Fairy Tales for Grownups:

Living on Earth, the public radio program on which announcers discuss, in sonorous voices, matters such as the problem of the overabundance of non-native starlings in the Northwest and the earth-conscious preparations of bee populations for the coming of winter. All is well but all is not well. ("If only we could get those darned starlings to go back home, somewhere in Europe, where they belong! Sigh.... Well, at least the peregrine falcons will prosper. ... [pause] ... Next week, our program on a special kind of vegetarianism: one farmer who decided that he and his family don't need meat or leather.")

Background evidence ...

isn't always what you think it is.

Consider

... "social background .....

.... evidence."

I'll bet that the first two words in this verbal trio tripped you up: I'll bet you thought you were going to read about background evidence with a social flavor. But in fact when you encounter this label -- "rotten social background evidence" -- in a criminal trial, you are more likely to encounter evidence about a person's (rotten) social background -- and such evidence about background may not be background evidence 'tall. See generally Mythri A. Jayaraman, "Rotten Social Background Revisited," 14 Cap. Def. J. 327 (2002).

P.S. The pedant in me thought you might want to know.

P.P.S. Isn't the title of Jayaraman's article delicious?

P.P.P.S. And don't you think it's time for the publication of a legal treatise with the title Rotten Social Background Evidence? The book would be a best seller -- if, at least, there were a pinch of humor in the tome. And the book could not fairly fail in the scholarly community either: the author could always say (justly), "But I promised you rotten evidence. And I delivered. What's your beef? It takes skill and intelligence to craft consistent nonsense." And you, the expert in criminal evidence (or a similarly-nomenclatured field) might only be able to respond with a splutter -- unless, that is, you are juvenile enough (sufficiently open-minded?) to be surprised (and perturbed) by the law's verbal quirks. Criminal law indeed!

September 11

I am watching a program on the building of the World Trade Center. I look forward to September 11 with dread. (The weather is almost as beautiful now as it was on the original September 11.) I hope that the building of the replacement for the Twin Towers begins next summer. That will be a glorious sight.

Legal Tulips

Many years ago Holland experienced the famous or infamous Tulip Bubble: tulips suddenly became popular and individual tulips commanded the equivalent of thousands of dollars. So the story goes.

More recently -- in the 1990s -- the stock of dot coms whose only apparent assets were their internet addresses achieved market valuations of billions of dollars.

Now it is the legal world's turn. Not too long ago federal judges, law school administrators, and some other people decided that both students and judges were spending too much of their time each year either applying for or evaluating applications for judicial clerkships. So it was agreed that at certain times of the year there should be a moratorium: applications for clerkships with judges should not be sent, received, or considered at certain times of the year.

A moratorium of this sort is about to run out shortly; a present moratorium expires on September 2.

Guess what. The line is forming. Thousands of applicants and law school placement offices are waiting to mail their applications on September 2.

Not by using the U.S. Postal Service, mind you. No: nothing less than Federal Express will do. And same day delivery.

Some applicants and placement offices are not content with even that. Some applicants, it is said, are planning (with the encouragement of law school placement offices) to hand deliver their applications bright and early on the morning of Tuesday, September 2, 2003.

It doesn't stop there: applicants are also being urged, it is said (by the most reputable {if not sensible} sources) to try to arrange for personal interviews on September 2; viz., to be interviewed by the judges of their choice on September 2.

This just goes to prove that if almost everyone wants something, that something must be worth something? Else why would almost everyone want it?

Question: What is a judicial clerkship worth?

Would you sell your soul for one?

The frenzy is enough to drive me back into the arms of a medieval just price theory: some things, just intrinsically, are not worth a damned lot. (How would you like to spend two years in the law library of some "prestigious" appellate court -- after spending three or so years in the library of some "prestigious" law school? Exciting, eh?)

Well, there's some profit in all of this, yes there is: whether we like it or not, we will all learn something again about the emerging science of ...? Chaos theory? Complexity? But fractal theory? No, that doesn't sound right. It's ... oh, you know ... maybe it's that froth theory stuff, bubbles (literally) and all that. Or? ... Wait a minute, I have to do some internet research.

Pause. ... Time passes .... Diddle, diddle. ...

Hi. I'm back. Here it is (the explanation, the model):

irrational exuberance!

At more length:

Economic reality is rife with nonlinearity, discontinuity, and a variety of phenomena that are not so easily predicted or understood. At the same time the broad coherence of economic systems is more impressive than ever in the face of such phenomena. The order of the economy appears to emerge from the complex interactions that constitute the evolutionary process of the economy.

