Is It Bait-and-Switch?

I am no great fan of "delicate" language in judicial opinions. But, question, didn't Justice Scalia go overboard in accusing five of his colleagues of engaging in a "game of bait-and-switch"? See Boumediene et al. v. Bush, 553 U. S. ____ (2008) (Scalia, J., dissenting, Thomas & Alito, JJ., concurring in the dissent).

Does Justice Scalia genuinely believe that five of his colleagues deliberately decided to deceive Congress, to set a trap for Congress?

The Importance of Evidence even in Constitutional Adjudication

I believe that evidence and inference in law matter because, in important part, accurate factual adjudication matters. It is revealing (and heartening) to see that the Supreme Court, even when immersed in lofty constitutional rhetoric about matters such as separation of powers, also thinks that evidence and the fair assessment of evidence matter. See Boumediene et al. v. Bush, 553 U. S. ____ (2008) (striking down, today, Congress' most recent attempt to strip federal courts of the right and duty to use habeas corpus to challenge the detention of the detainees at Guantanamo):

Petitioners identify what they see as myriad deficiencies in the CSRTs [Combatant Status Review Tribunals]. The most relevant for our purposes are the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. As already noted... at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting that the detainee can access only the “unclassified portion of the Government Information”). The detainee can confront witnesses that testify during the CSRT proceedings. Id., at 144, ¶g(8). But given that there are in effect no limits on the admission of hearsay evidence—the only requirement is that the tribunal deem the evidence “relevant and helpful,” ibid., ¶g(9)—the detainee’s opportunity to question witnesses is likely to be more theoretical than real. ...

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and ingood faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.

A majority of the Supreme Court has today acted courageously.

See my 2006 blog post Here We Go Again: Hearsay, Shmearsay -- Any Good Old Hearsay Is Good Enough for the Commissions

Knowledge of Concepts (Language) and Knowledge of the World

In philosophy there has been a debate about whether connections between events in the world involve causes or whether such connections only amount to associations. There has been a related (but different) debate whether knowledge of the world requires knowledge of causes or whether knowledge can rest only on associations. A third position or question is possible: even if causes are at work in the world and even if the most perfect knowledge of the world requires knowledge of (all) causal mechanisms in the world, can human beings have knowledge of the world without (fully) knowing the causes of events in the world?

The third position or question just mentioned is slightly ambiguous. However, if the question is taken to be whether human beings can have some knowledge of the world without fully understanding the causes of events in the world, the answer is "yes" (unless, that is, "knowledge" is assigned a narrow, or "constipated," meaning).

But if causes are at work in the world, how is it possible for human beings to have knowledge of the world without having full knowledge of the causes of events? Various answers to this question are possible. One possible answer is that the human brain or neural system is so configured (as a result of evolution or whatnot) that human beings have effective knowledge of the world even though or even when human beings do not have express, self-conscious, knowledge of causes of events in the world. (Of course, until we human beings have perfect knowledge of causes, we cannot explain [perfectly] how human knowledge of the world without perfect knowledge of causes is possible.)

Human beings communicate in part through language (and explicitly-stated concepts, which are also part of a language). Furthermore, human language often or sometimes communicates knowledge of the world. But how is this possible? Ordinary human language is usually mushy and imprecise. (The same may be true to some degree of all non-ordinary human language -- e.g., the language of the hard sciences such as physics.)

In 1965 Lotfi Zadeh burst upon the scene with a theory of fuzzy logic. See Lotfi Zadeh, Fuzzy Sets, 8 Information & Control 338 (1965) This was a theory that took the mushiness and fuzziness of language and concepts seriously. It was possible, Zadeh said, to reason precisely about imprecise and vague propositions. But this insight, though in itself profound (in his hands), was perhaps not Zadeh's most profound insight or discovery. Perhaps Zadeh's most profound discovery was that the "crude" language of ordinary human beings -- such as the language and words used by the operators of a kiln -- conveys genuine knowledge of (part of) the world (such as the workings of a kiln). By using a meta-logic that arguably accurately mimics ordinary language, Zadeh and his many followers were able to accomplish the astonishing task of devising artificial procedures that run kilns, trains, and other such things without incorporating into the meta-procedures accounts of the mechanisms that cause kilns, trains, or whatnot to work the way they do under various circumstances.

