Juridical proof, evidence, and pragmatic meaning: Toward evidentiary holism

Northwestern University Law Review

Volumn 95, Issue 1, 2000, Pages 399-442

  Pardo, Michael S ^a  

^a NONE

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EID: 0041405585     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (500)

1. THE BROTHERS KARAMAZOV 912 (Ignat Avsey trans., Oxford University Press 1998) (1880).
2. Lost in the Funhouse, in LOST IN THE FUNHOUSE 93 (1968).
3. See ARTHUR L. GOODHART, The Hue and Cry, the Feud, Ordeal and Computation, in THE LAW OF THE LAND 1-4 (1966). Practiced in the Middle Ages and the period following, trials by compurgation involved the determination of an accused's guilt or innocence by how many members in the community he could get to recite a formal oath successfully. Trials by ordeal involved, more arcanely, adjudication based on burning or drowning the accused, with results purported to be the will of God. See id; see also LEONARD w. LEVY, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY (1999).
4. See ARTHUR L. GOODHART, The Hue and Cry, the Feud, Ordeal and Computation, in THE LAW OF THE LAND 1-4 (1966). Practiced in the Middle Ages and the period following, trials by compurgation involved the determination of an accused's guilt or innocence by how many members in the community he could get to recite a formal oath successfully. Trials by ordeal involved, more arcanely, adjudication based on burning or drowning the accused, with results purported to be the will of God. See id; see also LEONARD w. LEVY, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY (1999).
5. See ARTHUR L. GOODHART, The Hue and Cry, the Feud, Ordeal and Computation, in THE LAW OF THE LAND 1-4 (1966). Practiced in the Middle Ages and the period following, trials by compurgation involved the determination of an accused's guilt or innocence by how many members in the community he could get to recite a formal oath successfully. Trials by ordeal involved, more arcanely, adjudication based on burning or drowning the accused, with results purported to be the will of God. See id; see also LEONARD w. LEVY, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY (1999).
6. See GOODHART, supra note 3, at 15.
7. See ROBERT P. BURNS, A THEORY OF THE TRIAL 244 (1999).
8. I assume that accurate fact-finding is the primary goal of the trial. See IA JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 37.1, at 1018 (Peter Tillers rev. 1983) ("Most theorizers share the assumption that accurate factfinding should be the central purpose of the law of evidence."); Ronald J. Allen, Truth and It Rivals, 49 HASTINGS L.J. 309, 319 (1998) ("A legal world in which facts and truth do not much matter would be, I think, an unpleasant place to inhabit."); Robert P. Burns, Some Realism (and Idealism) About the Trial, 31 GA. L. REV. 715, 719 (1997) ("Factual accuracy is clearly important to those who defend the Rule of Law on substantive grounds."); Dale A. Nance, The Best Evidence Principle, 73 IOWA L. REV. 227, 232 (1988) ("The reasonably accurate determination of disputed factual issues is therefore the pivotal task to be performed at trial . . . ."); William Twining, Evidence and Legal Theory, 47 MOD. L. REV. 261, 272 (1984) ("The pursuit of truth in adjudication must at times give way to other values and purposes, such as the preservation of state security or of family confidences. . . . But the end of the enterprise is clear: the establishment of truth.").
9. I assume that accurate fact-finding is the primary goal of the trial. See IA JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 37.1, at 1018 (Peter Tillers rev. 1983) ("Most theorizers share the assumption that accurate factfinding should be the central purpose of the law of evidence."); Ronald J. Allen, Truth and It Rivals, 49 HASTINGS L.J. 309, 319 (1998) ("A legal world in which facts and truth do not much matter would be, I think, an unpleasant place to inhabit."); Robert P. Burns, Some Realism (and Idealism) About the Trial, 31 GA. L. REV. 715, 719 (1997) ("Factual accuracy is clearly important to those who defend the Rule of Law on substantive grounds."); Dale A. Nance, The Best Evidence Principle, 73 IOWA L. REV. 227, 232 (1988) ("The reasonably accurate determination of disputed factual issues is therefore the pivotal task to be performed at trial . . . ."); William Twining, Evidence and Legal Theory, 47 MOD. L. REV. 261, 272 (1984) ("The pursuit of truth in adjudication must at times give way to other values and purposes, such as the preservation of state security or of family confidences. . . . But the end of the enterprise is clear: the establishment of truth.").
10. I assume that accurate fact-finding is the primary goal of the trial. See IA JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 37.1, at 1018 (Peter Tillers rev. 1983) ("Most theorizers share the assumption that accurate factfinding should be the central purpose of the law of evidence."); Ronald J. Allen, Truth and It Rivals, 49 HASTINGS L.J. 309, 319 (1998) ("A legal world in which facts and truth do not much matter would be, I think, an unpleasant place to inhabit."); Robert P. Burns, Some Realism (and Idealism) About the Trial, 31 GA. L. REV. 715, 719 (1997) ("Factual accuracy is clearly important to those who defend the Rule of Law on substantive grounds."); Dale A. Nance, The Best Evidence Principle, 73 IOWA L. REV. 227, 232 (1988) ("The reasonably accurate determination of disputed factual issues is therefore the pivotal task to be performed at trial . . . ."); William Twining, Evidence and Legal Theory, 47 MOD. L. REV. 261, 272 (1984) ("The pursuit of truth in adjudication must at times give way to other values and purposes, such as the preservation of state security or of family confidences. . . . But the end of the enterprise is clear: the establishment of truth.").
11. I assume that accurate fact-finding is the primary goal of the trial. See IA JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 37.1, at 1018 (Peter Tillers rev. 1983) ("Most theorizers share the assumption that accurate factfinding should be the central purpose of the law of evidence."); Ronald J. Allen, Truth and It Rivals, 49 HASTINGS L.J. 309, 319 (1998) ("A legal world in which facts and truth do not much matter would be, I think, an unpleasant place to inhabit."); Robert P. Burns, Some Realism (and Idealism) About the Trial, 31 GA. L. REV. 715, 719 (1997) ("Factual accuracy is clearly important to those who defend the Rule of Law on substantive grounds."); Dale A. Nance, The Best Evidence Principle, 73 IOWA L. REV. 227, 232 (1988) ("The reasonably accurate determination of disputed factual issues is therefore the pivotal task to be performed at trial . . . ."); William Twining, Evidence and Legal Theory, 47 MOD. L. REV. 261, 272 (1984) ("The pursuit of truth in adjudication must at times give way to other values and purposes, such as the preservation of state security or of family confidences. . . . But the end of the enterprise is clear: the establishment of truth.").
12. I assume that accurate fact-finding is the primary goal of the trial. See IA JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 37.1, at 1018 (Peter Tillers rev. 1983) ("Most theorizers share the assumption that accurate factfinding should be the central purpose of the law of evidence."); Ronald J. Allen, Truth and It Rivals, 49 HASTINGS L.J. 309, 319 (1998) ("A legal world in which facts and truth do not much matter would be, I think, an unpleasant place to inhabit."); Robert P. Burns, Some Realism (and Idealism) About the Trial, 31 GA. L. REV. 715, 719 (1997) ("Factual accuracy is clearly important to those who defend the Rule of Law on substantive grounds."); Dale A. Nance, The Best Evidence Principle, 73 IOWA L. REV. 227, 232 (1988) ("The reasonably accurate determination of disputed factual issues is therefore the pivotal task to be performed at trial . . . ."); William Twining, Evidence and Legal Theory, 47 MOD. L. REV. 261, 272 (1984) ("The pursuit of truth in adjudication must at times give way to other values and purposes, such as the preservation of state security or of family confidences. . . . But the end of the enterprise is clear: the establishment of truth.").
13. See Ronald J. Allen & Brian Leiter, Social Epistemology and the Law of Evidence: A Primer, (Aug. 5, 1999) (unpublished manuscript, on file with author).
14. See WIGMORE, supra note 6, § 37.6, at 1046-71. "Atomistically" in the sense that evidence is viewed as discrete pieces. "Elementally" in the sense that particular crimes or civil actions are proven through the proof of various separate elements.
15. See DAVID E. RUMELHART, Schemata and the Cognitive System, in 2 HANDBOOK OF SOCIAL COGNITION 163 (1984); WILLARD VAN ORMAN QUINE, WORD AND OBJECT (1960).
16. See DAVID E. RUMELHART, Schemata and the Cognitive System, in 2 HANDBOOK OF SOCIAL COGNITION 163 (1984); WILLARD VAN ORMAN QUINE, WORD AND OBJECT (1960).
17. See Nancy Pennington & Reid Hastie, A Cognitive Model of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) [hereinafter Pennington & Hastie, The Story Model]; see also Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, J. PERSONALITY & SOC. PSYCHOL. 242 (1986); Nancy Pennington & Reid Hastie, Perceptions and Decision Making: The Jury's View: The O.J. Simpson Stories: Behavioral Scientists' Reflections on the People of the State of California v. Orenthal James Simpson, 67 U. COLO. L. REV. 957 (1996) [hereinafter Pennington & Hastie, Perceptions and Decision Making].
18. See Nancy Pennington & Reid Hastie, A Cognitive Model of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) [hereinafter Pennington & Hastie, The Story Model]; see also Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, J. PERSONALITY & SOC. PSYCHOL. 242 (1986); Nancy Pennington & Reid Hastie, Perceptions and Decision Making: The Jury's View: The O.J. Simpson Stories: Behavioral Scientists' Reflections on the People of the State of California v. Orenthal James Simpson, 67 U. COLO. L. REV. 957 (1996) [hereinafter Pennington & Hastie, Perceptions and Decision Making].
19. See Nancy Pennington & Reid Hastie, A Cognitive Model of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) [hereinafter Pennington & Hastie, The Story Model]; see also Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, J. PERSONALITY & SOC. PSYCHOL. 242 (1986); Nancy Pennington & Reid Hastie, Perceptions and Decision Making: The Jury's View: The O.J. Simpson Stories: Behavioral Scientists' Reflections on the People of the State of California v. Orenthal James Simpson, 67 U. COLO. L. REV. 957 (1996) [hereinafter Pennington & Hastie, Perceptions and Decision Making].
20. See Nancy Pennington & Reid Hastie, A Cognitive Model of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) [hereinafter Pennington & Hastie, The Story Model]; see also Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, J. PERSONALITY & SOC. PSYCHOL. 242 (1986); Nancy Pennington & Reid Hastie, Perceptions and Decision Making: The Jury's View: The O.J. Simpson Stories: Behavioral Scientists' Reflections on the People of the State of California v. Orenthal James Simpson, 67 U. COLO. L. REV. 957 (1996) [hereinafter Pennington & Hastie, Perceptions and Decision Making].
21. See Nancy Pennington & Reid Hastie, A Cognitive Model of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991) [hereinafter Pennington & Hastie, The Story Model]; see also Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, J. PERSONALITY & SOC. PSYCHOL. 242 (1986); Nancy Pennington & Reid Hastie, Perceptions and Decision Making: The Jury's View: The O.J. Simpson Stories: Behavioral Scientists' Reflections on the People of the State of California v. Orenthal James Simpson, 67 U. COLO. L. REV. 957 (1996) [hereinafter Pennington & Hastie, Perceptions and Decision Making].
22. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
23. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
24. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
25. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
26. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
27. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
28. See Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604 (1994) [hereinafter Allen, Factual Ambiguity]; Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof, 1 INTL. J. OF EVIDENCE & PROOF 254 (1997) [hereinafter Allen, Rationality]; Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986); Allen & Leiter, supra note 7.
29. See sources cited supra note 11.
30. See Allen, Factual Ambiguity, supra note 11, at 604.
31. See. e.g., BERNARD S. JACKSON, LAW, FACT, AND NARRATIVE COHERENCE 23 (1988); WILLIAM TWINING, RETHINKING EVIDENCE 241 (1990); WIGMORE, supra note 6, § 30, at 986 n.5; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
32. See. e.g., BERNARD S. JACKSON, LAW, FACT, AND NARRATIVE COHERENCE 23 (1988); WILLIAM TWINING, RETHINKING EVIDENCE 241 (1990); WIGMORE, supra note 6, § 30, at 986 n.5; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
33. See. e.g., BERNARD S. JACKSON, LAW, FACT, AND NARRATIVE COHERENCE 23 (1988); WILLIAM TWINING, RETHINKING EVIDENCE 241 (1990); WIGMORE, supra note 6, § 30, at 986 n.5; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
34. See. e.g., BERNARD S. JACKSON, LAW, FACT, AND NARRATIVE COHERENCE 23 (1988); WILLIAM TWINING, RETHINKING EVIDENCE 241 (1990); WIGMORE, supra note 6, § 30, at 986 n.5; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
35. See. e.g., BERNARD S. JACKSON, LAW, FACT, AND NARRATIVE COHERENCE 23 (1988); WILLIAM TWINING, RETHINKING EVIDENCE 241 (1990); WIGMORE, supra note 6, § 30, at 986 n.5; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
36. See TWINING, supra note 14, at 21 (noting that "we await a fully developed 'holistic' account").
37. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
38. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
39. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
40. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
41. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
42. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
43. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
44. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
45. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
46. See QUINE, supra note 9; see also CHRISTOPHER HOOKWAY, QUINE (1988); W.V. QUINE, FROM A LOGICAL POINT OF VIEW (2d ed. rev. 1980) [hereinafter QUINE, LOGICAL POINT OF VIEW]; W.V. QUINE, FROM STIMULUS TO SCIENCE (1995) [hereinafter QUINE, STIMULUS TO SCIENCE] ; W.V. QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS (1969) [hereinafter QUINE, ONTOLOGICAL RELATIVITY); W.V.O QUINE, PURSUIT OF TRUTH (rev. ed. 1992); W.V.O. QUINE, THE ROOTS OF REFERENCE (1974).
47. See Allen & Leiter, supra note 7. Donald Nicolson contends that the study of fact-finding has largely been ignored in the law and that the first context in which to begin our understanding of it is theoretical, or in the context of "the various epistemological, philosophical, and political assumptions underlying fact construction in Anglo-American legal systems." Donald Nicolson, Facing Facts: The Teaching of Fact Construction in University Law Schools, 1 INTL. J. OF EVIDENCE & PROOF 139 (1997).
48. See Allen & Leiter, supra note 7. Donald Nicolson contends that the study of fact-finding has largely been ignored in the law and that the first context in which to begin our understanding of it is theoretical, or in the context of "the various epistemological, philosophical, and political assumptions underlying fact construction in Anglo-American legal systems." Donald Nicolson, Facing Facts: The Teaching of Fact Construction in University Law Schools, 1 INTL. J. OF EVIDENCE & PROOF 139 (1997).
49. See sources cited supra note 10.
50. See W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE (1981).
51. Pennington & Hastie, The Story Model, supra note 10, at 519.
52. Id. at 519. Pennington and Hastie formulated the Story Model after performing 10 years of empirical research. In The Story Model, they discuss a controlled experiment with volunteers from an actual jury pool. The jurors in the experiment were asked to decide the outcome of what they were told was an actual case. Pennington and Hastie then conducted extensive interviews with the jurors on how they perceived events and relations, and how they drew inferences. See id.
53. Id. at 519. Pennington and Hastie formulated the Story Model after performing 10 years of empirical research. In The Story Model, they discuss a controlled experiment with volunteers from an actual jury pool. The jurors in the experiment were asked to decide the outcome of what they were told was an actual case. Pennington and Hastie then conducted extensive interviews with the jurors on how they perceived events and relations, and how they drew inferences. See id.
54. See id. at 520-21.
55. See Old Chief v. United States, 519 U.S. 172, 187-89 (1997); TERENCE ANDERSON & WILLIAM TWINING, ANALYSIS OF EVIDENCE 165-71 (1991); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 31-39 (1997); Burns, supra note 6, at 750-53.
56. See Old Chief v. United States, 519 U.S. 172, 187-89 (1997); TERENCE ANDERSON & WILLIAM TWINING, ANALYSIS OF EVIDENCE 165-71 (1991); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 31-39 (1997); Burns, supra note 6, at 750-53.
57. See Old Chief v. United States, 519 U.S. 172, 187-89 (1997); TERENCE ANDERSON & WILLIAM TWINING, ANALYSIS OF EVIDENCE 165-71 (1991); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 31-39 (1997); Burns, supra note 6, at 750-53.
58. See Old Chief v. United States, 519 U.S. 172, 187-89 (1997); TERENCE ANDERSON & WILLIAM TWINING, ANALYSIS OF EVIDENCE 165-71 (1991); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 31-39 (1997); Burns, supra note 6, at 750-53.
59. See, e.g., Stephen E. Fienberg & Mark J. Schervish, The Relevance of Bayesian Inference for the Presentation of Statistical Evidence and for Legal Decisionmaking, 66 B.U. L. REV. 771 (1986); Eric D. Green, Forward, Probability and Inference in the Law of Evidence, 66 B.U. L. REV. 377 (1986).
60. See, e.g., Stephen E. Fienberg & Mark J. Schervish, The Relevance of Bayesian Inference for the Presentation of Statistical Evidence and for Legal Decisionmaking, 66 B.U. L. REV. 771 (1986); Eric D. Green, Forward, Probability and Inference in the Law of Evidence, 66 B.U. L. REV. 377 (1986).
61. Pennington & Hastie, The Story Model, supra note 10, at 520, 545; see also Baruch Fischoff & Sarah Lichtenstein, Don't Attribute This to Reverend Bayes, 85 PSYCH. BULL. 239 (1978). For a detailed explanation of the Bayesian system, see discussion infra subpart III.A.
62. Pennington & Hastie, The Story Model, supra note 10, at 520, 545; see also Baruch Fischoff & Sarah Lichtenstein, Don't Attribute This to Reverend Bayes, 85 PSYCH. BULL. 239 (1978). For a detailed explanation of the Bayesian system, see discussion infra subpart III.A.
63. Pennington & Hastie, The Story Model, supra note 10, at 547.
64. Id. at 552. This proposition closely resembles the role of "schemata" in psychological theory. Specifically, a schema refers to "[a] kind of informal, private unarticulated theory about the nature of the events, objects or situations we face. The total set of schemata we have available for interpreting our world in a sense constitutes our private theory of the nature of reality." RUMELHART, supra note 9, at 163.
65. Id. at 552. This proposition closely resembles the role of "schemata" in psychological theory. Specifically, a schema refers to "[a] kind of informal, private unarticulated theory about the nature of the events, objects or situations we face. The total set of schemata we have available for interpreting our world in a sense constitutes our private theory of the nature of reality." RUMELHART, supra note 9, at 163.
66. See Pennington & Hastie, Perceptions and Decision Making, supra note 10, at 959.
67. Id.
68. Id. at 959-60.
69. Id. Pennington and Hastie define a story as: [A] temporally organized sequence of actions and events 'glued together' by human motives and goals. The story constructed by the juror will consist of some subset of the events and causal relationships referred to in the presentation of evidence, as well as additional events and causal relationships inferred by the juror. Id.
70. Id. Pennington and Hastie define a story as: [A] temporally organized sequence of actions and events 'glued together' by human motives and goals. The story constructed by the juror will consist of some subset of the events and causal relationships referred to in the presentation of evidence, as well as additional events and causal relationships inferred by the juror. Id.
71. See id.
72. See id. at 960-61. "Coverage" refers to the extent to which the story accounts for the evidence presented. "Coherence" refers to the story's internal consistency, plausibility, and completeness. "Uniqueness" refers to the extent to which a particular story uniquely achieves a certain level of coverage and coherence. If other competing stories offer a comparable level of coverage and coherence, the likelihood of the original story being accepted diminishes. See id.
73. See id. at 960-61. "Coverage" refers to the extent to which the story accounts for the evidence presented. "Coherence" refers to the story's internal consistency, plausibility, and completeness. "Uniqueness" refers to the extent to which a particular story uniquely achieves a certain level of coverage and coherence. If other competing stories offer a comparable level of coverage and coherence, the likelihood of the original story being accepted diminishes. See id.
74. See Pennington & Hastie, The Story Model, supra note 10; see also Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing Arguments to a Jury, N.Y.L. SCH. L. REV. 55 (1992). Amsterdam and Hertz, examining the closing arguments in a murder trial, show how the narrative devices an advocate employs during closing arguments shape the ultimate questions jurors must decide. In the case the duo examined, the prosecution presented a story that called on the jury to render objectively the verdict that followed from the evidence, thereby minimizing the jury's role in the process. In contrast, the defense counsel focused on the jury's role as an active component of the process and emphasized that jurors must bear responsibility for their actions in rendering a verdict. See id.
75. See Pennington & Hastie, The Story Model, supra note 10; see also Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing Arguments to a Jury, N.Y.L. SCH. L. REV. 55 (1992). Amsterdam and Hertz, examining the closing arguments in a murder trial, show how the narrative devices an advocate employs during closing arguments shape the ultimate questions jurors must decide. In the case the duo examined, the prosecution presented a story that called on the jury to render objectively the verdict that followed from the evidence, thereby minimizing the jury's role in the process. In contrast, the defense counsel focused on the jury's role as an active component of the process and emphasized that jurors must bear responsibility for their actions in rendering a verdict. See id.
