Universal Principles of Inference?; NAGs(?); Epistemology & Ontology; Aristotle Returns; Inference & Self-Regulation; Inference & Humility

An extended abstract of a forthcoming paper and lecture entitled Are There Universal Principles or Forms of Evidential Inference? is now available. Ibid. The intimidating (or, depending on your perspective, appalling) subtitle of this paper is "Of Inference Networks and Onto-Epistemology."

The author suggests that the age of Aristotle has more or less returned -- and that the field of artificial intelligence a/k/a computational intelligence is partly to blame for this. The author also affirms that, yes, human beings know far more than they can say. The author also makes the wild suggestion that the study of factual inference(!) supports the hypothesis that human beings have some capacity of transcendence and self-regulation -- but that human beings must remain humble about their ability to figure out by means of explicit ratiocination alone how things stand in the world.

What does all of this have to do with the law of evidence and legal regulation of factual proof in legal settings?

Well, in point of fact (so to speak), our answers (if not our explicit answers, then our implicit answers) to basic epistemological and ontological questions have quite a lot to do with the way we believe, for example, that jurors (or judges) ought to be instructed (if at all) about how they should go about the business of assessing evidence and making factual findings.

N.B. The abstract is an abstract of a paper that does not yet exist. So the abstract is a sketch of an anticipated argument. Many details remains to be filled in. And surely corrections will eventually have to be made.

Interdisciplinary Evidence Conference

The British Academy is hosting an interdiscplinary conference on

Enquiry, Evidence and Facts

Dates: 13-14 December 2007

Co-Sponsors: The Leverhulme Trust/ESRC funded research programmes on 'The Nature of Evidence' at UCL and LSE

Convenors: Professor William Twining, FBA, UCL; Professor Mary Morgan, FBA, FKNAW, London School of Economics; Professor Philip Dawid, UCL; and Professor Trisha Greenhalgh, UCL.

For further details see British Academy Conference Web Site.

Organized Crime

Can a criminal gang be an "organization" for purposes of Federal Rule of Evidence 406; if so, can such an organization have a "routine practice" for purposes of that Rule; and, if so, can evidence of such a routine practice of such an organization be admitted in a criminal trial of a member of such a gang to show the member's action on a particular occasion -- to show, e.g., that the gang member shot a gun on a particular occasion?

I was reminded of this question by a story in the Independent exploring the possibility that a killing now much in the news in the UK occurred as a result of a gang ritual, an initiation ceremony. See "On the street, the word is that Rhys was shot in gang's 'initiation ritual'," Independent (August 26, 2007):

Police were yesterday investigating the theory that Rhys Jones, the 11-year-old boy shot dead on Wednesday, may have been the victim of an initiation or blooding ritual where rival gangs fire guns across each other's territory in lethal shows of strength.

&&&

Like many of the self-styled gangs in towns and cities around the UK, the Nogzy and the Crocky have a presence on the internet site YouTube, using videos to show off their collections of guns, vicious dogs and their ability to race and wreck stolen cars. One film begins with a shot of the street sign, identifying the gang's turf, then moves to show a teenager brandishing a heavy weapon, sawn-off shotgun and a quantity of ammunition. Police confirm that some of the weapons they have recovered in raids are those that have been featured in the videos.

&&&

With little to look forward to, it seems that some teenagers feel that supremacy, respect and reputation are worth fighting and dying for. In Manchester, the Benchill Man Dem gang is prominent. Ryan Florence, the teenager who pretended to shoot Tory leader David Cameron during a visit to a Manchester council estate, is part of this. He and his gang dress identically in hooded black designer clothes or imitation labels, and carry guns and knives without any fear of police action.

In Brixton, south London, one can see the initials PDC scribbled on walls, underpasses and on the side of houses. PDC stands for Poverty Driven Children, one of London's most notorious gangs. Hailing from Brixton, they are considered enemies of another gang known as the Gypset. Both consider Brixton "their territory".

The capital's current teenage gang hotspot is Peckham in south London, however, where two rival gangs have fuelled a surge in violence. The most notorious is the Peckham Boys. Some of the group's members were involved in the murder of Damilola Taylor in 2000.

There have been suggestions that the recent "execution-style" killings of three young people (and the nonfatal shooting of another young person) in Newark may have been done as part of a gang initiation ritual. But public officials in New Jersey have been studiously deflecting suggestions that the Newark killings had anything to do with gangs -- even though substantial evidence has apparently surfaced that one or more of the four alleged killers had some connection with or admiration for the gang MS-13. This effort to avoid linking the killings to gang activity may be motivated in part by a desire to keep social peace; New Jersey officials must be worried that widespread belief in a connection between the killings and MS-13 might help to poison relations among ethnic groups in Newark.

Gang cases and the evidentiary issues they present have intrigued me for some time -- because these cases put flesh on what might otherwise seem to be arid intellectual disputes about the inferential validity and normative propriety of of the use of group-to-individual inferences in legal settings such as criminal trials.

Do Prayer Warriors Vote Democratic?

At a campaign forum in early June Hillary Clinton expressed gratitude to the "prayer warriors" who, she said, got her though a difficult time. See, e.g., New York Times online (June 4, 2007).

