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Inference, Culture, and Ordinary Thinking in Dispute Resolution

The Conference: Why?

The Conference: Who?

The Conference: Program

Why This Conference?

I (Peter Tillers) sometimes wonder if conferences such as this one are worth holding. After I raised this kind of question about this conference, a sage friend said to me, "It is what we do." Taken literally, this reason is insufficient. (But my friend, of course, was compressing a complex chain of thought into a pithy adage. I have no doubt my friend will forgive me for abusing our friendship by oversimplifying and misrepresenting the thrust of my friend's sage advice.)

So what is the purpose of this conference?

Let's begin with an explicit acknowledgment: The participants in the conference surely have many purposes and motivations for participating in the conference. So when I speak of "the purpose(s)" of the conference, I am speaking of some of the ends that I hope this conference will advance -- and I do not speak at all about some of my (personal) motivations for organizing this conference. Nonetheless, it is possible -- and, I think, probable -- that a considerable number of the conference panelists share to some degree the purposes that I impute to this conference.

In certain radical academic circles it was once the fashion to say, "Smash all contexts!" Apart from the implausibility of the idea that workers of the world would rise to throw off their contextual epistemic chains, the notion of smashing all epistemic contexts is intellectually juvenile: Judgments about the world must always begin with some pre-existing beliefs, judgments, or opinions -- and after new evidence and arguments are taken into consideration, beliefs and opinions -- though they may change -- do not disappear.

The theme or "purpose" of this conference, then, is, broadly conceived, the relationship between inference -- the drawing of conclusions about the world -- and pre-existing belief(s).

Since I am not a prophet, I cannot say precisely how the conference panelists will examine that relationship. But I have some thoughts and guesses about what the panelists might or should discuss.

The following are some of the topics and themes that I told the panelists they might wish to discuss (but there is little doubt that many of the panelists will choose to discuss other topics and emphasize different themes) (the comments below have been "redacted" to eliminate references to particular panelists):

"My general objective is to increase the cross-pollination between an interesting, relatively new, and important international scholarly movement -- the 'new evidence scholarship' -- and other intellectual currents that are both broader and better known. I thought that one way to promote this cross-pollination was to focus on an issue or family of issues that seems to be common to all of the intellectual currents and movements in question. I tried to capture this family of common issues or shared concerns with the label 'culture and inference.' I recognize that this nomenclature is imperfect -- that it is, at best, a first approximation of the issues and themes that should or will dominate the conference. Another way to express the theme that I want the conference to have is to say that the general subject matter of the conference is the relationship between (i) reasoning about evidence and (ii) matters such as received belief, intuition, personal judgment, personal or selective experience, subjective belief, inherited belief, and personal preference.

"More concretely, discussion at the conference might cluster around the following themes:

" • One group of panelists might explore the topic of 'culture and inference' by viewing factual inference in litigation from the perspective of comparative legal studies.

" • Another group of panelists might explore the general theme of the conference by exploring the extent to which factual inference in litigation is influenced by attributes such as gender and race.

" • Yet another group of panelists might want to attack the conference theme by exploring the question of whether some, many, or all parts of the process of 'factual' 'proof' in litigation do not in fact -- or should not -- serve the purpose of inquiring into the the truth or falsity of propositions about (past, future, or present) states of the world, but do or should instead (principally?) serve social, expressive, symbolic, or social functions.

" • Another group of panelists might want to explore the descriptive sufficiency or insufficiency of formalizations of inference -- and they might also wish to address the question of whether the human psyche or brain has features that explain why human beings in real-world situations fail to 'behave' in the manner that some inferential models might predict they would.

" • Yet another group of panelists might want to tackle, again, the relationship between the logic of probability and subjective judgment or -- alternatively? -- the relationship between logical procedure and ordinary judgment (in factual inference).

" • It is also possible that some panelists would want to revisit again, at least implicitly, the adequacy or sufficiency of some popular formal models of inference. (Perhaps some panelists will want to do this by focusing on the role of narrative and scenarios in (epistemically sound?) factual inference and proof in litigation.

"As you know, I believe that lurking behind and in all of the above clusters is a question or family of questions about the possibility and meaning of the ideal of the 'rule of law.' But even if you disagree with me, I hope you will agree that discussion of some of the themes or questions mentioned above should prove interesting -- even if no 'collective intelligence' superior to or different from the panelists' individual intelligences and perspectives emerges from the conference!"