76. See Pennington & Hastie, The Story Model, supra note 10; see also Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing Arguments to a Jury, N.Y.L. SCH. L. REV. 55 (1992). Amsterdam and Hertz, examining the closing arguments in a murder trial, show how the narrative devices an advocate employs during closing arguments shape the ultimate questions jurors must decide. In the case the duo examined, the prosecution presented a story that called on the jury to render objectively the verdict that followed from the evidence, thereby minimizing the jury's role in the process. In contrast, the defense counsel focused on the jury's role as an active component of the process and emphasized that jurors must bear responsibility for their actions in rendering a verdict. See id.
77. See ANDERSON & TWINING, supra note 23, at 165-71; LUBET, supra note 23, at 31-39; Burns, supra note 6, at 750-53. For an erudite and sophisticated discussion of this process in its political and philosophical context as an important social institution, see BURNS, supra note 5.
78. See ANDERSON & TWINING, supra note 23, at 165-71; LUBET, supra note 23, at 31-39; Burns, supra note 6, at 750-53. For an erudite and sophisticated discussion of this process in its political and philosophical context as an important social institution, see BURNS, supra note 5.
79. See ANDERSON & TWINING, supra note 23, at 165-71; LUBET, supra note 23, at 31-39; Burns, supra note 6, at 750-53. For an erudite and sophisticated discussion of this process in its political and philosophical context as an important social institution, see BURNS, supra note 5.
80. See ANDERSON & TWINING, supra note 23, at 165-71; LUBET, supra note 23, at 31-39; Burns, supra note 6, at 750-53. For an erudite and sophisticated discussion of this process in its political and philosophical context as an important social institution, see BURNS, supra note 5.
81. LUBET, supra note 23, at 31.
82. Id. at 32. Lubet further explains script theory's role in the process: "The essence of script theory is that people dislike uncertainty and want to reduce it as quickly as possible. . . . Thus, people 'call-up' scripts so as to impose order on uncertainty or confusion." Id.
83. Id.
84. Id. at 37.
85. Id. at 1.
86. See Burns, supra note 6, at 751-56; see also BENNETT & FELDMAN, supra note 19; Pennington & Hastie, The Story Model, supra note 10.
87. See Burns, supra note 6, at 751-56; see also BENNETT & FELDMAN, supra note 19; Pennington & Hastie, The Story Model, supra note 10.
88. See Burns, supra note 6, at 751-56; see also BENNETT & FELDMAN, supra note 19; Pennington & Hastie, The Story Model, supra note 10.
89. See Burns, supra note 6, at 753, 755.
90. Id. at 755.
91. See ANDERSON & TWINING, supra note 23, at 165-67. Anderson and Twining differentiate between the terms "theory" and "story." For them, a theory is an individual logical statement about the evidence produced through multi-level syllogistic reasoning, while a story is a narrative account of the events. I do not view the two terms as being so referentially remote. I use "holistic theory" interchangeably with "story" or "narrative account" in referring to how fact finders evaluate, and advocates present, evidence. (A "holistic theory" refers to the set of all statements about the corpus of evidence, and its constituent pieces, woven together and arranged to form a larger scheme.) While recognizing that these terms essentially denote similar things, I admit that the terms are not necessarily coreferential. Specifically, "story" and "coherent narrative" seem more appropriate terms to use when referring to the rhetorical style and literary devices employed in the presentation of a holistic theory.
92. Id. at 168-69.
93. See id. ("Atomistic analysis remains a central tool for identifying the plausible story possibilities, for checking them for consistency and coherence, and for choosing among them. It remains necessary, even though all must concede that it is not sufficient.").
94. See id. at 168 (citing Patrick Bennett, An English Point of View, in MASTER ADVOCATES' HANDBOOK (D.L. Rumsey ed., 1986) (discussing the practical importance of narrative construction)).
95. 519 U.S. 172 (1997).
96. Id. at 174.
97. See id., 18 U.S.C. § 922 (g)(1) (2000).
98. See id., 18 U.S.C. § 922 (g)(1) (2000).
99. See Old Chief, 519 U.S. at 175.
100. Id. at 175; FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .").
101. Id. at 175; FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .").
102. See Old Chief, 519 U.S. at 175.
103. See id. 55 See id. at 177.
104. See id. 57 See id.
105. Id. at 177; see also United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993) (citing United States v. Gilman, 684 F.2d 616, 622 (9th Cir. 1982)) ("Regardless of the defendant's offer to stipulate, the government is entitled to prove a prior felony offense through introduction of probative evidence.").
106. Id. at 177; see also United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993) (citing United States v. Gilman, 684 F.2d 616, 622 (9th Cir. 1982)) ("Regardless of the defendant's offer to stipulate, the government is entitled to prove a prior felony offense through introduction of probative evidence.").
107. Id. at 177; see also United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993) (citing United States v. Gilman, 684 F.2d 616, 622 (9th Cir. 1982)) ("Regardless of the defendant's offer to stipulate, the government is entitled to prove a prior felony offense through introduction of probative evidence.").
108. See Breitkreutz, 8 F.3d at 690-92 (recognizing the right of the Government to refuse the stipulation); United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976); United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975). But see United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995) (declining to recognize the right to refuse the stipulation); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994); United States v. Poore, 594 F.2d 39, 40-43 (4th Cir. 1979).
109. See Breitkreutz, 8 F.3d at 690-92 (recognizing the right of the Government to refuse the stipulation); United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976); United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975). But see United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995) (declining to recognize the right to refuse the stipulation); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994); United States v. Poore, 594 F.2d 39, 40-43 (4th Cir. 1979).
110. See Breitkreutz, 8 F.3d at 690-92 (recognizing the right of the Government to refuse the stipulation); United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976); United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975). But see United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995) (declining to recognize the right to refuse the stipulation); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994); United States v. Poore, 594 F.2d 39, 40-43 (4th Cir. 1979).
111. See Breitkreutz, 8 F.3d at 690-92 (recognizing the right of the Government to refuse the stipulation); United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976); United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975). But see United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995) (declining to recognize the right to refuse the stipulation); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994); United States v. Poore, 594 F.2d 39, 40-43 (4th Cir. 1979).
112. See Breitkreutz, 8 F.3d at 690-92 (recognizing the right of the Government to refuse the stipulation); United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976); United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975). But see United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995) (declining to recognize the right to refuse the stipulation); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994); United States v. Poore, 594 F.2d 39, 40-43 (4th Cir. 1979).
113. See Breitkreutz, 8 F.3d at 690-92 (recognizing the right of the Government to refuse the stipulation); United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976); United States v. Smith, 520 F.2d 544, 548 (8th Cir. 1975). But see United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995) (declining to recognize the right to refuse the stipulation); United States v. Tavares, 21 F.3d 1, 3-5 (1st Cir. 1994); United States v. Poore, 594 F.2d 39, 40-43 (4th Cir. 1979).
114. See Old Chief, 519 U.S. at 182-83.
115. See id. at 183.
116. See id. at 184-85.
117. See id.
118. See id. at 185.
119. See id. at 186.
120. See id.
121. See id. at 186-87.
122. See id. at 187. The Court noted that the authority often cited for this rule is Parr v. United States, 255 F.2d 86 (5th Cir. 1958). In Parr, the court stated that the "reason for the rule is to permit a party 'to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.'" Id. at 88 (quoting Dunning v. Maine Cent. R.R. Co., 39 A. 352, 356 (1897)).
123. See id. at 187. The Court noted that the authority often cited for this rule is Parr v. United States, 255 F.2d 86 (5th Cir. 1958). In Parr, the court stated that the "reason for the rule is to permit a party 'to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.'" Id. at 88 (quoting Dunning v. Maine Cent. R.R. Co., 39 A. 352, 356 (1897)).
124. See id. at 187. The Court noted that the authority often cited for this rule is Parr v. United States, 255 F.2d 86 (5th Cir. 1958). In Parr, the court stated that the "reason for the rule is to permit a party 'to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.'" Id. at 88 (quoting Dunning v. Maine Cent. R.R. Co., 39 A. 352, 356 (1897)).
125. See id. at 187. The Court noted that the authority often cited for this rule is Parr v. United States, 255 F.2d 86 (5th Cir. 1958). In Parr, the court stated that the "reason for the rule is to permit a party 'to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.'" Id. at 88 (quoting Dunning v. Maine Cent. R.R. Co., 39 A. 352, 356 (1897)).
126. Old Chief, 519 U.S. at 187-89 (emphasis added). For the purposes of this discussion, it is important to recognize that implicit in the Court's language "as its pieces come together a narrative gains momentum" is the tacit assumption that a particular narrative already existed and benefited from the way certain discrete elements began to fit within it.
127. See id. at 189. The Court added that "[a] convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best." Id.
128. See id. at 189. The Court added that "[a] convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best." Id.
129. See id. at 190.
130. Id. In other words, "Proving status without telling exactly why that status was imposed leaves no gap in the story of a defendant's subsequent criminality, and its demonstration by stipulation or admission neither displaces a chapter from a continuous sequence of conventional evidence nor comes across as an officious substitution." Id.
131. See id. at 192; see also United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998) (holding that Rule 403 "does not generally require the Government to sanitize its case, to deflate its witnesses' testimony, or to tell its story in a monotone."); United States v. Crowder, 141 F.3d 1202, 1203 (D.C. Cir. 1998) (vacating and remanding in light of Old Chief: "We now hold that despite a defendant's unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element").
132. See id. at 192; see also United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998) (holding that Rule 403 "does not generally require the Government to sanitize its case, to deflate its witnesses' testimony, or to tell its story in a monotone."); United States v. Crowder, 141 F.3d 1202, 1203 (D.C. Cir. 1998) (vacating and remanding in light of Old Chief: "We now hold that despite a defendant's unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element").
133. See id. at 192; see also United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998) (holding that Rule 403 "does not generally require the Government to sanitize its case, to deflate its witnesses' testimony, or to tell its story in a monotone."); United States v. Crowder, 141 F.3d 1202, 1203 (D.C. Cir. 1998) (vacating and remanding in light of Old Chief: "We now hold that despite a defendant's unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element").
134. JOHN H. WIGMORE, PRINCIPLES OF JUDICIAL PROOF 3 (1931). Wigmore added, "This science, to be sure, may as yet be imperfectly formulated. But all the more need is there to begin in earnest to investigate and develop it." Id. at 3-4.
135. JOHN H. WIGMORE, PRINCIPLES OF JUDICIAL PROOF 3 (1931). Wigmore added, "This science, to be sure, may as yet be imperfectly formulated. But all the more need is there to begin in earnest to investigate and develop it." Id. at 3-4.
136. Id. at 9. Wigmore distinguished between the "factum probandum" (the proposition to be proved) and the "factum probans" (material evidencing the proposition). Id. at 8.
137. Id. at 9. Wigmore distinguished between the "factum probandum" (the proposition to be proved) and the "factum probans" (material evidencing the proposition). Id. at 8.
138. Id. at 3. While he was Dean at Northwestern University School of Law, Wigmore required students to take a formal logic course before proceeding to study the rules of evidence. See Peter W. Murphy, Symposium: The Science of Proof: Some Reflections on Evidence and Proof, 40 S. TEX. L. REV. 327, 329 (1999). This practice did not survive Wigmore's tenure as Dean. See id.
139. Id. at 3. While he was Dean at Northwestern University School of Law, Wigmore required students to take a formal logic course before proceeding to study the rules of evidence. See Peter W. Murphy, Symposium: The Science of Proof: Some Reflections on Evidence and Proof, 40 S. TEX. L. REV. 327, 329 (1999). This practice did not survive Wigmore's tenure as Dean. See id.
140. Id. at 3. While he was Dean at Northwestern University School of Law, Wigmore required students to take a formal logic course before proceeding to study the rules of evidence. See Peter W. Murphy, Symposium: The Science of Proof: Some Reflections on Evidence and Proof, 40 S. TEX. L. REV. 327, 329 (1999). This practice did not survive Wigmore's tenure as Dean. See id.
141. Allen & Leiter, supra note 7, at 1. Professor Murphy describes this lack of focus on the science of proof to be a major weakness of our system of legal education and the profession as a whole. See Murphy, supra note 76, at 328. He states, "A student can go through three years of intense legal education without ever stopping to ponder the meaning of such terms as evidence, proof, probability, and causation . . . ." Id. British legal education suffers from a similar lack of focus on the proof process; "[t]he crusade to persuade university law schools to devote more time to facts and fact-finding has a long and sorry history." Nicolson, supra note 17, at 132; see also TWINING, supra note 14, at 15 (comparing this task of persuasion to Sisyphus condemned to push the rock).
142. Allen & Leiter, supra note 7, at 1. Professor Murphy describes this lack of focus on the science of proof to be a major weakness of our system of legal education and the profession as a whole. See Murphy, supra note 76, at 328. He states, "A student can go through three years of intense legal education without ever stopping to ponder the meaning of such terms as evidence, proof, probability, and causation . . . ." Id. British legal education suffers from a similar lack of focus on the proof process; "[t]he crusade to persuade university law schools to devote more time to facts and fact-finding has a long and sorry history." Nicolson, supra note 17, at 132; see also TWINING, supra note 14, at 15 (comparing this task of persuasion to Sisyphus condemned to push the rock).
143. Allen & Leiter, supra note 7, at 1. Professor Murphy describes this lack of focus on the science of proof to be a major weakness of our system of legal education and the profession as a whole. See Murphy, supra note 76, at 328. He states, "A student can go through three years of intense legal education without ever stopping to ponder the meaning of such terms as evidence, proof, probability, and causation . . . ." Id. British legal education suffers from a similar lack of focus on the proof process; "[t]he crusade to persuade university law schools to devote more time to facts and fact-finding has a long and sorry history." Nicolson, supra note 17, at 132; see also TWINING, supra note 14, at 15 (comparing this task of persuasion to Sisyphus condemned to push the rock).
144. Allen & Leiter, supra note 7, at 1. Professor Murphy describes this lack of focus on the science of proof to be a major weakness of our system of legal education and the profession as a whole. See Murphy, supra note 76, at 328. He states, "A student can go through three years of intense legal education without ever stopping to ponder the meaning of such terms as evidence, proof, probability, and causation . . . ." Id. British legal education suffers from a similar lack of focus on the proof process; "[t]he crusade to persuade university law schools to devote more time to facts and fact-finding has a long and sorry history." Nicolson, supra note 17, at 132; see also TWINING, supra note 14, at 15 (comparing this task of persuasion to Sisyphus condemned to push the rock).
145. See. e.g., PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE USES AND LIMITS OF BAYESIANISM (Peter Tillers & Eric D. Green eds., 1988) [hereinafter PROBABILITY AND INFERENCE]; Richard D. Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997); Richard D. Friedman, Route Analysis of Credibility and Hearsay, 96 YALE L.J. 667 (1987) [hereinafter Friedman, Route Analysis]; John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1083-92 (1968).
146. See. e.g., PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE USES AND LIMITS OF BAYESIANISM (Peter Tillers & Eric D. Green eds., 1988) [hereinafter PROBABILITY AND INFERENCE]; Richard D. Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997); Richard D. Friedman, Route Analysis of Credibility and Hearsay, 96 YALE L.J. 667 (1987) [hereinafter Friedman, Route Analysis]; John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1083-92 (1968).
147. See. e.g., PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE USES AND LIMITS OF BAYESIANISM (Peter Tillers & Eric D. Green eds., 1988) [hereinafter PROBABILITY AND INFERENCE]; Richard D. Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997); Richard D. Friedman, Route Analysis of Credibility and Hearsay, 96 YALE L.J. 667 (1987) [hereinafter Friedman, Route Analysis]; John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1083-92 (1968).
148. See. e.g., PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE USES AND LIMITS OF BAYESIANISM (Peter Tillers & Eric D. Green eds., 1988) [hereinafter PROBABILITY AND INFERENCE]; Richard D. Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997); Richard D. Friedman, Route Analysis of Credibility and Hearsay, 96 YALE L.J. 667 (1987) [hereinafter Friedman, Route Analysis]; John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1083-92 (1968).
149. See. e.g., PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE USES AND LIMITS OF BAYESIANISM (Peter Tillers & Eric D. Green eds., 1988) [hereinafter PROBABILITY AND INFERENCE]; Richard D. Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997); Richard D. Friedman, Route Analysis of Credibility and Hearsay, 96 YALE L.J. 667 (1987) [hereinafter Friedman, Route Analysis]; John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1083-92 (1968).
150. See. e.g., PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE USES AND LIMITS OF BAYESIANISM (Peter Tillers & Eric D. Green eds., 1988) [hereinafter PROBABILITY AND INFERENCE]; Richard D. Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997); Richard D. Friedman, Route Analysis of Credibility and Hearsay, 96 YALE L.J. 667 (1987) [hereinafter Friedman, Route Analysis]; John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065, 1083-92 (1968).
151. See sources cited supra note 11.
152. See id. Professors Allen and Leiter argue that Bayesianism is "precisely the wrong kind of theory for understanding evidence" and unfortunately, "[t]here has been no systematic attempt to apply other disciplinary tools to evidentiary doctrines." Allen & Leiter, supra note 7, at 1-2. In Social Epistemology and the Law of Evidence: A Primer, they discuss the relationship between new developments in the field of epistemology and our understanding of the law of evidence. See id.
153. See id. Professors Allen and Leiter argue that Bayesianism is "precisely the wrong kind of theory for understanding evidence" and unfortunately, "[t]here has been no systematic attempt to apply other disciplinary tools to evidentiary doctrines." Allen & Leiter, supra note 7, at 1-2. In Social Epistemology and the Law of Evidence: A Primer, they discuss the relationship between new developments in the field of epistemology and our understanding of the law of evidence. See id.
154. See Richard Lempert, The New Evidence Scholarship: Analyzing the Process of Proof, in PROBABILITY AND INFERENCE, supra note 78, at 61.
155. See Murphy, supra note 76, at 330. Professor Murphy calls for law schools to offer classes discussing the science of proof. This class, he suggests, would not be a simple skills class: On the contrary, it demands as much intellectual rigor as any course now being offered. There is a hefty component of jurisprudence going back at least as far as Bentham, of mathematics going back at least as far as Pascal, and of logic, rhetoric, and philosophy ranging from Aristotle to John Stuart Mill and beyond. Id.
156. See Murphy, supra note 76, at 330. Professor Murphy calls for law schools to offer classes discussing the science of proof. This class, he suggests, would not be a simple skills class: On the contrary, it demands as much intellectual rigor as any course now being offered. There is a hefty component of jurisprudence going back at least as far as Bentham, of mathematics going back at least as far as Pascal, and of logic, rhetoric, and philosophy ranging from Aristotle to John Stuart Mill and beyond. Id.
157. Ronald J. Allen, Reasoning and Its Foundation: Some Responses, 1 INT'L. J. EVIDENCE & PROOF 343 (1997). While the inquiry is clearly important to the law, the answers are not readily apparent: But what does it mean to be 'rational'? Does the answer lie merely in uncovering how the mind navigates its environment, or are there means of improving the natural reasoning process of the mind? Are there cognitive limitations that can be overcome, or whose effects can be avoided, through modifications to the decision-making, or perhaps even the natural reasoning, process? If so, what are they, and what are their domains? These questions have been central to the western intellectual tradition. Id.
158. Ronald J. Allen, Reasoning and Its Foundation: Some Responses, 1 INT'L. J. EVIDENCE & PROOF 343 (1997). While the inquiry is clearly important to
159. WIGMORE, supra note 6, § 37.1, at 1014. These departments include, inter alia, philosophy and science generally (epistemology and experimental psychology specifically), mathematics, and sociology. See id.
160. WIGMORE, supra note 6, § 37.1, at 1014. These departments include, inter alia, philosophy and science generally (epistemology and experimental psychology specifically), mathematics, and sociology. See id.
161. See IAN HACKING, THE EMERGENCE OF PROBABILITY 11 (1975) ("The decade around 1660 is the birthplace of probability."). Hacking points out, however, that the word 'probability' is much older, deriving in language from the Latin probabilis; which means roughly, among other things, "worthy of approbation." Id. at 18.
162. See IAN HACKING, THE EMERGENCE OF PROBABILITY 11 (1975) ("The decade around 1660 is the birthplace of probability."). Hacking points out, however, that the word 'probability' is much older, deriving in language from the Latin probabilis; which means roughly, among other things, "worthy of approbation." Id. at 18.
163. See id. at 85-91. With a background in law, philosophy, mathematics, and science, it is not surprising that Leibniz made this connection. In particular, he was likely drawing a connection between the scientist and the legal fact finder. He later wrote: In the conjectural sciences they are even capable of demonstratively determining the degree of probability, given certain assumptions, so that we may reasonably choose, among opposing appearances, the one which is most probable. But this part of the art of reasoning has not yet been developed as much as it should be. G.W. LEIBNIZ, Letter to Queen Sophie Charlotte of Prussia, On What Is Independent of Sense and Matter, in G.W. LIEBNIZ: PHILOSOPHICAL ESSAYS 186, 189 (Roger Ariew & Daniel Garber eds., 1989) (1702).
