Generalizations

Generalizations, it is said, are crucial to inferences about the workings of the world. But there is a deep mystery about how and why generalizations work (if they do work). Consider John Woods, Ralph Johnson, Dov Gabbay & Hans Ohlbach, "Logic and the Practical Turn," in HANDBOOK OF THE LOGIC OF ARGUMENT AND INFERENCE 1, 16 (2002) (vol. 1 in series STUDIES IN LOGIC AND PRACTICAL REASONING, eds., D. Gabbay, J. Siekmann, J. van Benthem & J. Woods):

How is it possible that there be a range of cases by which projections from samples are so nearly right while at the same time qualifying as travesties of what the logic of induction requires? The empirical record amply attests to a human being's capacity for pre-inductive generalization and projection.

Dramatic Use of Statistics in a $280 Billion - $800 Billion Cigarette Case

In Schwab v. Philip Morris USA, Inc., 449 F.Supp.2d 992, 1239-1241 (E.D.N.Y. 2006), Judge Jack Weinstein wrote:

A. Aggregate Proof

Plaintiff's use of aggregate proof does not violate defendants' constitutional rights. The appropriateness of such proof has been analyzed in numerous memoranda. See, e.g., Blue Cross, Appendix B at Part VII and D, infra. Experience with several years of discovery in this and related tobacco cases, and two full trials, has strengthened the conclusion that statistical proof combined with other evidence is a necessary and pragmatic evidentiary approach that reflects full due process in this and many other massive tort cases. It is consistent with defendants' constitutional rights and legally available to support plaintiffs' RICO claims. This case, involving alleged mass market fraud on smokers whose economic injuries, if any, are calculable on an objective basis not involving individualized questions of medical harm, is even better suited than previous cases to such aggregate proof. Cf. Blue Cross, Appendix B, infra (damages sought for all increased payments made to individual insureds by health plan); Simon II, Appendix D, infra (punitive damages class sought based on estimate of compensatory damages due to personal injuries incurred from smoking).

The idea that due process and jury trial rights require a particularized traditional form of evidence for each element would make this case and cases like it impossible to try. There is little harm in retaining a requirement for "particularistic" evidence of causation and damages in sporadic individual accidents where there are but a few medical histories and witnesses; such evidence is almost always available and convenient in such litigation. See, e.g., In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 832-34 (E.D.N.Y. 1984). Even in such cases use of almost any experts, whether doctors or DNA experts, depends upon the implied or express probabilistic underpinning of their professional judgments.

In mass fraud cases with hundreds of thousands or millions of injured the cost of one-on-one procedures is insuperable and unsuitable for either a jury or a bench trial. The consequence of requiring individual proof from each smoker would be to allow a defendant which has injured millions of people and caused billions of dollars in damages to escape almost all liability. As Professor Rosenberg noted almost a score of years ago, such restrictions in the form of admissible evidence is impractical and unnecessary. "The concept of 'particularistic' evidence suggests that there exists a form of proof that can provide direct and actual knowledge of [the parties' conduct]. 'Particularistic' evidence, however, is in fact no less probabilistic than is the statistical evidence that courts purport to shun." David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 Harv. L. Rev. 851, 870 (1984) (footnotes omitted). Many commentators agree. See, e.g., Peter Tillers, Symposium: Artificial Intelligence and Judicial Proof, 22 Cardozo L. Rev. 1365 (2001) (describing tendency of evidence scholars to rely on mathematical and quantitative methods, such as probability theory, statistics, and decision theory); Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv. L. Rev. 961, 1203 n.580 (2001); Laurens Walker & John Monahan, Sampling Liability, 85 Va. L. Rev. 329 (1999) (using statistical evidence is a reliable and practical method for mass trial); Robert G. Bone, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 Vand. L. Rev. 561 (1993); Jonathan J. Koehler & Daniel Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use Of Overtly Probabilistic Evidence and Methods, 75 Cornell L. Rev. 247, 248 (1990) (although courts should carefully determine the validity of probabilistic evidence, "overtly probabilistic evidence is no less probative of legally material facts than other types of evidence"); Michael J. Saks & Robert F. Kidd, Human Information Processing and Adjudication: Trial By Heuristics, 15 L. & Soc'y Rev. 123, 151 (1989-1990) ("Much of the testimony that is commonly thought of as particularistic only seems so. It is far more probabilistic than we normally allow jurors (or judges) to realize."); cf. The Evolving Role of Statistical Assessments as Evidence in the Courts 78-79 (Report of the American Academy of Science Panel on Statistical Assessments as Evidence in the Courts) (Stephen E. Feinberg ed. 1989) (noting the contradiction between some courts' insistence on evidence that seems certain, and such "probabilistic" institutions as plea bargaining, in which decisions are made on the basis of "probable" outcome). But see the objections (generally rejected by academics and courts) in Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971). See generally Federal Judicial Center, Manual for Complex Litigation (Fourth) Section 11.493 (2004) (guidelines for use of sample surveys); David H. Kaye & David A. Freedman, Reference Guide on Statistics, in Reference Manual on Scientific Evidence (Second) 83-178 (Federal Judicial Center, 2000).