These phenomena have come to be labeled as complexity in economics. Even what seems simple in economics generally arises from behavior not reflecting rational expectations; we live in a world that reflects the enormous variety and diversity of humanity in their knowledge, attitudes, and behaviors, interacting with each other in an enormous range of institutional frameworks. What emerges in the aggregate may have little to do with what happens at the individual level. But this aggregate cannot be simply described by some set of aggregate equations. It emerges out of the soup of the individual and particular with all its multiform interactions and peculiarities.

J. Barkley Rosser, Jr. & Edward Elgar, eds., "Introduction: The Emergence of Complexity in Economics," Complexity in Economics, (2003), Complexity in Economics.

Or perhaps direct analogies to stock market crashes will help explain the judicial clerkship madness? See, e.g., Didier Sornette, Why Stock Markets Crash: Critical Events in Complex Financial Systems (January, 2003).

Coming soon?: "Hey! Clerkships for sale!"

Good Lord.

Work in Progress

Dear Gentle Reader,

There are now some lecture notes awaiting your perusal. They are notes, and not a paper. And the notes are disheveled: they sprawl. But there may be tidbits there that interest you. More important, you may be able and willing to give me some advice. In any event, please see Konstanz 2003 International Summer School Lecture Notes (Peter Tillers) on Probability and Uncertainty in Law.

Frau Mosley Did It Her Way

"'I regret nothing,' [Diana Mosley] told the daily Le Figaro in a 2002 interview, when questioned about her life." Gulf Daily News (14 Aug. 2003).

Filial Piety

"[Diana Mosley's] son, Alexander Mosley, said: 'She had many friends and a very active life, especially considering she was 93 when she died.'" The Scotsman (14 Aug. 2003).

"In 1998, with her health failing she moved to Paris, close to her son Alexander and his wife." Mirror.co.uk (14 Aug. 2003).

Several Degrees of Separation: Alex Mosley & Jessica Mitford

The New York Sun today reports the death of Diana Mosley, the wife of Sir Oswald Mosley, the hated British fascist. (The Sun reports that Diana Mosley never abjured her admiration of Hitler.)

In 1969 or 1970 I accompanied a person, a newspaper reporter, who interviewed Jessica Mitford in northern California. Jessica Mitford was one of Diana's sisters.

In the summer of 1961, in Columbus, Ohio, I met a tall British youth who called himself Alex Mosley and who claimed he was the son of Oswald Mosley. If the story was true, he was also the son of Diana Mosley. See British Boyhood: Alexander Mosley

It seems that in 1980 there was a publishing company in France called "Alexander Mosley Publications." My cursory internet research suggests the possibility that this publishing company published Diana Oswald's memoirs.

This is all very improbable.

Was the fellow in Columbus an impostor? But why would he have wanted to pretend to have such despicable parents? (The person who called himself "Alex" said that he had to leave Britain because he, "Alex," faced too many difficulties in Britain because his father was a notorious British fascist.)

Relatively More Cheerful News from Lands Across the Waters

I learned much from my colleagues at the Konstanz 2003 International Summer School. As I had expected, a law teacher must approach scientists, mathematicians, biologists etc. with humility and respect -- with awe, really -- since scholars in such fields employ a degree of rigor -- I speak here not merely of "formal rigor" --, scholars in the sciences employ a degree of rigor that is rare in the world that law professors inhabit. (This is not to say that law teachers have no interesting tidbits or problems to offer mathematicians, physicists etc.; certain types of problems that routinely arise in legal proceedings only rarely surface in many fields such as physics, biology etc.)

I have much news to report -- but too much to report just here and now. Stay tuned!

Innocence Abroad

I am back from my trip to Germany and Turkey.

America's reputation abroad seems to be at an all time low. But I grow defensive: many Europeans and Turks seem to place an extraordinary low value on human rights.

Reasonable people can differ on whether war against Iraq was justified. But reasonable people cannot differ on mass torture and extermination. I saw little concern in the European media about the widespread use of torture by Saddam Hussein and the estimated extermination of some 200,000 people. (I am not even counting the fatalities in Saddam's various wars; I am speaking only of "jailhouse executions," death by firing squad or worse.)

Perhaps it really is true that "old Europe" is too sophisticated -- too cynical and indifferent -- for its own good a/k/a for the good of humanity?

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?