- SPECIAL ISSUE: Proportionality and Quantitative Justice
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
Saturday, September 03, 2011
Proportionality and Quantitative Justice
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
Tuesday, August 30, 2011
Fact Investigation & Dynamic Inference
Inference is dynamic: It changes over time; it exists in a changing environment (the world is constantly changing, the actors who draw inferences change); inference suffers the slings and arrows of changing preferences, emotions, desires, passions, etc.; inference changes when subjective judgments change and when generalizations or beliefs about the world change; it often changes when the evidence changes, which evidence always does (to some degree); inference changes when standards of judgment (e.g., burdens of persuasion, or what decision theorists call "decision rules") change; and inference changes for yet other reasons I can't think of at the moment.
Fact investigation is also hard in part because, as someone, said, "Predictions are hard, particularly about the future." An investigator, who always suffers from some ignorance, must make decisions about what to investigate and what lines of investigation are worth pursuing. Such prophecies about future evidentiary rewards are intrinsically hard to make -- given the investigator's ignorance of the evidence that will ultimately be found (or not found). Cf. "value of information" theory.
The dynamic evidence page
Friday, August 26, 2011
What Are the Most Useful Law School Courses?
Nathan Koppel, One View on the Most Useful Courses in Law School (August 25, 2011):
Over at The Volokh Conspiracy [a blog], George Washington Law School professor Orin Kerr has written this useful item about a George Washington Law School survey that asked alumni which elective courses had proven the most useful to them and which electives they wish they had taken.
Here are the top 3 ranked courses on the usefulness scale:
1. evidence — (27% of respondents)
2. administrative law — (21%)
3. corporations — (18%)
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
Wednesday, August 24, 2011
Supreme Court Takes Eyewitness Identification Case
The Supreme Court granted certiorari in an eyewitness identification case, Perry v. New Hampshire, No. 10-8974. The petitioner's brief states the issue thus:
QUESTION PRESENTED
Do the due process safeguards against the State’s use of unreliable eyewitness identification evidence at trial apply to all identifications which arise from impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of “improper state action”?
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The American Psychological Association submitted an amicus brief.
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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
New Jersey Revises Its Procedures for the Handling of Eyewitness Identifications in Criminal Cases
The opinion of the New Jersey Supreme Court is here.
The opinion in State v. Larry R. Henderson (A-8-08)(062218) (August 24, 2011) reviews a wide swath of literature and research about eyewitness identifications and lays down new rules governing judicial assessment and regulation of eyewitness identifications in criminal cases.
This long opinion requires careful study.
The decision, said to be pathbreakng, will probably prove to be pathbreaking only if it proves to be persuasive. The legal grounds for the decision seem to apply only to New Jersey. The New Jersey Supreme Court wrote:
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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
The opinion in State v. Larry R. Henderson (A-8-08)(062218) (August 24, 2011) reviews a wide swath of literature and research about eyewitness identifications and lays down new rules governing judicial assessment and regulation of eyewitness identifications in criminal cases.
This long opinion requires careful study.
The decision, said to be pathbreakng, will probably prove to be pathbreaking only if it proves to be persuasive. The legal grounds for the decision seem to apply only to New Jersey. The New Jersey Supreme Court wrote:
10 We have no authority, of course, to modify Manson [v. Brathwaite, 432 U.S. 98 (1977) [a United States Supreme Court decision dealing with the the implications of the federal due process guarantee for the handling of eyewitness identification evidence in criminal cases]. The expanded protections stem from the due process rights guaranteed under the State Constitution. Compare N.J. Const. art. I, § 1 (“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”), with U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”); see Jamgochian v.N.J. State Parole Bd., 196 N.J. 222, 239 (2008) (“[W]e have, from time to time, construed Article 1, Paragraph 1 [of the New Jersey Constitution] to provide more due process protections than those afforded under the United States Constitution.”); see also State v. Reid, 194 N.J. 386, 396-97 (2008) (recognizing greater protection of individual rights under New Jersey Constitution).
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
Reflections on Campos v. Leiter: The Purpose(s) of Legal Education and Legal Scholarship
In the grand scheme of things, it is not very important whether one "likes" Professor Campos more than Professor Leiter, or vice-versa. But the question of what ought to be taught in law schools is important.
