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Michael Pardo's "Judicial Proof and the Best Explanation"

Michael Pardo's "Judicial Proof and the Best Explanation" presents a philosophical and

analytical perspective on how courts should approach the process of evaluating evidence and

arriving at judicial decisions. Pardo emphasizes the importance of understanding evidence in

terms of its explanatory value to ensure that the legal system reaches accurate and just

conclusions.

In the first section of his work, Pardo critiques the prevalent probabilistic models of

evidence and legal proof, suggesting that these models can sometimes lead to counterintuitive

and unjust results. He argues that probability alone should not be the sole criterion for

evaluating evidence, as it often ignores the complexity and nuances of real-life situations.

Instead, he proposes a shift towards a more explanatory model, where the focus is on how well

the available evidence explains the events or facts in question.

Pardo then delves into the concept of Inference to the Best Explanation (IBE), proposing

it as a more suitable and effective method for judicial proof. IBE is a form of reasoning that

involves selecting the hypothesis or explanation that best accounts for the available evidence. In

legal contexts, this would mean that judges and juries should base their decisions on which

narrative or account of events is best supported by the evidence at hand, rather than solely on

probabilistic calculations.

Pardo also addresses potential criticisms and misunderstandings of IBE, emphasizing

that it is not a subjective or arbitrary method, but rather a structured and rational approach to

evidence evaluation. He highlights the importance of transparency, coherence, and rigor in

applying IBE, ensuring that the chosen explanation genuinely aligns with the available evidence

and is not the product of biases or preconceived notions.

Finally, Pardo connects the theory of IBE to broader themes in epistemology and

philosophy of science, demonstrating its relevance and applicability beyond the legal realm. He

underscores the potential of IBE to enhance the accuracy and fairness of judicial proof,

contributing to a more reliable and just legal system.

Multiple Choice Questions:

What does Michael Pardo critique in his work "Judicial Proof and the Best Explanation"? A. The

use of witness testimonies B. The prevalence of probabilistic models of evidence C. The role of

judges in the courtroom D. The application of Inference to the Best Explanation (IBE) Answer: B.

The prevalence of probabilistic models of evidence

What alternative does Pardo propose for evaluating evidence in legal contexts? A. Relying

solely on eyewitness testimonies B. Implementing a probabilistic model C. Using Inference to

the Best Explanation (IBE) D. Ignoring circumstantial evidence Answer: C. Using Inference to

the Best Explanation (IBE)

How does Pardo view the relationship between IBE and judicial proof? A. IBE is irrelevant to

judicial proof B. IBE can contribute to a more accurate and just legal system C. IBE makes the

legal process overly complicated D. IBE should only be used in criminal cases Answer: B. IBE

can contribute to a more accurate and just legal system.

Here are three real-life examples to help illustrate Michael Pardo's work on "Judicial Proof and

the Best Explanation":

Example 1: Wrongful Conviction

Situation:

A man is convicted of a crime based on eyewitness testimony and circumstantial evidence. The

probability models suggest he is likely the culprit due to his presence at the scene and a vague

identification by a witness.

Application of Pardo’s Work:

Using Pardo’s explanatory model, the court would re-examine the evidence to see which

explanation best fits the facts. The man’s lawyer presents an alternative theory, showing that the

timeline doesn’t add up and the eyewitness was not wearing their glasses. The best explanation

may shift away from the man’s guilt towards a possible misidentification.

Outcome:

The man’s conviction is re-evaluated, and he is found not guilty, demonstrating how the

explanatory model can prevent wrongful convictions and contribute to a more accurate and just

legal system.

Example 2: Patent Dispute

Situation:

Two companies are in a legal battle over a patent, with both presenting extensive technical

evidence to support their claims.

Application of Pardo’s Work:

Rather than calculating the probabilities of each company’s evidence being true, the court

applies the Inference to the Best Explanation. They analyze which company’s evidence better

explains the technology in question and how it aligns with the patent.

Outcome:

The court rules in favor of the company whose evidence provides the most coherent,

comprehensive, and plausible explanation of the technology, showcasing how Pardo’s model

aids in complex cases where a nuanced understanding of evidence is crucial.

Example 3: Medical Malpractice

Situation:

A patient sues a doctor for medical malpractice, presenting symptoms and medical records as

evidence. The doctor’s defense brings their own medical experts and records.

Application of Pardo’s Work:

Instead of relying on the probability of malpractice based on symptoms alone, the court utilizes

the explanatory approach. They assess which side provides a better explanation of the patient’s

condition, taking into account all medical opinions and records.

