O.W. Holmes, Jr., Made Modern on Matters of Gender

The same article I mentioned on the 14th (of this month) rendered one of the most famous passages in American law thus:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with [others], have had a good deal more to do than the syllogism in determining the rules by which [all] should be governed.

I wonder: Did it occur to the author or the editors that Holmes, by modern standards, was a "sexist" and that the reformulation of his (poetic) passage distorts an important item in the historical record?

Straightening Out King James

What is person that thou are art mindful of it?

Language Purification

Yesterday morning I saw the following footnote in a law journal:

n78. Cardozo, supra note 40, at 141 (edited for gender neutrality …).

Is this sort of linguistic cleansing (“reconstruction”?, “language purification”?) of source material common?

To give the student editors their due: they did not quote Cardozo’s “sexist” language; they paraphrased the portion of the statement by J. Cardozo that they found offensive. I am still troubled. Are you?

What would the editors of this law journal do with statements made by judges, treatise writers., etc., before, say, the 18th 0r 19th century, statements in which long-dead authors or judges use male pronouns to refer to human beings or to male judges? Would such statements also be edited to achieve “gender neutrality”?

Would Shakespeare’s language also be restated to conform to 21st century norms at the law journal in question?

O'Keefe's Short-Sighted View of the Importance of Seeing Ultra-Deep Fields

If NASA administrator O'Keefe shuts off the Hubble, you may not see the likes of this again in your lifetime:

The Ultra Deep Field

Yes, my child, each one of those little oval blips probably contains more than 100 billion stars, very probably several hundred billion stars -- and also many planetary systems. So, yes, you may be looking at a part of the universe in which someone was also looking outward and upward.

Save the Hubble!

Glorious Universe

Surely you never even imagined (until now) that anything this glorious exists in our universe: Variable star V838 Monocerotis

If so, you are obliged to help Save the Hubble!

Natural Order in the Solar System

Being wedded to the base 10 numerical system -- not having much choice about it, really -- I have always thought that our solar system should have ten planets, and not nine. Well, astronomers have finally put things right: there are -- some astronomers say -- 10 planets. See http://www.smh.com.au/articles/2004/03/15/1079199151404.html.

If you appreciate (our new knowledge of) our planetary order, you should really join the call to Save the Hubble!

SIDS & Homicide in Australia

The Australian Broadcasting Corporation is broadcasting a show, "Of Woman Born," about the Kathleen Folbigg case. See http://www.abc.net.au/austory/

ABC's blurb about the two-part show – to be aired on the program “Australia Story” Monday, March 15, and March 22, at 8:00 p.m. “Australian time” (but which Australian time zone?) –, the blurb states:

This is the first of a special two-part program, revealing the untold story of the investigation that brought Kathleen Folbigg to justice.

Last year Folbigg was sentenced to 40 years jail for killing all four of her children, one by one, over a 10-year period.

The conviction made the 36-year-old New South Wales woman Australia's worst female serial killer.

But Kathleen Folbigg might very well have escaped justice had it not been for the dogged determination of a country detective and the unlikely alliance he slowly forged with Folbigg's doting sister, Lea Bown.

Using many hours of previously unseen home movie footage, Australian Story charts Kathleen's own fractured childhood from her arrival, as a three year old foster child, into the home of Lea Bown's parents, the Marlboroughs. Lea, who was 17 at the time of Kathleen's arrival, "idolised" the youngster and regarded her as a blood sister.

When Kathleen is 16 she learns the truth about her past - that her natural father stabbed her mother to death in a burst of rage.

Compelling home movie footage, along with personal letters, reveals Kathleen's subsequent journey through marriage to motherhood. The short lives of all four of her children are vividly captured on videotape. One after the other, there is a sudden death and then a new baby, and then another death. All the children die between the ages of 19 days and 19 months.

The first three deaths are all deemed to be from natural causes. But when Kathleen's fourth child, 19-month-old Laura, is admitted to Singleton Hospital on March 1, 1999 Detective Sergeant Bernie Ryan just happens to be on duty.

Ryan says "It was a very dark day... it was the day that changed my life."

It was just the start of a harrowing four-year battle for Ryan – and an emotional roller coaster for Lea Bown.

See also the account of the case at http://www.crimelibrary.com/notorious_murders/women/folbigg/.

At Kathleen Folbigg's trial for homicide one expert testified that the probability that all four deaths were sudden infant deaths was one in a trillion.

What are we to make of Kathleen Folbigg's family history -- that her father had murdered her mother? Note that Kathleen Folbigg was not raised by her homicidal father.

Kathleen Folbigg's diaries were admitted into evidence. Would you prefer that they have been treated as sacrosanct and inadmissible at her trial?