Although I (now) personally prefer to pursue scholarship that makes some difference to the practice and administration of the law, in my preferred scheme of things there would be no single answer to the question of how law should be studied and taught at law schools. "All other things being equal," I would make scholarly & pedagogical diversity an important value; "all other things being equal," I would let different law schools pursue different pedagogical and scholarly objectives.
But if law schools are to be given the latitude to decide how their faculty members are to study and teach law, it is critical that law schools be up front about what they do and do not do for their students. Then students who have no interest in Rorty and similar matters could avoid law schools where Rorty's philosophy or whatnot is emphasized. But the hooker is the phrase "all other things being equal." For example, it is fair to ask if law schools are capable of transparency about what their faculty members do and do not do. And it is fair to wonder how prospective students are to judge the importance of Rorty and similar matters to the study of law before they know much of anything about Rorty, similar matters, or the law.
I also put to one side the important and troublesome question of whether publicly-funded law schools fall into a special category -- whether, because (and if) they receive (large amounts of) public money, such law schools cannot go whichever way they please and must do whatever (someone thinks, but who?) best prepares their students for work as legal professionals -- as practicing lawyers, judges, legislators, and so on.
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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
- N.B. The word "best" adds a inherently tricky wrinkle to the stated hypothesis about the obligations of state-funded law schools: "best" in what sense(s)?
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.
Monday, August 22, 2011
An Academic Donnybrook: Professor Campos v. Professor Leiter
It has now been made public (by Professor Campos) that Professor Paul Campos is the author of the blog Inside the Law School Scam. Professor Campos has used that blog and other outlets to attack alleged scams and frauds by law schools. These attacks have apparently aroused the ire of Professor Brian Leiter (but I have no personal knowledge of this). Professor Campos replied thus to Professor Leiter's presumed positions:
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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.
It is thus with a certain sadness that I note one of the leading lights of contemporary legal academia, Professor Brian Leiter, the Karl N. Llewellyn Professor of Jurisprudence and Director, Center for Law, Philosophy, and Human Value, at the University of Chicago Law School, has, I have been told, chosen to point out to the world that, in comparison to himself, I am a poor scholar and have reprehensible work habits, rather than responding to any of my arguments about the state of the contemporary law school. This is unfortunate, as who could doubt that someone with Professor Leiter's extensive training in the analytic philosophical tradition would not have many valuable contributions to make regarding such questions as precisely why law school costs have increased exponentially, even as the job prospects of law school graduates have declined? (When I was doing background research for this piece I was reminded that the law faculty on which Professor Leiter currently serves includes several legal academics whose own professional work is in every sense admirable. I can only imagine how pleased they are to have acquired someone with Professor Leiter's unique set of talents). Nor can anyone doubt that Professor Leiter would add a valuable voice to the debate regarding how much contemporary legal academic scholarship is actually worth the remarkably high price students are required to pay for it. One must admit that it would be unrealistic to expect someone as busy as Professor Leiter to take time away from the rest of his many professional obligations to note the substance of this blog, let alone that he should be expected to put in the effort necessary to evaluate the academic talents and personal character of its author. Professor Leiter already makes a significant sacrifice of his time and talents by maintaining a blog that catalogs in exquisite detail the professional comings and goings of legal academics and professors of philosophy. He also devotes his remarkably wide-ranging abilities to constructing and maintaining a set of law school rankings (as well as another one for philosophy faculties), that does a far more rigorous job of determining the precise academic quality -- or at least prestige -- of the publications of law school faculty than the rightly-reviled set published by U.S. News & World Report. Without Professor Leiter's exemplary work on the subject, legal academics and the world at large would both find it much more difficult to determine whether, for example, the faculties of the NYU and Columbia law schools have had the fifth and sixth greatest scholarly impact on their fields over the past five years, or vice versa. (Professor Leiter's deans and faculty colleagues must find it especially gratifying that his rankings consistently discover that whatever school currently employs him deserves a a higher spot in the legal academic hierarchy than is assigned to it in the USNWR rankings). Nor can anyone blame Professor Leiter for refusing to bring his expertise and experience to bear on such matters as the extent to which law schools actually train students to engage in some aspect of the practice of law, given that he has never held any professional position for which a law degree (let alone bar admission) is a requirement. On this subject, his silence reflects a becoming and characteristic modesty. I am hardly in a position to dispute Professor Leiter's evaluation of the quality of my scholarship, both because I haven't seen it, and because, as I believe Freidrich Nietzsche observed (or perhaps it was Lord Coke), no man should be a judge in his own case. That Professor Leiter's scholarship, touching on such complex and important subjects as those explored in "Rorty and the Philosophical Tradition: Comment on Professor Szubka." 25 Diametros 159 (2010)," and in "Explaining Theoretical Disagreement." 76 University of Chicago Law Review 1215 (2009) (also published in Spanish in Analisis y Derecho), neither of which I have read, but which I plan to give my full attention as soon as time permits, is of both the highest quality and the deepest relevance to the mission of the contemporary law school is a proposition that surely no one qualified to evaluate the question would bother to dispute. As for a comparison of our work habits and moral character, I have never met, let alone worked with, Professor Leiter, so I must regretfully leave such comparisons to the tools employed by others.