Outcome:

The court reaches a verdict based on the most comprehensive and plausible medical

explanation, ensuring a just decision that is grounded in a thorough understanding of the

evidence. This exemplifies Pardo’s call for a more rational and structured approach to judicial

proof.

Saul Levmore's "Unifying Remedies: Property Rules, Liability Rules, and Startling Rules

Saul Levmore's "Unifying Remedies: Property Rules, Liability Rules, and Startling Rules

" critically examines the existing frameworks of legal remedies, particularly focusing on the

categorizations introduced by Calabresi and Melamed, who separated legal remedies into

property rules and liability rules. Levmore acknowledges the transformative impact of their work

while highlighting its limitations and the potential for further development in understanding

legal remedies. He emphasizes the necessity of exploring new and innovative remedies that have

emerged since the original framework was proposed, with the aim of developing a more

comprehensive and unified theory of legal remedies.

Levmore delves into the intricacies of legal remedies, considering how rights, remedies,

and private bargains can be combined to serve a variety of functions while upholding values of

efficiency, fairness, and redistribution. He brings attention to “startling rules,” a category of

remedies that break conventional norms, such as requiring a party in the right to pay when they

have been wronged. These rules, Levmore argues, can play a crucial role in encouraging honest

claims and enhancing the integrity of the legal system.

The work also revisits the Calabresi-Melamed framework, identifying gaps and areas

left unexplored. Levmore highlights contributions from other scholars, such as Krier and

Schwab, who have added depth to the understanding of legal remedies, introducing new

perspectives and possibilities. He emphasizes the importance of considering the unique

qualities of these innovative remedies and their potential contribution to a unified theory of

legal remedies.

Levmore’s analysis does not stop at exploring new remedies; it also revisits familiar

ones, scrutinizing their content and the implications of their application. He seeks to expand the

application of the Calabresi-Melamed framework beyond traditional property and tort law,

advocating for a comprehensive approach that encompasses a broader range of legal disputes

and remedies. Through this, Levmore aims to contribute to the ongoing development of legal

theory, pushing towards a more holistic understanding of legal remedies.

Multiple Choice Questions:

What is Saul Levmore’s main critique of the Calabresi-Melamed framework in "Unifying

Remedies: Property Rules, Liability Rules, and Startling Rules"?

A) It is completely incorrect.

B) It is outdated and no longer relevant.

C) It has limitations and there is potential for further development.

D) It only applies to property law.

What role do “startling rules” play in Saul Levmore’s analysis of legal remedies?

A) They are irrelevant and should be ignored.

B) They break conventional norms and encourage honest claims.

C) They only apply to liability rules.

D) They are the only focus of Levmore’s work.

According to Saul Levmore, what is necessary for developing a comprehensive theory of legal

remedies?

A) Ignoring all previous work on legal remedies.

B) Focusing solely on property rules.

C) Combining rights, remedies, and private bargains in innovative ways.

D) Eliminating liability rules from consideration.

Answers: C, B, C

Here are three real-life examples that illustrate the concepts discussed in Saul Levmore’s

"Unifying Remedies: Property Rules, Liability Rules, and Startling Rules":

1. Eminent Domain and Compensation:

Imagine a situation where the government decides to build a new highway, and part of the

planned route goes through a privately-owned piece of land. According to traditional property

rules, the government has the right to seize private property for public use through eminent

domain, but they must provide just compensation to the owner.

Relation to Levmore's Work: This scenario mirrors Levmore’s discussion on “startling rules,”

where a party in the right (the property owner) ends up receiving payment as a remedy. Here,

the government's action is justified for the greater public good, but the property owner is

compensated for their loss, showcasing a blend of property rules and liability rules.

2. Environmental Pollution:

Consider a factory that is releasing pollutants into a river, negatively affecting the water quality

and harming the livelihoods of fishermen downstream. The fishermen could seek an injunction

to stop the factory from polluting the river (a property rule), or they could seek damages for the

harm caused (a liability rule).

Relation to Levmore's Work: Levmore’s work emphasizes the importance of finding innovative

remedies that balance efficiency, fairness, and redistribution. In this case, a more nuanced

solution might involve implementing stricter environmental regulations and requiring the

factory to install pollution control measures, which would address the root cause of the

problem while allowing the factory to continue operating.

3. Intellectual Property and Licensing:

Imagine an inventor who has patented a new technology. Another company sees potential in

this technology and wants to use it, but they cannot do so without infringing on the inventor’s

patent rights. The company could negotiate a licensing agreement with the inventor, paying for

the right to use the technology (a liability rule).

