Cultural Studies

Now I'll have a chance to see how evidence and inference look from (i) the Alps and (ii) Turkey.

I'll report my findings in three weeks.

Non-Network Networks of Non-Network Networks: Non-Deterministic Evidence Marshaling Strategies and Time's Wiles

There are different "templates," or intellectual strategies, for organizing evidence associated with possible and actual legal proceedings: e.g., webs of evidence & conditional inferences, time lines, scenarios, narratives, possibilities (hypotheses suggested by evidentiary details), and legal rules and their elements. See P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation.

In some U.S. legal literature there is talk about "non-bank banks," institutions that work much like banks, but are not quite banks. In the same spirit: It may be appropriate to refer to the "templates" mentioned above -- time lines, etc. -- as "non-network networks" -- because, although each of the ingredients in each of the templates (viz., patterns of marshaling evidence) interacts with and influences one or more ingredients in its template, given the non-recurring nature of the evidence typically found in legal proceedings, it is possible -- nay, it is likely -- that the uncertainties associated with each of the ingredients in each of the enumerated templates (marshaling methods) propagate to other ingredients in the same network in non-deterministic ways, which means that human judgment and intuition must do their work at each step.

If real-world inference typically involves (as I think it does), the use of a set of such evidence marshaling methods ("templates" for organizing evidence and thought about evidence) rather than any single evidence marshaling strategy, it is probably also appropriate refer to such collections of evidence marshaling methods as non-network networks -- because, although each evidence marshaling method interacts with and influences one or more other evidence marshaling methods, these interactions are also non-deterministic, which means, again, that human judgment and intuition must do their work at every step.

Things get worse yet -- at least for people who would like to have deterministic or quasi-deterministic methods or strategies for assessing evidence and facts, evidence marshaling strategies that strictly or substantially regulate or channel human inference in litigation -- , things get yet worse for people so minded when time enters the picture -- because when time enters the picture -- i.e., when the assessment of evidence and facts becomes dynamic -- the number of inferential possibilities generated or suggested by the various non-network evidence marshaling networks readily and frequently explodes. Cf. P. Tillers, Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation. Worse yet, sometimes it may become almost impossible to predict the new inferential possibilities that will emerge as time works its will and, consequently, sometimes it may be next to impossible to anticipate the inferential and investigative tasks that a rational trier of fact would want to perform (if she were in a position to do so) before possible future states of the world (including the institutional legal world) become realities. Cf. Id; P. Tillers, The Explosive Dynamic Complexity of Evidentiary Processes

So, when time enters the picture, there is a very real chance that the inference problems that are associated with legal proceedings or possible legal proceedings will become quite like mush, rather like a mess of pottage -- if, that is, such problems haven't already become mushy as a result of the complex and non-deterministic interactions among individually-complex and non-deterministic patterns of evidence marshaling!

This is the sort of conclusion toward which I seem to be heading. Do you, Gentle-but-Critical Reader, have any words of warning or wisdom for me before I rush or stumble along to such a desultory conclusion?

N.B. Is the conclusion "desultory"? And even if the anticipated conclusion is valid, does it follow that mushy methods of evidence marshaling becoming dispensable, unnecessary? Even for the participants in investigation and proof in and for litigation? For example, would you advise lawyers to forget about organizing evidence on the basis of the elements of claims and affirmative defenses? But if not, does it follow that the system in which such participants must play is "rational"? Or does the need of players to use certain methods of organizing evidence merely show that under certain institutional conditions, all participants must play a game of blind-man's-buff?

Postscript: Some of the above matters (and many much more interesting questions about probability [in arenas other than law]) will be discussed at the Konstanz 2003 International Summer School. Join us!

Elvis and Wigmore Sightings

Elvis Presley is reported to have died in 1977; John Henry Wigmore reportedly died in 1943. There are persistent reports, however, of post-1977 sightings of a living and breathing Elvis. There are almost as many reports of post-1943 sightings, if not ordinarily of a living Wigmore himself, then of Wigmore's post-1943 handiwork.

It is not easy to discount all of the reports of (allegedly!) posthumous appearances of Wigmore's handiwork. For one thing, many of these sightings are by estimable and knowledgeable judges and courts. For another thing, there have been many, many post-1943-Wigmore-handiwork sightings: numerous courts and judges -- one cannot treat them all as cranks! --, numerous judges and courts have reported seeing statements penned by Wigmore that appear to have been written after 1943. For example, very recently a judge of the Florida Supreme Court reported that Wigmore had stated that

single inferences, though weak when taken individually, may be substantial and powerful when added together . . . . The probative strength of an underlying inference is a factor that affects the strength of the final factum probandum, but . . . no mechanical rule can be laid down concerning how strong any underlying inference must be. The question is not whether any given inference in a chain is too weak but is always whether, in view of all patterns of corroborating and contradicting evidence at all levels of all inferential chains, the final factum probandum has been shown to the degree of likelihood required by the applicable standard of persuasion . . .

Castillo v. E.I. du Pont de Nemours & Co., 2003 Fla. LEXIS 1159, 52*-53* (July 10, 2003) (Pariente, J., concurring, joined by Anstead, C.J.).

 

Judge Pariente traces the quoted language to the 4th edition of Wigmore's massive treatise on the law of evidence; the source of the quotation was said to be 1A John Henry Wigmore, Evidence in Trials at Common Law, § 41, at 1138 (4th ed., 1983).