The Federal Rules of Civil Procedure and the Federal Rules of Evidence grant district judges broad authority to shape the nature and scope of admissible evidence for trial. Scientific evidence--such as sampling and statistical extrapolations--is well suited to mass tort actions. It is particularly appropriate in massive consumer fraud cases, so long as it passes the gatekeeping criteria described in the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and related cases. Many states have provided special mechanisms for handling consumer fraud claims in the aggregate, recognizing that many such claims cannot be economically tried individually. When, as in the case at bar, the plaintiffs are a widely spread group complaining of injury from a common course of conduct by defendants, statistical analysis may provide a more accurate and comprehensible form of evidence than would the testimony of millions of individual smokers. See Blue Cross & Blue Shield of N.J., Inc., 133 F. Supp. 2d at 172 (explaining propriety of statistical extrapolation for entity suffering damages in aggregate); Blue Cross & Blue Shield of N.J., Inc., 36 F. Supp. 2d at 575 (E.D.N.Y. 1999) ("The aggregation of millions of alleged injuries in the instant suit can be expected to yield more accurate results with respect to the causation issue since projections based upon a large statistical base will be available, thus reducing the size of the possible error.").

Resolving mass tort disputes on a case-by-case basis may create a systematic bias against plaintiffs because, "[w]hile defendants spread the risk of adverse judgments across all test trials, each trial decides the fate of each plaintiff party on a single roll of the dice." David Rosenberg, Mass Tort Class Actions: What Defendants Have and Plaintiffs Don't, 37 Harv. J. on Legis. 393, 430 (2000); Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95 (1974) (importance of defendants' roles as repeat players). The defendant who successfully resolves a mass tort dispute with aggregate tools enjoys the economic benefit of a final resolution to all proceedings, not just a single case. Cf. Simon v. Philip Morris Inc., 200 F.R.D. 21, 43-46 (E.D.N.Y. 2001) (discussing public policy supporting aggregation).

Professors Laurens Walker and John Monahan of the University of Virginia Law School discuss and defend Judge Weinstein's rulingin their article Sampling Evidence at the Crossroads. The abstract of their article reads this way:

The use of sampled evidence in mass tort cases is at the crossroads. In McLaughlin v. Phillip Morris, Judge Jack B. Weinstein of the Eastern District of New York certified a nationwide class action on behalf of an estimated 50 million "light" cigarette smokers. In the face of the overwhelming cost of gathering evidence from tens of millions of plaintiff class members, he announced a dramatic trial plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. The central issue in the interlocutory appeal now before the Second Circuit is the legality of statistical sampling. This Article strenuously defends Judge Weinstein's strategy of relying on evidence produced through proven methods of sampling. Such an aggregate strategy is not only much more cost-effective than case-by-case evidence gathering, it is also much more likely to arrive at an accurate determination of damages. By laying out a comprehensive proposal for the use of sampled evidence in litigation, the authors hope to hasten the day when legal decision makers finally accept a practice than has been a hallmark of scientific decision making for the past sixty years.

Wigmore Lifetime Achievement Awards

Professor Michael Risinger, Chair of the Evidence Section of the Association of American Law Schools, announced yesterday that Wigmore Lifetime Achievement Awards would be given to

William L. Twining

and

Judge Jack B. Weinstein

Very appropriate!

Stuart Taylor, Jr., Is One Smart Cookie ...

... but I did just see him use the following phrase in The Atlantic online:

The kind of DNA evidence that can conclusively prove innocence or guilt ...

Oh dear, oh dear, oh dear!

For an explanation, please see here and here (comments provoked by the Central Park Jogger case).

And, dear Reader, just in case you are too lazy to click one of those two links, allow me to quote myself:

Even if we assume that DNA technology and laboratory procedures have improved so much that when a DNA test shows a "match" or "exclusion" we are effectively compelled to conclude, respectively, (i) that two samples containing DNA have a common source or (ii) that two such samples do not have a common source -- even if we assume that DNA evidence and laboratory procedures have gotten this good, the probative force of DNA evidence on a question such as criminal guilt or innocence always depends on a swarm of surrounding assumptions, evidence, and facts. Bottom line: DNA by itself never establishes a proposition such as "guilty" or "innocent."

I think that the Innocence Projects on the whole do God's work. (No one except a saint always does God's work.) My sense is that almost everyone thinks that the Innocence Projects are wonderful, divine, even saintly. Is it the desire to convey this sentiment -- to pass out congratulations and encouragement and to be counted among the good guys and gals -- that leads normally-thoughtful observers to exaggerate the epistemic (inferential, evidentiary) authority of DNA?

Think for a moment. Just for a minute. Please! (Try it. You might like it.) For example, consider questions such as these:

1. Does DNA [or a fingerprint] indicate -- conclusively indicate, that is -- the mental state of the person who is the source of the DNA [or fingerprint]?

2. Does the existence of one person's DNA [or fingerprint] in a particular place rule out the possibility of some other material in that same place that has another person's DNA [or fingerprint]? If not, will both samples -- with DNA or fingerprints -- always be found? If not, what follows?

