Monday, December 30, 2013

The Predominance of Part-Time Faculty in American Higher Education

Ella Delany, Part-Timers Crowd Academic Hiring NYTimes (December 22, 2013)

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Interpretations of Quantum Theory

Fuzzy logic and quantum theory may be the two most important philosophical (as well as logical and scientific) developments of the twentieth century. Wikipedia has a comprehensive summary of interpretations of quantum theory. Much of the summary is highly technical but I think the reader can catch the drift of the various interpretations even if he or she does not have deep knowledge of quantum theory or mathematics.

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Saturday, December 28, 2013

A Constipated View of What the Law Is

Liptak & Schmidt, Judge Upholds N.S.A.’s Bulk Collection of Data on Calls NYTimes (December 27, 2013):

Judge Pauley also said it was not for him to say where the law was heading, but for a different reason. “The Supreme Court,” he said, “has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.”


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Friday, December 27, 2013

Hanoch Dagan on Law's "Structural" Pluralism

Amit Pundik, Interview with Hanoch Dagan, 8 The Reasoner 2 (January[sic], 2014):

HD: ... I criticize the pretence of monist theories of Property (or Contract, for that matter) to o ffer one regulative principle—the most prevalent suggestion revolves around Blackstone’s formula of “sole and despotic dominion”,which stands for an owner’s right to exclude—that is supposed to account for this entire field, or at least for its core.So let’s indeed take property. My critique begins with a straightforward descriptive observation:Property law as both lawyers and citizens experience it is quite complex; and this complexity is at odds with the Blackstonian straightjacket. Thus we can find side by side doctrines that by and large comply with a libertarian commitment to negative liberty (think fee simple absolute, which is the technical legal term for full-blown ownership of land) alongside other doctrines in which ownership is a locus of communitarian sharing (as in marital property) or of utilitarian welfare maximization (as with patents), as well as many other doctrines vindicating various types of balances among these (and other) property values (such as copyright which both vindicates the unique significance of creative resources to authors’ identity and encourages creative activity which is conducive to human flourishing and to democratic governance). I do not deny that all these di fferent institutions share a common denominator; indeed, every property right involves some power to exclude others from doing something. But I insist that this common denominator is not robust enough to illuminate the existing doctrines or determinative enough to provide significant guidance as per their evaluation or development.The normative deficiency of Property and Contract monism is at least as troubling as the descriptive deficiency, and in a somewhat paradoxical way. Monist theorists of these fields tend to be liberals, and their suggested animating principles—exclusion for property; will (or consent) for contracts—stand for the ultimate liberal value of individual autonomy. But if Law had taken these theories seriously (which, as I’ve just said, it fortunately hasn’t), it would have erased or marginalized all these “nonconforming” forms, leaving people to their own devices if they wish to tailor-make them for themselves. Such a hands-o ff policy, even if accompanied by a hospitable attitude to freedom of contract, would have been detrimental to our autonomy. The reason for this is that property forms (and contract types) rely heavily on active legal (or law-like) facilitation,both for overcoming the various types of transaction costs involved and as sources (particularly in modern times) of our cultural conventions. Because Law is a major player in making options viable for us—maybe even imaginable to us—anautonomy-enhancing law must proactively participate in providing us with a multiplicity of options for interpersonal relationships:a diverse menu of property institutions and contract types. Monism undermines this liberal obligation and is thus,in my view, not only descriptively misleading but also normatively disappointing.
AP: How would you explain your pluralist theory of Legal Institutions to non-lawyers?
HD: The best way may be to first contrast it with the type of pluralist theories you mentioned in your introduction and then see how it nicely (I think. . . ) emerges from the descriptive and normative critique of monism I’ve just mentioned. I call my theory structural pluralism in order to highlight that its main distinctive feature is a commitment to multiplicity of legal options with respect to each major form of human interaction (regarding resources, broadly defined). Unlike certain “mixed” theories, I do not argue for foundational pluralism,which denies that there is one ultimate value (private) law should vindicate; indeed, as I’ve just hinted, I think that there is one such ultimate value: individual autonomy properly understood, namely our right to self-determination or self-authorship,which requires not only independence from others,but also a robust set of su fficiently diverse viable options from which we can choose. ...

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Wednesday, December 18, 2013

Another Attack on NSA Collection of Telephony Metadata

The information found in Dan Roberts & Spencer Ackerman's article Obama review panel: strip NSA of power to collect phone data records in The Guardian (December 18 2013) suggests that some progress has been made on the issue of NSA collection of polyphony metadata for domestic calls, but apparently only modest progress has been made [see the article] (and Senator Feinstein, I assume, will do all she can to forestall even this modest progress).

It remains to be seen if Obama will endorse this modest recommendation by his advisory panel. Will the federal courts do what the Executive Branch and Congress may be unwilling to do? The current Supreme Court has not been terribly aggressive in the protection of individual rights, but I hope that the scale of NSA invasions of privacy - the Orwellian scale of such intrusions - will induce the Court to act in a positive and bold fashion.

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Monday, December 16, 2013

The Growing Gluttony of College Presidents

Private nonprofit organizations are exempt from federal income taxes - i.e., they get a federal tax subsidy. Donations to qualified private nonprofit organizations are deductible from federal taxable income - i.e. such donations get a federal tax subsidy. These general principles apply to private nonprofit colleges.

But for some people, private nonprofit colleges are "nonprofit" only in a technical sense; for some people, nonprofit private colleges are quite profitable. See Executive Compensation at Private Colleges, 2011 Chronicle of Higher Education (December 15, 2013). For example, for the year 2011 Robert J. Zimmer of the University of Chicago received compensation of $3,358,723 (from his university) and Lee C. Bollinger of Columbia University, $2,327,344 (from his university).

Capitalism run amok?

Note: The clerical presidents of most private Catholic colleges receive nominal or zero ($0) compensation from their universities. Go here (for example, see Boston College) and here and here.