A Personal Postscript on the Purpose of the Conference

Philosophers have said many interesting things about the (ostensible) difference between "facts" and "values." (Many uninteresting things have also been said about the distinction between facts and values.) Students of forensic proof are interested in the processes that lead to "facts" rather than in just "facts." Nonetheless, in many discussions of (factual) inference a distinction is often made that seems to resemble the general philosophical distinction between facts and values. I am referring to the (ostensible) distinction between "descriptive inference" and "normative inference." Yet, unless one digs deeper, the distinction between normative accounts (or theories) of inference, on the one hand, and descriptive accounts (or theories) of inference, on the other hand, does not directly parallel certain aspects of the traditional distinction between facts and values. The latter distinction rests in part on the premise that insight into what is (merely) the case does not yield insights into what is good (or evil): if something is it does not follow that that something is good. But a normative theory of inference generally does not purport to specify how inference must be done in order to promote matters such as justice. In the hands of social scientists -- and some other people as well--, "normative inference" speaks to the question of the "rationality" of inference. And "rationality" in this context is taken as a synonym for "logical coherence."

A popular (though not universal) view is that the deployment of formal probability theory in the guise of Bayes' Theorem constitutes "rational inference" -- that Bayesian analysis of evidence constitutes logically coherent reasoning about uncertain factual inference. There is very good reason to think, however, that the notion that Bayesian inference is rational inference is quite wrong. Even if one assumes that logical coherence is a requirement of "rationality" -- and this assumption is today controversial --, it does not follow that Bayesian reasoning about uncertainty is the only possible logically coherent form of reasoning about uncertain evidence and uncertain inference. Furthermore, the idea that a mode of coherent reasoning about uncertain evidence is "rational" even if such reasoning (by itself) leads to wrong results seems strange. It is strange. (Such an idea is in the end unacceptable. My hunch is that it can seem plausible only to people who are overly-enamored of formal logic of a certain conventional stripe.)

The entire notion of "normative" or "rational" inference seems strange to me. The question is or ought to be the conditions under which factual inference works and works best. "Rational" or "normative" theory about inference is or ought to be a (mere) tool in the search for answers to this question. Developments in AI have already taught us that a wide variety of procedures are necessary to make either human intelligence or nonhuman intelligence work well. (Much coherent logic was deployed in confirming this pluralistic hunch about the nature of inference and intelligence.)

What I have said is no longer novel (though many scholars have yet to embrace the insights I have just mentioned). But the discovery that a multiplicity of procedures is necessary for "intelligent inference" leaves us with just another starting point, one that this conference may illuminate to some slight degree. Now we need to ask, for example, whether or not factual inference is inescapably ensnared in personal preferences, prejudices, "values," and the like; and, if so, whether there are or can be methods or procedures for "cleansing" inference of such "impure"(?) elements. In the alternative, we may consider whether it is the case that the imprisonment of inference in matters such "values" and "preconceptions" does not necessarily render human inference about factual hypotheses intolerably or unacceptably frail.

Some of the panelists at the conference might even wish to consider -- though I doubt that anyone will be so bold -- whether it is indeed possible that the actual workings of sound factual inference do say something important or useful about matters such as the nature of good and evil. In considering this fantastic(?) possibility, one might wish to consider that, by some accounts, the human brain is the most complex entity in the entire universe. And it is at least interesting that this fantastically complex "machine" has somehow been programmed to make errors. Is it possible that human error -- the misfiring of the brain, its refusal or inability to follow settled tracks -- is the source of human creativity? And is it possible that cognitive science shows or suggests that human freedom and many good things (and many evil things) on earth have their roots in human creativity? If so, this would be an interesting reinterpretation of the parable of Adam and Eve in the Garden of Eden!

Perhaps the above "personal postscript" is babble. But perhaps it is interesting or suggestive babble. That, at least, is my hope.