While it is true that volume 1A first appeared in 1983, it is of course possible that the language quoted by Judge Pariente is indeed Wigmore's handiwork. Volume 1A is a part of a revision of the third edition of volume 1. The third edition of volume 1 of the Treatise appeared in print in 1940, well before Wigmore's death.

I am compelled to report, however, that I took a gander at the third edition of Wigmore's Treatise and I regret to report that the language quoted by Judge Pariente does not appear in the 1940 edition. But by itself this possible fact again proves nothing. (Not for nothing am I a professor of Evidence!) It is possible that Wigmore wrote the quoted passage and left it for a reviser to insert it into a subsequent revision of his Treatise. Furthermore, it is also possible that Wigmore lives!

Being puzzled by this puzzle of possible post-mortem scholarly activity, I resolved to speak directly, not with Wigmore himself, but, at least, with the reviser ("revisor"?) of volume 1. He assured me that he, and not Dean Wigmore, had penned (typed, to be precise) the passage quoted by Judge Pariente.

Now I happen to know the reviser well; I am personally acquainted with him. Nevertheless, the question of whether Wigmore is still alive cannot be seen as having been conclusively resolved. Despite my personal friendship with the reviser, I cannot claim that I have an ironclad guarantee of the reviser's credibility. (I trust that a scholar's privilege will protect me from any defamation action.) Furthermore, the quoted passage is so penetrating, so intelligent, so persuasive, and, ...well, ... so dogmatic (dare I say), that a reasonable person would have to conclude that only a person of Wigmore's stature and character could have crafted it!

What say you, Gentle-but-Critical Reader?

Causation, Explanation, and (what shall we call it?) Quasi-Intuition, a wee bit of Tacit Knowledge, or a touch of Unknowing Knowing

One possible escape from the riddle of causation and inference that I have been exploring is the notion that there is a distinction between causal theory and explanation: there are (some observers think) valid or good explanations that are not yet -- or theories or accounts that fall short of -- potentially deeper causal theories or explanations.

If this distinction between causal and other explanations works, it provides a solution to the mystery of why "mere association" bereft of causal theory works. The suggested answer: sometimes mere association is not mere association at all: the so-called mere association sometimes rests on an explanation.

But in science -- and perhaps (one hopes) in other fields as well -- mere explanation is not enough, an explanation must be a good explanation).

In science -- and, again one hopes, in other intellectual domains as well -- a theory, even a "merely explanatory" one [n.b., my phrase], must prove its mettle, it must be put to the test. In science this often means that it must be shown that the theory or explanation in question can predict the occurrence or non-occurrence of phenomena or events better than pot-shot strategies do, better than helter-skelter guessing does.

By embracing "explanation" some theorists do seem to be advancing the claim that a theory short of a causal one can achieve have predictive force, that it can achieve a genuine understanding of Nature without having in hand anything that we might call a theory of what causes Nature to act as it does.

But if explanation sans causality can achieve such understanding -- if it can indeed have this kind of epistemological power --, a big question quite naturally arises:

How? How does "explanation without causation" achieve such understanding?

The difficulty here is that a "mere explanation" falls short (by hypothesis) of a causal theory: it is short of, it is less than, a theory that rests on an understanding of the mechanisms or principles that (may) underlie phenomena and events in nature.

The move to "explanation" suggests that those who make this move accept the notion that ignorant human beings can (somehow) achieve (scientific) understanding. Paolo Garbolino -- revealingly and perceptively -- points to this issue (and attempts to resolve it) by suggesting that the proper epistemological alternative to reliance on (i) causal explanation and, alternatively, (ii) statistical explanations is the deployment of (iii) "potential explanatory accounts" [P. Garbolino, "Explaining Relevance," The Dynamics of Judicial Proof: Computation, Logic, and Common Sense 179, at 187-191 (M. MacCrimmon & P. Tillers, eds., Physica-Verlag, 2002].

A problem is not solved merely because it is named -- even if the name happens to be a seductive word such as "explanation." (But, note, attaching a name to a problem or process sometimes does advance understanding "simply" by identifying a problem, phenomenon, or process).

The label "explanation" does not fully explain -- but whoever thought it would? --, the label "explanation" does not resolve the question of how ignorant human beings -- human beings who lack a full understanding of Nature and the mechanisms or principles that drive or explain it --, a phrase such as "explanatory theory" does not by itself explain how such ignorant human beings sometimes manage to make very good judgments about the behavior of Nature.

The riddle just posed may provide us with part of an answer; it may at least yield or suggest a useful "non-answer answer," viz., a partial answer that helps even if it does not altogether satisfy the hunger for knowledge.

The non-answer answer I have in mind is that human beings know more than they know, they have understanding that eludes their comprehension, they have some tacit knowledge.

There can no longer be any serious doubt that this is the case; it is no longer possible to doubt that people have knowledge that they cannot articulate, spell out, make (fully) explicit. (This general insight is not new; it goes back at least to Plato.)

But, of course, there is at least one big problem with being told that you know more than you know, that you already have much knowledge: sometimes -- and now is one of those times! -- you would like to know more than you now know. Does it do any good to be told you know more than you know? For example, does the notion of unknowing knowing tell us -- or help us to decide -- how a judge should instruct a jury to think about evidence that suggests that this or that substance causes cancer or does or when if ever evidence that this or that substance causes cancer or did cause cancer should be withheld from a jury?

So -- to repeat the general question -- is the notion of unknowing knowing helpful?

