Sequelae to "Law School & Law Practice"

I have gathered together some of my comments to my original post "Law School & Law Practice":

Comment 1:

from the same NYTimes article: "'Where do these students go?' says Michael Roster, a former chairman of the Association of Corporate Counsel and a lecturer at the University of Southern California Gould School of Law. 'There are virtually no openings. They can’t hang a shingle and start on their own. Many of them are now asking their schools, "Why didn’t you teach me how to practice law?"'"

Comment 2:

... but I am a fervent believer in interdisciplinary scholarship ... I believe in a triad: (1) Theory 1 (legal theory); (2) Theory 2 (other theory -- e.g., probability, neuroscience, physics, information theory); and (3) Practice (private law practice; drafting legislation; etc.) ... cf. the statement on my personal web site: "The Golden Triad: Theory, Law & Technology," http://tillers.net ...

Comment 3:

the same NYTimes article: "Still others crossbreed law and some other discipline, a variety of scholarship that seems to especially irk John G. Roberts Jr., chief justice of the United States. 'Pick up a copy of any law review that you see,' he said at a conference this summer, 'and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.'"

This sort of anti-intellectualism is most unfortunate (and, in the case of Roberts, surprising). The fact is that _good_ theory is not incompatible with practice. And learning to be a bit reflective wouldn't be bad for lawyers.

Comment 4:

This is the NYTimes article: http://www.nytimes.com/2011/11/20/business/after-law-school-associates-learn-to-be-lawyers.html?_r=2&hpw

After Law School, Associates Learn to Be Lawyers

www.nytimes.com

Law schools have long emphasized the theoretical over the useful, leaving law fi...rms fairly resigned to training their hires how to actually practice law.

Comment 5:

Oh, by the way, Mr. Justice Roberts: Thinking hard about Immanuel Kant's seemingly-odd dictum that it is better for the world to perish than for one innocent person to suffer punishment might be a fruitful way to attack the riddle of "proof beyond a reasonable doubt." It might even be useful to know what befell a country (Bulgaria? really?) that tried to put Kant's dictum into practice. (A long-ago conversation with some South American legal scholars leads me to believe that Chile or Argentina might be a more apt case study.)

Comment 6:

I am thinking about Roberts (Justice) and the NYTimes article once again: Why is the debate over teaching Theory or Practice so simple-minded? Have Justice Roberts and the NYTimes ever heard of "necessary but not sufficient" or of the fallacy of the excluded middle? Is it not possible to say (as I suggest), not only that (some) "theory" is is part of effective training for law practice, but also that law schools can teach BOTH practice and "useless" theory, that they can prepare students sufficiently for law practice even if they devote some energy to teaching stuff that does not demonstrably improve "practice skills" as commonly understood? If so, is there not a case for teaching stuff that, e.g., gives law students a general vision or sense of the nature of the rule of law or the function(s) of law in society? (Yes, there is.) But I don't want to be a Pollyanna: It is probably true that there is a tradeoff between teaching students "useless" theory and teaching them how to be effective members of the "bar" (in Justice Roberts's sense). But perhaps some tradeoffs are acceptable for the sake of training "broad-minded" lawyers: perhaps it's OK to give students a pinch of "useless" theory at the price of a mote of preparation for law practice, yes? (That being said, law schools perhaps should not ignore the needs of law practice to the extent that some of them perhaps do.)

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Law School & Law Practice

 "One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital." (David Segal Law Schools That Teach Little About Legal Practice New York Times (Nov. 19, 2011)

I practiced law for a few years; I was a litigator. I teach a course in fact investigation. The course tries to marry theory and practice. I am proud of the course; I have long thought it does useful things. But perhaps I should start calling the course "revolutionary"!?!

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How Law Schools Try to Win Friends and Influence People

Joe Palazzolo, Law School ‘Porn’: On the Merits, WSJ Blogs (Nov. 17, 2011):

Let’s take a late-morning break to talk porn. Law school porn — those slick mailers law schools send this time of year to influence voting in the U.S. News & World Report’s reputation survey, which is based on voting by legal educators, lawyers and judges, and accounts for 40% of a school’s ranking score. 

The National Law Journal, in this story, picked up on a debate among law professors over whether law schools’ dollars aren’t better spent on, um, education.

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The free market at work.

It's a brave new world.

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Spindle Law Interview of Joan Biskupic

Spindle Law Interview: Joan Biskupic

Picturing Evidence Argument

Software tools make it easier than ever to picture argument from and about evidence. The hard work is now mainly mental.

