics, a remarkable number of law school grads are not just busy — they are raking it in. Many schools, even those that have failed to break into the U.S. News top 40, state that the median starting salary of graduates in the private sector is $160,000. That seems highly unlikely, given that Harvard and Yale, at the top of the pile, list the exact same figure.

How do law schools depict a feast amid so much famine?

“Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves. “Every time I look at this data, I feel dirty.” It is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways.

Question: Did anyone ever think that lawyers (or, for that matter, law teachers, law school deans, and university presidents) are as a group paragons of virtue?

One of the things I have learned from the investigations conducted by the students in my Fact Investigation course:

There is much hanky-panky afoot in the world of "non-profits."

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(True) Euclidean Logic & the Law

An article in the New York Times reports on math & science education in China. The reporter David Barboza tells this anecdote:

In Li Zhen’s ninth-grade mathematics class here last week, the morning drill was geometry. Students at the middle school affiliated with Jing’An Teachers’ College were asked to explain the relative size of geometric shapes by using Euclid’s theorem of parallelograms.

A teacher instructed students in class at the middle school associated with Jing’An Teachers’ College in central Shanghai.

“Who in this class can tell me how to demonstrate two lines are parallel without using a proportional segment?” Ms. Li called out to about 40 students seated in a cramped classroom.

Question: Should law students, lawyers, judges, and ... er ... law teachers be able to reason about this sort of problem?

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Thoughts about a course in constitutional criminal procedure

I am meditating about my developing unorthodox course in constitutional criminal procedure.

I want my students to become acquainted with some basic constitutional rules & principles, but I do not want to use much course time to get my students to memorize leading cases and their holdings (which they will probably quickly forget after the examination). So I am thinking about using the bulk of class time to having students make arguments from specific constitutional perspectives about specific problems . Hence, at times I may ask students to play the role of Justice Black, Justice Frankfurter, or Justice Scalia. At other times I may ask students to formulate a constitutional argument not yet clearly ever embraced by any member of the Court.

I think such a course could be fun and instructive. But would it work?

On reflection, I think roles should be assigned a full week before class and the arguments should focus on the issue or issues in the "leading cases" that we will study. Correct? I think I might ask students to outline their arguments in advance in Google Docs that can be shared with every member of the class. Does this sound like a good idea?

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Academic Corruption

Academic corruption may not be as serious as legal corruption in Russia. But to this academic, it is worrisome that at the University of North Carolina in 2008 "A’s have become the most frequent grade"

Why do the faculty at UNC and other colleges say that a large number of students are very much above average? Plainly it is because faculty are rewarded if they do so and are punished if they give lower grades.

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Legal Travesty in Russia

The U.S. Administration may want to rethink whether it really wants to "reset" relations with Russia. After eight years of prison for Mikhail Khodorkovsky, a corrupted judicial system has convicted Mr Khodorkvsky of new offenses and is perhaps prepared to imprison Mr Khodorkovsky for some additional years. See Andrei Ostalski The verdict that may shake Russia BBC News (Dec. 27, 2010). The Obama Administration professed to want to bring "change" to America. But perhaps the change it desired does not include a serious concern about human rights violations in other countries.

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The dynamic evidence page

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A (Minor) Manifesto (about American Legal Education)

A Manifesto

1. Law school courses generally focus on legal rules. But facts are just as important both for successful law practice and for an understanding of the actual workings of the law.

2. There are now some law courses that call on students to do fact investigation. For example, in litigation clinics students must often gather evidence and assemble it in preparation for trial. But fact investigation involves more than intuition and hunch. Fact investigation involves mental discipline; it involves and requires orderly thinking.

3. No method known to humankind can guarantee that a litigator (or some other sort of lawyer) will do fact investigation successfully. But some methods commonly involved in fact investigation can be identified – and they can be taught. See the course in fact investigation at Cardozo School of Law.

MarshalPlan 4.0 as a Downloaded Application

MarshalPlan.4.0, now available via your web browser (Firefox or Internet Explorer), can also be downloaded to your computer. Go here and download the version of MarshalPlan that works with your computer's operating system.

N.B: This software only illustrates how a fully developed version of MarshalPlan would work. For example, the existing version of the software does not allow the user to store data permanently. For a more expansive discussion of the limitations of the current versions of MarshalPlan, go here.

