See C-Span for an interview with Sally Satel.
See her book Brainwashed: The Seductive Appeal of Mindless Neuroscience (2013).
Evidence marshaling software MarshalPlan
Saturday, June 08, 2013
Neuroscience, Deception, Neurolaw & More
Evidence marshaling software MarshalPlan
Excellent Op-Ed by Gail Collins on NSA Spying and Obama
Gail Collins, Intelligence for Dummies NYTimes (June 7, 2013).
Snippets (but do read the entire op-ed column):
"'Nobody is listening to your telephone calls,' President Obama assured the American people on Friday. Well, probably nobody. And, if they are, it’s under an entirely different part of the program.
...
"Let’s start with the real basics. Does the N.S.A. really need all the stuff it’s collecting? Ever since the attack on the World Trade Center, the agency has been exploding. It has an enormous operation outside of Washington, and it is building another million-square-foot complex in the Utah desert. It collects an estimated 1.7 billion pieces of communication a day. 'When you have the ability to get more and more data, the natural inclination is to get as much as possible,' said Representative Henry Waxman, the former chairman of the House oversight committee.
...
"...[W] e do seem to have an ominous combination: an agency with a bad record on thriftiness, and practically everything it spends money on is secret. 'It’s a tough balancing act,' an Obama administration official told me. 'It’s incumbent on us and Congress to do the job of scrutinizing the budget, both in terms of cost and efficacy.'
"Yeah, what about Congress? The president keeps saying that “Congress is continually briefed” about security issues. In reality, the briefing is pretty much confined to the members of the House and Senate intelligence committees, who are sworn to secrecy. Many of them also have a longstanding record of being in the pocket of the intelligence community. A few of the others had been desperately trying to warn their colleagues about the telephone-call program without breaking their vow of silence. Senator Ron Wyden of Oregon did everything but tap dance the information in Morse code.
...
"I wouldn’t rely on Congress to keep things under control. It’s really up to the president. As a candidate, Obama looked as if he would be great at riding herd on the N.S.A.’s excesses. But if he has ever seriously pushed back on the spy set, it’s been kept a secret. Meanwhile, the administration scarfs up reporters’ e-mails and phone records in its obsessive war against leaks.
...
"“I welcome this debate,” Obama said Friday. “I think it’s healthy for our democracy.” Under further questioning, he said that he definitely didn’t welcome the leaks. Without which, of course, there would be no debate.
"Do you remember how enthusiastic people were about having a president who once taught constitutional law? I guess we’ve learned a lesson."
Evidence marshaling software MarshalPlan
How PRISM May Work
This is an interesting and important technical discussion of how PRISM could work (and enable NSA to read, e.g., your e-mail messages) without the knowledge or consent of ISPs such as Google and Microsoft:
PRISM: Here's how the NSA wiretapped the Internet ZDNet (June 8 [sic], 2013).
N.B. ZDNet astutely noticed that President Obama parsed his words very carefully on June 7 when denying that NSA's surveillance programs are unduly intrusive.
Evidence marshaling software MarshalPlan
Thursday, June 06, 2013
Compounded Misrepresentations by Eminent People
A staff member did it!(?)
Why is it that eminent people with false statements on their c.v.'s and grant applications are allowed to blame anonymous staff members for the misrepresentations? See, e.g., Jennifer Schuessler, Leader of Scholarly Society To Step Aside During Inquiry Into Her Credentials NYTimes (June 6, 2013). If it's your c.v., it's your obligation to read it and stand behind it!
The dynamic evidence page
Evidence marshaling software MarshalPlan
America, the Surveillance State
Snippets:
"The scale of America's surveillance state was laid bare on Wednesday as senior politicians revealed that the US counter-terrorism effort had swept up swaths of personal data from the phone calls of millions of citizens for years.
"After the revelation by the Guardian of a sweeping secret court order that authorised the FBI to seize all call records from a subsidiary of Verizon, the Obama administration sought to defuse mounting anger over what critics described as the broadest surveillance ruling ever issued.
...
"Intelligence committee member Mark Udall, who has previously warned in broad terms about the scale of government snooping, said: "This sort of widescale surveillance should concern all of us and is the kind of government overreach I've said Americans would find shocking." Former vice-president Al Gore described the "secret blanket surveillance" as "obscenely outrageous".
"The Verizon order was made under the provisions of the Foreign Intelligence Surveillance Act (Fisa) as amended by the Patriot Act of 2001, passed in the wake of the 9/11 attacks. But one of the authors of the Patriot Act, Republican congressman Jim Sensenbrenner, said he was troubled by the Guardian revelations. He said that he had written to the attorney general, Eric Holder, questioning whether 'US constitutional rights were secure'.
"He said: 'I do not believe the broadly drafted Fisa order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.'...
"[White House spokesman Josh Earnest said] the [FISA] order only relates to the so-called metadata surrounding phone calls rather than the content of the calls themselves. 'The order reprinted overnight does not allow the government to listen in on anyone's telephone calls,' Earnest said.
"'The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to call details, such as a telephone number or the length of a telephone call.'
"But such metadata can provide authorities with vast knowledge about a caller's identity. Particularly when cross-checked against other public records, the metadata can reveal someone's name, address, driver's licence, credit history, social security number and more. Government analysts would be able to work out whether the relationship between two people was ongoing, occasional or a one-off."