Relation to Levmore's Work: This example reflects Levmore’s ideas on combining rights,

remedies, and private bargains in innovative ways. Instead of resorting to a lawsuit (a property

rule approach, where the inventor stops the other company from using the technology), the two

parties come to an agreement that benefits both, illustrating a practical application of liability

rules and private bargaining.

These examples highlight how Levmore’s concepts of property rules, liability rules, and

“startling rules” can be applied in various real-life situations, showcasing the necessity for a

comprehensive and flexible approach to legal remedies.

Kenneth Arrow, Social Choice and Individual Value

Kenneth Arrow's "Social Choice and Individual Values" is a foundational text in the realm

of economics and social choice theory. Through this work, Arrow grappled with a question that

has profound implications for democratic societies: can we convert individual preferences into a

coherent group decision that represents the collective will? The inquiry's essence touches upon

the challenges of collective decision-making and the intricacies of reconciling individual desires

with group outcomes.

In the book, Arrow presents his famous "impossibility theorem" or "Arrow's paradox."

The theorem essentially states that, when there are three or more options to choose from, no fair

voting system can convert ranked preferences of individuals into a community-wide ranking

without running into certain issues. These issues are manifested in terms of fairness criteria,

which Arrow believed any reasonable voting system should satisfy.

The criteria include factors like "unrestricted domain," which means that voters should be

free to order their choices in any way; "independence of irrelevant alternatives," implying that if

a choice is removed, it shouldn't affect the rankings of other choices; and "non-dictatorship,"

suggesting that no single voter should determine the outcome. Other criteria also emphasize that

a voting system should respect the intensity of individual preferences and not just the order.

However, Arrow's conclusion, derived rigorously through mathematical proofs, was startling.

He demonstrated that no voting method could satisfy all the fairness criteria at once. This result

showcased the inherent challenges and limitations in aggregating individual preferences into a

collective decision. In other words, it's impossible to create a perfect voting system that

simultaneously respects all the fairness criteria Arrow outlined.

Arrow's insights into the complexities and potential contradictions of collective decision-

making have profound implications for democratic theory and practice. They highlight the

challenges democratic societies face in translating individual preferences into collective choices.

While the theorem doesn't offer solutions, it illuminates the intricacies of societal decision-making

processes and underscores the need for continuous examination and refinement of democratic

mechanisms.

Elaborating on Questions of Law vs. Questions of Fact

The distinction between questions of law and questions of fact is one of the most

fundamental in legal reasoning and adjudication. Questions of law involve the application,

interpretation, or validity of a legal principle, statute, or rule. Courts often determine these

questions, as they require expertise in legal interpretation. By contrast, questions of fact revolve

around what actually happened in a given situation and are typically decided by the trier of fact

(a jury or judge acting as a fact-finder).

In practice, legal decision-makers grapple with separating these two domains, as many issues

present both factual and legal dimensions. Courts must determine the applicable law, interpret

any relevant statutes or precedents, and, through a fact-finding process, establish what

happened to apply the law to those facts.

Real-Life Examples and Exercises

1. Contract Dispute Example: A supplier and a buyer enter into a written contract for the

delivery of 100 widgets. The supplier claims they delivered all 100, while the buyer asserts that

only 80 were delivered. The contract states payment will be due only upon full delivery.

o Question of Fact: How many widgets were delivered? This is a question of fact,

as it relates to determining the actions or events that took place.

o Question of Law: If fewer than 100 widgets were delivered, is the buyer legally

obligated to make any payment under the contract terms? This requires

interpreting the legal obligations under the contract.

o Exercise: Students should identify and argue both the factual dispute (evidence

of delivery, testimony, etc.) and the potential legal consequences (contractual

interpretation).

o Model Answer: Factually, the trier of fact would assess delivery evidence, such

as records, receipts, or testimony. Legally, the court would interpret whether

“full delivery” is a condition precedent to payment or whether partial

performance may allow for prorated payment.

2. Criminal Case Example: A defendant is charged with theft, and the key issue is whether the

defendant intended to permanently deprive the victim of their property.

o Question of Fact: Did the defendant intend to steal the property? Determining

intent involves assessing the defendant’s actions, statements, and any

circumstantial evidence.

o Question of Law: What does "intent to permanently deprive" mean under the

applicable criminal statute? The court defines this legal standard and instructs

the jury accordingly.

o Exercise: Provide students with hypothetical witness statements and evidence,

asking them to determine intent based on available facts.

o Model Answer: Students would evaluate witness credibility, defendant

behavior, and circumstantial evidence to establish intent. Legally, they would

identify the statute’s definition and discuss how intent fits the statutory

requirement.