All of which is to say that I welcome substantive discussion and disagreement about the issues raised on this blog, but have no interest in pursuing evaluations of personal character and the like. No reasonable person can deny that, in the course of what to all outward appearances is a brilliant career, Professor Leiter has played the legal academic game superbly well, and I wish him the best of luck in his future endeavors (assuming, of course, that those endeavors do not involve any actionable statements regarding the targets of his ire). For the moment, it is enough to note that the kind of work he does has its rewards, and that which I do has others.
The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.
46,656 Varieties of Bayesianism (at least)
Legal theorists sometimes speak of "the" Bayesian interpretation of evidence, inference, proof, and probability. However, see Sharon Bertsch McGrayne, The Theory That Would Not Die 129 (Yale 2011):
Bayesian theories mushroomed in glorious profusion during the 1960s, and Jack Good claimed he counted "at least 46656 different interpretations," far more than the world had statisticians.1 [1. I.J. Good, "46656 Varieties of Bayesianism," Letter to the Editor, 25 American Statistician 62-63 (1971).] Version included subjective, personalist, objective, empirical Bayes (EB for short), semi-EB, semi-Bayes, epistemic, intuitionist, logical, fuzzy, hierarchical, pseudo, quasi, compound, parametric, nonparametric, hyperparametric, and non-hyperparametric Bayes. ... When asked how to differentiate one Bayesian from another, a biostatistician cracked, "Ye shall know them by their posteriors."
Sunday, August 21, 2011
Australia's High Court on Difficulties with Conditionally Admitted Expert Evidence
Dasreef Pty Ltd v. Hawchar, No. S313/2010, 2011 HCA 21 (High Court of Australia, June 22, 2011) (unreported judgment):
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[¶ 121] Procedural advantages of a proof of assumption rule. A construction of s 79 which does not require establishment at the time of tender that there either has been, or will be, evidence admitted capable of proving the assumed facts permits more expert opinion evidence to be received. It permits postponement of the difficulties by seeking to solve them as questions of weight at a later time -- even as late as the end of the trial. 167 But increasing the amount of this type of evidence is not necessarily valuable. It may be unfair to the opposing party. It is indecisive. Its indecisiveness inflicts uncertainties on the parties. The additional evidence received may have a cloud over it for the rest of the trial.
[¶ 122] In contrast, a proof of assumption rule diminishes the risk of clouds. It encourages early and decisive rulings. Early and decisive rulings are important, both for the party opposing tender and for the tendering party.
[¶ 123] From the point of view of the party opposing tender, it is vitally important to know what evidence is or is not in, and how much utility expert opinion evidence is likely to have. That knowledge affects decisions about cross-examining the witnesses called by the tendering party; decisions by defendants whether or not to submit that there is no case to answer; decisions whether or not to call particular categories of evidence; and, if rulings are delayed until after the close of the trial, decisions about what is to be said in address. A practice of deciding whether a proof of assumption rule has been complied with at the time when expert opinion evidence is tendered avoids a dilemma for cross-examiners. One horn of the dilemma is that to cross-examine a witness about expert evidence which may later be rejected or treated as useless carries the risk of giving it a foothold in the record which it lacked at the time of the tender. The other horn of the dilemma is that, if the opposing party avoids that danger by not cross-examining on the expert evidence, there is a risk that it will be accepted despite its feebleness. It is a dilemma which cross-examiners should not have to face.