I had not heard the phrase "prayer warriors" before Clinton used it. A bit of investigation shows that it is used in some religious circles.

Clinton's use of the phrase "prayer warriors" makes me uncomfortable. First, I did not have the impression that people who pray are engaged in war.

Second, Clinton's statement hinted (but did not expressly assert) that she has followers who seek to engage God in something akin to a military campaign on behalf of Clinton and against her unnamed enemy combatants. I wondered if she was hinting that God is on her side and against, say, Republican Presidential candidates.

Third, Clinton's use of the phrase seemed out of character. It is quite true that Republican Presidential candidates have hinted (on numerous occasions) that God is on their side. But I had the impression that Hillary Clinton (unlike her husband) opposed the use of religion in that fashion.

The debasement of both religion and Hillary Clinton.

P.S. I do not object to the use of prayer by political candidates. For example, I do not object if politicians pray for divine guidance -- even if they do so in public. But I am troubled by the notion of politicians urging followers to pray for the success of a particular impliedly war-like political campaign.

Intangible Property: Wind

Photograph of Western Siberian Windmills, Sergei Mikhailovich Prokudin-Gorskii (1909-1915) (public domain)

&&&&&

Sebastian Knauer, Who Owns the Wind?, Der Spiegel online (May 4, 2007):

It's an offense not mentioned in the bible or the statute books. But in a broader sense it is about theft, even when the booty itself is invisible. But it is still a major problem for the German legal system, including a court in Leipzig that is currently hearing a case involving a dispute between the operators of two wind turbine facilities. Who owns the wind?

The parties in the dispute are the owner of a wind farm in Deliztsch in the eastern German state of Saxony and a businessman, who wants to set up a bigger wind farm in the immediate vicinity.

Zell Kravinsky Gave Away a Kidney...

...to save a stranger who needed it. See Ian Parker, "The Gift," The New Yorker, August 2, 2004, p. 54. He also gave away most of his considerable fortune ($45 million).

His wife complained mainly about his decision to give away one of his two kidneys.

What -- if anything -- was wrong with Kravinsky's logic?

Kravinsky calls himself a utilitarian. In the spirit of Peter Singer, I guess. But that self-characterization strikes me as odd. Zarinsky seems more like St. Francis of Assisi -- but without Christian or other religious trappings.

In an interview on BBC radio (dated August 25, 2007) ZK called a refusal of a person (any person) to donate one of two healthy kidneys "murder." He also wondered whether he would be obligated to give away his other kidney if doing so would save the life of a donee who he knew would -- through, e.g., medical research -- save the lives of hundreds, thousands, or millions of other people.

Of course, putting aside the question of Zell Kravinsky's duty to his family, Zell Kravinsky probably needs no logic to defend himself. If ZK chooses to give away his fortune and one of his kidneys, is it possible to argue that Kravinsky is doing something wrong or "incorrect"? (Well, yes, I know: it is almost always possible to make an argument -- if, that is, even a patently absurd argument counts as an argument. But you know -- seriously, admit it, you do know -- what I mean.)

Perhaps there is a slippery slope problem here. The surgical procedure to remove a kidney does slightly increase the donor's risk of death. But suppose that the increased risk of death is substantial -- e.g., 10%. What then? Some observers might contend that in such a situation the ZKs of the world would need a justification. (But, note, this revised situation is not much like suicide -- since even in the revised scenario the donation is made to save another person's life, not to terminate the grief or suffering of the donor.)

The Newark Killers & MS-13

There have been reports that some of the alleged killers of the three young people in Newark are members or admirers of the gang MS-13. See, e.g., here, here, and here. Should any such evidence about MS-13 be admissible in the trial or trials of the alleged killers for murder and for, e.g., conspiracy to commit robbery?

This problem would make a nice examination question in an Evidence course.

Note 1. Does it matter whether or not the alleged killers were or were not in fact members of MS-13?

Note 2. Does the evidence show or suggest that some but not all of the killers are members of MS-13 or admire MS-13? If so, does this matter?

Note 3. Some of the evidence of an affection for MS-13 may reside on a computer web site (MySpace) and on a computer controlled by one of the killers. Does this fact implicate the First Amendment? If not, does it matter (to the question of admissibility) whether or not, e.g., the page on MySpace was seen, e.g., by its creator -- one of the alleged killers -- as a vehicle for self-expression -- or perhaps even as a vehicle for the expression and communication of political or ideological sentiments?

Note 4. Does the use of evidence about MS-13 amount to invidious profiling? Would statements by gang members in, e.g., Guatemala be admissible? If you think not, would your answer change if you found out that the alleged killer heard such statements (about, e.g, an intent to rob, torture, etc.) by the gang member in Guatemala?

Note 5. Would evidence of membership in MS-13 amount to prohibited character a/k/a propensity evidence? Or would such gang membership just amount to evidence of motive, intent, or some such thing? Does it matter what, precisely, "evidence of membership in MS-13" amounts to?

Enough questions for now. Perhaps you folks have some thoughts. (I have not even mentioned here the possibility that evidence of membership in MS-13 might be unduly prejudicial because, e.g., the evidence suggests that the alleged killer is an illegal immigrant or, say, because the gang membership evidence "reinforces" the jury's awareness of the ethnic identity of the alleged killer or killers.)