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Thursday, December 12, 2013

Criminal Defendant's Right to Present Exculpatory Evidence

Defendant was charged with various immigration-related offenses. Conviction of each offense depended on satisfactory proof that defendant was an illegal alien. The trial court rejected defendant's offer of Idaho birth certificate, which tended to show that defendant was born in the United States and therefore was a citizen of the United States. The Ninth Circuit US Court of Appeals held (2-1) that the trial court had committed reversible error. United States v. Evans, 720 F.3d 953 (9th Cir. 2013). The Court of Appeals made the following points (footnotes omitted):

"The Constitution 'guarantees criminal defendants a meaningful opportunity to present a complete defense.' United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (internal quotation marks omitted). This right includes 'the right to present the defendant's version of the facts,' Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and to 'put before a jury evidence that might influence the determination of guilt,' Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ('The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.'). We have acknowledged that this right is not 'absolute,' and Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003), since the 'him adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments,' and Taylor v. Illinois, 484 U.S. 400, 410–11, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). However, ‘"when evidence is excluded on the basis of an improper application of the evidentiary rules,"’ the the danger of a due process violation is particularly great, since ‘"the exclusion [of the evidence] is unsupported by any legitimate ... justification."’ Stever, 603 F.3d at 755 (brackets omitted) (quoting United States v. Lopez–Alvarez, 970 F.2d 583, 588 (9th Cir.1992)). We therefore begin our analysis by considering whether the district court properly applied the Federal Rules of Evidence. We conclude that it did not.


"The district court invoked Rule 104(a) as the source of its 'gate-keeping' authority. Rule 104(a) states that the court 'must decide any preliminary question' of fact or law about three types of issues: whether (1) 'a witness is qualified,' (2) 'a privilege exists,  him'or (3) 'evidence is admissible.' Fed.R.Evid. 104(a); see also Fed.R.Evid. 104(a) advisory committee notes.FN5 We have previously considered the trial court's gate-keeping function as it applies to the first two issues, but we have not explicitly considered the scope of the trial court's gate-keeping function with regard to the third issue.FN6 We conclude that the trial court's authority to determine if evidence is admissible pursuant to Rule 104(a) is necessarily limited by other rules of evidence—most importantly, Rule 402, which provides that evidence is admissible so long as (1) it is relevant, and (2) it is not otherwise inadmissible under, inter alia, the Federal Rules of Evidence. Fed.R.Evid. 402 ('Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.').

"Thus, Rule 104(a) provides the trial court with the authority to decide questions that might make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence. ...

"In each of the above [enumerated] scenarios, the trial court uses its Rule 104(a) authority to determine 'the existence of a condition,' which in turn determines '[t]he applicability of a particular rule of evidence.' Fed.R.Evid. 104(a) advisory committee notes. We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States Constitution. We now hold that it cannot.FN7 See Fed.R.Evid. 402. To the extent that the district court here invoked an umbrella 'gate-keeping' him authority to exclude Evans's birth certificate so as to avoid a 'miscarriage of justice,' it exceeded the scope of its authority under Rule 104(a).FN8


"Because the trial court must admit evidence that is (1) relevant, and (2) not inadmissible under, inter alia, some other rule, Fed.R.Evid. 402, we next consider whether these conditions are met here. The government argues that the birth certificate is irrelevant because even if it was 'genuine in form,' it was 'not [genuine] in substance.' We disagree. The fact that the birth certificate was properly issued by the State of Idaho establishes that it is 'of consequence' him to an issue in both cases—Evans's claim of United States citizenship—and that it has some 'tendency to make [his alleged citizenship] more ... probable than it would be without the evidence.' Fed.R.Evid. 401. FN9 This establishes him that the birth certificate was relevant to all the counts in both cases.

"Furthermore, to the extent the district court conditioned the relevance of the birth certificate upon its 'substantive genuineness,' it erred in its application of Rule 104(b). This rule provides that where 'the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.' Fed.R.Evid. 104(b).FN10 If 'the foundation evidence is sufficient to support a finding of fulfillment of the condition ... the item is admitted.' Fed.R.Evid. 104(b) advisory committee notes. Furthermore, if 'after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established,' the evidence is admitted, because 'the issue is for [the jury].' Id. (emphasis added). Only if 'the evidence is not such as to allow a finding, [does] the judge withdraw[ ] the matter from [the jury's] consideration.' Id. Of critical importance here, when 'determining whether the [party introducing evidence] has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the [party] has proved the conditional fact by a preponderance of the evidence.' Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (emphasis added). 'The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.' Id.

"Here, although the district court did not specifically cite to Rule 104(b), its conclusion that no 'reasonable person' could 'determine that the Defendant's Idaho birth certificate is substantively genuine' draws its language and reasoning from Rule 104(b). But in reaching the conclusion that no reasonable person could find that Evans's birth certificate was substantively genuine, the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document. Indeed, it expressly found that 'all three of the Government's witnesses were credible.' This was error. The fact that the birth certificate was an official document, issued by the Idaho Bureau of Vital Records and Health Statistics, provided a sufficient basis upon which a juror could conclude that the birth certificate was 'substantively genuine.' And to the extent the Government's evidence suggests otherwise, the issue boils down to the credibility of the parties' conflicting evidence, which is a question for the jury to decide.FN11 We therefore hold that to the extent the district court relied on Rule 104(b) in excluding the birth certificate, it erred.


"We next turn to the district court's application of Rule 403. As part of its authority to decide preliminary questions of law pursuant to Rule 104(a), the trial court may exclude relevant evidence if 'its probative value is substantially outweighed' by, inter alia, the danger of unfair prejudice, misleading the jury, or undue delay.FN12 Fed.R.Evid. 403; see also Hankey, 203 F.3d at 1168 (recognizing that the court's Rule 104(a) authority allows it to exclude evidence under Rule 403). The district court here concluded that Evans's birth certificate was inadmissible under Rule 403 because it was 'without probative weight' and could 'only lead to undue delay.' This was legal error. 'Weighing probative value against unfair prejudice under [ Rule] 403 means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable.' Bowden v. McKenna, 600 F.2d 282, 284–85 (1st Cir.1979) (citing 22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence, § 5214, at 265–66 (1978)) (emphasis added). The court may not exclude relevant evidence—or, in this case, assign it no probative value—on the ground that it does not find the evidence to be credible. See United States v. Candoli, 870 F.2d 496, 509 (9th Cir.1989) ('[A] conflict in the evidence goes to the weight of [the evidence], not to its admissibility.').

[snip. snip]

"Admission of the birth certificate also would have posed a low risk of confusing or misleading the jury. Although the birth certificate would have increased the chances that the jury would acquit Evans, such a result could not be attributed to the jury being confused or misled; to find otherwise would be to prejudge the 'correct' outcome of the trial before it occurs. See, e.g., United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.1996) ('"[I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt."’ (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tillers rev. ed.1983)) (alterations in original)). It is the jury, not the trial judge, that must decide how much weight to give to Evans's delayed birth certificate in light of the government's evidence suggesting that the birth certificate is fraudulent and that Evans is not a United States citizen. We therefore conclude that it was an abuse of discretion for the district court to exclude Evans's delayed birth certificate under Rule 403.