Charles Savage & Edward Wyatt, U.S. Maintains Vast Database of Phone Calls, Lawmakers Say, NYTimes (June 6, 2013):
"As the scope of the government’s collection of logs of Americans’ domestic communications started to come into greater focus on Thursday, privacy groups erupted. Anthony Romero of the American Civil Liberties Union said that group — a client of Verizon’s business unit — was considering filing a lawsuit to challenge the 'dragnet' surveillance, and said liberals would be furious had such a program been disclosed under a Republican administration.
"'A pox on all the three houses of government,' he said. 'On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values.
&&&
Charles Savage & Edward Wyatt, U.S. Maintains Vast Database of Phone Calls, Lawmakers Say, NYTimes (June 6, 2013):
"As the scope of the government’s collection of logs of Americans’ domestic communications started to come into greater focus on Thursday, privacy groups erupted. Anthony Romero of the American Civil Liberties Union said that group — a client of Verizon’s business unit — was considering filing a lawsuit to challenge the 'dragnet' surveillance, and said liberals would be furious had such a program been disclosed under a Republican administration.
"'A pox on all the three houses of government,' he said. 'On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values.
Evidence marshaling software MarshalPlan
"Narrative Science" and the CIA
Evidence marshaling software MarshalPlan
Friday, May 31, 2013
The Case of the Angel of Death
Duncan Campbell, Fresh evidence challenges 'Angel of Death' nurse Colin Norris's conviction, Guardian (May 20, 2013):
"Fresh medical and scientific evidence is being published this week that campaigners hope will lead to the release of Colin Norris, the former nurse and so-called 'Angel of Death' serving life for the murder or attempted murder of five elderly women.
"The Criminal Cases Review Commission (CCRC) has confirmed it is undertaking an active re-examination of the case.
"Norris, 37, originally from Glasgow, was convicted at Newcastle crown court in 2008 following a 19-week trial. It was alleged that he disliked elderly patients and had deliberately injected the women with insulin. The case had echoes of the late Dr Harold Shipman, who was convicted of murdering 15 of his patients but believed to have killed many more.
"However, a new study challenges much of the evidence on which Norris was convicted. Campaigners are hopeful that fresh evidence will lead to an appeal in which it can be shown that the women could have died of natural causes."
Evidence marshaling software MarshalPlan
Whitey Bulger
Evidence marshaling software MarshalPlan
Tuesday, May 28, 2013
Letting Go (of Books etc.)
Stanley Fish, Moving On, NYTimes (May 27, 2013):
Snippets:
"I’m not going to go on forever. ...
"... Behind these musings is a word I can barely utter — 'retirement.' ..."
&&&
I recently retired from full-time teaching - but not from writing. So I threw away some of my books, but not most of them. In any event, quite a few of my books are for purely personal pleasure and are still unread. So I can't throw those away, can I?
&&&
The dynamic evidence page
Evidence marshaling software MarshalPlan
Snippets:
"I have sold my books. Not all of them, but most of them. I held on to the books I might need while putting the finishing touches on a manuscript that is now with my publisher. I also kept the books I will likely need when I begin my next project in the fall. But the books that sustained my professional life for 50 years ... are gone.
...
"The ostensible reason for this de-acquisition is a move from a fair-sized house to a much smaller apartment. It is true, as Anthony Powell said in a title, that books do furnish a room, but in this case, too many books, too little room. But the deeper reason is that it was time. What I saw on the shelves was work to which I would never return....
"... I had always thought that I could return to my annotated copies of familiar texts and pick up where I left off. That fantasy, I now see, was part and parcel of the core fantasy that I would just go on forever, defending old positions, formulating new ones, attending annual conferences, contributing to essay collections, speaking at various universities, teaching the same old courses, confidently answering the same old questions.
"I’m not going to go on forever. ...
"... Behind these musings is a word I can barely utter — 'retirement.' ..."
- Addendum: Some of my "academic" interests survive my retirement; some of the questions I ask myself genuinely interest (and preoccupy) me.
Evidence marshaling software MarshalPlan
Monday, May 27, 2013
The Crack Baby Story: Another Example of the Abuse of Statistics
The recent misleading report of an explosion of sexual assaults in the U.S. military - endlessly cited by politicians, including the President - is not unique. The media (and politicians) have a long history of abusing statistics. See, e.g., Michael Winerip, Revisiting the ‘Crack Babies’ Epidemic That Was Not NYTimes (May 20, 2013).
Evidence marshaling software MarshalPlan
Friday, May 24, 2013
Role of Conjecture in Investigation
The following passage has implications for investigation in legal settings:
"The mark of a good theory is that it makes unexpected predictions that can be put to the test. If the predictions are incorrect you throw out the theory. Supersymmetry, for example – one of the current proposals for how to go beyond the physics of the Standard Model – is beginning to look shaky because we aren't seeing what the theory predicts we should see. It is interesting that, if Weinstein is correct, you would be hard-pushed to stumble on this stuff in the huge slew of data being generated by the LHC. You'd never find this from going from data to theory. Theory is needed to tell you where to look." (Marcus du Sautoy, Eric Weinstein may have found the answer to physics' biggest problems, The Guardian (May 23, 2013).)
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The dynamic evidence page
Evidence marshaling software MarshalPlan
Evidence marshaling software MarshalPlan
Thursday, May 23, 2013
A True Profile in Courage
Evidence marshaling software MarshalPlan
Friday, May 17, 2013
Those Blinking Declarations!