New Articles by Professor Mirjan Damaska and Judge Jon Newman

A new issue of Law, Probability and Risk is now in print. Here is the table of contents.

One of the articles in the new (double) issue of LPR -- 5 Law, Probability and Risk Nos. 3-4 -- is by Mirjan Damaska of Yale Law School. This article, a response to an article by Professor Frederick Schauer, has a penetrating and important discussion of the old question of the relationship between trial by jury and the law of evidence. The article: The jury and the law of evidence: real and imagined interconnections.

The short paper -- a comment -- by Judge Jon O. Newman of the U.S. Second Circuit Court of Appeals discusses an earlier three-sided discussion in the same journal about possible quantification of the reasonable doubt standard of proof in criminal trials. Judge Newman's paper: Quantifying the standard of proof beyond a reasonable doubt: a comment on three comments. (The participants in the earlier three-way discussion were Professor James Franklin, Judge Jack B. Weinstein and Ian Dewsbury, and Peter Tillers and Jonathan Gottfried. See table of contents for 5 Law, Probability and Risk No. 2 (2006).)

Reason Within and Reason Without

I am, of course, not the first to suggest the necessity of a relationship between the reason within human beings and the "reason" that inhabits the "external" world.

For example, Immanuel Kant and G.W.F. Hegel both asserted an intimate relationship between internal and external reason. However, in various very important particulars, I view that connection -- the connection between the logics that operate in the human brain (a/k/a human organism) and the logics that pervade the "external" world --, I view that relationship very differently than either Kant or Hegel did.

I suspect it is necessary (and appropriate) to speak of logics that are immanent in the human organism. These are logics that become apparent mainly as a result of encounters between the human organism and the external world, i.e., through experience. These encounters serve, eventually, to reveal some of the properties of the external world -- and also some of the properties of the human organism and of the logics or processes by which the human organism grapples with the external world and tries to comprehend it.

The vision hinted at above is more Aristotelian than Kantian.

My speculative vision of things -- such as it is -- is for various reasons not a Hegelian vision -- even though Hegel talks far more than Kant does about an immanent reason that becomes explicit and "real" over time. But I do not want to become mired in a discussion of what was wrong with Hegel's vision or in a discussion of what his vision really was. The amount of intellectual labor necessary to dispel the murk around such questions about Hegel's philosophy is excessive.

The Courage to Speculate (about Evidential Signs)

I see that the grand speculations of an ex-Yalie (a guy from my alma mater) about the possibility that we human beings and our real or unreal environment are really part of a computer simulation of some future posthuman species -- I see that these speculations are being taken seriously by the New York Times, by Oxford University, and by at least some philosophers. See, e.g., here, NYTimes and here, the article itself and here, related material.

The speculator's name is Nick Bostrum and he is the "director of the Future of Humanity Institute at Oxford."

On reading this, I realized not only that I have been out of college too long and out of touch with some delicious philosophical speculation that is apparently now in vogue. (It must be an exciting time to be a philosophy - cosmology - computer science - artificial intelligence - artificial life - logic - etc. student.) I also realized that I must not be too timid in speculating about the role in inference of something akin to medieval "signs." So I will now say a few words -- but just a very few words -- about this.

Point 1. Plato (speaking through Socrates) was not correct in saying or suggesting that all knowledge is already in the human head.

Well, Plato was, in any event, exaggerating.

Point 2. Reference classes and, more broadly, experience (experimental data, observations, sensory information, etc.) do not "speak for themselves". That is, no algorithm or rule specifies or can specify the import or probative force or any such thing, of multiple sensory inputs, observations, reference classes, etc.

Point 3. Human beings do know things about the world (and about themselves).

Point 3A. A few such things people "know" almost immediately, from the moment of birth. But not too many.

Point 4. People learn things as they grow older and the human species gains, collectively, knowledge (in some domains) as it grows older.

Point 5. Experience with the environment, interactions with the environment, observations, experimental data, etc. are necessary for the acquisition of human knowledge. But not sufficient. (All such information is fragmentary, incomplete, inconclusive. Indeed, the behavior of reference classes is, on its own, mute, wholly voiceless.)

Point 6. The human brain and the human organism [does it follow?] must be attuned, tuned, hard-wired in a very particular and striking way: it (let us over-simplify by calling the knowing entity involved the "human brain," even though much more than the brain is involved [for example, even the retina "computes"]) -- the brain a/k/a the human organism has wired in it some sort of logic, a very sophisticated logic, that lets the human organism read what is signified by the sense experience that it has; and that in-wired, indwelling, logic is more than just some logic that allows a separated human observer to make make sense of a silent inert (or non-inert) and external mass, matter, energy -- silent and external stuff. The logic that the human organism must have must be a logic that in some way resonates with the environment, with the cosmos, with the stuff around it, etc.

So in a sense Plato was right after all. The point, metaphysically viewed, is that we human beings have to work out over time and with experience what we know about our environment (which includes ourselves); we must, let us say, develop the knowledge that we have partly within ourselves and we must must and can develop our knowledge only through experience; and through time and experience we read nature in order to make sense of it -- but nature is a "text" that over time, and with much work and experience by human beings, allows itself to be read, that can be read bit-by-bit.

