Taming complexity: Rationality, the law of evidence and the nature of the legal system

Law, Probability and Risk

Volumn 12, Issue 2, 2013, Pages 99-113

  Allen, Ronald J ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

Author keywords

Bayes Theorem; Complex adaptive system; Complexity; Computational complexity; Dworkin; Evidence; Hart; Inference to the best explanation; Legal theory; Probability; Rationality; Theory of law

Indexed keywords

EID: 84878932169     PISSN: 14708396     EISSN: 1470840X     Source Type: Journal    
DOI: 10.1093/lpr/mgs008     Document Type: Article

References (48)

1. Craig R. Callen, Notes on a Grand Illusion: Some Limits on the Use of Bayesian Theory in Evidence Law, 57 Ind. L.J. 1 (1982).
2. Alfred North Whitehead, THE FUNCTION OF REASON 2 (1929)
3. Nicholas Rescher, RATIONALITY: A PHILOSOPHICAL INQUIRY INTO THE NATURE AND RATIONALE OF REASON 8 (1988)
4. Russ Shafer-Landau, MORAL REALISM: A DEFENCE 221 (2003)
5. Raymond S. Nickerson, ASPECTS OF RATIONALITY: REFLECTIONS ON WHAT IT MEANS TO BE RATIONAL AND WHETHER WE ARE 13-36 (2007). There are of course additional deep philosophical issues, too, a' la Immanuel Kant, The Critique of Pure Reason (1781), and so on.
6. For example, it leaves out the artificial intelligence researchers and logicians, some of whose work I discuss below
7. Ronald J. Allen, Los estándares de prueba y los li{dotless}́mites del análisis juri{dotless}́dico. Carmen Vázquez (ed.): "Prueba cienti{dotless}́fica y estándares de prueba', Marcial Pons, Madrid-Barcelona-Buenos Aires-Sao Paolo, 2012, forthcoming. Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id1830344.
8. Rationality is normally conceived as a property or set of properties of a person; the 'evidentiary process' by contrast is a social construct. Inquiry into that social construct can take many different perspectives ranging over doctrinal rules to general justification to the social construction of reality, and so on. My point is that another perspective one can take is to examine the epistemological implications of trials, which bears at least a slight relationship to the epistemological implications of rationality in the manner suggested in the text.
9. John T. McNaughton, Burden of Production of Evidence: A Function of a Burden of Persuasion, 68 HARV. L. REV. 1382 (1955).
10. Ronald J. Allen, Presumptions in Civil Actions Reconsidered, 66 IOWA L. REV. 843 (1981).
11. Michael S. Pardo, Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, 51 B.C L. REV. 1451 (2010).
12. Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321, 331 (1980).
13. Ronald J. Allen & Larry Laudan, Deadly Dilemmas, 41 TEX. TECH. L. REV. 65 (2008)
14. Larry Laudan & Ronald J. Allen, Deadly Dilemmas II: Bail and Crime, 85 CHI.-KENT L. REV. 23 (2010)
15. Ronald J. Allen & Larry Laudan, Deadly Dilemmas III: Some Kind Words for Preventive Detention, 101 J. CRIM. L. & CRIMINOLOGY 781 (2011).
16. Ronald J. Allen, Rationality and the Taming of Complexity, 62 ALA. L. REV. 1047 (2011).
17. Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604, 625-6 (1994).
18. Douglas Walton, LEGAL ARGUMENTATION AND EVIDENCE 200 (2002). This is the central problem that AI and the law researchers face, and it is no different fromthe difficulties of creating a computer that mirrors human thought.
19. Ronald J. Allen, Artificial Intelligence and the Evidential Process: The Challenges of Formalism and Computation, 9 ARTIFICIAL INTELLIGENCE & LAW 99 (2001).
20. For an early philosophical discussion to the effect that people can disagree about the implications of evidence
21. G. POLYA, 2 MATHEMATICS AND PLAUSIBLE REASONING: PATTERNS OF PLAUSIBLE INFERENCE (1954).
22. Ronald J.Allen, Rationality, Algorithms and Juridical Proof: A Preliminary Inquiry, 1 INT'L J. EVIDENCE&PROOF 254 (1997)
23. Ronald J. Allen & Sarah A. Jehl, Burdens of Persuasion in Civil Cases: Algorithms v. Explanations, 2003 MICH. ST. L. REV. 893 (2003).
24. Susan Haack, Legal Probabilism: An Epistemological Dissent at ms. 7-8, taking to task the peculiar statement in 2 MCCORMICK ON EVIDENCE § 339, at 483 (Kenneth S. Broun, ed., 6th ed. 2006) that the beyond reasonable doubt instruction 'points to what we are really concerned with, the state of the jury's mind,' which they assert is unlike the preponderance of the evidence instruction because it 'divert[s] attention to the evidence.' There surely is a relationship between the evidence and someone's mind, but it is equally surely not the 'jury's' as it does not have one. If it did, everyone other than a few dedicated Bayesians would say, as the instructions Haack reproduces make clear, that the concern is with a rational consideration of the evidence in an effort to find the facts accurately. The evidence is hardly a 'diversion' in such a matter. It is critically important, even if not sufficient itself.
25. A truth table to test the logical consistency of the conjunction of 300 elementswould require 2300 lines, which in turnwould require approximately 10100 checks for consistency
26. The first articulation was Ronald J. Allen, A Reconceptualization of Civil Trials, 66 B.U. L. REV. 401 (1986). In addition to various citations in this article
27. Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373 (1991).
28. Douglas Walton, LEGAL ARGUMENTATION AND EVIDENCE 153 (2002) ('[T]he most significant kinds of arguments in legal reasoning are not inferences drawn by deductive or inductive logic, but by a process of plausible inference within a dialogue structure.'). Missing fromWalton'swork, so far as I can tell, is a operationalization of burdens of persuasion. Two or more dialogic structures, in his terms, usually are at play in a real trial, and the question usually is which one wins.
29. Ronald J. Allen and Michael S. Pardo, Juridical Proof and the Best Explanation, 27 LAW & PHILOSOPHY 223 (2008).
30. Gilbert H. Harman, The Inference to the Best Explanation, 74 PHILOSOPHICAL REV. 88 (1965)