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The dynamic evidence page
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MarshalPlan on the Web

After much struggle, I have succeeded in making MarshalPlan -- my evidence marshaling software --, I have succeeded in making this software available for your viewing pleasure in your browser. (But Chrome will not work for some reason. Firefox is a sure bet. Internet Explorer? I don't know.)

Click here to see how this gizmo works.

This software is not technically snazzy. It is technically crude. (Some buttons [links] don't even work. But most of them do.) But though technically crude, MarshalPlan is theoretically sophisticated. And it is, in principle, very useful to folks such as trial lawyers and investigators. Or so I think.

This software has had a long gestation period and it has gone through many iterations. One person who played a very large part in the development of the concept -- and, to some extent, the technology -- of MarshalPlan was David A. Schum. But I don't know if David wants to take any credit or blame for the thing I have managed to cobble together over a weekend -- and over many years.

Comments are very welcome.

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The dynamic evidence page

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Looking Backward at the Birth of a New Science of Evidence

P. Tillers, Webs of Things in the Mind: A New Science of Evidence (essay reviewing work of David Schum), 87 Michigan Law Review 1225 (1989):

[snip, snip]

[snip, snip]

[snip, snip]

[snip, snip]

[snip, snip]

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A Forty Years War

See Roger C. Park, Hastings College of the Law; Peter Tillers, Benjamin N. Cardozo School of Law; Frederick Crawford Moss (emeritus); D. Michael Risinger, Seton Hall University School of Law; David H. Kaye, The Pennsylvania State University; Ronald J. Allen, Northwestern University Law School; Samuel R. Gross, University of Michigan Law School; Bruce L. Hay, Harvard Law School; Michael S. Pardo, University of Alabama School of Law & Paul F. Kirgis, St. John's University School of Law Bayes Wars Redivivus - An Exchange

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New research on the mathematical analysis of fingerprint evidence

Sindya N. Bhanoo, Calculating the Rarity of a Fingerprint NYTimes (December 10, 2010):

Researchers have found a way to mathematically calculate the rarity of a fingerprint.

Although fingerprints are unique to every individual, crime scene prints are usually incomplete patterns taken off doorknobs or glass.

Knowing the rarity of a partial print could be useful to forensic scientists who are trying to determine how valuable a fingerprint is as evidence, said Sargur Srihari, a computer scientist at the University at Buffalo who is leading the research.

... Dr. Srihari and his graduate student Chang Su say they have done the same for fingerprints [used the rarity of fingerprints to evaluate fingerprint evidence].

“It’s purely mathematical,” Dr. Srihari said. “We’re simply saying, ‘We just found something that is unusual, and that makes it an important piece of evidence.’ ”

To do the research, the scientists defined fingerprints as a series of points, composed of the endings of ridges and ridge bifurcations.

They then pulled from a database of 4,000 fingerprints kept on file at the National Institute of Standards and Technology and created a computer system that can read fingerprint patterns. Based on a print’s points, the system can mathematically determine its rarity.

...

The research was presented this week in Vancouver, British Columbia, at the annual Neural Information Processing Systems conference.

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Dumb (Ex-)Cops and Robbers

"Less than two hours after they stole $1 million in perfume from a Carlstadt warehouse, a group of cops-turned-robbers met in New York City to deal with concerns that two of the box trucks they rented had been seized at the crime scene, a co-conspirator testified Wednesday. "Brian Checo, testifying for a second day at the trial of fellow New York Police Department officer Kelvin Jones, said he was particularly worried because he had presented his driver’s license to rent one of the Penske trucks in Jersey City earlier that day." from Peter Sampson, Testimony details coverup effort after Carlstadt perfume heist NorthJersey.com (Dec. 10, 2010)

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The Confounding of Experimental Results by Unknown Variables

Jonah Lehrer, "The Truth Wears Off: Is There Something Wrong with the Scientific Method?," The New Yorker 52, 56-57 (Dec. 13, 2010):

In the late nineteen-nineties, John Crabbe, a neuroscientist at the Oregon Health and Science University, conducted an experiment that showed how unknowable chance events can skew tests of replicability. He performed a series of experiments on mouse behavior in three different science labs: in Albany, New York; Edmonton, Alberta; and Portland, Oregon. Before he conducted the experiments, he tried to standardize every variable he could think of. The same strains of mice were used in each lab, shipped on the same day from the same supplier. The animals were raised in the same kind of enclosure, with the same brand of sawdust bedding. They had been exposed to the same amount of incandescent light, were living with the same number of littermates, and were fed the exact same type of chow pellets. When the mice were handled, it was with the same kind of surgical glove, and when they were tested it was on the same equipment, at the same time in the morning.

