Friday, September 06, 2002

Clever Compliment(?)

The author -- creator, owner, master, governor? -- of a blog on appellate litigation -- Howard Bashman -- says that this blog on evidence "sounds as though it could be nearly as boring as a blog devoted to the subject of appellate litigation." This is either a compliment or faint praise. Or perhaps it is outright criticism. And if it is criticism, it is virtually unanswerable. Well, I won't let any of these subtle considerations deter me, I will assume the worst, and I will just plow on -- mainly by admitting the case against this blog:

The question of whether Muslim religious beliefs are evidence of terrorist inclinations is ... soooo boooooring!(?)

The question of whether DNA can conclusively prove that innocent people have been executed is also ... sooo boooring!(?)

The question of whether DNA evidence can show the innocence of the youths convicted of "wilding" in the Central Park jogger case is ... soooooooo boooooooring!(?)

(But the question of whether the CIA, FBI, et al. should have anticipated 9/11 is .... clearly ... not boring.)

Well, as they say in Minnesota, ... whatever ...

But perhaps I should note that this blog -- the one now in front of your eyes -- is about evidence, and not just the law of evidence. Hence, this blog is not condemned to investigate only burning issues such as the wisdom of the latest curlicues in the hearsay rule in the Eighth Circuit.

Ah, I have nothing but good wishes for authors of blogs about appellate litigation! (They -- the authors, I mean -- may need my blessings.)

Postscript: While I can guarantee that many of the topics considered in this blog will be interesting, I can't guarantee that my discussion of those interesting topics will be palatable, let alone interesting.

Wednesday, September 04, 2002

Postscript on the Logic of Judicial Proof: Is Abduction the Next Big Thing?

Many people think abduction -- abductive inference -- is the next big thing. See, e.g., Charles Peirce, David Schum, John Josephson & Scott Brewer (somewhat, in any event). Do you agree?

Do we need more than just abduction to handle the dynamic properties of factual inference and proof in litigation? (Clarification: The eminent theorists listed above may well agree that we do.)

Tuesday, September 03, 2002

Two Items: (i) Deduction, Induction, and -?-duction; and (ii) Important New (2001) Book

Item #1: Do we all now agree that 20th century American legal scholars in Evidence got it only half-right -- or 1/3 right -- when they said (characteristically) that factual inference involves induction rather than deduction? I think there are at least two things wrong with what they said.

Consider the simpler point first: Factual inference typically involves more than deduction. But it is quite incorrect to say that factual inference does not involve deduction. I'm right, no? Consider an astrophysicist who is drawing an inference about the location of Jupiter at 03:24 Greenwich Mean Time (or sidereal time?), June 13, 1827. This astrophysicist, in drawing his or her inferences -- in reaching conclusions about that question --, will certainly reason deductively on occasion -- by reasoning from, for example, Kepler's laws (as modified by Einstein's special theory of relativity?). It would not be difficult to find other such examples of the use of deductive reasoning to draw inferences about terrestrial phenomena (by, e.g., the use of the "laws" of chemistry, physics, or other such "hard" sciences). So we ought to correct our venerable predecessors (in the law of evidence) by saying that factual inference ordinarily involves more than just deductive reasoning.

But isn't there a more fundamental sense in which our predecessors -- legal scholars in the field of Evidence -- got at only part of the truth about factual inference? "Induction" means various things. But suppose we take it to mean an "inference about classes of events by the observation of particular instances or phenomena" -- or, if you prefer, the "extraction of general laws or general descriptive principles from the behavior or attributes of particular instances, events, phenomena, or data." If this is (roughly) what the problem of induction is all about, very little of the process of factual inference in forensic environments -- e.g., in trials -- involves this sort of reasoning. Although (as I have just suggested) proof in trials may involve the deployment or application of "general laws," factual proof at trial only infrequently seeks to divine or establish "general laws" that govern (selected) natural phenomena. (But it must be said that the process of proof in litigation sometimes is directed -- at least in part -- at establishing precisely such things, i.e., general {natural} laws, e.g., laws or principles that describe the relationship between certain types or classes of cancer and certain types or classes of sugar substitutes or, say, asbestos fibers). In many instances, however, the objective of forensic proof will be merely to "prove" -- to induce the jury to infer -- that a particular event happened and to do so by drawing on pre-existing general principles of some kind, ones that were not established in the lawsuit or trial at hand.