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Academic Fraud at the University of Illinois Law School

Mark Hansen [University] of Illinois Law School Admits To Six Years of False LSAT/GPA Data ABA Online (Nov. 7, 2011)
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The Role(s) of Analogy in Reasoning

John F. Sowa, a proponent of conceptual graphs, believes that analogy plays a key role in all or almost all reasoning:

6. Analogy and Case-Based Reasoning

Based on the same kind of pattern matching as perception:
● Associative retrieval by matching patterns.
● Approximate pattern matching for analogies and metaphors.
● Precise pattern matching for logic and mathematics.

Analogies can support informal, case-based reasoning:
● Long-term memory can store large numbers of previous experiences.
● Any new case can be matched to similar cases in long-term memory.
● Close matches are ranked by a similarity measure.

Formal reasoning is based on a disciplined use of analogy:
● Induction: Generalize multiple cases to create rules or axioms.
● Deduction: Match (unify) a new case with part of some rule or axiom.
● Abduction: Form a hypothesis based on aspects of similar cases.

Sowa's diagram:

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A Cautionary Note about Research in Psychology

The fraud case described in this NYTimes article has raised important questions about research in psychology that reach beyond the problem of fraudulent data.

Snippets from the article:

A well-known psychologist in the Netherlands whose work has been published widely in professional journals falsified data and made up entire experiments, an investigating committee has found. Experts say the case exposes deep flaws in the way science is done in a field, psychology, that has only recently earned a fragile respectability. 

The psychologist, Diederik Stapel, of Tilburg University, committed academic fraud in “several dozen” published papers, many accepted in respected journals and reported in the news media, according to a report released on Monday by the three Dutch institutions where he has worked: the University of Groningen, the University of Amsterdam, and Tilburg. The journal Science, which published one of Dr. Stapel’s papers in April, posted an “editorial expression of concern” about the research online on Tuesday. 

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Researchers in psychology are certainly aware of the issue [unclear antecedent]. In recent years, some have mocked studies showing correlations between activity on brain images and personality measures as “voodoo” science, and a controversy over statistics erupted in January after The Journal of Personality and Social Psychology accepted a paper purporting to show evidence of extrasensory perception. In cases like these, the authors being challenged are often reluctant to share their raw data. But an analysis of 49 studies appearing Wednesday in the journal PLoS One, by Dr. Wicherts, Dr. Bakker and Dylan Molenaar, found that the more reluctant that scientists were to share their data, the more likely that evidence contradicted their reported findings. 

“We know the general tendency of humans to draw the conclusions they want to draw — there’s a different threshold,” said Joseph P. Simmons, a psychologist at the University of Pennsylvania’s Wharton School. “With findings we want to see, we ask, ‘Can I believe this?’ With those we don’t, we ask, ‘Must I believe this?’ ” 

But reviewers working for psychology journals rarely take this into account in any rigorous way. Neither do they typically ask to see the original data. While many psychologists shade and spin, Dr. Stapel went ahead and drew any conclusion he wanted.

Supreme Court Weighs Eyewitness Identifications

Adam Liptak of the New York Times provides a useful account of oral argument before the Supreme Court about constitutional limitations on the admissibility of eyewitness identifications (for the prosecution) in criminal trials.


Some of the more interesting comments by the Justices:

“Why is unreliable eyewitness identification any different from unreliable anything else?” (Justice Scalia)

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

Justice Ginsburg:

Justice Ruth Bader Ginsburg also seemed skeptical about the need for a special constitutional rule.

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.

General:

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”

Justice Kagan:

The primary point of excluding eyewitness identifications that were prompted by the police, said Michael A. Delaney, New Hampshire’s attorney general, was to deter police misconduct rather than to address unreliable evidence more generally.

Justice Kagan disagreed. “Well, it’s both,” she said. “The court has certainly talked about deterrence, but the court also has very substantial discussions in all of these opinions about reliability. And from the criminal defendant’s point of view, it doesn’t really much matter whether the unreliability is caused by police conduct or by something else.”

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John McCarthy, Inventor of "AI" and a Founder of AI, Dies

Sad news: David Perlman John McCarthy, computer science trailblazer, dies Sf Gate (Oct. 29, 2011).

McCarthy was, among many things, a serious student of  "common sense."

A Comment on Lotfi Zadeh's Questions about Causality

In response to Lofti Zadeh's questions about causality I posted the following comment to the BISC Group list:

I want to say a few words about causality from a legal perspective, mainly from the standpoint of (my view of) what goes on in lawsuits and trials:

1. Lotfi is certainly correct that the law takes the view that events – almost all events, in any case – have multiple causes.

