The Meaning of Face-to-Face Confrontation in Canada

Niqab may be worn during testimony: court CBC News Toronto (Oct. 13, 2010):

The Ontario Court of Appeal has ruled that the victim of an alleged sexual assault may not have to remove her niqab while testifying as long as the fairness of a trial is not compromised.

Muslim Woman Wants to Appear Veiled in Canadian Court The World (Dec. 8, 2011):

The Supreme of Canada has heard the case of a Muslim woman who wants to appear veiled in court while she testifies against the two men she has accused of sexual assault.

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Physics, Soup & Legal Reasoning

Anyone with the slightest appreciation of the character of enormous events such as black holes (which might be said to be enormous non-events), see

NYTimes article on the biggest and baddest black hole yet 

and

Wikipedia article on black holes

and 

Hubblesite on black holes (highly recommended)

understandably hesitates to say anything that might reek to the slightest degree of absurd deconstructionist talk -- such as talk about "decentering gravity" (see the Sokal hoax). With this in mind, I pose several comments and questions seriatim (comments and questions I first posed on Google+):

First: A participant in the BISC list (Berkeley Initiative for Soft Computing list) asked an interesting question: Is human knowledge of causality fuzzy or is causality itself (also) fuzzy?

Second: Is it possible or desirable to combine the precision of, say, special relativity (ignore quantum mechanics, please) with fuzzy logic and probability?
Third: It is fair or accurate to say, yes?, that some or many or all models generated by "real physics" -- models such as Newtonian mechanics and special relativity -- make sense only as universal models (at least in our universe, i.e., putting aside a possible multiverse and the like)? If so, is it logically coherent to imagine (only to imagine, I say!) that such models are mechanisms, processes, or structures that exist in an ocean, or soup, of fuzziness? Or is such an image (an image of quantitatively-specifiable islands in a murky and elusive soup) too close -- fatally too close -- to the excesses and absurdities of deconstructionism, postmodernism, and all that (see the Sokal hoax and ridiculous talk about matters such as "decentering gravity")? Does "real physics" allow for the existence of soup, soup with an ontological status, i.e., "real (fuzzy?) soup"?
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[I repeat, here:] Even if I am just speculating, should I be embarrassed to be speculating in this fashion? (N.B. I repudiated Hegelianism, neo-Hegelianism, and all that, decades ago!)
My probable motivation for the speculation found here: I am groping for a way to explain and defend sloppy, soupy (and non-numerical) reasoning (which is prevalent in legal discourse and argument).

New Book on Evidence (and Related Matters)

The following book has finally been officially published: William Twining, Philip Dawid & Dimitra Vasilaki, eds., Evidence, Inference and Enquiry (Oxford & British Academy, 2011).


I have an essay in the book: "Are There Universal Principles or Forms of Evidential Inference? Of Inference Networks and Onto-Epistemology." For an earlier (and free) version of the essay, go here.

The book's table of contents:


Sir Geoffrey Allen: Foreword
1: Philip Dawid: Introduction
2: David Schum: Classifying Forms and Combinations of Evidence: Necessary in a Science of Evidence
3: Jason Davies: Disciplining the Disciplines
4: William Twining: Moving Beyond Law: Interdisciplinarity and the Study of Evidence
5: Philip Dawid; Amanda Hepler; David Schum: Inference Networks: Bayes and Wigmore
6: John Fox: Arguing about the Evidence: A Logical Approach
7: David Lagnado: Thinking about Evidence
8: Jill Russell and Trisha Greenhalgh: Rhetoric and Argumentation in Evidence-Based Policy Making
9: Terence Anderson: Generalisations and Evidential Reasoning
10: Peter Tillers: Of Inference Networks and Onto-Epistemology
11: Nancy Cartwright and Jacob Stegenga: A Theory of Evidence for Evidence-Based Policy
12: Hasok Chang and Grant Fisher: What the Ravens Really Teach Us: The Intrinsic Contextuality of Evidence
13: Alison Wylie: Critical Distance: Stabilizing Evidential Claims in Archaeology
14: David Colquhoun: In Praise of Randomisation
15: Jason Davies: Believing the Evidence
16: Mike Joffe: What Would a Scientific Economics Look Like?
17: Tony Gardner-Medwin: Reasonable Doubt: Uncertainty in Education, Science and Law

Spindle Law Interview: Bill Neukom

See this interview of Bill Neukom

 
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Our Billion Dollar Imperial President

When I arrived at my law school this morning, I found steel barricades in front of the law school (5th Ave.) and along the south side of the building along 12th Street, which was closed to all traffic. I inferred that President Obama would be visiting the neighborhood. Indeed, that is apparently the case: He will be dining for dollars at GOTHAM BAR & GRILL on 12th Street.