Scott Brewer, Professor of Law, Harvard Law School
Skepticism, naturalism, and cultures of inference

Jerome Bruner, University Professor, New York University
(with Oscar Chase) The role of narrative in dispute resolution: acultural-legal analysis

Oscar G. Chase, Professor of Law, New York University School of Law
(with Jerome Bruner) The role of narrative in dispute resolution: acultural-legal analysis

Mirjan Damaška, Sterling Professor, Yale Law School
On factors that influence fact-finding in the legal process

Florrie Darwin, Lecturer, Harvard Law School
Culture and inference in the context of negotiation

Phoebe C. Ellsworth, Kirkland and Ellis Professor of Law, University of Michigan Law School
Cultural variations in the concepts of agency and control

David L. Faigman, Professor of Law, University of California, Hastings College of Law
Making moral judgments through behavioral science: the "substantial lack of volitional control" requirement in civil commitments

Branden Fitelson, Assistant Professor, Department of Philosophy, San Jose State University & Acting Assistant Professor (Winter 2002 & Fall 2001), Philosophy Department, Stanford University
Comment on Franklin

James Franklin (virtual {videoconference} participant), Senior Lecturer, School of Mathematics, University of New South Wales, Australia
The Representation of Context: Ideas from Artificial Intelligence

Richard D. Friedman, Ralph W. Aigler Professor of Law, University of Michigan Law School
(with Frank Yates) The interplay between culture, structure of decision-making, and inference

Alvin Goldman, Board of Governors Professor (Philosophy and Cognitive Science), Rutgers University
Epistemology and the law

Samuel R. Gross, Thomas & Mabel Long Professor of Law, University of Michigan Law School
(with Anna-Rose Mathieson) A cross-cultural discussion of the concept of error

Susan Haack, Professor of Philosophy & Professor of Law, University of Miami (Coral Gables)
Advocacy and inquiry, finality and fallibilism

John Jackson, Professor, Faculty of Law, Queen’s University of Belfast
The effect of legal culture and proof on decisions to prosecute

L.H. LaRue, Class of 1958 Alumni Professor of Law, Washington and Lee University School of Law
Solomon's judgment

Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology, University of Michigan Law School
Comment on Bruner & Chase

Douglas Lenat, CEO, Cycorp
[Formalizing, or "computerizing," commonsense reasoning]

Audrey Macklin, Associate Professor, Faculty of Law, University of Toronto
Truth and consequences: determining credibility across difference

Anna-Rose Mathieson, Student, University of Michigan School of Law
(with Samuel Gross) A cross-cultural discussion of the concept of error

Robert J. Mislevy, Professor, Department of Measurement, Statistics & Evaluation, University of Maryland (College Park)
Educational assessments as evidentiary arguments: what has changed, and what hasn't

Charles Nesson, Weld Professor of Law & Director, Berkman Center for Internet and Society, Harvard Law School
Jury transparency in a digital age

Aviva Anne Orenstein, Professor of Law, Indiana University School of Law
Comment on Gross & Mathieson

Andrew Palmer, Senior Lecturer, Faculty of Law, University of Melbourne
Comment on Schafer & Wiegand

Roger Park, Distinguished Professor, James Edgar Hervey Chair in Litigation, University of California, Hastings College of Law
Comment on Edward Stein

Henry Prakken, Lecturer, Institute of Information and Computing Sciences, Utrecht University
Analysing reasoning about evidence with formal models of argumentation
Comment on Lenat

Mike Redmayne, Lecturer in Law, Law Department, London School of Economics and Political Science
Objective probability and evidence

Eileen Scallen, Professor of Law, William Mitchell College of Law
Comment on Twining

Burkhard Schafer, Lecturer, Faculty of Law, University of Edinburgh
Proof from a comparative perspective
Prejudice, presupposition, theory: why drawing inferences from prejudices isn't such a bad thing after all

David Schum, Department of Systems Engineering & Operations Research, George Mason University

Edward Stein, Associate Professor of Law, Cardozo School of Law, Yeshiva University
The admissibility of expert testimony about cognitive science research on eyewitness identification

Peter Tillers, Professor of Law, Cardozo School of Law, Yeshiva University
Conference chair

William L. Twining, Research Professor of Law, University College London; Visiting Professor, University of Miami Law School
Keynote address

Charles Yablon, Professor of Law, Cardozo School of Law, Yeshiva University
A Theory of presumptions

Ronald R. Yager, Director, Machine Intelligence Institute & Professor, Information Systems, Iona College
Modeling human perceptions using participatory learning and fuzzy logic

John Zeleznikow, Director, Joseph Bell Centre for Forensic Statistics & Legal Reasoning, Faculty of Law, University of Edinburgh
The Split-Up project: induction, context and knowledge discovery in law


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