Oh, real-world evidence problems are so messy! Consider the case in which the victim of a homicide - before his death - allegedly identified his killer by blinking his eyes three times. See Lisa Cornwell (AP reporter), Ohioan to appeal conviction in 'dying blinks' case Houston Chronicle (May 17, 2013). One thinks of Stephen Hawking.
There were "mundane" problems in the Ohio murder case.
For example, the paralyzed victim had been treated with drugs. The victim "failed to respond" to some questions. Sometimes it was "unclear" how often the victim blinked. During questioning, the victim was shown only one photograph, a photo of the defendant.
The victim died about two weeks after he was questioned by the police.
Did the blinks amount to a "dying declaration"? (Did he think he was dying, did he think his death was imminent, etc.?)
If they did, were the victim's statements "testimonial" for purposes of contemporary Confrontation Clause jurisprudence? (I hesitate to call it "jurisprudence," but ..., oh well.)
Was the identification procedure so unduly suggestive that it violated the federal constitutional guarantee(s) of Due Process?
But, above all (I think), is this question: Did the jury have sufficient evidence to conclude beyond a reasonable doubt that the defendant was the killer?
Evidence marshaling software MarshalPlan
Thursday, May 16, 2013
Proposed new standards for expert witnesses in family court cases in England and Wales
New standards for expert evidence in family courts announced, Consultation launched on exclusion of ‘so-called experts who are not up to scratch’ Fanily Law Week (May 16, 2013?):
Family Justice Minister Lord McNally said:
&&&&&
The article is short on details about how the proposed tightening of requirements for expert testimony will be achieved.
&&&
The dynamic evidence page
Evidence marshaling software MarshalPlan
The Ministry of Justice has proposed introducing new standards for expert evidence adduced in family proceedings so that such evidence can be given only by qualified, experienced and recognised professionals.
The government says that for too long there has been an increasing trend in England and Wales for expert witnesses to provide unnecessary and costly evidence – in the form of further written statements, clarifications and additional court appearances. This, continues the Ministry of Justice, can cause major delays in child care cases and in the worst examples this has led to cases being forced to start again.
Under the new plans, for which there will be a consultation lasting nine weeks, experts who are well-qualified and experienced will continue to provide their service in advising the family courts – but (what it terms) 'the so-called experts who provide evidence which is simply not up to scratch' will be excluded.
Family Justice Minister Lord McNally said:
"Poor quality expert evidence can lead to unacceptable delays for children and their families.
"By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings.
"We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly. It is an opportunity we cannot afford to miss."
"By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings.
"We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly. It is an opportunity we cannot afford to miss."
Evidence marshaling software MarshalPlan
Wednesday, May 15, 2013
Dan Kahan on Some Factors Affecting "Objectivity" (and the lack thereof)
1. Generally. Motivated reasoning refers to the unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs. ...
[snip, snip]
The end or goal motivates cognition in the sense that it directs mental operations — in this case, sensory perceptions; in others, assessments of the weight and credibility of empirical evidence, or performance of mathematical or logical computation — that we expect to function independently of that goal or end. Indeed, the normal connotation of “motive” as a conscious goal or reason for acting is actually out of place here. ...
Although the students in this study [discussed by Kahan] probably would not have been distressed to learn that their perceptions had been covertly recruited by their desire to experience solidarity, there can be other contexts in which motivated cognition subverts an actor’s conscious ends. This might be so, for example, when a person who genuinely desires to be make a fair or accurate judgment is unwittingly impelled to make a determination that favors some personal interest, pecuniary or social.
2. Identity-Protective Cognition. The goals or needs that can motivate cognition are diverse. They include fairly straightforward things, like a person’s financial or related interests. But they reach more intangible stakes, too, such as one’s need to sustain a positive self-image or the desire to promote states of affairs or other goods that reflect one’s moral values.
Affirming one’s membership in an important reference group ... can encompass all of these ends simultaneously. Individuals depend on select others — from families to university faculties, from religious denominations to political parties — for all manner of material and emotional support. Propositions that impugn the character or competence of such groups, or that contradict the groups’ shared commitments, can thus jeopardize their individual members’ well-being. Assenting to such a proposition him- or herself can sever an individual’s bonds with such a group. The prospect that people outside the group might credit this proposition can also harm an individual by reducing the social standing or the self-esteem that person enjoys by virtue of his or her group’s reputation. Individuals thus face psychic pressure to resist propositions of that sort, generating a species of motivated reasoning known as identity-protective cognition.
Identity-protective cognition, like other forms of motivated reasoning, operates through a variety of discrete psychological mechanisms. Individuals are more likely to seek out information that supports than information that challenges positions associated with their group identity (biased search). They are also likely selectively to credit or dismiss a form of evidence or argument based on its congeniality to their identity (biased assimilation). They will tend to impute greater knowledge and trustworthiness and hence assign more credibility to individuals from within their group than from without.
These processes might take the form of rapid, heuristic-driven, even visceral judgments or perceptions, but they can influence more deliberate and reflective forms of judgment as well. Indeed, far from being immune from identity-protective cognition, individuals who display a greater disposition to use reflective and deliberative (so-called “System 2”) forms of reasoning rather than intuitive, affective ones (“System 1”) can be expected to be even more adept at using technical information and complex analysis to bolster group-congenial beliefs.