But it is silly to think that we are close to consciously knowing all there is to know. My guess is that almost exactly the opposite is the case: as yet, we see and understand only as through a glass darkly.

Gosh, this is almost enough to make a fellah religious. However, the stuff here is rank speculation. It may even be sheer gibberish. But, ... yet..., wait a minute! Although the thoughts written here may not hang together very well, my strong hunch is that they are not gibberish and that they point the way toward a better understanding of the many mysteries of "evidential inference."

Embedded Generalizations and Deeply-Embedded Generalizations

Some "generalizations" -- some general principles about the workings of the world (along with some sorts of rules for applying them) -- are embedded in the human brain -- or, more broadly speaking, some rules of inference (including, perhaps, "generalizations") are embedded in the human organism. When such principles are at work, we sometimes speak of "reflexive" thought and action. Consider the following example (provided by the authors of an extremely interesting book in order to make a somewhat different point):

You step off the curb. A horn blares to your left. You step back onto the curb. A good thing, too, you think, as a pick-up truck whizzes by.

John Woods, Ralph Johnson, Dov Gabbay & Hans Ohlbach, "Logic and the Practical Turn," in HANDBOOK OF THE LOGIC OF ARGUMENT AND INFERENCE 1, 10 (2002) (vol. 1 in series STUDIES IN LOGIC AND PRACTICAL REASONING, eds., D. Gabbay, J. Siekmann, J. van Benthem & J. Woods).

The "generalization" or generalizations that are at play in such a situation (the one involving the pick-up truck) probably are not exclusively a result of genes. A human being from, say, a remote settlement in a region of the world without automobiles, trucks, and horns might not react exactly the same way if placed in a city and presented with the blare of a horn from a pick-up truck.

But some "reflexive" rules of inference (and resulting actions) may be less dependent on inferential skills developed as a result (in part) of interactions with a specific kind of environment. Consider the "instinctive" ability of the human organism (eye, brain, etc.) to construct a three-dimensional image of, say, a ball when certain certain light signals pass into the human eye and meet the retina. See, e.g., Steven Pinker, "The Mind's Eye," HOW THE MIND WORKS 211-298 (1997); Daniel Chandler, Visual Perception; James Todd, The visual perception of 3D shape (March 2004); P. Tillers, Perceptual Errors. Many such inference rules are so deeply embedded, so to speak, that it is quite hard to know what those rules of inference are. (Sometimes, it is thought, such inference rules do not even exist. But this way of thinking about perception is error.) Consider: human beings often have the ability to distinguish human screams that are generated by fear and terror from human screams that are generated by joy and pleasure. Although it may be possible to figure out how human beings make this distinction -- researchers are hard at work on similar kinds of problems -- it will take much study and research to figure out the rules that human beings use to infer which kind of scream -- fear-inspired or terror-inspired, or some other kind -- they are hearing.

Are explicit generalizations in explicit inferential reasoning a superstructure plunked on top of a submerged iceberg of tacit inference? Or are explicit inference and the generalizations involved in them more autonomous? Fully autonomous? Relatively autonomous? If not always, sometimes? What is the usual relationship between tacit and explicit inference in the sorts of factual problems encountered in legal settings such as trials?

Note: today -- and was it not always so? -- almost all people are familiar with the phenomenon of visual illusions a/k/a optical illusions and other perceptual illusions, perceptual tricks and delusions.

Penrose Triangle
(public domain)

Question: what does the existence of such illusions prove? Answer: not much. The important question, and the hard question, is when visual errors and illusions occur and what if anything we can or should do about them.

Generalizations

Generalizations, it is said, are crucial to inferences about the workings of the world. But there is a deep mystery about how and why generalizations work (if they do work). Consider John Woods, Ralph Johnson, Dov Gabbay & Hans Ohlbach, "Logic and the Practical Turn," in HANDBOOK OF THE LOGIC OF ARGUMENT AND INFERENCE 1, 16 (2002) (vol. 1 in series STUDIES IN LOGIC AND PRACTICAL REASONING, eds., D. Gabbay, J. Siekmann, J. van Benthem & J. Woods):

How is it possible that there be a range of cases by which projections from samples are so nearly right while at the same time qualifying as travesties of what the logic of induction requires? The empirical record amply attests to a human being's capacity for pre-inductive generalization and projection.

Dramatic Use of Statistics in a $280 Billion - $800 Billion Cigarette Case

In Schwab v. Philip Morris USA, Inc., 449 F.Supp.2d 992, 1239-1241 (E.D.N.Y. 2006), Judge Jack Weinstein wrote:

A. Aggregate Proof

Plaintiff's use of aggregate proof does not violate defendants' constitutional rights. The appropriateness of such proof has been analyzed in numerous memoranda. See, e.g., Blue Cross, Appendix B at Part VII and D, infra. Experience with several years of discovery in this and related tobacco cases, and two full trials, has strengthened the conclusion that statistical proof combined with other evidence is a necessary and pragmatic evidentiary approach that reflects full due process in this and many other massive tort cases. It is consistent with defendants' constitutional rights and legally available to support plaintiffs' RICO claims. This case, involving alleged mass market fraud on smokers whose economic injuries, if any, are calculable on an objective basis not involving individualized questions of medical harm, is even better suited than previous cases to such aggregate proof. Cf. Blue Cross, Appendix B, infra (damages sought for all increased payments made to individual insureds by health plan); Simon II, Appendix D, infra (punitive damages class sought based on estimate of compensatory damages due to personal injuries incurred from smoking).