3. Can a sample with a particular person's DNA [or fingerprint] be "planted"?

4. Does a DNA sample [or a fingerprint] conclusively establish when or how the DNA [or the fingerprint] came to be where it was found?

Suppose a sample with Person A's semen is found on a window sill near the victim's body. What if anything does this discovery conclusively prove? Does it conclusively prove how the DNA or fingerprint sample got there? When it got there?

5. Is the process of DNA identification [or fingerprint] fully automated? (Answer: No.) If it were, would the possibility of error be ruled out? Do machines ever malfunction? Do they ever wear out? Are they ever manipulated? (Is it hard or impossible to make a process so "automated" that it cannot be manipulated by a human being?)

6. Can a sample bearing a person's DNA be (literally) blown by the wind? Can a sample bearing a person's DNA be carried by a dog? (Can human hairs be carried by the wind? Do dogs move about and can they carry human hairs?) Can person A's DNA by transferred to person B by a handshake between A and B? (I don't know the answer to this question. But my guess is that the answer is "yes.") Can person A's DNA find its way onto person B if person B wears unwashed clothing that A has recently worn?

7. Does the presence of man A's semen in a woman X's vagina "conclusively" prove that man B did not have intercourse or attempt to have intercourse with woman X?

8. Do I need to keep asking such questions about such appalling situations to prove my point? (Alas, apparently I do.)

What is it that leads intelligent people to exaggerate the power of DNA evidence beyond all reason and common sense? Is it an anxiousness to affirm the great service that has been done by the Innocence Projects? Perhaps. But is such noble-minded exaggeration dangerous? I think it's possible -- I think it's probable -- that the answer is "yes."More is at stake here than a persnickety concern about the precise use of language.

If one believes that something is certain (whether it's guilt or innocence), one naturally has a tendency to think that such a certainty is not worth investigating. Why bother?

And what happens if a certainty is overthrown -- if, for example, a person said to be certainly innocent is shown to be probably guilty, or vice-versa? What kinds of feelings might one then have if "one" is, for example, a trial judge, a juror, a crime victim, a legislator, or just a member of the public who has a recollection of the past?

Incidentally, are prosecutors and expert witnesses for the prosecution always the only sinners? Should we trust defense counsel and expert witnesses for the defense for the same reason that we are asked to trust Google -- because we know or believe that they're the good guys and gals and wouldn't do anything wrong or even think of doing anything wrong? (And we're sure, aren't we, that the good guys and gals who run Google now will always run Google -- or that if the good guys and gals at Google prove to be mortal, their replacements will be just as good as the originals? Hasn't every President of the United States been as good as old George [Washington, I mean]? Q.E.D.)

&&&

Well, now I had better read the rest of Taylor's article. He is, after all, one of the best journalists around. He's ordinarily first-rate. But all of us get snookered now and then. Including me. It's entirely possible I've made a mistake in this very post. (That's a bit of a paradox, I suppose. But there you have it. And I still think -- for the moment -- that what I've said here -- or most of it -- is correct. But I could be wrong in thinking that.)

How Do and How Should Human Beings Use Reference Classes (Relative Frequencies)?

James Franklin & Scott Sisson, Assessment of Strategies for Evaluating Extreme Risks, (ACERA Project No. 0602, March 2007):

[Previously enumerated] considerations suggest this important conclusion, which is central to the point of view of this report:

It is reasonable to give human intuition the “last word” in risk assessment, while at the same time trying to use formal statistical methods as a kind of prosthesis to supplement its known weaknesses.

A problem where the superiority of human intuition over formal methods is especially evident – and one very relevant to extreme risks – is the “reference class problem” (also called in artificial intelligence “multiple inheritance”). The most basic evidence for probabilities in an individual case is observation of a relative frequency (in a class of which the case is a member). For example, the probability that Tex is rich, given that Tex is a Texan and 90% of Texans are rich, is 0.9. But typically, a case is a member of very many classes, in which relative frequencies vary. And there is no useful theory explaining how to combine the probabilities arising from the different “reference” classes. For example, if the evidence is that Tex is a Texan philosopher, that 90% of Texans are rich and 10% of philosophers are rich, then it is impossible to say how to combine these two numbers to achieve a numerical probability that Tex is rich, on the given evidence. (Hájek, 2006) The problem has caused a great deal of trouble in, for example, the law of evidence, where there is often evidence of different classes but it is of dubious legal relevance (Colyvan et al, 2001; Tillers, 2005), and in attempts to construct medical diagnosis expert systems, where combining evidence from different symptoms is essential but how to do it is theoretically poorly understood. (See also Caponecchia, 2007, section 4 for its relevance to communicating probabilities.)

Yet humans are very good at combining different kinds of evidence. Where they have an advantage over formal methods is that they can learn from long experience the comparative relevance of different reference classes. For example, they can learn enough about being Texan, being a philosopher and being rich to have some sense of whether being Texan or being a philosopher is more likely to be relevant to being rich. The vocabulary of natural languages is already attuned to naming concepts that are relevant to living, that is, are positively relevant in probabilistic inferences; which of them are most relevant to a particular inference is something that itself can be learned – but only over a long period, and in the context of very many other concepts.