2. The law frequently takes the view that there are degrees of causation – that some automobile accident was caused, e.g., “to a substantial extent” by some defendant's actions or carelessness.

3. But it is hard to speak of a unitary theory of causality in law. For example, in litigation normative responsibility and factual causation is often lumped together. Even when factual and normative components are distinguished, the law often speaks only in a “commonsense” way about causation.

4. In the wave of lawsuits and cases involving technical and scientific evidence (a wave that has been passing over us in the United States for more than half a century), there are frequent attempts to develop or use something other than commonsense notions of causation. For example, scientists are routinely invited to testify about their opinions of the cause or causes of this or that disease or this or that failure of some machinery. However, in these cases the scientific or technical models of causality (when they're offered, which is not always) do not usually supplant the law's commonsense view of causation. There are various reasons for this. One reason, I think (see my next post), is that many scientific causal accounts of events depend to some degree on idealized circumstances (e.g., a “complete vacuum”) and in legal contexts there is often a question of the extent to which those idealized conditions existed and, if they did not perfectly exist, to what extent the scientific causal account in question holds for the event or events or states that are in issue in the particular lawsuit or trial.

But note: Much or most expert epidemiological evidence presented in trials does not even purport to be a causal account; much of this sort of evidence is portrayed by those who present it in trials as “purely statistical.” The same can be said of other types of (statistical) expert and scientific evidence presented in trials.

5. I have personally struggled at great length over what are sometimes thought to be the competing claims or Bayesianism and fuzzy logic. I belong to the camp that thinks that these two approaches to uncertainty, vagueness, and similar matters are not necessarily mutually exclusive. I am not a mathematician or logician, but I personally find that fuzzy logic approaches to semantic and conceptual vagueness are more intuitive and illuminating than Bayesian accounts (even though perhaps one cannot deny that Bayesian logic seems to work to some extent in contexts such as Google searches, but then I have been led to believe that fuzzy logic is also very important for Google searches). For partly this reason, the reflective part of my nature is inclined to think that fuzzy logic is a natural and powerful way of thinking about the way the law thinks of causality. The law's notions of causality are extraordinarily vague (though not always extraordinarily disordered)!

6. The next question that always comes to my mind is what the contribution of fuzzy logic to actual legal practice (e.g., trials) can be when (as is almost always the case) the law “believes in” – or assumes – that there are causes, that we live in a world in which there are causes, and undertakes (e.g., in lawsuits) to gather evidence about causes and to that end allows the legally-authorized trier (or “finder”) of fact to hear what are generally regarded as causal accounts – be they Freudian psychoanalytic accounts, accounts based on Newtonian mechanics,  accounts about the mechanisms involved in the transmission of AIDS, and so on. My inclination is to believe that in these investigations there has to be a way to marry fuzzy logic to causal reasoning if fuzzy logic approaches are to be useful – because in some circumstances (though definitely not in all) the law simply will not abandon its belief in or supposition of causes and effects.

7. Despite my puzzlement about the matter just mentioned in par. 6,  I have a sort of global admiration for fuzzy logic because of my belief that (i) causal explanations of specific phenomena are generally necessarily incomplete both for specific events (“What made Jimmy's car cross the median”?) and (ii) causal accounts are necessarily incomplete theoretically speaking – simply because knowledge of causes of space-time events (if such causes exist) are necessarily imperfect –because human knowledge of the cosmos is necessarily partial. If you grant what I have just said, the capacity of formal scientific models to work and make fairly accurate predictions is something of a mystery. But the same is true of everyday commonsense knowledge of the world: Commonsense  knowledge, language, concepts, etc., sometimes or often “work” even though they seem to rest on partial knowledge. This leads me to an inference (and I wonder what all of you think of my naïve insight): Ordinary language and concepts harbor much tacit but genuine knowledge – and this is what makes fuzzy logic useful, what makes some or many fuzzy logic applications possible. Supposing that this drift in my thinking has some validity, I am led to wonder whether formalizations of fuzzy legal ways of talking and thinking about causation might in some sense improve (and not just describe) the law's effort to “establish” the cause or causes of this or that event, events, state, or states. I await edification from the BISC community!

Fuzzy Logic & Causality

Lotfi Zadeh asks some questions about causality:

Dear Members of the BISC [Berkeley Initiative in Soft Computing] Group:

    Few concepts are as pervasive as the concept of causality. Causality has a position of centrality in medicine and legal reasoning. Causality is pervasive in everyday reasoning and decision-making. But what is widely unrecognized is that in the enormous literature of causality what cannot be found are theories which work in real-world settings--settings in which information is uncertain, imprecise, incomplete or partially true. If you know of a working theory developed by yourself or others, please bring it to my attention. I will admit that I am wrong if you are right.

