Narrative and Factual Inference

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

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The Indeterminacy and Elasticity of Legal Language

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

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

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Potemkin Trials?

[B]ehind the judicial routine at the first trial for a Guantánamo detainee lies a parallel universe of law and lawyers. Secret evidence held in red folders is not revealed in open court. The gallery is mostly empty, because there are no members of the public. In what would be the jury box, every occupant wears a military uniform.

William Glaberson, "A U.S. Trial by Its Looks, but Only So," NYTimes (July 29, 2008)

Question: If some detainees are acquitted, will this prove that the Guantanamo somewhat-trial-like proceedings are just?

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

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

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

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

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

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

the dynamic evidence page

Trial by Ordeal Lives -- and Apparently Works

See the following YouTube clip of a National Geographic program.

Tillers' dynamic evidence page

Vagueness and Fuzziness

Probability theorists tend to think that everything that fuzzy logic can do it (probability theory) can do better. But probability theory is a procedure for dealing with uncertainty. Perhaps some things are vague -- legal language, for example -- without being uncertain. So perhaps the question of the legitimacy of fuzzy logic boils down to the question of the existence or non-existence of vague objects that are not necessarily uncertain.

But perhaps fuzzy logic also legitimately applies to reasoning about uncertain propositions -- because perhaps some or much reasoning about uncertain propositions involves vague objects (concepts). Be that as it may, perhaps it is true that fuzzy logic will gain a greater measure of respectability among standard probability theorists if the distinction between uncertainty and vagueness is solidified.

N.B. It may be true that vague concepts -- e.g., vague legal concepts -- work in ways that are uncertain to some degree. But does it follow that such (vague) legal concepts are "uncertain" to some degree? This is perhaps a nice test question for logicians and legal theorists.

the dynamic evidence page

Henceforth Criminal Defendants in Japan Will Be Allowed to Wear (Clip-On) Ties and (Fake) Shoes at Their Trials

Japan Times Online reports that criminal defendants will now be allowed to wear clip-on neckties and "and open-back slippers that look like leather shoes." These changes were precipitated by the advent of a new trial system in which lay judges as well as professional judges will preside in trials of serious criminal charges.

Thought is also being given to removing shackles and handcuffs from the accused before the accused enters the courtroom. In addition, under certain circumstances, the accused will be allowed to sit next to counsel, and not, as at present, between two police officers, with defense counsel sitting behind this trio. However, one of the police officers will plant a leg between the feet of the accused and defense counsel. In Japan justice may not be swift but it does have long and sturdy legs.

the dynamic evidence page

Fuzzy Logic -- Once Again

I keep returning to fuzzy logic. I do so plainly in part because I think fuzzy logic is an important key to human understanding of the world. But I also continue to revisit fuzzy logic because I firmly sense that the proper use of fuzzy logic in law remains to be worked out. (Indeed, I think this work has barely begun.)

When thinking about the implications of fuzzy logic for legal theory -- and for law in action --, I find it useful to consider, from time to time, the reception that has been given to fuzzy logic and how it has been used thus far. The following summary by Phil Serchuk in his 2005 honors thesis is quite useful in this regard:

Fuzzy logic is unique because it is a source of controversy not only in philosophy but in computer science as well, where it has been used in many successful applications. Yet despite its successes there are many compelling criticisms that fuzzy logic has yet to overcome. Both proponents and opponents of fuzzy logic tend to take extremist positions, a situation that makes fair accounts and criticisms of fuzzy logic difficult to come by. Engineers and computer scientists who use fuzzy logic vigorously defend their work and charge that their critics are conservatives who cannot see the fuzziness inherent to a given domain, a strong charge given the longstanding relationships many of the sciences have had with classical logic. Critics of fuzzy logic tend to take extreme positions as well: fuzzy logic has been described by Berkeley mathematician William Kahan as ‘the cocaine of science’ and as ‘pornography’ by Carnegie Mellon logician Dana Scott [Haa96, p. 230].