That wide base of experience and the resultant tuning of concepts is not something that should be put aside when it comes to extrapolating from experience when evaluating extreme risks. On the contrary, is it a foundation that must be built on. It is the wide base of analogous cases that can compensate for the lack of data of directly relevant cases that is a feature of extreme risk analysis.

Reincarnation Only by Permission

A BBC report on the Tibetan Dalai Lama recounted (purported to recount?) that the Chinese Communist Party had proclaimed that reincarnation henceforth could occur only with the the permission of the Party.

Now that's temporal power!

Professor Larry Laudan Searches for Legal Epistemology and Can't Find It

I see that Prof. Larry Laudan wrote in Chapter 1 of his book Truth, Error, and Criminal Law, An Essay in Legal Epistemology (Cambridge University Press 2006):

The effort to answer that question constitutes what, in the subtitle of this book, I have called “legal epistemology.” Applied epistemology in general is the study of whether systems of investigation that purport to be seeking the truth are well engineered to lead to true beliefs about the world. Theorists of knowledge, as epistemologists are sometimes known, routinely examine truth-seeking practices like science and mathematics to find out whether they are capable of delivering the goods they seek.

Legal epistemology, by contrast, scarcely exists as a recognized area of inquiry. Despite the nearly universal acceptance of the premise that a criminal trial is a search for the truth about a crime, considerable uncertainty and confusion reign about whether the multiple rules of proof, evidence, and legal procedure that encumber a trial enhance or thwart the discovery of the truth. Worse, there has been precious little systematic study into the question of whether existing rules could be changed to enhance the likelihood that true verdicts would ensue. Legal epistemology, properly conceived, involves both a) the descriptive project of determining which existing rules promote and which thwart truth seeking and b) the normative one of proposing changes in existing rules to eliminate or modify those rules that turn out to be serious obstacles to finding the truth.

Gosh, I had the impression that the "new evidence scholarship" had something to do with epistemology. And this sort of evidence scholarship has been around for a while, for at least several decades. (It's no longer very new. Indeed, some observers said it was never very new -- that it has really been around since ca. the 17th century, and perhaps since Aristotle. Id.) But I guess I must be mistaken. Perhaps the so-called new evidence scholarship just isn't systematic enough to make into the pantheon of "legal epistemology"? Or perhaps it's not old enough to make the grade? I'll have to consult Jim Franklin about this.

Demeanor as Evidence

Prof. Laurie Levenson is publishing a promising-looking article on courtroom demeanor. Its subtitle is "The Theater of the Courtoom."

This topic -- the evidentiary status of the behavior of people in the courtroom -- is extraordinarily important (as Prof. Levenson fully recognizes) for both practical and theoretical reasons. The abstract of her article reads thus:

The American criminal courtroom is a theater where courtroom actors play out the guilt or innocence of the defendant for the jury to assess. Although one view of the courtroom is that of a controlled atmosphere where cases are decided based only on formal evidence, this view is undoubtedly unrealistic. Trials are affected by many factors, including the appearance and demeanor of the defendant. This article proposes an approach to deal with non-testifying demeanor evidence that occurs outside the witness box. Given the problems with having jurors rely on demeanor evidence, courts should be carefully monitoring the use of non-testifying demeanor evidence. Appropriate jury instructions should be given, including those warning jurors on proper use of such evidence.

Let's Not Give History Too Much Credit (or Blame): Thomas Davies on the Fifth Amendment Privilege against Self-Incrimination

Professor Thomas Y. Davies's recent attacks on the Supreme Court's view of the historical foundations of the Confrontation Clause are part of his broader campaign against the the Court's persistent misreading of history. In at least some of his published work Davies suggests that the Court's unwitting falsification of 18th century practices and understandings contributes to the trivialization of important constitutional rights and doctrines. In a 2003 article recently posted to SSRN, "Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right against Self-Incrimination as a 'Trial Right' in Chavez v. Martinez," 70 Tennesssee Law Review 987 (2003), Professor Davies concludes (foonotes omitted):

The point of this article is not that we should return to the original interpretation of the Fifth Amendment. That obviously is not feasible at this late date. Moreover, although the rigorously accusatory criminal procedure of the framing era may have been adequate for criminal justice in close communities, it would not be adequate for today’s mobile, urban society of strangers. There is a need for professional police and for proactive law enforcement and investigation; hence, police investigation, including interrogation, in some form, surely is here to stay.

Instead, my point is that assessments of the current status of the Fifth Amendment right should not proceed under the false notion that the current treatment of that right is equivalent to the right that the Framers intended to preserve. That false notion is deleterious because it tends to give an aura of inevitability to the current treatment of the right, and that aura tends to block critical appraisal of the choices that actually have shaped its content.