"We next consider whether the exclusion of the birth certificate rose to the level of a constitutional violation. We hold that it did.FN15 'The Ninth Circuit has found ... violations [of the constitutional right to present a defense] where the district court incorrectly excluded evidence that was necessary for the defendant to refute a critical element of the prosecution's case.' Pineda–Doval, 614 F.3d at 1033.

"... Here, as in Stever, the excluded birth certificate was (1) the main piece of evidence, (2) for the defendant's main defense, to (3) a critical element of the government's case. On this ground, we conclude that the exclusion of the birth certificate amounted to a deprivation of Evans's due process right to present a defense. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) ('To be sure, the Constitution protects a criminal defendant's right to argue a point that goes to the heart of his defense.')."


Gould, J., dissenting, wrote (footnotes omitted):

I take a different view and would affirm the district court for three reasons.

First, Federal Rule of Evidence 104(a) literally permits a district court to perform a threshold review of the admissibility of evidence. Even if Rule 104(a) is limited to the “preliminary requirements or conditions that must be proved before a particular rule of evidence may be applied,” United States v. Brewer, 947 F.2d 404, 409 (9th Cir.1991), that does not prevent the court from excluding illegitimate evidence when excluding such evidence is the very reason rules of evidence exist. I have no problem reaching the firm conclusion that illegitimate evidence may permissibly be held to be inadmissible due to its inaccurate nature. We should make that our precedential point, rather than the approach favored by the majority.

I illustrate with a thought experiment or hypothetical. Let's say that an organized-crime czar is charged in a serious case and wants to present “exculpatory” evidence. But the prosecution has independent evidence that the defense evidence is as phony as a $3 bill. It might be fraudulently obtained (such as the legitimate document here that was procured by fraudulent means). Or it might be the product of extortion (such as through a threat like “I will kill your children if you don't give me an alibi”). Or it might be the product of bribery (such as a promise to pay a large sum for favorable evidence). In each case, the majority's rule would appear to require the phony evidence to be admitted before the jury, while merely letting the prosecution present responsive evidence to the jury showing that it was procured by fraud, extortion, or bribery. That would require mini-trials within the trial, would be potentially confusing to a jury, and is not literally required by Rule 104.

The majority agrees that the court can condition relevance on validity. But it concludes that in making “a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition,” Fed.R.Evid. 104(b) advisory committee's note, a court may not consider the underlying substance and process that led to the issuance of a document because doing so would amount to an improper credibility determination. Applying this rationale in the present case, the majority concludes that “the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document.” But the existence of the document does not at all bear on the question of whether it was procured by fraud. And the district court cannot be said to have made a credibility determination when Evans presented no evidence at the hearing to support the document's integrity. Adopting the rule of the majority permits a party's old lies to insulate new ones from challenge outside the jury's presence.

Here are the facts: To gain the delayed birth certificate, Evans offered an affidavit and testimony asserting that he was born in Idaho and was a former member of the U.S. Marine Corps. He said under oath that he was “active in the Vietnam [W]ar, from 1969 through 1975” and had twelve years of combat duty where he earned a purple heart. He said that when he came back to the United States, he “donated [his] next eight years of service [in the Marine Corps] for free” until he retired. On this evidence, the Idaho judge granted the delayed birth certificate in the non-adversarial state proceeding and thanked Evans for his military service.

In the federal criminal proceeding, the district court excluded the Idaho birth certificate. It reached this correct decision after hearing extensive evidence that Evans was not a U.S. citizen and never served in the military, let alone in a war zone.FN1 Based on this evidence and without any evidence presented by Evans, the court fairly concluded:

"While neither party questions the validity of the Idaho birth certificate on its face, the Government has unequivocally shown that the Idaho birth certificate is substantively fraudulent and that it was obtained through fraud of the Defendant. The [c]ourt finds that all three of the Government's witnesses were credible and that there is no support in the record that would allow a reasonable person to determine that the Defendant's Idaho birth certificate is substantively genuine."

The majority argues that the court impermissibly made a credibility determination, but as I have explained, this principle should not be applied when all the evidence was on the Government's side and Evans had no witnesses testify at the evidentiary hearing. The district court's rationale quoted above is equivalent to saying that no reasonable jury could determine that the birth certificate was not tainted by fraud. I conclude that the district court made a correct and discerning judgment. There is nothing on the side of nonfraud here, and the district court's decision excluding the evidence was correct.

“Fraud” is “an instance or act of trickery or deceit esp[ecially] when involving misrepresentation.” Webster's Third New International Dictionary 904 (3d ed.1993). To tell a lie is to “make an untrue statement with an intent to deceive” or to “create a false or misleading impression.” Id. at 1305. Lying is a form a fraud. And to determine whether fraud exists, substance and process must be examined. Under the majority rule, the district court could not perform such an examination and evidence procured by fraud would be admissible, leaving it to the jury to sort things out. To my thinking, there is no evidence error at all in excluding fraudulently obtained evidence. I would conclude that Federal Rule of Evidence 104(a) lets the court preliminarily review whether a state document in the form of a belated birth certificate was procured by fraud. That is one reason to affirm the district court.

Second, even if Rule 104(a) should be limited as stated by the majority, Federal Rule of Evidence 403, relied upon by the district court in its Rule 104 decision, gives the district court broad power to exclude evidence if its probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” FN2 All the valid evidence presented to the state in the non-adversarial proceeding for the birth certificate could have been presented in Evans's criminal trial. I would have thought that introducing a fraudulent document would be wasting the jury's time and confusing the issues. It was reasonable for the district court to exclude the delayed birth certificate under Rule 403. See Old Chief v. United States, 519 U.S. 172, 184–85, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (performing a Rule 403 analysis requires the court to consider the probative value and prejudice associated with the admission of evidence alongside the probative value and prejudice associated with similar evidentiary alternatives). And our case law confirms that excluding an evidentiary exhibit under Rule 403 is permissible where the relevance of the document is predicated on a disputed factual hypothesis. Baker v. Delta Air Lines, Inc., 6 F.3d 632, 643 (9th Cir.1993). The standard for abuse of discretion under United States v. Hinkson, 585 F.3d 1247 (9th Cir.2009) (en banc), prevents us from reversing an evidence ruling if it is not “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” See United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir.2010) (citing Hinkson, 585 F.3d at 1261). Here, the district court's decision is logical and is supported by evidence that the certificate was gained by fraudulent documents and false testimony. Undue delay was likely to result from the certificate's admission. There was no abuse of discretion in applying Federal Rule of Evidence 403. That is a second reason to affirm the district court.

