Saturday, March 22, 2003

Memory & Metaphysics

After many years of meaning to do so, I finally read Giuseppe di Lampedusa's THE LEOPARD. As an Evidence teacher -- and just as a simple human being -- I was struck by the following passage in the book's last chapter, "Relics":

If Tassoni had told the truth, then the long hours spent in savoring her hatred before her father's picture ... had been stupidity .... From the timeless depth of her being being a black pain came welling to spatter her all over at that revelation of the truth.

But was it the truth? Nowhere has truth so short a life as in Sicily; a fact has scarcely happened five minutes before its genuine kernel has vanished, been camouflaged, embellished, disfigured, squashed, annihilated by imagination and self-interest; shame, fear, generosity, malice, opportunism, charity, all the passions, good as well as evil, fling themselves onto the fact and tear it to pieces; very soon it has vanished altogether. And poor Concetta was hoping to find the truth of feelings that had never been expressed but only glimpsed half a century before! The truth no longer existed. Precarious fact, though, had been replaced by irrefutable pain.


Speaking of Charles Peirce (as I did in a recent post) I (once again, finally!) purchased a copy of Louis Menand's book THE METAPHYSICAL CLUB (2001). The book was well reviewed in the New York Times Book Review. I sense that the book will charm, but also edify, partly by making connections between the Americans and broader European intellectual trends. Will my hopes be met? In any event the telling of the story of the main characters -- Oliver Wendell Holmes, William James, Charles Peirce, and John Dewey -- surely cannot entirely disappoint!

Friday, March 21, 2003

Peirce Pronounced; Of Abduction, Seduction, and Deduction

Having mentioned "abduction" several times, I feel obliged to mention Charles Peirce, who, it seems, first gave "abduction" its modern philosophical-epistemological-logical connotation.

Having mentioned Charles Peirce, I feel obliged to remind you, gentle readers, that "Peirce" rhymes with "purse." The reason for this counterintuitive pronunciation, it is said, is that the aforesaid CP's surname is descended from the surname "Pers." See, e.g., 1 Peirce Project Newsletter Nos. 3/4 (December 1994). But, as with all things scholarly, there is some dispute about this explanation for the pronunciation of CP's "Peirce."

Having mentioned Charles Peirce and abduction, I also feel impelled to mention that when Peirce used the word "abduction" he probably generally had "deduction" rather than "seduction" in mind; i.e., he probably was thinking that the formation of possible conclusions by deduction is one thing; and by abduction, another. This hypothesis about CP's mental states, however, might also be disputed: CP was a notorious "womanizer."

A Further Note about Information Theory

Isn't the following proposition true: it is possible to calculate the probable benefits of acquiring unknown evidence only if one can make a judgment in advance that the unknown evidence will (certainly or probably) be pertinent to a hypothesis or hypotheses of interest; and, if so, isn't it true that to the extent newly-acquired evidence causes unanticipated and unforeseeable mutations in hypotheses of interest, to that extent it is difficult ("impossible"?) to calculate -- or, even, intuit -- the probable benefits of evidence and information that one does not yet have?

I wonder if my comments about Posner's theory of "search" should be directed at some version of what is sometimes called "value of information" theory. Can someone enlighten me on this point?

Varieties of Information Theory

There are various species of information theory. I by no means claim (see my prior post) that Richard Posner embraces all varieties of that theory. If Posner embraces information theory ("properly so-called"?) -- if Posner embraces information theory at all, he embraces a particular version of that theory. (A knowledgeable person has told me, for example, that Posner does not use Herbert Simon's version of this theory. Whether or not this is true, I don't know.)

I will do some research and post a further note later -- in a day or two, perhaps.

Law and Economics in Search of Evidence

To the extent that law and economics people think about the law of evidence at all, they tend to focus on the notion of "search." See, e.g., Richard A. Posner, "An Economic Approach to the Law of Evidence." The notion of "search" seems to be rooted in information theory. (Do I have this right? I readily confess to not knowing many curlicues in the law and economics field.)

My second assumption about the argument made by people such as Posner is that the notion of "search" concerns the problem of figuring out a rational strategy for investing in the acquisition of evidence or information when one has some uncertain hypotheses in hand and wants or needs to collect evidence or information that may tend to confirm or disprove those uncertain hypotheses. Posner (and other law and economics people?) seem to think ("assume"?) that the prescriptions of economic theory and information theory for dealing with this problem -- the problem, "When should one stop investing resources in information?" -- can explain much about (at least) a rational version of the law of evidence.