Possibly.

I must, alas, suspend discussion of this big question for now. But let us leave our conversation (are we having a conversation?)--, let us suspend this discussion with one caveat in mind: no theory of knowing that fails to account for advances in human knowledge can satisfy. It is true that know more than we know. But we also manage to learn; there are new things -- and new insights -- under the sun; and knowledge -- including our knowledge of how we know -- is not entirely circular.

In Response to Popular Demand: Causality and Inference: Back to Basics

Consider conditions X, A, and B.

We have observed conditions A and B.

We suspect condition X but we have not observed or studied it.

We have observed -- but only to the extent that we have observed -- that A almost invariably follows B. We have also observed that A rarely or never occurs when B does not occur (whether before A or after A).

In the absence of further observations, can we view B as a pretty good or excellent indicator of A?

In the absence of further observations, can we presume that B is a cause of A?

Can we say "yes" to the former question if we are unwilling to say "yes" to the latter?

Now suppose that A is "motorcycle trashing"; and that B is "motorcycle tattoo on forearm."

We might well think that it would be unwise to try to do away with motorcycle trashing A by doing away with motorcycle tattoos on forearms B. We might be so inclined to think because even though we have seen (thus far) that motorcycle trashing A always or almost happens when motorcycle tattoos on forearms B (of the eventual culprits) are present, we might have strong doubts that motorcycle tattoos on forearms B cause motorcycle trashing A. We might instead suspect that some third factor (e.g., X, which happens to be "gang membership") causes both motorcycle tattoos on forearms B and motorcycle trashing A.

But, if we suspect that factor X is lurking in the background, perhaps causing both B and A, and, if we believe that X, if present, may expose B as a spurious cause of A -- we may believe this, perhaps, because we may believe that further investigation will show (we suspect) that if a potential culprit is a gang member, this factor of gang membership makes the probability of motorcycle trashing high and, furthermore, that any added information about a tattoo on the potential culprit's forearm would add nothing to the probability that the potential culprit trashed a motorcycle -- if, in short, (we strongly suspect) the following pattern of causal influence obtains

 

 

		X
	/		\
A				B

 

If we suspect that this pattern of causal influence obtains -- or if we suspect that it just cannot be that motorcycle tattoos on forearms increase the frequency of motor trashing or makes motorcycle trashing more probable -- does it follow that we should forego the use of B as evidence of A -- if, for example, (i) we have not made any observations in the past to confirm our suspicion about the causal potency of X (or some other factor); or -- alternatively -- (ii) we have made such observations about X but in this case we happen not to know if X -- gang membership -- is or is not present?

Note: In situation #(ii) the occurrence of B may be a good indicator of the (prior) existence of X. If so, the failure to observe X directly may be immaterial. So focus on scenario #(i) in the question directly above.

In the absence of something like causation -- or, if you prefer, in the absence of some "natural stability" in the phenomena that we may observe --, it may turn out that the observed connection (in the past) between A and B is just an accident, a coincidence and, thus, cannot be trusted to recur. This thought is what gives the belief in the importance of causality for inference its power! But ..., again, does it follow that human beings should abandon reliance on all "mere associations" when they are bereft of an articulable causal theory (or when they have no evidence to support whatever choate or inchoate causal theory they may happen to entertain)? But, by the same token, it really is true, isn't it, that mere association is not enough? The world is full of coincidences -- and you can find them (easily! everywhere!) -- you can find meaningless coincidences all around you -- if you just look for them.

Further Comments and Questions about Causality and Inference

Comment 1: Even if you are a believer in causation -- even if you believe that events in the space-time continuum can and do influence later events --, you may reject the intimation in my last blog that you (as a believer in causality) must believe in some underlying mechanism, some device or process that lies in some substratum, in some stratum below the level of phenomena. You might protest that the sort of notion of causation that I seem to be peddling is both unnecessarily mechanistic and unnecessarily reductionist. You might argue that you are entitled to believe in causation even if all that you believe is that phenomena can be explained by principles that express relationships between events in space and time and that there is no need to suppose that these causal principles or explanations somehow exist in or beneath the events that they describe. It is sufficient, you might say, that the "laws" -- or, better said, principles or law-like statements -- that you embrace -- such as [F = MA] or [e = m(c-squared)]? -- predict the relationships among phenomena in a wide variety of circumstances.

Question: If this is what you think, why is it that causal "laws" or principles often or ordinarily do seem to rest on some image of a mechanism or real process that generates or controls the phenomena that one both uses as evidence and that one wants to explain -- e.g., an image such as a spinning atom surrounded by electrons in odd orbits; an image of a double helix? Granted, these "spatial" images sometimes or often collapse -- they come be seen as inadequate -- as scientific understanding progresses -- but perhaps this merely shows that science progresses. Is it the case that the progress of science often involves, not the elimination of spatial images of (hidden) processes or mechanisms, but, rather, the modification of old images or their replacement with new and better ones? (So: Kepler posits elliptical orbits rather than circular ones.) So is it true, after all, that a belief in causality involves or requires, at least sometimes, a belief -- a provisional belief, to be sure -- in the existence of underlying mechanisms or processes; and is it true that it cannot be said that "causal mechanisms" are merely or nothing more than disguised non-spatial principles that describe observed regularities or phenomena in nature? If one is to arrive at causal explanations, is it necessary to have a kind of "persuasive local ontology," a kind of vision of how (some) things just must work? (By the way: Why should we presume that spatial representations are not "principles"? Graphs are "spatial" {at least in two dimensions, and graphs can be multi-dimensional} -- but properly-constructed graphs are rigorously logical things. If they aren't "principles," what are they?)