164. See id. at 85-91. With a background in law, philosophy, mathematics, and science, it is not surprising that Leibniz made this connection. In particular, he was likely drawing a connection between the scientist and the legal fact finder. He later wrote: In the conjectural sciences they are even capable of demonstratively determining the degree of probability, given certain assumptions, so that we may reasonably choose, among opposing appearances, the one which is most probable. But this part of the art of reasoning has not yet been developed as much as it should be. G.W. LEIBNIZ, Letter to Queen Sophie Charlotte of Prussia, On What Is Independent of Sense and Matter, in G.W. LIEBNIZ: PHILOSOPHICAL ESSAYS 186, 189 (Roger Ariew & Daniel Garber eds., 1989) (1702).
165. See WIGMORE, supra note 6, § 37.1, at 1011; see, e.g., sources cited supra note 78.
166. See, e.g., sources cited supra note 78. In law, the fact finder's choice is usually limited to two competing probabilities: e.g., guilty or not guilty, liable or not liable, proximate cause or not, duty or not, and so on. In other words, the fact finder chooses between the probability of x given data y and the probability of not-x given data y.
167. See generally D.H. Kaye, What is Bayesianism?, in PROBABILITY AND INFERENCE, supra note 78, at 1. In some instances, one could calculate these values more objectively by using relative frequencies. However, "since the events in dispute in most litigation are not subject to repetition, the theory has limited applicability in law . . . to make inferences about parameters that cannot be given a frequentist interpretation, however, we must assign probabilities in the sense of partial beliefs to the possible values of the parameter." Id. at 4, 9. To see how relative frequency assessments may be abused,
168. See generally D.H. Kaye, What is Bayesianism?, in PROBABILITY AND INFERENCE, supra note 78, at 1. In some instances, one could calculate these values more objectively by using relative frequencies. However, "since the events in dispute in most litigation are not subject to repetition, the theory has limited applicability in law . . . to make inferences about parameters that cannot be given a frequentist interpretation, however, we must assign probabilities in the sense of partial beliefs to the possible values of the parameter." Id. at 4, 9. To see how relative frequency assessments may be abused,
169. see People v. Collins, 438 P.2d 33 (Cal. 1968) (taking judicial notice of statistical principles and recognizing the potential danger of mathematical proof utilizing relative frequencies).
170. See ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 109-15 (1999); see generally Friedman, Route Analysis, supra note 78; Kaye, supra note 89. Value #3 is the likelihood of testimony to an event, given that the event occurred. Value #4 is the likelihood of testimony to an event, given that the event did not occur. Moreover, we can think of values #1 and #2 before any evidence has been introduced along burden of persuasion lines. In civil trials, these values are both .5, in criminal trials value #2 is likely somewhere above .9.
171. See ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 109-15 (1999); see generally Friedman, Route Analysis, supra note 78; Kaye, supra note 89. Value #3 is the likelihood of testimony to an event, given that the event occurred. Value #4 is the likelihood of testimony to an event, given that the event did not occur. Moreover, we can think of values #1 and #2 before any evidence has been introduced along burden of persuasion lines. In civil trials, these values are both .5, in criminal trials value #2 is likely somewhere above .9.
172. See ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 109-15 (1999); see generally Friedman, Route Analysis, supra note 78; Kaye, supra note 89. Value #3 is the likelihood of testimony to an event, given that the event occurred. Value #4 is the likelihood of testimony to an event, given that the event did not occur. Moreover, we can think of values #1 and #2 before any evidence has been introduced along burden of persuasion lines. In civil trials, these values are both .5, in criminal trials value #2 is likely somewhere above .9.
173. See Kaye, supra note 89.
174. GOLDMAN, supra note 91, at 112.
175. Assume for the sake of this example that the prosecution's burden of persuasion is .9.
176. Note also that the fact finder would acquit the defendant in this situation if the prosecutor chose to present only these two pieces of evidence because the probability of x falls below the required burden of .9.
177. See GOLDMAN, supra note 91, at 113. In civil cases, where the burden of proof is "a preponderance of the evidence" or .5, the fact finder may base this decision on the "likelihood ratio": p(y/x)/p(y/not-x) This ratio "specifies whether the truth of Y is more or less likely given the truth of X as compared with the falsity of X." Id. In civil cases, the fact finder will find for the plaintiff whenever the likelihood ratio is greater than 1 (the necessary likelihood ratio will be much higher in criminal cases). See Allen, Factual Ambiguity, supra note 11, at 605.
178. See GOLDMAN, supra note 91, at 113. In civil cases, where the burden of proof is "a preponderance of the evidence" or .5, the fact finder may base this decision on the "likelihood ratio": p(y/x)/p(y/not-x) This ratio "specifies whether the truth of Y is more or less likely given the truth of X as compared with the falsity of X." Id. In civil cases, the fact finder will find for the plaintiff whenever the likelihood ratio is greater than 1 (the necessary likelihood ratio will be much higher in criminal cases). See Allen, Factual Ambiguity, supra note 11, at 605.
179. Kaye, supra note 89, at 9.
180. See WIGMORE, supra note 6, § 37.6, at 1046.
181. See id. at 1046-47.
182. See id. at 1047.
183. Id.
184. See id.
185. Id.
186. Id.
187. See id. at 1047-48.
188. See id. at 1013.
189. The soundness of Bayesianism as a formal theory is not questioned. See Allen, supra note 83 at 344. Alvin Goldman argues that Bayesianism meets the "veritistic" requirements of his theory of social epistemology if Bayesianism is modified to include the extra requirement that subjective likelihoods match objective likelihoods. See GOLDMAN, supra note 91, at 117. This may work in general cases of knowledge about the world, but as we have seen, the application of objective likelihoods to the law is extremely limited. See Kaye, supra note 89, at 1. Also, what does it mean to require of subjective likelihoods that they match objective ones? Can they still, in the relevant sense, be called subjective? This seems to me an argument against the use of Bayesianism in the pursuit of knowledge when the only available likelihoods are based on subjective probability assessments. To say that subjective assessments can still be used so long as they are objectively correct seems to all but beg the question.
190. The soundness of Bayesianism as a formal theory is not questioned. See Allen, supra note 83 at 344. Alvin Goldman argues that Bayesianism meets the "veritistic" requirements of his theory of social epistemology if Bayesianism is modified to include the extra requirement that subjective likelihoods match objective likelihoods. See GOLDMAN, supra note 91, at 117. This may work in general cases of knowledge about the world, but as we have seen, the application of objective likelihoods to the law is extremely limited. See Kaye, supra note 89, at 1. Also, what does it mean to require of subjective likelihoods that they match objective ones? Can they still, in the relevant sense, be called subjective? This seems to me an argument against the use of Bayesianism in the pursuit of knowledge when the only available likelihoods are based on subjective probability assessments. To say that subjective assessments can still be used so long as they are objectively correct seems to all but beg the question.
191. The soundness of Bayesianism as a formal theory is not questioned. See Allen, supra note 83 at 344. Alvin Goldman argues that Bayesianism meets the "veritistic" requirements of his theory of social epistemology if Bayesianism is modified to include the extra requirement that subjective likelihoods match objective likelihoods. See GOLDMAN, supra note 91, at 117. This may work in general cases of knowledge about the world, but as we have seen, the application of objective likelihoods to the law is extremely limited. See Kaye, supra note 89, at 1. Also, what does it mean to require of subjective likelihoods that they match objective ones? Can they still, in the relevant sense, be called subjective? This seems to me an argument against the use of Bayesianism in the pursuit of knowledge when the only available likelihoods are based on subjective probability assessments. To say that subjective assessments can still be used so long as they are objectively correct seems to all but beg the question.
192. See, e.g., MARTHA BOLES & ROCHELLE NEWMAN, THE GOLDEN RELATIONSHIP: ART, MATH, NATURE (1987); STEPHEN HAWKING, A BRIEF HISTORY OF TIME (1988) (discussing the significance of mathematics in quantum mechanics and astro-physics); ROBERT LAWLOR, SACRED GEOMETRY - PHILOSOPHY AND PRACTICE (1989) (discussing Fibonacci sequences, the golden mean, and their connection with the physical world); David Berlinski, Iterations of Immortality, HARPER'S MAG., Jan. 2000, at 15; David Foster Wallace, Derivative Sport in Tornado Alley, in A SUPPOSEDLY FUN THING I'LL NEVER DO AGAIN: ESSAYS AND ARGUMENTS 3-20 (1997) (providing a sophisticated (and light-hearted) discussion of the relationships between mathematics, tennis, and central Illinois).
193. See, e.g., MARTHA BOLES & ROCHELLE NEWMAN, THE GOLDEN RELATIONSHIP: ART, MATH, NATURE (1987); STEPHEN HAWKING, A BRIEF HISTORY OF TIME (1988) (discussing the significance of mathematics in quantum mechanics and astro-physics); ROBERT LAWLOR, SACRED GEOMETRY - PHILOSOPHY AND PRACTICE (1989) (discussing Fibonacci sequences, the golden mean, and their connection with the physical world); David Berlinski, Iterations of Immortality, HARPER'S MAG., Jan. 2000, at 15; David Foster Wallace, Derivative Sport in Tornado Alley, in A SUPPOSEDLY FUN THING I'LL NEVER DO AGAIN: ESSAYS AND ARGUMENTS 3-20 (1997) (providing a sophisticated (and light-hearted) discussion of the relationships between mathematics, tennis, and central Illinois).
194. See, e.g., MARTHA BOLES & ROCHELLE NEWMAN, THE GOLDEN RELATIONSHIP: ART, MATH, NATURE (1987); STEPHEN HAWKING, A BRIEF HISTORY OF TIME (1988) (discussing the significance of mathematics in quantum mechanics and astro-physics); ROBERT LAWLOR, SACRED GEOMETRY -PHILOSOPHY AND PRACTICE (1989) (discussing Fibonacci sequences, the golden mean, and their connection with the physical world); David Berlinski, Iterations of Immortality, HARPER'S MAG., Jan. 2000, at 15; David Foster Wallace, Derivative Sport in Tornado Alley, in A SUPPOSEDLY FUN THING I'LL NEVER DO AGAIN: ESSAYS AND ARGUMENTS 3-20 (1997) (providing a sophisticated (and light-hearted) discussion of the relationships between mathematics, tennis, and central Illinois).
195. See, e.g., MARTHA BOLES & ROCHELLE NEWMAN, THE GOLDEN RELATIONSHIP: ART, MATH, NATURE (1987); STEPHEN HAWKING, A BRIEF HISTORY OF TIME (1988) (discussing the significance of mathematics in quantum mechanics and astro-physics); ROBERT LAWLOR, SACRED GEOMETRY - PHILOSOPHY AND PRACTICE (1989) (discussing Fibonacci sequences, the golden mean, and their connection with the physical world); David Berlinski, Iterations of Immortality, HARPER'S MAG., Jan. 2000, at 15; David Foster Wallace, Derivative Sport in Tornado Alley, in A SUPPOSEDLY FUN THING I'LL NEVER DO AGAIN: ESSAYS AND ARGUMENTS 3-20 (1997) (providing a sophisticated (and light-hearted) discussion of the relationships between mathematics, tennis, and central Illinois).
196. See, e.g., MARTHA BOLES & ROCHELLE NEWMAN, THE GOLDEN RELATIONSHIP: ART, MATH, NATURE (1987); STEPHEN HAWKING, A BRIEF HISTORY OF TIME (1988) (discussing the significance of mathematics in quantum mechanics and astro-physics); ROBERT LAWLOR, SACRED GEOMETRY - PHILOSOPHY AND PRACTICE (1989) (discussing Fibonacci sequences, the golden mean, and their connection with the physical world); David Berlinski, Iterations of Immortality, HARPER'S MAG., Jan. 2000, at 15; David Foster Wallace, Derivative Sport in Tornado Alley, in A SUPPOSEDLY FUN THING I'LL NEVER DO AGAIN: ESSAYS AND ARGUMENTS 3-20 (1997) (providing a sophisticated (and light-hearted) discussion of the relationships between mathematics, tennis, and central Illinois).
197. One need not subscribe to some form of mind-body Cartesian dualism to doubt whether mental events can be explained in terms of strict physical laws. See, e.g., Donald Davidson, Mental Events, in ESSAYS ON ACTION AND EVENTS 207-25 (1980). Professor Davidson argues, in his theory of "anomalous monism," that even if all mental events are also physical events (ergo "monism"), our intensional language (language about our beliefs and intentions) cannot be explained with strict laws (ergo "anomalous") while our extensional language (language about the external world) might be so explained. Id. at 209-15. Moreover, our intensional language cannot be reduced to extensional language. See id. at 224-25.
198. One need not subscribe to some form of mind-body Cartesian dualism to doubt whether mental events can be explained in terms of strict physical laws. See, e.g., Donald Davidson, Mental Events, in ESSAYS ON ACTION AND EVENTS 207-25 (1980). Professor Davidson argues, in his theory of "anomalous monism," that even if all mental events are also physical events (ergo "monism"), our intensional language (language about our beliefs and intentions) cannot be explained with strict laws (ergo "anomalous") while our extensional language (language about the external world) might be so explained. Id. at 209-15. Moreover, our intensional language cannot be reduced to extensional language. See id. at 224-25.
199. One need not subscribe to some form of mind-body Cartesian dualism to doubt whether mental events can be explained in terms of strict physical laws. See, e.g., Donald Davidson, Mental Events, in ESSAYS ON ACTION AND EVENTS 207-25 (1980). Professor Davidson argues, in his theory of "anomalous monism," that even if all mental events are also physical events (ergo "monism"), our intensional language (language about our beliefs and intentions) cannot be explained with strict laws (ergo "anomalous") while our extensional language (language about the external world) might be so explained. Id. at 209-15. Moreover, our intensional language cannot be reduced to extensional language. See id. at 224-25.
200. See Allen, Rationality, supra note 11, at 255-56.
201. See Allen, Factual Ambiguity, supra note 11, at 604. For civil trials, the requisite burden is .5. For criminal trials, it likely is above .9.
202. See id. This fit should not be surprising because both the conventional view and Bayesianism presuppose an elemental reasoning process.
203. See sources cited supra note 10. The Story Model provides the empirical evidence for abandoning the conventional view. Specifically, the Story Model posits that the elemental reasoning underlying the conventional view conflicts with how fact finders actually process information.
204. See sources cited supra note 11.
205. See Allen, Factual Ambiguity, supra note 11, at 605-30.
206. Id. at 606, 611-12.
207. See id. ("The consistent reasoning methodology is essentially a comparative story approach."). Moreover, the stories that fact finders must decide between include not only the two presented by the opposing sides at trial, but also the ones fact finders may develop on their own to explain the evidence presented. See id. at 634.
208. See id. ("The consistent reasoning methodology is essentially a comparative story approach."). Moreover, the stories that fact finders must decide between include not only the two presented by the opposing sides at trial, but also the ones fact finders may develop on their own to explain the evidence presented. See id. at 634.
209. See id. at 611. The relative plausibility theory evolved from Professor Allen's "equally well-specified" cases approach. In discussing the equally well-specified cases approach, Professor Allen writes: The primary advantage of the equally well specified cases proposal is not that it eliminates or even reduces the difficulties of inquiry. Rather, its advantage lies in recognizing and making explicit the difficulties, avoiding the implication that the decision-making process may proceed with misleading precision, and thus facilitating conventional decision makers to do what they do best - reason conventionally in judging human affairs. The Nature of Juridical Proof, supra note 11, at 413.
210. See id. at 611. The relative plausibility theory evolved from Professor Allen's "equally well-specified" cases approach. In discussing the equally well-specified cases approach, Professor Allen writes: The primary advantage of the equally well specified cases proposal is not that it eliminates or even reduces the difficulties of inquiry. Rather, its advantage lies in recognizing and making explicit the difficulties, avoiding the implication that the decision-making process may proceed with misleading precision, and thus facilitating conventional decision makers to do what they do best - reason conventionally in judging human affairs. The Nature of Juridical Proof, supra note 11, at 413.
211. See generally, Allen, Rationality, supra note 11 ; Allen, supra note 83; Lempert, supra note 81; Richard Lempert, Of Flutes, Oboes, and the As If World of Evidence Law, 1 INT'L. J. OF EVIDENCE & PROOF 316 (1997); Alex Stein, Bayesioskepticism Justified, 1 INT'L J OF EVIDENCE & PROOF 348 (1997).
212. See generally, Allen, Rationality, supra note 11 ; Allen, supra note 83; Lempert, supra note 81; Richard Lempert, Of Flutes, Oboes, and the As If World of Evidence Law, 1 INT'L. J. OF EVIDENCE & PROOF 316 (1997); Alex Stein, Bayesioskepticism Justified, 1 INT'L J OF EVIDENCE & PROOF 348 (1997).
213. See generally, Allen, Rationality, supra note 11 ; Allen, supra note 83; Lempert, supra note 81; Richard Lempert, Of Flutes, Oboes, and the As If World of Evidence Law, 1 INT'L. J. OF EVIDENCE & PROOF 316 (1997); Alex Stein, Bayesioskepticism Justified, 1 INT'L J OF EVIDENCE & PROOF 348 (1997).
214. See generally, Allen, Rationality, supra note 11 ; Allen, supra note 83; Lempert, supra note 81; Richard Lempert, Of Flutes, Oboes, and the As If World of Evidence Law, 1 INT'L. J. OF EVIDENCE & PROOF 316 (1997); Alex Stein, Bayesioskepticism Justified, 1 INT'L J OF EVIDENCE & PROOF 348 (1997).
215. See generally, Allen, Rationality, supra note 11 ; Allen, supra note 83; Lempert, supra note 81; Richard Lempert, Of Flutes, Oboes, and the As If World of Evidence Law, 1 INT'L. J. OF EVIDENCE & PROOF 316 (1997); Alex Stein, Bayesioskepticism Justified, 1 INT'L J OF EVIDENCE & PROOF 348 (1997).
216. See supra note 10 and accompanying text; Allen, The Nature of Juridical Proof, supra note 11, at 373. Moreover, our current proof rules, in presupposing this elemental reasoning format, "do not provide a coherent and usable method of handling uncertainty at trial." Id. at 381.
217. See supra note 10 and accompanying text; Allen, The Nature of Juridical Proof, supra note 11, at 373. Moreover, our current proof rules, in presupposing this elemental reasoning format, "do not provide a coherent and usable method of handling uncertainty at trial." Id. at 381.
218. Id. at 382.
219. Id. at 389 (citing James T. Kloppenberg, Objectivity and Historicism: A Century of Historical Writing, 92 AM. HIST. REV. 1011 (1989)).
220. Id. at 389 (citing James T. Kloppenberg, Objectivity and Historicism: A Century of Historical Writing, 92 AM. HIST. REV. 1011 (1989)).
221. This fit with how jurors process information provides, in my opinion, the most convincing reason to make a Bayesio-skeptical turn.
222. See Allen, Factual Ambiguity, supra note 11, at 606.
223. See id. at 605-06; Allen, The Nature of Juridical Proof, supra note 11, at 374-75.
224. See id. at 605-06; Allen, The Nature of Juridical Proof, supra note 11, at 374-75.
225. See Allen, Factual Ambiguity, supra note 11, at 605-06. Hence the "preponderance of the evidence" standard for civil matters and the "beyond a reasonable doubt" standard for criminal matters.
226. See id.
227. Ideally, so Bayesianism purports, this value was determined by an inference calculation.
228. (.6 × .6) = .36.
229. See Allen, Factual Ambiguity, supra note 11, at 604-05; Allen, The Nature of Juridical Proof, supra note 11, at 374-75.
230. See Allen, Factual Ambiguity, supra note 11, at 604-05; Allen, The Nature of Juridical Proof, supra note 11, at 374-75.
231. Allen, Factual Ambiguity, supra note 11, at 607-08.
232. See id. at 608. Specifically, the assumption of elemental independence is used merely to emphasize the analytical problem. For the analysis to operate with dependent elements, however, the fact finder must know the dependency relationship. If not, strange results may arise. "One of the logical implications of probability theory is, briefly, that any relationship at all may exist between discrete elements and their complications. For example, as the probability of two discrete elements each goes up, the probability of their conjunction may go down." Allen & Leiter, supra note 7, at 28; see also Ron A. Shapira, The Susceptibility of Formal Models of Evidentiary Inference to Cultural Sensitivity, 5 CARDOZO J. INT'L & COMP. L. 165 (1997). Thus, for this analysis to make sense, the fact finder must know too much. See Allen, Factual Ambiguity, supra note 11, at 608.
233. See id. at 608. Specifically, the assumption of elemental independence is used merely to emphasize the analytical problem. For the analysis to operate with dependent elements, however, the fact finder must know the dependency relationship. If not, strange results may arise. "One of the logical implications of probability theory is, briefly, that any relationship at all may exist between discrete elements and their complications. For example, as the probability of two discrete elements each goes up, the probability of their conjunction may go down." Allen & Leiter, supra note 7, at 28; see also Ron A. Shapira, The Susceptibility of Formal Models of Evidentiary Inference to Cultural Sensitivity, 5 CARDOZO J. INT'L & COMP. L. 165 (1997). Thus, for this analysis to make sense, the fact finder must know too much. See Allen, Factual Ambiguity, supra note 11, at 608.
