Friday, August 01, 2008

Narrative and Factual Inference

In recent years it has become fashionable -- almost de rigeur -- to talk about "narrative" when talking about factual inference in legal settings. This habit of mind has even percolated into the halls of the Supreme Court. (I assume that the Supreme Court building has halls.) See Old Chief v. United States, 519 U.S. 172 (1997) (Souter, J., for the Court). This shift in interest is, on the whole, a good thing, I think. But it is also worth asking why it this development is a good thing. Yes, (some) stories have rhetorical and persuasive force. Yes, (many) stories serve as powerful mnemonic devices. But if the question is whether we should be interested in stories if our ultimate interest is accurate (as well as entertaining or advantageous etc.) factual inference in settings such as trials, the answer is less obvious. We must begin, I think, by distinguishing between two types of "stories." One type of story is a scenario, which, in the parlance of social scientists and other such folks, is a causal hypothesis-a hypothesis about the connections between specified events over time. Another type of story is broader: this broader type of story is an account that has, not only causal explanatory force, but also ingredients such as dramatic appeal, emotional punch, human actors, and the like. A strong case can be made that either all factual issues or almost all factual issues are effectively scenarios -- this on the ground that all, almost all, or many factual hypotheses in legal settings are effectively hypotheses about some possible sequence of connected events in time. However, it may be less clear that epistemic considerations--i.e., truthseeking considerations--make stories in the sense of narrative necessary. But perhaps "necessity" is too strong a requirement here. Perhaps it is enough if we show (if we can) that stories with emotional wallop etc., generally promote [under some circumstances] the search for the truth, generally advance [under some circumstances] accurate fact finding. (This thesis is a variant of the sensible notion that practical epistemic maxims should take the human animal as we find him [or her].)

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Wednesday, July 30, 2008

The Indeterminacy and Elasticity of Legal Language

I have come to detest the indeterminate word "indeterminate." But for present purposes no other word seems to do the trick I want to do.

For decades American legal theorists have talked about the indeterminacy of legal language. Probability theorists prefer to talk about the uncertainty of legal terms. But in a recent message to a discussion list Lotfi Zadeh once again noted that it is important to distinguish between uncertainty about the meaning of words (language) and the elasticity, or plasticity, of words (language). The distinction that Zadeh makes between uncertain meaning and elastic language is, think, very important for an understanding of the nature of legal reasoning and interpretation. Although elastic words (I would say) produce uncertainty, it is important to remember that words themselves are elastic, i.e., that words exhibit elastic "behavior." Note: it is possible, in principle, to know fairly precisely how elastic words behave under various circumstances. When we have such knowledge about a word, we are not really very uncertain about the meaning of the word but we still can say and must say that the meaning of the word in question varies, or stretches, depending (for example)on the context. (In such a situation there is only a very loose -- and possibly misleading -- sense in which it can be said that the meaning of the word is indeterminate.)

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Tuesday, July 29, 2008

Potemkin Trials?

[B]ehind the judicial routine at the first trial for a Guantánamo detainee lies a parallel universe of law and lawyers. Secret evidence held in red folders is not revealed in open court. The gallery is mostly empty, because there are no members of the public. In what would be the jury box, every occupant wears a military uniform.
William Glaberson, "A U.S. Trial by Its Looks, but Only So," NYTimes (July 29, 2008)
Question: If some detainees are acquitted, will this prove that the Guantanamo somewhat-trial-like proceedings are just?

Answer: It may just prove that some military jurors are good-hearted -- or, alternatively, that some of the military actors are concerned about public relations or other such matters.

A system of adjudication can be distorted if it produces an unacceptable number false negatives as well as if it produces too many false positives. One thing seems reasonably sure about the proceedings at Guantánamo: much of the important evidence will not be subjected to adversarial testing. There is good reason to wonder if it will be subjected to an adequate degree and quality of nonadversarial evaluation.

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Sunday, July 27, 2008

As much as he is hated by some people, George W. Bush deserves credit ...

...for proposing and supporting expenditure of large sums of money to combat AIDS/HIV, malaria, and other diseases in Africa and in other parts of the world. See, e.g., the AP story "Bush eager to sign bill tripling AIDS assistance". Such health programs were not on the American agenda until Bush proposed them in his State of the Union address in 2003.

How much of a difference have such aid programs made? Consider just one piece of data from the story cited above:

The current $15 billion act, which expires at the end of September, has helped bring lifesaving anti-retroviral drugs to some 1.7 million people and supported care for nearly 7 million.

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