3. Naïve Realism. Identity-protective cognition predictably impedes deliberations, negotiations, and like forms of collective decisionmaking. When collective decisionmaking turns on facts or other propositions that are understood to bear special significance for the interests, standing, or commitments of opposing groups (for example, those who identify with the respective sides in the Israel-Palestine conflict), identity-protective cognition will predictably exaggerate differences in their understandings of the evidence. But even more importantly, as a result of a dynamic known as “naïve realism,” each side’s susceptibility to motivated reasoning will interact with and reinforce the other’s.
Naïve realism refers to an asymmetry in the ability of individuals to perceive the impact of identity-protective cognition. Individuals tend to attribute the beliefs of those who disagree with them to the biasing impact of their opponents’ values. Often they are right. In this respect, then, people are psychological “realists.” Nevertheless, in such situations individuals usually understand their own factual beliefs to reflect nothing more than “objective fact,” plain for anyone to see. In this regard, they are psychologically naïve about the contribution that group commitments make to their own perceptions.
[snip, snip]
4. “Objectivity.” As naïve realism presupposes, motivated reasoning is an instance of what we commonly recognize as rationalization. We exhort others, and even ourselves, to overcome such lapses — to adopt an appropriate stance of detachment — in settings in which we believe impartial judgment is important, including deliberations or negotiations in which vulnerability to self-serving appraisals can interfere with reaching consensus. What most people don’t know, however, is that such admonitions can actually have a perverse effect because of their interaction with identity-protective cognition.
[snip, snip]
5. Cultural Cognition. Disputes set in motion by identity-protective cognition and fueled by naïve realism occupy a prominent place in our political life. Such conflicts are the focus of the study of cultural cognition.
Cultural cognition refers to the tendency of individuals to conform their perceptions of risk and other policy-consequential facts to their cultural worldviews. ...
Methods of cultural cognition have also been used to measure controversy over legally consequential facts. Thus, mock jury studies have linked identity-protective cognition, motivated by the cultural worldviews, to conflicting perceptions of the risk posed by a motorist fleeing the police in a high-speed chase; of the consent of a date rape victim who said “no” but did not physically resist her assailant; of the volition of battered women who kill in self-defense; and of the use of intimidation by political protestors. To date, however, no studies have directly tested the impact of cultural cognition on judges.
6. Cognitive Illiberalism. Finally, cognitive illiberalism refers to the distinctive threat that cultural cognition poses to ideals of cultural pluralism and individual self-determination. Americans are indeed fighting a “culture war,” but one over facts, not values.
[snip, snip]
As much as they agree about the ends of law, however, citizens are conspicuously — even spectacularly — factionalized over the means of attaining them. Is the climate heating up as a result of human activity, and if so will it pose any dangers to us? Will permitting citizens to carry concealed handguns in public increase violent crime — or reduce it? Would a program of mandatory vaccination of schoolgirls against HPV promote their health by protecting them from cervical cancer — or undermine it by lulling them into unprotected sex, increasing their risk of contracting HIV? Answers to questions like these tend to sharply polarize people of opposing cultural outlooks.
Divisions along these lines are not due to chance, of course; they are a consequence of identity-protective cognition. ...
Far from counteracting this effect, deliberation among diverse groups is likely to accentuate polarization. ...
[snip, snip]
Psychologically, however, the injunction to present culturally neutral empirical grounds for one’s position has the same effect as an “objectivity” admonition. The prospect that one’s empirical arguments will be shown to be false creates the identity-threatening risk for her that she or others will come to form the belief that her group is deluded and, in fact, committed to propositions inimical to the public welfare. In addition, the certitude that empirical arguments convey — “it’s simply a fact that . . . ”; “how can they deny the scientific evidence on . . . ?” — arouses suspicions of bad faith or blind partisanship on the part of the groups advancing them. Yet when members of opposing groups attempt to rebut such arguments, they are likely to respond with the same certitude, and with the same lack of awareness that they are being impelled to credit empirical arguments to protect their identities. This form of exchange — the signature of naïve realism — predictably generates cycles of recrimination and resentment.
[snip, snip]
Evidence marshaling software MarshalPlan
Saturday, May 11, 2013
The Trials of Father MacRae
Evidence marshaling software MarshalPlan
Thursday, May 09, 2013
A Single Underlying Logic of "Intelligence"?
Consider the contrast between
(1) an article trumpeting the hoped-for development of artificial intelligence that is rooted in a single form of logic (allegedly) displayed by, or incorporated in, the physical architecture -- the neuronal physical architecture -- of the brain
with
(2) an article questioning a theory about intelligence (and more) that is rooted in a different kind of "grand unified theory" (a theory called "grand entropic forces").
with
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The dynamic evidence page
Evidence marshaling software MarshalPlan
with
Contrast
Daniela Hernandez, The Man Behind the Google Brain: Andrew Ng and the Quest for the New AI Wired (May 7, 2013)
with
Gary Marcus & Ernest Davis, A Grand Unified Theory of Everything (Post on Blog "Elements"), New Yorker (May 6, 2013).
Evidence marshaling software MarshalPlan
Sunday, May 05, 2013
Darwinian Selection at Large Law Firms
Everett Bellamy, Review: Dirty secrets of legal profession (May 5, 2013):
"[Stephen J. Harper, LAWYER BUBBLE: A PROFESSION IN CRISIS (2013)] argues that the role top law schools play in putting their graduates in large law firms is misguided, particularly in light of the high turnover rate of associates at big firms (the fifth-year associate turnover rate exceeds 80%)."