Perhaps information theory does shed some light on the treatment of evidence in litigation; I suspect that it does. But I suspect that information theory does not shed as much light on evidence in litigation as some law & economics scholars and similar people might suppose. That's because one key assumption that Posner and some other law and economics people make about evidence may not be "as true" -- or as often -- as such people suppose. I am referring to the assumption that the decision makers -- the players in litigation -- know what the (factual) issues are. This state of affairs -- i.e., perfect, certain, and complete knowledge of the hypotheses in question; i.e., perfect knowledge of the identity of the uncertain hypotheses that are in play --, this kind of certainty about what the issues are sometimes -- and, very probably, frequently or always -- does not obtain or does not fully obtain.

Any account of evidentiary processes in litigation -- the dynamics of evidence and inference in litigation -- must take into consideration that actors in the process of litigation sometimes -- and perhaps always; indeed, probably always --, actors in litigation are bereft of perfect or certain knowledge of the identity and countours of pertinent (uncertain) hypotheses (e.g., the factual issues "in contention" or "in play" in a particular episode of litigation) and that one of the central purposes for the gathering of evidence and information -- the "search" for evidence -- is the search for information -- evidentiary information -- that generates (suggests, inspires) new hypotheses or refinements of hypotheses (e.g., including, of course, factual hypotheses or issues in litigation). To wit (in fancy but accurate language): evidentiary trifles have "abductive" force.

A recognition that evidentiary trifles have suggestive or abductive force -- that they have the capacity to generate novel and unexpected hypotheses -- does not mean that what economists and information theorists have to say about "search strategies" is useless and pointless. But if evidence does have the capacity to generate novel hypotheses (or novel and typically-unforeseen refinements of hypotheses), it does follow that the search strategy that a decision maker employs -- and the kinds of search strategies that a system of legal rules permits or encourages -- must be much more subtle and supple and complex than the search strategy that might rationally be employed or favored when the hypotheses in play are known. This seems to follow because the premise that evidence has abductive force -- the hypothesis that evidentiary trifles, for example, suggest new hypotheses (and new refinements of hypotheses) --, this premise suggests that as new new evidence accumulates the number of hypotheses in play both can and will both mutate and greatly multiply. See P. Tillers, "Weighing Decisions about Proof in Litigation" (alternative title: "Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation"); P. Tillers, "The Explosive Dynamic Complexity of Evidentiary Processes" (alternative title: "Can AI Help Resolve Some Fundamental Puzzles of Judicial Proof?: Introductory Comments about the "Explosive Dynamic Complexity" of Evidentiary Processes associated with Litigation"); and P. Tillers, "Spotty Semiotics: Further Notes on the Unpredictability of Investigation & Proof in Litigation."

What say you all? Do I have it (roughly) right? Wrong?

Wednesday, March 19, 2003

Chirac: Man of Peace

William Drozdiak, "Gulf Crisis [1990] Ends 15 Years Of French-Iraqi Closeness; Paris Was Baghdad's Prime Patron in West," The Washington Post, First Section p. A-13 (October 12, 1990, Friday, Final Edition):

Jacques Chirac, prime minister under president Valery Giscard d'Estaing, launched France's quest for high-stakes contracts with Baghdad and soon cultivated a warm rapport with Saddam. Welcoming the Iraqi leader on a visit to France in September 1975, Chirac surprised even his staff by speaking of his affection for his "personal friend."    

A year later, France began constructing the Osirak nuclear research facility at Tammuz that would be bombed in 1981 by Israeli aircraft. Even though France insisted that sufficient controls would have prevented any misuse of the center, Saddam declared in 1976 that "the accord with France is the first concrete step toward the production of an Arab nuclear weapon."    

The close rapport established by Chirac between Paris and Baghdad persisted through several changes of government, as French politicians from right to left on the ideological spectrum helped sustain the strategic friendship. Even the left-wing Socialist Jean-Pierre Chevenement, the current defense minister, became so enamored of Iraq that he helped found the French-Iraqi Friendship Society in 1985.