The idea that due process and jury trial rights require a particularized traditional form of evidence for each element would make this case and cases like it impossible to try. There is little harm in retaining a requirement for "particularistic" evidence of causation and damages in sporadic individual accidents where there are but a few medical histories and witnesses; such evidence is almost always available and convenient in such litigation. See, e.g., In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 832-34 (E.D.N.Y. 1984). Even in such cases use of almost any experts, whether doctors or DNA experts, depends upon the implied or express probabilistic underpinning of their professional judgments.

In mass fraud cases with hundreds of thousands or millions of injured the cost of one-on-one procedures is insuperable and unsuitable for either a jury or a bench trial. The consequence of requiring individual proof from each smoker would be to allow a defendant which has injured millions of people and caused billions of dollars in damages to escape almost all liability. As Professor Rosenberg noted almost a score of years ago, such restrictions in the form of admissible evidence is impractical and unnecessary. "The concept of 'particularistic' evidence suggests that there exists a form of proof that can provide direct and actual knowledge of [the parties' conduct]. 'Particularistic' evidence, however, is in fact no less probabilistic than is the statistical evidence that courts purport to shun." David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 Harv. L. Rev. 851, 870 (1984) (footnotes omitted). Many commentators agree. See, e.g., Peter Tillers, Symposium: Artificial Intelligence and Judicial Proof, 22 Cardozo L. Rev. 1365 (2001) (describing tendency of evidence scholars to rely on mathematical and quantitative methods, such as probability theory, statistics, and decision theory); Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv. L. Rev. 961, 1203 n.580 (2001); Laurens Walker & John Monahan, Sampling Liability, 85 Va. L. Rev. 329 (1999) (using statistical evidence is a reliable and practical method for mass trial); Robert G. Bone, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 Vand. L. Rev. 561 (1993); Jonathan J. Koehler & Daniel Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use Of Overtly Probabilistic Evidence and Methods, 75 Cornell L. Rev. 247, 248 (1990) (although courts should carefully determine the validity of probabilistic evidence, "overtly probabilistic evidence is no less probative of legally material facts than other types of evidence"); Michael J. Saks & Robert F. Kidd, Human Information Processing and Adjudication: Trial By Heuristics, 15 L. & Soc'y Rev. 123, 151 (1989-1990) ("Much of the testimony that is commonly thought of as particularistic only seems so. It is far more probabilistic than we normally allow jurors (or judges) to realize."); cf. The Evolving Role of Statistical Assessments as Evidence in the Courts 78-79 (Report of the American Academy of Science Panel on Statistical Assessments as Evidence in the Courts) (Stephen E. Feinberg ed. 1989) (noting the contradiction between some courts' insistence on evidence that seems certain, and such "probabilistic" institutions as plea bargaining, in which decisions are made on the basis of "probable" outcome). But see the objections (generally rejected by academics and courts) in Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971). See generally Federal Judicial Center, Manual for Complex Litigation (Fourth) Section 11.493 (2004) (guidelines for use of sample surveys); David H. Kaye & David A. Freedman, Reference Guide on Statistics, in Reference Manual on Scientific Evidence (Second) 83-178 (Federal Judicial Center, 2000).

The Federal Rules of Civil Procedure and the Federal Rules of Evidence grant district judges broad authority to shape the nature and scope of admissible evidence for trial. Scientific evidence--such as sampling and statistical extrapolations--is well suited to mass tort actions. It is particularly appropriate in massive consumer fraud cases, so long as it passes the gatekeeping criteria described in the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and related cases. Many states have provided special mechanisms for handling consumer fraud claims in the aggregate, recognizing that many such claims cannot be economically tried individually. When, as in the case at bar, the plaintiffs are a widely spread group complaining of injury from a common course of conduct by defendants, statistical analysis may provide a more accurate and comprehensible form of evidence than would the testimony of millions of individual smokers. See Blue Cross & Blue Shield of N.J., Inc., 133 F. Supp. 2d at 172 (explaining propriety of statistical extrapolation for entity suffering damages in aggregate); Blue Cross & Blue Shield of N.J., Inc., 36 F. Supp. 2d at 575 (E.D.N.Y. 1999) ("The aggregation of millions of alleged injuries in the instant suit can be expected to yield more accurate results with respect to the causation issue since projections based upon a large statistical base will be available, thus reducing the size of the possible error.").