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Is it even clear that large law firms generally select the "fittest" associates for partnerships?
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The dynamic evidence page
Evidence marshaling software MarshalPlan
Evidence marshaling software MarshalPlan
Thursday, April 25, 2013
Notes on MarshalPlan: Theoretical Underpinnings
In my evidence marshaling software - MarshalPlan - I have a note that might be of general interest. The note is called "A Note on the Theoretical Underpinnings and Purposes of MarshalPlan." I said this (sometime in 2012 or earlier):
A Note on the Structure of This Note
My motivations for developing MarshalPlan have been theoretical as much as practical. But I did not and I do not see a tension between my theoretical and practical ambitions. My neo-empiricist inclinations lead me to conclude that a sound theory of inference must be able to prove itself in the world. By developing MarshalPlan I wanted to both explore and illustrate some basic hypotheses about the nature of (wo)man's acquisition of knowledge about his (her) world.
Since my constructivist agenda was positive rather than negative, I have not used any part of the other notes embedded in MarshalPlan to make arguments against views of evidential inference that I think are mistaken. My thought was that the success or failure of MarshalPlan would be the primary test of whether my own views are or are not mistaken. However, now that I have largely completed the outline of a working model of MarshalPlan, I think it might now be useful for me identify the theoretical premises and perspectives that I do not have and that do not undergird the MarshalPlan project. So I will do that. But I will describe (below) those rejected perspectives only in a shorthand way. This is why I use the word "dogma" below to refer to my view about this or that perspective that I find wanting.
After identifying some theoretical perspectives that I do not embrace, I describe (below) some of my key affirmative hunches about the nature and foundations of empirical human knowledge. These are theses that either have supported the development of MarshalPlan or they are theses that are supported by the development of MarshalPlan.
Theoretical Dogma Number 1
There is a long-running debate in the American legal academy and elsewhere about the use of mathematics to analyze evidence in trials. This debate is a red herring; it misses the boat; it does not address the fundamental issues about evidential inference. This is not to say that questions about when mathematics might or should play a role in evidential argument in legal settings are uninteresting or unimportant; they are both interesting and important. I also do not claim that discussions that focus of the role of mathematics can or have said nothing about fundamental epistemological issues. That's not the case. Such discussions can and sometimes do touch on fundamental questions and in this way shed light on key facets of inference and reasoning from evidence. But such a defense of the debate about mathematical analysis of evidence is a bit like saying that WWII was a good thing because it led to the development of V-2 rockets. The debate about mathematical analysis of evidence has caused more intellectual havoc than enlightenment.
Theoretical Dogma Number 2
There have been arguments, both within the literature on evidential inference narrowly conceived and in the broader philosophical literature, that inference is fundamentally subjective. I have occasionally made such arguments myself.
The claim that human inference is subjective is true but trivial.
Human beings (and sharks and other organisms [see below]) do have some capacity to draw accurate inferences about the world. If they did not, they could not have survived as long as they have -- unless they had an extraordinary amount of dumb luck. In any case, accomplishments such as the development of the internal combustion engine, the development of nuclear weapons, the development of the microchip, and the construction of cathedrals that often manage to stand for decades and sometimes for centuries is evidence enough that accurate factual inference is sometimes possible. Complete epistemological or inferential relativism or skepticism is a non-starter for any serious student of human evidential inference.
Theoretical Dogma Number 3
The opposing thesis -- the thesis that there are objective methods of drawing inferences about human behavior -- is, however, also incorrect. This thesis is incorrect if by the word "objective" we mean self-standing (or autonomous or largely-autonomous) methods of reasoning, artificial methods of reasoning that can replace ordinary, seemingly-sloppy, and commonsense human methods of reasoning about matters such as human behavior.
Usually such objective methods are not available. This is true even though it is also true that some problems or questions in our world are now configured in such a way that artificial and autonomous methods of ratiocination, rumination, or computation can yield solutions that are less likely to be wrong than those reached by unaided human common sense.
As you can see, this dogma -- Dogma Number 3 -- is closely related to Dogma Number 1, my dogma about the irrelevance of much of the longstanding debate about mathematical analysis of evidence and inference.
The brain -- or the neurobiological system -- or possibly we will have to call it the neuro-electro-magneto-biological system -- is a very complex mechanism. Some persons say that it is the most complex mechanism in the universe. They may be right about that. Whether they are or not right about that, it is unlikely that artificial methods of computation (such as computer-based computation) can replace the human brain anytime soon. True, as I said earlier, in some domains computers can outperform humans; for example, computers can now play chess and checkers better than even the most extraordinary humans can. But in most arenas computers do far less well than human beings do. That's likely to be the case for some time to come.
Theoretical Dogma Number 4
Given Dogma Number 3, it does not follow that theorizing about inference is pointless. On the contrary: it is possible for theorizing about inference to have both theoretical value and cash-value: it is possible that theorizing about inference can lead to improvements in both our understanding of evidential inference and in the quality of real-world inference in legal settings.
Given our present understanding of evidential inference and given the limitations on our current understanding of evidential inference, there is reason to believe and hope that images of reasoning about evidence can improve human inference if such images are used ctogether with with ordinary reasoning and common sense logic. More precisely stated, it is possible for images (or pictures) of inference to be a useful tool of common sense, it is possible for images of evidential inference to support, facilitate, and enhance natural, or pre-existing, methods of human reasoning about evidence. This is roughly the fundamental insight that Timothy van Gelder holds and purveys, and I align myself with him. (However, Tim bears no responsibility for the details of the MarshalPlan system or for its many defects and failings.)
