33rd / 424th District Courts

The panel this year is something of an homage to the fourtieth anniversary of the Finkelstein-Fairley-Tribe debates in the Harvard Law Review over the use of statistical evidence in legal proceedings. Given the recent popularity of quantitative methods in the legal academy and the growth of computationally intensive methods in areas like on-line retailing, I thought it would be a good time to revisit the question of the place of statistics in the law.

The panel, comprised of Erica Beecher-Monas (Wayne State), George Fisher (Stanford), Jay Koehler (Northwestern), and Mike Pardo (Alabama), will look at the future of statistical evidence from a variety of angles. In addition to a historical look at the old chestnut, People v. Collins, the panel will examine the promise of statistics in generating more rigorous inferences, the philosophical objections to this promise, and how statistics have played out in real courtroom battles. This looks like a very interesting program.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Yes, that river.

I will show my Evidence students various images of inference and proof. I mean literal images (pictures).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

"It was like, 'Here’s a manual, go fly the space shuttle,'" Steve Wlodek, one of the jurors, said Wednesday. Jurors said it took them several days just to figure out how to begin to break down their assignment into manageable tasks — not to mention how to understand the legal terminology (what exactly is conspiracy to commit extortion?). These were early hints of the multiple stumbling blocks they would find as they struggled, but failed, over 14 days of deliberations, to reach a verdict on any of the counts but one. Was the problem mainly complexity? Or was the problem mainly that the jurors were not given tools for managing the complex task they were asked to perform?The article reports that the jurors used Post-it notes. Could they have been given something more flexible and comprehensive?Did the jurors have a simple computer with, say, Word at their disposal? Would that have helped them manage their assignment? The article reports, unsurprisingly I think, that the jurors developed their own tools:After initial frustration and confusion upon arriving in the deliberation room with little sense of what to do next, the jurors laid out a plan.

On large sheets of paper, they wrote down crimes Mr. Blagojevich was accused of committing, and taped each one on the walls around the room. On the sheets: a claim that he had sought political contributions in exchange for legislation to help a local pediatric hospital; another that he had sought a political fund-raising event in exchange for state financing for a school; another that he had sought payments for a law that would benefit the horse racing industry; and so on. The jurors did pretty much what any rational person would do when faced with the many questions they had to resolve.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

If the hypothesis is true (whether or not the cited research supports it), does the same principle apply to law school deans?

I did research for James H. Chadbourn for a number of years while he taught at Harvard Law School. He later asked me to work on the revision of Wigmore's treatise. I got to know Chadbourn very well. (His wife privately called him "bunny.") Chadbourn hated deans -- without exception. I still recall one day when a person, an administrator, dropped by his office at Harvard. (I was sitting behind a small desk doing research -- the old-fashioned way, by reading cases in "hard copy" form.) Chadbourn had been friendly with this administrator. She told him she had been named an assistant dean. From then on, Chadbourn was hostile to her.

I don't know what lay at the root of Chadbourn's contempt for deans. Part of the reason may have been philosophical and temperamental: he was a curmudgeon -- a gentle curmudgeon -- and a skeptic, and he was generally distrustful of authority. Another part of the reason may have been his experiences with authority while he taught at UCLA: the story has it that he fought bitterly against a McCarthyite attempt to purge two junior faculty members who were accused of being Communist sympathizers. (I do not know the details of this story. Does someone in Cyberland have them?)

I have known one person whose perspectives I am fairly certain did not dramatically change when he became a law school dean. Perhaps some of the others were also not corrupted; I'm not sure. However, some of deans I have known in my life were apparently transformed after their ascent to power.

Postscript No. 1: Toward the end of his life, Chadbourn's enmity toward deans abated a little. Initially Chadbourn did not like Dean Albert Sacks of Harvard Law School, particularly because Sacks (possibly on behalf of a law school committee) once chastised Chadbourn after Chadbourn ordered a rude grade-grubbing law student to leave his office. Chadbourn eventually got cancer. Sacks apparently visited Chadbourn often while Chabourn was ill. For this Chadbourn was grateful. To his great credit, Sacks wrote a touching tribute to Chadbourn, 96 Harvard Law Review 91 (1982). He wrote:I came to know Jim well during the past decade -- the period when I was Dean. Clearly, he had established a very special relationship with his students. Year after year, one heard from excited, happy students of his colorful way of teaching, which combined meticulous care for content and pedagogy with a vivid style laced with humor and wit. ... Obviously, he had achieved a genuine mastery of his subjects and his craft.