The authentic history of the Fifth Amendment right is a story of a right that has been shrunk by a drastic expansion of governmental criminal justice power, including governmental interrogation power. Moreover, that shrinkage has been permitted, to a large degree, because of the inattention and inaction of the Supreme Court. In particular, the Court initially failed to ask, or perhaps even perceive, the hard questions that were posed by the emergence of police interrogation as an unprecedented form of governmental interrogation. Despite the obvious danger of compelled self-incrimination in the backrooms of the police station, the Court failed to respond by developing a coherent view of what the Fifth Amendment right should mean regarding police interrogation. In addition, although the Miranda decision finally made a modest beginning in applying the Fifth Amendment right to impose conditions on custodial interrogation, even that regime of warnings and waiver has been undercut by more recent decisions. In fact, the opportunities for police interrogation of suspects have recently been expanded by decisions that have lowered the standard for taking suspects into custody, or that have permitted custodial arrests for minor offenses, even if such arrests amount to pretexts.

What is still necessary is for the Justices of the Supreme Court to take the question of what the Fifth Amendment right should mean today more seriously than they did in Chavez. At a minimum, the Justices should stop pretending that they are merely following the dictates of the text or original meaning of constitutional provisions when they are actually reinventing that text.

Regardless of what one might think of the claim for section 1983 damages in Chavez, deciding the question of whether there was a violation of the Fifth Amendment right merely on the basis of an acontextual, ahistorical, and essentially arbitrary definition of the word “case” in the 200-year-old text hardly constitutes meaningful constitutional interpretation.

The question that still needs to be addressed seriously and directly is what kind of police and criminal justice power is consistent with a free and civil society. Specifically, when is police interrogation compatible with a meaningful conception of a right against compelled self-accusation, and what conditions should be mandated when such interrogation is permitted? Whatever one might think of the appropriateness or efficacy of the specific regime of warnings and waiver that the Warren Court required in Miranda, that decision at least began to move—albeit haltingly—in the direction of addressing these crucial but long overlooked issues. The claim in Chavez, that the Fifth Amendment right is merely a trial right, is a large step in the opposite direction.

Putin Defends Mass Murder

The man is candid. I'll give him that.

Entering Gulag (a leaf from Eufrosinia Kersnovskaya's notebook)

Source: Kersnovkaya foundation; Wikimedia Commons & GNU Free Documentation License

&&&&&&

Tony Halpin, Textbooks rewrite history to fit Putin’s vision, Times OnLine (July 30, 2007):

***[T]he Kremlin is turning its attention to schools to instil a new sense of nationalism in children.

Two new manuals for teachers have been accused of glossing over the horrors of the Soviet Union and of including propaganda to promote Mr Putin’s vision of a strong state.

***

The [second] book describes Josef Stalin as “the most successful Soviet leader ever” and dismisses the prison labour camps and mass purges as a necessary part of his drive to make the country great. ***

Mr Putin gave [the books] his seal of approval at a conference he hosted for teachers at his presidential dacha last month. He described Stalin’s Great Purge of 1937, in which 1.5 million people were imprisoned and 700,000 killed, as terrible “but in other countries even worse things happened”. Discounting the Soviet Union’s long history of oppression, he said: “We had no other black pages, such as Nazism, for instance.”

&&&

Putin's assertion is roughly equivalent to saying, "We had to kill the country to save it." Or perhaps it amounts to the proposition that mass murder to promote fascism is bad but mass murder to promote communism (or nationalism) is o.k.

It used to be said in Hitler's defense that he built the Autobahnen.

Perceptual Errors

Consider the "same color illusion":

This is a file from the Wikimedia Commons

Created by: Edward H. Adelson Source: web.mit.edu

Are squares A and B different colors or are they the same color?

Click on the image and see the result -- and if that doesn't work, click on the image at Astronomy Picture of the Day (July 17, 2007)

For discussion see the Wikipedia article

See Proof

Why does the illusion work? See Explanation

But take note of the following important (and atypical) moral by Adelson: "As with many so-called illusions, this effect really demonstrates the success rather than the failure of the visual system. The visual system is not very good at being a physical light meter, but that is not its purpose. The important task is to break the image information down into meaningful components, and thereby perceive the nature of the objects in view."

Aha! Human beings are not idiots after all. Even their sense organs work pretty well -- indeed, amazingly well, all things considered. (This is my moralizing.)

French Intellectual Class Suffers Hard Knocks

The title of the newspaper article almost says it all: Elaine Sciolino, New Leaders Say Pensive French Think Too Much, NYTimes (July 22, 2006). The furor was provoked thus:

In proposing a tax-cut law last week, Finance Minister Christine Lagarde bluntly advised the French people to abandon their “old national habit.”

“France is a country that thinks,” she told the National Assembly. “There is hardly an ideology that we haven’t turned into a theory. We have in our libraries enough to talk about for centuries to come. This is why I would like to tell you: Enough thinking, already. Roll up your sleeves.”

The response? A sample (id.):

But the disdain for reflection may be going a bit too far. It certainly has set the French intellectual class on edge. “How absurd to say we should think less!” said Alain Finkielkraut, the philosopher, writer, professor and radio show host. “If you have the chance to consecrate your life to thinking, you work all the time, even in your sleep. Thinking requires setbacks, suffering, a lot of sweat.”

Bernard-Henri Lévy, the much more splashy philosopher-journalist who wrote a book retracing Tocqueville’s 19th-century travels throughout the United States, is similarly appalled by Ms. Lagarde’s comments.