Third, even if the district court abused its broad discretion on evidence rulings despite the sound grounds for the fraudulent birth certificate's exclusion, I would not elevate this to the level of constitutional error and instead would conclude that any error was harmless.FN3 See United States v. Pridgen, 518 F.3d 87, 91–92 (1st Cir.2008) (stating the harmless-error standard). Evans cannot claim that exclusion of the delayed birth certificate blocked his defense because the court let him give testimony and offer valid documents supporting his claim of citizenship. See United States v. Stever, 603 F.3d 747, 755–57 (9th Cir.2010) (holding that there was constitutional error where “the sole evidence” on a major issue was erroneously excluded); see also United States v. Pineda–Doval, 614 F.3d 1019, 1032–33 (9th Cir.2010) (holding that there was constitutional error where a total exclusion of evidence wholly “denied the defendant the only argument that he had”). The ruling, even if assumed to be incorrect, did not create fundamental unfairness and a resulting due-process violation in the criminal trial. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) (holding that there was non-constitutional error). Because the error was not constitutional, reversal is improper so long as “it is more probable than not that the error did not materially affect the verdict.” See United States v. Wiggan, 700 F.3d 1204, 1215 (9th Cir.2012)(quoting Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th Cir.2009)). Here Evans chose not to present much of the evidence offered in state court to obtain the delayed birth certificate. And the Government presented overwhelming evidence, including several fingerprint matches and photographic matches to an active immigration file and testimony from Evans's sister identifying him as Roman Ceniceros–Mora who was born in Mexico. Evans's testimony also revealed that he had previously committed birth-certificate fraud, that he had physical injuries consistent with those of Ceniceros–Mora, and that he had previously signed statements using Ceniceros–Mora's name. The arresting officer also stated that after Evans was given his Miranda warnings, he admitted to having been deported before and said, “[T]ime will tell; I will be back; I will be back.” The challenged ruling, if error, was harmless on all the evidence.FN4 That is a third reason to affirm the district court.

Hence I respectfully dissent and would affirm the district court.

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Tuesday, December 10, 2013

China Maintains Teaching and Scholarship Standards

It is heartwarming to see that the PRC puts a high value on the needs of university students:

"In October [2013?], Peking University fired a noted economist who is a vociferous critic of single-party rule. Administrators claimed that their refusal to renew the contract of the professor, Xia Yeliang, was based on poor teaching and his failure to keep up the school’s publishing requirements." Andrew Jacobs, Chinese Professor Who Advocated Free Speech Is Fired NYTimes (December 10, 2013).

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Legal Misnomer

Ben Protess & Peter Eavis, Regulators Complete Votes on Rule to Curb Bank Risk NYTimes (December 1 0, 2013):

"The Volcker Rule 'spans 71 pages and features a preamble of nearly 900 pages interpreting the rule.'"

That's a long rule.

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Friday, December 06, 2013

Why Do People Want To Be President?

Perhaps personal financial incentives play an ever-larger role? Cf. the following article:

"[E]fforts to insulate the [Bill, Hillary & Chelsea Clinton Foundation] from potential conflicts have highlighted just how difficult it can be to disentangle the Clintons’ charity work from Mr. Clinton’s moneymaking ventures and Mrs. Clinton’s political future, according to interviews with more than two dozen former and current foundation employees, donors and advisers to the family. Nearly all of them declined to speak for attribution, citing their unwillingness to alienate the Clinton family." Nicholas Confessore & Amy Chozick, Unease at Clinton Foundation over Finances and Ambitions, NYTimes (August 13, 2013).

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Thursday, December 05, 2013

NSA: Cellphone Location: Five Billion Records/Day

Does it follow (in an informal sense) from the below article that Russia or the PRC probably has collected troves of cellphone location data of U.S. citizens?

Barton Gellman and Ashkan Soltani, NSA tracking cellphone locations worldwide, Snowden documents show Washington Post (December 4, 2013):

The National Security Agency is gathering nearly 5 billion records a dayon the whereabouts of cellphones around the world, according to top-secret documents and interviews with U.S. intelligence officials, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.
The records feed a vast database that stores information about the locations of at least hundreds of millions of devices, according to the officials and the documents, which were provided by former NSA contractor Edward Snowden. New projects created to analyze that data have provided the intelligence community with what amounts to a mass surveillance tool.

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Friday, November 29, 2013

Inference Networks

Paul Roberts & Colin Aitken, The Logic of Forensic Proof: Inferential Reasoning in Criminal Evidence and Forensic Science (2013) is a beautifully-written summary of theorizing about the use of inference networks to analyze evidential inference and factual proof in investigation, litigation, and trials. This paper may well be the best single source about this very important topic.

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Wednesday, November 13, 2013

What Does "Relevant" Mean?

U.S. legal scholars - esp. students of the U.S. law of evidence - have wrestled for decades with the potentially unlimited reach of the (supposed) constraint on the admissibility of evidence known as "relevance." See, e.g., 1 & 1A Wigmore on Evidence Sections 12, 28 & 37.4 (P. Tillers rev. 1983). Decision makers in the national surveillance state have capitalized on the amorphousness of "relevance" to authorize government collection of vast amounts of data. See Debra Cassens White Surveillance court redefined ‘relevant’ and special-needs doctrine to permit broad data collection ABA Journal (July 8, 2013).
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Type 1 and Type 2 Cognitive Processes and the Supposed Relationship between These Two Supposedly Distinct Processes

My intuition and some reasoning (see, e.g., part III of my essay Are There Universal Principles or Forms of Evidential Inference?) lead me to suspect that this comment by T.J. Henkle about Type 1 and Type 2 cognitive processes is largely on target.

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Image Credit: Cassini Imaging TeamSSIJPLESANASA

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Sunday, November 10, 2013

Trial Use of Videos of Police Interviews of Rape Victims

Jane Lee, Criminal Law Review study backs video evidence in rape trials Sydney Morning Herald (November 11, 2013):
"Adult victims of childhood abuse should be able to give evidence against their alleged perpetrators using video-recorded interviews with police in criminal trials, researchers say.