While the merits of infinitely-valued logics were being debated by philosophers, computer scientists had began building actual systems that used fuzzy logic. Early fuzzy expert systems and controllers were developed in the 1970’s and fuzzy logic’s ability to use linguistic rules were being explored and put into practice: steam generators and cement kilns were among the earliest applications of fuzzy control. Decision support systems were also being developed and one of the first commercial decision support systems to use fuzzy logic was developed by the INFORM Corporation in 1986 [vA95, p. 279]. Over the 1970’s and 1980’s Japanese researchers had begun to embrace fuzzy logic and by 1989 the Japanese government partnered with 49 companies to found the Laboratory for International Fuzzy Engineering Research (LIFE) [Ter95, p. 1]. LIFE’s six-year mandate was to develop new fuzzy technologies and applications in ‘human-friendly’ fields like robotics and expert systems. By 1990 fuzzy rice cookers, vacuum cleaners, refrigerators, and other electronics were yielding large profits for Japanese companies [LY99, p. 7]. The last part of the 1990’s saw many more concrete applications of fuzzy logic, particularly in computer systems designed to help humans make difficult and complex decisions. In addition to traditional applications in business and engineering, these applications were developed for many disciplines across the natural and social sciences as researchers in these fields slowly began to see the phenomenon of vagueness as being inherent to certain aspects of their work.

Like many other observers who are sympathetic to fuzzy logic, Serchuk stresses that it is important to distinguish uncertainty and vagueness.

the dynamic evidence page

Douglas Walton on Character Evidence

Douglas Walton's new book -- Character Evidence: An Abductive Theory (Springer 2008) -- looks very interesting.

I look forward to seeing what Doug has to say about abduction. In the late 1980s David Schum introduced me to the concept of abduction. That concept, abduction, played an important part in one or two of our joint papers about investigation, evidence, and inference. See, e.g., P. Tillers & D. Schum, "A Theory of Preliminary Fact Investigation," 24 University of California at Davis Law Review 931 (1991).

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Words, Their Purposes, and Their Meanings

In Giles v. California, 554 U.S. __ (2008), decided today, Justice Scalia, speaking on behalf of the Court (but see below), wrote:

It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it ....

It is not my office in this blog to debate the fine points of constitutional interpretation. But, question, dear Reader, is it not insensible, nonsensical, strange, anti-commonsensical, etc., to postulate a disjunction, never to be bridged, between a search for the meaning of language and the purpose or purposes of the language whose meaning one wishes to decipher? For example, if I say, "You're a bad fellow, Jonah," might it not be useful to inquire into what I was trying to say and do when I said what I did? If I say to John, "You've got a right to the same share that every man here does" would it not be useful, in determining the meaning of "man," to inquire whether I intended to split the prize (or whatever) only among males or also among women? And how would you decide whether "man" in my statement does or does not include male human beings who are 13 years old? By staring at the word "man"? Only by inquiring how I used the word in other situations? Suppose you discovered that I occasionally said in church, "Man is by nature an evil beast." Would that settle the question of what I meant when I used the word "man" in talking about the prize (or whatever) that was to be divided equally? (By the way, when I said "same," what leads you to interpret that word as "equal"?) Might it be said that Justice Scalia's understanding of semantics is primitive (in an unfavorable sense)?

N.B. In case you were wondering: I approve of the Court's holding in Giles.

P.S. The above-quoted words by Scalia fall in Part II-d-2 of his opinon. I haven't yet tabulated the confusing array of partial concurrences, the dissents, etc., to determine if that part of the opinion got the endorsement of a majority of the Court's Justices; perhaps Scalia spoke only for a plurality there. If so, good.

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Legal Definitions of Evidence and (our beliefs about) the Nature of Things

Today's law of evidence cannot define evidence by identifying particular sources of evidence because today we do not have (it is generally thought) an ontology, a theory of the nature of being, a comprehensive theory or world-view that assigns grades of reality or degrees of being to various things or types of things in the cosmos. For example, we have no Delphic Oracle. We cannot even (yet?) say that some fundamental subatomic properties or processes are the fundamental (knowable) basis of all phenomena. So, if no thing or type of things has (in principle) superior reality to any other, any thing or matter can (in principle) be evidence.