234. See id. at 608. Specifically, the assumption of elemental independence is used merely to emphasize the analytical problem. For the analysis to operate with dependent elements, however, the fact finder must know the dependency relationship. If not, strange results may arise. "One of the logical implications of probability theory is, briefly, that any relationship at all may exist between discrete elements and their complications. For example, as the probability of two discrete elements each goes up, the probability of their conjunction may go down." Allen & Leiter, supra note 7, at 28; see also Ron A. Shapira, The Susceptibility of Formal Models of Evidentiary Inference to Cultural Sensitivity, 5 CARDOZO J. INT'L & COMP. L. 165 (1997). Thus, for this analysis to make sense, the fact finder must know too much. See Allen, Factual Ambiguity, supra note 11, at 608.
235. See id. at 608. Specifically, the assumption of elemental independence is used merely to emphasize the analytical problem. For the analysis to operate with dependent elements, however, the fact finder must know the dependency relationship. If not, strange results may arise. "One of the logical implications of probability theory is, briefly, that any relationship at all may exist between discrete elements and their complications. For example, as the probability of two discrete elements each goes up, the probability of their conjunction may go down." Allen & Leiter, supra note 7, at 28; see also Ron A. Shapira, The Susceptibility of Formal Models of Evidentiary Inference to Cultural Sensitivity, 5 CARDOZO J. INT'L & COMP. L. 165 (1997). Thus, for this analysis to make sense, the fact finder must know too much. See Allen, Factual Ambiguity, supra note 11, at 608.
236. Allen, Factual Ambiguity, supra note 11, at 609. "In civil cases, fact finders are to accept the more plausible of the stories advanced by the parties, and in criminal cases they are to accept the state's case only if no plausible story consistent with innocence has been advanced." Id. Also, a Bayesian explanation can still be applied to the proof process once the explanation is made subservient to the relative plausibility theory: "[t]he explanation is simply that the issue to be determined is liability or no liability - the conjunction of the relevant issues, in other words - rather than a series of determinations on elements." Id. at 607.
237. Allen, Factual Ambiguity, supra note 11, at 609. "In civil cases, fact finders are to accept the more plausible of the stories advanced by the parties, and in criminal cases they are to accept the state's case only if no plausible story consistent with innocence has been advanced." Id. Also, a Bayesian explanation can still be applied to the proof process once the explanation is made subservient to the relative plausibility theory: "[t]he explanation is simply that the issue to be determined is liability or no liability - the conjunction of the relevant issues, in other words - rather than a series of determinations on elements." Id. at 607.
238. Allen, Factual Ambiguity, supra note 11, at 609. "In civil cases, fact finders are to accept the more plausible of the stories advanced by the parties, and in criminal cases they are to accept the state's case only if no plausible story consistent with innocence has been advanced." Id. Also, a Bayesian explanation can still be applied to the proof process once the explanation is made subservient to the relative plausibility theory: "[t]he explanation is simply that the issue to be determined is liability or no liability - the conjunction of the relevant issues, in other words - rather than a series of determinations on elements." Id. at 607.
239. See id. at 612-13.
240. Id. at 613.
241. See id. See id. In other words, "only the most tireless plaintiff with superhuman powers would be able to make such as showing (and no human fact finder would ever live long enough to hear it)." Id.
242. See id. See id. In other words, "only the most tireless plaintiff with superhuman powers would be able to make such as showing (and no human fact finder would ever live long enough to hear it)." Id.
243. See id. See id. In other words, "only the most tireless plaintiff with superhuman powers would be able to make such as showing (and no human fact finder would ever live long enough to hear it)." Id.
244. See id. at 613-14.
245. Id. at 614.
246. See id.
247. See id. Recall that under the relative plausibility theory, the fact finder searches for "the most plausible organizing thesis that best explains the evidence and best resolves any tensions in it." Allen, The Nature of Juridical Proof, supra note 11, at 396. Once this occurs, the fact finder checks to see whether this story instantiates the formal requirements of the law.
248. See id. Recall that under the relative plausibility theory, the fact finder searches for "the most plausible organizing thesis that best explains the evidence and best resolves any tensions in it." Allen, The Nature of Juridical Proof, supra note 11, at 396. Once this occurs, the fact finder checks to see whether this story instantiates the formal requirements of the law.
249. See Allen, The Nature of Juridical Proof, supra note 11, at 381 ("The logical difficulties would be substantially ameliorated by requiring both parties . . . to propose equally well specified cases and instructing the fact finder to render judgment for the more likely of the two competing versions of reality.").
250. Allen, Factual Ambiguity, supra note 11, at 606.
251. This is the theory of evidence assumed, often tacitly, by most theories of juridical proof that stem from the conventional view of proof.
252. On this point, Professor Allen comments: "Perhaps this is because its contours are believed to be too obvious for extended elaboration. This is erroneous. The most salient feature of the theory of juridical evidence is not obviousness, although it may be banality." Allen, Factual Ambiguity, supra note 11, at 616.
253. See id.
254. See id. at 616-17. Without expanding the theory to include the active intelligence of the fact finder, the theory is limited only to recognizing testimonial assertions and physical objects; it cannot account for demeanor evidence because this type of evidence requires interaction by the fact finder. Rules of deduction are required because without them "propositions lead logically nowhere." Id. This deduction problem is further compounded because physical objects cannot become part of the deduction process until one first constructs propositions about the physical objects, and the conventional view is also silent on this activity. See id. at 617.
255. See id. at 616-17. Without expanding the theory to include the active intelligence of the fact finder, the theory is limited only to recognizing testimonial assertions and physical objects; it cannot account for demeanor evidence because this type of evidence requires interaction by the fact finder. Rules of deduction are required because without them "propositions lead logically nowhere." Id. This deduction problem is further compounded because physical objects cannot become part of the deduction process until one first constructs propositions about the physical objects, and the conventional view is also silent on this activity. See id. at 617.
256. See id. at 616-17. Without expanding the theory to include the active intelligence of the fact finder, the theory is limited only to recognizing testimonial assertions and physical objects; it cannot account for demeanor evidence because this type of evidence requires interaction by the fact finder. Rules of deduction are required because without them "propositions lead logically nowhere." Id. This deduction problem is further compounded because physical objects cannot become part of the deduction process until one first constructs propositions about the physical objects, and the conventional view is also silent on this activity. See id. at 617.
257. See id. at 618-19.
258. See id. at 618. Also, even if fact finders did come equipped with this knowledge, the computational complexity involved in the calculations would make the task virtually impossible. See id.
259. See id. at 618. Also, even if fact finders did come equipped with this knowledge, the computational complexity involved in the calculations would make the task virtually impossible. See id.
260. See id. at 627-30.
261. See id. at 627. Allen arrives at this solution by comparing the task of the legal fact finder to the task of the scientist. Unlike in science, judgments in law (and judgments about ordinary events in general) "virtually never are and cannot be recast as the results of controlled experiments. Too many variables are constantly and necessarily in play." Id. at 625. Thus, it is impossible to articulate a formalized theory of evidence.
262. See id. at 627. Allen arrives at this solution by comparing the task of the legal fact finder to the task of the scientist. Unlike in science, judgments in law (and judgments about ordinary events in general) "virtually never are and cannot be recast as the results of controlled experiments. Too many variables are constantly and necessarily in play." Id. at 625. Thus, it is impossible to articulate a formalized theory of evidence.
263. See id. at 627.
264. See id. at 629.
265. See id. ("[E]ach decision is a unique function of the interaction of the parties' sense of ambiguity with the fact finders' understanding of it that remains rational notwithstanding each decision's uniqueness and our inability to capture the decision process in a set of necessary and sufficient rules.").
266. Id. (citations omitted).
267. See id. at 630. Professor Allen's theory of evidence also provides greater explanatory and predictive power than the conventional theory of evidence. Allen's theory explains why there can be no general set of necessary and sufficient rules governing admission and exclusions; the conventional view cannot explain this. Moreover, Allen's theory, in pointing out the dynamic and fluid nature of evidence, explains "the otherwise rather odd progression in the field of evidence from highly articulated common law rules of relevancy to an open-ended definition of relevancy that heavily favors admissibility." Id. at 631. Furthermore, Allen's theory makes two predictions. First, the theory posits that because evidence involves interaction with the fact finder, we will see more involvement and feedback from jurors in the future. Second, based on how fact finders reason, the elemental structure of liability will be eliminated and burdens of persuasion will enter the process as conclusions, not as the focus of deliberations. Instead, greater emphasis will focus on rationality and story construction because the "reasoning methodology is essentially a story approach." See id. at 630-34.
268. See id. at 630. Professor Allen's theory of evidence also provides greater explanatory and predictive power than the conventional theory of evidence. Allen's theory explains why there can be no general set of necessary and sufficient rules governing admission and exclusions; the conventional view cannot explain this. Moreover, Allen's theory, in pointing out the dynamic and fluid nature of evidence, explains "the otherwise rather odd progression in the field of evidence from highly articulated common law rules of relevancy to an open-ended definition of relevancy that heavily favors admissibility." Id. at 631. Furthermore, Allen's theory makes two predictions. First, the theory posits that because evidence involves interaction with the fact finder, we will see more involvement and feedback from jurors in the future. Second, based on how fact finders reason, the elemental structure of liability will be eliminated and burdens of persuasion will enter the process as conclusions, not as the focus of deliberations. Instead, greater emphasis will focus on rationality and story construction because the "reasoning methodology is essentially a story approach." See id. at 630-34.
269. See id. at 630. Professor Allen's theory of evidence also provides greater explanatory and predictive power than the conventional theory of evidence. Allen's theory explains why there can be no general set of necessary and sufficient rules governing admission and exclusions; the conventional view cannot explain this. Moreover, Allen's theory, in pointing out the dynamic and fluid nature of evidence, explains "the otherwise rather odd progression in the field of evidence from highly articulated common law rules of relevancy to an open-ended definition of relevancy that heavily favors admissibility." Id. at 631. Furthermore, Allen's theory makes two predictions. First, the theory posits that because evidence involves interaction with the fact finder, we will see more involvement and feedback from jurors in the future. Second, based on how fact finders reason, the elemental structure of liability will be eliminated and burdens of persuasion will enter the process as conclusions, not as the focus of deliberations. Instead, greater emphasis will focus on rationality and story construction because the "reasoning methodology is essentially a story approach." See id. at 630-34.
270. Allen, supra note 83, at 347. The reason for this conclusion is because "[t]here is no precise algorithm available to explain to jurors, or for that matter historians, anthropologists, or astrophysicists, how to connect evidence to organizing theories." Allen, The Nature of Juridical Proof, supra note 11, at 413.
271. Allen, supra note 83, at 347. The reason for this conclusion is because "[t]here is no precise algorithm available to explain to jurors, or for that matter historians, anthropologists, or astrophysicists, how to connect evidence to organizing theories." Allen, The Nature of Juridical Proof, supra note 11, at 413.
272. Richard Friedman, Answering the Bayesioskeptical Challenge, 1 INT'L. J. OF EVIDENCE & PROOF 276 (1997).
273. Professor Friedman adds, "Bayes' theorem does not purport to force item-by-item analysis on the legal system; it is the legal system that sometimes demands such analysis, and the Bayesian approach is able to respond." Id. at 288. This does not, however, appear to be an argument in favor of Bayesianism's applicability so much as an argument in favor of rejecting the conventional view that demands such analysis. While the courts must sometimes determine the value of an individual item in determining the admissibility of a piece of evidence, this item's value will not be determined alone, but rather based on the role it plays in the offering party's overarching theory or story.
274. See JACKSON, supra note 14, at 23; William Twining, The Boston Symposium: A Comment, 66 B.U. L. REV 391, 397 (1986).
275. See JACKSON, supra note 14, at 23; William Twining, The Boston Symposium: A Comment, 66 B.U. L. REV 391, 397 (1986).
276. Allen, supra note 83, at 343.
277. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
278. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
279. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
280. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
281. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
282. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
283. See, e.g., United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (quoting 140 CONG. REC. S12990 (1994) (statement of Sen. Dole) ("Knowledge that the defendant has committed rape on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.")); Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1995) (Posner, J.) ("Realistically, a jury called upon to decide guilt must compare the prosecution's version of the incident giving rise to the case with the defense version."); Spitz v Commissioner of Internal Revenue, 954 F.2d 1382, 1384-85 (7th Cir. 1992) (Posner, J.) ("But in general and in this instance the plausibility of an explanation depends on the plausibility of the alternative explanations. However implausible the 'better saver' explanation might seem in isolation, it does not stand alone, but must be compared with the government's alternative explanation.") (citing Allen, The Nature of Juridical Proof, supra note 11; Allen, A Reconceptualization of Civil Trials, supra note 11.); see also United States v. Hannigan, 27 F.3d 890, 899 (3d Cir. 1994) (Becker, J., concurring) (noting that in discussing facts and inferences based on probability, "[o]ne cannot rely too much on the case law, for what little there is of it has not comprehensively grappled with the subject. But what is lacking in case law is made up for by a surprising flurry of scholarship surrounding the issue.").
284. See Allen, Factual Ambiguity, supra note 11, at 604. ("The combined effects of these two assaults on the conventional view is most obvious in the contemporary shift . . . to holistic perspectives.").
285. See, e.g., JACKSON, supra note 14, at 23; TWINING, supra note 14; WIGMORE, supra note 6, § 30, at 986; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
286. See, e.g., JACKSON, supra note 14, at 23; TWINING, supra note 14; WIGMORE, supra note 6, § 30, at 986; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
287. See, e.g., JACKSON, supra note 14, at 23; TWINING, supra note 14; WIGMORE, supra note 6, § 30, at 986; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
288. See, e.g., JACKSON, supra note 14, at 23; TWINING, supra note 14; WIGMORE, supra note 6, § 30, at 986; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
289. See, e.g., JACKSON, supra note 14, at 23; TWINING, supra note 14; WIGMORE, supra note 6, § 30, at 986; M.Y. Abu-Hareira, An Early Holistic Conception of Judicial Fact-Finding, 1986 JURID. REV. 79; Allen, Factual Ambiguity, supra note 11, at 604.
290. See JACKSON, supra note 14, at 23; TWINING, supra note 14, at 241.
291. See JACKSON, supra note 14, at 23; TWINING, supra note 14, at 241.
292. See WIGMORE, supra note 6, § 30, at 986; Abu-Hareira, supra note 163.
293. See WIGMORE, supra note 6, § 30, at 986; Abu-Hareira, supra note 163.
294. Professor Twining points out: The 'holistic' approaches of Tillers and Abu-Hareira have yet to be presented in the form of rounded theories. Each, in different ways, usefully directs attention to the relevance of fundamental philosophical issues about conceptions of 'rationality' and the place of notions such as configuration and coherence in rational argument. But we await a fully developed 'holistic' account of the role of analytical techniques in the evaluation of evidence. TWINING, supra note 14, at 241. Moreover, Professor Jackson points out that it is difficult to evaluate the various criticisms of atomistic views of evidence because a holistic approach has yet to be fully articulated. See JACKSON, supra note 14, at 21.
295. Professor Twining points out: The 'holistic' approaches of Tillers and Abu-Hareira have yet to be presented in the form of rounded theories. Each, in different ways, usefully directs attention to the relevance of fundamental philosophical issues about conceptions of 'rationality' and the place of notions such as configuration and coherence in rational argument. But we await a fully developed 'holistic' account of the role of analytical techniques in the evaluation of evidence. TWINING, supra note 14, at 241. Moreover, Professor Jackson points out that it is difficult to evaluate the various criticisms of atomistic views of evidence because a holistic approach has yet to be fully articulated. See JACKSON, supra note 14, at 21.
296. Specifically, I propose that this framework may be articulated through focus on Quine's theory of "the indeterminacy of translation" and the theory's relation to the theory of "the underdetermination of science." QUINE, supra note 9; QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS, supra note 16, at 26-90. For an accessible and comprehensive secondary source on Quine's philosophical projects, see HOOKWAY, supra note 16.
297. Specifically, I propose that this framework may be articulated through focus on Quine's theory of "the indeterminacy of translation" and the theory's relation to the theory of "the underdetermination of science." QUINE, supra note 9; QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS, supra note 16, at 26-90. For an accessible and comprehensive secondary source on Quine's philosophical projects, see HOOKWAY, supra note 16.
298. Specifically, I propose that this framework may be articulated through focus on Quine's theory of "the indeterminacy of translation" and the theory's relation to the theory of "the underdetermination of science." QUINE, supra note 9; QUINE, ONTOLOGICAL RELATIVITY AND OTHER ESSAYS, supra note 16, at 26-90. For an accessible and comprehensive secondary source on Quine's philosophical projects, see HOOKWAY, supra note 16.
299. See Abu-Hareira, supra note 163, at 79. The Glassford book is entitled AN ESSAY ON THE PRINCIPLES OF EVIDENCE AND THEIR APPLICATION TO SUBJECTS OF JUDICIAL ENQUIRY (1820).
300. See Abu-Hareira, supra note 163, at 79. The Glassford book is entitled AN ESSAY ON THE PRINCIPLES OF EVIDENCE AND THEIR APPLICATION TO SUBJECTS OF JUDICIAL ENQUIRY (1820).
301. See Abu-Hareira, supra note 163, at 81. The common sense philosophy of Reid and Stewart can be seen as a response to the atomistic-rationalist tradition starting with Descartes. While the rationalist tradition looked for governing "first principles" by which to deduce judgments, Reid and Stewart argued that human judgments arose from fallible common sense generalizations that are formed from one's entire background of experience. Specifically, they opposed any application of mathematical analysis to moral inquiries. See THOMAS REID, ESSAY ON THE INTELLECTUAL POWERS OF MAN (1785); DUGALD STEWART, ELEMENTS OF THE PHILOSOPHY OF THE HUMAN MIND (1821); but see RENE DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY (John Cottingham trans., Cambridge Univ. Press 1986).
302. See Abu-Hareira, supra note 163, at 81. The common sense philosophy of Reid and Stewart can be seen as a response to the atomistic-rationalist tradition starting with Descartes. While the rationalist tradition looked for governing "first principles" by which to deduce judgments, Reid and Stewart argued that human judgments arose from fallible common sense generalizations that are formed from one's entire background of experience. Specifically, they opposed any application of mathematical analysis to moral inquiries. See THOMAS REID, ESSAY ON THE INTELLECTUAL POWERS OF MAN (1785);
303. See Abu-Hareira, supra note 163, at 81. The common sense philosophy of Reid and Stewart can be seen as a response to the atomistic-rationalist tradition starting with Descartes. While the rationalist tradition looked for governing "first principles" by which to deduce judgments, Reid and Stewart argued that human judgments arose from fallible common sense generalizations that are formed from one's entire background of experience. Specifically, they opposed any application of mathematical analysis to moral inquiries. See THOMAS REID, ESSAY ON THE INTELLECTUAL POWERS OF MAN (1785); DUGALD STEWART, ELEMENTS OF THE PHILOSOPHY OF THE HUMAN MIND (1821); but see RENE DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY (John Cottingham trans., Cambridge Univ. Press 1986).
304. See Abu-Hareira, supra note 163, at 81. The common sense philosophy of Reid and Stewart can be seen as a response to the atomistic-rationalist tradition starting with Descartes. While the rationalist tradition looked for governing "first principles" by which to deduce judgments, Reid and Stewart argued that human judgments arose from fallible common sense generalizations that are formed from one's entire background of experience. Specifically, they opposed any application of mathematical analysis to moral inquiries. See THOMAS REID, ESSAY ON THE INTELLECTUAL POWERS OF MAN (1785); DUGALD STEWART, ELEMENTS OF THE PHILOSOPHY OF THE HUMAN MIND (1821); but see RENE DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY (John Cottingham trans., Cambridge Univ. Press 1986).
305. See Abu-Hareira, supra note 163, at 95. In response to evaluations based on probability, Glassford adds, "[E]xperience affords the only data by which the probability can be estimated. They do not, indeed, according to any very accurate notion, furnish the evidence of truth of facts, but only serve, by a limitation of cases, to determine the reasonableness of our expectation in certain given conditions." Id. at 99. Professor Allen criticizes in similar ways Bayesian models that rely on subjective probability assessments. See Allen, Factual Ambiguity, supra note 11. Interestingly, Glassford, like Allen, located the weight of evidence with its effect on the mind of the fact finder. See id., see also Abu-Hareira, supra note 163, at 94.
306. See Abu-Hareira, supra note 163, at 95. In response to evaluations based on probability, Glassford adds, "[E]xperience affords the only data by which the probability can be estimated. They do not, indeed, according to any very accurate notion, furnish the evidence of truth of facts, but only serve, by a limitation of cases, to determine the reasonableness of our expectation in certain given conditions." Id. at 99. Professor Allen criticizes in similar ways Bayesian models that rely on subjective probability assessments. See Allen, Factual Ambiguity, supra note 11. Interestingly, Glassford, like Allen, located the weight of evidence with its effect on the mind of the fact finder. See id., see also Abu-Hareira, supra note 163, at 94.
307. See Abu-Hareira, supra note 163, at 95. In response to evaluations based on probability, Glassford adds, "[E]xperience affords the only data by which the probability can be estimated. They do not, indeed, according to any very accurate notion, furnish the evidence of truth of facts, but only serve, by a limitation of cases, to determine the reasonableness of our expectation in certain given conditions." Id. at 99. Professor Allen criticizes in similar ways Bayesian models that rely on subjective probability assessments. See Allen, Factual Ambiguity, supra note 11. Interestingly, Glassford, like Allen, located the weight of evidence with its effect on the mind of the fact finder. See id., see also Abu-Hareira, supra note 163, at 94.