Save the Hubble

Consider signing a petition to save the Hubble. Go to http://www.savethehubble.org/petition.jsp

A Problem in Relevance, Conditional Relevance, and Dependent Conditional Probability

A crime is committed. The perpetrator leaves behind a shirt. The issue at trial is identity: Did the defendant commit the crime or was it someone else? At the trial the prosecutor offers to show that twenty different dogs at twenty different times were allowed to sniff the shirt left at the scene of the crime and that each of those dogs separately led the dog handlers to the defendant.

Evidence is also presented at the trial about the ability or inability of each of the 20 dogs to follow a scent. The jurors consider each dog and the evidence about each dog separately. They conclude, in each instance, that each dog more probably than not cannot follow a scent.

Should the jurors have been told in this case to disregard evidence about the tracking behavior of the dogs (that each of the twenty dogs led dog handlers to the defendant) if the jurors conclude that it is more probable than not that each dog cannot follow a scent? Alternative statement of the problem: Should the trial judge refuse to admit the dog-tracking evidence if the trial judge concludes that there is insufficient evidence to permit a reasonable jury to conclude that it is more probable than not that each dog is capable of tracking a scent -- if, that is, the trial judge concludes that a reasonable jury would have to find that it is more probable than not that each dog cannot follow a scent?

See Federal Rules of Evidence 104(b), 401 & 402.

What Is Nonlinear Reasoning?

Well, now that we've figured out what Justice Souter meant by linear reasoning, let's figure out what he might have thought that nonlinear reasoning is.

Doesn't nonlinear reasoning have something to do with complexity? Chaos?

Here's a possibility:

Nonlinear reasoning = complex reasoning

Mmm, that doesn't sound quite right. Ah, I have it:

Nonlinear reasoning = chaotic reasoning

Mmm, that doesn't sound quite right either. He couldn't have had that in mind, could he?

Oh, I have it now. How silly of me. Here it is:

Nonlinear reasoning = reasoning about chaotic systems

So evidence and inference in litigation are chaotic?

Mmm ... , can that be?

Well, over time -- in time -- ... perhaps. Cf. P Tillers, The Explosive Dynamic Complexity of Evidentiary Processes Associated with Litigation; Spotty Semiotics.

But wait a minute. What does it mean to say a system is chaotic? Does it mean that the brain of (wo)man cannot decipher it (to some degree)? Does it mean that the mind of (wo)man cannot explicitly decipher it (to any degree)?

Is weather a chaotic system? Does it help to talk about it -- even in the absence of (the computational power of) computers? {Red sky in the morning ..., ....} Mmmm, well, if weather is mind-numbingly chaotic, there must degrees of chaos, no? (The chances that it will be sunny in Seattle on July 1, 2004, are excellent. I will wager [offline] $100 that on July 1, 2004, it will be sunny in Seattle. {We will have to define "sunny." (I am not being cute or hypermodern.)}

What Is Linear Reasoning?

Justice Souter thinks (see my previous two posts) that reasoning about the relevance of evidence does not involve linear reasoning.

What is linear reasoning?

Is it Linear Logic? See, e.g., Trobin Brauener, Preface, INTRODUCTION TO LINEAR LOGIC v (1996):

Linear Logic was introduced by J.-Y. Girard in 1987 and it has attracted much attention from computer scientists, as it is a logical way of coping with resources and resource control.

Does linear reasoning amount to reasoning with linear equations? See, e.g., hyperdictionary at http://www.hyperdictionary.com/dictionary/linear+equation:

[n] a polynomial equation of the first degree

Is linear reasoning, reasoning about spaces defined by two or more rectilinear coordinates? Reasoning with linear differential equations? Is nonlinear reasoning, reasoning about spaces defined by curvilinear coordinates? Does nonlinear reasoning involve equations that generate curved lines in rectilinear space? ...

What, precisely, is a "linear scheme of reasoning"? And is all analysis or argument about evidence linear? What makes Souter (or his law clerks) think so?

Does Souter believe that reason cannot portray (i) exponential increases or (ii) the influence of multiple variables?

Does Souter believe that logic cannot "handle" scenarios?

Decision theory deals with alternative scenarios. Judea Pearl's subtle logic certainly deals with causal scenarios. So does Glenn Shafer's. [Souter said that a syllogism is not a story. This is true. {Did anyone ever assert the contrary?} But even if a syllogism is not a story, does it follow that deliberation about alternative scenarios or about alternative stories lies entirely beyond logic? If so, what makes Souter (or you) think so?]

News Flash: Six Judicial Opinions See Some Merit in Souter's Thesis of Non-Linear Reasoning about Evidence!