[¶ 124] From the point of view of the tendering party, it is desirable that the admissibility of expert opinion evidence tendered by that party be clear by the moment when the case for that party closes. It is undesirable that expert opinion evidence admitted in that party's case should later be held -- perhaps as late as the time of judgment -- to be subject to such doubts about its weight that it lacks utility. It is undesirable that its admissibility be in suspense until a time after the tendering party's case has closed. If the admissibility of expert opinion evidence which is tendered and conditionally admitted is not finally ruled on until after the case for the tendering party is closed, and the evidence is then rejected, or its weight has become so questionable that it is useless, the tendering party may have lost an opportunity to repair the position before its case closed, either by calling further witnesses or tendering further documents, or by recalling witnesses who had already been in the box. The capacity of tendering parties who are the prosecution or the plaintiff to reopen their cases rests on a discretion in the court which may not be favourably exercised; their capacity to tender evidence in reply is constricted by fairly strict rules, particularly in criminal cases.
[¶ 125] Jury trials. There are yet further difficulties in relation to jury trials. If evidence is rejected when tendered, the jurors are not confused by it, for they will ordinarily be absent during the debate about the tender: s 189(4) of the Act. If circumstances change and evidence once rejected becomes admissible, it can be re-tendered successfully. Again there is no risk of jury confusion. However, considerable confusion can flow where, although opinion evidence is admitted conditionally, later it becomes apparent that the condition is not satisfied. The evidence must be removed from the record, otherwise there would be no difference between conditional and unconditional admission. The same problems arise where opinion evidence is admitted, not on any formal condition, but simply in the expectation that at some time after the tender of the opinion evidence, witnesses will be called to establish the factual assumptions on which the opinion was pronounced, but that expectation is disappointed. In either event the jury will have heard evidence which is inadmissible. Should it be struck out? Should it be withdrawn from the jury? Should the jury be directed that the issue to which the expert's evidence was directed no longer arises? Should the jury be told not to consider the expert's evidence? Should the jury be told to disregard the expert's evidence on the ground that the factual basis has not been proved? 168 (168. See Wigmore, Evidence in Trials at Common Law, Tillers rev (1983), Vol 1 at 702-731 [Sections] 14 - 14.1 and 847-855 [Section] 19.) All these courses are possible. Each course is less attractive than a regime having a proof of assumption rule and a practice of rejecting the tender until it has been satisfied.
[¶ 126] And what is to be done with any evidence that was called in relation to that conditionally admitted but inadmissible evidence, whether it was elicited by the cross-examination of the party opposing tender or tendered by that party in its own case? That problem is reduced if decisive rulings about compliance with a proof of assumption rule are made.
[¶ 127] Conclusion. A construction of s 79 which holds that there is no proof of assumption rule in relation to s 79 tenders is difficult to reconcile with the practical exigencies pursuant to which parties conduct their cases. It is necessary for trials to be conducted in a businesslike and efficient way. That is a matter of context pointing to the view that there is a proof of assumption rule with which those tendering expert opinion evidence must comply by reason of ss 55, 56 and 79 read against the background of the common law.
Saturday, August 20, 2011
How to download or access my evidence marshaling software (MarshalPlan)
A. Background
Years ago David A. Schum and I developed the notion of an evidence
marshaling system. We laid out the underlying theory of this evidence
marshaling system in A Theory of Preliminary Fact Investigation.
We developed a kind of computer embodiment, or computer-based
expression, of our idea of an evidence marshaling system. Eventually we
decided to call our system "MarshalPlan."
Some of my more recent thoughts about the theoretical foundations of MarshalPlan may be found here (long blog post called "The Ramshackle -- and Logical -- Character of Explicit Human Factual Inference" (June 18, 2011)).
In the years following my seven(!)-year NSF-supported collaboration with David Schum, I continued to tinker with MarshalPlan. I did so by both modifying and adding "stacks," or files. (Each stack corresponds to an evidence marshaling strategy, or method.) The most recent iteration of the evidence marshaling software is MarshalPlan 4.0.
A few years ago I began to make MarshalPlan available via the internet. However, since I am not a programmer and since I lack many basic computer skills, I have not managed to devise a single method of accessing or download in MarshalPlan 4.0 that works for everyone. This is why I lay out below a variety of ways -- four ways -- for you to download or use MarshalPlan. Surely at least one of these methods of downloading or accessing MarshalPlan will work for you!
B. Caveats
1. The current iteration of MarshalPlan -- MarshalPlan 4.0 -- is not a prototype of a working application suitable for real-time and real-world use. Far from it! However, MarshalPlan 4.0 goes beyond scratchings (text) that state how an evidence marshaling application might work. But it is not far from the truth to say that MarshalPlan is mainly an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take. But, but ... MarshalPlan 4.0 is a bit more than an illustration of possible future directions for research and development. MarshalPlan, as it now stands, is useful for pedagogical (i.e., teaching) purposes. Moreover, MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use.