308. See Abu-Hareira, supra note 163, at 95. In response to evaluations based on probability, Glassford adds, "[E]xperience affords the only data by which the probability can be estimated. They do not, indeed, according to any very accurate notion, furnish the evidence of truth of facts, but only serve, by a limitation of cases, to determine the reasonableness of our expectation in certain given conditions." Id. at 99. Professor Allen criticizes in similar ways Bayesian models that rely on subjective probability assessments. See Allen, Factual Ambiguity, supra note 11. Interestingly, Glassford, like Allen, located the weight of evidence with its effect on the mind of the fact finder. See id., see also Abu-Hareira, supra note 163, at 94.
309. See Abu-Hareira, supra note 163, at 95. In response to evaluations based on probability, Glassford adds, "[E]xperience affords the only data by which the probability can be estimated. They do not, indeed, according to any very accurate notion, furnish the evidence of truth of facts, but only serve, by a limitation of cases, to determine the reasonableness of our expectation in certain given conditions." Id. at 99. Professor Allen criticizes in similar ways Bayesian models that rely on subjective probability assessments. See Allen, Factual Ambiguity, supra note 11. Interestingly, Glassford, like Allen, located the weight of evidence with its effect on the mind of the fact finder. See id., see also Abu-Hareira, supra note 163, at 94.
310. See Abu-Hareira, supra note 163, at 95; see also TWINING, supra note 14, at 241.
311. See Abu-Hareira, supra note 163, at 95; see also TWINING, supra note 14, at 241.
312. See Abu-Hareira, supra note 163, at 95.
313. See WIGMORE, supra note 6, § 30, at 986.
314. See id. Note Allen's distinction between a theory of proof and a theory of evidence in Allen, Factual Ambiguity, supra note 11, at 630.
315. See WIGMORE, supra note 6, § 30, at 986.
316. See id. Specifically, the systematic attempts obscure the complex processes that fact finders actually employ and should employ in evaluating evidence. See id.
317. See id.
318. Interestingly, Tillers makes a brief reference to Quine in discussing the danger in explaining inferences systematically. See id. at 1062 n.23 ("Philosophical investigations by figures such as Professor Quine have shown convincingly that any particular inference presupposes a whole complex of views about the way the world and its various parts work.").
319. The epistemological inquiry examines whether beliefs are true, justified, and to a lesser extent, whether they were acquired through reliable means. The epistemologist's task is the broader one of studying knowledge of the world generally, while the legal fact finder has the narrower task of searching to validate her beliefs about a certain event in the past. See GOLDMAN, supra note 91, at 272.
320. See, e.g., DENNIS PATTERSON, LAW AND TRUTH 158-59 (1996); WIGMORE, supra note 6, § 37.6, at 1062; Allen & Leiter, supra note 7; Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REV. 1739 (1997); Peter Tillers, Mapping Inferential Domains, in PROBABILITY AND INFERENCE supra note 78, at 277-336.
321. See, e.g., DENNIS PATTERSON, LAW AND TRUTH 158-59 (1996); WIGMORE, supra note 6, § 37.6, at 1062; Allen & Leiter, supra note 7; Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REV. 1739 (1997); Peter Tillers, Mapping Inferential Domains, in PROBABILITY AND INFERENCE supra note 78, at 277-336.
322. See, e.g., DENNIS PATTERSON, LAW AND TRUTH 158-59 (1996); WIGMORE, supra note 6, § 37.6, at 1062; Allen & Leiter, supra note 7; Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REV. 1739 (1997); Peter Tillers, Mapping Inferential Domains, in PROBABILITY AND INFERENCE supra note 78, at 277-336.
323. See, e.g., DENNIS PATTERSON, LAW AND TRUTH 158-59 (1996); WIGMORE, supra note 6, § 37.6, at 1062; Allen & Leiter, supra note 7; Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REV. 1739 (1997); Peter Tillers, Mapping Inferential Domains, in PROBABILITY AND INFERENCE supra note 78, at 277-336.
324. See, e.g., DENNIS PATTERSON, LAW AND TRUTH 158-59 (1996); WIGMORE, supra note 6, § 37.6, at 1062; Allen & Leiter, supra note 7; Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REV. 1739 (1997); Peter Tillers, Mapping Inferential Domains, in PROBABILITY AND INFERENCE supra note 78, at 277-336.
325. Logical Positivism was advanced primarily by a group of philosophers known as the Vienna Circle that included, among others, Rudolf Carnap, Otto Neurath, Carl Hempel, and Moritz Schlick. The logical positivists argued for a new method of philosophy that stemmed from Ludwig Wittgenstein's TRACTATUS LOGICO-PHILOSOPHICUS (D.F. Pears & B.F. McGuinness trans., Routledge 1995) (1921) [hereinafter WITTGENSTEIN, TRACTATUS]. Wittgenstein argued that problems or questions that did not have a verifiable answer were meaningless or $pseudoproblems," and that much of philosophy was concerned with these meaningless issues. See id. at 73-74 ("6.5 When the answer cannot be put into words, neither can the question be put into words . . . . 6.51 For doubt can exist only where a question exists, a question only where an answer exists, and an answer only where something can be said."); see also RICHARD RORTY, THE LINGUISTIC TURN (1971); Rudolph Carnap, The Elimination of Metaphysics Through the Logical Analysis of Language, in LOGICAL POSITIVISM 60 (A.J. Ayer ed., 1959); Moritz Schlick, The Turning Point in Philosophy, in LOGICAL POSITIVISM, supra, at 53.
326. Logical Positivism was advanced primarily by a group of philosophers known as the Vienna Circle that included, among others, Rudolf Carnap, Otto Neurath, Carl Hempel, and Moritz Schlick. The logical positivists argued for a new method of philosophy that stemmed from Ludwig Wittgenstein's TRACTATUS LOGICO-PHILOSOPHICUS (D.F. Pears & B.F. McGuinness trans., Routledge 1995) (1921) [hereinafter WITTGENSTEIN, TRACTATUS]. Wittgenstein argued that problems or questions that did not have a verifiable answer were meaningless or $pseudoproblems," and that much of philosophy was concerned with these meaningless issues. See id. at 73-74 ("6.5 When the answer cannot be put into words, neither can the question be put into words . . . . 6.51 For doubt can exist only where a question exists, a question only where an answer exists, and an answer only where something can be said."); see also RICHARD RORTY, THE LINGUISTIC TURN (1971); Rudolph Carnap, The Elimination of Metaphysics Through the Logical Analysis of Language, in LOGICAL POSITIVISM 60 (A.J. Ayer ed., 1959); Moritz Schlick, The Turning Point in Philosophy, in LOGICAL POSITIVISM, supra, at 53.
327. Logical Positivism was advanced primarily by a group of philosophers known as the Vienna Circle that included, among others, Rudolf Carnap, Otto Neurath, Carl Hempel, and Moritz Schlick. The logical positivists argued for a new method of philosophy that stemmed from Ludwig Wittgenstein's TRACTATUS LOGICO-PHILOSOPHICUS (D.F. Pears & B.F. McGuinness trans., Routledge 1995) (1921) [hereinafter WITTGENSTEIN, TRACTATUS]. Wittgenstein argued that problems or questions that did not have a verifiable answer were meaningless or $pseudoproblems," and that much of philosophy was concerned with these meaningless issues. See id. at 73-74 ("6.5 When the answer cannot be put into words, neither can the question be put into words . . . . 6.51 For doubt can exist only where a question exists, a question only where an answer exists, and an answer only where something can be said."); see also RICHARD RORTY, THE LINGUISTIC TURN (1971); Rudolph Carnap, The Elimination of Metaphysics Through the Logical Analysis of Language, in LOGICAL POSITIVISM 60 (A.J. Ayer ed., 1959); Moritz Schlick, The Turning Point in Philosophy, in LOGICAL POSITIVISM, supra, at 53.
328. Logical Positivism was advanced primarily by a group of philosophers known as the Vienna Circle that included, among others, Rudolf Carnap, Otto Neurath, Carl Hempel, and Moritz Schlick. The logical positivists argued for a new method of philosophy that stemmed from Ludwig Wittgenstein's TRACTATUS LOGICO-PHILOSOPHICUS (D.F. Pears & B.F. McGuinness trans., Routledge 1995) (1921) [hereinafter WITTGENSTEIN, TRACTATUS]. Wittgenstein argued that problems or questions that did not have a verifiable answer were meaningless or $pseudoproblems," and that much of philosophy was concerned with these meaningless issues. See id. at 73-74 ("6.5 When the answer cannot be put into words, neither can the question be put into words . . . . 6.51 For doubt can exist only where a question exists, a question only where an answer exists, and an answer only where something can be said."); see also RICHARD RORTY, THE LINGUISTIC TURN (1971); Rudolph Carnap, The Elimination of Metaphysics Through the Logical Analysis of Language, in LOGICAL POSITIVISM 60 (A.J. Ayer ed., 1959); Moritz Schlick, The Turning Point in Philosophy, in LOGICAL POSITIVISM, supra, at 53.
329. Logical Positivism was advanced primarily by a group of philosophers known as the Vienna Circle that included, among others, Rudolf Carnap, Otto Neurath, Carl Hempel, and Moritz Schlick. The logical positivists argued for a new method of philosophy that stemmed from Ludwig Wittgenstein's TRACTATUS LOGICO-PHILOSOPHICUS (D.F. Pears & B.F. McGuinness trans., Routledge 1995) (1921) [hereinafter WITTGENSTEIN, TRACTATUS]. Wittgenstein argued that problems or questions that did not have a verifiable answer were meaningless or $pseudoproblems," and that much of philosophy was concerned with these meaningless issues. See id. at 73-74 ("6.5 When the answer cannot be put into words, neither can the question be put into words . . . . 6.51 For doubt can exist only where a question exists, a question only where an answer exists, and an answer only where something can be said."); see also RICHARD RORTY, THE LINGUISTIC TURN (1971); Rudolph Carnap, The Elimination of Metaphysics Through the Logical Analysis of Language, in LOGICAL POSITIVISM 60 (A.J. Ayer ed., 1959); Moritz Schlick, The Turning Point in Philosophy, in LOGICAL POSITIVISM, supra, at 53.
330. Logical Positivism was advanced primarily by a group of philosophers known as the Vienna Circle that included, among others, Rudolf Carnap, Otto Neurath, Carl Hempel, and Moritz Schlick. The logical positivists argued for a new method of philosophy that stemmed from Ludwig Wittgenstein's TRACTATUS LOGICO-PHILOSOPHICUS (D.F. Pears & B.F. McGuinness trans., Routledge 1995) (1921) [hereinafter WITTGENSTEIN, TRACTATUS]. Wittgenstein argued that problems or questions that did not have a verifiable answer were meaningless or $pseudoproblems," and that much of philosophy was concerned with these meaningless issues. See id. at 73-74 ("6.5 When the answer cannot be put into words, neither can the question be put into words . . . . 6.51 For doubt can exist only where a question exists, a question only where an answer exists, and an answer only where something can be said."); see also RICHARD RORTY, THE LINGUISTIC TURN (1971); Rudolph Carnap, The Elimination of Metaphysics Through the Logical Analysis of Language, in LOGICAL POSITIVISM 60 (A.J. Ayer ed., 1959); Moritz Schlick, The Turning Point in Philosophy, in LOGICAL POSITIVISM, supra, at 53.
331. See RUDOLF CARNAP, THE LOGICAL STRUCTURE OF THE WORLD (1928);
332. RUDOLF CARNAP, THE LOGICAL SYNTAX OF LANGUAGE (1937);
333. Carl G. Hempel, The Empiricist Criterion of Meaning, in LOGICAL POSITIVISM, supra note 181, at 108;
334. Otto Neurath, Protocol Sentences, in LOGICAL POSITIVISM, supra note 181, at 199 (George Schick trans.).
335. See sources supra note 182. The logical positivist project, following Wittgenstein, rejected the old epistemological problems, starting with Descartes, which concerned whether the world was different than the way our senses reported. See DESCARTES, supra note 169. But see WITTGENSTEIN, supra note 181. At the time, Descartes's atomistic vision helped rescue science, mathematics, and philosophy from medieval thought. "[S]purred on by the power of science and its control over nature, philosophy replaced the medieval emphasis on custom, ritual, authority, and cosmology with a self-conscious preoccupation with legitimacy, progress, autonomy, rationality, and human emancipation." PATTERSON, supra note 180, at 152 [citations omitted]. Interestingly, most arguments for holism, or interconnectedness in general, can be seen as a rejection of the Cartesian-mechanistic-atomistic framework by viewing it as distorting and oversimplified. In science, a field known as "systems theory" responds to this model. Systems theory is the transdisciplinary study of the abstract organization of phenomena, independent of their substance, type, spatial or temporal scale of existence. It studies the principles common to complex entities and the models that purport to describe them. See, e.g., ERVIN LASZLO, THE SYSTEMS VIEW OF THE WORLD: A HOLISTIC VISION OF OUR TIME: ADVANCES IN SYSTEM THEORY, COMPLEXITY, AND THE HUMAN SCIENCES (1996).
336. See sources supra note 182. The logical positivist project, following Wittgenstein, rejected the old epistemological problems, starting with Descartes, which concerned whether the world was different than the way our senses reported. See DESCARTES, supra note 169. But see WITTGENSTEIN, supra note 181. At the time, Descartes's atomistic vision helped rescue science, mathematics, and philosophy from medieval thought. "[S]purred on by the power of science and its control over nature, philosophy replaced the medieval emphasis on custom, ritual, authority, and cosmology with a self-conscious preoccupation with legitimacy, progress, autonomy, rationality, and human emancipation." PATTERSON, supra note 180, at 152 [citations omitted]. Interestingly, most arguments for holism, or interconnectedness in general, can be seen as a rejection of the Cartesian-mechanistic-atomistic framework by viewing it as distorting and oversimplified. In science, a field known as "systems theory" responds to this model. Systems theory is the transdisciplinary study of the abstract organization of phenomena, independent of their substance, type, spatial or temporal scale of existence. It studies the principles common to complex entities and the models that purport to describe them. See, e.g., ERVIN LASZLO, THE SYSTEMS VIEW OF THE WORLD: A HOLISTIC VISION OF OUR TIME: ADVANCES IN SYSTEM THEORY, COMPLEXITY, AND THE HUMAN SCIENCES (1996).
337. See sources supra note 182. The logical positivist project, following Wittgenstein, rejected the old epistemological problems, starting with Descartes, which concerned whether the world was different than the way our senses reported. See DESCARTES, supra note 169. But see WITTGENSTEIN, supra note 181. At the time, Descartes's atomistic vision helped rescue science, mathematics, and philosophy from medieval thought. "[S]purred on by the power of science and its control over nature, philosophy replaced the medieval emphasis on custom, ritual, authority, and cosmology with a self-conscious preoccupation with legitimacy, progress, autonomy, rationality, and human emancipation." PATTERSON, supra note 180, at 152 [citations omitted]. Interestingly, most arguments for holism, or interconnectedness in general, can be seen as a rejection of the Cartesian-mechanistic-atomistic framework by viewing it as distorting and oversimplified. In science, a field known as "systems theory" responds to this model. Systems theory is the transdisciplinary study of the abstract organization of phenomena, independent of their substance, type, spatial or temporal scale of existence. It studies the principles common to complex entities and the models that purport to describe them. See, e.g., ERVIN LASZLO, THE SYSTEMS VIEW OF THE WORLD: A HOLISTIC VISION OF OUR TIME: ADVANCES IN SYSTEM THEORY, COMPLEXITY, AND THE HUMAN SCIENCES (1996).
338. See sources supra note 182. The logical positivist project, following Wittgenstein, rejected the old epistemological problems, starting with Descartes, which concerned whether the world was different than the way our senses reported. See DESCARTES, supra note 169. But see WITTGENSTEIN, supra note 181. At the time, Descartes's atomistic vision helped rescue science, mathematics, and philosophy from medieval thought. "[S]purred on by the power of science and its control over nature, philosophy replaced the medieval emphasis on custom, ritual, authority, and cosmology with a self-conscious preoccupation with legitimacy, progress, autonomy, rationality, and human emancipation." PATTERSON, supra note 180, at 152 [citations omitted]. Interestingly, most arguments for holism, or interconnectedness in general, can be seen as a rejection of the Cartesian-mechanistic-atomistic framework by viewing it as distorting and oversimplified. In science, a field known as "systems theory" responds to this model. Systems theory is the transdisciplinary study of the abstract organization of phenomena, independent of their substance, type, spatial or temporal scale of existence. It studies the principles common to complex entities and the models that purport to describe them. See, e.g., ERVIN LASZLO, THE SYSTEMS VIEW OF THE WORLD: A HOLISTIC VISION OF OUR TIME: ADVANCES IN SYSTEM THEORY, COMPLEXITY, AND THE HUMAN SCIENCES (1996).
339. See CARNAP, THE LOGICAL STRUCTURE OF THE WORLD, supra note 182; Neurath, supra note 182. This process became known as the verification theory of meaning.
340. See CARNAP, THE LOGICAL STRUCTURE OF THE WORLD, supra note 182; Neurath, supra note 182. This process became known as the verification theory of meaning.
341. Sentences are analytically true if they are true in virtue of their meaning, such as "All bachelors are unmarried." See Two Dogmas of Empiricism, in QUINE, LOGICAL POINT OF VIEW, supra note 16, at 20-46.
342. See id.
343. See id.
344. See id.
345. See id.
346. See id. Quine refers to these two dogmas as "at root identical." Id. at 41. By this he suggests that the two stem from the same point, the verification theory of meaning.
347. See id. Quine refers to these two dogmas as "at root identical." Id. at 41. By this he suggests that the two stem from the same point, the verification theory of meaning.
348. See id. at 20-46.
349. See id.
350. See id.
351. Without an analytic-synthetic distinction, all statements become "up for grabs," so to speak, and reductionism cannot take place. Therefore, there are no basic units of knowledge (i.e., self-evident sensory statements and analytic truths) upon which to build. Instead, knowledge becomes embedded in our entire theoretical viewpoint, or the whole of science. Philosopher Donald Davidson writes: "To give up the analytic-synthetic distinction as basic to the understanding of language is to give up the idea that we can clearly distinguish between theory and language. Meaning, as we might loosely use the word, is contaminated by theory . . . ." DONALD DAVIDSON, On the Very Idea of a Conceptual Scheme, in INQUIRIES INTO TRUTH AND INTERPRETATION 187 (1984).
352. See Two Dogmas of Empiricism, in FROM A LOGICAL POINT OF VIEW, supra note 16, at 20-46. In doing so, Quine suggests a shift in our theoretical view of science away from a pyramid or "layer cake" metaphor toward a web or network metaphor, where individual claims of knowledge are seen as interwoven and hanging together.
353. See id. at 42-43. Quine's epistemological outlook evolved into a theory of "naturalized epistemology." Under this view, Quine remains committed to empiricism, without the dogmas of reduction" ism and the analytic-synthetic distinction, where philosophy merges with science instead of containing it. Rather than basing our knowledge on basic fundamental truths, our knowledge is only as good as the best overall theory of science. In reference to the projects of epistemology and science Quine writes, "There is thus reciprocal containment . . . epistemology in natural science and natural science in epistemology." W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 83 (1969). For an argument questioning whether Quine's approach can answer the basic epistemological question of validating our beliefs about the world, see Barry Stroud, Conventionalism and the Indeterminacy of Translation, in WORDS AND OBJECTIONS: ESSAYS ON THE WORKS OF W.V. QUINE (Donald Davidson & Jaakko Hintikka eds., 1969) [hereinafter WORDS AND OBJECTIONS].
354. See id. at 42-43. Quine's epistemological outlook evolved into a theory of "naturalized epistemology." Under this view, Quine remains committed to empiricism, without the dogmas of reduction" ism and the analytic-synthetic distinction, where philosophy merges with science instead of containing it. Rather than basing our knowledge on basic fundamental truths, our knowledge is only as good as the best overall theory of science. In reference to the projects of epistemology and science Quine writes, "There is thus reciprocal containment . . . epistemology in natural science and natural science in epistemology." W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 83 (1969). For an argument questioning whether Quine's approach can answer the basic epistemological question of validating our beliefs about the world, see Barry Stroud, Conventionalism and the Indeterminacy of Translation, in WORDS AND OBJECTIONS: ESSAYS ON THE WORKS OF W.V. QUINE (Donald Davidson & Jaakko Hintikka eds., 1969) [hereinafter WORDS AND OBJECTIONS].
355. See id. at 42-43. Quine's epistemological outlook evolved into a theory of "naturalized epistemology." Under this view, Quine remains committed to empiricism, without the dogmas of reduction" ism and the analytic-synthetic distinction, where philosophy merges with science instead of containing it. Rather than basing our knowledge on basic fundamental truths, our knowledge is only as good as the best overall theory of science. In reference to the projects of epistemology and science Quine writes, "There is thus reciprocal containment . . . epistemology in natural science and natural science in epistemology." W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 83 (1969). For an argument questioning whether Quine's approach can answer the basic epistemological question of validating our beliefs about the world, see Barry Stroud, Conventionalism and the Indeterminacy of Translation, in WORDS AND OBJECTIONS: ESSAYS ON THE WORKS OF W.V. QUINE (Donald Davidson & Jaakko Hintikka eds., 1969) [hereinafter WORDS AND OBJECTIONS].