As long as our society has no received or generally-shared ontology (in which a theory of epistemology can be rooted), there is a real sense in which legal definitions MUST remain vacuous.

But arguably there are hints in the law of evidence of some still-generally-held views about the general nature of things in the cosmos and (consequently) about legitimate and illegitimate sources of evidence in trials in American courtrooms.

For example, the American law of evidence uniformly imposes a "personal knowledge" requirement for viva voce witness testimony. Does this demonstrate that American law rests on the premise or general belief that "direct personal perception" is the only legitimate source of testimonial evidence? I think careful analysis shows that the answer to this question is "no."

But it is nonetheless interesting and perhaps important that today's law of evidence still draws a basic and pervasive distinction between testimonial evidence and non-testimonial evidence. The law of evidence still takes the view that there is a fundamental distinction between non-human objects as a source of evidence and the thoughts, judgments, and beliefs of human beings as a source of evidence about events in the world. So while the modern law of evidence does not say that testimonial evidence is better than non-testimonial evidence or vice versa, the law of evidence still seems to see a basic difference between testimonial and non-testimonial evidence. Even this distinction, however, is beginning to fray here and there. For example,it is now generally agreed that non-human organisms such as birds "think" -- in the sense that the brains of organisms such as birds and dogs engage in complex calculations -- and it therefore follows that the "beliefs," or inferences, of organisms such as birds about some events in the world (e.g., rain or not-rain, night or not-night, direction of travel) sometimes definitely should serve as evidence.

Is It Bait-and-Switch?

I am no great fan of "delicate" language in judicial opinions. But, question, didn't Justice Scalia go overboard in accusing five of his colleagues of engaging in a "game of bait-and-switch"? See Boumediene et al. v. Bush, 553 U. S. ____ (2008) (Scalia, J., dissenting, Thomas & Alito, JJ., concurring in the dissent).

Does Justice Scalia genuinely believe that five of his colleagues deliberately decided to deceive Congress, to set a trap for Congress?

The Importance of Evidence even in Constitutional Adjudication

I believe that evidence and inference in law matter because, in important part, accurate factual adjudication matters. It is revealing (and heartening) to see that the Supreme Court, even when immersed in lofty constitutional rhetoric about matters such as separation of powers, also thinks that evidence and the fair assessment of evidence matter. See Boumediene et al. v. Bush, 553 U. S. ____ (2008) (striking down, today, Congress' most recent attempt to strip federal courts of the right and duty to use habeas corpus to challenge the detention of the detainees at Guantanamo):

Petitioners identify what they see as myriad deficiencies in the CSRTs [Combatant Status Review Tribunals]. The most relevant for our purposes are the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. As already noted... at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting that the detainee can access only the “unclassified portion of the Government Information”). The detainee can confront witnesses that testify during the CSRT proceedings. Id., at 144, ¶g(8). But given that there are in effect no limits on the admission of hearsay evidence—the only requirement is that the tribunal deem the evidence “relevant and helpful,” ibid., ¶g(9)—the detainee’s opportunity to question witnesses is likely to be more theoretical than real. ...

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and ingood faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.

A majority of the Supreme Court has today acted courageously.

See my 2006 blog post Here We Go Again: Hearsay, Shmearsay -- Any Good Old Hearsay Is Good Enough for the Commissions

Knowledge of Concepts (Language) and Knowledge of the World

In philosophy there has been a debate about whether connections between events in the world involve causes or whether such connections only amount to associations. There has been a related (but different) debate whether knowledge of the world requires knowledge of causes or whether knowledge can rest only on associations. A third position or question is possible: even if causes are at work in the world and even if the most perfect knowledge of the world requires knowledge of (all) causal mechanisms in the world, can human beings have knowledge of the world without (fully) knowing the causes of events in the world?