These accomplishments, impressive as they are, disclosed only one part of the man. Aside from what he revealed of himself in the classroom (and visitors were discouraged), Jim Chadbourn was essentially a private person. Instinctively modest, he preferred to speak little of achievements and undertakings. Sentimental or other emotive feelings were masked, if not buried, by the use of irony, recourse to wit, or a not very convincing display of grumbling. But he and I dealt with each other at a time when he confronted limitations of age and serious illness. I too had recently confronted a difficult illness, and so we were able to achieve a perhaps unusual openness. Jim Chadbourn revealed a clear-eyed sense of his vulnerability, a reluctantly exercised capacity to accept whatever limitations he had to face, accompanied by an unshakeable determination to achieve the goals dictated by his work. Notwithstanding his success as a teacher and the satisfaction it gave him, he chose to retire early in order to devote his time to Wigmore's treatise. His cancer required treatments that were temporarily debilitating. After each treatment, he would bide his time and then go back to work.

What emerged for me was a picture of something more than the great professor and the master craftsman. Here was an indomitable spirit, quietly expressing itself in a cause that could have only one final outcome. Of course he was now limited and vulnerable -- aren't we all, ultimately? Still, he not only completed the work he had set for himself, but he also continued to appreciate the people and experiences around him for which he could still find time. Indeed, I sensed at times that in this period of trial and hardship he felt a special satisfaction, which he characteristically masked.

His friends offered support and encouragement, but we were of little help. What help he received came from within and from one other person -- his remarkable wife, Erika, for whom this time was also one of great trial and, in the deepest sense, of triumph as well.

I was not at all surprised that Jim's students left his classes with the sense that they had learned the subject and, beyond that, had been touched by a man of memorable character. And it was natural for him to tell his first-year classes, during their last hour together, that the students should become not only good lawyers -- that would not be hard for them -- but also good people. His contribution to us all -- his students, colleagues, family, and friends -- was the emample he set of quiet professional excellence, of courage and determination in confronting adversity, and of an understanding and appreciation of life that were genuine and deep though not seen on the sleeve. This is the measure of our loss. This is also the measure of our gain.

Postscript 2: Judge Jack B. Weinstein also wrote a touching reflection about Chadbourn after Chadbourn's death. See Jack B. Weinstein, "In Memoriam: James H. Chadbourn," 96 Harv. L. Rev. 364 (1982). Weinstein said in part (footnotes omitted):In the broad range of James H. Chadbourn's work, there is in each article and book a sense of almost total control of the entire field under discussion in its historical, conceptual, and practical aspects. Chadbourn's work demonstrates a meticulous precision in using supporting data; each sentence is polished, each footnote finely tuned. In a tribute written upon Chadbourn's retirement from teaching in 1974, Professor John A. Dawson referred to Chadbourn's "utterly mad pursuit of the differences between the forms of action." This historical grasp gave his work a sense of context sometimes lacking in contemporary scholarship. His great interest in music, biography, and English literature, his fondness for fishing, as well as his friendships with colleagues and students, helped him "pass on through instruction in law the heritage of humane culture." Dawson's conclusion -- that Chadbourn "is an extraordinary[] teacher, indeed unique, and this in large part because he is a formidable scholar" -- seems unassailable.

...Although his contributions in each of these areas merit analysis, his antilynching works and his contributions to the law of evidence warrant particular attention.

It took a great deal of courage and legal skill to do the necessary field work and then to write Lynching and the Law in the early 1930's in the South. At that time, as Chadbourn pointed out, "[a] new wave of lynchings [had] again made the nation acutely aware of the perennial problem of mob killing." It is a sign of how far we have come -- in large part because of the bravery of Southerners like Chadbourn -- that it is almost impossible today, fifty years after he wrote, to feel the horror evoked by the pattern of lynchings that terrorized and degraded blacks -- and many whites -- in this country. See also the blog post of December 31, 2008 James H. Chadbourn, Lynching and the Law (1933)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

I asked if it was a Sycamore tree. Scott and his mother said it was a beech tree. I said the massive tree must be at least 200 years old. Scott said it was 100 years old.