Resolving mass tort disputes on a case-by-case basis may create a systematic bias against plaintiffs because, "[w]hile defendants spread the risk of adverse judgments across all test trials, each trial decides the fate of each plaintiff party on a single roll of the dice." David Rosenberg, Mass Tort Class Actions: What Defendants Have and Plaintiffs Don't, 37 Harv. J. on Legis. 393, 430 (2000); Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95 (1974) (importance of defendants' roles as repeat players). The defendant who successfully resolves a mass tort dispute with aggregate tools enjoys the economic benefit of a final resolution to all proceedings, not just a single case. Cf. Simon v. Philip Morris Inc., 200 F.R.D. 21, 43-46 (E.D.N.Y. 2001) (discussing public policy supporting aggregation).

Professors Laurens Walker and John Monahan of the University of Virginia Law School discuss and defend Judge Weinstein's rulingin their article Sampling Evidence at the Crossroads. The abstract of their article reads this way:

The use of sampled evidence in mass tort cases is at the crossroads. In McLaughlin v. Phillip Morris, Judge Jack B. Weinstein of the Eastern District of New York certified a nationwide class action on behalf of an estimated 50 million "light" cigarette smokers. In the face of the overwhelming cost of gathering evidence from tens of millions of plaintiff class members, he announced a dramatic trial plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. The central issue in the interlocutory appeal now before the Second Circuit is the legality of statistical sampling. This Article strenuously defends Judge Weinstein's strategy of relying on evidence produced through proven methods of sampling. Such an aggregate strategy is not only much more cost-effective than case-by-case evidence gathering, it is also much more likely to arrive at an accurate determination of damages. By laying out a comprehensive proposal for the use of sampled evidence in litigation, the authors hope to hasten the day when legal decision makers finally accept a practice than has been a hallmark of scientific decision making for the past sixty years.

Wigmore Lifetime Achievement Awards

Professor Michael Risinger, Chair of the Evidence Section of the Association of American Law Schools, announced yesterday that Wigmore Lifetime Achievement Awards would be given to

William L. Twining

and

Judge Jack B. Weinstein

Very appropriate!

Stuart Taylor, Jr., Is One Smart Cookie ...

... but I did just see him use the following phrase in The Atlantic online:

The kind of DNA evidence that can conclusively prove innocence or guilt ...

Oh dear, oh dear, oh dear!

For an explanation, please see here and here (comments provoked by the Central Park Jogger case).

And, dear Reader, just in case you are too lazy to click one of those two links, allow me to quote myself:

Even if we assume that DNA technology and laboratory procedures have improved so much that when a DNA test shows a "match" or "exclusion" we are effectively compelled to conclude, respectively, (i) that two samples containing DNA have a common source or (ii) that two such samples do not have a common source -- even if we assume that DNA evidence and laboratory procedures have gotten this good, the probative force of DNA evidence on a question such as criminal guilt or innocence always depends on a swarm of surrounding assumptions, evidence, and facts. Bottom line: DNA by itself never establishes a proposition such as "guilty" or "innocent."

I think that the Innocence Projects on the whole do God's work. (No one except a saint always does God's work.) My sense is that almost everyone thinks that the Innocence Projects are wonderful, divine, even saintly. Is it the desire to convey this sentiment -- to pass out congratulations and encouragement and to be counted among the good guys and gals -- that leads normally-thoughtful observers to exaggerate the epistemic (inferential, evidentiary) authority of DNA?

Think for a moment. Just for a minute. Please! (Try it. You might like it.) For example, consider questions such as these:

1. Does DNA [or a fingerprint] indicate -- conclusively indicate, that is -- the mental state of the person who is the source of the DNA [or fingerprint]?

2. Does the existence of one person's DNA [or fingerprint] in a particular place rule out the possibility of some other material in that same place that has another person's DNA [or fingerprint]? If not, will both samples -- with DNA or fingerprints -- always be found? If not, what follows?

3. Can a sample with a particular person's DNA [or fingerprint] be "planted"?

4. Does a DNA sample [or a fingerprint] conclusively establish when or how the DNA [or the fingerprint] came to be where it was found?

Suppose a sample with Person A's semen is found on a window sill near the victim's body. What if anything does this discovery conclusively prove? Does it conclusively prove how the DNA or fingerprint sample got there? When it got there?

5. Is the process of DNA identification [or fingerprint] fully automated? (Answer: No.) If it were, would the possibility of error be ruled out? Do machines ever malfunction? Do they ever wear out? Are they ever manipulated? (Is it hard or impossible to make a process so "automated" that it cannot be manipulated by a human being?)

6. Can a sample bearing a person's DNA be (literally) blown by the wind? Can a sample bearing a person's DNA be carried by a dog? (Can human hairs be carried by the wind? Do dogs move about and can they carry human hairs?) Can person A's DNA by transferred to person B by a handshake between A and B? (I don't know the answer to this question. But my guess is that the answer is "yes.") Can person A's DNA find its way onto person B if person B wears unwashed clothing that A has recently worn?

7. Does the presence of man A's semen in a woman X's vagina "conclusively" prove that man B did not have intercourse or attempt to have intercourse with woman X?

8. Do I need to keep asking such questions about such appalling situations to prove my point? (Alas, apparently I do.)

What is it that leads intelligent people to exaggerate the power of DNA evidence beyond all reason and common sense? Is it an anxiousness to affirm the great service that has been done by the Innocence Projects? Perhaps. But is such noble-minded exaggeration dangerous? I think it's possible -- I think it's probable -- that the answer is "yes."More is at stake here than a persnickety concern about the precise use of language.