(No more dogmas!)
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Those are some of my theoretical beliefs and dogmas. But now I must tackle a hard question rather than an easy one:
What sorts of images of inference, what sorts of cognitive tools, what sorts of models of inference are likely to be helpful?
I begin my attack on this question by making a few more comments about the general direction that theorizing about inference might take and why this general tack might turn out to be productive.
The brain -- or the human neurobiological system, or possibly the human electro-magneto-neuro-biological system -- is a computational mechanism of enormous complexity, subtlety, and power. A model of inference -- an artificial construct -- might try to capitalize on the power of this natural mechanism and make it function more effectively.
How could an image or images of inference do that?
Stated most abstractly, my answer is this: an image or model of evidential inference could improve the quality of human inferential performance if it could trigger natural computational mechanisms and processes (such as those in the brain) and make it possible for human beings to use their native, or inbred, computational mechanisms and processes more efficiently, more effectively, and more productively.
That artificial devices might be helpful or useful in this derivative way -- that images or models of evidential inference could serve as handmaidens of natural human reason -- that some artificial constructs depicting inference might be useful cognitive tools, or helpful cognitive crutches -- that appropriately-drawn images of inference might function as supports for native human reasoning -- is suggested by two considerations.
First, any particular line of reasoning about any real-world problem almost inevitably involves multiple steps. Properly designed artificial devices -- cognitive tools, heuristic devices, inference support tools, whatever they are called -- might well improve the ability of humans literally to keep in mind -- to keep in conscious thought, to be more aware of, to have more awareness of -- the steps in any train of reasoning that they decide to follow when considering any particular factual hypothesis.
Second, human beings reason about evidence and the world along multiple tracks, in a multitude of ways. Even though the brain is a very powerful mechanism, it is not an infallible one, and the different ways of thinking or reasoning or the different tracks the mind takes are difficult to keep in mind (so to speak) at the same time. But these different tracks, these different ways of thinking about a problem, influence each other. So keeping multiple lines of reasoning in mind at the same time is important; indeed, it is essential. Cognitive crutches can help mortals keep in mind the many different tracks along which their minds are running.
In sum, there is reason to think or hope that artificial tools (including, for example, simple diagrams and checklists drawn on paper) can make it easier for human beings to literally better keep in mind their various ways of thinking about a factual question and the numerous steps that human beings characteristically take and construct within each track of the many tracks of thinking that they follow.
The next question is what particular sorts of images or models of evidential inference are likely to be useful and necessary.
Overview of Evidence Marshaling Methods in MarshalPlan
Much recent theoretical work on inference centers on inference networks. Such work is very important and it must continue. However, MarshalPlan has relatively little to say about inference networks. It focuses on other methods or marshaling or organizing evidence. MarshalPlan emphasizes comparatively simple evidence marshaling strategies methods such as event time lines, scenarios, and marshaling of evidence by legal rules.
Card Number 2 of the stack Network Manager -- the card in which this notes is embedded -- serves in part as an outline of the evidence marshaling methods found in MarshalPlan.
Card 2
The evidence marshaling strategies pictured on Card Number 2 can be sorted into several broad categories.
In one set of methods TIME plays a central role. This is is true of event chronologies, or time lines. It is true of scenarios. And it is true, in a more complicated way, of narrative and story-telling.
Nota Bene: There are several sub-categories of time lines: (1) time lines of the events at issue in a case, (2) time lines that show the history of sources of evidence (both so-called real evidence and human sources, or witnesses), (3) time lines showing the order in which evidence is collected, handled, and presented. Each of these categories can have subcategories or subdivisions: For example, time lines for events at issue include time lines showing the possible events over time related to possible actors in the possible events at issue.
Another set of evidence marshaling methods deals with the influence of legal doctrines and norms on evidence marshaling, analysis, collection, and assessment in legal settings. I am now referring, for example, to the red buttons (or links) called Legal Rules, Legal Argument, Legal Source Material, and Evidence and Material Facts. These and other stacks deal, in the aggregate, with "legal marshaling," which is my shorthand phrase for the way that legal doctrines and legal norms influence the gathering and assessment of evidence.
Another set of evidence marshaling methods amounts to little more than a system for filing evidence and information. These are the methods (or stacks) called Raw Evidence, Legal Source Material, Persons, Analysts, Legal Actors, and so on. It is probably true that the filing of information on the basis of such categories ordinarily does not require great intellectual labor. Nonetheless, the filing of evidence and information on the basis of such categories is not a trivial act. Evidence and information can be more easily accessed and recalled and evidence and information are also more suggestive and evocative if they are stored on the basis of meaningful concepts, i.e., according to categories or classifications that are meaningful to the user.
Another group of evidence marshaling strategies in MarshalPlan's collection of evidence marshaling strategies inches toward the development of inference networks. Thinking of inference as a network or web of inference is mainly but not exclusively useful when the factual questions are stable and the available evidence is know. In situations such as this -- in situations in which the facts in issue seem relatively stable -- a decision maker is most likely to want to focus on evidence sorting methods such as Evidence of Material Facts, Evidence for and against Material Facts, Witness Credibility, and Argument about Evidence, or Probative Value.
