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Inconsistency Robustness and the Law: A Random Walk

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These are slides from a presentation for the conference on Inconsistency Robustness at Stanford University, July 29-31st. I did an overview of Inconsistency Robustness and the Law.

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Inconsistency Robustness and the Law: A Random Walk

  1. 1. Inconsistency Robustness and the Law: A Random Walk Ron A. Dolin Conference on Inconsistency Robustness Stanford University, July 29-31, 2014
  2. 2. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin2 Overview  The Issue  A Question  Jurisprudential Perspective  Legal Expert Systems  Statistical “Inconsistency”  Inherent Indeterminacy
  3. 3. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin3 A Real Issue – “Inconsistent”? Punished for saving water: A drought Catch-22 “While Gov. Jerry Brown is warning that California faces its worst drought since record-keeping began and regulators have approved fines of up to $500 for wasting water, some Southern California cities are continuing to issue warnings and citations to residents who let their lawns go brown.” – LA Times, July 17, 2014
  4. 4. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin4 Literature Starting Points  Habermas (2001) − Constitutional Democracy: A Paradoxical Union of Contradictory Principles?  Kutz (1993) − Just Disagreement: Indeterminacy and Rationality in the Rule of Law  Engel (2004) − Inconsistency in the Law: In Search of a Balanced Norm  Google Scholar (now!)
  5. 5. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin5 Terminology  Inconsistency − Mutually exclusive: A and not A simultaneously * − Variable: Sometimes yes, sometimes no  Paradox: facially inconsistent but resolvable  Uncertainty: e.g., rules of evidence  Indeterminate, Under-determinate, “One Rule”  Unpredictable * With 100% certainty of both; exists only in models, like law, but never in physics?
  6. 6. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin6 Pros and (Implied) Cons  Consistency: − Predictable − Efficient − Fair (for similar cases)  Inconsistency: − Evolutionary * − Handles exigent circumstances, exceptions − Fair (for distinguishable cases)* Inconsistent in old law becomes consistent in new law?
  7. 7. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin7 Question  Why does the U.S. Supreme Court have an odd number of justices; what would happen if it didn't?
  8. 8. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin8 Constitutional Democracy (Habermas)  Three principles: − Positive (legislative process) − Compulsory (state enforced) − Individualistic (guarantee liberties)  Paradox: majority rule vs. individual rights  Resolution: − Evolutionary (rules catch up with norms) − Amendments (super-majority, lengthy) − Non-political court action (next slide)
  9. 9. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin9 U.S. v. Carolene Products (1938) “Footnote Four”  Court-warranted Protection: − Enumerated rights (e.g. speech) − Political participation (e.g. no gerrymandering) − Discrete and insular minorities (e.g. race)  “Robust” balance between majority/minority − Assumes viable enforcement exists − Brown v. Board of Ed. vs. Civil Rights Act
  10. 10. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin10 Multiple Branches  Nonacquiescence − The intentional failure by one branch of the government to comply with the decision of another. (wikipedia) − Worcester v. Georgia (1832): "[Chief Justice] John Marshall has made his decision; now let him enforce it!" – President Andrew Jackson  Is this inconsistent? From who's perspective? “Relative inconsistency”? Does the paradox get resolved?
  11. 11. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin11 Hierarchies vs. Choice of Law  Supremacy Clause: “supreme law of the land” − Medical and recreational marijuana − Marriage: gay, interracial, poly  International: − U.S. Discovery vs. E.U. Privacy − Right to forget vs. right to know (crim hist)
  12. 12. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin12 Geography  Regional differences – Circuit Courts split − With an even number of SCOTUS justices?  Differences include laws, norms, procedures  Forum shopping: Texaco v. Pennzoil ($12B) If expectations allow for such differences, is this still an inconsistency? Both sides knew what would result from a change of venue.
  13. 13. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin13 Evidence  When is a document “responsive”? − A person's opinion varies day to day!  How consistent are different juries?  Uncertainty: reasonable doubt, clear and convincing, preponderance of evidence  OJ Simpson: found not guilty of murder, but guilty of wrongful death; consistent “within the uncertainty standard”?  Res judicata, collateral estoppel
  14. 14. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin14 Punishment  e.g. Crack vs. cocaine  Does societal bias (e.g. race) result in legal “inconsistency” in punishments?  Guidelines: mandatory vs. suggested  Balancing consistency and exceptions
  15. 15. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin15 Legal Expert Systems  Neota Logic Systems – Inconsistency Checking: − Conclusions (RHS) not set by any rule − Conclusions set by (possibly inconsistent) multiple rules − Facts (LHS or inputs) not used − Cycles: e.g. A>B, B>C, C>A  Internal structure makes checks easy
  16. 16. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin16 Statistical “Inconsistencies” (Engel)  Unexpected distributions  Outliers  Balance consistency against the benefits of inconsistency (e.g. exceptions, evolution) It's not hard to model statistical “inconsistencies” across multiple instances – is that “inconsistency robust”?
  17. 17. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin17 Inherent Indeterminacies (Kutz)  Words: e.g. “reasonable” person, expectation of privacy, force, doubt, etc.  Rules  Individual Norms  Competing Norms Are these “inconsistencies” when resulting in different interpretations and/or outcomes?
  18. 18. July 30, 2014; IR'14 Stanford University Copyright © 2014, Ron Dolin18 Conclusion  Inconsistencies of various forms are common across the legal system.  The legal system has many methods of dealing with inconsistencies.  There are pros and cons of legal inconsistencies – “it depends”.
  19. 19. Contact Ron A. Dolin Ron.a.dolin@radicalconcepts.com @LegalNoise

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