    All theories of causality founder on the rocks of multicausality. The problem is that in real-world settings multicausality is the norm rather than exception. I find it helpful to talk about multicausality in the context of a prototypical example which I call the Raincoats Problem, or RP for short. I am a manufacturer of raincoats. I would like to increase my sales. To this end I increase the advertising budget by 20%. Six months later sales have risen by 10%. Was the increase in sales caused by the increase in the advertising budget? Can a theory of causality come up with an answer to this simple question? This is the litmus test. What is the problem? The problem is that the increase in sales may have been caused by a variety of causants other than the increase in the advertising budget--causants such as rainy weather, improvement in economic conditions, lowering price of raincoats, etc. Some of the causants may be known and some not. Given this setting, the question should be restated as: To what degree was the increase in sales caused by the increase in the advertising budget? It is this question that cannot be answered by existing theories. In existing theories, causality is not a matter of degree--as it should be. What should be underscored is that the degree of strength of causality is not the same as the probability of causality. What is the meaning of: The probability that the increase in sales was caused by the increase in the advertising budget, is 0.8? 

    In the case of RP, a theory of causality should suggest a procedure for assessing the degree to which the increase in sales was caused by the increase in the advertising budget. One such procedure may involve interviewing all purchasers of my raincoats, to identify in each case what led to the purchase of a raincoat? The problem is that no such procedure can be devised. The problem becomes more apparent when the advertising budget is increased by 20% but the sales declined by 10%. Consider the question: Was the 10% decline in sales caused by a 20% increase in the advertising budget? How should it be interpreted? Can an existing theory of causality deal with this question? 

    As an underlying issue, causality plays an important role in political debates. Was the financial crisis caused by Wall Street? To improve the economy, the Federal Reserve lowered the interest rate from 1% to 0.8%. Six months later, the economic activity rose by 5%. Was the increase in economic activity caused by lowering the interest rate? Will a particular initiative cause a decrease in unemployment? Is Obama's stimulus program a success or failure? What lessons can be drawn from RP to answer such questions?

     A sobering thought is that no theory of causality can answer such questions. Is Obama's stimulus program a success or failure? Republicans argue that it is a failure because the unemployment rate remains above 9%. The democrats can argue, counterfactually, that it is a success because without the stimulus the unemployment rate would be over 12%. The problem is that counterfactual arguments are much less convincing than factual arguments. Nevertheless, the fact remains that in the instance of political debates, most causality assertions can neither be proved nor disproved. It would be much more realistic to accept that basically causality is a matter of degree. Once this is accepted, debates will become less polarized. A fundamental conclusion is that in realistic theories of causality, causality should be a matter of degree. To put it another way, realistic theories of causality should necessarily be based on fuzzy logic. Having said that, a word of caution is in order. Introduction of degrees into theories of causality is an undertaking which is far from simple to formalize. Comments are welcome. 

    Regards to all,

    Lotfi

-- 
Lotfi A. Zadeh 
Professor in the Graduate School
Director, Berkeley Initiative in Soft Computing (BISC) 

Address: 
729 Soda Hall #1776
Computer Science Division
Department of Electrical Engineering and Computer Sciences
University of California 
Berkeley, CA 94720-1776 
zadeh@eecs.berkeley.edu 
Tel.(office): (510) 642-4959 
Fax (office): (510) 642-1712 
Tel.(home): (510) 526-2569 
Fax (home): (510) 526-2433 
URL: http://www.cs.berkeley.edu/~zadeh/

BISC Homepage URLs 

URL: http://zadeh.cs.berkeley.edu/

A Possible Difficulty with Subjective Bayesian Argument

Hykel Hosni, "...Uncertain Reasoning," 5 The Reasoner No. 11, 196, 197-198 (November, 2011):

Going back to [Andrew] Gelman’s analysis of the standard view, he points out that one very negative consequence of subscribing to the bayesian bundle, is that it encourages bayesians to cultivate the bad habit of disregarding model checking. This, according to Gelman, depends crucially on the subjective view of probability which Bayesians embrace. One is easily reminded here of the classic line by F.J. Anscombe: “To anyone sympathetic with the current neo-Bernoullian neo-Bayesian Ramseyesque Finettist Savageous movement in statistics, the subject of testing goodness of fit is something of an embarrassment”, F.J. Anscombe (1963, “Tests of Goodness of Fit”, Journal of the Royal Statistical Society. Series B Vol. 25, No. 1, pp. 81-94).