The premise of this test of replicability, of course, is that each of the labs should have generated the same pattern of results. "If any set of experiments should have passed the test, it should have been ours," Crabbe says. "But that's not the way it turned out." In one experiment, Crabbe injected a particular strain of mouse with cocaine. In Portland the mice given the drug moved, on average, six hundred centimetres more than they normally did; in Albany they moved seven hundred and one additional centimetres. But in the Edmonton lab they moved more than five thousand additional centimetres. ...

The disturbing implication of the Crabbe study is that a lot of extraordinary scientific data are nothing but noise.

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The Truth Wears Off? Empirical Tests of Various Matters -- such as Eyewitness Identifications

Those of you who are interested in empirical studies of matters such as the accuracy of eyewitness identification really should read Jonah Lehrer, "The Truth Wears Off," The New Yorker 52 (December 13, 2010). [Yes, yes, I know: It's not December 13 yet. Complain to the New Yorker, please.]

A snippet:

Although verbal overshadowing remains a widely accepted theory [the theory that witnesses' verbal descriptions of events decrease the accuracy of the witnesses' identifications and descriptions] -- it's often invoked in the context of eyewitness testimony, for instance -- [Professor Jonathan] Schooler [of UCSB, a principal originator of the theory] is still a little peeved at the cosmos. "I know that I should move on already," he says. "I really should stop talking about this [that his repeated efforts to replicate earlier results of empirical tests show decreasing support for the hypothesis of verbal overshadowing]." That's because he is convinced that he has stumbled on a serious problem, one that afflicts many of the most exciting new ideas in psychology.

Following the report of this near-confession by Schooler, the article recounts the story of the Duke psychologist who in the 1930s conducted experiments that suggested that one of his human subjects [a student, Adam Linzmayer] had extra-sensory perception: The student seemed to have an uncanny ability to guess hidden cards in a special deck of cards: "[H]e averaged nearly 50% [accuracy in guessing cards correctly instead of the expected 20%], and pulled off several uncanny streaks, such as guessing nine cards in a row. The odds of this happening by chance are about one in two million. Linzmayer did it three times." However, the Duke psychologist, before publishing his experimental results, tested the student some more -- quite a bit more. What happened? After two years of additional experiments with the student and the deck of cards, this happened: "[T]he student lost his spooky talent." The Duke psychologist (Joseph Banks Rhine) was "forced to conclude that the student's 'extra-sensory perception ability has gone through a marked decline.'"

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Memorable Cases, Memorable Names; Evidence of Third-Party Guilt & the Constitutional Right to Present a Defense

In a recent "unpublished" opinion in a case with a memorable name the Ninth Circuit made some interesting statements about a criminal defendant's constitutional right to present a defense by submitting evidence of a third party's guilt. In United States v. War Club, No. 10-30005, 2010 WL 4670174 (9th Cir., Nov. 1, 2010) the United States Court of Appeals for the Ninth Circuit said:

Robert War Club appeals his conviction ... for the first-degree murder of Richard Green.... ... We conclude that by limiting cross-examination of Green's brother, the district court precluded War Club from developing evidence that Green's brother had a motive to commit the murder. The court thereby deprived War Club of the "meaningful opportunity to present a complete defense" guaranteed by the Constitution. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). ... 

At trial, War Club presented the theory that Richard Comes Last committed the murder at the direction of Green's brother. To support this defense theory, War Club established that Comes Last was at the scene on the morning of the murder because Green had asked him for help inflating a car tire; that Green's body was found adjacent to a portable air tank and on top of a hose connected to an air compressor; and that Comes Last knew the location of a remote control that could have been used to close the door to the garage where Green was killed. War Club also established that Comes Last did odd jobs for Green's brother, whom Comes Last regarded as his "father." 