2. In MarshalPlan 4.0 there are only brief explanations of some of the evidence marshaling strategies found there. Other marshaling strategies, however, are described and explained more fully. For a comprehensive account of the thinking that went into MarshalPlan, please see the readings mentioned above. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).
3. A few buttons and links may not work. If that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)
4. MarshalPlan 4.0 is not set up to be linked to a database. This is a most serious deficiency for any possible real-world use in a context such as law practice.
C. Instructions
1. MarshalPlan on the web: If you use Firefox 3.x and you are willing to accept a plug-in, you may be able to view MarshalPlan 4.0 in your (Firefox) browser. To try this, click this link.[FROM MY POST OF SEPTEMBER 14, 2012:
I call the current iteration of this app "MarshalPlan 5.5" You can download this app for use on a Windows computer by going tohttp://tillers.net/MarshalPlan.5.5/ and opening the subfolder "Windows" and then clicking on MarshalPlan 5.5exe (NOT MarshalPlan.5.5exe).
- N.B. of 9/17/2012: You will not be able to run this app -- MarshalPlan 5.5 -- on an Apple computer. It seems that Apple OS strips my app of the ability to run on Apple computers. Sorry! {Take your grievance if any to the paternalistic Apple Corporation, which likes closed worlds, particularly those that it controls.}]
[SNIP, SNIP]
Wednesday, August 17, 2011
"Decision Fatigue" in Investigation?
Fact investigation is a dynamic process in which numerous decisions have to be made (and revisited). Should investigators take special measures to avoid decision fatigue? See John Tierney, Do You Suffer from Decision Fatigue? NYTimes (August 17, 2011).
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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 dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.
British Witch Trials and Witness Competency Rules about Children
Adam Roth (a Cardozo Law School student) brought the following interesting article to my attention:
Frances Cronin, The witch trial that made legal history, BBC News Magazine (August 17, 2011).
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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 dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.
Wednesday, August 10, 2011
Junior Faculty Awards and Prizes & Geezers
The other day I saw a news item which reported that an elderly man -- a relatively old man -- was taking legal action against 100 or so law schools for refusing to consider his application for employment. They refused to consider him, he claims, because he's old.
Although I haven't tried to do a legal analysis of this fellow's claim and I have no idea if he is as qualified as he claims to be, my first reaction -- like that of most of my colleagues, I assume -- is that this fellow's claim borders on the ridiculous, at least from the standpoint of common sense if not the law. However, now and then I wonder a bit if the fellow's claim is in fact ridiculous. (Perhaps this is because I am on the wrong side of the young | not-young divide.)
Being of this second mind, I wrote the following ("redacted") letter this morning:
Although I haven't tried to do a legal analysis of this fellow's claim and I have no idea if he is as qualified as he claims to be, my first reaction -- like that of most of my colleagues, I assume -- is that this fellow's claim borders on the ridiculous, at least from the standpoint of common sense if not the law. However, now and then I wonder a bit if the fellow's claim is in fact ridiculous. (Perhaps this is because I am on the wrong side of the young | not-young divide.)
Dear Professor XXXXX:
Apart from being unqualified to to so, I have no wish to submit a paper for [XXX University's] "second annual Junior Faculty Business and Financial Law Workshop and Junior Faculty Scholarship Prizes." However, I wonder if the "overview" in the CFP should say that the "Workshop supports and recognizes the work of young [emphasis added] legal scholars" in various fields. Are all junior scholars young scholars? Even if the law permits you to do so, should [XXX University] limit participation in this event to young scholars or discourage participation by any geezers who also happen to be "junior scholars"?
CFPs such as this one from [XXX University] are everywhere. I address my question to you just by chance.
Sincerely yours,
Peter Tillers
Tuesday, August 09, 2011
The Importance of (Teaching) Fact Investigation
1. Interview with Erwin Chemerinsky, Dean, University of California Irvine School of Law, Top-Law-Schools.com (20??), at http://www.top-law-schools.com/erwin-chemerinsky-interview.html:
N49 See Peter Tillers & David [Schum], A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991).
n50 See Peter Tillers, Introduction: Visualizing Evidence and Inference in Legal Settings, 6 Law, Probability & Risk 1 (2007) (introducing special issue of journal publishing conference proceedings addressing this topic).