Counterpoint: Would one say of a causal explanation for, say, a social phenomenon -- e.g., "gang behavior" -- that it is necessary to have or develop a spatial representation or image of the mechanism or process that causes or influences this kind of phenomenon? (Answer: probably not, which may be a reason for the persistent belief in the existence of "souls." The causal explanation {if any} in this sort of situation might be in terms of the incorporeal principles -- principles and rules that exist but that cannot be seen (even in the mind's eye) -- principles that, it might be supposed, animate or govern (to some extent) the behavior of the members of a gang and the gang itself.)

Comment 2: Causality implies that prior events influence future events. But human beings (and perhaps other animals) peer into the future and allow their vision(s) of the future -- of future events -- to influence their actions in the present. Does this mean that the future influences the present? If you are a believer in unidirectional causality, you will reply, "Certainly not!" You will say that the future influences prior events only in this sense: people's projections at time t of future events influence their decisions or choices at time t + 1, which in turn presumably influence yet later events. Hence, there is no violation of the premise that causality runs only in one direction and -- to be sure -- from the "past" to the "future." (You say my last statement is circular? I know the past, present, and the future when I see it ["them"?], b'gosh!)

Comment 3: [I am preparing a comment -- a question, a hypothetical problem -- involving the "variables" (1) gang membership, (2) burglaries, and (3) tattoos. And at some appropriate point I will try to confound everything by mentioning the additional variable or factor, (4) the drinking of gin. This problem, if I can construct it, will raise two basic questions: (a) Can any set of numbers (alone) establish any causal relationship(s) among these three or four variables or factors?; and (b) If not, is evidence of the existence of any one of these three or four factors necessarily bereft of any probative value for any other factor (e.g., the commission of a burglary vel non)? But I do not yet have a suitably-crafted version of this hypothetical problem in hand -- and it is possible that I won't have the time to formulate it properly. Perhaps you can do so, Gentle and Wise Reader? (One of the matters or questions I have in mind is Judea Pearl's "d-separation" criterion for inferring causes from statistical data.)]

Causality and Inference Redux: Evidence Blogfans, Your Reading Assignment!

On the topic of the relationship between causation and inference (which was the subject of my previous blog), please see Christian Borgelt & Rudolf Kruse, Probabilistic Networks and Inferred Causation, 18 Cardozo Law Review 2001 (1997).

You need the hard copy version of this article -- a LEXIS or WESTLAW version will not do -- because you need to see the authors' diagrams.

If you are not familiar with graph theory -- and even if you are --, you might want to skim (the more difficult) portions of Part I of the article. But plow ahead! Fear not! With a bit of effort, you can get the drift of the rest of the argument. And you will reap rewards from your labor -- and, to be sure, from your labour.

The main point of the article is a critique -- a gentle critique -- of a proposal by Judea Pearl for inferring causation from correlation, associations, or observed regularities. This critique is in itself very interesting, illuminating, and suggestive: it raises fundamental questions about the structure of causation or causal influence. But even if that critique does not interest you or if the phrasing of the athors' critique eludes your comprehension, read on!

While (gently) questioning a particular approach to the problem of inferring causation, the authors remain largely convinced -- but with qualifications and hedges -- , the authors remained convinced of the importance of causal explanations for inference, and they serve up some familiar but very useful reminders of the perils of drawing conclusions on the basis of correlation or association alone. (I found it particularly reassuring to be reminded that "causal correlations are fairly rare." [I found this assertion reassuring because I agree with it: the notion that experience alone is "voiceless" plays a large part in my thinking about inference.])

I am personally ontologically attracted -- what awful language, eh?! --, I am attracted to the thesis that in many or most domains of human life something like a principle of causation holds, that prior events do, in some way, generally influence subsequent events in the space-time continuum in which we seem to exist. I am also very strongly attracted to the hypothesis that the power of inference is greatly enhanced when human actors have and use plausible accounts of the mechanisms or processes that underlie "surface" phenomena, events, and associations. (One of my favorite cliches: experience does not speak for itself.)

But there is a great practical difficulty (and, in an important sense, a theoretical one -- because the absence of human omniscience must figure large in any "theoretical" analysis of inference), -- there is, let me simply say, a VERY BIG difficulty: In many situations human comprehension of "causes" is extraordinarily frail. In these situations, how is inference to work (ideally, but for real human beings)?

Even when human knowledge of underlying causes or mechanisms is limited, it remains true that experience and associations do not speak for themselves. The world is replete with spurious and misleading associations! So some sort of sense of how the world works perhaps -- very probably -- remains important for the drawing of sound inferences from observed or reported regularities in the world.

So, Gentle Reader, where does all of this leave us -- and, for example, where does it leave jurors or where should it leave them when they turn to the job of assessing evidence of, say, the past criminal behavior of a defendant on trial for a crime or the defendant's habit of "associating with criminals"? What, if anything, should we tell jurors or what evidence, if any, should be withhold from their gaze to make sure that they do not make inferential mistakes?

Your thoughts, Gentle Reader? (Don't be bashful! ... O.k., o.k., not-so-gentle readers can chime in too.)

Causal Explanation and Inference in the Law

What is the relationship between causal explanations and ordinary inference in legal proceedings?