"A study of adult rape victims in New Zealand has found that more than two-thirds of the details they revealed in their initial interviews with police were later left out when they testified as witnesses in court during criminal trials.

"The study, published in the Criminal Law Review journal, said that video-recorded evidence allowed witnesses' memory to be treated 'more like a "crime scene" by examining and preserving memory in a forensically safe way so that the courts receive the best evidence as measured by accuracy and completeness'.

"One of the study's authors, Dr Nina Westera, said that police used special techniques to jog a person's memory of an event and to recall it in narrative form over a longer period of time. By contrast, criminal trials often occurred years after the alleged crimes and witnesses were interviewed more quickly in a more formal, stressful environment.

"Child victims had been able to use such videos as their evidence-in-chief since the 1980s. In recent years, New Zealand, England, Wales and Norway had extended this to adult victims, who were then asked extra questions from the prosecution and cross-examined by defence lawyers.

"But in Australia, videos of police interviews could only be used as evidence for adults with intellectual disabilities."
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Thursday, November 07, 2013

Monday, November 04, 2013

The New Calculus: 320,000,000 Invasions of Privacy for 300 Leads

"'The NSA allegedly collected the phone records of 320 million people in order to identify roughly 300 people who might be a risk. It's just bad public policy…and perhaps illegal,' [Eric Schmidt of Google] said. 


"'There clearly are cases where evil people exist, but you don't have to violate the privacy of every single citizen of America to find them,' he said."

Wall Street Journal Online (Nov. 4, 2013)

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Friday, November 01, 2013

Wednesday, October 30, 2013

Judge Richard Posner on Lawyers' and Judges' Fear and Loathing of Numbers, Technology, and Science

Jackson v. Pollion, No. 12-2682, at pp. 2-8 (7th Cir., October 28, 2013) (Posner, J.):

What is troubling about the case is not its disposition but that both the district judge, and the magistrate judge whose recommendation to grant summary judgment the district judge accepted, believed that Jackson “can present evidence permitting a reasonable inference” that he had experienced a serious medical condition as a consequence of the interruption of his medication. This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff’s brief in this court, as one would expect; it is largely ignored by the defendants.
This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue. “As a general matter, lawyers and science don’t mix.” Peter Lee, “Patent Law and the Two Cultures,” 120 Yale L.J. 2, 4 (2010); see also Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2120(2013) (Scalia, J., concurring in part and concurring in the judgment) (“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J., concurring in part and dissenting in part) (“the various briefs filed in this case … deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review—in short, matters far afield from the expertise of judges”); Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 60–61 (1943) (Frankfurter, J., dissenting in part) (“it is an old observation that the training of Anglo‐American judges ill fits them to discharge the duties cast upon them by patent legis‐lation”); Parke‐Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115 (S.D.N.Y. 1911) (Hand, J.) (“I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these. … How long we shall continue to blunder along with‐out the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance”); Henry J. Friendly, Federal Jurisdiction: A General View 157 (1973) (“I am unable to perceive why we should not insist on the same level of scientific understanding on the patent bench that clients demand of the patent bar, or why lack of such understanding by the judge should be deemed a precious asset”); David L. Faigman, Legal Alchemy: The Use and Misuse of Science in Law xi (1999) (“the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it”).

The discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a “math block”—“law students as a group, seem peculiarly averse to math and science.” David L. Faigman, et al., Modern Scientific Evidence: Standards, Statistics, and Research Methods v (2008 student ed.). But it’s increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.

In 2007 the plaintiff, who was then 22 years old and serv‐ing a 40‐year sentence for first‐degree murder, was diag‐nosed with hypertension. The drugs hydrochlorothiazide (25 mg—a low dose) and amlodipine (5 mg—a normal dose) were prescribed. Later verapamil (180 mg) was substituted for the amlodipine. (Those two drugs are calcium channel blockers; hydrochlorothiazide is a diuretic.) The plaintiff claims not to have been given the drugs for a three‐week period beginning on February 15, 2009 (we’ll assume for purposes of this appeal that this is true), and that as a result he suffered loss of vision, nose bleeds, headaches, and light‐headedness upon standing up (actually a symptom of low blood pressure, see Cleveland Clinic, “Orthostatic Hypotension," (all websites cited in this opinion were visited on Oct. 18, 2013).
The plaintiff’s blood pressure had been taken on February 9, six days before his medication was interrupted. The reading on that occasion was 112/82 (the top number is the systolic pressure, the lower the diastolic). His blood pressure was taken next on March 9, at the end of the period of interruption, and was 142/78. “Ideal” blood pressure is considered to be below 120/80, but the top of the normal range is 140/90. The systolic pressure was thus slightly above the normal range. A single reading has little significance, be‐cause blood pressure fluctuates even when the patient is taking his medication. A week after the plaintiff resumed his medication, his blood pressure was taken again, and this time it was 114/72.
Unless our plaintiff has some serious medical condition unmentioned in the briefs or record, the slight elevation above the normal range that he may have experienced dur‐ing a three‐week period (we cannot say, on the basis of a single reading, that he did experience it) would not have produced the symptoms of which he complains or have en‐dangered his long‐term health. “The prolonged elevation of either the systolic or the diastolic blood pressure causes damage. If mildly elevated over a long period of time, or if highly elevated over a short period of time, damage results to a variety of different ‘target’ organs in the body, primarily due to arterial injury.” 2 Dan J. Tennenhouse, Attorneys Medical Deskbook § 24:4 (4th ed. 2012) (emphasis added); see also Norman M. Kaplan, Clinical Hypertension 124–25 (9th ed. 2006); Cleveland Clinic, “Pulmonary Hypertension: Causes, Symptoms, Diagnosis, Treatment,” The plaintiff experienced not highly elevated blood pressure for a short time or mildly elevated blood pressure for a long time, but mildly elevated blood pressure for a short time.

Hypertension is a serious condition. Untreated it can result in strokes or heart attacks. But a slight elevation above the normal range in an otherwise healthy young person (like the plaintiff) for three weeks will not bring on a stroke or heart attack or even materially increase the risk of a stroke or heart attack forty or fifty years later.
The deposition of the physician who took the plaintiff’s blood pressure on March 9 does not help the plaintiff’s case. Regarding the March 9 reading of 142/78, she said (consistent with the medical literature that we’ve cited): “I cannot say it’s a very serious, you know, condition, but it is a condition where the patient needs to take his medications.” The record refers to readings of 146/90 on two occasions in May. Although these readings were higher than the March 9 reading, the physician said that the plaintiff “would not have any symptoms with this kind of blood pressure. Seldom do you see patients with symptoms with this kind of blood pressure.”