Six judicial opinions found that the phrase "linear scheme of reasoning" was not so insensible that it should not be quoted. See

United States v. Becht, 267 F.3d 767 (8th Cir. 2001)

United States v. Hill, 249 F.3d 707 (8th Cir, 2001)

United States v. Pabon-Cruz, 255 F. Supp. 2d 200 (S.DN.Y., 2003)

Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 138 F. Supp. 2d 357 (E.D.NY., 2001)

Briggs v. Dalkon Shield Claimants Trust, 1997 U.S. Dist. LEXIS 17335 (D. Md., 1997)

State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997)

Birth and Death of Postmodern Evidence -- the Rise and Sudden Decline of a New Non-Science of Evidence -- in the Halls of the Supreme Court

Seven years ago Justice Souter proclaimed (on behalf of the Supreme Court), "Evidence ... has force beyond any linear scheme of reasoning." This proclamation, made in Old Chief v. United States, 519 U.S. 172 (1997), was issued in support of the contention that reason cannot reveal all the ways in which evidence may be relevant to factual issues at a trial.

Ever since 1997 I have been telling my students that this eruption of postmodern evidence theory in the halls of the Supreme Court would be brief. I have discovered that Souter's irrationalist, intutionist, or holist perspective on evidential argument apparently did not even have a half a half-life: a LEXIS search (conducted on March 7, 2004) shows that not one single opinion by any court in the United States (from the highest to the lowest, state or federal) has used Souter's dismissive phrase "linear scheme of reasoning."

I have not used variants of "linear" in my search -- variants such as "nonlinear." So it is possible that some judge somewhere has seen merit in Justice Souter's theory that the mind of (wo)man cannot divine or articulate the various ways in which evidence may be relevant.

Postscript: I do not belief that all steps in or features of inference can be made explicit. However, Justice Souter's evidential intuitionism cannot easily co-exist with fundamental assumptions of the administration of the rules of evidence in trials -- with, for example, the rule or principle that an offeror of evidence has an obligation to inform the trial court of the purpose and relevance of the evidence it offers. Furthermore, there is a big (and unwarranted) step from the proposition that not everything can be spelled out to the proposition that nothing can be spelled out.

Further postscript: Nonlinear mathemtical reasoning may be hard to follow, but it is -- contrary to some rumor -- explicit reasoning.

Urgent additional postscript: Whoops! Well, perhaps my LEXIS search was misphrased. I have found one opinion that quotes Justice Souter's phrase. See United States v. Becht, 267 F.3d 767 (8th Cir., August 21, 2001). There may be others. I will report back (but I will not perform revisionist surgery on my original message, I will not delete my mistake).

The Probability and Improbability of Loaded Dice in Manhattan

Several weeks ago I tried to buy loaded dice -- to illustrate some principles of probability for some of my students. The people at the gaming store that I found, however, said they had no loaded dice and did not know where I might procure some. One employee did say that loaded dice (with magnets) are expensive, perhaps $800/a pair. But he promptly added that it is impossible to buy loaded dice in Manhattan and that he could not tell me where I might buy some.

Chance Cancer Clusters: Woburn Redux?

See the article in the Boston Globe.

Direct Inference:Indirect Inference::Direct Perception:Indirect Perception?

Many or most of the 20th century giants of U.S. legal scholarship in the law of evidence in the took the position that there is such a thing as direct or immediate inference; some of them said, for example, that some types of tangible evidence present information directly to the senses and do not require any inference about such information by a human observer. Some legal writers and many philosophers, however, have challenged this view or have taken a different view. I belong in this latter fraternity. In my (two-volume!) 1983 revision of the first volume of Wigmore's classic treatise on the law of evidence I said that "there is no such thing as direct evidence." (Ironically, Wigmore took a quite different position: he coined a phrase -- "autoptic proference" -- to describe how tangible things present themselves immediately to the senses. [Today no one uses Wigmore's neologism except to poke fun at Wigmore.])

I had thought that this disagreement about the existence or nonexistence of direct inference had been put to bed. But perhaps I am wrong. There is today a controversy still among psychologists and other serious students of perception about the existence or non-existence of direct perception. See, e.g., Claire F. Michaels and Claudio Carello, Direct Perception (1981), which is available at http://ione.psy.unconn.edu/~psy254/MC.pdf. (Professors Michaels and Carello call the study of direct perception the "ecological approach.")

What do you think, Gentle Reader?

Consider this question: Even if there is such a thing as direct human perception of the world, is there much or any direct perception or direct inference of or from the evidence presented in legal proceedings such as trials?

My question more precisely stated: Even if direct perception or direct inference occurs in trials, is it ever the case that direct perception or direct inference suffices to establish a legally-material factual proposition in a judicial trial or other legal proceeding?

Er, ..., you can perhaps see which way the wind is blowing in this writer's brain.

Perception as Inference

I just received an announcement of a conference about "visual thought."