Judea Pearl has developed a powerful theory about the importance of causal explanations. See, e.g., J. Pearl, Causality: Models, Reasoning, and Inference (2000). He believes that, for at least certain purposes, causal reasoning is superior to associationist reasoning. He thinks the superiority of causal explanations is particularly evident or pronounced when human beings are faced with the problem of intervening in the world.

Question: Is there a legitimate place for non-causal explanations -- and, by extension, for inference not based on causal explanations and hypotheses? Are legal proceedings distinguishable {forgive the legal parlance!} --, are the factual issues in legal proceedings generally fundamentally different from the sorts of situations, questions, and tasks that Pearl posits and considers in his discussions of causality -- are such issues in legal contexts generally different, perhaps, because, in either some or most some legal proceedings, the problem confronting the adjudicator(s) is generally not how to intervene in the world to efficaciously control or influence the course of future events?

Or is it the case that Pearl's argument (which, as I say, is extraordinarily powerful) has broader and deeper epistemological (and ontological) roots, roots that suggest or say that associationist explanations -- explanations that {let me stipulate} are bereft of causal hypotheses and that putatively rest solely on observed or hypothesized regularities or observations --, is it the case that "pure" associationist explanations cannot support valid inference?

What say you all?

The question I pose here is an important one: it goes to the heart of the question of the nature of inference and the possibility of rational regulation of or deliberation about inference.

I thank you in advance for your thoughts, suggestions, and questions.

Law Professor: The Sequel (Already)

Mmmm ..., brief Google research unearths the following sizzling description:

No one could be more surprised than Ike Goldman, a seventy-eight-year-old retired contract law professor at Columbia, when he discovers that the much younger woman whom he keeps from suicide on the George Washington Bridge opens a new world of love for him. (Blurb by publisher, Harcourt, about Howard Fast, Redemption (1999))

But, alas, apart from the fact that this book is apparently already out of print, the difficulty here is that this is not the sort of book I had in mind: the author, it seems, had to conjure up a trial to keep the attention of his readers -- and, besides, the hero is retired and doesn't have to attend any faculty meetings. Law professor? Hah! As one Barnes & Noble "customer reviewer" wrote, this book is "not up too snuff."

Law Professor: A Life?

I have no talent for fiction -- except of the unwitting kind -- but I sometimes wonder if the life of a law professor warrants fictional treatment.

After extraordinarily brief reflection I invariably conclude that the answer is "no" -- unless, of course, a writer is capable of crafting a well-told tale that largely ignores the professorial (anti)hero's professional life.

How much drama can one expect to unearth in even the stormiest faculty meeting or in LEXIS research? (I am reminded of Bob Woodward's largely-futile attempt to find drama in the backroom wrangling of Supreme Court Justices. [Even the backrooms were in that case merely metaphorical -- since most of the spell-binding wrangling seems to have been done through memos and written notes, as I recall.])

But I may be wrong. (I am often wrong.) So, pray tell, what's your opinion? Should someone do a fictional expose [an accent over this last "e," please] of the life of a law professor?

My favorite (but nonfictional) anecdote -- a sad anecdote -- about the lives of famous academicians is the story of Nobel Prize-winning economist who died of a heart attack at the side of the Merritt Parkway shortly after learning that he had been awarded the (Nobel) Prize. This story is a reminder that practically all of us -- except, possibly, Donald Trump -- have to pull their socks on one at a time. (I presume that people such as Donald Trump can afford to hire other people to perform such tasks.)

I know, I know: Someone has already done it recently, someone has already written such a novel!

Well, ... er ..., ... actually ..., I don't know. So tell me: Who has written a novel recently about the trials (metaphorical) and tribulations (real) of a law professor in the United States? And is the novel any good?

Constitutional Twaddle

For aught it matters: I personally believe in the use of racial and ethnic preferences to overcome the effects of past societal discrimination and I personally think that the use of racial preferences for this purpose should not be said to run afoul of the Equal Protection Clause. Having voiced this opinion, I feel compelled to add that the Court's view (voiced today in Grutter v. Bollinger) that the presence of a "critical mass" of African-American students at an institution of higher education is essential to the realization of the benefits of "diversity" is twaddle. Justice Rehnquist's rejoinder is unanswerable:

If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,* how can this possibly constitute a “critical mass” of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School’s explanation of “critical mass,” one would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans.

The only plausible justification for preferential treatment of African-Americans, Native Americans, and other such groups is the judgment that such groups have been improperly disadvantaged and that steps to remedy such disadvantages are warranted. The constitutionality of such remedial steps should be directly confronted and resolved. Hypocrisy about the nature of the problem presented by racial and ethnic preferences will cause justifiable resentment. The public is not stupid: it is likely to think that the Court takes it for a fool.

Big Books and Little Books; Sprawling Books and Lean Books; Rich Books and Thin Books

Consider two recent books:

Mike Redmayne, Expert Evidence and Criminal Justice (Oxford, 2001);

and

James Franklin, The Science of Conjecture: Evidence and Probability before Pascal (Johns Hopkins, 2001).

Both of these books, I am convinced, are very good books. Yet Franklin's book will not win -- it has not won -- consistent praise from academicians. It has gotten high praise -- extravagant praise -- in some quarters. But some reviewers have given the book rather lukewarm praise.

Why?

Perhaps Franklin's book is not as good a book as I think it is.

That explanation does not wash: Franklin's book is magnificent

So what is the explanation?

