Wednesday, February 02, 2011

I Have the Right to Remain Silent about Mr. Spitzer -- But I Won't Do So

A few minutes ago I received an announcement from the American Constitution Society for Law and Policy. The Society is holding a conference called "Federal Courts, Inc?" at New York University. There will be many eminent panelists at this event -- for example, Martin H. Redish, Jeff Rosen, Nadine Strossen, and my colleague Alexander A. Reinert.

Eliot Spitzer, the announcement reveals, will give the keynote address.

What explains the choice of Mr. Spitzer?

His eminence as a legal scholar?

His exemplary conduct?

I am perplexed.

Do I need to recite the conduct that led to Mr. Spitzer's resignation as governor of the State of New York? I don't think so. Suffice it to say that Mr. Spitzer's conduct was unprofessional, unethical, and corrosive of the public's trust in government.

The choice of Mr. Spitzer as the keynote speaker of a major law conference is a disgrace.

The choice of Mr. Spitzer as the keynote speaker says volumes about the attitudes of the people who run the American Constitution Society.

I repeat my question: What explains the choice of Mr. Spitzer?

His aggressiveness and arrogance?

His fame? His infamy?

His wealth?

I assume it's some combination of the above factors.

When Mr. Spitzer was New York's attorney general, he was much less forgiving of his adversaries than the ACS is of him.

As governor, Mr. Spitzer did not do much better: He promised to be a steamroller.

Mr. Spitzer's arrogance alone should have disqualified him as keynote speaker at the conference to be held at NYU.

Perhaps sometimes there is such a thing as guilt by association.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Tuesday, February 01, 2011

Justice Brandeis on Zeal and Liberty

"The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Justice Brandeis, dissenting in Olmstead v. United States (1928). Perhaps Ms. Napolitano thinks, "Aha, but I'm a woman. So the public need not fear full-body scanners. Compare Tillers's foolish class exercise."

There go my chances for a government job.


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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Monday, January 31, 2011

Soft Hard Science

On forensic science:

Some legal folk are accustomed to distinguishing between the hard sciences and the soft sciences. But if the truth be known, even the hardest of sciences have soft ingredients. Consider, for example, the methods now being used to search for earth-like planets whirling around other stars:

Dennis Overbye, Gazing Afar for Other Earths, and Other Beings NYTimes (January 30, 2011):

There is a hitch to confirming those planets, however. Such planets would not exert enough of a gravitational tug on their suns to be detectable by the “wobble” method, the main way their masses can be measured. Instead of confirming such planets, Kepler astronomers talk about “validating” them by using high-powered telescopes to make sure, for example, that there is only one star there and not a pair of eclipsing stars or some other phenomenon that could mimic a planet’s shadow.

“Earths are difficult,” Mr. Borucki said. “We’re concerned not to announce anything until we’ve proven six different ways it can’t not be a planet.”

As a result, more and more of Kepler’s future pronouncements will be statistical in nature. Natalie Batalha of San Jose State University, the deputy science team leader for Kepler, said it could be that they will wind up with, say, 100 planets they are 80 percent sure of, which could translate to 80 planets — useful for a census, not so helpful if you’re looking for a place to live.

“It’s a bitter pill to swallow,” said Sara Seager, an M.I.T. planetary astronomer who works with Kepler. “We will be faced with hundreds of planet candidates that may never be fully vetted as planets. We just have to live with statistics.”

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, January 30, 2011

Bloodlands

Watch the C-Span program on the "bloodlands." The speaker is Timothy Snyder, professor of history at Yale and author of Bloodlands: Europe between Hitler and Stalin (2010)

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Wednesday, January 26, 2011

One-Day Workshop on AI & Evidential Inference
in Conjunction with
ICAIL 2011, Pittsburgh, Pennsylvania, June 10, 2011

Workshop Chairs: Giovanni Sartor & Peter Tillers

Program Committee: Henry Prakken, Giovanni Sartor, Douglas Walton, & Peter Tillers

For more information please contact either Giovanni Sartor - giovanni.sartor at gmail.com - or Peter Tillers - peter.tillers at gmail.com
Panelists: Ronald J. Allen, Rainhard Bengez, Floris Bex, Scott Brewer, Craig Callen, James Franklin, David Hamer, Bruce Hay, Joseph Laronge, D. Michael Risinger, Michael Pardo, Federico Picinali, Henry Prakken, Giovanni Sartor, Peter Tillers, Bart Verheij, Douglas Walton, Nanning Zhang

Subject: Computational methods and evidential inference in legal settings such as pretrial investigation and trials. Two foci of discussion will be (i) stories, narrative, or rhetoric, and evidential argument; and (ii) burdens of proof. Panelists will also be free to consider other topics, including, for example, (iii) evidential inference and statistical methods, and (iv) cognitive science, psychology, and inference.