During his opening statement, War Club's counsel promised to complete the picture by showing that Green's brother possessed a motive for the killing: revenge. Based on a statement given by Green's brother to a law enforcement officer, War Club proposed to prove that thirty years before the murder, Green raped his brother's girlfriend; that Green's brother confronted Green with a gun about the incident; that although Green's brother subsequently married his girlfriend, the rape was a source of tension during the marriage; and finally, that two years before the murder, the marriage ended in divorce due to residual resentment over the rape. War Club tried to elicit this information during his cross-examination of Green's brother, but the district court sustained the government's objection to this line of questioning on the grounds of relevance and prejudice. 

This was error. As an evidentiary matter, "[f]undamental standards of relevancy ... require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged." United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.1996) (quoting United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980) (Kennedy, J.)). This is so "[e]ven if the defense theory is purely speculative," because "it is the role of the jury to consider the evidence and determine whether it presents 'all kinds of fantasy possibilities' ... or whether it presents legitimate alternative theories for how the crime occurred." United States v. Vallejo, 237 F.3d 1008, 1023 (9th Cir.2001). In this context, our cases have relied on Wigmore's admonition that if evidence of third-party culpability "is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt." Id. (quoting 1A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 139 (Tillers rev. ed.1983)); Crosby, 75 F.3d at 1349 (same). 

The district court erred by deeming the evidence War Club sought to develop irrelevant and prejudicial. Although the rape occurred thirty years before the murder, the court failed to appreciate that the divorce occurred two years before the murder, and so was neither too distant nor too attenuated to form the basis for a valid alternative theory of motive. The danger of unfair prejudice was small, relative to the probative value of the proffered evidence--which was the only evidence adduced of Green's brother's motive. ... 

As a constitutional matter, a defendant's right to present a defense--whether grounded in the Fifth Amendment's Due Process Clause or the Sixth Amendment's Compulsory Process Clause--"includes, 'at a minimum, ... the right to put before a jury evidence that might influence the determination of guilt.' " United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). We have identified violations of this right where, for example, a district court has "declared a range of defense theories off-limits, without considering in any detail the available evidence it was excluding," id. at 757; excluded "key corroborative evidence" for a "central" defense claim contesting the government's theory of prosecution, Boulware, 384 F.3d at 808-09; and excluded evidence refuting the government's theory of motive, United States v. Whitman, 771 F.2d 1348, 1351 (9th Cir.1985). Where, as here, a district court excludes evidence material to the defense on the basis of an erroneous evidentiary ruling, "due process concerns are still greater because the exclusion is unsupported by any legitimate state justification." United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir.1992). 

The due process violation is not limited to the exclusion of the potentially exculpatory evidence of the rape and the divorce; the court's ruling hampered other aspects of War Club's defense. For example, War Club cross-examined Comes Last about whom he phoned first after he learned that Green's body had been discovered, 911 or Green's brother. Comes Last testified at trial that he phoned 911 first, but he had previously told a law enforcement officer the opposite. War Club sought to argue that a call to Green's brother before a call to 911 was a warning from one co-conspirator to another. Without evidence of Green's brother's motive, however, the jury was not equipped to grasp the significance of the order of the calls or of Comes Last's inconsistent statements. See Lunbery v. Hornbeak, 605 F.3d 754, 761-62 (9th Cir.2009) (had erroneously excluded statement been admitted, "the remaining pieces of the puzzle would have become more relevant").

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Full-Body Scanners in Churches & Kindergartens Necessary for Security

The Hill (Nov. 23, 2010):

Homeland Security Secretary Janet Napolitano says terrorists will continue to look for U.S. vulnerabilities, making tighter security standards necessary. “[Terrorists] are going to continue to probe the system and try to find a way through,” Napolitano said in an interview that aired Monday night on "Charlie Rose."

According to reliable sources, Secretary Napolitano is studying plans to use body scanners at entrances to churches, monasteries, and nunneries as well as at other undisclosed venues (such as universities and kindergartens). "We know terrorists despise non-Muslim houses of worship. Religious organizations are a major vulnerability. We must protect them."

She added, "There is no reason to believe the use of scanners in and around churches violates the Establishment Clause. Homeland Security is sensitive to civil liberties."