This: Today's academicians prefer monographs or books written in the style of a monograph.

Redmayne's excellent book is in fact a monograph.

Monographs are "economical," they are "spare," they deal with a single and narrow topic, and they dispense with all extraneous material.

But is a monograph intrinsically superior to a big and sprawling book?

I say, "No."

It is true that sprawling books are harder to read.

But there is much to be said -- there is a great deal to be said -- for the sheer wealth of detail that a big book can contain.

Details are an important form of wealth, and they are particularly when the matter under discussion is history.

In a work about history, it is (sometimes) a pleasure to have an author's conclusions. But it is an equally great pleasure to have the basis for the author's conclusions, it is useful to have the historical record on which an author's conclusions rest.

There is room for both kinds of books: monographs and sprawling, leisurely, expansive, exploratory excursions into foreign and complex terrain.

It is worth keeping in mind that some matters cannot be reduced to a simple or single formula or theme. The history of probability may be such a matter.

In any event, if you are interested in uncertain human knowledge, I strongly recommend that you take Franklin's book with you on your two-month vacation. (Less time will not do.) Think of The Science of Conjecture as a non-fiction equivalent of Tolstoy's War and Peace, which, I confess, I have never had the time and leisure to read.

Historic National Historic Landmark Status Recognized; Interior Secretary Vows that National Patrimony Will Not be "Wiped Away" under Her Watch

New York City, June 13 – U.S. Secretary of the Interior Gale Norton today designated the bird droppings on the office window in room 433 in Cardozo Law School as a National Historic Landmark. She observed that the bird droppings had been on the window for more than a decade and, thus, were almost certainly unique in the annals of Western civilization. In the face of protests from Tillers, the occupant of room 433 and a professor of law at Cardozo Law School, Secretary Norton noted that law teachers do not count for much, “particularly not at Cardozo,” and that, in any event, the English common law right to “ancient lights” had never been recognized under U.S. law or by Cardozo Law School. The Secretary noted that National Historic Landmark status means that a showing of overwhelming necessity would now have to be made to make removal of the bird droppings lawful. Secretary Norton rejected as inadequate Tillers’ contention that Cardozo Law School plainly has no intention or ability to remove the bird droppings from the window in room 433. The Secretary noted, “That is like saying that the crime of murder should be abolished because the risk of unlawful homicide is low.” The Interior Secretary added, “Cardozo Law School and Yeshiva University are to be warmly praised for steadfastly ignoring repeated requests for the removal of the bird droppings. Had the requests been granted, an important part of our national patrimony would have been washed away.”

Demonstration, Persuasion, and Suasion by Proof in Litigation

There is a strong theoretical argument that there is no sharp distinction between the use of evidence to prove a factual proposition and the use of evidence to persuade a decision maker of the truth of some factual proposition. And there is something -- a great deal, I think -- to the proposition that forcing triers of fact to consider rival claims -- including rival claims about factual matters -- advanced by advocates who have strong incentives to advance rival claims and hypotheses can be a very important device in a society's pursuit of the truth about factual issues. Granting this much, it is still a bit jarring and disconcerting (to me) to receive, from a supposedly reputable publishing company, an advertisement meant for lawyers that proclaims, for example, "Whip the rug out from under opposing witnesses." This headline refers to "'Killer' techniques in Cross-Examination."

Can any system of proof in litigation achieve legitimate purposes if a society sanctions tactics such as "pulling the rug out from under witnesses" by the use of "killer" interrogation methods? I believe that an affirmative answer to this question is possible only because of the ambiguity of the notion of "pulling the rug out from under a witness." If asked, representatives of the publishing company might say, "Well, we were referring to methods of unmasking deception by witnesses." But if they were to say this sort of thing, would you believe them?

Reason and Intuition in the Assessment of Evidence in Litigation

Judge Jack B. Weinstein argued quite some time ago that when counsel and court weigh the relevance of evidence, its probative value, and the question of undue prejudice, both reason and intuition must serve as the guide to the resolution of such questions. This position has always seemed to me to be eminently sensible. I mention this now only because a few legal scholars continue to take extreme positions on the question of the role of intuition and rational analysis in the assessment of evidence. Some legal scholars seem to assert that only intuition and ineffable common sense can serve to resolve disputes about matters such as probative value, while a few other scholars seem to go to the other extreme by suggesting that only rational analysis provides answers. My own view is that reason and rational analysis have an important role to play -- or we are justified in hoping and supposing that they play a useful role -- but that explicit rational analysis alone can only rarely provide the solution to an inferential problem. This is because any real-world assessment of evidence by the organism known as homo sapiens necessarily involves a wide variety of complex perceptual and information processing mechanisms that operate at a subconscious level, largely out of view of the mind's eye. Quite some time ago -- more than a century ago -- the "German polymath" Hermann von Helmholtz (1821-1894) uttered the dictum that perception is "unconscious inference." While there have been some occasional challenges to this hypothesis -- mainly by behaviorally-inclined psychologists who, like B.F. Skinner, seem anxious to deny the existence of "mental states" --, Helmholtz's dictum seems true: perceptual processes, processes that may not seem "rational" or "cognitive," in fact employ complex information processing procedures that seem to have a great deal of "logic" and "reason" in them. See, e.g., the many interesting recent studies of the nature of the logic that informs or underlies visual perception: Richard L. Gregory, "Knowledge in Perception and Illusion"; Daniel Kersten, "What Is the Visual System Like?"; Shimon Edelman, "Visual Perception" (including entries on "visual performance" and "visual competence" -- and much,much more).