6. Roger Park & Michael Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 46 B.C. L. Rev 949, 995 (2006):
7. Robert Rubinson, Mapping the World: Facts and Meaning in Adjudication and Mediation, 63 Me. L. Rev. 61, 74 (2010):
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TLS: How exactly do you plan to go about creating a new model for legal education? In other words, UCI's website says that it plans to "build a new school that is relevant to law practice and legal scholarship in the 21st century and that pushes the frontiers of the profession", and I am curious how exactly you plan to do that?
My central vision for the law school is that it must be oriented towards preparing law students for practice at the highest levels of the profession. This involves both a heavy emphasis on skills and practical experience, and at the same time, a strong interdisciplinary focus.
For example, we have designed a first year curriculum that is innovative and I think achieves these goals. There will be a year long course on lawyering skills, three units each semester. It will focus on teaching skills such as negotiation, interviewing, and fact investigation, as well as writing and research.
- Erwin Chemerinsky, Why Not Clinical Education?, 16 Clinical Law Review 35, 35-36 (2009): “There is a growing recognition that law schools must do a better job of preparing students for the practice of law. …My own ideal would be a model where the first year of law school taught basic legal skills, such as through a lawyering skills class. In addition to legal writing and research, students should learn skills that all lawyers use, such as negotiation, interviewing, and fact investigation skills. … In 2007, I was appointed as dean of a new law school at the University of California, Irvine (UCI). From the outset, I said that our core mission should be preparing students for the practice of law at the highest levels of the profession. … There is a second, more subtle problem with expanding clinical education in law schools: law faculties that are ever more removed from the practice of law. Judge Harry Edwards wrote of this in a powerful article almost twenty years ago.[FN6]My sense is that this has increased since then. The emphasis on inter-disciplinary study, which I applaud, means more law professors with a Ph.D. as well as a law degree, but with no practice experience. My sense is that over the thirty years that I have been a law professor there has been a trend against law professors engaged in legal practice. An ever smaller number of law faculty are actively involved in briefing and arguing cases or handling transactions. …”
2. David Binder & Paul Bergman, FACT INVESTIGATION: FROM HYPOTHESIS TO PROOF xvii (1984) (“[M]any students may be excused for graduating from law school thinking that facts are like starving trout, ready to be reeled in at the drop of a question or two. [par.] Experienced litigators, by contrast, tend to have far fewer misconceptions about the ease of gathering evidence to prove facts.”)
3. Jerome Frank, A Plea for Lawyer-Schools, 56 Yale L.J. 1303, 1303,303-1307 (1947):
American legal education went badly wrong some seventy years ago when it was seduced by a brilliant neurotic. I refer to the well-known founder of the so-called case system, Christopher Columbus Langdell. I call him a neurotic advisedly. He was a cloistered, bookish man, and bookish, too, in a narrow sense. In his student days at Harvard Law School, he haunted the library, poring over the Year Books; he is said to have expressed regrets that he had not lived in the time of the Plantagenets. ...
[Langdell's] pedagogic theory reflected the man. The experience of the lawyer in his office, with clients, and in the court-room with judges and juries, were, to Langdell, improper materials for the teacher and his student. ...
...
This philosophy of legal education was that of a man who cherished “inaccessible retirement.” Inaccessibility, a nostalgia for the forgotten past, devotion to the hush and quiet of a library, exclusion from consideration of the all-too-human clashes of personalities in law office and courtroom, the building of a pseudo-scientific system based solely upon book-materials--of these Langdell compounded the Langdell method.
The neurotic escapist character of Langdell stamped itself on the educational programs of our leading law schools. As a consequence, until a short time ago, most of the teachers in those schools either had little or no experience in active legal practice or, more important, if they had, yet when they withdrew from practice to teaching, they succumbed to an atmosphere in which the memories of practice became shadowy and unreal. The Langdell spirit choked legal education.
...
“Law in action” was a happy phrase. It contained, to be sure, that miserably ambiguous word “law.” Yet it was a pointer or guidepost; it seemed to indicate a new direction. But what university law school has followed the pointer? The phrase “law in action” has remained a phrase; at any rate, so far as legal pedagogy is concerned, the function of the phrase, psychologically, has been to substitute a new verbal formula for revised conduct. ...
...