I had recently purchased a lovely book, John Laird Farrar, Trees of the Northern United States and Canada (Blackwell, 1995). I was determined to confirm that the tree was a beech tree. I turned to pp. 268-269 and I saw:

I then snatched a leaf from the tree and the leaf looks like this:

The leaf looks very much like the leaf of the American beech tree shown in the book.

But then I noticed:

1. The book entry states that there are 9-14 lateral veins on each side. The leaf snatched from the tree appeared to me to have 8 lateral veins on each side. Scott said he saw 9 lateral veins.

2. The book entry said that American beeches are as much as 25 meters high. The beech in Scott's yard, it seemed to me, was taller.

3. An entry in the book states that "[b]ark remains smooth even on mature trees." The bark at the bottom of the tree was gnarled and contorted. But Scott's mother later noted that the tree had become infested with a fungus.

5. An entry in the book states the veins of the American beech trees end in a tooth. I wondered if those were or were not "teeth" I saw on the leaf.

Then I looked over at an entry on the lower part of page 269. That entry deals with the European Beech. I had ignored that entry because the European Beech is a non-native species and I thought it unlikely that the tree in the back yard had been planted there 200 years ago. But then I looked at the picture of a leaf of the European Beech and it looked less serrated than the pictured leaf for the America Beech. Moreover, the entry for the European Beech said that its leaves have 5-9 veins on each side.

So is the tree in the back yard an American Beech or a European Beech?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Easterbrook's opinion seems to paint a picture in which everyone -- the prosecutor, the trial judge, and defense counsel -- fully understood and agreed that hearsay evidence would be admitted. My criticism here does not go to the question of whether the former Texas rule "hearsay evidence is no evidence" is wise or unwise. But I thought that [Judge] Easterbrook is a great believer in freedom of contract and I would have thought he would also be a great believer in the freedom, right, or whatnot of parties to waive or decide to forfeit the benefits of a "technical" rule of evidence such as the hearsay rule. Does he now think that the hearsay rule is so fundamental that a defense counsel should not waive or forfeit its protections in a criminal case? (The opinion emphasizes, not [the] Confrontation [Right], but the hearsay rule.) If Easterbrook thinks defense counsel should retain the option to waive or forfeit the benefits the HS rule, why is he so angry at defense counsel? This would not be the first time (or even a rare time) that defense counsel has appealed on a ground forfeited or waived at trial.

I am clearly missing something, yes?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

However, there are not just two levels of awareness, the conscious and the unconscious. There are degrees of awareness; awareness is a continuum.

Furthermore, the status of some awareness of something is not always fixed or static; awareness that is relatively subterranean in the human mind can become more explicit, more conscious -- and, presumably, the reverse can happen.

These facts must be taken into consideration when we contemplate the role of reason and explicit argument in inference in legal contexts such as trials. For example, some devices can perhaps help jurors or judges become more aware of some of their thoughts, to spell out more what lies darkly in half-consciousness; and, if this can be done (or already is done), it is possible -- just possible -- that better inferences will be drawn. But don't ask me to prove that this expectation or hope is a reality!

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Phil and I teach Fact Investigation together.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The structure of proof in modern trials cannot be ascertained solely by reference to logic, epistemology, and ontology; timeless logical, epistemological, and ontological principles alone cannot explain the features and workings of forensic proof at a particular time in a particular place. It is necessary to consider empirical fact and historical contingency. But a meaningful description of modern forensic proof – a description or account that amounts to more than a stultifying and largely-useless catalogue of contingent facts – cannot be constructed without reference to (valid) principles of logic, epistemology, and ontology. A meaningful account of proof in modern trials must rest on the interplay of timeless necessity and historical contingency – on the interplay of logic, epistemology, and ontology, on the one hand, and historical contingency, on the other hand.