The third position or question just mentioned is slightly ambiguous. However, if the question is taken to be whether human beings can have some knowledge of the world without fully understanding the causes of events in the world, the answer is "yes" (unless, that is, "knowledge" is assigned a narrow, or "constipated," meaning).

But if causes are at work in the world, how is it possible for human beings to have knowledge of the world without having full knowledge of the causes of events? Various answers to this question are possible. One possible answer is that the human brain or neural system is so configured (as a result of evolution or whatnot) that human beings have effective knowledge of the world even though or even when human beings do not have express, self-conscious, knowledge of causes of events in the world. (Of course, until we human beings have perfect knowledge of causes, we cannot explain [perfectly] how human knowledge of the world without perfect knowledge of causes is possible.)

Human beings communicate in part through language (and explicitly-stated concepts, which are also part of a language). Furthermore, human language often or sometimes communicates knowledge of the world. But how is this possible? Ordinary human language is usually mushy and imprecise. (The same may be true to some degree of all non-ordinary human language -- e.g., the language of the hard sciences such as physics.)

In 1965 Lotfi Zadeh burst upon the scene with a theory of fuzzy logic. See Lotfi Zadeh, Fuzzy Sets, 8 Information & Control 338 (1965) This was a theory that took the mushiness and fuzziness of language and concepts seriously. It was possible, Zadeh said, to reason precisely about imprecise and vague propositions. But this insight, though in itself profound (in his hands), was perhaps not Zadeh's most profound insight or discovery. Perhaps Zadeh's most profound discovery was that the "crude" language of ordinary human beings -- such as the language and words used by the operators of a kiln -- conveys genuine knowledge of (part of) the world (such as the workings of a kiln). By using a meta-logic that arguably accurately mimics ordinary language, Zadeh and his many followers were able to accomplish the astonishing task of devising artificial procedures that run kilns, trains, and other such things without incorporating into the meta-procedures accounts of the mechanisms that cause kilns, trains, or whatnot to work the way they do under various circumstances.

In the last 10-15 years Zadeh has emphasized that natural language is language that captures or expresses perceptions. Although I am not a mathematician or a logician and although I do not know Zadeh's work well enough to say so with confidence, my strong sense is that part of Zadeh's motivation for stressing that his theories are about perceptions and are not purely "semantic" theories is to emphasize that his theories about the workings of vague and imprecise language and concepts are or can be theories that help human beings understand the workings of the world. (Professor Zadeh really is a genuine scientist -- as well as, e.g., an abstract logician or philosopher.) If this is an important part of what Zadeh is about, a popularizer of his approach might reasonably proclaim -- if provocatively and somewhat misleadingly --, "Superficial knowledge is genuine knowledge!"

Some pertinent quotations follow.

In his relatively recent paper outlining a general theory of uncertainty (see Lotfi Zadeh, "Toward a Generalized Theory of Uncertainty (GTU) - An Outline" (2005)), Zadeh describes or characterizes "uncertainty" as a "constraint" on "information." In this paper's abstract Zadeh writes:

It is a deep-seated tradition in science to view uncertainty as a province of probability theory. The Generalized Theory of Uncertainty (GTU) which is outlined in this paper breaks with this tradition and views uncertainty in a broader perspective.

Uncertainty is an attribute of information. A fundamental premise of GTU is that information, whatever its form, may be represented as what is called a generalized constraint. The concept of a generalized constraint is the centerpiece of GTU. In GTU, a probabilistic constraint is viewed as a special—albeit important—instance of a generalized constraint.

In the body of the paper Zadeh states (endnotes omitted):

Uncertainty is an attribute of information. The path-breaking work of Shannon has led to a universal acceptance of the thesis that information is statistical in nature. A logical consequence of this thesis is that uncertainty, whatever its form, should be dealt with through the use of probability theory. To quote an eminent Bayesian, Professor Dennis Lindley, “The only satisfactory description of uncertainty is probability. By this I mean ... that the calculus of probabilities is adequate to handle all situations involving uncertainty…probability is the only sensible description of uncertainty and is adequate for all problems involving uncertainty. All other methods are inadequate…anything that can be done with fuzzy logic, belief functions, upper and lower probabilities, or any other alternative to probability can better be done with probability,” (Lindley, 1987).