If time allows, the Program Committee will review papers by other people for possible presentation at the workshop. Information about this possibility will be posted later.

Publication: The Oxford journal Law, Probability and Risk will publish those workshop papers that pass peer review.

Biographical details about panelists (listed in alphabetical order):

Ronald J. Allen, John Henry Wigmore Professor of Law at Northwestern University, in Chicago, Illinois. He did his undergraduate work in mathematics at Marshall University and studied law at the University of Michigan. He is an internationally recognized expert in the fields of evidence, procedure, and constitutional law. He has published five books and approximately eighty articles in major law reviews. The New York Times referred to him as one of nation's leading experts on evidence and procedure. He has been quoted in national news outlets hundreds of times, and appears regularly on national broadcast media on matters ranging from complex litigation to constitutional law to criminal justice.

Rainhard Z. Bengez is a lecturer in philosophy and mathematics, and scholar in residence at TU München, Germany. After seven years of religious education he studied and graduated in mathematics, medicine, and physics. In his PhD in mathematics he worked on formal systems, its theoretical limits and its limits concerning practical application. Together with Lothar Phillips he developed the concept of quantitative justice and fairness and its impact on decision systems, and on the idea of humanity. The overall idea of his research interests are questions and problems concerning structures of epistemic phenomena and how to gain epistemic insight by problem transformation and by using multiple (even unconventional) methods. Some of his recent projects:
(i) Integration of technology (esp. automata) in society, esp. Theory of Trust(!); (ii) Morality, emotions, and machines (chances and limits); (iii) Structure of energy systems (esp. in Europe, and there esp. in Germany, we have reached a point on which we cannot base our conclusions on historical data and assumptions as we try to change the historical (infra-) structure completely. Thus, we have to rethink given ontic and ontological concepts and extend our set of terms. This will or may enable our engineers to design / create new structures with a deeper connection to society and to include questions concerning complex systems.); (iv) Philosophy for children (Children develop questions concerning philosophy of science, technology, and society by using issues of natural sciences and technology according to their school curriculum.); and (v) Art & Science – the many ways of epistemic insights.
He has been awarded grants by German states for development of new ways in teaching functional illiterates mathematics, together with Marie-Cecile Bertau for her Gilgamesh project, as well as for his Theory of Trust project.

Floris Bex, postdoctoral research assistant, Argument Research Group, University of Dundee. Bex has written a comprehensive dissertation on reasoning with legal evidence and proof. In this dissertation he presents an informal theory, which caters to an (informal) philosophical and legal audience, as well as a more formal logical theory, aimed at an AI-oriented audience. His work has been frequently presented at the relevant conferences (Jurix, ICAIL). As of 2003, Floris has published four major journal papers on the subject of reasoning with evidence. At the University of Groningen (2005 - 2009), Floris has taught law students the basics of thinking about evidence and scenarios and he was recently (2010) invited by the court of appeals in Arnhem to give a seminar about reasoning with evidence. Together with Henry Prakken, Floris gave workshops on evidential reasoning at the IVR legal theory conference in Cracow (2007) and at a recent conference for Dutch judges and legal professionals (2010).

Scott Brewer, professor of law, Harvard Law School. Research Interests: Philosophical Aspects of Legal Thought. Education: SUNY at Stony Brook B.A. 1979, Philosophy and Religious Studies; Yale University M.A. 1980, Philosophy; Yale Law School J.D. 1988; Harvard University Ph.D. 1997, Philosophy. Appointments: Lecturer on Law, 1988 ; Assistant Professor of Law, 1991; Professor of Law, 1998. Representative Publications: Brewer, Scott. "Scientific Expert Testimony and Intellectual Due Process," 107 Yale Law Journal 1535 (1998); Brewer, Scott. "Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy," 109 Harvard Law Review 923 (1996).