Upon this very thin basis—the district court record con‐tains not a single reference to medical literature—the plain‐tiff’s lawyer (who acknowledged at oral argument that he had not himself conducted any research into hypertension, and whose brief contains no references to any medical litera‐ture) builds an edifice of alarm. He says that his client “be‐gan to suffer bloody noses, loss of vision and visual disturbances, and further could have suffered even more severe ailments such as stroke or even death.” The proposition that his client’s not taking his blood pressure medicine for three weeks might have killed him has no medical support in the record or the medical literature.

The magistrate judge thought the plaintiff could in a trial have presented evidence permitting “a reasonable inference that [the plaintiff’s] need for medication between February 27 [we don’t understand the choice of that date rather than February 15] and March 6, 2009, was objectively serious.” The district judge agreed that the plaintiff “suffered from an objectively serious medical condition.” These observations are irrelevancies. Hypertension is a serious medical condition because of the long‐term damage that it can do. But the issue in this case is whether the withholding of treatment during a brief period in the early stages of the condition in an otherwise healthy man in his mid‐twenties was likely to cause serious, or indeed any, harm. The disconnect between the underlying condition and the interruption in medication is underscored by the fact noted earlier that in May, two months after the interruption had ended, the plaintiff’s blood pressure was higher than it had been during the interruption.

Like the lawyers, the two judges made no reference to any medical literature. They could have skipped all medical questions, relying entirely on the lack of evidence of deliberate indifference by either defendant. But if they were going to venture an opinion on the “objective seriousness” of the plaintiff’s “medical condition,” they had to get the condition right—which was not hypertension but the medical consequences, in fact negligible, of a three‐week deprivation of medicine for mild, early‐stage hypertension. No matter how serious a medical condition is, the sufferer from it cannot prove tortious misconduct (including misconduct constituting a constitutional tort) as a result of failure to treat the condition without providing evidence that the failure caused injury or a serious risk of injury. For there is no tort—common law, statutory, or constitutional—without an injury, actual or at least probabilistic. Rozenfeld v. Medical Protec‐tive Co., 73 F.3d 154, 155–56 (7th Cir. 1996); Buckley v. Fitz‐simmons, 20 F.3d 789, 796 (7th Cir. 1994); cf. Codd v. Velger, 429 U.S. 624 (1977) (per curiam). (“A probabilistic harm, if nontrivial, can support standing.” Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998), and cases cited there.) As explained in Williams v. Liefer, 491 F.3d 710, 714–15 (7th Cir. 2007), “In cases where prison officials delayed rather than denied medical assistance to an inmate, courts have required the plain‐tiff to offer ‘verifying medical evidence’ that the delay (rather than the inmate’s underlying condition) caused some degree of harm. That is, a plaintiff must offer medical evidence that tends to confirm or corroborate a claim that the delay was detrimental” (citations omitted).

To determine the effect on the plaintiff’s health of a temporary interruption in his medication, the lawyers in the first instance, and if they did their job the judges in the second instance, would have had to make some investment in learning about the condition. That could have taken the form of a judge’s appointing a neutral expert under Fed. R. Evid. 706, or insisting that the plaintiff’s lawyer obtain an expert’s affidavit, or just consulting a reputable medical treatise. The legal profession must get over its fear and loathing of science.


To which I say, "Amen, Brother." 

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Wednesday, October 23, 2013

Tim van Gelder: AI as - or versus - Human Intelligence Amplification

A vast amount (of hokum) has been written about artificial intelligence, but not enough has been written about artificial intelligence as a tool, about the the use of artificial intelligence - or, more simply, computer technology - to amplify, or expand, "ordinary" human intelligence. Tim van Gelder is a refreshing counterexample: this guru emphasizes, not "autonomous" AI (or computational intelligence), but "intelligence amplification" through computer technology. See Adam Ford & Tim van Gelder, Into the Deep Blue Yonder - Artificial Intelligence and Intelligence Amplification (October 22, 2013)


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Wednesday, October 16, 2013

Factfinding in Appellate Decisionmaking

John Schwartz, Judge in Landmark Case [Richard Posner] Disavows Support for Voter ID, NYTimes (October 15, 2013):

It is the kind of thought that rarely passes the lips of a member of the federal judiciary: I was wrong.

But there was Richard A. Posner, one of the most distinguished judges in the land and a member of the United States Court of Appeals for the Seventh Circuit, saying he was mistaken in one of the most contentious issues in American politics and jurisprudence: laws that require people to show identification before they can vote.

Proponents of voter identification laws, who tend to be Republican, say the measures are necessary to prevent fraud at the polls. Opponents, who tend to be Democrats, assert that the amount of fraud at polling places is tiny, and that the burdens of the laws are enough to suppress voting, especially among poor and minority Americans.
One of the landmark cases in which such requirements were affirmed, Crawford v. Marion County Election Board, was decided at the Seventh Circuit in an opinion written by Judge Posner in 2007 and upheld by the Supreme Court in 2008.
[snip, snip]
In a telephone interview on Tuesday, Judge Posner noted that the primary opinion in the 2008 Supreme Court decision upholding the law had been written by Justice John Paul Stevens, “who is, of course, very liberal.” The outcome of the case goes to show, he said, that oftentimes, “judges aren’t given the facts that they need to make a sound decision.” [emphasis added]


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Friday, October 04, 2013

MarshalPlan 6.x (evidence marshaling software)

A. Background
Years ago David A. Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan."

  • Some of my more recent thoughts about the theoretical foundations of MarshalPlan may be found here (long blog post called "The Ramshackle -- and Logical -- Character of Explicit Human Factual Inference" (June 18, 2011)).
  • In the years following my seven(!)-year NSF-supported collaboration with David Schum, I continued to tinker with MarshalPlan. I did so by both modifying and adding "stacks," or files. (Each stack corresponds to an evidence marshaling strategy, or method.) The most recent iteration of the evidence marshaling software is MarshalPlan 6.x.
    A few years ago I began to make MarshalPlan available via the internet. Further below in this post I lay out a relatively simple way that many of you can now use to download and run MarshalPlan 6.x.