This above outline of types of evidence marshaling strategies two important strategies shown on Card Number 2 of Network Manager unaccounted for.
One important strategy not yet discussed is is the cognitive strategy or process here called Case Theory.
As it now stands, the stack Case Theory is less a picture of how this evidence marshaling strategy works than it is a general reminder that, first, there is a very important synthetic or constructive aspect to factfinding and evidential inference, second, the various evidence marshaling strategies identified and described by MarshalPlan influence each other and depend on each other, and, third, the strength of a claim to have correctly or plausibly determined the important legally-material facts depends in large part on the extent to which the various evidence marshaling strategies that a decision maker uses are in harmony with each other and reinforce each other and, thus, on the the extent to which evidence marshaling strategies taken together generate a state of mind of epistemic equanimity, an epistemic reflective equilibrium. (If I were a brilliant programmer, which I am not, I could figure out how to develop a Case Theory stack that would allow the user to rotate through all of the evidence marshaling strategies shown in the Network Manager stack while still keeping, to some substantial degree, all evidence marshaling strategies in the mind's eye.)
Another group of stacks (or evidence marshaling strategies) lies at almost the opposite pole from the case theory stack (that is, at the opposite pole from thinking about the whole ball of wax). Case theory development involves synthetic thinking -- which in this instances involves the attempt to view the various parts of evidence marshaling in relationship to each other and the attempt to sense the degree to which the results of various evidence marshaling strategies are consistent with each other. This kind of synthetic and global thinking becomes tends to become most explicit once the key ingredients of an inferential puzzle have been identified and studied. But reasoning about evidence also involves and requires exploratory thinking. Several stacks in Network Manager are designed to facilitate and support imaginative thinking about possibilities. See, for example, the stack Possibilities and the stack Loose Thoughts.
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You have been presented with a general sketch of the evidence marshaling strategies that are collected in MarshalPlan. The collection of strategies I have described looks a bit like a network. But the collection of strategies in MarshalPlan is not a true network; it is a quasi-network. This is not an accidental feature of MarshalPlan; it is a central feature of MarshalPlan.
In my picture of evidence marshaling, the results of any one kind of evidence marshaling -- for example, of marshaling by time line, legal rules, etc. -- the results of any one kind of marshaling do not have determinate, or computable, implications for any other type of evidence marshaling. For example, any specific time line is logically compatible with innumerable scenarios. However, it is my hypothesis that the evidence marshaling strategies in my collection nevertheless do influence each other. For example, an assessment of the plausibility of some scenario may be affected and is likely to be affected by my assessment of the credibility of this or that witness. This is why I call my network a quasi-network even though MarshalPlan is not a true network.
On this point, I entirely embrace David Schum's thesis (which he advanced in a different context) that marshaling evidence in one particular way may be evocative of or suggestive of evidence marshaling that has a different axis and follows a completely different logic.
I believe that a quasi-network better portrays how the mind -- the accessible part of the human mind, in any event --, how the mind works when it ruminates about evidence in legal settings (and, putting aside legal marshaling, how the mind works in other settings as well).
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But how, you might ask, did I arrive at the evidence marshaling strategies and methods that are included in MarshalPlan, that are found in the catalogues of evidence marshaling operations or methods found in places such as Card Numbers 2 and 3 of Network Manager and in places such as the stack Loose Thoughts?
The answer is that a variety of considerations -- a bit of logic, a bit of philosophy, some personal legal experiences, and so on -- led me to the list of evidence marshaling strategies now found in MarshalPlan. But it is very important for me to say and forthrightly admit that subjective introspection was a critical source of my catalogue of evidence marshaling strategies; that is, I peered into my own mind and I tried to see how I think about evidence and how I organize evidence in legal contexts such as litigation; I tried to identify the different ways that I, Peter Tillers, think about evidence when I try to understand evidence and assess its implications.
So it is fair to say that in many respects MarshalPlan has an affinity with mind maps. However, a mind map isn't worth much if it's just a map of one person's idiosyncratic mind. You and I may think in different ways about evidence. The fact that I think one way may just demonstrate that I have an enormous capacity for self-delusion or that I am very stupid. It is also possible that things I do not understand or see drive me to think the way I do. But there is reason to think and hope that MarshalPlan is more than just a map of the way one particular human creature, Peter Tillers, thinks.
I do have an quasi-objective explanation or justification for some of the methods on my list of evidence marshaling strategies. For example, I believe that plausible ontological considerations support the thesis that almost every factual issue either explicitly or implicitly also presents a question about scenarios. I have similar quasi-objective explanations and justifications for several other evidence marshaling strategies. Beyond that, I appeal to common experience -- both your subjective sense of how you think when you think about evidence and how society (e.g., particular legal rules) tends to say that evidence should be marshaled and analyzed.
Conscious Logic (or Folk Logic) versus Subconscious Logic
But if I purport to be thinking rigorously, I cannot ignore the type of challenge laid down by some very serious students of artificial intelligence, brain science, and consciousness: What is my justification or explanation for focusing on conscious mental processes rather than the real logic that perhaps drives or might drive the workings of our brains?