Craig Callen, Judge John D. O' Hair Professor of Evidence & Procedure, Michigan State University School of Law. Callen's research in evidence for the last three decades has focused on the lessons of psychology, math, logic, statistics and AI for evidence, with particular emphasis on information processing theory.

James Franklin, professor, School of Mathematics and Statistics, University of New South Wales. Brief History. Franklin's undergraduate work was at the University of Sydney (1971-75). He completed his PhD in 1981 at Warwick University, on algebraic groups. Since 1981 he has taught in Mathematics at UNSW. His book What Science Knows: And How It Knows It (Encounter) was published in 2009. His book Catholic Values and Australian Realities appeared in 2006. Franklin's book Corrupting the Youth: A History of Philosophy in Australia was published by Macleay Press in 2003. His book The Science of Conjecture: Evidence and Probability Before Pascal (Johns Hopkins University Press) appeared in 2001. Franklin's research areas include the structuralist philosophy of mathematics and the 'formal sciences' (He is a member of the Sydney School), Australian Catholic history, the parallel between ethics and mathematics, restraint, the quantification of rights in applied ethics, and the analysis of extreme risks.

David Hamer, associate professor, Law Faculty, University of Sydney. David Hamer has undergraduate degrees in both science and law from the Australian National University and a PhD from the University of Melbourne. His dissertation examined probabilistic models of burdens and standards of proof. He has published a series of articles in leading journals in Australia and the UK applying probability theory to various aspects of evidence, proof and justice, including causation, the right to silence, civil and criminal standards of proof, delayed complaints and double jeopardy.

Bruce Hay, professor of law, Harvard Law School. Research Interests: Economics of Procedure and Litigation; Evidence; Legal Theory. Education: University of Wisconsin B.A. 1985, Political Science and French; Harvard Law School J.D. 1988. Appointments: Assistant Professor of Law, 1992; Professor of Law, 1998. Representative Publications: "Manufacturer Liability for Harm Caused by Consumers to Others," 94 American Economic Review 1700 (2005) (authored with K. Spier); "Sting Operations, Agents Provocateurs, and Entrapment," 70 Missouri Law Review 387 (2005); "'Sweetheart' and 'Blackmail' Settlements in Class Actions: Reality and Remedy," 75 Notre Dame Law Review 1377 (2000) (authored with D. Rosenberg); "Burdens of Proof in Civil Litigation: An Economic Perspective," 26 Journal of Legal Studies 413 (1997); "Allocating the Burden of Proof," 72 Indiana Law Journal 618 (1997).

Joseph Laronge, Senior Assistant Attorney General, Oregon Department of Justice: Laronge has been a trial and appellate attorney for 35 years. For the last ten years, he has made extensive use of argument mapping (e.g., Rationale software and embodied metaphoric argumentation visual languages) in trial illustrative exhibits and court briefs as ancillary support for factual and legal inferential arguments. During this period, he has applied these argument mapping approaches for teaching advanced legal reasoning skills as an adjunct professor of law in Advanced Argumentation at Lewis & Clark Law School and as a former associate with Austhink Consulting. He previously taught the fundamentals of legal reasoning as an adjunct professor of law in Legal Research & Writing at Willamette University Law School. From these experiences, Laronge found that the multiplicity of modes of inference and arguments schemes was an impediment to the enhancement of law students’ legal reasoning skills and the clear and rigorous representation of such argumentation in court. To help overcome this obstacle, he developed a single generalizable structure of inferential proof named defeasible class-inclusion transitivity (DCIT). Since 2005, Laronge has used DCIT successfully as a persuasive universal structure of factual and legal inferential reasoning in trial and appellate court real-world applications. An explanation of its theoretical foundation and its generalizable application in court is discussed in “A Generalizable Argument Structure Using Defeasible Class-inclusion Transitivity for Evaluating Evidentiary Probative Relevancy in Litigation” J Logic Computation exp066 first published online December 2, 2009 doi:10.1093/logcom/exp066.