So what? What does this stuff about the (supposed) "logic of perception" have to do with the price of tea in China -- or with the structure and nature of inference and proof in litigation?

This: The premise that there is a great deal of logic in our perceptual and subconscious processes suggests, on the one hand, that rational analysis has its uses, and, on the other hand, its limits. We must be modest in our expectations of the powers of explicit rational analysis of evidence, but we are also entitled to think, believe, or hope that rational analysis is occasionally able to bring features of inferential problems and inferential processes to the mind's eye, with the possible result, at least occasionally, that our submerged and tacit cognitive and perceptual processes work somewhat better than they otherwise would have worked.

Pity the Predator

The Boston Globe ran an interesting item today. The story began this way:

Report says legal system fails girls in trouble
By Francie Latour, Globe Staff, 5/27/2003
In a Dorchester street, a 58-year-old man lay stabbed in the head and chest, one of his sons bleeding from his side, another son with broken teeth -- all victims, police say, of an attack by two girls, one 15, the other 11.

Perhaps the Boston Globe should keep an edited version of this story in its files until events warrant publication. The edited version might look like this:

Report says legal system fails boys in trouble
By Frank Labour, Globe Staff, 10/10/2010
In a Dorchester street, a 42-year-old woman lay stabbed in the head and chest, one of her daughters bleeding from her side, another daughter with broken teeth -- all victims, police say, of an attack by two young lads, one 15, the other 11.

The current story -- the one concerning wayward girls --, this sad story is reminiscent of the political fervor of the Boston Globe in some of its good (i.e., its most "liberal," its most "progressive") old days, days when it might have carried the following sort of story:

Boston incinerated by hydrogen bomb: Minorities and women disproportionately affected!

--Yes, yes: I confess, I confess, yes, I do confess: I have used this line before -- and I even borrowed it from some other source (a trustworthy but not confidential one) without giving credit. Mea culpa! But in mitigation: the Boston Globe is such a tempting target.

The Boston Globe might have said -- now I am not saying that the Boston Globe should have said; no, I am not saying that --, but I do say that I am warranted in saying that the Boston Globe might have said that the legal system failed the three stabbing victims, the ones who were waylaid by the wayward girls who were so badly let down by our legal system.

The pages of the Boston Globe are just replete with failure, aren't they?

N.B. Is the moral of the Boston Globe story this: if the legal system fails, girls will be girls? {Well, I suppose not. But who knows for sure?}

Evidence Exam: Try Your Hand -- Risk-Free!

In my recent Evidence exam I returned to some of my favorite topics: impeachment, character evidence, constitutional right(s) of criminal defendants to adduce evidence and attack adverse evidence, and similar matters. I gave my Evidence students the take-home question found below. Try your hand! I will not question or criticize -- because I already have my hands full with the exam answers (and other materials) that I now have to grade.

Question

The State of Blackacre indicts Albert Accused. It charges him with the robbery and rape of Vila Victim on January 1, 2003. Albert Accused pleads not guilty.

At trial Vila testifies that Albert robbed and raped her on January 1, 2003.

During cross-examination Albert's counsel asks Vila if it isn't true that she suffers from delusions. Vila replies, "No."

Albert’s counsel also asks Vila, “Aren’t your charges against Albert a tissue of lies?” Vila replies, “No.”

Later in the trial Albert's counsel offers to have a social psychologist testify that Vila is a psychotic paranoid schizophrenic who suffers from delusions and makes false statements to relieve social stress.

The prosecutor objects to this proffered testimony. Albert's counsel argues that the testimony of the social psychologist is admissible to impeach Vila's credibility as a witness.

You are the trial judge's law clerk. Prepare a memorandum for the trial judge assessing the admissibility of the testimony of the social psychologist.

The Tournament of Legal Scholars and Legal Scholarship

Ridiculous? Ridiculous!

If two legal scholars have their way, elevation to the Supreme Court of the United States will depend on a tournament in which the pertinent measures of relative judicial merit will be matters such as “opinion publication rates, citations of opinions by other courts, citations by the Supreme Court, citations by academics, dissent rates, [and] reversal rates.” See Stephen J. Choi & Gaurang Mitu Gulati, Abstract of “A Tournament of Judges?,” Legal Scholarship Network: Law School Research Paper Series, 5 Univ. of California, Berkeley, Public Law & Legal Theory No. 3 (May 9, 2003) (Georgetown Law and Economics Research Paper No. 394700, UC Berkeley Public Law Research Paper No. 121, forthcoming in Cal. L. Rev.).

This proposal is both ingenious and bold; it deserves your careful consideration. But, legal scholars, take heed! Do not shoot yourselves in the foot (“feet”?)! There is danger here!

If the proposal by Messieurs Choi & Gulati for the selection of judges gains general acceptance, there is a fair chance that similar measures for assessing the status or worth of legal scholars, legal scholarship, and law schools will gain acceptance. That would be a great calamity!

I concede that my warning may be overdrawn, perhaps even alarmist. Consider the following points:

1. It is not seriously imaginable that legal scholars and law schools will allow themselves and their behavior to be influenced by transparently spurious measures such as rates of publication.

2. It is clear that legal scholars and law schools will know how to protect their own status and integrity.

• For example, legal scholars generally fully and readily recognize that only the judgments of their peers – the opinions of like-minded legal scholars in similar law schools – do and should count.