    B. Caveats

    Before you download or access MarshalPlan, please consider the following important caveats:
    1. The current iteration of MarshalPlan -- MarshalPlan 6.x -- is not a prototype of a working application suitable for real-time and real-world use. Far from it! However, MarshalPlan 6.x goes beyond just scratchings (text) that explain how an evidence marshaling application might work. Even so, it is not far from the truth to say that MarshalPlan is mainly an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take. But, but ... MarshalPlan 6.x is a bit more than an illustration of possible future directions for research and development. MarshalPlan as it now stands is useful for pedagogical (i.e., teaching) purposes. Moreover, MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use. 
    2. In MarshalPlan there are only brief explanations of some of the evidence marshaling strategies found there. Other marshaling strategies, however, are described and explained more fully. For a comprehensive account of the thinking that went into MarshalPlan, please see the readings mentioned above. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).
    3. A few buttons and links may not work. If that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.) 
    4. MarshalPlan 6.x is currently not set up to be linked to a database. This is an almost fatal deficiency for any possible real-world use in a context such as law practice. (But it would not be difficult for a reasonably proficient programmer to eliminate this deficiency.)

    C. Instructions

    Try the following method to view and play with MarshalPlan 6.x:
    Go to 6.x and open the subfolder "Windows" and then click on MarshalPlan 6.x.exe. 
    A free open source version of the scripting language for MarshalPlan is now available (go here). It is called "LiveCode Community."

    • Caveat: I reserve my copyright to MarshalPlan. This means in part that you cannot distribute, lease, or use any version of MarshalPlan for profit or for commercial purposes without my express written permission.
    Nota Bene: You will very probably not be able to run MarshalPlan 6.x on an Apple computer. The Apple OS probably still strips MarshalPlan of the ability to run on Apple computers. Sorry! {Take your grievance if any to the paternalistic Apple Corporation, which likes closed worlds, particularly those that it controls.} But there is a solution! Send an email message to and ask me to share a relevant DropBox folder with you. I will probably happily oblige.
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    Thursday, September 26, 2013

    Chapel Hill and James H. Chadbourn

    A friend recently reminded me of Tom Wolfe's connection with Chapel Hill, North Carolina. My friend's reminder made me think of James H. Chadbourn, who began his academic career at the University of North Carolina. Chadbourn published a book on lynching and the law in 1933. He was 33 years old at the time and a lowly assistant professor. I imagine it took much courage to publish that book. 


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    Monday, September 23, 2013

    A Lesson for the Confrontation Clause?

    Jennifer Kingson, Rethinking the Poker Face and Plans for a Cat in Space NY Times  (Sept. 23, 2013):

    Poker Arms

    In a classic work by Lady Gaga, she boasts, “No, he can’t read my poker face.” But according to a paper in the journal Psychological Science, she should be more worried about her arm and hand movements, at least when playing poker. “Even though professional players may be able to regulate their facial expressions, their motor actions could betray the quality of their poker hand,” the authors wrote. In three studies, psychologists asked undergraduates to watch clips of professional poker players placing bets; it turned out that smooth and confident arm motions while pushing the chips were the surest signal of a good hand.


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    Tuesday, September 17, 2013

    FISA Court's Mechanical Fourth Amendment Jurisprudence

    For a stellar (and shocking) example of mechanical Fourth Amendment jurisprudence, see this recently declassified FISA court memorandum opinion.
    Apart from the opinion's singularly uninspired black-letter interpretation of the Fourth Amendment (and heavy reliance on 1970s Supreme Court precedents), the opinion is striking for the paucity of discussion - less than five double-spaced pages - devoted to the question of the constitutionality of a massive program of NSA surveillance of telephony metadata.
    God help us all!
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    Mixtures of DNA in One Person

    Carol Zimmer, DNA Double Take NYTimes (Sept. 12, 2013)


    ... [S]cientists are discovering that — to a surprising degree — we contain genetic multitudes. Not long ago, researchers had thought it was rare for the cells in a single healthy person to differ genetically in a significant way. But scientists are finding that it’s quite common for an individual to have multiple genomes. Some people, for example, have groups of cells with mutations that are not found in the rest of the body. Some have genomes that came from other people.

    [snip, snip]

    Dr. James R. Lupski, a leading expert on the human genome at Baylor College of Medicine, wrote in a recent review in the journal Science that the existence of multiple genomes in an individual could have a tremendous impact on the practice of medicine. ...

    [snip, snip]

    Science’s changing view is also raising questions about how forensic scientists should use DNA evidence to identify people. ...

    [snip, snip]

    ... In 1953, for example, a British woman donated a pint of blood. It turned out that some of her blood was Type O and some was Type A. The scientists who studied her concluded thatshe had acquired some of her blood from her twin brother in the womb, including his genomes in his blood cells.

    Chimerism, as such conditions came to be known, seemed for many years to be a rarity. But “it can be commoner than we realized,” said Dr. Linda Randolph, a pediatrician at Children’s Hospital in Los Angeles who is an author of a review of chimerism published in The American Journal of Medical Genetics in July.

    [snip, snip]

    A century ago, geneticists discovered one way in which people might acquire new genomes. They were studying “mosaic animals,” rare creatures with oddly-colored patches of fur. The animals didn’t inherit the genes for these patches from their parents. Instead, while embryos, they acquired a mutation in a skin cell that divided to produce a colored patch.

    Mosaicism, as this condition came to be known, was difficult to study in humans before the age of DNA sequencing. Scientists could only discover instances in which the mutations and the effects were big.

    [snip, snip]

    The latest findings make it clear that mosaicism is quite common — even in healthy cells.

    [snip, snip

    Medical researchers aren’t the only scientists interested in our multitudes of personal genomes. So are forensic scientists. When they attempt to identify criminals or murder victims by matching DNA, they want to avoid being misled by the variety of genomes inside a single person.

    Last year, for example, forensic scientists at the Washington State Patrol Crime Laboratory Division described how a saliva sample and a sperm sample from the same suspect in a sexual assault case didn’t match.

    [snip, snip]

    While the risk of confusion is real, it is manageable, experts said. “This should not be much of a concern for forensics,” said Manfred Kayser, a professor of Forensic Molecular Biology at Erasmus University in Rotterdam. In the cases where mosaicism or chimerism causes confusion, forensic scientists can clear it up by other means. In the Austrian study, for example, the scientists found no marrow donor genomes in the hair of the recipients.

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    Friday, September 06, 2013

    A Path to the Solution of the Conjunction Paradox?