Rumor has it that college students enrolled in courses in secular humanism will soon be regularly strip-searched (by the TSA). Such courses, Homeland officials are rumored to have said, are considered high-value targets by terrorists and are easy to infiltrate. However, there have been sensitive discussions in high levels of government about whether secular humanists deserve the same level of protection as religious believers.


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A word to the wise: Don't believe everything you read.

Confessions & the Right to Present a Defense in Japan

Abridged translation of article in the November issue of the Sentaku Magazine -- published sub nom. Highhanded prosecutors get judicial pat on the back Japan Times Online (Nov. 26, 2010):

[J]udges rely excessively on ... depositions, especially in cases handled by special investigation squads, which exist only at the district public prosecutors offices in Tokyo, Osaka and Nagoya. Thus, investigators in these special investigation squads have gotten the idea that as long as they manage to get a suspect to sign a deposition, courts will find him or her guilty. This presumption has led to unethical, and sometimes illegal, means of obtaining confessions. 

This partly explains why 99.9 percent of defendants in criminal cases are found guilty and why the process has become a hothouse for generating false charges. 

Another problem with criminal court proceedings at present is that public prosecutors present only the "best evidence" to courts. They select the testimony and material evidence that they find useful in winning conviction. Since prosecutors don't have to disclose testimony or evidence favorable to a defendant, it is only natural that they normally succeed in getting a conviction. 

It's the job of defense lawyers to find evidence favorable to defendants. Even if they find such evidence, if it has not been disclosed by the prosecution, they must obtain the Supreme Court's approval for presenting it to a court. The process for getting approval is complex and difficult.

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Three Questions about the Conjunction Paradox

Over the years there has been much discussion about the conjunction paradox that is said to arise from the legal requirement that each essential element of a claim or charge (and, I might add, of an affirmative defense) be shown to some specified standard of persuasion such as proof beyond a reasonable doubt. It has been argued that a paradox arises if such a burden of persuasion requirement is given a mathematical interpretation that assumes that uncertainty is graded cardinally.

Suppose that the preponderance of the evidence standard requires a showing that of more than a .5 probability. On the one hand, if this mathematical requirement applies to each element of a claim and if there is more than one element to a claim, then the legally-requisite probability that the entire claim has been established -- element a, element b, etc. -- holds only if p(a) X p(b) ... p(n) is greater than .5. But if this is the case, it is argued, it follows that the probability of at least one element must be shown to be considerably more than .5. This is said to follow by application of the product rule, which in its simplest form holds that the probability of a & b together equals the probability of a times the probability of b. On the other hand, if the legal burden of persuasion is interpreted to require only that the probability of each element of a claim is more than .5, it is said that another absurd result arises, which is that a party can establish a claim (or an affirmative defense, I would add) even if the party fails to establish that the probability of all of the essential elements taken together is greater than .5.

Quite a few observers have noted that dependencies among the factual hypotheses that a party attempts to establish to establish a claim (or, I would add, an affirmative defense) reduce the numerical anomalies generated by a mathematical interpretation (based on cardinal numbers) of standards of persuasion. But unless the dependencies are complete among all essential elements, dependencies do not eliminate the paradox.

I have three questions:

1. Has anyone noticed the similarity between the conjunction paradox as formulated above and the paradox that arises if it is believed that several testimonial qualities (e.g., veracity vel non, objectivity vel non, ability to perceive vel non, etc.) are essential to an assessment of the credibility of a witness and if one accepts the suggestion (made by at least one probabilist and implicitly also by Edmund Morgan's treatment of chains of inference) that the probabilities of such credibility attributes must be multiplied with each other to arrive at a judgment about the aggregate probability that a witness is credible?

2. Has anyone in the literature argued or suggested that a mathematical interpretation of burdens of persuasion requires that the prior probabilities of the various elements of a claim, charge, or defense be considered and that sometimes or often it it might be appropriate to assume that the prior probability of a fact instantiating an essential element is, for example, more than .5 or .95 or even some higher probability?

3. Has anyone considered what the application of the conjunction paradox to affirmative defenses does to the application of the conjunction paradox to the essential elements of a claim or charge and has anyone argued that the application of the product rule to affirmative defenses makes the conjunction paradox paradoxical?

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