The Generalized Theory of Uncertainty (GTU) is a challenge to the thesis and its logical consequence. Basically, GTU puts aside the thesis and its logical consequence, and adopts a much more general conceptual structure in which statistical information is just one—albeit an important one—of many forms of information. More specifically, the principal premise of GTU is that, fundamentally, information is a generalized constraint on the values which a variable is allowed to take. The centerpiece of GTU is the concept of a generalized constraint—a concept drawn from fuzzy logic.... The distinguishing feature of fuzzy logic is that in fuzzy logic everything is—or is allowed to be—a matter of degree. ...

Zadeh further states (endnotes omitted):

In GTU, uncertainty is linked to information through the concept of granular structure—a concept which plays a key role in human interaction with the real world, Zadeh [43, 52].

***

Granulation is pervasive in human cognition. For example, the granules of Age are fuzzy sets labeled young, middle-aged and old, Fig. 1. The granules of Height may be very short, short, medium, tall, and very tall. And the granules of Truth may be not true, quite true, not very true, very true, etc. The concept of granularity underlies the concept of a linguistic variable—a concept which was introduced in my 1973 paper “Outline of A New Approach to the Analysis of Complex Systems and Decision Processes,” Zadeh [41, 42]. The concept of a linguistic variable plays a pivotal role in almost all applications of fuzzy logic [12], [15], [18], [29], [31], [38].

There are four basic rationales which underlie granulation of attributes and the concomitant use of linguistic variables. First, the bounded ability of sensory organs, and ultimately the brain, to resolve detail and store information. For example, looking at Monika, I see that she is young but cannot pinpoint her age as a single number. Second, when numerical information may not be available. For example, I may not know exactly how many Spanish restaurants there are in San Francisco, but my perception may be “not many.” Third, when an attribute is not quantifiable. For example, we describe degrees of Honesty as: low, not high, high, very high, etc because we do not have a numerical scale. And fourth, when there is a tolerance for imprecision which can be exploited through granulation to achieve tractability, robustness and economy of communication. For example, it may be sufficient to know that Monika is young; her exact age may be unimportant. ...

Further, consider these statements by Zadeh (references omitted):

There is a demonstrable need for GTU because existing approaches to representation of uncertain information are inadequate for dealing with problems in which uncertain information is perception-based and is expressed in a natural language. ... More specifically, the existing approaches do not address the problem of semantics of natural languages....

Finally, consider the following points by Zadeh:

How can precise meaning be assigned to a proposition, p, drawn from a natural language?

The problem is that natural languages are intrinsically imprecise. Imprecision of natural languages is a consequence of the fact that (a) a natural language is, basically, a system for describing perceptions; and (b) perceptions are intrinsically imprecise as a consequence of (a) the bounded ability of sensory organs, and ultimately the brain, to resolve detail and store information; and (b) incompleteness of information.

Important Coda: The last quotation makes Zadeh sound a bit like some behavioral economists, many of whom emphasize the limitations of human knowledge and the irrationality of human behavior. But Zadeh's work runs in a different direction, it has a more optimistic thrust. Note: unlike some fans of "ordinary thought," Professor Zadeh does NOT embrace ALL of the following propositions: ordinary language is a form of tacit knowledge, human beings have tacit knowledge, tacit knowledge works, and nothing much more can be said about ordinary tacit knowledge. His project rests on the premise that ordinary language really and truly captures and expresses perceptions and that it is possible that a meta-logic can bring to light and describe the real-world implications of the perceptions that are captured by the imprecise language that human beings use.

Father of Fuzzy: Warm & Fuzzy

A Bayesian Theory of Everything (in the Brain)

See Gregory T. Huang,"Bayesian theory in New Scientist: Is this a unified theory of the brain?," Reverendbayes's Weblog (May 29, 2008)

The FLDS Case & Religious Belief as Evidence of Behavior

The NYTimes reports today:

A judge in Texas ordered more than 460 children seized in April from a polygamist sect to be released from state custody on Monday, while imposing conditions on their families that would allow officials to monitor the children’s welfare.