In some instances the interplay of historically contingent matters and timeless necessities generates almost ineluctable implications for any system of forensic proof. For example, if a society or legal system values truthfinding to some degree, it is practically certain that (i) truthfinding cannot be the only objective of a trial (or any other legal proceeding) and (ii) the amount of time and resources that can devoted to truthfinding is limited rather than unlimited. Given the modern understanding of the character of human factual knowledge, it is almost equally certain that forensic proof can only aspire to produce probable knowledge. Furthermore, given the modern understanding of human cognition, it is practically certain that a society or legal system cannot and will not provide any legal actor (e.g., a judge, juror, or investigator) with an exhaustive set of explicit principles or rules for arriving at an optimal assessment of the probability of the truth or falsity of a factual hypothesis. (No one should expect that any legal system, whether in the near or distant future, will or can use a fully-autonomous robot or procedure to assess evidence.)

The interplay of historical contingency and timeless necessity generates further implications, many of which are little more than hints but are nevertheless useful and important. For example, the American system of forensic proof has the following striking features (among others): (i) extensive pretrial and prelitigation gathering, marshaling, and preparation of evidence; (ii) the gathering and submission of large quantities of small slivers of evidence; (iii) party domination of pretrial and trial evidentiary processes; (iv) extensive argument about evidence; and (v) the use of stories in argument about evidence. These features of American proof suggest (but do not prove) that American society or its legal system embraces the following plausible propositions – and these features of American proof suggest that the following propositions have considerable merit: (i) the deliberate search for and acquisition of relevant evidence generally improves the quality of decision making about the truth or falsity of uncertain facts; (ii) the quality of factfinding is better if there are collections of relevant fine-grained evidence than if the only available evidence is relatively coarse and undifferentiated; (iii) the quality of factfinding in adjudication depends on the quality of preadjudication evidentiary processes, and the quality of preadjudication evidentiary processes in turn depends on exploration of an “adequate” number of factual possibilities; (iv) rational argument about evidence is both possible and helpful; and (v) rational assessment of evidence requires synthesis – “holistic” thinking – as well as “analysis,” the dissection of clusters of evidence into parts. (If these last five propositions about the workings of inference seem self-evident to you, this may show that you have good sense – or that you have become acculturated into certain ways of thinking. In either case, such a reaction to the five propositions shows or suggests that the bramble-bush of real-world evidentiary processes is a good or essential source of insights into factual inference.)

The argument sketched above rests in part on the following two premises (for which support is available and some is adduced): (i) the human animal is an evolving intelligent organism and (ii) the human animal uses, should use, and must use both explicit and tacit methods of calculation and deliberation.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The institutional sponsors of the conference are the Technical University of Munich, the University of Munich, the European University Institute, and Yeshiva University (Cardozo Law School).

The program committee consists of Rainhard Z. BENGEZ (chair), TU Muenchen, Germany; Giovanni SARTOR, European University Institute; Lothar PHILIPPS, University of Munich, Germany; Alessandro SERPE, Federico II University of Naples, Italy; New University of Lisbon, Portugal; Peter TILLERS, Cardozo School of Law, Yeshiva University, USA; Fu Ching WANG, National Yunlin University of Science & Technology, Taiwan.

Depending on the willingness or unwillingness of certain donors and sponsors to contribute money for food, there may or may not be a modest registration fee to help pay for refreshments, lunches, and a dinner. Inexpensive hotel accommodations are available close to EUI.

If you are interested in taking part in this conference, please get in touch with me at peter@tillers.net or Rainhard Bengez at bengez@cvl-a.tum.de

A more formal call for papers will be distributed later.

_____________________________________________________ Draft conference description largely prepared by Rainhard Bengez: 2nd International Conference on
On Proportionality and Justice – Quantitative Aspects of Justice and Fairness

Objectives:

The conference aims to develop a road map and interdisciplinary discussion for social action concerning ethical, legal, and social demands in a multicultural and globalized society characterized by accelerating technological development. Consideration will be given to national and global societal spheres (e.g., aging populations in and mass migrations to highly developed countries) and to the needs of and necessary challenges for law. Furthermore, we wish to explore and narrow the gap between the special role of individuals and quantification in complex and dynamic social systems.