I wondered why it was necessary to put up steel barricades more than seven hours before the President's visit.

Then I saw this e-mail to staff at my law school:

President Obama will be attending a fund-raising event this evening on 12th Street. As a result, there are police barricades in the area, which will be set up as early as 5 pm. [They were set up in the morning.] The police will clip the locks and remove any bicycle in the area. 

For those of you who have already brought your bikes to school, we are reserving an area in the third-floor lounge for bicycle storage until the close of the building this evening. However, please be aware that we do not have bike racks available, and that storing it here will be at your own risk, since there will be no security presence. 

If you have not yet arrived at school but were planning on riding your bicycle here, we suggest that you use an alternate form of transportation.

I then wondered whether it is really necessary to remove all bicycles -- without advance notice and without, I assume, due process or just compensation (did he ever get the hang of that due process stuff?) -- and to do so two hours before the President's scheduled appearance.

Well, you know, better safe than sorry! And I reminded myself that this is a worthy President. He plans to raise a billion dollars to get re-elected. Who am I to grouse if some lousy (and not-so-lousy) bicycles are removed so that he can raise more money for himself? It's all for the greater good, isn't it?

• Jimmy Carter, where are you when we need you?

In case you're not feeling Jimmy Carter-like, by all means go to the Gotham Bar & Grill. (Even if George Washington didn't sleep there, the restaurant will be able to say that Barack Obama ate there.)

Postscript: As I pedaled away from the neighborhood, as fast as my legs could manage, I wondered if that colorful little kid's bike locked to a sign at 5th & 12th would also be expropriated in the name of state security. Probably so. (Let the kid get another bike. What's the big deal? It's not as if the kid's parent or parents, who apparently live on 5th Ave., can't afford to buy another one.)

Toilet Paper and the Courts

Toilet paper for a money-starved court system:

State courts around the country have found many ways, some unusual, to deal with the cuts. In Mount Gilead, Ohio, the Morrow County Municipal Court, like many others, is now working a four-day week. And that is not as large a hardship as the county experienced in 2009, when the court announced that it could not take new case filings for three months, until the end of the budget cycle, unless litigants brought their own paper for the court to use. Money for paper had run out.

“Even though paper is inexpensive, it’s still enough to shut us down,” said Judge Lee W. McClelland. Ultimately, he said, people in the community donated enough paper so that “we were able to limp through the year.”

“We also got about three rolls of toilet paper,” he said. “Obviously, they were confused about what kind of paper we needed.”

John Schwartz Critics Say Budget Cuts for Courts Risk Rights NYTimes (Nov. 26, 2011).



NYTimes




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New York Times' Editorial on Legal Education: A Bit of Progress Immersed in Murk

Like most New York Times' editorials, yesterday's editorial Legal Education Reform does not have much analytical depth, but it is an improvement over the position (it's gotta be either theory or practice) taken in the earlier NYTimes article.  Even so, the value of "useless" theory is not considered in yesterday's editorial. So we do not know if the New York Times thinks that stuff such as European medieval legal history belongs in the law school curriculum.
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Although I think it is possible for law school courses to marry theory and practice (I think my course in fact investigation does so) and although I believe that experience in law practice can be an important source of knowledge about law, some of the reasoning in the editorial is positively silly -- and perhaps even dangerous.
For example, in criticizing the Langdellian version of the "case method," the New York Times says, "The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth. [paragraph] That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems."
The New York Times seems to be blissfully unaware that generations of American law teachers who have not viewed the law as a "science" have used the "case method."
Beyond that, I don't know of many legal scholars (including Langdell) who actually thought that law is an end rather than a means. (Hans Kelsen, a German legal theorist of the first half of the twentieth century, may be one of the very few legal scholars who did so. His cast of mind is hardly that of the typical American law teacher either now or in the past.)
Finally, if the New York Times endorses the view that law is a means -- it is not clear that the Times does so -- what does the Times think is the implication of the possible truth of that proposition? Does the Times think that moral or ethical truths or cultural values cannot be extracted from or discerned in the law? Does the Times think that the law is or should be nothing more than a means of social control? In seemingly endorsing the view that law is not a "source of truth," does the Times believe that no knowledge can be gained by the study and observation of the forms of American law? These are not unimportant questions. But the Times' views about such questions are a murky mess.   
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I very much agree that American legal education requires serious reform. I agree that many law teachers who purport and wish only to prepare law students for law practice do a shabby job at their chosen task. But if the New York Times editorial is an example of the kind of thinking that will guide efforts for the reform of legal education, we are better off leaving legal education in the mess it's in now. We can then at least be reasonably assured that at least some attention will be devoted in law schools to important questions without much immediate cash-value -- such as the question of the meaning of the idea and ideal of the "rule of law." (Some people, including the New York Times, have occasionally asserted that this idea(l) is one of the shining jewels of Western civilization and of civilization in general.)
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Thanksgiving Day 2011

Computing with Words? What Is That All About?