I suppose I'm saying the obvious. But if what I'm saying is so obvious, shouldn't judges should stop parroting the cliche (note: accent over the 2d "e" here) --, shouldn't they stop saying that factual inference involves induction rather than deduction? Folks who say that sort of thing are speaking -- at best -- 1/3 of the truth! {Ah, sometimes numbers just don't allow a person to speak very precisely!}

Item #2: Perhaps most of you are already in the know. But -- just in case -- let me say that students of forensic factual inference should be aware of the high praise that has been bestowed on a recently-published book: James Franklin, THE SCIENCE OF CONJECTURE: EVIDENCE AND PROBABILITY BEFORE PASCAL (Johns Hopkins University Press, 2001).

Shall we read this book together and talk about it?

Monday, September 02, 2002

Evidence News:
Academic Stuff

I. New Conference

Inference, Culture, and Ordinary Thinking in Dispute Resolution.
Venue: Cardozo School of Law, New York City (Manhattan).
Dates: April 27-29, 2003.
Scott Brewer, Professor of Law, Harvard Law School
Jerome Bruner, University Professor, New York University
Oscar G. Chase, Professor of Law, New York University School of Law
Mirjan Damaska, Sterling Professor, Yale Law School
Florrie Darwin, Lecturer, Harvard Law School
Phoebe C. Ellsworth, Kirkland and Ellis Professor of Law, University of Michigan Law School
David L. Faigman, Professor of Law, University of California, Hastings College of Law
Richard D. Friedman, Ralph W. Aigler Professor of Law, University of Michigan Law School
Alvin Goldman, Board of Governors Professor (Philosophy and Cognitive Science), Rutgers University
Samuel R. Gross, Thomas & Mabel Long Professor of Law, University of Michigan Law School
Susan Haack, Professor of Philosophy & Professor of Law, University of Miami (Coral Gables)
Reid Hastie, Professor of Behavioral Science, Graduate School of Business, University of Chicago
John Jackson, Professor, Faculty of Law, Queen’s University of Belfast
Richard Leary, DCI, Honorary Senior Research Fellow, Jill Dando Institute of Crime Science, School of Public Policy, University College London
Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology, University of Michigan Law School
Marilyn MacCrimmon, Professor of Law, Faculty of Law, University of British Columbia
John McCarthy, Professor emeritus, Department of Computer Science, Stanford University
Robert J. Mislevy, Professor, Department of Measurement, Statistics & Evaluation, University of Maryland (College Park)
Jennifer Mnookin, Associate Professor of Law, University of Virginia School of Law
Charles Nesson, Weld Professor of Law & Director, Berkman Center for Internet and Society, Harvard Law School
Aviva Anne Orenstein, Professor of Law, Indiana University School of Law
Roger Park, Distinguished Professor, James Edgar Hervey Chair in Litigation, University of California, Hastings College of Law
Lothar Philipps, Professor (emeritus), University of Munich
Mike Redmayne, Lecturer in Law, Law Department, London School of Economics and Political Science
Burkhard Schafer, Lecturer, Faculty of Law, University of Edinburgh
Alex Stein, Sylvan M. Cohen Professor of Law, Faculty of Law, Hebrew University of Jerusalem
Edward Stein, Associate Professor of Law, Cardozo School of Law, Yeshiva University
Peter Tillers, Professor of Law, Cardozo School of Law, Yeshiva University
Judge Jack B. Weinstein, United States District Court, Eastern District of New York
Olav Wiegand, Professor, Fachbereich Philosophie, Universitaet Mainz, Germany
Charles Yablon, Professor of Law, Cardozo School of Law, Yeshiva University
Ronald R. Yager, Director, Machine Intelligence Institute & Professor, Information Systems, Iona College
Frank Yates, Department of Psychology, University of Michigan
John Zeleznikow, Director, Joseph Bell Centre for Forensic Statistics & Legal Reasoning, Faculty of Law, University of Edinburgh.
Possible Panelists: Peter L. Murray (Harvard), Andrew Palmer (University of Melbourne), William Twining (University College London) & a possibly-soon-to-be-named prominent prospect!

II. New Book:

M. MacCrimmon & P. Tillers, eds., THE DYNAMICS OF JUDICIAL PROOF: COMPUTATION, LOGIC, AND COMMON SENSE (Physica- & Springer-Verlag, 2002) (vol. 94 in series STUDIES IN FUZZINESS AND SOFT COMPUTING, Janusz Kacprzyk, editor).