Key words: justice; quantification; probability; international law; compensation; proportionality; deduction; individual dignity, decision making, and responsibility

Conference duration and venue: two days (February 2011), European University Institute, Florence, Italy

Intention:

Institutions and rules are without doubt important social instruments for the standardization of the action options of a community, to regulate living together in a community, and ensure a community's existence and prosperity. But in societies experiencing dramatic demographic change (on the one hand, aging populations in industrial nations combined with accelerating inflows of migrants with diverse cultural background; on the other hand, rapid population growth in developing countries and the increasing role of transitional economies in the structure of the globalization), it is questionable whether existing institutional arrangements and incremental (over)adjustments alone can stabilize and secure social security systems.

As a result of the increasing degree of mechanization and international linkage, various dependencies arise. They lead to more varied and complex (nonlinear) social systems in the form of pluralistic, multi-ethnic, and multi-cultural communities. Nobody knows how to meet the coming challenges of such social systems with fixed rules or rigid institutions. Tensions arising from scarcity of water, scarcity of territory (especially arable land), competition for raw materials, and the risk of environmental harms and catastrophes magnify the potential for conflict. In today's world such tensions cannot be adequately addressed with fixed rules or with slow-acting institutions because in today's world the matters that produce such tensions no longer have an exclusively linear character.

There is a need for an increased emphasis on the individual as a relevant factor and actor – an individual that can act and intervene according its origin, its education, and its own perceptions. In the end, the individual is the entity that is responsible for interpretation and implementation, and the individual is thus a relevant and crucial factor and actor in each human community. Trite but true: rules and institutions do nothing by themselves!

There is also a need for a jurisprudence that accompanies, regulates, and makes possible the living together of most different humans in a cultural and a society system. Historically seen, our culture coined its beginning in Mesopotamia and in the Greek city states. We observe, not only in the Codex Hammurabi and its successors, but also in religious writings, a substitution of the measure of punishment by material compensation – and thus an improvement in the understanding of the meaning of human soundness and of the meaning of life. (Of course, there were backward steps, but the forward tendency is clear.) Over time different quantitative moral benchmarks (e.g., Aristotelian tradition vs. Jewish tradition) emerged for the valuation of fractional shares of inheritances, gifts, real property, and similar matters. It can be shown however, that all of these methods conform to a common minimum system. This minimum system is recognized in a variety of cultures as a necessary basis for fairness. This minimum system can be formalized and then be used to address a variety of contemporary problems.

Jurisprudence has dealt with quantities since time immemorial. A formal (minimum) similarity can be worked out not only between the Jewish and Greek legal traditions, but also between the approaches in Greek and the Indian cultures. I think here of the parallel development of the beginnings of the formal (grammatical) logic from the right figure of the Tetraktis, and the Buddhist catushkoti (Nagarjuna).

Today‘s problems often require the use of complex stochastic analysis, which goes far beyond intuitive thinking. Examples of two such problems are genetic tests and the pricing of stock options. What contemporary problems arise from the increasing use of autonomous or semi-autonomous systems (e.g., questions of debt and appreciation), which problems involve consideration of the possibilities of the biotechnology, and which problems confront us with new global economic stakeholders and options? How can we map these problems and questions into our society to ensure their appropriate continuous development? A large challenge, particularly for jurisprudence.

This conference aims not only to raise issues and to increase sensitivity to certain problems, but also to identify pertinent tendencies, to work out their meaning, and to recognize and honor the role of the individual in the context of social decisions and actions. Thus we see ourselves in the tradition of the enlightenment and pragmatism.

Quantification promotes not only comprehensibility, but also communication between cultures and states (i.e., between social systems) and between disciplines.

The involvement of technical disciplines in this conference is designed not only to increase mutual sensitivity, but also to show where specialized knowledge and technical sciences are already assumed in myths and traditions.

The first conference in January 2010 was directed against the trend toward institutionalization in society and it accentuated the role of the individual and the meaning of quantification. It also stressed the different ways in which “justice” and “fairness” are used in argument. That conference was sponsored by TU München and the Ludwig-Maximilians-Universität Munich. Both are among Germany’s “excellence universities.” The TUM is Germany’s best university according to QA World University ranking.

The conference participants will address questions such as the following:

Gosh, those new diagnostic guidelines had better not be adopted! We don't want to double or treble the number of people who have Alzheimer's, do we?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.