“This is the sort of thing you can hear in cafe conversations from morons who drink too much,” said Mr. Lévy, who is so well-known in French that he is known simply by his initials B.H.L. “To my knowledge this is the first time in modern French history that a minister dares to utter such phrases. I’m pro-American and pro-market, so I could have voted for Nicolas Sarkozy, but this anti-intellectual tendency is one of the reasons that I did not.”

On the theory that one good attack on French theorizing deserves an attack on derivative French theorizing, I quote the contrarian Australian social commentator (and mathematician) James Franklin (Quadrant 43 (4) (April, 1999), somewhere between pp. 16-21):

It is customary for philosophical scholars of a continental bent to declare themselves for one or other European author, commentary on whose works provides the mass of the scholars' own output. In [the Department of] General Philosophy [at the University of Sydney], first choice of guru was Louis Althusser, author of For Marx Reading Capital Lenin and Philosophy etc. Embarrassingly, a Sydney student visited Paris, secured an interview with Althusser, and brought back bad news for his Australian disciples. He had never heard of them, and when their interpretation of his work was explained, he denounced it as a travesty. The movement of his thought, he said, was away from ideology, and he had this message: ``Go and tell the comrades down there, on my behalf, not to confuse philosophy with ideology nor to reduce philosophy to political agitation.'' In any case, a few years later, Althusser murdered his wife. It was time to move on. ...

I once suffered from a similar disease. My third year paper at law school was about (my view of) Hegel's view of the duty to die for the state. My LL.M. thesis was about Kant's philosophy of law. I later abandoned such epiphenomenal scholarship, only partly because my affection for such stuff was premature in the American legal academy. (But it is far from clear that man- and woman-kind has benefited from my change of heart and mind.)

Yet, yet, ... -- yes, I am forced to confess -- one sometimes learns a few things by being epiphenomenal. For example, it is not well known that Bertrand Russell (despite his mature aversion to German Idealism) studied neo-Hegelianism. Charles Peirce also pondered Hegel and the neo-Hegelians. Nietzsche did so as well. For a while it appeared that 19th and 20th century philosophy was not much more than a series of footnotes to adverse reactions to Hegelianism.

Indeed, I think that Kant's theory of "judgment" (Urteil) may have something interesting to say about contemporary theories about the nature of evidential inference. More about this later. I promise!

Judging and Misjudging Guilt and Innocence

Adam Liptak has a TimesSelect Column (July 23, 2007) in the NYTimes about a study of how well or badly the US criminal justice system ferrets out and corrects criminal convictions that rest on factual mistakes. The column focuses on a study by Professor Brandon L. Garrett of the University of Virginia School of Law. (The TimesSelect column provides a link to the copyrighted study, which is to be published in the Columbia Law Review.) A forthcoming study by Professors Samuel Gross (University of Michigan) and Barbara O’Brien (Michigan State) is also mentioned, but not discussed at length.

According to Liptak, one conclusion to be extracted from the Garrett study is that "[t]he courts performed miserably in ferreting out the innocent."

To the extent that Garrett's study discusses the rate of wrongful conviction of the innocent -- thus far I have only skimmed Garrett's paper --, Michael Risinger's paper (scroll down in the page to reach the link) should be consulted.

Liptak asserts, in passing, that "rape [is] the classic crime in which DNA can categorically prove innocence." This is a familiar mistake. But sophisticated observers such as Liptak should not make it. DNA cannot "categorically" prove innocence -- anymore than it can "categorically" prove guilt. For example, it is well known (or it should be well known) that (i) the presence of one male's semen in a woman's vagina does not rule out the possibility that another man raped that woman (whether the man who was the source of the semen found in the woman and tested did so or not) and (ii) a laboratory may have tested the wrong semen sample. Is it necessary to recite such possibilities? The fact that in particular circumstances the results of a DNA test may be highly persuasive evidence of innocence does not change the fundamental point: DNA evidence is NEVER conclusive of ANYTHING. Tiresome. And a dangerous misunderstanding.

Liptak notes that Garrett concluded that "[t]he leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time." What are we to make of this statistic? Does it matter how frequently eyewitness identifications resulted in the conviction of the guilty? (I assume Garrett discusses this point. [Let me emphasize that I have not yet carefully scrutinized Garrett's study. So I really am NOT saying or even intimating that Garrett has not discussed the questions I raise here.])

Note: unless one demands absolute factual certainty (which is unattainable under any circumstances), on the basis of the above-quoted statistic alone -- or on the basis of that statistic and the additional statistic that in 1/4 of the wrongful convictions eyewitness identification was the sole evidence --, on the basis of such statistics alone one would not conclude (I would think) (i) that eyewitness identification evidence should be barred or (ii) that eyewitness evidence alone should never suffice for a conviction. (However, further arguments and considerations might justify the latter conclusion -- the conclusion that eyewitness evidence [e.g., of just one eyewitness] should not be suffice for a conviction. [Again, I want to make crystal clear that I am NOT asserting that Garrett does not discuss such issues. I have not yet studied his study.])