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A Very Interesting Monthly Magazine: The Reasoner

Some of you may not be aware of the online monthly magazine The Reasoner. If you are philosophically inclined or are interested in matters such as logic, argumentation theory, and inference, I strongly suggest you subscribe (free) to this magazine.

The magazine's own blurb describes itself this way:

The Reasoner (www.thereasoner.org) is a monthly digest highlighting exciting new research on reasoning, inference and method broadly construed. It is interdisciplinary, covering research in, e.g., philosophy, logic, AI, statistics, cognitive science, law, psychology, mathematics and the sciences.

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Clifford Winston Asks: Are Law Schools and Bar Exams Necessary?

Clifford Winston Are Law Schools and Bar Exams Necessary? New York Times (Oct. 24, 2011)
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Thinking about and Picturing Places and Events in Time

Long ago a perceptive acquaintance suggested that time lines are not enough. Space-time lines are needed, he said. He had a point.

These particular space-time lines are designed to show, not the movement of things in time, but to show events over time associated with specific places (lots).

A more sophisticated version of this idea would have four dimensions (and would facilitate visualizing the movement of things and persons in space).

But some or many events associated with specific places happen in other places. Tricky complications.

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A Lesson in Probability by the Massachusetts Supreme Judicial Court

A slight shudder goes over me when I realize that I am about to encounter another judicial disquisition on probability and factual inference.

I will give you the citation first, and I will discuss the opinion in a later post or posts: Commonwealth v. Ferreira, No. SJC-10902, 2011 Mass. LEXIS 977 (Oct. 21, 2011).

But I feel compelled to make very brief comment on two points now:

1. The case involved a pretrial identification. The prosecutor made an off-the-cuff argument about the improbability that the victim would have picked, out of two photo arrays containing a total of 14 people, two suspects who happened to know each other. Whether or not the court got the final result right, the court failed to understand the point of the prosecutor's argument about random selection.

2. Whether or not the court got the final result right, the court -- like practically every other court before it -- parroted vacuous and misleading cliches about the non-mathematical character of the reasonable doubt standard:

The prosecutor also erred in equating proof beyond a reasonable doubt with a numerical percentage of the probability of guilt, in this case, ninety-eight per cent. "[T]o attempt to quantify proof beyond a reasonable doubt changes the nature of the legal concept of 'beyond a reasonable doubt,' which seeks 'abiding conviction' or 'moral certainty' rather than statistical probability." Commonwealth v. Rosa, 422 Mass. 18, 28 (1996). "The idea of reasonable doubt is not susceptible to quantification; it is inherently qualitative." Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 806 (1985). See Commonwealth v. Mack, 423 Mass. 288, 291 (1996) ("the concept of reasonable doubt is not a mathematical one").

Compare P.Tillers & J. Gottfried, United States v. Copeland: A Collateral Attack on the Legal Maxim that Proof Beyond a Reasonable Doubt Is Unquantifiable?, 5 Law, Probability and Risk 135 (Oxford University Press, 2006).

David Brooks on Daniel Kahneman and Human Irrationality

The New York Times Columnist David Brooks writes in praise of Kahneman & Tversky. He emphasizes the tendency of the work of Kahneman & Tevrsky to show that fhuman beings frequently act irrationally. Fair enough. But what Brooks needs to emphasize a bit more is that subconscious processes have both successes as well as failures -- and it is possible that the rate of success is as striking as or even more striking than the rate of failure. If that weren't the case, we probably would all have been dead a long time ago.

The question of to what extent and under what circumstances "unthinking" human beings make mistakes is pertinent to many debates about evidence in legal cases -- for example, about false eyewitness identifications. The proponents of eyewitness identification reform sometimes exaggerate the relative frequency of incorrect identifications and perhaps underestimate or underplay the capacity of the legal system to correct for such errors (for example, by allowing or insisting on multiple lines of evidence of identity and by allowing adversaries to test the accuracy of eyewitness identifications by using devices such as cross-examination and evidence about witnesses' eyesight and the circumstances under which an identification was made).

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Spindle Law Interview of Arthur Bryant

See the Spindle Law Interview of Arthur Bryant

MarshalPlan 5.0 in Your Browser (Firefox)

I just discovered, to my pleasure and surprise, that MarshalPlan 5.0, the most recent version of my evidence marshaling software, runs in Firefox 4.0 as well as in Firefox 3.x.  To give the most recent iteration of MarshlPlan a trial spin, using Firefox 3.x or 4.0, click on this link and, when asked, accept the plug-in.

MarshalPlan 5.0, unlike MarshalPlan 4.0, has a stack that facilitates planning for the order of submission of evidence at trial.

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