Michael Pardo, associate professor of law, University of Alabama School of Law, writes and teaches in the areas of evidence, criminal procedure, civil procedure, and jurisprudence. His scholarship explores a variety of philosophical issues in these areas, with a particular focus on epistemological issues regarding evidence and legal proof. His recent scholarship also examines philosophical and evidentiary issues pertaining to law and neuroscience. Professor Pardo is the author of several publications in law reviews, including the Boston College, Illinois, Northwestern, Texas, and Iowa Law Reviews, among others, and in peer-reviewed journals, including Legal Theory, Law and Philosophy, and the Journal of Legal Studies, among others. His article, “The Field of Evidence and the Field of Knowledge,” was presented at the Stanford/Yale Junior Faculty Forum in the jurisprudence and philosophy category. Professor Pardo is also a co-author of the fifth edition of Evidence: Text, Problems, and Cases (Aspen, forthcoming, with Allen, Kuhns, Swift, and Schwartz) and a forthcoming book on law and neuroscience (with Dennis Patterson). Professor Pardo is currently the Chair-Elect of the American Association of Law Schools Section on Evidence. He also serves as the U.S. book review editor of International Commentary on Evidence. Professor Pardo joined the Alabama Law Faculty in 2005. Prior to joining the faculty, he was a visiting assistant professor at Chicago-Kent College of Law and at Northwestern University School of Law. Professor Pardo received his JD from Northwestern University School of Law.

Federico Picinali, LLM student at the Yale Law School; PhD student at the Università degli Studi of Trento, Italy. Former Visiting Researcher at UC Hastings, Cardozo School of Law and Penn Law. Former Exchange Student at the UCB Boalt Hall School of Law. Picinali received a Degree in legal sciences and a Specialized degree in law at the Università degli Studi of Milan, Italy. His research interests and publications concern the influence of fact finding on substantive criminal law principles, inferential reasoning, the beyond a reasonable doubt standard, the comparison between "legal reasoning" and "factual reasoning."

Henry Prakken, lecturer in the Intelligent Systems Group of the computer science department at Utrecht University, and professor of Law and IT at the Law Faculty of the University of Groningen. Prakken has master degrees in law (1985) and philosophy (1988) from the University of Groningen. In 1993 he obtained his PhD degree at the Free University Amsterdam with a thesis titled Logical Tools for Modelling Legal Argument. His main research interests concern logical and dialogical aspects of argumentation, and the application of argumentation in legal reasoning, multi-agent systems and other domains. Prakken was the ICAIL program chair in 2001 and the ICAIL president in 2008-9. He had papers accepted at all ICAIL conferences since 1991 except in 1999 (when he gave a tutorial). Prakken co-organised workshops on legal reasoning about evidence at ICAIL 2001 and IVR 2007 and a conference on a similar topic in New York. He has published regularly about evidence since 2001.

D. Michael Risinger, John J. Gibbons Professor of Law. Seton Hall University School of Law. Risinger holds a B.A., magna cum laude, from Yale University, and a J.D., cum laude, from Harvard Law School. He clerked for the Honorable Clarence C. Newcomer of the United States District Court for the Eastern District of Pennsylvania. He is a past chair of the Association of American Law Schools Section on Civil Procedure, the immediate past chair of the AALS Section on Evidence, and a life member of the American Law Institute. He was also a member of the New Jersey Supreme Court Committee on Evidence for 25 years, which was responsible for the current version of the New Jersey Rules of Evidence. Professor Risinger moved to Seton Hall Law School in 1973. He served as a visiting senior fellow on the law faculty of the National University of Singapore from 1985-1986. Professor Risinger has published in the areas of evidence and civil procedure. He is the co-author of Trial Evidence, A Continuing Legal Education Casebook and the author of two chapters in Faigman, Kaye, Saks and Cheng, Modern Scientific Evidence (“Handwriting Identification” and “A Proposed Taxonomy of Expertise”). Professor Risinger was selected as one of Seton Hall’s two inaugural Dean’s Research Fellows (2002-2004) and was named the John J. Gibbons Professor of Law in May 2008. His scholarship has recently concentrated on wrongful convictions as well as expert evidence issues.