Shahram Rahimi, Fred Petry & Elham S. Khorasani, CALL FOR PAPERS (2011) for  Special issue on Computing with Words, International Journal of Intelligent Information Technologies:

The “computing with words (CW)” was first introduced in 1996 by Zadeh as: A computational system in which the objects of computations are words and propositions drawn from natural language. It is inspired by the human remarkable capability to perform a wide variety of physical and mental tasks without any measurements or computations.

There may be no more innovative and daring thinker in the last 50 years than Professor Lotfi Zadeh. Think of it: having invented fuzzy set theory (and fuzzy probability,  etc.), Zadeh was not content. Late in life -- in 1996 -- he proposes "computing with words." Long before 1996, the thesis that our words and concepts make our world had fallen into disrepute in many corners of academia. Zadeh was not deterred. He asserted and asserts that words harbor knowledge and that if we can master that knowledge we can (sometimes? always?) get along in our world without measuring things.

There is, dear Legal Reader, something (quite a bit, I think) to the idea that human beings use words to "compute." If words are surrogates for concepts and ideas and if human beings use "ordinary" concepts (words) to calculate how they shall wend their way through this world of ours, there is nothing so very strange about the idea that human beings "compute with words." In our ordinary lives, this notion of computing with words is not really so strange: We use ordinary ideas (language) to understand and contend with our world. 

But wait! What about science? What about F = MA and all that? And not just science. What about those pictures we form in our heads about the way things stand and work in the world -- ideas and pictures such as "up," "down," "afterward," and so on? What about the pictures we form in our minds of the plumbing beneath our kitchen sinks when we tackle the job of unplugging some drain? All of this knowledge is just a matter of words? Is it also (at least) also a matter of images (or, in any event, something other than [mere?] words)?

We must, I think, find some way to reconcile and accommodate both the kind of knowledge we have and use when we use picture-thinking (and calculus etc.?) and the kind of knowledge that is unquestionably (I think) built into at least some of our "ordinary" (non-spatial? non-mathematical?) language and thought.

Well, there is plainly much, much more to be said about all of this. And some of it will be said, I think, at QJustice2012 in Lisbon, Portugal, May 22-24, 2012. (Come one, come all! Write Rainhard Bengez bengez (at) cvl-a.tum.de or me peter.tillers (at) gmail.com for more information.) Professor Lotfi Zadeh himself will participate (by videolink) in QJustice2012. And so will one or two people -- for example, Joseph Halpern of Cornell -- who disagree with Zadeh on some important points.

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Why It Is Good to Treat Experimental Studies Cautiously

Peter Norvig on 

Warning Signs in Experimental Design and Interpretation

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Decomposition of Judgments about Hearsay Evidence

David Carson & Ray Bull, Handbook of Psychology in Legal Contexts 335 (Wiley 2003):

"The decomposition approach is suggested by the work of David Schum and Peter Tillers (Schum, 1992; Tillers and Schum, 1992  [P. Tillers & D. Schum, "A Theory of Preliminary Fact Investigation," 24 University of California at Davis Law Review 931 (1991)]), who have used 'cascaded inference' models to describe the judgments required to evaluate hearsay evidence. Their models show how a 'global' judgment regarding the overall value of a piece of hearsay evidence can be decomposed into a series of more 'local' judgments about such matters as the observational sensitivity, objectivity and veracity of the declarant and hearsay witness. These models are potentially useful to psychologists because they provide a means for testing the logical consistency of 'global' and 'local' judgments about hearsay (Thompson and Pathak, 1999). A psychologist who is interested in whether information about the reliability of a declarant is correctly integrated into people's global judgments about the value of hearsay, for example, can test to see whether global and local judgments are equally sensitive to that variable.

"The global-local comparison can also yield helpful information about the reasons for people's insensitivity to important factors. If people are insensitive to a particular factor because they fail to appreciate its importance, then both local and global judgments should be insensitive. On the other hand, if people appreciate the factor but are insensitive due to a failure to correctly integrate information about it into their judgments, then the local judgments should be more sensitive to the factor than global judgments."

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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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