You will note that I have emphasized trials and trial courts. In that respect, I differ from most law teachers. With a very few notable exceptions, the kind of so-called “law” taught by most professors in the schools consists of deductions from upper-court opinions. The schools, generally speaking, are upper-court law schools. But upper courts, courts of the sort in which I sit, are relatively unimportant for most clients. Why? Because the overwhelming majority of lawsuits are never appealed, and, in most of the small minority which are appealed, the appellate courts accept the facts as “found” by the trial court.
This brings me to the transcendent importance of the facts of cases. A legal rule, principle or standard, says merely this: “If the facts are thus and so, these are the legal consequences.” In a lawsuit, any particular rule, then, should be applied only if the facts invoking that rule's application are found to exist. If you, as a lawyer, assert that a given rule should govern your client's case, you will therefore fail, you will lose your suit, unless either the opposing lawyer concedes that those are the facts, (which he seldom does), or you persuade the trial court (a jury or a trial judge sitting without a jury) that those are the facts.
Now the actual facts in a suit do not walk into the courtroom. For they are past events, events which occurred before the suit began. The trial judge or jury, in most cases (i. e., those in which the facts are disputed) can usually learn about those past facts in but one way--through the court-room narratives of witnesses. The witnesses, being human, may make mistakes in their original observation of the facts, in their memories of what they thus observed, or at the trial in their reports of their memories. Some witnesses deliberately lie. Many others are biased, and, because of bias, unconsciously distort their stories. The trial judge or juries, who are themselves merely fallible human witnesses of the witnesses, must guess which, if any, of the witnesses accurately testify about the actual past facts.
A guess it must be, since there exist no mechanical instruments for weighing evidence or for determining the honesty and accuracy of the respective witnesses. We have not yet perfected a foolproof lie detector; we certainly now have no detector of the unconscious distortions of prejudiced but honest witnesses; and almost surely we will never have a contrivance for correcting a witness' original mistaken observation of the facts.
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Never forget that courts do business at retail, not wholesale. All decisions are specific decisions in specific suits. In advising a client of his rights and duties, a lawyer is attempting to predict, to guess, what decision will be rendered in a specific bit of litigation. Often that requires him, before any suit is begun or even threatened, to guess whether, should litigation arise, there will be a dispute about the facts, and, if so, whether conflicting testimony will be introduced at the trial, and what trial judge or jury will try the case, and what will be the reaction of that as yet unknown trial judge or jury to that as yet unknown testimony.
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Because, fixing their attention on upper courts, they neglect that crucial aspect of court-house government, many leading law teachers do their maximum worst in gravely miseducating their students. Repeatedly they assert that clear and precise legal rules usually prevent litigation, and imply that the difficulty of predicting decisions stems largely from uncertainty in or about the rules. That amounts to saying that if all the legal rules were settled and precise, or if parties to controversies always could agree on the pertinent rules, there would be little or no litigation. That is pure, unadulterated tosh. In most suits, no disagreement arises about the rules, and the disputes relate solely to the facts. Decisions in such suits, says many a professor, quoting Cardozo, leave “jurisprudence ... untouched.” That is true, provided you so conceive of “jurisprudence” that it stays aloof from the affairs of ordinary men. But such a decision often means death or imprisonment or poverty or a ruined life to some mere mortal who, in his benighted ignorance, has more regard for his own welfare than for the aesthetic delights of pure “jurisprudence.”
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As you will see in a moment, I am not advocating a plan for legal education which will produce mere legal technicians. It is imperative that lawyers be made who are considerably more than that. That “more” is alien to the Langdell spirit. That spirit, I grant you, is somewhat weakened. The undiluted Langdell principles are nowhere in good repute today. But they are still the basic ingredient of legal pedagogy, so that, whatever else is mixed with them, the dominant flavor is still Langdellian. Our leading law schools are still library-law schools, book-law schools. They are not, as they should be, lawyer-schools.