Giovanni Sartor, professor of Legal informatics and Legal Theory at the European University Institute of Florence and at the University of Bologna. He obtained a PhD at the European University Institute (Florence), worked at the Court of Justice of the European Union (Luxembourg), was a researcher at the Italian National Council of Research (ITTIG, Florence), held the chair in Jurisprudence at Queen’s University of Belfast (where he now is honorary professor), and was Marie-Curie professor at the European University of Florence. He is President of the International Association for Artificial Intelligence and Law. Sartor has published widely in legal philosophy, computational logic, legislation technique, and computer law. Among his publications is: Corso di informatica giuridica (Giappichelli, 2008), Legal Reasoning: A Cognitive Approach to the Law (Springer: 2005), The Law of Electronic Agents (Oslo: Unipubskriftserier, 2003), Judicial Applications of Artificial Intelligence (Dordrecht: Kluwer, 1998), Logical Models of Legal Argumentation (Dordrecht: Kluwer, 1996), and Artificial Intelligence in Law (Oslo: Tano, 1993).

Peter Tillers, professor of law, Cardozo School of Law, Yeshiva University. Tillers is a reviser of John Henry Wigmore's multi-volume treatise on the law of evidence and has published a variety of articles on evidence, inference, and investigation. He is an editor of the Oxford journal Law, Probability and Risk. He is former chairman and secretary of the Evidence Section of the Association of American Law Schools. He was a Fellow of Law & Humanities at Harvard University and an Alexander von Humboldt & Senior Max Rheinstein Fellow at the University of Munich. He was a visiting professor at Harvard Law School in the spring semester of 2002. Tillers was legal adviser for the Latvian mission to the United Nations during the 48th Session of the General Assembly. He maintains a website with discussion of a wide range of general issues of evidence. Tillers' scholarship focuses on evidential inference and fact investigation in legal settings. He maintains that multiple methods of marshaling and analyzing evidence are important in trials, in pretrial investigation and informal fact discovery, and in other domains. He believes that inference networks offer a useful window into investigative discovery and proof at trial. But he believes that subjective, synthetic, and gestalt-like perspectives on evidence, inference, and proof are also essential.

Bart Verheij, lecturer and researcher at the University of Groningen, Department of Artificial Intelligence and a member of the ALICE institute. He participates in the Multi-agent systems research program. His research interests include argumentation, rules and law, with emphasis on defeasible argumentation, legal reasoning and argumentation software. As research methods, he uses formal analysis (in the styles of logic and analytic philosophy), software design, algorithm implementation, agent-based social simulation, controlled experiment, observation, and thinking and exploring. His research field is interdisciplinary, and includes artificial intelligence, argumentation theory and legal theory.

Douglas Walton holds the Assumption University Chair in Argumentation Studies, and is Distinguished Research Fellow Centre for Research in Reasoning, Argumentation and Rhetoric (CRRAR), at the University of Windsor. He serves on the editorial boards of several journals, including Informal Logic, Argument and Computation, and Artificial Intelligence and Law. He is the author of forty-five books and three hundred refereed papers in the areas of argumentation, logic and artificial intelligence. The books include Witness Testimony Evidence, Cambridge University Press, 2008, Fundamentals of Critical Argumentation, Cambridge University Press, 2006, and Legal Argumentation and Evidence, Penn State Press, 2002.

Nanning Zhang, Ph.D., Senior Partner, Hunan Tiandiren Law Firm, Changsha, Hunan Province, People's Republic of China. Research interests: Evidence. Education: Henan University B.A. 1990, Enterprises Management; Central South University M.A. 1997, Philosophy of Science and Technology; Sun Yet-sen University Ph.D. 2006, Legal Logic; Post-doctoral fellow in evidence law at China University of Political Science and Law, 2009. Representative Publications: Nanning Zhang & Lingyun Tang, “On The Validity of Argument in Law”, in The Uses of Argument: Proceedings of a Conference at Mcmaster, David Hitchcock, Ed., Ontario, 515-524 (2005); Nanning Zhang & Douglas Walton, “Recent Trends in Evidence Law in China and the New Evidence Scholarship”, 9 (2) Law Probability and Risk 103-127 (2010).

Monday, January 24, 2011

A Declaration of (a Sort of) Victory

In the early 1990s I began teaching a course in fact investigation. This course was largely the upshot of two experiences: (i) my discovery at the very beginning of my legal career that practicing litigators did not know how to teach novice lawyers how to formulate effective strategies for pretrial fact investigation and formal discovery, and (ii) my collaboration with David Schum in a seven-year NSF-supported research project on preliminary fact investigation.