In the last 10-15 years Zadeh has emphasized that natural language is language that captures or expresses perceptions. Although I am not a mathematician or a logician and although I do not know Zadeh's work well enough to say so with confidence, my strong sense is that part of Zadeh's motivation for stressing that his theories are about perceptions and are not purely "semantic" theories is to emphasize that his theories about the workings of vague and imprecise language and concepts are or can be theories that help human beings understand the workings of the world. (Professor Zadeh really is a genuine scientist -- as well as, e.g., an abstract logician or philosopher.) If this is an important part of what Zadeh is about, a popularizer of his approach might reasonably proclaim -- if provocatively and somewhat misleadingly --, "Superficial knowledge is genuine knowledge!"

Some pertinent quotations follow.

In his relatively recent paper outlining a general theory of uncertainty (see Lotfi Zadeh, "Toward a Generalized Theory of Uncertainty (GTU) - An Outline" (2005)), Zadeh describes or characterizes "uncertainty" as a "constraint" on "information." In this paper's abstract Zadeh writes:

It is a deep-seated tradition in science to view uncertainty as a province of probability theory. The Generalized Theory of Uncertainty (GTU) which is outlined in this paper breaks with this tradition and views uncertainty in a broader perspective.

Uncertainty is an attribute of information. A fundamental premise of GTU is that information, whatever its form, may be represented as what is called a generalized constraint. The concept of a generalized constraint is the centerpiece of GTU. In GTU, a probabilistic constraint is viewed as a special—albeit important—instance of a generalized constraint.

In the body of the paper Zadeh states (endnotes omitted):

Uncertainty is an attribute of information. The path-breaking work of Shannon has led to a universal acceptance of the thesis that information is statistical in nature. A logical consequence of this thesis is that uncertainty, whatever its form, should be dealt with through the use of probability theory. To quote an eminent Bayesian, Professor Dennis Lindley, “The only satisfactory description of uncertainty is probability. By this I mean ... that the calculus of probabilities is adequate to handle all situations involving uncertainty…probability is the only sensible description of uncertainty and is adequate for all problems involving uncertainty. All other methods are inadequate…anything that can be done with fuzzy logic, belief functions, upper and lower probabilities, or any other alternative to probability can better be done with probability,” (Lindley, 1987).

The Generalized Theory of Uncertainty (GTU) is a challenge to the thesis and its logical consequence. Basically, GTU puts aside the thesis and its logical consequence, and adopts a much more general conceptual structure in which statistical information is just one—albeit an important one—of many forms of information. More specifically, the principal premise of GTU is that, fundamentally, information is a generalized constraint on the values which a variable is allowed to take. The centerpiece of GTU is the concept of a generalized constraint—a concept drawn from fuzzy logic.... The distinguishing feature of fuzzy logic is that in fuzzy logic everything is—or is allowed to be—a matter of degree. ...

Zadeh further states (endnotes omitted):

In GTU, uncertainty is linked to information through the concept of granular structure—a concept which plays a key role in human interaction with the real world, Zadeh [43, 52].

***

Granulation is pervasive in human cognition. For example, the granules of Age are fuzzy sets labeled young, middle-aged and old, Fig. 1. The granules of Height may be very short, short, medium, tall, and very tall. And the granules of Truth may be not true, quite true, not very true, very true, etc. The concept of granularity underlies the concept of a linguistic variable—a concept which was introduced in my 1973 paper “Outline of A New Approach to the Analysis of Complex Systems and Decision Processes,” Zadeh [41, 42]. The concept of a linguistic variable plays a pivotal role in almost all applications of fuzzy logic [12], [15], [18], [29], [31], [38].

There are four basic rationales which underlie granulation of attributes and the concomitant use of linguistic variables. First, the bounded ability of sensory organs, and ultimately the brain, to resolve detail and store information. For example, looking at Monika, I see that she is young but cannot pinpoint her age as a single number. Second, when numerical information may not be available. For example, I may not know exactly how many Spanish restaurants there are in San Francisco, but my perception may be “not many.” Third, when an attribute is not quantifiable. For example, we describe degrees of Honesty as: low, not high, high, very high, etc because we do not have a numerical scale. And fourth, when there is a tolerance for imprecision which can be exploited through granulation to achieve tractability, robustness and economy of communication. For example, it may be sufficient to know that Monika is young; her exact age may be unimportant. ...

Further, consider these statements by Zadeh (references omitted):

There is a demonstrable need for GTU because existing approaches to representation of uncertain information are inadequate for dealing with problems in which uncertain information is perception-based and is expressed in a natural language. ... More specifically, the existing approaches do not address the problem of semantics of natural languages....

Finally, consider the following points by Zadeh:

How can precise meaning be assigned to a proposition, p, drawn from a natural language?

The problem is that natural languages are intrinsically imprecise. Imprecision of natural languages is a consequence of the fact that (a) a natural language is, basically, a system for describing perceptions; and (b) perceptions are intrinsically imprecise as a consequence of (a) the bounded ability of sensory organs, and ultimately the brain, to resolve detail and store information; and (b) incompleteness of information.