    The "conjunction paradox" has bedeviled legal theorists for years. It still does. See, e.g., Kevin M. Clermont, Death of Paradox: The Killer Logic Beneath the Standards of Proof Cornell Law Faculty Publications, Scholarship@Cornell Law: A Digital Repository (Feb 1, 2013). Some legal theorists who doubt that the standard probability calculus is a satisfactory "model" of judicial proof are particularly prone to flog their opponents with this paradox.

    But what is the conjunction paradox? According to Professor Clermont, id. at 1106, Professor Charles Nesson constructed "the best-known statement of the infamous conjunction paradox." Clermont quotes (id.) Nesson thus (original article: Charles Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harvard Law Review 1357, 1385-88 (1985) footnotes omitted)):

    "We purport to decide civil cases according to a more-probable-than-not standard of proof. We would expect this standard to take into account the rule of conjunction, which states that the probability of two independent events occurring together is the product of the probability of each event occurring separately. The rule of conjunction dictates that in a case comprised of two independent elements the plaintiff must prove each element to a much greater degree than 50%: only then will the plaintiff have shown that the probability that the two elements occurred together exceeds 50%. Suppose, for example, that a plaintiff must prove both causation and fault and that these two elements are independent. If the plaintiff shows that causation is 60% probable and fault is 60% probable, then he apparently would have failed to satisfy the civil standard of proof because the probability that the defendant both acted negligently and caused injury is only 36%.

          "In our legal system, however, jurors do not consider whether it is more probable than not that all elements occurred in conjunction. Judges instruct jurors to decide civil cases element by element, with each element decided on a more-probable-than-not basis. Once jurors have decided that an element is probable, they are to consider the element established, repress any remaining doubts about it, and proceed to consider the next element. If the plaintiff proves each element by a preponderance of the evidence, the jury will find in his favor.... Thus, jurors may find a defendant liable even if it is highly unlikely that he acted negligently, that is, the conjoined probability of the elements is much less than 50%. In such cases, the verdict fails to reflect a probable account of what happened and thus fails to minimize the cost of judicial errors ...
    "... Although courts direct juries to consider and decide each element seriatim, juries do not consider each item of evidence seriatim when deciding whether a given element is proved. The jury must decide each element by looking at all of the evidence bearing on proof of that element. Thus, although the jury does not assess the conjunction of the elements of a case, it does decide each element by assessing the conjunction of the evidence for it."

    The conjunction paradox persists even if we assume juries are told to assess the probability of a whole claim (or affirmative defense) as well as the probability of each element of the claim (or affirmative defense).

    The conjunction paradox persists even if we assume that there are some partial dependencies among the elements of a claim (or affirmative defense).

    The conjunction paradox takes an acute form in criminal cases - in which, let us assume, jurors are instructed they must find that proof establishes each element of the charge beyond a reasonable doubt and also the entire charge beyond a reasonable doubt. The problem here is that if the charge has two or more essential elements and if a numerical value such as a .95 probability is assigned to "beyond a reasonable doubt," it seems to follow, by probability logic - specifically the product rule, contrary to the instructions jurors are actually given,  that they must find that the probability of at least one of those elements must be very substantially above .95. If not, it seems to follow - by the probability logic - that jurors can return a guilty verdict even if they believe that the probability of the existence of all the essential elements taken together is less than .95.

    I have made some entirely unsatisfactory attempts to develop a solution to the conjunction paradox. See, e.g.,

    Sunday, April 18, 2010

    Cf. my unsuccessful attempt to begin to find another way through the muddle:

    I am now going to try to begin work toward very different kind of solution. Consider the following (fragmentary and tentative!) gambit:

    Take the following possible situation (Situation X):

    At about 3:00 p.m., on June 5, 2013, (a) James Jones becomes angry at Valiant Victim, (b) decides to hurt Valiant Victim, (c) picks up a knife, and (d) stabs Valiant Victim.

    We can think of the Situation X as a set of distinct events a – d .

    We can also think of the above situation Situation X as one event - as a single event - that has a number of parts or features (e.g., the events or features above, a – d ).

    Probability theory alone does not tell us which of these two ways we should or must think of Situation X.

    If we can or should think of Situation X with features a – d (only) as a single (possible) event, we are free to think of the question of the probability of Situation X without believing that we must or should think of the probabilities of each of the events or features a – d.

    • It is quite true that it is possible think of Situation X as a (possible) compound event that is nothing more than the collection of (possibly-connected) distinct events a – d over time.
    • If we think of Situation X in (only) this way, we can and surely must (at the very least) think of the separate probabilties of each of the events a – d if we wish to assess the probability ofSituation X.
    • Given the hypothesized way we are now thinking of Situation X, if we do not ponder these separate probabilities, we cannot possibly assess the probability of Situation X. This is because we think of Situation X as nothing more than the conjunction (over time) of events a – d.
    • But it is also true that it is possible to think of Situation X(only) as a single event with the features a – d over time. In that event, if we wish to assess the probability of Situation X, the structure of our thinking (or imagination) about Situation Xdoes not force or drive us to ponder the separate probability of each a – d. Indeed, if we think of Situation X as nothing more than a single event, we cannot readily imagine the possibilty of separate assessments of the probability of each a – d.

    But a question: In a trial we take (and must take) evidence about matters such as events or elements a – d. Does it follow that we must think of (factual) hypotheses such as Situation X as being nothing more than a possible composite event consisting of events a – d?

    Answer: I don't think so. The evidence in question may generate in our minds the hypothesis Situation X with the features a – d. Cf. P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation, 24 University of California at Davis Law Review 931 (1991) (arguing in part that evidence serves to generate and refine hypotheses as well as to prove or disprove formulated hypotheses). But once a factual hypothesis is crystallized in our minds, we are free (as a logical matter) to think or imagine that the evidence about a – d is nothing more than evidence about the entire hypothesis Situation X.

    But note (and this is an important note, a very important refinement): As I have hinted above - by using words such as “only” and “just” - I think it is both possible and likely that our minds shift between thinking of a factual scenario such as Situation X as being, one the one hand, a single event and, on the other hand, a composite event (i.e., an event consisting of distinct sub-events). If this is the case, it follows that when we shift from one way of thinking about a factual scenario to the other, the way that probability theory is applied to the situation also changes and must change. And that's perfectly fine and appropriate. Probability theory is a formal tool that does not, by itself, specify or even suggest how possible events in the world should or must be carved up.

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