356. See id. at 42-43. Quine's epistemological outlook evolved into a theory of "naturalized epistemology." Under this view, Quine remains committed to empiricism, without the dogmas of reduction" ism and the analytic-synthetic distinction, where philosophy merges with science instead of containing it. Rather than basing our knowledge on basic fundamental truths, our knowledge is only as good as the best overall theory of science. In reference to the projects of epistemology and science Quine writes, "There is thus reciprocal containment . . . epistemology in natural science and natural science in epistemology." W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 83 (1969). For an argument questioning whether Quine's approach can answer the basic epistemological question of validating our beliefs about the world, see Barry Stroud, Conventionalism and the Indeterminacy of Translation, in WORDS AND OBJECTIONS: ESSAYS ON THE WORKS OF W.V. QUINE (Donald Davidson & Jaakko Hintikka eds., 1969) [hereinafter WORDS AND OBJECTIONS].
357. See id. An argument can be made for evidentiary holism based solely on the underdetermination of science. Specifically, any piece of evidence can be explained in various ways depending on how we adjust the network of beliefs and assumptions with which it hangs together. For an argument about why this type of holism may not be readily adaptable to the courtroom situation, see Brian Leiter, The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence, 1997 BYU L. REV. 803; see also Heidi Li Feldman, Science and Uncertainty in Mass Exposure Litigation, 74 TEX. L. REV. 1 (1995) (arguing that science cannot tell law how to solve the problem of recurring uncertainty about general causation in litigation). For a somewhat light-hearted discussion of what this philosophy of science debate might look like in the courtroom, see George Johnson, Ideas & Trends: Imaginary Witness: O.J.'s Blood and the Big Bang Together at Last N.Y. TIMES, May 21, 1995, at D1.
358. See id. An argument can be made for evidentiary holism based solely on the underdetermination of science. Specifically, any piece of evidence can be explained in various ways depending on how we adjust the network of beliefs and assumptions with which it hangs together. For an argument about why this type of holism may not be readily adaptable to the courtroom situation, see Brian Leiter, The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence, 1997 BYU L. REV. 803; see also Heidi Li Feldman, Science and Uncertainty in Mass Exposure Litigation, 74 TEX. L. REV. 1 (1995) (arguing that science cannot tell law how to solve the problem of recurring uncertainty about general causation in litigation). For a somewhat light-hearted discussion of what this philosophy of science debate might look like in the courtroom, see George Johnson, Ideas & Trends: Imaginary Witness: O.J.'s Blood and the Big Bang Together at Last N.Y. TIMES, May 21, 1995, at D1.
359. See id. An argument can be made for evidentiary holism based solely on the underdetermination of science. Specifically, any piece of evidence can be explained in various ways depending on how we adjust the network of beliefs and assumptions with which it hangs together. For an argument about why this type of holism may not be readily adaptable to the courtroom situation, see Brian Leiter, The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence, 1997 BYU L. REV. 803; see also Heidi Li Feldman, Science and Uncertainty in Mass Exposure Litigation, 74 TEX. L. REV. 1 (1995) (arguing that science cannot tell law how to solve the problem of recurring uncertainty about general causation in litigation). For a somewhat light-hearted discussion of what this philosophy of science debate might look like in the courtroom, see George Johnson, Ideas & Trends: Imaginary Witness: O.J.'s Blood and the Big Bang Together at Last N.Y. TIMES, May 21, 1995, at D1.
360. See id. An argument can be made for evidentiary holism based solely on the underdetermination of science. Specifically, any piece of evidence can be explained in various ways depending on how we adjust the network of beliefs and assumptions with which it hangs together. For an argument about why this type of holism may not be readily adaptable to the courtroom situation, see Brian Leiter, The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence, 1997 BYU L. REV. 803; see also Heidi Li Feldman, Science and Uncertainty in Mass Exposure Litigation, 74 TEX. L. REV. 1 (1995) (arguing that science cannot tell law how to solve the problem of recurring uncertainty about general causation in litigation). For a somewhat light-hearted discussion of what this philosophy of science debate might look like in the courtroom, see George Johnson, Ideas & Trends: Imaginary Witness: O.J.'s Blood and the Big Bang Together at Last N.Y. TIMES, May 21, 1995, at D1.
361. See QUINE, supra note 195, at 83. Professor Allen points out the similar debate in the philosophy of science, where a shift occurred from the search for undeniable truth to the search for better explanatory theories. See Allen, Factual Ambiguity, supra note 11, at 605. This occurred with the recognition of the "theory-laden-ness" of our observations. See generally, KARL R. POPPER, OBJECTIVE KNOWLEDGE (1972) (advocating an objectivist theory of conjectural knowledge and common sense realism). Interestingly, a somewhat similar debate took place in pre-Socratic ancient Greek philosophy about the nature of the physical world. This debate, which occurred circa 450-400 BCE, concerned whether the basic description of the universe was as one entity or as being made up of an infinitesimal amount of undividable atoms moving in void. Compare, e.g., Zeno of Elea in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE 57-69 (S. Marc Cohen et al. eds., 1995) with Atomism: Leucippus and Democritus, in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE, supra, at 57-69. I write "somewhat similar" because the ancient Greek debate seemed to concern competing descriptions of the physical world with differing concepts of the basic unit of physical reality, i.e., one entity versus many entities. Likewise, the modern debate in the philosophy of science seems to concern competing descriptions of the physical world with differing concepts of the basic unit of description, i.e., one theory versus many facts.
362. See QUINE, supra note 195, at 83. Professor Allen points out the similar debate in the philosophy of science, where a shift occurred from the search for undeniable truth to the search for better explanatory theories. See Allen, Factual Ambiguity, supra note 11, at 605. This occurred with the recognition of the "theory-laden-ness" of our observations. See generally, KARL R. POPPER, OBJECTIVE KNOWLEDGE (1972) (advocating an objectivist theory of conjectural knowledge and common sense realism). Interestingly, a somewhat similar debate took place in pre-Socratic ancient Greek philosophy about the nature of the physical world. This debate, which occurred circa 450-400 BCE, concerned whether the basic description of the universe was as one entity or as being made up of an infinitesimal amount of undividable atoms moving in void. Compare, e.g., Zeno of Elea in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE 57-69 (S. Marc Cohen et al. eds., 1995) with Atomism: Leucippus and Democritus, in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE, supra, at 57-69. I write "somewhat similar" because the ancient Greek debate seemed to concern competing descriptions of the physical world with differing concepts of the basic unit of physical reality, i.e., one entity versus many entities. Likewise, the modern debate in the philosophy of science seems to concern competing descriptions of the physical world with differing concepts of the basic unit of description, i.e., one theory versus many facts.
363. See QUINE, supra note 195, at 83. Professor Allen points out the similar debate in the philosophy of science, where a shift occurred from the search for undeniable truth to the search for better explanatory theories. See Allen, Factual Ambiguity, supra note 11, at 605. This occurred with the recognition of the "theory-laden-ness" of our observations. See generally, KARL R. POPPER, OBJECTIVE KNOWLEDGE (1972) (advocating an objectivist theory of conjectural knowledge and common sense realism). Interestingly, a somewhat similar debate took place in pre-Socratic ancient Greek philosophy about the nature of the physical world. This debate, which occurred circa 450-400 BCE, concerned whether the basic description of the universe was as one entity or as being made up of an infinitesimal amount of undividable atoms moving in void. Compare, e.g., Zeno of Elea in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE 57-69 (S. Marc Cohen et al. eds., 1995) with Atomism: Leucippus and Democritus, in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE, supra, at 57-69. I write "somewhat similar" because the ancient Greek debate seemed to concern competing descriptions of the physical world with differing concepts of the basic unit of physical reality, i.e., one entity versus many entities. Likewise, the modern debate in the philosophy of science seems to concern competing descriptions of the physical world with differing concepts of the basic unit of description, i.e., one theory versus many facts.
364. See QUINE, supra note 195, at 83. Professor Allen points out the similar debate in the philosophy of science, where a shift occurred from the search for undeniable truth to the search for better explanatory theories. See Allen, Factual Ambiguity, supra note 11, at 605. This occurred with the recognition of the "theory-laden-ness" of our observations. See generally, KARL R. POPPER, OBJECTIVE KNOWLEDGE (1972) (advocating an objectivist theory of conjectural knowledge and common sense realism). Interestingly, a somewhat similar debate took place in pre-Socratic ancient Greek philosophy about the nature of the physical world. This debate, which occurred circa 450-400 BCE, concerned whether the basic description of the universe was as one entity or as being made up of an infinitesimal amount of undividable atoms moving in void. Compare, e.g., Zeno of Elea in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE 57-69 (S. Marc Cohen et al. eds., 1995) with Atomism: Leucippus and Democritus, in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE, supra, at 57-69. I write "somewhat similar" because the ancient Greek debate seemed to concern competing descriptions of the physical world with differing concepts of the basic unit of physical reality, i.e., one entity versus many entities. Likewise, the modern debate in the philosophy of science seems to concern competing descriptions of the physical world with differing concepts of the basic unit of description, i.e., one theory versus many facts.
365. See QUINE, supra note 195, at 83. Professor Allen points out the similar debate in the philosophy of science, where a shift occurred from the search for undeniable truth to the search for better explanatory theories. See Allen, Factual Ambiguity, supra note 11, at 605. This occurred with the recognition of the "theory-laden-ness" of our observations. See generally, KARL R. POPPER, OBJECTIVE KNOWLEDGE (1972) (advocating an objectivist theory of conjectural knowledge and common sense realism). Interestingly, a somewhat similar debate took place in pre-Socratic ancient Greek philosophy about the nature of the physical world. This debate, which occurred circa 450-400 BCE, concerned whether the basic description of the universe was as one entity or as being made up of an infinitesimal amount of undividable atoms moving in void. Compare, e.g., Zeno of Elea in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE 57-69 (S. Marc Cohen et al. eds., 1995) with Atomism: Leucippus and Democritus, in READINGS IN ANCIENT GREEK PHILOSOPHY: FROM THALES TO ARISTOTLE, supra, at 57-69. I write "somewhat similar" because the ancient Greek debate seemed to concern competing descriptions of the physical world with differing concepts of the basic unit of physical reality, i.e., one entity versus many entities. Likewise, the modern debate in the philosophy of science seems to concern competing descriptions of the physical world with differing concepts of the basic unit of description, i.e., one theory versus many facts.
366. This notion that we can explain away the falsification of a particular claim merely by altering our background theory (or changing our auxiliary hypotheses) has become known as the Quine-Duhem thesis. See PIERRE DUHEM, THE AIM AND STRUCTURE OF PHYSICAL THEORY (Philip P. Wiener, trans., Princeton Univ. Press 1991) (1914); QUINE, supra note 9.
367. This notion that we can explain away the falsification of a particular claim merely by altering our background theory (or changing our auxiliary hypotheses) has become known as the Quine-Duhem thesis. See PIERRE DUHEM, THE AIM AND STRUCTURE OF PHYSICAL THEORY (Philip P. Wiener, trans., Princeton Univ. Press 1991) (1914); QUINE, supra note 9.
368. See QUINE, supra note 9, at 26-80; QUINE, PURSUIT OF TRUTH, supra note 16, at 102; HOOKWAY, supra note 16, at 127-36.
369. See QUINE, supra note 9, at 26-80; QUINE, PURSUIT OF TRUTH, supra note 16, at 102; HOOKWAY, supra note 16, at 127-36.
370. See QUINE, supra note 9, at 26-80; QUINE, PURSUIT OF TRUTH, supra note 16, at 102; HOOKWAY, supra note 16, at 127-36.
371. See id.
372. See HOOKWAY, supra note 16, at 165-67.
373. See id.
374. In philosophy of language, this view involved a shift from the logical positivist view of language, which prevailed until the 1960s, defining meaning in terms of disposition to empirical verifiability See Neurath, supra note 182.
375. The argument is simple: all language (in general) is indeterminate, such language includes any language about evidence, thus language about evidence inherits the indeterminacy that inheres in all language.
376. See GOLDMAN, supra note 91, at 276. For a discussion of the problems of a theory of meaning holism, see HOOKWAY, supra note 16, at 165-67; cf. Eric Lormand, How to Be a Meaning Holist, 2 J. PHIL. 51 (Feb. 1996) (advocating that holism can accommodate and also increase meaning stability); see also Gila Sher, Is There a Place for Philosophy in Quine's Theory? 10 J. PHIL. 491, 508-09 (Oct. 1999) (arguing that the imposition of a "center-periphery model" on Quine's holism would introduce structure and simplicity and prevent an "amorphous holism").
377. See GOLDMAN, supra note 91, at 276. For a discussion of the problems of a theory of meaning holism, see HOOKWAY, supra note 16, at 165-67; cf. Eric Lormand, How to Be a Meaning Holist, 2 J. PHIL. 51 (Feb. 1996) (advocating that holism can accommodate and also increase meaning stability); see also Gila Sher, Is There a Place for Philosophy in Quine's Theory? 10 J. PHIL. 491, 508-09 (Oct. 1999) (arguing that the imposition of a "center-periphery model" on Quine's holism would introduce structure and simplicity and prevent an "amorphous holism").
378. See GOLDMAN, supra note 91, at 276. For a discussion of the problems of a theory of meaning holism, see HOOKWAY, supra note 16, at 165-67; cf. Eric Lormand, How to Be a Meaning Holist, 2 J. PHIL. 51 (Feb. 1996) (advocating that holism can accommodate and also increase meaning stability); see also Gila Sher, Is There a Place for Philosophy in Quine's Theory? 10 J. PHIL. 491, 508-09 (Oct. 1999) (arguing that the imposition of a "center-periphery model" on Quine's holism would introduce structure and simplicity and prevent an "amorphous holism").
379. See GOLDMAN, supra note 91, at 276. For a discussion of the problems of a theory of meaning holism, see HOOKWAY, supra note 16, at 165-67; cf. Eric Lormand, How to Be a Meaning Holist, 2 J. PHIL. 51 (Feb. 1996) (advocating that holism can accommodate and also increase meaning stability); see also Gila Sher, Is There a Place for Philosophy in Quine's Theory? 10 J. PHIL. 491, 508-09 (Oct. 1999) (arguing that the imposition of a "center-periphery model" on Quine's holism would introduce structure and simplicity and prevent an "amorphous holism").
380. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more behaviorist position for the law. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 197-211 (1990) (arguing in favor of a behaviorist position in the law that calls for the elimination of mental elements based on ontological skepticism about mental events). Quine offers similar arguments for the epistemological task in Flight from Intension, in WORD AND OBJECT, supra note 9, at 191-232.
381. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more behaviorist position for the law. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 197-211 (1990) (arguing in favor of a behaviorist position in the law that calls for the elimination of mental elements based on ontological skepticism about mental events). Quine offers similar arguments for the epistemological task in Flight from Intension, in WORD AND OBJECT, supra note 9, at 191-232.
382. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more behaviorist position for the law. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 197-211 (1990) (arguing in favor of a behaviorist position in the law that calls for the elimination of mental elements based on ontological skepticism about mental events). Quine offers similar arguments for the epistemological task in Flight from Intension, in WORD AND OBJECT, supra note 9, at 191-232.
383. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more behaviorist position for the law. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 197-211 (1990) (arguing in favor of a behaviorist position in the law that calls for the elimination of mental elements based on ontological skepticism about mental events). Quine offers similar arguments for the epistemological task in Flight from Intension, in WORD AND OBJECT, supra note 9, at 191-232.
384. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more behaviorist position for the law. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 197-211 (1990) (arguing in favor of a behaviorist position in the law that calls for the elimination of mental elements based on ontological skepticism about mental events). Quine offers similar arguments for the epistemological task in Flight from Intension, in WORD AND OBJECT, supra note 9, at 191-232.
385. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more behaviorist position for the law. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 197-211 (1990) (arguing in favor of a behaviorist position in the law that calls for the elimination of mental elements based on ontological skepticism about mental events). Quine offers similar arguments for the epistemological task in Flight from Intension, in WORD AND OBJECT, supra note 9, at 191-232.
386. I avoid the question of the theory's truth, as it is outside the scope and constraints of this paper, and because the theory's truth-value is irrelevant for the purpose in which I offer it. I am, at least, sympathetic to arguments in its favor. For more recent arguments in its favor, see STEPHEN SCHIFFER, REMNANTS OF MEANING (1987) and Lormand, supra note 205. Moreover, even if the theory is not true in the global sense, it may be true in the courtroom sense. The major objections to the theory contend that it is based on an austere, and untenable, view of behaviorism. See GOLDMAN, supra note 91, at 276; HOOKWAY, supra note 16, at 165-67. The law, at times, seems to have a similar penchant for behaviorism. Consider for instance Judge Learned Hand's discussion, in Hotchkiss, of the "objective" doctrine of contract formulation: A contract has, strictly speaking, nothing to do with the personal, or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes on them, he would still be held . . . . Hotchkiss v. Nat'l City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911). Notice that the reference was to "usual meaning," not inherent meaning. This seems to suggest "as we usually interpret it," not the inherently semantic content of the words. The law's concern for the usual meaning of words the actors chose, rather than their subjective intent, manifests a Quinean preference for behaviorism, and extensional vs. intensional language. Furthermore, Judge Richard Posner offers the possibility for an even more
387. I refer to pragmatic meaning only in the context of interpreting statements about evidence. The relationship between pragmatics and other areas within the law falls outside the scope of my inquiry. See, e.g., JACKSON, supra note 14, at 45; PATTERSON, supra note 180, at 106-09; POSNER, supra note 206, at 302-09 (discussing a pragmatic theory of constitutional decision making); Richard A. Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1 (1996). For an accessible discussion of pragmatism in its broader philosophical context, see RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE (1999).
388. I refer to pragmatic meaning only in the context of interpreting statements about evidence. The relationship between pragmatics and other areas within the law falls outside the scope of my inquiry. See, e.g., JACKSON, supra note 14, at 45; PATTERSON, supra note 180, at 106-09; POSNER, supra note 206, at 302-09 (discussing a pragmatic theory of constitutional decision making); Richard A. Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1 (1996). For an accessible discussion of pragmatism in its broader philosophical context, see RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE (1999).
389. I refer to pragmatic meaning only in the context of interpreting statements about evidence. The relationship between pragmatics and other areas within the law falls outside the scope of my inquiry. See, e.g., JACKSON, supra note 14, at 45; PATTERSON, supra note 180, at 106-09; POSNER, supra note 206, at 302-09 (discussing a pragmatic theory of constitutional decision making); Richard A. Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1 (1996). For an accessible discussion of pragmatism in its broader philosophical context, see RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE (1999).
390. I refer to pragmatic meaning only in the context of interpreting statements about evidence. The relationship between pragmatics and other areas within the law falls outside the scope of my inquiry. See, e.g., JACKSON, supra note 14, at 45; PATTERSON, supra note 180, at 106-09; POSNER, supra note 206, at 302-09 (discussing a pragmatic theory of constitutional decision making); Richard A. Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1 (1996). For an accessible discussion of pragmatism in its broader philosophical context, see RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE (1999).
391. I refer to pragmatic meaning only in the context of interpreting statements about evidence. The relationship between pragmatics and other areas within the law falls outside the scope of my inquiry. See, e.g., JACKSON, supra note 14, at 45; PATTERSON, supra note 180, at 106-09; POSNER, supra note 206, at 302-09 (discussing a pragmatic theory of constitutional decision making); Richard A. Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1 (1996). For an accessible discussion of pragmatism in its broader philosophical context, see RICHARD RORTY, PHILOSOPHY AND SOCIAL HOPE (1999).
392. See Elizabeth Mertz, An Afterword: Tapping the Promise of Relational Contract Theory - "Real" Legal Language and a New Legal Realism, 94 NW. U. L. REV. 909, 920 (2000); Elizabeth Mertz, Legal Language: Pragmatics, Poetics, and Social Power, 23 ANN. REV. ANTHROPOLOGY 435 (1994); see generally JOHN AUSTIN, HOW TO DO THINGS WITH WORDS (1960); H.P. GRICE, STUDIES IN THE WAY OF WORDS (1989); JOHN SEARLE, SPEECH ACTS (1969).
393. See Elizabeth Mertz, An Afterword: Tapping the Promise of Relational Contract Theory - "Real" Legal Language and a New Legal Realism, 94 NW. U. L. REV. 909, 920 (2000); Elizabeth Mertz, Legal Language: Pragmatics, Poetics, and Social Power, 23 ANN. REV. ANTHROPOLOGY 435 (1994); see generally JOHN AUSTIN, HOW TO DO THINGS WITH WORDS (1960); H.P. GRICE, STUDIES IN THE WAY OF WORDS (1989); JOHN SEARLE, SPEECH ACTS (1969).