Important Coda: The last quotation makes Zadeh sound a bit like some behavioral economists, many of whom emphasize the limitations of human knowledge and the irrationality of human behavior. But Zadeh's work runs in a different direction, it has a more optimistic thrust. Note: unlike some fans of "ordinary thought," Professor Zadeh does NOT embrace ALL of the following propositions: ordinary language is a form of tacit knowledge, human beings have tacit knowledge, tacit knowledge works, and nothing much more can be said about ordinary tacit knowledge. His project rests on the premise that ordinary language really and truly captures and expresses perceptions and that it is possible that a meta-logic can bring to light and describe the real-world implications of the perceptions that are captured by the imprecise language that human beings use.

Father of Fuzzy: Warm & Fuzzy

A Bayesian Theory of Everything (in the Brain)

See Gregory T. Huang,"Bayesian theory in New Scientist: Is this a unified theory of the brain?," Reverendbayes's Weblog (May 29, 2008)

The FLDS Case & Religious Belief as Evidence of Behavior

The NYTimes reports today:

A judge in Texas ordered more than 460 children seized in April from a polygamist sect to be released from state custody on Monday, while imposing conditions on their families that would allow officials to monitor the children’s welfare.

Judge Barbara Walther of the State District court in San Angelo issued the order following a contentious hearing on Friday that broke down when she left the courtroom as lawyers for the families, members of the Fundamentalist church of Later Day Saints, objected to her imposing conditions on the release of the children.

As some observers have noted, the F.L.D.S. case involves the difficult and interesting question of the use of religious beliefs to predict behavior. This question is in certain respects similar to the problem of the use of "character" to predict (or infer) behavior. See P. Tillers, "What Is Wrong with Character Evidence?," 49 Hastings Law Journal 781 (1998). Cf. Levin v. United States,119 U.S. App. D.C. 156, 338 F.2d 265 (1964) . Some observers have said (newspapers report) that religious beliefs won't hack it as evidence of behavior and that only "specific" evidence will do. But I don't think the attempted specific-non-specific distinction cuts the mustard. Cf. P. Tillers, "If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes," 4 Law, Probability and Risk 33 (2005). However, the First Amendment implications of using religious belief to predict (or infer) behavior cannot be ignored. If any supervision of the children and their parents is designed to eradicate a religiously-grounded belief in polygamy or in a patriarchal social system, that would obviously be improper on constitutional grounds -- no matter how distasteful the rest of us might find polygamy or patriarchy. The courts' treatment (in this context) of F.L.D.S.'s religiously-based beliefs about sexual relations of women under the age of consent in Texas is the harder problem. Outright judicial attempts to eradicate even such beliefs still seem improper on constitutional grounds. But can religiously-grounded beliefs about this be used as evidence to support the imposition of "conditions" on the release of the F.L.D.S. children to their parents -- such as the condition that the Texas child protection service have the right to enter a residence to check up on the status of an underage female? (Newspaper accounts suggest that the Texas trial judge who is now again handling the case has no doubt that she can and should use F.L.D.S. beliefs as evidence for this purpose.)

Der Goes Da Judge!

"Negotiations for the state’s release of more than 460 children who were removed from a polygamist sect in April broke down Friday in a scene of chaos and bitterness in a courtroom in this West Texas city.

Lawyers for the families said the judge overseeing the release lacked authority to impose restrictions on it, and the judge, in disagreement, ended the proceedings and walked out of the courtroom."

Gretel C. Kovach & Kirk Johnson, "Deal to Return Children to Sect Breaks Down," NYTimes (May 31, 2008)

A Graphic Discussion of Philosophy of Mind, the Brain, and Consciousness

For a cartoonish but non-cartoonish discussion of the nature of mind, the brain, and consciousness, see pp. 12-20 of the June 2008 issue of The Reasoner.

In the same issue Amit Pundik continues his philosophical discussion of evidence of prior convictions. See id. p. 3.

John McCarthy's Common Sense and Artificial Intelligence about Evidence and Inference

John McCarthy, one of the four 1956 Dartmouth conference founders of artificial intelligence, has a great many things to say that have a bearing on how ordinary people (including lawyers) must reason from evidence to judgments about states of the world (i.e., about factual questions). See, e.g., John McCarthy, Making Robots Conscious of their Mental States (24 July 1995 - 15 July 2002).

