Driving Habits in British Columbia

Habib v. Jack, [2011] B.C.J. No. 560, at *19-*20 (Supreme Court):

In my view, it is appropriate to give weight to Mr. Jack's evidence with respect to his normal practice [of driving a bus]. The propriety of such evidence was noted by Seaton J.A., for the court, in Belknap v. Meakes, [1989] B.C.J. No. 2187 (C.A.):

If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it in that way on the day in question.
Wigmore on Evidence, Vol. IA (Tillers Rev. 1983), states that there is no reason why habit should not be used as evidence either of negligent action or of careful action (Para. 97), and that habit should be admissible as a substitute for present recollection. Phipson on Evidence, 13th ed., para. 9-22, reaches a similar conclusion.

But cf. P. Tillers, "The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey," in Richard Lempert, ed., Evidence Stories (Foundation Press, 2006).

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Perfectly Said

David Brooks, Why Trump Soars NYTimes (April 18, 2011):

[I]n every society, there are a few rare souls who rise above subservience, insecurity and concern. Each morning they take their own abrasive urges out for parade. They are so impressed by their achievements, so often reminded of their own obvious rightness, that every stray thought and synaptic ripple comes bursting out of their mouth fortified by impregnable certitude. When they have achieved this status they have entered the realm of Upper Blowhardia.

What does this post have do with evidence?
Nothing, I think.
But the statement by Brooks is just too delectable to ignore.
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SSRN URL for "Trial by Mathematics - Reconsidered"

The SSRN URL for the abstract of and the link to my paper "Trial by Mathematics - Reconsidered" is http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1798906

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Lay Assessors, or Quasi-Jurors, in Criminal Trials in Japan

See Daniel Senger The Japanese Quasi-Jury and the American Jury: A Comparative Assessment of Juror Questioning and Sentencing Procedures and Cultural Elements in Lay Judicial Participation (Note), 2011 University of Illinois Law Review 741.



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Important New Book: Evidence, Inference and Enquiry (Oxford 2011)

August 2011 will see the publication of a collection of papers on "evidence, inference and enquiry." The collection is edited by William Twining, Philip Dawid and Dimitra Vasilaki. The publisher is Oxford University Press. The papers in this collection grew out of a unique research programme at University College London. The papers in the collection were presented at the British Academy in 2007. I had the great privilege of contributing a paper.

• Please ignore the two typos that appear below in the subtitle of my essay; they will be corrected.

Transformative Scholarship v. Original Scholarship

I have recently heard it said (again) -- by American legal academics -- that legal academics should aim at producing "transformative" scholarship. The general idea seems to be that the best scholarship is scholarship that upends everything we know and believe.

I have a very different view of how original scholarship is done.

First, original scholarship is done by hedgehogs, by people who pay attention to details, rather than by birds who (purport to) soar high above the earth, surveying the landscape.

Second, truly "revolutionary," or "transformative," scholarship is not scholarship that upends and overthrows everything we know. There is an important sense in which there is nothing new under the sun. Truly revolutionary scholarship builds on what has been accomplished and discovered -- usually during the course of many generations.

Truly original scholarship puts the existing stock of human knowledge into a new light. Truly original and transformative scholarship is not scholarship that overthrows everything we previously thought and believed.

Einstein's scholarship was revolutionary. But it was not revolutionary because Einstein rejected Newtonian physics. Einstein did not reject or overthrow Newtonian physics and classical mechanics. Einstein put Newtonian physics into a new framework, a framework that would have literally been inconceivable without Newtonian physics.

Great scholars must have intellectual humility. (It would be nice if they were also humble human beings in general; but that's asking far too much -- of American law professors, in any event.)



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SSRN URL for "The Structure and the Logic of Proof in Trials"

The SSRN URL for the abstract of and the link to my paper "The Structure and the Logic of Proof in Trials" is http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1800864




The final paper and the comments thereon are available at 10 Law, Probability and Risk 1 (2011).