My general answer is this: although I entirely agree that at least some subterranean brain processes may help to shape the way we think, it does not follow that conscious mental processes are nothing more than epiphenomena. In any case, we do not yet understand subterranean brain processes well enough to show in detail how they make us think as we do. So the thesis of the reality and potency of mental processes that are visible to our consciousness, to introspection, is, at a minimum, a good working hypothesis. (This working hypothesis might even turn out to be true in the long run and it might turn out to be the case that the influence of subterranean neural processes on human thinking has been exaggerated by critics of so-called folk logic.)
Multiplicity and Simplicity
The evidence marshaling methods found in MarshalPlan are both varied and relatively simple. In some quarters, these features of MarshalPlan might be considered defects because, first, it might be supposed that the process of drawing inferences cannot be that messy and inelegant and because, second, it might be supposed that the process of assessing evidence and drawing inferences from evidence really can't really be as simple as I seem to suggest or suppose.
My general answer would be that the real-world drawing of inferences about real-world factual questions is in fact a very messy business -- a process that involves a large variety of ways of thinking.
If some one were to ask me, What is the key to factual inference?, I might give a variety of answers. But my first response should be to say that there is no magic key to factual inference. I should begin by saying that drawing inferences requires the use of many keys. If someone were to say to me that one logic (e.g., Bayesian logic) animates or underlies all valid factual inference, I should then say, Even if that is true -- even granting your premise -- it does not follow that only that one logic is needed to do inference. It is as if you said to me, A trip to Mars requires the equation F = MA. In response, I would say, Yes, perhaps you're right, but making a trip to Mars requires a great many other things as well. In any event, although some of the things I must do to get to Mars -- for example, get astronauts to read dials carefully or get machines to record sensory signals to a certain degree of accuracy -- may well be governed by F = MA (or by some other universal equation or equations of your choice), I don't yet understand precisely how reading dials is governed by that equation and, until and unless I do, I will have to use something other than F = MA to teach astronauts (or machines) how to read dials carefully and accurately. So, you see, in addition to a rule such as Bayes' Theorem, I need procedures for storing legal rules, making legal arguments, constructing time lines, keeping track of persons, thinking about possibilities, and so on, and on, and on.
This point moves us to the second major feature of the evidence marshaling strategies found in in MarshalPlan: their seeming simplicity. Those methods seem to be little more than common sense. Is that a defect?
Not necessarily.
Common sense is, yes, aw shucks!, quite common. But it does not follow that common sense lacks intelligence. If common sense and intuitive sense were not intelligent, (wo)man would long since have perished from the earth. (I grant you that this argument suggests that sharks are quite intelligent. Yes, in certain respects, they are quite intelligent. That is one reason why they have existed -- apparently -- for hundreds of millions of years.)
The miracle of the human mind is some respects like the miracle of human life: we do not understand very well how we manage to think as well as we do but in fact our seemingly shoddy and shabby and sloppy and simple methods of thinking often work quite well, thank you. So if the evidence marshaling strategies found in MarshalPlan look and are relatively simple, that does not necessarily count against them. Those simple methods may be effective tools for evoking simple but intelligent, or effective, ways of thinking. Yes, I grant you, it almost surely must be the case that very complex processes produce, or underlie, these simple forms of conscious thinking and ordering, and it may also be the case that if we could grasp and explicitly describe those complex processes, we could think and infer much better than we do at present. But we cannot wait until heaven arrives. We must make our best guesses now.
I have often puzzled over fuzzy logic. Despite occasional claims to the contrary (see, e.g., the work of Susan Haack), I have the sense that fuzzy logic is sometimes a powerful tool for the management (control) of real-world processes. That this should be so may seem a mystery -- because fuzzy logic, to the extent that I understand it, is far more akin to a semantic theory than to a causal theory; that is, although fuzzy logic largely or entirely abjures causal accounts of natural processes, it often seems to control those selfsame natural processes quite nicely, thank you. How is this possible?
My guess is that the power of fuzzy logic in the world of nature is possible because (i) fuzzy logic is indeed at heart a semantic theory and (ii) our words and concepts (including our ordinary words and concepts) somehow harbor, in a way we do not understand, much knowledge about our world. An analogous notion may explain why the ordinary and commonsense procedures found in MarhalPlan work -- and why they work as well as they do (if, that is, they do indeed work well, which remains to be seen): carefully disassembling and then reassembling some of our common ways of making good guesses about our world may lead to important advances in our general understanding of how human beings manage to understand the world to the extent that they do.
Postscript
I cannot claim sole credit for MarshalPlan. I have hesitated to identify my collaborators because I don't know if they want to take credit or blame (as the case may be) for the current version of MarshalPlan. But I do feel impelled to note that the current version of MarshalPlan grew out of a joint NSF reserach project that David Schum and I conducted years ago. We summarized many of the major results of our research in P. Tillers & D. Schum, "A Theory of Preliminary Fact Investigation," 24 University of California at Davis Law Review 931 (1991).
I may not know much about evidential inference or much about matters such as investigative discovery. But if I know anything worthwhile about such things, it is largely because I had a master teacher, David A. Schum. (I am also deeply indebted to William Twining, Richard Lempert, David Kaye, and many other luminous intellects and wonderful human beings. I hope they will forgive me for failing to name them here.)
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The dynamic evidence page
Evidence marshaling software MarshalPlan
Evidence marshaling software MarshalPlan
Tuesday, April 16, 2013
The Ideological and Intellectual Detritus of a Tragedy: premature judgments in investigations
There were two bomb explosions in Boston yesterday. Little if anything is known about the possible culprit or culprits. Nonetheless...
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