394. See Elizabeth Mertz, An Afterword: Tapping the Promise of Relational Contract Theory - "Real" Legal Language and a New Legal Realism, 94 NW. U. L. REV. 909, 920 (2000); Elizabeth Mertz, Legal Language: Pragmatics, Poetics, and Social Power, 23 ANN. REV. ANTHROPOLOGY 435 (1994); see generally JOHN AUSTIN, HOW TO DO THINGS WITH WORDS (1960); H.P. GRICE, STUDIES IN THE WAY OF WORDS (1989); JOHN SEARLE, SPEECH ACTS (1969).
395. See Elizabeth Mertz, An Afterword: Tapping the Promise of Relational Contract Theory - "Real" Legal Language and a New Legal Realism, 94 NW. U. L. REV. 909, 920 (2000); Elizabeth Mertz, Legal Language: Pragmatics, Poetics, and Social Power, 23 ANN. REV. ANTHROPOLOGY 435 (1994); see generally JOHN AUSTIN, HOW TO DO THINGS WITH WORDS (1960); H.P. GRICE, STUDIES IN THE WAY OF WORDS (1989); JOHN SEARLE, SPEECH ACTS (1969).
396. See Elizabeth Mertz, An Afterword: Tapping the Promise of Relational Contract Theory - "Real" Legal Language and a New Legal Realism, 94 NW. U. L. REV. 909, 920 (2000); Elizabeth Mertz, Legal Language: Pragmatics, Poetics, and Social Power, 23 ANN. REV. ANTHROPOLOGY 435 (1994); see generally JOHN AUSTIN, HOW TO DO THINGS WITH WORDS (1960); H.P. GRICE, STUDIES IN THE WAY OF WORDS (1989); JOHN SEARLE, SPEECH ACTS (1969).
397. See sources cited supra note 208; see also Hilary Putnam, Is Semantics Possible?, in MIND, LANGUAGE AND REALITY: PHILOSOPHICAL PAPERS: VOLUME 2 139 (1979); P.F. Strawson, On Referring, in MIND 320-44 (1950) (arguing that the task of reference belongs to speakers, not words).
398. See sources cited supra note 208; see also Hilary Putnam, Is Semantics Possible?, in MIND, LANGUAGE AND REALITY: PHILOSOPHICAL PAPERS: VOLUME 2 139 (1979); P.F. Strawson, On Referring, in MIND 320-44 (1950) (arguing that the task of reference belongs to speakers, not words).
399. See sources cited supra notes 208-09. Pragmatic meaning comes into play only in relation to an actual utterance.
400. Specifically, each side in a trial offers competing pragmatic meanings for each evidentiary proposition. For example, "the defendant's blood at the crime scene" may pragmatically mean to one party "the defendant committed the crime," and to the opposing party "the defendant was framed by the police." In this simplified example, where this is the only evidence offered, the jurors must decide which pragmatic meaning to attach to the offered evidentiary propositions in deciding "what really happened." Jonathan Yovel discusses similar aspects in the analysis of contract law (although in much greater detail), "When analyzing communication, non-performative pragmatics describe how semantico-referential categories (in other words, assertions) are 'used' performatively." Jonathan Yovel, The Language Beyond Law: A Study of Linguistic Performativity in Legal Context, 44 (1997) (unpublished Doctor of Juridical Science Dissertation, Northwestern University) (on file with author).
401. If this was not true, then the claims would be necessarily indeterminate and holism would hold. See supra note 204. Jurors would then choose between the two different pragmatic meanings or supply one of their own.
402. Theoretical explanation for how this proceeds comes from philosophical works like those of Quine. Professor Allen provides a theoretical analogue in the interpretation of evidence. See sources cited supra note 11. Detailed explanations of how these interpretations work in actual practice comes from cognitive and social psychologists like Pennington and Hastie. See sources cited supra note 10. Moreover, the framework I propose requires the maneuver of what Quine calls "semantic ascent." See QUINE, supra note 9, at 271. In our context, this requires a shift from talk about evidence to talk about the evidentiary sentences that a fact finder must interpret pragmatically. My proposal also remains open for further linguistic analysis in the interpretation of pragmatic meaning. Such analysis falls outside the scope of my project here, but for further analysis of these concepts, see MICHAEL SILVERSTEIN, Melapragmatic Discourse and Metapragmatic Function, in REFLEXIVE LANGUAGE: REPORTED SPEECH AND METAPRAGMATICS (John A. Lucy ed., 1993), and Yovel, supra note 211, at 40 (metapragmatics refers to the language involved in the creation of the pragmatic framework of meaning).
403. Theoretical explanation for how this proceeds comes from philosophical works like those of Quine. Professor Allen provides a theoretical analogue in the interpretation of evidence. See sources cited supra note 11. Detailed explanations of how these interpretations work in actual practice comes from cognitive and social psychologists like Pennington and Hastie. See sources cited supra note 10. Moreover, the framework I propose requires the maneuver of what Quine calls "semantic ascent." See QUINE, supra note 9, at 271. In our context, this requires a shift from talk about evidence to talk about the evidentiary sentences that a fact finder must interpret pragmatically. My proposal also remains open for further linguistic analysis in the interpretation of pragmatic meaning. Such analysis falls outside the scope of my project here, but for further analysis of these concepts, see MICHAEL SILVERSTEIN, Melapragmatic Discourse and Metapragmatic Function, in REFLEXIVE LANGUAGE: REPORTED SPEECH AND METAPRAGMATICS (John A. Lucy ed., 1993), and Yovel, supra note 211, at 40 (metapragmatics refers to the language involved in the creation of the pragmatic framework of meaning).
404. Theoretical explanation for how this proceeds comes from philosophical works like those of Quine. Professor Allen provides a theoretical analogue in the interpretation of evidence. See sources cited supra note 11. Detailed explanations of how these interpretations work in actual practice comes from cognitive and social psychologists like Pennington and Hastie. See sources cited supra note 10. Moreover, the framework I propose requires the maneuver of what Quine calls "semantic ascent." See QUINE, supra note 9, at 271. In our context, this requires a shift from talk about evidence to talk about the evidentiary sentences that a fact finder must interpret pragmatically. My proposal also remains open for further linguistic analysis in the interpretation of pragmatic meaning. Such analysis falls outside the scope of my project here, but for further analysis of these concepts, see MICHAEL SILVERSTEIN, Melapragmatic Discourse and Metapragmatic Function, in REFLEXIVE LANGUAGE: REPORTED SPEECH AND METAPRAGMATICS (John A. Lucy ed., 1993), and Yovel, supra note 211, at 40 (metapragmatics refers to the language involved in the creation of the pragmatic framework of meaning).
405. See QUINE, supra note 9, at 27.
406. See id. at 28.
407. See id. at 27.
408. Id.
409. Quine is not describing the experience of the field linguist, but rather describing what occurs in translation. He is suggesting that the translator does not discover some objective fact about whether an alien word is synonymous to some English word or phrase, but rather her choice is determined by subjective, pragmatic, nonfactual considerations. See id.
410. See id. at 28-29.
411. See id.
412. See id. at 28-35.
413. HOOKWAY, supra note 16, at 130.
414. See QUINE, supra note 9, at 27-54.
415. See id.
416. See id.
417. See id. at 38.
418. See id. at 36.
419. See id. Noam Chomsky has objected to Quine's theory on this point, arguing that the indeterminacy of translation undermined his work on a "universal grammar." Quine responded that his theory did no such thing, and Chomsky mistook his thesis for an epistemological one rather than an ontological one. See Noam Chomsky, Quine's Empirical Assumptions, in WORDS AND OBJECTIONS, supra note 195, at 53-67; W. V. Quine, To Chomsky, in WORDS AND OBJECTIONS, supra note 195, at 302-11.
420. See id. Noam Chomsky has objected to Quine's theory on this point, arguing that the indeterminacy of translation undermined his work on a "universal grammar." Quine responded that his theory did no such thing, and Chomsky mistook his thesis for an epistemological one rather than an ontological one. See Noam Chomsky, Quine's Empirical Assumptions, in WORDS AND OBJECTIONS, supra note 195, at 53-67; W. V. Quine, To Chomsky, in WORDS AND OBJECTIONS, supra note 195, at 302-11.
421. See HOOKWAY, supra note 16, at 131 (practical considerations referring to pragmatics).
422. See QUINE, supra note 9, at 27-54.
423. See id. at 27.
424. See id.
425. See id. at 33.
426. See id. at 52.
427. See id.
428. See id. Quine recognizes that the linguist has other devices or "supplementary canons"that may influence her choices. "[I]f a question were to arise over equating a short native locution to 'rabbit' and a long one to 'rabbit part' or vice versa, they would favor the former course, arguing that the more conspicuously segregated wholes are likelier to bear the simpler terms." Id. at 74. Quine seems to suggest that these canons provide pragmatic reasons for preferring a certain manual over another, rather than giving reasons for thinking it is true.
429. Id. at 52. Donald Davidson, a philosopher who shares Quine's view that a philosophically useful theory of meaning must recognize the holistic nature of linguistic understanding, writes, "If there is indeterminacy, it is because when all the evidence is in, alternative ways of stating the facts remain open." DONALD DAVIDSON, Radical Interpretation, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 154.
430. See QUINE, supra note 9, at 74.
431. See id.
432. See id. at 78.
433. QUINE, ONTOLOGICAL RELATIVITY, supra note 16, at 46.
434. See id.
435. QUINE, STIMULUS TO SCIENCE, supra note 16, at 79.
436. I use these terms interchangeably, as they all refer to one's overarching theory of a language.
437. See QUINE, STIMULUS TO SCIENCE, supra note 16, at 80-81.
438. See DONALD DAVIDSON, Radical Interpretation, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 125; see also DONALD DAVIDSON, Thought and Talk, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 169 ("If this account of radical interpretation is right, at least in broad outline, then we should acknowledge that the concepts of objective truth, and of error, necessarily emerge in the context of interpretation."). Professor Davidson grants that the inscrutability of reference is true and therefore that the indeterminacy of translation is also true. He does not feel, however, that reference is as widely relativized as Quine contends. See DONALD DAVIDSON, The Inscrutability of Reference, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 227.
439. See DONALD DAVIDSON, Radical Interpretation, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 125; see also DONALD DAVIDSON, Thought and Talk, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 169 ("If this account of radical interpretation is right, at least in broad outline, then we should acknowledge that the concepts of objective truth, and of error, necessarily emerge in the context of interpretation."). Professor Davidson grants that the inscrutability of reference is true and therefore that the indeterminacy of translation is also true. He does not feel, however, that reference is as widely relativized as Quine contends. See DONALD DAVIDSON, The Inscrutability of Reference, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 227.
440. See DONALD DAVIDSON, Radical Interpretation, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 125; see also DONALD DAVIDSON, Thought and Talk, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 169 ("If this account of radical interpretation is right, at least in broad outline, then we should acknowledge that the concepts of objective truth, and of error, necessarily emerge in the context of interpretation."). Professor Davidson grants that the inscrutability of reference is true and therefore that the indeterminacy of translation is also true. He does not feel, however, that reference is as widely relativized as Quine contends. See DONALD DAVIDSON, The Inscrutability of Reference, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 227.
441. QUINE, STIMULUS TO SCIENCE, supra note 16, at 80-81. James Boyd White makes a similar observation. He states: Translation and interpretation have in common that they invite their reader to hold in his head the prior text or to refer to it. . . . The difference is that translation offers itself as a kind of substitute for the original and undertakes to have an analogous form, as the interpretation does not . . . . The heart of both is the same: the presence of two texts, two voices, and the making of a relation between them. JAMES BOYD WHITE, JUSTICE AS TRANSLATION 236-37 (1990).
442. QUINE, STIMULUS TO SCIENCE, supra note 16, at 80-81. James Boyd White makes a similar observation. He states: Translation and interpretation have in common that they invite their reader to hold in his head the prior text or to refer to it. . . . The difference is that translation offers itself as a kind of substitute for the original and undertakes to have an analogous form, as the interpretation does not . . . . The heart of both is the same: the presence of two texts, two voices, and the making of a relation between them. JAMES BOYD WHITE, JUSTICE AS TRANSLATION 236-37 (1990).
443. DAVIDSON, Radical Interpretation, supra note 246, at 154; see also DONALD DAVIDSON, Reality Without Reference, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 225 ("In a nutshell: we compensate for the paucity of evidence concerning the meaning of individual sentences not by trying to produce evidence for the meanings of words but by considering the evidence for a theory of the language to which the sentence belongs . . . . This conception of how to do theory of meaning is essentially Quine's.").
444. DAVIDSON, Radical Interpretation, supra note 246, at 154; see also DONALD DAVIDSON, Reality Without Reference, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 225 ("In a nutshell: we compensate for the paucity of evidence concerning the meaning of individual sentences not by trying to produce evidence for the meanings of words but by considering the evidence for a theory of the language to which the sentence belongs . . . . This conception of how to do theory of meaning is essentially Quine's.").
445. This takes place without the need to ask ontological questions about semantic content. In the words of Donald Davidson: "and perhaps only a philosopher would deny this; but if so, the reason may be that only a philosopher would say it in the first place." DONALD DAVIDSON, Communication and Convention, in INQUIRIES INTO TRUTH AND INTERPRETATION, supra note 193, at 265. Specifically, two sides in a murder trial will not argue about whether an officer's testimony, "I found a gun at the scene with the defendant's fingerprints on it" refers to "undetached gun parts" or "the instantiation of gunhood." Rather, they are arguing about whether this testimony pragmatically means "the defendant shot the victim" or "someone framed the defendant."
446. These include not only statements made by witnesses, attorneys, and the judge, but also the internal propositions that the fact finder formulates about the physical evidence. Professor Allen points out that this requirement of the fact finder converting physical evidence into propositions occurs even under the conventional view. Specifically, any required deductions or inductions cannot occur until physical evidence is first turned into statements about physical evidence. See Allen, Factual Ambiguity, supra note 11, at 617.
447. For Quine and the fact finder, the best theory is judged by the organizing principles of rationality such as coverage, coherence, uniqueness, and simplicity. See text at supra note 33. For Quine, however, the ultimate deciding factor is prediction, one not available to the fact finder. See QUINE, STIMULUS TO SCIENCE, supra note 16, at 1-21.
448. In the judicial context, assigning this pragmatic meaning seems to be an essential first step for the fact finder because probative value and truth are supervenient on meaning. In other words, we cannot tell that a sentence is true or what its probative value is until after we know its meaning. See GOLDMAN, supra note 91, at 274-76. Moreover, we can reconceptualize Quine's experiment as a choice between competing translational narratives, and the fact finder's task as developing the best evidentiary scheme.
449. See text at supra note 33. For Quine, and science generally, better theories primarily emerge based on predictive success. See QUINE, STIMULUS TO SCIENCE, supra note 16, at 2-26. This factor is unavailable to the fact finder.
450. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 293 (Blackwell Publishers, Ltd. 1998) (1953). This parable assumes that no beetles exist outside the boxes.
451. See id. In the judicial context, the "beetle" is the subjective evidentiary scheme that each fact finder develops in order to organize the set of evidentiary statements in order to interpret the pragmatic meaning of the probandum; cf. Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. REV 969, 975-88 (1977) ("Personal biases and latent prejudices also shape expectancies, often distorting perceptions to fit the various stereotypes that all humans possess."). This Note discusses eyewitness identifications, but the principle is adaptable to the fact finder who must formulate interpretations of the various evidentiary statements. See also ROBERT PIRSIG, ZEN AND THE ART OF MOTORCYCLE MAINTENANCE 69 (1974) ("All the time we are aware of millions of things around us . . . . From all this awareness we must select, and what we select and call consciousness is never the same as the awareness because the process of selection mutates it. We take a handful of sand from the endless landscape of awareness around us and call that handful of sand the world."); MARCEL PROUST, III REMEMBRANCE OF THINGS PAST 1089 (Moncrieff & Kilmartin trans., Random House 1981) (1954) ("I should ask them whether the words that they read within themselves are the same as those which I have written (though a discrepancy in this respect need not always be the consequence of an error on my part, since the explanation could also be that the reader had eyes for which my book was not a suitable instrument).").
452. See id. In the judicial context, the "beetle" is the subjective evidentiary scheme that each fact finder develops in order to organize the set of evidentiary statements in order to interpret the pragmatic meaning of the probandum; cf. Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. REV 969, 975-88 (1977) ("Personal biases and latent prejudices also shape expectancies, often distorting perceptions to fit the various stereotypes that all humans possess."). This Note discusses eyewitness identifications, but the principle is adaptable to the fact finder who must formulate interpretations of the various evidentiary statements. See also ROBERT PIRSIG, ZEN AND THE ART OF MOTORCYCLE MAINTENANCE 69 (1974) ("All the time we are aware of millions of things around us . . . . From all this awareness we must select, and what we select and call consciousness is never the same as the awareness because the process of selection mutates it. We take a handful of sand from the endless landscape of awareness around us and call that handful of sand the world."); MARCEL PROUST, III REMEMBRANCE OF THINGS PAST 1089 (Moncrieff & Kilmartin trans., Random House 1981) (1954) ("I should ask them whether the words that they read within themselves are the same as those which I have written (though a discrepancy in this respect need not always be the consequence of an error on my part, since the explanation could also be that the reader had eyes for which my book was not a suitable instrument).").
453. See id. In the judicial context, the "beetle" is the subjective evidentiary scheme that each fact finder develops in order to organize the set of evidentiary statements in order to interpret the pragmatic meaning of the probandum; cf. Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. REV 969, 975-88 (1977) ("Personal biases and latent prejudices also shape expectancies, often distorting perceptions to fit the various stereotypes that all humans possess."). This Note discusses eyewitness identifications, but the principle is adaptable to the fact finder who must formulate interpretations of the various evidentiary statements. See also ROBERT PIRSIG, ZEN AND THE ART OF MOTORCYCLE MAINTENANCE 69 (1974) ("All the time we are aware of millions of things around us . . . . From all this awareness we must select, and what we select and call consciousness is never the same as the awareness because the process of selection mutates it. We take a handful of sand from the endless landscape of awareness around us and call that handful of sand the world."); MARCEL PROUST, III REMEMBRANCE OF THINGS PAST 1089 (Moncrieff & Kilmartin trans., Random House 1981) (1954) ("I should ask them whether the words that they read within themselves are the same as those which I have written (though a discrepancy in this respect need not always be the consequence of an error on my part, since the explanation could also be that the reader had eyes for which my book was not a suitable instrument).").
454. See id. In the judicial context, the "beetle" is the subjective evidentiary scheme that each fact finder develops in order to organize the set of evidentiary statements in order to interpret the pragmatic meaning of the probandum; cf. Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 STAN. L. REV 969, 975-88 (1977) ("Personal biases and latent prejudices also shape expectancies, often distorting perceptions to fit the various stereotypes that all humans possess."). This Note discusses eyewitness identifications, but the principle is adaptable to the fact finder who must formulate interpretations of the various evidentiary statements. See also ROBERT PIRSIG, ZEN AND THE ART OF MOTORCYCLE MAINTENANCE 69 (1974) ("All the time we are aware of millions of things around us . . . . From all this awareness we must select, and what we select and call consciousness is never the same as the awareness because the process of selection mutates it. We take a handful of sand from the endless landscape of awareness around us and call that handful of sand the world."); MARCEL PROUST, III REMEMBRANCE OF THINGS PAST 1089 (Moncrieff & Kilmartin trans., Random House 1981) (1954) ("I should ask them whether the words that they read within themselves are the same as those which I have written (though a discrepancy in this respect need not always be the consequence of an error on my part, since the explanation could also be that the reader had eyes for which my book was not a suitable instrument).").
455. See Allen, The Nature of Juridical Proof, supra note 11, at 413.
456. Peter Tillers suggests that a framework similar to the one I propose does not carry with it an inevitable drift into solipsism. See Tillers, supra note 180, at 288. ("The notion of theory-dependence of facts and evidence often seems to . . . invite a sort of fact-skepticism since the thesis suggests an epistemological solipsism [the view that what we think we see or experience is entirely a function of our theoretical predispositions and beliefs]. Nonetheless, epistemological solipsism or radical fact-skepticism is not a necessary implication of the thesis of the theory-dependence of facts.").
457. A fact finder may adopt her own scheme; however, it seems likely that the evidentiary scheme will be based closely on one of the two presented because all of the evidence admitted and presented to the fact finder will purport to support one of the two schemes. Another reason this may occur is found in Quine's framework in "the principle of charity." Specifically, we are likely to prefer interpretations that maximize agreement between other speakers and ourselves. The best interpretations will be the ones that minimize inexplicable error, and allow us to attribute to other speakers' desires and goals similar to our own. The principle of charity, however, does not reduce indeterminacy, but shows a way in which we live with the indeterminacy that obtains. See QUINE, STIMULUS TO SCIENCE, supra note 16, at 59.
458. For a similar idea relating to the application of law to fact, see JACKSON, supra note 14, at 45 ("[L]egal concepts are inherently defeasible: their application, residing as it does in human hands, is always subject to the decision not to follow normal semantic constraints . . . every act of adjudication involves an act of creative interpretation.").
459. See Davidson, Mental Events, supra note 109, at 247-56. On the literary side, Dostoyevsky may have suggested a similar point: It is just his fantastic dream, his vulgar folly that he will desire to retain, simply in order to prove to himself. . . that men are still men and not the keys of a piano. . . . He will launch a curse upon the world, maybe by his curse alone will he retain his object - that is, convince himself that he is a man and not a piano key! . . . I am standing for my caprice and for its being guaranteed to me when necessary. FYODOR DOSTOYEVSKY, NOTES FROM THE UNDERGROUND 21 (Dover Publications, Inc. 1992) (1864).