I find it interesting that McCarthy, working from a starting point different than Lotfi Zadeh's, agrees with Zadeh that many of the concepts that we human beings use and must use to make sense of our word and to make our way through and in the world are "approximate" in a way that the standard probability calculus cannot capture. See, e.g., John McCarthy, Approximate Objects and Approximate Theories (Feb. 2, 2000)

But what does the construction of robots have to do with the validity of different logical theories? Answer: How the mind works and must work should ultimately be tested against "reality." The attempt -- or, in any event, thinking very, very carefully carefully about how we would would have to proceed -- to build a working robot with the intelligence of a human being, a robot that actually mimics some of the intelligences of the human animal, is a better constraint than pure armchair theorizing, don't you think?

A Civil Liberties Disaster

The FLDS polygamy-child abuse case in Texas is a civil liberties disaster. Kudos to the Court of Appeals for the Third District of Texas for overturning -- at least for the time being -- this horror. See Martha Neil, "State Wrongly Removed 400 FLDS Kids, Texas Appeals Court Says," ABA Journal Law News Now (May 22, 2005) and In re Sara Steed, et al.

Judging by some news reports and the opinion of the (courageous) Texas Court of Appeals, Third District, Austin, it seems possible that the evidence of child sexual abuse consisted solely of (i) the "belief system" of the FLDS and (ii) five women or girls who became pregnant while they were between 15 and 17 years old. There was apparently no evidence about how these teenagers became pregnant. Are we all aware of communities in the U.S. in which teenage pregnancies are rather more frequent than they apparently were at the FLDS ranch in Texas? Was the risk of child sexual abuse at the FLDS ranch greater than it is at a randomly selected household with children somewhere in the U.S.?

The FLDS raid and the separation of more than 400 children from their parents are reminiscent of Janet Reno's disastrous decision in 1993 to let the FBI and other law enforcement personnel invade the Branch Davidian compound in Waco when she received reports that children in the compound might be at risk of sexual abuse. Janet Reno seemingly applied a radical form of the precautionary principle--the principle, in her case, that no harm is too great if inflicting it is necessary to eliminate even the slightest chance of the sexual abuse of a minor. The Texas Child Protective Services seems to have operated under this sort of Renoesque principle, which is a recipe for disaster.

Annals of Jurisprudence: Earprint Evidence

Regina v Kempster, Court of Appeal, Criminal Division [UK] (May 7, 2008), reported at "Ear-print evidence probative only if minutiae identifiable," Times Online (May 16, 2008)

Two New Old (1986) Papers Posted on SSRN

I have posted two old papers on the SSRN archive.

One paper -- Mapping Inferential Domains -- needs to be there in part because the paper has several images that cannot be found in the LEXIS and WESTLAW databases.

The other paper -- Introduction to Symposium on Probability and Inference in the Law of Evidence: The Uses and Limits of Bayesianism -- needs to be there because this introduction was not included in the book that grew out of this symposium.

Besides, both papers are interesting and I think you should read them.

Probable Origin of Term "Circumstantial"

James Franklin, The Science of Conjecture: Evidence and Probability before Pascal 32 (Johns Hopkins, 2001) (footnote omitted):

[Baldus de Ubaldis, in his late fourteenth century commentaries] mentions a kind of presumption called circumferent, which proves only when collected with others, apparently the origin of modern "circumstantial" evidence.

The Courage and Love of Justice Sandra Day O'Connor

The story of Justice Sandra Day O'Connor's struggle with the consequences of Alzheimer's disease is quite moving. (Her husband is afflicted with Alzheimer's and Justice O'Connor retired early from the Court to help arrange for his care.) Her recent (brief) plea for increased funding for research into this disease is also moving. See Lauren Neergaard (AP), "O'Connor makes personal plea for Alzheimer's aid," philly.com (May 14, 2008).

Jerry Fodor Strikes Again

"As for me, I'm inclined to think that Chicken Little got it right. Abduction really is a terrible problem for cognitive science, one that is unlikely to be solved by any kind of theory we have heard of so far." Jerry Fodor, The Mind Doesn't Work That Way 41 (MIT 2001).

N.B. Many theorists believe there are three (rather than two) basic patterns of inference:

1. deduction
2. induction
3. abduction

Abductive inference involves -- roughly speaking -- the mysterious business of finding more in information or events than seems to be there in strictu sensu; for example, abduction involves the suggestive character of evidentiary details; it involves events and matters that function as "signs," or hints, as matters that somehow (in the human imagination) point beyond themselves.

&&&

How does Rutgers manage to land so many philosophers with captivating prose (as well as interesting ideas)?

A Malicious Fairy Princess Spreading Spreading Pixie Dust Laced with DNA over European Crime Scenes?