If one believes that something is certain (whether it's guilt or innocence), one naturally has a tendency to think that such a certainty is not worth investigating. Why bother?

And what happens if a certainty is overthrown -- if, for example, a person said to be certainly innocent is shown to be probably guilty, or vice-versa? What kinds of feelings might one then have if "one" is, for example, a trial judge, a juror, a crime victim, a legislator, or just a member of the public who has a recollection of the past?

Incidentally, are prosecutors and expert witnesses for the prosecution always the only sinners? Should we trust defense counsel and expert witnesses for the defense for the same reason that we are asked to trust Google -- because we know or believe that they're the good guys and gals and wouldn't do anything wrong or even think of doing anything wrong? (And we're sure, aren't we, that the good guys and gals who run Google now will always run Google -- or that if the good guys and gals at Google prove to be mortal, their replacements will be just as good as the originals? Hasn't every President of the United States been as good as old George [Washington, I mean]? Q.E.D.)

&&&

Well, now I had better read the rest of Taylor's article. He is, after all, one of the best journalists around. He's ordinarily first-rate. But all of us get snookered now and then. Including me. It's entirely possible I've made a mistake in this very post. (That's a bit of a paradox, I suppose. But there you have it. And I still think -- for the moment -- that what I've said here -- or most of it -- is correct. But I could be wrong in thinking that.)

How Do and How Should Human Beings Use Reference Classes (Relative Frequencies)?

James Franklin & Scott Sisson, Assessment of Strategies for Evaluating Extreme Risks, (ACERA Project No. 0602, March 2007):

[Previously enumerated] considerations suggest this important conclusion, which is central to the point of view of this report:

It is reasonable to give human intuition the “last word” in risk assessment, while at the same time trying to use formal statistical methods as a kind of prosthesis to supplement its known weaknesses.

A problem where the superiority of human intuition over formal methods is especially evident – and one very relevant to extreme risks – is the “reference class problem” (also called in artificial intelligence “multiple inheritance”). The most basic evidence for probabilities in an individual case is observation of a relative frequency (in a class of which the case is a member). For example, the probability that Tex is rich, given that Tex is a Texan and 90% of Texans are rich, is 0.9. But typically, a case is a member of very many classes, in which relative frequencies vary. And there is no useful theory explaining how to combine the probabilities arising from the different “reference” classes. For example, if the evidence is that Tex is a Texan philosopher, that 90% of Texans are rich and 10% of philosophers are rich, then it is impossible to say how to combine these two numbers to achieve a numerical probability that Tex is rich, on the given evidence. (Hájek, 2006) The problem has caused a great deal of trouble in, for example, the law of evidence, where there is often evidence of different classes but it is of dubious legal relevance (Colyvan et al, 2001; Tillers, 2005), and in attempts to construct medical diagnosis expert systems, where combining evidence from different symptoms is essential but how to do it is theoretically poorly understood. (See also Caponecchia, 2007, section 4 for its relevance to communicating probabilities.)

Yet humans are very good at combining different kinds of evidence. Where they have an advantage over formal methods is that they can learn from long experience the comparative relevance of different reference classes. For example, they can learn enough about being Texan, being a philosopher and being rich to have some sense of whether being Texan or being a philosopher is more likely to be relevant to being rich. The vocabulary of natural languages is already attuned to naming concepts that are relevant to living, that is, are positively relevant in probabilistic inferences; which of them are most relevant to a particular inference is something that itself can be learned – but only over a long period, and in the context of very many other concepts.

That wide base of experience and the resultant tuning of concepts is not something that should be put aside when it comes to extrapolating from experience when evaluating extreme risks. On the contrary, is it a foundation that must be built on. It is the wide base of analogous cases that can compensate for the lack of data of directly relevant cases that is a feature of extreme risk analysis.

Reincarnation Only by Permission

A BBC report on the Tibetan Dalai Lama recounted (purported to recount?) that the Chinese Communist Party had proclaimed that reincarnation henceforth could occur only with the the permission of the Party.

Now that's temporal power!

Professor Larry Laudan Searches for Legal Epistemology and Can't Find It

I see that Prof. Larry Laudan wrote in Chapter 1 of his book Truth, Error, and Criminal Law, An Essay in Legal Epistemology (Cambridge University Press 2006):

The effort to answer that question constitutes what, in the subtitle of this book, I have called “legal epistemology.” Applied epistemology in general is the study of whether systems of investigation that purport to be seeking the truth are well engineered to lead to true beliefs about the world. Theorists of knowledge, as epistemologists are sometimes known, routinely examine truth-seeking practices like science and mathematics to find out whether they are capable of delivering the goods they seek.

Legal epistemology, by contrast, scarcely exists as a recognized area of inquiry. Despite the nearly universal acceptance of the premise that a criminal trial is a search for the truth about a crime, considerable uncertainty and confusion reign about whether the multiple rules of proof, evidence, and legal procedure that encumber a trial enhance or thwart the discovery of the truth. Worse, there has been precious little systematic study into the question of whether existing rules could be changed to enhance the likelihood that true verdicts would ensue. Legal epistemology, properly conceived, involves both a) the descriptive project of determining which existing rules promote and which thwart truth seeking and b) the normative one of proposing changes in existing rules to eliminate or modify those rules that turn out to be serious obstacles to finding the truth.