Judge Barbara Walther of the State District court in San Angelo issued the order following a contentious hearing on Friday that broke down when she left the courtroom as lawyers for the families, members of the Fundamentalist church of Later Day Saints, objected to her imposing conditions on the release of the children.

As some observers have noted, the F.L.D.S. case involves the difficult and interesting question of the use of religious beliefs to predict behavior. This question is in certain respects similar to the problem of the use of "character" to predict (or infer) behavior. See P. Tillers, "What Is Wrong with Character Evidence?," 49 Hastings Law Journal 781 (1998). Cf. Levin v. United States,119 U.S. App. D.C. 156, 338 F.2d 265 (1964) . Some observers have said (newspapers report) that religious beliefs won't hack it as evidence of behavior and that only "specific" evidence will do. But I don't think the attempted specific-non-specific distinction cuts the mustard. Cf. P. Tillers, "If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes," 4 Law, Probability and Risk 33 (2005). However, the First Amendment implications of using religious belief to predict (or infer) behavior cannot be ignored. If any supervision of the children and their parents is designed to eradicate a religiously-grounded belief in polygamy or in a patriarchal social system, that would obviously be improper on constitutional grounds -- no matter how distasteful the rest of us might find polygamy or patriarchy. The courts' treatment (in this context) of F.L.D.S.'s religiously-based beliefs about sexual relations of women under the age of consent in Texas is the harder problem. Outright judicial attempts to eradicate even such beliefs still seem improper on constitutional grounds. But can religiously-grounded beliefs about this be used as evidence to support the imposition of "conditions" on the release of the F.L.D.S. children to their parents -- such as the condition that the Texas child protection service have the right to enter a residence to check up on the status of an underage female? (Newspaper accounts suggest that the Texas trial judge who is now again handling the case has no doubt that she can and should use F.L.D.S. beliefs as evidence for this purpose.)

Der Goes Da Judge!

"Negotiations for the state’s release of more than 460 children who were removed from a polygamist sect in April broke down Friday in a scene of chaos and bitterness in a courtroom in this West Texas city.

Lawyers for the families said the judge overseeing the release lacked authority to impose restrictions on it, and the judge, in disagreement, ended the proceedings and walked out of the courtroom."

Gretel C. Kovach & Kirk Johnson, "Deal to Return Children to Sect Breaks Down," NYTimes (May 31, 2008)

A Graphic Discussion of Philosophy of Mind, the Brain, and Consciousness

For a cartoonish but non-cartoonish discussion of the nature of mind, the brain, and consciousness, see pp. 12-20 of the June 2008 issue of The Reasoner.

In the same issue Amit Pundik continues his philosophical discussion of evidence of prior convictions. See id. p. 3.

John McCarthy's Common Sense and Artificial Intelligence about Evidence and Inference

John McCarthy, one of the four 1956 Dartmouth conference founders of artificial intelligence, has a great many things to say that have a bearing on how ordinary people (including lawyers) must reason from evidence to judgments about states of the world (i.e., about factual questions). See, e.g., John McCarthy, Making Robots Conscious of their Mental States (24 July 1995 - 15 July 2002).

I find it interesting that McCarthy, working from a starting point different than Lotfi Zadeh's, agrees with Zadeh that many of the concepts that we human beings use and must use to make sense of our word and to make our way through and in the world are "approximate" in a way that the standard probability calculus cannot capture. See, e.g., John McCarthy, Approximate Objects and Approximate Theories (Feb. 2, 2000)

But what does the construction of robots have to do with the validity of different logical theories? Answer: How the mind works and must work should ultimately be tested against "reality." The attempt -- or, in any event, thinking very, very carefully carefully about how we would would have to proceed -- to build a working robot with the intelligence of a human being, a robot that actually mimics some of the intelligences of the human animal, is a better constraint than pure armchair theorizing, don't you think?