Inconsistency Robustness and the Law: A Random Walk

Inconsistency Robustness and the Law: A Random Walk

Ron A. Dolin

Conference on Inconsistency Robustness

Stanford University, July 29-31, 2014

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


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

http://www.latimes.com/opinion/editorials/la-ed-brown-lawns-fines-california-drought-20140718-story.html


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!)


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?


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?


Question

Why does the U.S. Supreme Court have an odd number of justices; what would happen if it didn't?


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)


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


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?

http://en.wikipedia.org/wiki/Nonacquiescence


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)


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.


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


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


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


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”?


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?


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”.

Contact

Ron A. Dolin

[email protected]

@LegalNoise

Inconsistency Robustness and the Law: A Random Walk

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