Before ever working with Schum, I aspired to develop a theory of pretrial fact investigation and trial preparation -- in part because my two stints in litigation convinced me of the immense importance of pretrial fact investigation and pretrial preparation. After working with David Schum (and learning from him), I came to believe more firmly than I did before that it is possible to teach important parts of the art and science of fact investigation.

The course I started to teach in the early 1990s was an overtly experimental one. The course evolved over the years. As the years passed, I made increasing use of the evidence marshaling software (originally based on HyperCard) that David Schum and I began to develop during our joint research project. As the years went on, I continued to tinker with that software, and along the way I added a number of new stacks to represent additional methods or strategies for organizing evidence in legal settings or in anticipation of legal settings. (That software eventually acquired the moniker MarshalPlan. [If you activate this link, please use Firefox or Internet Explorer and accept the plug-in.])

In the early years the experimental course I taught attracted a decent but relatively small number of students.

In the very first years I gave the students simulated (made-up) problems to investigate. That changed: I began to ask students to investigate real-world problems.

In the early years I gave students a hefty dollop of theory. As the years passed, I still gave students dollops of theory, but I put increasing emphasis on actual investigations.

A few years after starting the course, I began to teach the course with Zachary Weiss. At that time Zach was with the Manhattan DA's office; Zach, a very good trial lawyer, devoted most of his time there to organizing and supervising investigations. Later he moved to the Office of the Attorney General of the State of New York, where he continued his work in investigation.

These days I co-teach the fact investigation course with Philip Segal. Phil worked for the Wall Street Journal before going to law school. Now he runs his own investigation company.

Perhaps as a result of these various changes and developments, the course that I now co-teach with Phil is quite popular as such courses go. Last semester we had approximately 40 students in our "seminar." This semester we have approximately 50 students. I hasten to say that popularity with students is no guarantee of scholarly, professional, or pedagogical excellence. But I believe that student acceptance of our fact investigation course is some evidence and my colleagues and I have figured out ways of teaching important aspects of the art and science of fact investigation.

My claim, if valid, has great theoretical significance as well as practical significance. One of the abiding mysteries or puzzles of epistemology is where good ideas come from -- or how one acquires useful conjectures about the world as well as how one justifies one's conclusions about the world. The course in fact investigation sheds important light on that important question.

I am a slow learner. But I will go to my grave with a measure of self-satisfaction and a feeling of vindication.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Saturday, January 22, 2011

Cognitive Science v. Neurobabble

Tyler Burge's NYTimes blog criticizing "neurobabble" may be generating fruitful discussions. See Davie Yoon's Blog Post
A similar challenge to neuroscience was made some years ago in a less provocative way by Margaret Boden in vol. 2 of Mind as Machine pp. 1227-1228 (Oxford: Clarendon Press 2006).
Boden's criticism inspired some of my own.

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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

Monday, January 17, 2011

Credibility decomposed

For an entertaining explanation, use the Firefox browser to go here. (If you're game, you will have to accept a plug-in.)

Wednesday, January 12, 2011

Teaching Students How to Read Cases

I once heard a story that Karl Llwellyn once proclaimed that he would or should read all judicial opinions of American courts issued in a single calendar year. I don't know if he ever actually tried doing this. Doing this would no longer be even imaginable today.

I think I also heard (from more than one source) that Karl Llewellyn devoted some or all of his class sessions to careful reading and discussion of every last detail of judicial opinions (and that he sometimes or often stormed out of the classroom when students weren't prepared or when he found their comments and arguments unsatisfactory).

I have been thinking about Karl Llewellyn because in recent years -- indeed, for many years -- I have been disturbed by how little law students (even very smart law students) seem attuned to the nuances of the judicial opinions they (supposedly) read.

So perhaps I should try to do something about this problem.

  • Perhaps I have the necessary qualifications to do something. I did practice law for a while. But I really learned how to read cases carefully when I worked for James H. Chadbourn while he was revising various Wigmore volumes and when I did my own revision of one of the Wigmore volumes.
  • In some academic quarters, reading judicial opinions is not fashionable. But it is a great mistake for ostensible law teachers to forget (or never learn) how to read cases. This is not only because law schools are expected to help prepare students for law practice. It is also because in real-world judicial opinions there are many (interesting & important) notions and arguments that cannot readily be converted into or captured by the preferred formal argument of the day.
  • Perhaps I can combine my plan to have students present and defend particular constitutional perspectives (relating to criminal procedure) with the objective of teaching students how to read and interpret full-bodied judicial opinions. I'll have to think about this. (I don't want to turn my criminal procedure course into an "elements of law" course.)