• Furthermore, our brothers and sisters (if I may be allowed this turn of a phrase), – the members of our brotherhood and sisterhood generally (and, sometimes, passionately) recognize that citation to their works by non-members of their scholarly fraternity/sorority – e.g., by courts – do not, should not, must not, and cannot count! (Judges are not qualified to judge the academic merit of academic work.)

• Finally, it is clear practically beyond any possible peradventure (to practically all legal scholars, in any event) that frequency of citation in non-law journals and books and, more generally, the standing of legal scholars and legal scholarship in the scholarly community at large are wholly irrelevant and must remain wholly irrelevant to the assessment of a legal scholar’s or law school’s qualifications, competence, standing, or worth.

 Even the discredited U.S. News & World Report ranking system – to which, of course, no respectable legal scholar or law school pays any heed – views such measures of academic standing as spurious and irrelevant.

 I do not mean to say that frequency of publications in law journals, particularly in estimable academic law journals – you know which ones I mean, dear Reader –, I do not mean to suggest that frequency of publication in such reputable journals should not count. To the contrary: publication in such law school journals is the only valid measure of the scholarly standing and achievements of law professors!

• Any fear that the use of such a measure of scholarly merit – the use of such a hermeneutic (“hermetic”?) circle – will tend to suppress originality is unwarranted. It is as plain as anything can be that creativity – like cream – always rises to the top. We legal scholars can count on each other, – we can count on the scholarly consensus among us, on our common opinions, to recognize, accept, and reward original and creative legal scholarship whenever and wherever it appears! Cf. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (general acceptance test of admissibility of novel scientific evidence). Do you need proof? Consider this: Did not U.S. law professors readily recognize (ca. 1972) the significance of the philosophy of Georg Wilhelm Friedrich Hegel (1770 - 1831)!?! This precedent suggests that your typical U.S. law professor will be equally quick to recognize the importance (and existence) of novel fields such as fuzzy logic, artificial life, and temporal logic. In any event, when law professors do engage with such novel material, they will sally into this unfamiliar terrain with their customary intelligence. Of this there can be no doubt!

Simple Heuristics: Simply Smart or Simply Stupid?

It has become fashionable in some circles to assert that because of the complexity of the world -- let us call that world the "human environment" or just the "environment" -- and because of the consequent inability of conscious thought, of conscious or explicit analysis or propositions, to capture, or correctly describe, all important features of that complex environment, human beings both do and should use "simple heuristics" -- simplifying strategies that disregard some features of the environment --, human beings both do and should use simple heuristics and strategies to deal with complex problems in their environment that (by hypothesis) outrun the power of human thought.

I dissent.

This argument for such "simple heuristics" rests on a confusion between (i) the rules and principles that govern the behavior of complex organisms (such as cows, birds, and human beings) and (ii) explicit, or conscious, deliberation by complex organisms about their environment.

The mere fact that complex organisms are sometimes (indeed, probably almost always) incapable of explicitly formulating combinations of rules, principles, propositions, expressions, functions, and operators that describe how such complex organisms best adapt themselves (their behavior) to the world that those organisms inhabit does not demonstrate that complex organisms (such as human beings) are most apt to behave well in their environment if they deliberately decide to follow explicitly-formulated principles that ignore much complexity in the world.

This is a good guess: organisms such as human beings should rarely deliberately choose principles that render their cognitive processes -- their internal operating systems -- less sensitive to detail than those cognitive processes, or operating systems, presently are. Self-conscious organisms such as human beings should instead simply keep in mind that the principles that they manage to explicitly enumerate or formulate ordinarily do not remotely approach the complexity and sensitivity of the tacit cognitive processes that regulate and influence human behavior. The fact that explicit analysis ordinarily must play such a subordinate and deliberate role certainly does not demonstrate that human beings should decide to follow some set of crude explicit regulative principles that human beings happen to be able to formulate explicitly.

There is a better alternative: human beings should try to gain some conscious insight into their tacit cognitive processes in the hope that such insight may somehow enable tacit cognitive processes to work a bit better.

Consider birds. Some recent studies suggest that birds manage to migrate long distances only because their little bird brains do very complex calculations that take into account subtle differences in a wide variety variables such as the earth's magnetic field, the time of day, the time of year, wind speed, and altitude. To tell the bird to use a simpler heuristic -- e.g., pay attention only to sunlight, or sunlight and wind speed alone, dear bird! --, to tell the bird to use simpler proceures, heuristics, for finding its way around the globe will almost certainly doom the bird.

It is time to erase the trait theory of cognition (as well as the trait theory of human personality). Neither human personality nor human thought consists of a trait or some bundle of traits. The behavior of bees, birds, and human beings is the upshot of complex and nuanced operating systems that are remarkably attentive to remarkably fine environmental detail.

That's what I think! Does my view make sense? Or is my point of view for the birds?

Picturing Dynamic Proof in Litigation

The Flow and Use of Evidence in Litigation

i = information, evidence
P = plaintiff
D = defendant
Ca … n = claim with elements a through n
Dx … z = defense with elements x through z
IA = institutional action (e.g., judicial ruling, verdict)

i | collect & analyze | \|/
P --marshal-->	deploy & persuade | \|/
	| Ca .. n | Dx .. z |	------> IA
D --marshal-->	/|\ | deploy & persuade
/|\ | collect & analyze | i