3. Tort Case Example: A pedestrian is injured after slipping on a wet floor in a grocery store. The

store owner argues that they placed warning signs and mopped the area recently.

o Question of Fact: Was the warning sign visible, and did the floor remain

slippery? This involves assessing the physical facts at the scene and witness

accounts.

o Question of Law: What constitutes “reasonable care” under premises liability

standards? This requires a legal interpretation to apply the standard of care to

the facts.

o Exercise: Ask students to evaluate mock witness testimonies and pictures of the

accident scene to determine factual conditions. They then analyze whether,

assuming their findings, reasonable care was met.

o Model Answer: Factually, students could conclude whether the area was made

reasonably safe based on evidence of warning signs, mopping frequency, etc.

Legally, they would interpret the "reasonable care" standard and decide if the

store owner met their duty.

Hypotheticals and Exercises

1. Hypothetical #1: A homeowner sues their neighbor for trespass, alleging that the

neighbor cut down trees on their land. The neighbor claims the trees were on their

property.

o Exercise: Distinguish questions of law and fact in this scenario, and identify

evidence or legal arguments that could support each party’s claims.

o Model Answer: The question of fact is where the property boundary lies and

whether the trees were on the plaintiff’s land. The question of law involves what

remedies may be available for trespass, assuming a factual finding supports it.

2. Hypothetical #2: A tenant claims a landlord failed to make necessary repairs, leading to

mold that harmed the tenant’s health. The landlord argues the tenant caused the mold

by neglecting proper ventilation.

o Exercise: Break down the factual and legal issues. How would a court determine

the cause of the mold, and what legal duties does a landlord have?

o Model Answer: Factually, the dispute centers on the cause of the mold

(testimony, expert assessments, maintenance records). Legally, the court must

interpret the scope of the landlord’s duty under housing law and the lease

agreement.

Notes on Readings Re: “FACTS”

Frederick Schauer’s work, “Is There a Psychology of Judging?”, as found in The

Psychology of Judicial Decision Making edited by David E. Klein and Gregory Mitchell, and

Stephen A. Weiner’s “The Civil Jury and the Law-Fact Distinction” from California Law Review,

both offer valuable insights into how the distinction between law and facts functions within

judicial decision-making and the impact of cognitive processes and institutional roles.

Schauer’s "Is There a Psychology of Judging?"

Schauer’s writing explores the cognitive processes and biases that shape how judges make

decisions. In the context of distinguishing between law and facts, Schauer emphasizes that

judicial decision-making is not merely a mechanical application of rules to facts but rather

involves complex reasoning shaped by psychological factors. His work suggests that while

judges may strive to adhere to legal standards, their factual assessments, interpretations, and

conclusions are influenced by cognitive limitations, heuristics, and contextual factors.

Key points to consider in this framework include:

• Cognitive Biases: Judges, like all decision-makers, are susceptible to cognitive biases

that can influence how they perceive evidence, assess witness credibility, or resolve

factual disputes. This has implications for how they might blend factual findings with

legal reasoning, even unconsciously.

• Framing and Contextual Influence: Schauer discusses how framing, context, and prior

experiences shape judicial perception and reasoning. This aspect highlights the potential

difficulties in clearly separating fact-finding from legal interpretation, as judges bring

their subjective perspectives to bear.

• Practical Constraints and Heuristics: Decision-making shortcuts, or heuristics, often

guide judges when faced with complex factual scenarios or ambiguous legal standards.

This dynamic can blur the line between what should be a purely factual determination

and what is infused with normative judgments or legal reasoning.

Schauer’s analysis thus complicates a purely theoretical distinction between questions of law

and fact by showing how psychological realities influence judicial attempts to

compartmentalize these categories.

Weiner’s "The Civil Jury and the Law-Fact Distinction"

Stephen A. Weiner, in his analysis of the civil jury’s role and the law-fact distinction, focuses on

how the division of labor between judge and jury creates challenges in distinguishing between

questions of law and fact. His examination is particularly relevant when discussing civil cases

where juries, as fact-finders, are tasked with making determinations based on their evaluation

of evidence, while judges provide legal guidance and ensure proper application of the law.

Key aspects of Weiner’s work include:

• Institutional Roles and Responsibilities: Weiner emphasizes the jury’s role in fact-

finding and the judge’s role in legal interpretation. However, the boundary between

these roles is often porous. Judges may influence jurors through instructions or rulings

on the admissibility of evidence, while juries may incorporate legal reasoning into their

fact-finding process.

• Complexity of Modern Cases: Weiner argues that the increasing complexity of civil

litigation blurs the law-fact distinction. Complex legal standards often require jurors to

engage with nuanced questions that straddle legal definitions and factual contexts,

complicating their task.

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