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Sunday, January 09, 2011

    Football Hearsay and Non-Hearsay

    Flip Bondy, Mark Sanchez, not offensive coordinator Brian Schottenheimer, called Jets big play in win over Colts New York Daily News (Jan. 9, 2010):
    [New York Jets quarterback]Sanchez didn't even have the stomach to watch [his team's] winning field goal. Instead he watched the reaction of the Colts, who didn't look too happy about the course of events. Only then Sanchez knew that one obstacle had been cleared, that he had graduated from an impossible matchup against Manning to another one against Tom Brady.
    This conduct was non-assertive conduct and thus non-hearsay under the Federal Rules of Evidence, correct?

    But question: Suppose the Colts had thrown up their hands, cheered, and jumped around. Would that have been non-assertive conduct or would it have been assertive -- "Hey, we won!" -- conduct?

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    The Costs & Benefits of Getting a Law Degree

    See David Segal, Is Law School a Losing Game? NYTimes (Feb. 8, 2011).

    The article begins with the following eye-catching sentence:

    If there is ever a class in how to remain calm while trapped beneath $250,000 in loans, Michael Wallerstein ought to teach it.
    Another eye-catching passage:
    ...Mr. Wallerstein and a generation of J.D.’s face the grimmest job market in decades. Since 2008, some 15,000 attorney and legal-staff jobs at large firms have vanished, according to a Northwestern Law study. ...

    And with corporations scrutinizing their legal expenses as never before, more entry-level legal work is now outsourced to contract temporary employees, both in the United States and in countries like India. ...

    But improbably enough, law schools have concluded that life for newly minted grads is getting sweeter, at least by one crucial measure. In 1997, when U.S. News first published a statistic called “graduates known to be employed nine months after graduation,” law schools reported an average employment rate of 84 percent. In the most recent U.S. News rankings, 93 percent of grads were working — nearly a 10-point jump.

    In the Wonderland of these statistics, a remarkable number of law school grads are not just busy — they are raking it in. Many schools, even those that have failed to break into the U.S. News top 40, state that the median starting salary of graduates in the private sector is $160,000. That seems highly unlikely, given that Harvard and Yale, at the top of the pile, list the exact same figure.

    How do law schools depict a feast amid so much famine?

    “Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves. “Every time I look at this data, I feel dirty.” It is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways.

    Question: Did anyone ever think that lawyers (or, for that matter, law teachers, law school deans, and university presidents) are as a group paragons of virtue?

    One of the things I have learned from the investigations conducted by the students in my Fact Investigation course:

    There is much hanky-panky afoot in the world of "non-profits."

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Friday, December 31, 2010

    (True) Euclidean Logic & the Law

    An article in the New York Times reports on math & science education in China. The reporter David Barboza tells this anecdote:
    In Li Zhen’s ninth-grade mathematics class here last week, the morning drill was geometry. Students at the middle school affiliated with Jing’An Teachers’ College were asked to explain the relative size of geometric shapes by using Euclid’s theorem of parallelograms.

    A teacher instructed students in class at the middle school associated with Jing’An Teachers’ College in central Shanghai.

    “Who in this class can tell me how to demonstrate two lines are parallel without using a proportional segment?” Ms. Li called out to about 40 students seated in a cramped classroom.

    Question: Should law students, lawyers, judges, and ... er ... law teachers be able to reason about this sort of problem?

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Thursday, December 30, 2010

    Thoughts about a course in constitutional criminal procedure

    I am meditating about my developing unorthodox course in constitutional criminal procedure.

    I want my students to become acquainted with some basic constitutional rules & principles, but I do not want to use much course time to get my students to memorize leading cases and their holdings (which they will probably quickly forget after the examination). So I am thinking about using the bulk of class time to having students make arguments from specific constitutional perspectives about specific problems . Hence, at times I may ask students to play the role of Justice Black, Justice Frankfurter, or Justice Scalia. At other times I may ask students to formulate a constitutional argument not yet clearly ever embraced by any member of the Court.

    I think such a course could be fun and instructive. But would it work?