A friend alerted me to the following odd story about the "phantom of Heilbronn." See Tristana Moore, "Germany hunts phantom killer," BBC News (April 21, 2008). European police have recovered "matching" DNA -- DNA said to belong to a single unknown female person -- from crime scenes in a wide variety of areas in Europe involving a variety of crimes (30 sets of crimes) committed over a period of 15 years. The police now think they may be close to identifying the perpetrator -- either that or the source of this DNA. It will be very interesting to see how this story unfolds.

Character Evidence in New Zealand

Section 40 of the New Zealand Evidence Act of 2006 provides:

40. Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—

(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.

(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.

(3) However, propensity evidence about—

(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and

(b) a complainant in a sexual case in relation to the complainant's sexual experience may be offered only in accordance with section 44.

(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

New Zealand's treatment of character evidence differs from the U.S. treatment of such evidence in at least two interesting ways:

1. In New Zealand the default rule now is that propensity evidence is admissible.

2. In New Zealand the use of propensity on the issue of veracity -- or, as I would put it, on the issue of the probative value of conduct offered testimonially -- is completely separated from the use of propensity to show conduct that is not offered testimonially.

&&&

A quick read of Section 43 of the New Zealand Evidence Act of 2006 suggests that the main constraint in New Zealand on the use of propensity evidence against criminal defendants is the principle of undue prejudice.

Observations:

1. New Zealand's undue prejudice approach expressly grants much discretionary authority to trial judges.

2. How far do Sections 40 and 43 sanction the use of group behavior, propensities, and characteristics to show individual behavior? Do Sections 40 and 43 have any effect on how far and under what circumstances such evidence is admissible to show individual behavior or characteristics, either in criminal or civil cases?

Japan: Underlawyered or Overlawyered -- or Who Knows?

There was a fascinating article in the Japan Times online about the reason for having or not having many lawyers. See Colin P.A. Jones, "Law Schools Come under Friendly Fire," Japan Times online (Jan. 28, 2008). Among the points made by the protagonists in the debate (which takes the form of a debate about the number of persons who ought to be allowed to pass the annual bar exam) are the following:

The number of people allowed to pass the annual bar exam is fixed at an absolute number.

Japan's Justice Minister Hatoyama is challenging the current plan to increase the number of annual admittees from 1,500 to 3,000 by 2010.

My research shows that the current population of Japan is roughly 127,000,000.

Colin Jones, the author of the article, asserts that regional bar associations have joined the justice minister in questioning the planned increase in the number of planned admittees. He writes:

Unfortunately, in addition to these very valid criticisms, at least some of the bar association comments veer off into self-interest and self-importance, both justified by an alternative form of logic that only applies to protected industries. The Kanazawa Bar Association, for example, argues that more lawyers will result in (gasp!) greater competition. Facing increased competition, goes the logic, lawyers will have to focus increasingly on the grubby task of making money, losing the leisure that is apparently necessary to engage in advocacy for the public good (which is of course one of the mandates of lawyers everywhere). As a result, the number of immoral lawyers will increase as they take on bad, even hopeless, cases just to earn a living.

The pass rate on the annual bar exam was once 2-3%.

The author of the article -- a professor at Doshisha University Law School in Kyoto -- opines: "That the number of lawyers generated by the new law schools has become an issue already, when the impact so far is a relatively modest increase, reflects one of the core problems with the whole system — that it was apparently set up without a serious inquiry into what the average person actually needs out of Japan's legal system. Indeed, one fascinating aspect of the whole debate over the number of lawyers in Japan is that it misses a simple, basic fact — that the average Japanese person may not regard the legal system as a useful tool for solving problems. If you are arrested and prosecuted for a crime you will be found guilty over 99 percent of the time. If you get divorced and lose contact with your children, going to court probably won't change a thing. Lawsuits against the national government are shown to be losing propositions almost daily in the news. Small wonder then that Japanese people are averse to litigation, when it is so often proven to be futile."

Editor of Durham Newspaper (belatedly?) Admits Mistakes in Duke Lacrosse Case

"Executive Editor Bob Ashley of the Durham (N.C.) Herald-Sun, which has been criticized by some for its coverage of the Duke University lacrosse case, said the newspaper should have realized sooner the charges were false." Joe Strupp, "Herald-Sun Editor Admits Paper Erred On Duke Lacrosse Case," Editor & Publisher (April 10, 2008)

The Proceedings of the Old Bailey, 1674-1913 -- ONLINE

A treasure trove: The Proceedings of the Old Bailey, 1674-1913

The online blurb states:

A fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published, containing 197,745 criminal trials held at London's central criminal court.