460. See Davidson, Mental Events, supra note 109, at 247-56. On the literary side, Dostoyevsky may have suggested a similar point: It is just his fantastic dream, his vulgar folly that he will desire to retain, simply in order to prove to himself. . . that men are still men and not the keys of a piano. . . . He will launch a curse upon the world, maybe by his curse alone will he retain his object - that is, convince himself that he is a man and not a piano key! . . . I am standing for my caprice and for its being guaranteed to me when necessary. FYODOR DOSTOYEVSKY, NOTES FROM THE UNDERGROUND 21 (Dover Publications, Inc. 1992) (1864).
461. See BURNS, supra note 5, at 31. ("There simply is no way for the court to control the meaning . . . of the evidence the jury will see. In the language of the trial courtroom, when a judge lets in questionable evidence . . . he cannot control what the jury will make of the evidence and the sort of importance the jury will confer on it."). This should not be surprising if what jurors are doing is schematizing, or drawing sharp lines where none can be drawn.
462. This vision resembles what Bernard Jackson calls "the narrativisation of pragmatics." See JACKSON, supra note 14, at 34.
463. Either one of the two stories offered or one the fact finder develops on her own.
464. The O.J. Simpson criminal trial provides an example of this framework. Faced with a mass of physical evidence (blood, a bloody glove, DNA evidence) both parties offered competing pragmatic interpretations of this mass. For the prosecution, the evidence meant that Simpson was the killer. For the defense, the evidence meant that Simpson was framed. See Pennington & Hastie, Perceptions and Decision Making, supra note 10, at 964-68.
465. In the O.J. Simpson civil trial, we see examples of both parties trying to discredit the pragmatic meaning offered by the other side. In closing argument, the plaintiffs attorney states of Simpson, "He never had a negative experience in his life with the Los Angeles Police Department . . . . They had a rosy relationship with him; they adored him; they were at his house getting autographs, memorabilia signed. He was the All-American guy. And now he wants you to believe that they framed him." Defense counsel, in closing, offers, "[W]e're trying to do one of those paint by numbers pictures . . . that's our defense is that we have a picture of corruption, of contamination, of planting, of tampering. And we don't have all the paint. We're not going to be able to paint you a complete picture of all that. We're going to be able to paint some of it, from which you're going to be able to infer, we submit, that we can't trust this evidence." Transcript at 24, 125, Sharon Rufo, et. al. v. Orenthal James Simpson No. SC031947 (Cal. App. Dep't Super. Ct. Feb. 4, 1997). As we have yet to see an articulated theory of evidentiary holism, we do not have robust appellate discussion on the subject. But see Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (discussing fact-finding in bench trials under Fed. R. Civ. P. 52(a): "The process of finding the facts 'specially,' as that rule requires, sometimes leads a judge to a different conclusion from the one he would reach on a more holistic approach.");
466. Outboard Motor Marine Corp. v. Babcock Indus., Inc., 106 F.3d 182, 186 (7th Cir. 1997) (Posner, C.J.) ("[I]narticulate Gestalt judgments arrived at by deliberation may be as reliable as those made algorithmically.").
467. "Contemporary narrative theory is, in many respects, a quite sophisticated area of study: it is international and interdisciplinary in its origins, scope and pursuits . . . ." Barbara Herrnstein Smith, Afterthoughts on Narrative, in CRITICAL INQUIRY 213 (Autumn 1980); see also CURTIS WHITE, ANARCHO-HINDU 12 (1995) ("But don't we call the stories about the things that have happened to us 'stories' just the same?").
468. "Contemporary narrative theory is, in many respects, a quite sophisticated area of study: it is international and interdisciplinary in its origins, scope and pursuits . . . ." Barbara Herrnstein Smith, Afterthoughts on Narrative, in CRITICAL INQUIRY 213 (Autumn 1980); see also CURTIS WHITE, ANARCHO-HINDU 12 (1995) ("But don't we call the stories about the things that have happened to us 'stories' just the same?").
469. See Herrnstein Smith, supra note 265, at 214-15.
470. Id. at 216.
471. See id. at 221.
472. See id. Similarly, Quine's thesis suggests that there is not one correct interpretational scheme that can be said to be the basic story, but rather there are multiple plausibly correct stories. In the courtroom, this implies that there is not one correct story of the case in which both advocates are fighting to offer the "right" one. Rather, as Professor Allen suggests, each advocate is trying to offer a "better" competing theory in terms of coverage, coherence, and uniqueness. These similar views of Quine and Herrnstein Smith may result from the penchants both have for a behaviorist approach to language. Herrnstein Smith advocates a conception of language that "views utterances not as strings of discrete signifiers that represent corresponding sets of discrete signifieds but as verbal responses, that is as acts which . . . are performed in response to various sets of conditions." Id. at 225. She points out that once we view language this way, the "basic story/different versions" model disappears. See id. at 227; see also QUINE, ONTOLOGICAL RELATIVITY, supra note 16, at 26 ("Language is a social art which we all acquire on the evidence solely of other people's overt behavior under publicly recognizable circumstances."). Quine's behaviorism likely stems from his philosophical ties to John Dewey. See JOHN DEWEY, EXPERIENCE AND NATURE 179 (1958) ("Meaning . . . is not a psychic existence, it is primarily a property of behavior."). For a discussion of the philosophical ties between Quine and Dewey, see Joseph Margolis, The Relevance of Dewey's Epistemology, in NEW STUDIES IN THE PHILOSOPHY OF JOHN DEWEY 117-48 (1977).
473. See id. Similarly, Quine's thesis suggests that there is not one correct interpretational scheme that can be said to be the basic story, but rather there are multiple plausibly correct stories. In the courtroom, this implies that there is not one correct story of the case in which both advocates are fighting to offer the "right" one. Rather, as Professor Allen suggests, each advocate is trying to offer a "better" competing theory in terms of coverage, coherence, and uniqueness. These similar views of Quine and Herrnstein Smith may result from the penchants both have for a behaviorist approach to language. Herrnstein Smith advocates a conception of language that "views utterances not as strings of discrete signifiers that represent corresponding sets of discrete signifieds but as verbal responses, that is as acts which . . . are performed in response to various sets of conditions." Id. at 225. She points out that once we view language this way, the "basic story/different versions" model disappears. See id. at 227; see also QUINE, ONTOLOGICAL RELATIVITY, supra note 16, at 26 ("Language is a social art which we all acquire on the evidence solely of other people's overt behavior under publicly recognizable circumstances."). Quine's behaviorism likely stems from his philosophical ties to John Dewey. See JOHN DEWEY, EXPERIENCE AND NATURE 179 (1958) ("Meaning . . . is not a psychic existence, it is primarily a property of behavior."). For a discussion of the philosophical ties between Quine and Dewey, see Joseph Margolis, The Relevance of Dewey's Epistemology, in NEW STUDIES IN THE PHILOSOPHY OF JOHN DEWEY 117-48 (1977).
474. See id. Similarly, Quine's thesis suggests that there is not one correct interpretational scheme that can be said to be the basic story, but rather there are multiple plausibly correct stories. In the courtroom, this implies that there is not one correct story of the case in which both advocates are fighting to offer the "right" one. Rather, as Professor Allen suggests, each advocate is trying to offer a "better" competing theory in terms of coverage, coherence, and uniqueness. These similar views of Quine and Herrnstein Smith may result from the penchants both have for a behaviorist approach to language. Herrnstein Smith advocates a conception of language that "views utterances not as strings of discrete signifiers that represent corresponding sets of discrete signifieds but as verbal responses, that is as acts which . . . are performed in response to various sets of conditions." Id. at 225. She points out that once we view language this way, the "basic story/different versions" model disappears. See id. at 227; see also QUINE, ONTOLOGICAL RELATIVITY, supra note 16, at 26 ("Language is a social art which we all acquire on the evidence solely of other people's overt behavior under publicly recognizable circumstances."). Quine's behaviorism likely stems from his philosophical ties to John Dewey. See JOHN DEWEY, EXPERIENCE AND NATURE 179 (1958) ("Meaning . . . is not a psychic existence, it is primarily a property of behavior."). For a discussion of the philosophical ties between Quine and Dewey, see Joseph Margolis, The Relevance of Dewey's Epistemology, in NEW STUDIES IN THE PHILOSOPHY OF JOHN DEWEY 117-48 (1977).
475. Herrnstein Smith, supra note 265, at 230. This process, like Quine's, resembles the boat metaphor put forth by Vienna Circle philosopher Otto Neurath: There is no way of taking conclusively established pure protocol sentences as the stoning point of the sciences. No tabula rasa exists. We are like sailors who must rebuild their ship on the open sea never able to dismantle it in dry-dock and to reconstruct it there out of the best material. Only the metaphysical elements can be allowed to vanish without a trace. Vague linguistic conglomerations always remain in one way or another as components of the ship. If vagueness is diminished at one point, it may well be increased at another. Neurath, supra note 182, at 201.
476. Herrnstein Smith, supra note 265, at 230. This process, like Quine's, resembles the boat metaphor put forth by Vienna Circle philosopher Otto Neurath: There is no way of taking conclusively established pure protocol sentences as the stoning point of the sciences. No tabula rasa exists. We are like sailors who must rebuild their ship on the open sea never able to dismantle it in dry-dock and to reconstruct it there out of the best material. Only the metaphysical elements can be allowed to vanish without a trace. Vague linguistic conglomerations always remain in one way or another as components of the ship. If vagueness is diminished at one point, it may well be increased at another. Neurath, supra note 182, at 201.
477. See supra note 2. This paper is not the first to connect Quine's philosophical theories with Herrnstein Smith's literary theories. Stanley Fish, for example, has connected the two, along with scholars in such disciplines as anthropology, history, sociology, and the general sciences, based on the anti-foundationalist nature of their arguments. See STANLEY FISH, Anti-Foundationalism, Theory Hope, and the Teaching of Composition, in DOING WHAT COMES NATURALLY 345 (1989).
478. On the science of proof, Professor Murphy states, "[I]t is of vital importance to practitioners and judges and yet has often been marginalized or even ignored in law schools." Murphy, supra note 76, at 328, see also Jerome Frank, A Plea for Lawyer Schools, 56 YALE L.J. 1303 (1947) (arguing that issues of fact are vastly more important to most cases than issues of law, yet legal education largely ignores the former and almost exclusively concerns itself with the latter).
479. On the science of proof, Professor Murphy states, "[I]t is of vital importance to practitioners and judges and yet has often been marginalized or even ignored in law schools." Murphy, supra note 76, at 328, see also Jerome Frank, A Plea for Lawyer Schools, 56 YALE L.J. 1303 (1947) (arguing that issues of fact are vastly more important to most cases than issues of law, yet legal education largely ignores the former and almost exclusively concerns itself with the latter).
480. See WIGMORE, supra note 6, § 37.6, at 1068-69 ("The 'holistic' character of some evidence does not necessarily imply that we cannot see distinct features in that body of evidence. What this view does suggest is that the parts of some larger parts of evidence do not seem to have such an independently defined existence that we feel we can say with confidence that the whole . . . is merely the sum of its parts.").
481. BURNS, supra note 5, at 234-35.
482. See TWINING, supra note 14, at 251; see also JACKSON, supra note 14, at 23.
483. See TWINING, supra note 14, at 251; see also JACKSON, supra note 14, at 23.
484. See TWINING, supra note 14, at 251. Twining observes that holistic approaches tend to find justification in philosophical traditions other than English empiricism. I agree. I think that the holistic approach I suggest finds its justification in the naturalism of Quine and, possibly, the American Pragmatist movement of John Dewey and William James. See QUINE, supra note 195, at 69-90; QUINE, FROM STIMULUS TO SCIENCE, supra note 16, at 15-26; see also Dewey, supra note 269, at 102-70; WILLIAM JAMES, PRAGMATISM (1907).
485. See TWINING, supra note 14, at 251. Twining observes that holistic approaches tend to find justification in philosophical traditions other than English empiricism. I agree. I think that the holistic approach I suggest finds its justification in the naturalism of Quine and, possibly, the American Pragmatist movement of John Dewey and William James. See QUINE, supra note 195, at 69-90; QUINE, FROM STIMULUS TO SCIENCE, supra note 16, at 15-26; see also Dewey, supra note 269, at 102-70; WILLIAM JAMES, PRAGMATISM (1907).
486. See TWINING, supra note 14, at 251. Twining observes that holistic approaches tend to find justification in philosophical traditions other than English empiricism. I agree. I think that the holistic approach I suggest finds its justification in the naturalism of Quine and, possibly, the American Pragmatist movement of John Dewey and William James. See QUINE, supra note 195, at 69-90; QUINE, FROM STIMULUS TO SCIENCE, supra note 16, at 15-26; see also Dewey, supra note 269, at 102-70; WILLIAM JAMES, PRAGMATISM (1907).
487. See TWINING, supra note 14, at 251. Twining observes that holistic approaches tend to find justification in philosophical traditions other than English empiricism. I agree. I think that the holistic approach I suggest finds its justification in the naturalism of Quine and, possibly, the American Pragmatist movement of John Dewey and William James. See QUINE, supra note 195, at 69-90; QUINE, FROM STIMULUS TO SCIENCE, supra note 16, at 15-26; see also Dewey, supra note 269, at 102-70; WILLIAM JAMES, PRAGMATISM (1907).
488. See TWINING, supra note 14, at 251. Twining observes that holistic approaches tend to find justification in philosophical traditions other than English empiricism. I agree. I think that the holistic approach I suggest finds its justification in the naturalism of Quine and, possibly, the American Pragmatist movement of John Dewey and William James. See QUINE, supra note 195, at 69-90; QUINE, FROM STIMULUS TO SCIENCE, supra note 16, at 15-26; see also Dewey, supra note 269, at 102-70; WILLIAM JAMES, PRAGMATISM (1907).
489. See discussions supra subparts II.A and III.B.
490. See supra note 11.
491. Allen, The Nature of Juridical Proof, supra note 11, at 381. In criminal trials, the prosecution would have to show that no reasonably plausible story exists.
492. On this point, Professor Murphy explains, "we are gradually relaxing our death-grip on evidence, placing more and more faith in the maturity and reasoning power of juries, and entrusting them with more information." Murphy, supra note 76, at 328. He adds, "[m]ercifully, lawyers are the only group that circumscribes the use of evidence by technical rules . . . and seeks to withhold pertinent information rather than disseminate it" and "[l]awyers fret over whether jurors are mature enough to handle the process, and call upon jurors to crack the code and solve the puzzle, while deliberately withholding from them vital clues to the combination . . . ." Id. at 327-28. Similarly, philosopher Jeremy Bentham argued that we should eliminate exclusionary rules of evidence in favor of overall admissibility; however, he also advocated providing guidance to jurors in assessing the weight of evidence under this system. See JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE (John S. Mill ed., Rotham & Co. 1995) (1827); see also Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 229 (1989) ("Reality does not evaporate when courts refuse to receive proof of it.").
493. On this point, Professor Murphy explains, "we are gradually relaxing our death-grip on evidence, placing more and more faith in the maturity and reasoning power of juries, and entrusting them with more information." Murphy, supra note 76, at 328. He adds, "[m]ercifully, lawyers are the only group that circumscribes the use of evidence by technical rules . . . and seeks to withhold pertinent information rather than disseminate it" and "[l]awyers fret over whether jurors are mature enough to handle the process, and call upon jurors to crack the code and solve the puzzle, while deliberately withholding from them vital clues to the combination . . . ." Id. at 327-28. Similarly, philosopher Jeremy Bentham argued that we should eliminate exclusionary rules of evidence in favor of overall admissibility; however, he also advocated providing guidance to jurors in assessing the weight of evidence under this system. See JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE (John S. Mill ed., Rotham & Co. 1995) (1827); see also Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 229 (1989) ("Reality does not evaporate when courts refuse to receive proof of it.").
494. On this point, Professor Murphy explains, "we are gradually relaxing our death-grip on evidence, placing more and more faith in the maturity and reasoning power of juries, and entrusting them with more information." Murphy, supra note 76, at 328. He adds, "[m]ercifully, lawyers are the only group that circumscribes the use of evidence by technical rules . . . and seeks to withhold pertinent information rather than disseminate it" and "[l]awyers fret over whether jurors are mature enough to handle the process, and call upon jurors to crack the code and solve the puzzle, while deliberately withholding from them vital clues to the combination . . . ." Id. at 327-28. Similarly, philosopher Jeremy Bentham argued that we should eliminate exclusionary rules of evidence in favor of overall admissibility; however, he also advocated providing guidance to jurors in assessing the weight of evidence under this system. See JEREMY BENTHAM, RATIONALE OF JUDICIAL EVIDENCE (John S. Mill ed., Rotham & Co. 1995) (1827); see also Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 229 (1989) ("Reality does not evaporate when courts refuse to receive proof of it.").
495. This shift toward free proof concerns only the rules of evidence designed to foster the goal of accurate fact-finding. Certain rules serve other goals. For instance, the rape shield doctrine and the privilege rules serve other social policies deemed more important than the goal of accurate fact-finding. See FED. R. EVID. 412-415, 501. The rules meant to serve these other goals may properly be left to the discretion of the trial judge within an otherwise free proof system. Moreover, this paper suggests the shift to a more free proof system as a consequence or entailment of a holistic theory of evidence, not necessarily as a normative assertion. Judge and Evidence scholar Jack Weinstein, however, has suggested that a more free proof system is warranted on normative grounds: Excluding information on the ground that jurors are too ignorant or emotional to evaluate it properly may have been appropriate in England at a time when a rigid class society created a wide gap between royal judges and commoner jurors, but it is inconsistent with the realities of our modern American informed society and the responsibilities of independent thought in a working society. U.S. v. Shonubi, 895 F. Supp. 460, 493 (1995).
496. This shift toward free proof concerns only the rules of evidence designed to foster the goal of accurate fact-finding. Certain rules serve other goals. For instance, the rape shield doctrine and the privilege rules serve other social policies deemed more important than the goal of accurate fact-finding. See FED. R. EVID. 412-415, 501. The rules meant to serve these other goals may properly be left to the discretion of the trial judge within an otherwise free proof system. Moreover, this paper suggests the shift to a more free proof system as a consequence or entailment of a holistic theory of evidence, not necessarily as a normative assertion. Judge and Evidence scholar Jack Weinstein, however, has suggested that a more free proof system is warranted on normative grounds: Excluding information on the ground that jurors are too ignorant or emotional to evaluate it properly may have been appropriate in England at a time when a rigid class society created a wide gap between royal judges and commoner jurors, but it is inconsistent with the realities of our modern American informed society and the responsibilities of independent thought in a working society. U.S. v. Shonubi, 895 F. Supp. 460, 493 (1995).
497. Quine explains how we use evidence in the following way: "What we are doing when we amass and use circumstantial evidence is to let ourselves be actuated as sensitively as possible by chain stimulations as they reverberate through our theory, from present sensory stimulations, via the inter-animation of sentences." QUINE, supra note 9, at 18. Circumstantial evidence, in Quine's sense, would be any evidence put before a jury. The phrase "direct evidence" may refer to eyewitness testimony, but it is only direct for the witness, not the fact finder. Evidence would be direct for the fact finder only if she had direct sense impressions of the facts she was asked to find. In other words, another's direct evidence is the fact finder's circumstantial evidence. See also LUDWIG WITTGENSTEIN, CULTURE AND VALUE 37e (Von Wright ed., The University of Chicago Press 1984) ("The insidious thing about the causal point of view is that it leads us to say: 'Of course it had to happen like that.' Whereas we ought to think: it may have happened like that - and also in many other ways.").
498. Quine explains how we use evidence in the following way: "What we are doing when we amass and use circumstantial evidence is to let ourselves be actuated as sensitively as possible by chain stimulations as they reverberate through our theory, from present sensory stimulations, via the inter-animation of sentences." QUINE, supra note 9, at 18. Circumstantial evidence, in Quine's sense, would be any evidence put before a jury. The phrase "direct evidence" may refer to eyewitness testimony, but it is only direct for the witness, not the fact finder. Evidence would be direct for the fact finder only if she had direct sense impressions of the facts she was asked to find. In other words, another's direct evidence is the fact finder's circumstantial evidence. See also LUDWIG WITTGENSTEIN, CULTURE AND VALUE 37e (Von Wright ed., The University of Chicago Press 1984) ("The insidious thing about the causal point of view is that it leads us to say: 'Of course it had to happen like that.' Whereas we ought to think: it may have happened like that - and also in many other ways.").
499. WITTGENSTEIN, supra note 254, § 198; see also QUINE, PURSUIT OF TRUTH, supra note 16, at 101 ("Limited to our human terms and devices, we grasp the world variously. I think of the disparate ways of getting at the diameter of an impenetrable sphere: we may pinion the sphere in calipers or we may girdle it with a tape measure and divide by pi, but there is no getting inside.").
500. WITTGENSTEIN, supra note 254, § 198; see also QUINE, PURSUIT OF TRUTH, supra note 16, at 101 ("Limited to our human terms and devices, we grasp the world variously. I think of the disparate ways of getting at the