I have lightly skimmed SOME parts of the Garrett study. The part of the study I enjoyed most (due, surely, in no small part to my personal theoretical prejudices) is the part in which Garrett stresses the importance of pretrial fact investigation and the substantial resources that are required (including, I would say, the diligence, discipline, and imagination of defense counsel) to conduct effective pretrial fact investigation.

More Papers on Visualization of Evidence and Inference

Additional papers and comments have been posted at Conference Papers and Comments on Graphic and Visual Representations of Evidence and Inference in Legal Settings

Clergy Sex Abuse: Protestant v. Catholic

Was the "clergy sex abuse" scandal predominantly a Roman Catholic phenomenon and was it attributable (as many observers seemed to suggest) to the Catholic rule about the celibacy of the clergy? I don't know the answers to these questions but I have always been suspicious of shoot-from-the-hip affirmative answers.

I recently found this old op-ed about a sex abuse case involving a member of the clergy in the Evangelical Lutheran Church in America:

Carol Marin, Protestant Sex Abuse: A $69 Million Jury Award Chicago Tribune (April 28, 2004):

Think back.

Do you remember reading a story about clerical sexual abuse last Friday?

No?

Think hard. It was a pretty big story.

It involved a Chicago-based denomination of 5 million members that, according to the Associated Press, "has drawn comparisons to the worst abuses committed during the Roman Catholic molestation crisis."

It is a tragically familiar tale. Fourteen male victims. A bishop accused of looking the other way. And a whopping $37 million civil jury award plus a separate out of court settlement of $32 million for a total of $69 million. Still not ring a bell?

Don't blame yourself. This is a church sex-abuse story that got little, if any, real coverage. When the case was decided last week, the national TV networks didn't cover the story. It was not big news on Chicago television stations. Nor was it in the Chicago Tribune or Chicago Sun-Times. Instead, each paper ran the same short account provided by the Associated Press. You could find it on page 16 of the Tribune. Page 44 of the Sun-Times.

This is a story about Protestant sex abuse.

It involves the Evangelical Lutheran Church in America, headquartered on West Higgins Road in Chicago, and a former minister named Gerald Patrick Thomas Jr., who was the pastor of one of the denomination's churches in Marshall, Texas.

Arrested in 2001, Thomas is now in federal prison on child pornography charges. When he is done serving a five-year sentence there, he'll move on to a Texas state penitentiary where he has been sentenced to 397 years for molesting boys.

How is it that in the last few years we have learned so much about predator Catholic priests like the late John Geoghan or Paul Shanley, both of Boston, but so little about Gerald Patrick Thomas Jr. of Texas?

Is there a whiff of anti-Catholicism in the "Catholic clergy sex abuse scandal"?

Personal note: in the spring of 2002 I wrote an investigative team at a prominent American newspaper and asked why the team was not investigating sexual abuse by Protestant clergy. The summary reply I got: sexual abuse by Protestant clergy is not a serious problem.

Some fragmentary information recently came to light about claims of sexual abuse by Protestant clergy. See Rose French, Report: Protestant Church Insurers Handle 260 Sex Abuse Cases a Year Insurance Journal (June 18, 2007)

Stiff Regulatory Law

China official executed for taking bribes, Irish Times (July 10, 2007):

China executed a former drug and food safety chief today for corruption in an unusually swift sentence which will serve as a warning amid a series of health scandals that have stained the "made in China" brand.

The Supreme People's Court approved the death sentence against Zheng Xiaoyu (62) who was convicted of taking bribes worth some 6.5 million yuan (€625,000) from eight companies and dereliction of duty, Xinhua news agency said.

Are Japanese Washing Machines (and Japanese Trains, Cameras, etc.) Fuzzy or Non-Fuzzy?

Joost van Steenis, Mathematical Chip:

In Japan they use a kind of fuzzy logic based on discrete numbers. Washing machines determine with sensors a value that tells something about the amount of dirt. The weight is also measured and a third sensor looks at the colours. Then an algorithm determines how much water and washing powder is needed and what the temperature of the water has to be. These variables are independent from each other and they can be quantified. So you get a washing machine with thousands of programs. This pseudo fuzzy logic is also used in lifts, which on their own accord travel to those floors where most people are waiting. And in cameras to compensate for tremors in the human hand. But this is not real fuzzy logic. The fuzzy situation is split up into very small steps after which discrete values are allotted to the parts. These values can be used in calculations according to the Boolean logic. Boolean logic is by the way a special part of fuzzy logic. It looks fuzzy but it is still discrete. This soft Japanese computing is still computing. Vague concepts are being converted into numbers that can be used in a computer. But our brain works with real fuzzy computing.

Earlier I wondered if it would be possible to bring order and system to fuzzy interactions between fuzzy parts of a proof process. The following comment by Mr. Steenis (id.) sounds both reassuring and discouraging:

So you start with a fuzzy input that leads via fuzzy dependency, fuzzy thinking, fuzzy judgement and fuzzy logic to a fuzzy output. On the basis of a fuzzy complex the brain decides which piece or pawn has to move. And the brain includes in its judgement also fuzzy ideas about such fuzzy facts as the aggressiveness of the opponent. The discrete position on the board gives rise to a fuzzy process that results in a discrete decision: only one move can be executed on the board. For this kind of fuzzy process techniques we do not have any theory. We do not know how we can obtain a fuzzy output from a fuzzy input.