Gosh, I had the impression that the "new evidence scholarship" had something to do with epistemology. And this sort of evidence scholarship has been around for a while, for at least several decades. (It's no longer very new. Indeed, some observers said it was never very new -- that it has really been around since ca. the 17th century, and perhaps since Aristotle. Id.) But I guess I must be mistaken. Perhaps the so-called new evidence scholarship just isn't systematic enough to make into the pantheon of "legal epistemology"? Or perhaps it's not old enough to make the grade? I'll have to consult Jim Franklin about this.

Demeanor as Evidence

Prof. Laurie Levenson is publishing a promising-looking article on courtroom demeanor. Its subtitle is "The Theater of the Courtoom."

This topic -- the evidentiary status of the behavior of people in the courtroom -- is extraordinarily important (as Prof. Levenson fully recognizes) for both practical and theoretical reasons. The abstract of her article reads thus:

The American criminal courtroom is a theater where courtroom actors play out the guilt or innocence of the defendant for the jury to assess. Although one view of the courtroom is that of a controlled atmosphere where cases are decided based only on formal evidence, this view is undoubtedly unrealistic. Trials are affected by many factors, including the appearance and demeanor of the defendant. This article proposes an approach to deal with non-testifying demeanor evidence that occurs outside the witness box. Given the problems with having jurors rely on demeanor evidence, courts should be carefully monitoring the use of non-testifying demeanor evidence. Appropriate jury instructions should be given, including those warning jurors on proper use of such evidence.

Let's Not Give History Too Much Credit (or Blame): Thomas Davies on the Fifth Amendment Privilege against Self-Incrimination

Professor Thomas Y. Davies's recent attacks on the Supreme Court's view of the historical foundations of the Confrontation Clause are part of his broader campaign against the the Court's persistent misreading of history. In at least some of his published work Davies suggests that the Court's unwitting falsification of 18th century practices and understandings contributes to the trivialization of important constitutional rights and doctrines. In a 2003 article recently posted to SSRN, "Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right against Self-Incrimination as a 'Trial Right' in Chavez v. Martinez," 70 Tennesssee Law Review 987 (2003), Professor Davies concludes (foonotes omitted):

The point of this article is not that we should return to the original interpretation of the Fifth Amendment. That obviously is not feasible at this late date. Moreover, although the rigorously accusatory criminal procedure of the framing era may have been adequate for criminal justice in close communities, it would not be adequate for today’s mobile, urban society of strangers. There is a need for professional police and for proactive law enforcement and investigation; hence, police investigation, including interrogation, in some form, surely is here to stay.

Instead, my point is that assessments of the current status of the Fifth Amendment right should not proceed under the false notion that the current treatment of that right is equivalent to the right that the Framers intended to preserve. That false notion is deleterious because it tends to give an aura of inevitability to the current treatment of the right, and that aura tends to block critical appraisal of the choices that actually have shaped its content.

The authentic history of the Fifth Amendment right is a story of a right that has been shrunk by a drastic expansion of governmental criminal justice power, including governmental interrogation power. Moreover, that shrinkage has been permitted, to a large degree, because of the inattention and inaction of the Supreme Court. In particular, the Court initially failed to ask, or perhaps even perceive, the hard questions that were posed by the emergence of police interrogation as an unprecedented form of governmental interrogation. Despite the obvious danger of compelled self-incrimination in the backrooms of the police station, the Court failed to respond by developing a coherent view of what the Fifth Amendment right should mean regarding police interrogation. In addition, although the Miranda decision finally made a modest beginning in applying the Fifth Amendment right to impose conditions on custodial interrogation, even that regime of warnings and waiver has been undercut by more recent decisions. In fact, the opportunities for police interrogation of suspects have recently been expanded by decisions that have lowered the standard for taking suspects into custody, or that have permitted custodial arrests for minor offenses, even if such arrests amount to pretexts.

What is still necessary is for the Justices of the Supreme Court to take the question of what the Fifth Amendment right should mean today more seriously than they did in Chavez. At a minimum, the Justices should stop pretending that they are merely following the dictates of the text or original meaning of constitutional provisions when they are actually reinventing that text.

Regardless of what one might think of the claim for section 1983 damages in Chavez, deciding the question of whether there was a violation of the Fifth Amendment right merely on the basis of an acontextual, ahistorical, and essentially arbitrary definition of the word “case” in the 200-year-old text hardly constitutes meaningful constitutional interpretation.

The question that still needs to be addressed seriously and directly is what kind of police and criminal justice power is consistent with a free and civil society. Specifically, when is police interrogation compatible with a meaningful conception of a right against compelled self-accusation, and what conditions should be mandated when such interrogation is permitted? Whatever one might think of the appropriateness or efficacy of the specific regime of warnings and waiver that the Warren Court required in Miranda, that decision at least began to move—albeit haltingly—in the direction of addressing these crucial but long overlooked issues. The claim in Chavez, that the Fifth Amendment right is merely a trial right, is a large step in the opposite direction.