Lovely expression!

Here is the announcement:

The depictive space of perception
A conference on visual thought

June, 7-9 2004
Mitteleuropa Foundation, Bolzano, Italy

Perceptual space and depictive space show strong similarities. Both are characterized by a sort of extendedness which unfolds dynamically, and which shows the close analogy between the performance of an act of perception and an act of design. Neither art nor vision are, in fact, veridical copies of the world, rather both seem to be operating on the representational structures of vision. On these premises, a scientific phenomenology, experimentally oriented, seems to be a more appropriate paradigm in vision science, especially in order to understand the dynamics of the ongoing perceiving. The conference has a starting point draws on the results of the artistic and cognitive theories of Klee and Arnheim and Gestalt theory, and explores their application to contemporary research in vision science.

Ample time will be allocated to discussion. If you are interested in attending the conference and/or contributing your own ideas, please send a mail (with a two-page abstract if you intend to give a paper) to Liliana Albertazzi (liliana.albertazzi@unitn.it) before April, 15.

Invited Speakers
1. L. Albertazzi (Trento University), The Depictive Space of the Mind
2. C. E. Connor (John Hopkins University), Shape Representation in Neural Populations
3. T. Economou (Georgia Tech), Studies in Complexity, Ambiguity and Emergence in Design
4. F. Fol Leymarie (Brown University), The Computation of Visual Fields in Arts
5. J. Koenderink (Utrecht University), The Geometry of Pictorial Space
6. M. Leyton (Rutgers University and D.I.M.A.C.S.), A Generative Theory of Shape
7. M. Massironi, (Verona University), The Space of Representation and the Representation of Space
8. G. van Tonder (Kyoto Institute of Technology), Order and Complexity in Naturalistic Landscapes
9. D. Viswanath (UC Berkeley), Perceptual Representation of Surfaces and Objects and the Implications for Design
10. J. Willats (Birmingham University), Some Structural Equivalents Shared by Paul Klee's Paintings and Children's Drawings
11. A. Zimmer (Regensburg University), Visual Art and Visual Perception: An Uneasy Complementarity
12. S. Zucker (Yale University), Visual Computations and Visual Cortex

The conference will be organized by the Mitteleuropa Foundation, Bolzano, Italy (www.mitteleuropafoundation.it <http://www.mitteleuropafoundation.it/> ) Applications should be sent to Liliana Albertazzi (liliana.albertazzi@unitn.it)

Important Dates:
Deadline for abstract submissions: 15 April 2004
Conference: June 7-9, 2004
****************************************************
Dr Roberto Poli, PhD
Editor-in-chief of Axiomathes, Kluwer:
http://www.kluweronline.com/issn/1122-1151
Papers and other information http://www.mitteleuropafoundation.it
preferred e-mail:
roberto.poli@soc.unitn.it
Dynamic ontology conference:
http://www.unitn.it/events/do/

A Legal Mess

Much judicial commentary (and some professorial commentary) on the "doctrine of chances" fails to distinguish between

(i) the probability that a random selection of instances from some appropriate reference class will produce a conjunction of some specified states or values (e.g., "in instance 1 -- random draw number 1 --, event of type X occurs" and "in instance 2, event of type X [again] occurs" );

and

(ii) the probability, given a conjunction of of some specified states [such as in #(i)], that a criminal defendant caused those states of affairs.

Merely because the conjunction of events in situation #(i) above is highly improbable when instances of the reference class are chosen at random does not necessarily mean that some causal explanation -- such as "David Defendant caused such an improbable [i.e., rare] conjunction of events" -- is highly probable.

Why do legal professionals find it so hard to get a handle on the distinction between probabilities of type (i) and probabilities of type (ii)?

BTW: Does the following principle make intuitive sense to you?:

The occurrence of very improbable events and of very improbable combinations of events is highly probable.

Consider a restatement of this principle:

The occurrence of rare events and of rare sets of events is, over the long run [alternatively: "given a sufficiently large number of trials"], highly probable.

Dangerous Learning

A little statistical learning is a very dangerous thing.

Evidence and Holism: Judgments about Wholes and Parts in Evidence Assessment

There is an important new article about the assessment of evidence in litigation: Dan Simon, Chadwick Snow & Stephen Read, "The Redux of Cognitive Consistency Theories: Evidence Judgments by Constraint Satisfaction." The authors' abstract states that "making decisions from multiple pieces of evidence is ... is bi-directional - decisions follow from the evidence, but evaluations of the evidence shift towards coherence with the emerging decision." The paper is not pure speculation: the authors report results from five empirical studies that test and substantiate their hypothesis.

I assume that the authors would honor requests for reprints. Write dsimon@law.usc.edu, csnow@usc.edu, or read@usc.edu.