31. W.C. LYCAN, JUDGEMENT AND JUSTIFICATION (1988); PETER LIPTON, INFERENCE TO THE BEST EXPLANATION (1991, 2004)
32. Peter Achestein, Inference to the Best Explanation:Or,WhoWon the Mill-Whewell Debate?, 23STUDIES HIST. & PHIL. SCI. 23 (1992).As an answer to the 'what is knowledge?', inference to the best explanation has been trenchantly criticized.
33. Larry Laudan, A Confutation of Convergent Realism, 48 PHILOSOPHY OF SCIENCE 19 (1981) and Larry Laudan, BEYOND POSITIVISM AND RELATIVISM (1996)
34. David A. Schum, Species of Abductive Reasoning in Fact Investigation in Law, 22 CARDOZO L. REV. 1645, 1659 (2001) ('[O]ne problem with saying that abductive reasoning is inference to the best explanation is that we may not have any settled criterion for saying what is the 'best' explanation.').
35. The distinguished logician,Douglas Walton, who recently has turned his attention to the legal process, suggests that it is not so much the fact finder's native cognitive ability, because it is quite fallible apparently, but the law of evidence: 'What, if anything, is supposed to make the process a way of deciding a case based on rational argumentation? The only answer comes from the rules of evidence, and the other procedural rules adopted by a court-rules for collecting evidence, for deciding what counts as evidence, rules for determining who has to prove what to win a decision, and so forth.' LEGAL ARGUMENTATION AND EVIDENCE 159 (2002).
36. If the fact finders cannot be counted on to be basically rational, the rules of evidence cannot possibly impart rationality to the process. They would have to be structured to manipulate the irrational decision makers to the correct result, but to do that would mean to respond to all the idiosyncratic ways that people can be irrational. That is asking too much. I fear I read toomuch into this passage, though, for it is in tension withWalton's conception of evidence that involves an interaction between the fact finder and observations at trial. See id. at 200.
37. For a somewhat analogous conception of evidence to the effect that evidence is 'the process by which fact finders come to conclusions about the past
38. Ronald J. Allen, Factual Ambiguity and a Theory of Evidence, 88 NW. U. L. REV. 604, 627 (1994).
39. One of the reviewers asked a challenging question about the nature of the reasoning process at trial, and in particular whether witnesses and parties may themselves rely on various prescriptions about evidence. It would be unacceptable, for example, to argue against a particular mode of reasoning on the ground that the whole case is a chaotic dynamic process that one party understands differently fromanother. This is obviously correct. People surely hold such prescriptions, as do the judges and juror, and trial lets the parties advance whatever prescriptions they like. That does not mean anything goes, precisely because natural reasoning processes and normal cognitive processes are operating and everyone knows it. Thus, while the parties can complain about chaos at trial, if they want to win they typically respond to what a normal, competent human being would expect to hear and be persuaded by. However, what precisely that is almost surely cannot be identified in an a priori set of rules.
40. Whatever the point of the examination or cross-examination (whether to persuade, attack, or gather information, for example), so long as it is otherwise conducted according to the rules of evidence, such as those governing relevancy and materiality, it will be permitted. No court will second-guess the needs of a case in terms of, say, pursuing persuasion rather than negotiation (and a possible settlement, for example).
41. Thomas M. Mengler, The Theory of Discretion in the Federal Rules of Evidence, 74 IOWA L. REV. 413, 432-36 (1989). There is often surprise expressed by individuals in fields other than law concerning howWigmore'smost complete statement of his theoretical views about evidence, THE SCIENCE OF JUDICIAL PROOF (3d ed. 1937), could be so completely ignored by the legal profession and legal scholars. The reason is precisely the gap between its theoretical perspective and the demands of a functioning legal system. Wigmore tried to fill that gap with his proposed rules of evidence, and they were virtually unanimously rejected by both scholars and practitioners, who largely believed that the rules obstructed rather than facilitated rational trial processes. Some things cannot be reduced to rules.
42. Ronald J. Allen, The Narrative Fallacy, the Relative Plausibility Theory, and a Theory of Trial, 3 INT'L COMMENTARY ON EVIDENCE no. 1, art. 5 (2005).
43. Michael Williams, UNNATURAL DOUBTS: EPISTEMOLOGICAL REALISM AND THE BASIS OF SKEPTICISM (1991)
44. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED (1832); H.L.A. Hart, THE CONCEPT OF LAW (2d ed. 1994)
45. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). The phrase 'the legal system' bears many different meanings in addition to the one discussed in the text, obviously, and generalizes into such matters as constitutionalism. Hopefully it is clear that I am limiting my focus to the related question of the generations of rights and obligations and their enforcement.
46. Ronald Dworkin, LAW'S EMPIRE (1986)
47. Here is where Hart's insight ran out, I think. He recognizes that the discretion of the judge is exercised to choose between different principles 'supporting competing analogies', id. at 275, and that he should do so based 'on his sense of what is best and not on any already established order of priorities prescribed by him by law.' Id. The 'sense of what is best' is exercised over the presentation made by the parties for the most part, and then subject to the further dynamics discussed in the text.
48. Herbert Simon, Rational Choice and the Structure of the Environment, 63 PSYCHOL. REV., 129, 136 (1956), where I believe 'satisficing' was coined.