    On reflection, I think roles should be assigned a full week before class and the arguments should focus on the issue or issues in the "leading cases" that we will study. Correct? I think I might ask students to outline their arguments in advance in Google Docs that can be shared with every member of the class. Does this sound like a good idea?

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Monday, December 27, 2010

    Academic Corruption

    Academic corruption may not be as serious as legal corruption in Russia. But to this academic, it is worrisome that at the University of North Carolina in 2008 "A’s have become the most frequent grade"

    Why do the faculty at UNC and other colleges say that a large number of students are very much above average? Plainly it is because faculty are rewarded if they do so and are punished if they give lower grades.

    &&&

    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Legal Travesty in Russia

    The U.S. Administration may want to rethink whether it really wants to "reset" relations with Russia. After eight years of prison for Mikhail Khodorkovsky, a corrupted judicial system has convicted Mr Khodorkvsky of new offenses and is perhaps prepared to imprison Mr Khodorkovsky for some additional years. See Andrei Ostalski The verdict that may shake Russia BBC News (Dec. 27, 2010). The Obama Administration professed to want to bring "change" to America. But perhaps the change it desired does not include a serious concern about human rights violations in other countries.

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Thursday, December 23, 2010

    A (Minor) Manifesto (about American Legal Education)

    A Manifesto

    1. Law school courses generally focus on legal rules. But facts are just as important both for successful law practice and for an understanding of the actual workings of the law.

    2. There are now some law courses that call on students to do fact investigation. For example, in litigation clinics students must often gather evidence and assemble it in preparation for trial. But fact investigation involves more than intuition and hunch. Fact investigation involves mental discipline; it involves and requires orderly thinking.

    3. No method known to humankind can guarantee that a litigator (or some other sort of lawyer) will do fact investigation successfully. But some methods commonly involved in fact investigation can be identified – and they can be taught. See the course in fact investigation at Cardozo School of Law.

    Monday, December 20, 2010

    MarshalPlan 4.0 as a Downloaded Application

    MarshalPlan.4.0, now available via your web browser (Firefox or Internet Explorer), can also be downloaded to your computer. Go here and download the version of MarshalPlan that works with your computer's operating system.
    N.B: This software only illustrates how a fully developed version of MarshalPlan would work. For example, the existing version of the software does not allow the user to store data permanently. For a more expansive discussion of the limitations of the current versions of MarshalPlan, go here.

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    The dynamic evidence page
    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Saturday, December 18, 2010

    MarshalPlan on the Web

    After much struggle, I have succeeded in making MarshalPlan -- my evidence marshaling software --, I have succeeded in making this software available for your viewing pleasure in your browser. (But Chrome will not work for some reason. Firefox is a sure bet. Internet Explorer? I don't know.)

    Click here to see how this gizmo works.

    This software is not technically snazzy. It is technically crude. (Some buttons [links] don't even work. But most of them do.) But though technically crude, MarshalPlan is theoretically sophisticated. And it is, in principle, very useful to folks such as trial lawyers and investigators. Or so I think.

    This software has had a long gestation period and it has gone through many iterations. One person who played a very large part in the development of the concept -- and, to some extent, the technology -- of MarshalPlan was David A. Schum. But I don't know if David wants to take any credit or blame for the thing I have managed to cobble together over a weekend -- and over many years.

    Comments are very welcome.

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Looking Backward at the Birth of a New Science of Evidence

    P. Tillers, Webs of Things in the Mind: A New Science of Evidence (essay reviewing work of David Schum), 87 Michigan Law Review 1225 (1989):


    [snip, snip]

    [snip, snip]

    [snip, snip]

    [snip, snip]

    [snip, snip]

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.

    Monday, December 13, 2010

    A Forty Years War

    See Roger C. Park, Hastings College of the Law; Peter Tillers, Benjamin N. Cardozo School of Law; Frederick Crawford Moss (emeritus); D. Michael Risinger, Seton Hall University School of Law; David H. Kaye, The Pennsylvania State University; Ronald J. Allen, Northwestern University Law School; Samuel R. Gross, University of Michigan Law School; Bruce L. Hay, Harvard Law School; Michael S. Pardo, University of Alabama School of Law & Paul F. Kirgis, St. John's University School of Law Bayes Wars Redivivus - An Exchange

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    The dynamic evidence page

    It's here: the law of evidence on Spindle Law. See also this post and this post.