3. William Twining, Taking Facts Seriously, in RETHINKING EVIDENCE: EXPLORATORY ESSAYS 12, 23 (1990).
4. Tom Cobb and Sarah Kaltsounis, Real Collaborative Context: Opinion Writing and the Appellate Process, 5 J. ALWD 156, at 173 (2008):
Factual problem-solving is an area that most law schools do not emphasize but which offers tremendous possibilities for context-rich collaboration and for helping students understand important aspects of the legal system. For example, an evidence or factual investigation course could ask students to play the role of jurors and to analyze and evaluate complex chains of inference that flow from a body of evidence.48 Students could then play the role of jurors to get a better understanding of how groups of laypersons work together to make sense of a set of facts with multiple possible inferences. Students could also experiment with innovative collaborative problem solving techniques -- for example using charts or other visualizations to facilitate collaborative thinking about complex evidence networks -- that might have applications in real court rooms.49 Factual problem-solving can also take place from an investigator's standpoint, and students can work together to plan an investigation that will uncover the facts necessary to prove a particular legal standard. At a recent conference about the visualization of evidence in legal settings attended by one of the authors,50 a current U.S. Attorney expressed his wish that law schools would help develop techniques to facilitate collaborative collection and analysis of evidence in complex criminal cases.
N49 See Peter Tillers & David [Schum], A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991).
n50 See Peter Tillers, Introduction: Visualizing Evidence and Inference in Legal Settings, 6 Law, Probability & Risk 1 (2007) (introducing special issue of journal publishing conference proceedings addressing this topic).
5. Bernard Robertson & G.A. Vignaux, Taking Fact Analysis Seriously, 91 Mich. L. Rev. 1442 (1993).
6. Roger Park & Michael Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 46 B.C. L. Rev 949, 995 (2006):
Another thrust of the "New Evidence Scholarship" is concerned with inference and decision making in litigation, with the problem of processing evidence and drawing inferences from it in order to prepare for trial, to try cases, and to decide them. It seeks to develop theories of inference in the litigation context.224 This area of scholarship is concerned with the problem of how lawyers can organize the mass of evidence in a case in a meaningful and effective way to be persuasive to factfinders. How are lawyers to sort through the maze of evidence to determine which propositions that need to be proved are supported by what evidence, in a complex interconnected hierarchy of raw facts, intermediate inferences, and ultimate conclusions?
n224 William Twining, The New Evidence Scholarship, 13 CARDOZO L. REV. 295, 295 (1991). For a leading example, See generally Peter Tillers & David Schum, A Theory of Preliminary Fact Investigation, 24 U.C. DAVIS L. REV. 931 (1991).
7. Robert Rubinson, Mapping the World: Facts and Meaning in Adjudication and Mediation, 63 Me. L. Rev. 61, 74 (2010):
It is also commonplace for advocates and, albeit rarely, scholars,77 to note that the bulk of the day-to-day work of an advocate is "fact investigation," not legal research. Mauet puts it like this: "Most cases are decided by facts, not law . . . . [L]itigators spend much of their time identifying and acquiring admissible evidence . . . that refutes the other side's contentions."78
n77 For a rare rigorous scholarly treatment of fact investigation, see Tillers & Schum, supra note 73.
Monday, August 08, 2011
Curative Admissibility and Due Process
Judge Merritt, concurring in part and dissenting in part, United States v. Geisen, 612 F.3d 471, 497 at 497-498 (6th Cir. 2010) (footnotes omitted):
Four government witnesses were allowed, over the objection of the defendant, Geisen, to testify in great detail about their negotiations with the government to escape prosecution while Geisen was denied the right to testify about his response to the government's offer of the same deal. The court's rulings seem contrary to a number of principles of relevancy usually observed in criminal trials: Rule 401 of the Federal Rules of Evidence provides a broad and inclusive definition of "relevant evidence." Rule 408 allowing "offers to compromise" in criminal cases would appear to allow evidence of the government offer and Geisen's response. When a party "opens the door" by offering proof concerning offers of compromise, the opposing party should be allowed the same opportunity in reply. For a long discussion of this relevancy concept on "curative admissibility," see 1 Wigmore, Evidence § 15, pp. 731-51 (Tillers Revision 1983). The failure to offer the same opportunity in response to similar circumstances comes close to a deprivation of a trial right protected by due process to "question and challenge adverse evidence." Id. at § 7.1, n. 64, p. 505. Although I do not object to the court's decision in this case on the sufficiency of the evidence, I would reverse and remand for a new trial because the trial court rejected important evidence offered by Geisen. Had the jury known that Geisen had been offered the same deal offered to the government's four witnesses, one or more jurors may have believed that Geisen was no more guilty than the witnesses who were spared prosecution and may have believed that his decision was based on a firm belief in his own innocence.
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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, August 05, 2011
The Theory (Bayesiansm) That Would Not Die
See John Allen Paulos, The Mathematics of Changing Your Mind NYTimes (August 5, 2011).
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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 dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.
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