Is Mr. Steenis correct?

&&&

Mr. Steenis shortly grows (pleasingly) philosophical (and whimsical):

When problems get complicated thinking becomes even more difficult and it is even more important to change the way of thinking. It is striking that in conversations most people understand fuzzy concepts fairly well. Words as about, maybe, long, short, nice and agreeable are all fuzzy. In a conversation these words are never described exactly. Even the question what is life is fuzzy. Viruses grow but they can not reproduce. Are they alive? People are alive but when does human life begins? With the first two cells from which later a human will grow? Or is it needed that there are 4, 8, 16, 32, 64, 1024, 8192 or even still more cells before we can call a living entity human? The whole abortion discussion turns around such fuzzy concepts. Fuzzy exists, the consequences are everywhere and it is strange that scientists mostly avoid this reality. In some simple cases they use fuzziness but when problems get more complex fuzzy disappears and all is expressed in absolute values. But in complicated problems precise descriptions become meaningless and meaningful descriptions are not precise. Let humans become a little more chaotic.

Victory

I am happy to report that I won my first fuzzy chess game.

I regret to report that the computer I played was not programmed to look very far ahead.

But I'll take a victory whenever I can get it. (I won't be reporting my losses, if you please.)

It strikes me that in real fuzzy chess, the moves themselves would be fuzzified, and not just the descriptions the players give of the moves they make.

One notable feature: This particular fuzzy chess program allows Mulligans. If a player indicates he, she, or it will move a particular piece, the player remains free to move any other piece in any way that the (normal) rules of chess allow. There is something akilter here: the human player is given an advance opportunity to peer into the mind of the computer. I guess the developer wanted to give human players warm fuzzy feelings about fuzzy chess.

Musings about How One Is To Address the Question, "What Is [Judicial or Juridical] Proof?"

Proof in legal settings such as litigation is a social process or phenomenon.

A social phenomenon has numerous ingredients.

Proof in litigation has numerous ingredients.

Some or many of those numerous ingredients probably have causative force; i.e., some or many of the ingredients or parts of proof influence how proof works.

Some of those causative ingredients have or may have a logic or a conceptual structure.

But, if so, such logics or conceptual forms are sometimes, often, or always fuzzy or rough.

Moreover, the interactions among those frequently-fuzzy logics or forms are themselves sometimes, often, or always fuzzy or rough.

An observer can try to describe the fuzzy or rough logics or conceptual forms that seem to drive or may drive (to some extent) the process of proof in litigation.

An observer can perhaps also try to describe how those fuzzy or rough logics or conceptual forms interact -- or, if you prefer, collide.

There are possible corollaries of the propositions or hypotheses that have been stated or hinted at above. There are also many questions. Perhaps I will deal with such corollaries and questions later. What you see above is very, very abstract. It is also very imprecise in an invidious sense -- i.e., it is a very imprecise, rough, and vague account of an imprecise process. But I am neither a logician nor a mathematician, and I have to start somewhere. I will try to start with simple description (of the ingredients of proof in the United States), if that is possible. Perhaps then my description can be made more systematic -- by other people if not by me. (But whether systematic description of the parts of proof and their interaction is possible remains to be seen.)

I fear that my project is too ambitious.

Stay tuned for further developments.

Fuzzy Chess?

Image Reproduced under GNU Free Documentation License

&&&&&

Being slated to take part in a discussion of fuzzy logic, soft computing, etc., and law later this summer (in Las Vegas, b'gosh!), I have been having more than my share of fuzzy thoughts recently. Well, no, that's not it. I misspoke. (Forgive me.) I meant to say that I have been thinking, quite precisely (in my usual fashion), more than I usually do about fuzzy features of law.

In any event, having just thought about chess and then having thought (roughly, next) about fuzzy phenomena (for reasons that I may explain momentarily), I thought, "What about fuzzy chess? Would that be possible?"

In today's GOOGLE world no question like this goes unanswered for very long.

GOOGLE reveals that, yes, there is such a thing as fuzzy chess and people already play the game. See, e.g., Fuzzy Chess (Be patient: allow time for the applet with a fuzzy chess board to load.)

Well, waddaya know? Isn't that neat?

The author of "Fuzzy Chess" (id.) states in part:

The [Fuzzy] Chess game play follows the exact same rules as a normal chess game however before each move the player is required to enter a description of this move and the computer will respond by displaying to the player a description of its move. Both these descriptions should be imprecise.

This allows the player to base [her] decision of the actual move [she] will make, at least partly, on the computer's response. The player is using vague information to make [her] decision which is just like how [she] will make decision in real life situations.The rules are pretty simple, before you make any move you will need to enter a description of that move. This description can be as vague as you like - in fact the less specific the better. Once you have entered your description the computer will display a description of the move it may make in response to your move. Now you can actually make your move, this move does not necessary need to match the description you entered. The computer will then make its move based on your actual move. You are white and the computer is black.

The author also has a link that apparently describes the sorts of imprecise move descriptions the computer will accept.