Douglas Davis, "An explosion of Gallic chutzpah," Jerusalem Post, News p. 14A (February 14, 2003):

"The Americans think they have a monopoly on the truth, and they think they have a right to impose it on us," an outraged French guest told me at a smart dinner party in Paris last weekend. "Well, we don't accept it. We don't accept their imperial ways."    

Even the Picasso figure on the wall behind him, which had remained impervious to this haughty explosion of Gallic chutzpah, seemed to blush slightly when high principle turned to hypocrisy and then to outright opportunism.


Joshua Glenn, "The Examined Life; Chirac's Other Iraq Policy," Boston Globe, Section Ideas p. E3 (March 2, 2003, Third Edition):

   JACQUES CHIRAC'S OPPOSITION TO the Bush administration's march to war may have won him the applause of antiwar activists, but others have noted that the French president may have less than principled reasons for his position. After all, France has economic ties to Iraq, and Chirac has millions of Muslim voters to worry about, too. And a photograph which has recently been circulating online offers a mute, though eloquent, J'accuse of its own.

In this 1975 photo, then-Vice President Hussein is seen touring the Cadarache nuclear power station in France, accompanied by a bespectacled Chirac, France's prime minister at the time. Chirac freelanced a deal to sell Saddam two nuclear reactors, and arranged to have French nuclear scientists and engineers train their counterparts in Iraq-most of whom are now on the list of Iraqi scientists and engineers that UN weapons inspectors want to chat with. Not only did Chirac help build Iraq's "Osirak" reactor-the Israelis dubbed it "O-Chirac"-near Baghdad, but he also sought to ship Iraq weapons-grade uranium, even though a safer grade was available. (France's president, Valery Giscard d'Estaing, scotched the plan.) By the end of the Iran-Iraq war, Iraq was France's single largest arms customer; Iranians referred to Chirac as "Shah-Iraq."  In 1981, Israeli fighter pilots-including a 26-year-old Ilan Ramon, who died last month on the space shuttle Columbia-destroyed the Osirak reactor shortly before it was due to deliver nuclear capacity to Iraq. Chirac, echoing the views of many world leaders at the time, described the Israeli raid as "unacceptable."

Tuesday, March 18, 2003

Does the Character Evidence Rule Exist in Colorado?

The Supreme Court of Colorado says that such a rule does exist in Colorado. But if the reasoning in Colorado v. Rath, 44 P.3d 1033 (Colo. 2002), is followed, when (if ever) would the Colorado character evidence rule require the exclusion of the "other bad acts" of an alleged rapist or similar [alleged] miscreant -- or any alleged criminal miscreant of any kind (e.g., alleged robber, burglar, murderer, thief)?

Of course, irrelevant bad acts would {presumably} still be inadmissible in Colorado. But Colorado trial judges don't need a character evidence rule to figure that out: the familiar maxim that irrelevant evidence is inadmissible should suffice.
If the Colorado Supreme Court wants to do away with the character evidence rule in Colorado, perhaps it should 'fess up and do so openly.
Dogs Have the Wrong Kind of Character

Do dogs have character? Well, yes, perhaps they do. But, it seems, dogs don't have enough character -- or, in any event, they don't have enough of the right kind of character -- to make them subject to the prohibition against "circumstantial" use of character evidence. See Brown v. Eberly, 2002 U.S. Dist. Lexis 22012 (E.D. Pa., filed Nov. 14, 2002). So, dogs, take notice: anything you bark can be used against you!

Monday, March 17, 2003

President Putin Presses for Peace ... in Iraq

"Russian artists condemn war in Chechnya," Agence France Presse, International News Section (Monday, March 17, 2003):

Nearly 50 prominent figures of Russia's artistic elite joined in an appeal to Russia's authorities to halt the war in Chechnya and launch peace talks to end the longstanding conflict.

"The government must make the first step to reconciliation and begin talks. Rational, legal and humane reasons demand this, and Russian culture's humanist traditions must be the basis for state policy," said the appeal's signatories, who include chess master Garry Kasparov and writers Viktor Yerofeyev and Vladimir Voinovich among others.

Meanwhile, "though its condemnation of guerrillas' cruelty is just, Russia must renounce barbaric 'cleansing sweeps', torture, summary executions and other senseless acts that only add to extremist ranks," the statement added.