Spindle Law Interview: Robert O'Neil

See Interview with Robert O'Neil

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A Cluster of Bodies

Is a cluster of ten women's remains found along about a ten-mile stretch of a Long Island beach near New York City strong evidence that a serial killer is or was at work? See Sean Gardiner, "New Bones in Killing Probe," Wall Street Journal (April 12, 2011). Would we want to know if there is evidence of foul play in addition to the discovery of the human remains? Would we want to know how long the remains of the various women had been there? Would we want to know how many women usually go missing and die unseen even in the absence of homicidal foul play? Would we want to know something about the movement of the ocean currents along that sad stretch of beach?

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How to Become a Professor: Start a Civil War

Zain Verjee, Source: Gbagbo offered US professorship to end crisis CNN World (April 12, 2011).

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The Government Shutdown & Essential Employees

Are Supreme Court Justices essential employees? Or can we do without them and will they all go to Maine for an early summer vacation?

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Spindle Law Interview: Susan Crawford

See Interview with Susan Crawford


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Spindle Law Interview: Kenneth Feinberg

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See Interview with Kenneth Feinberg

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Spindle Law Interview: Piper Hoffman

See Interview with Piper Hoffman of Outten & Golden
 

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Spindle Law Interview: Yvette Alberdingk Thijm

See Interview with Yvette Alberdingk Thijm





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Spindle Law Interview: Burt Neuborne

See Interview with Burt Neuborne 


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

J. David Goodman, Caught Between Sidewalk and Street NYTimes (April 2, 2011:)

“What is a bicycle?” asked the title of a panel discussion at an international bike conference last month in Spain. “An engine-less car or a pedestrian on wheels?”

...

In Central Park, the odd, middling nature of the bike was put into stark relief during the police crackdown that started in January and focused on the running of red lights. Because the ticketing effort included hours when the park was closed to cars, many cyclists saw it as a form of harassment.

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Rube Goldberg and Factual Proof in Legal Settings

My abstract for a One-Day Workshop on AI & Evidential Inference in Conjunction with ICAIL 2011, Pittsburgh, Pennsylvania, June 10, 2011:

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Peter Tillers, "A Rube Goldberg Approach to Fact Investigation, Evidential Inference, and Factual Proof in Legal Settings"

There is no single logical or analytical process that characterizes effective human deliberation about ambiguous, incomplete, and inconclusive evidence about facts. Some or many of the early proponents of AI knew this: They knew or believed that intelligent creatures -- like those who possess mechanisms like our neural brains -- have a variety of distinct information processing mechanisms (e.g., sensory mechanisms, mechanisms for storing sensory data, etc.) that are clumped together and that, taken together, somehow manage to generate sweet inferential and epistemic music. The work that I did with David Schum led me to an analogous conclusion: Investigating factual hypotheses and drawing inferences about factual hypotheses involve a variety of disparate marshaling processes that, despite their distinctiveness (or, perhaps one might even say, incommensurability), work together in a way not specifiable by any kind of recipe or strict logic to produce elegant and frequently accurate factual inferences. However, it does not follow and it is not true that structured deliberation about evidence is pointless.

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The dynamic evidence page

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New Issue of Law, Probability and Risk

The Nature of the Modern American University

Stanley Fish in Stanley Fish, "We're All Badgers Now," NYTimes (March 21, 2011):

If “universities are not corporations” ever was a good argument, it isn’t anymore because universities, always corporations in financial fact, become increasingly corporate in spirit every day; and if I and my colleagues are not employees, from whom do we receive salaries, promotions, equipment, offices, etc., and to whom are we responsible in the carrying out of our duties? (If it looks like a duck . . . .) It’s not God and it’s not (despite some claims to the contrary) students, and it’s not awestruck admirers of our dazzling intellects.

Of course, in a technical legal sense almost all American universities have been "corporations" for quite some time. The question here is whether American universities today are much like profit-seeking commercial corporations. I agree with my colleague Stanley Fish that in many respects and in most instances the answer is "yes."

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