August 29, 2006
Nordberg: Logic and Inference
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
Peter Nordberg is a shareholder in the law firm of Berger & Montague and runs Daubert on the Web.
Given that I run a little website on Daubert, people might assume that my main prescription for law school curricula, and for torts courses in particular, would involve more material on expert evidence. But I doubt that idea would do much good, unless the students had better preparation than may be typical for law school matriculants.
So let’s give them a required first-year course in Logic and Inference instead. We want lawyers to have mastered these arts. Yet most students don’t study them in college, and we don’t teach them in law school – not explicitly or directly, anyway. My law school experience at the University of Pennsylvania in the 1980’s is admittedly dated but probably remains typical. There was much self-congratulatory bombast about “thinking like a lawyer.” Everyone seemed to equate this with thinking very, very hard – much harder, at least, than was thought to be the collegiate norm. Yet the curriculum was oddly reticent about defining the forms of inference deemed legitimate and illegitimate. As a result, our efforts to “think like lawyers” were largely undisciplined. We mostly went about it by wrinkling up our brows, and squinting very hard, while thinking pretty much as we always had.
As it happens, lawyers have no monopoly on the study of valid forms of inference. The issue has been investigated by philosophers and logicians for millennia, and they have made especially valuable progress over the last hundred years or so. Law students should be given technical training in how to spot a valid or invalid syllogism, how to identify (and avoid committing) the standard logical fallacies, and how to disambiguate imprecise propositions. They should know their way around modus ponens and elementary principles of quantification, and they should be equipped to battle the law’s repeated attempts to seduce their minds with spurious invocations of the Law of the Excluded Middle.
If there’s time left over, we might give law students some bonus units on statistics, epistemology, and the sociology of knowledge. Statistics, because a nodding acquaintance with statistical modes of inference is increasingly an indispensable component of modern professional literacy. Epistemology, because lawyers should be professionally preoccupied with the question of what constitutes justified true belief. Sociology of knowledge, because lawyers should also be interested in how social forces shape the structure of knowledge and information, and should learn not to confuse the study and analysis of that topic with a simplistic relativism.
None of this, obviously, is uniquely germane to the tort curriculum. But classes on tort law do often focus of issues of High Policy, and law school is not too early to start acculturating students to the concept that discourse on such issues is more enlightening, when it is closely reasoned and reflects an intellectually critical outlook.
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Tracked on Sep 4, 2006 3:48:45 AM
This should be required reading for any law student learning about statistics in torts:
Sander Greenland's 1999 article in American Journal of Public Health, "Relation of probability of causation to relative risk and doubling dose: a methodologic error that has become a social problem"
Having consulted for lawyers on scientific, medical, and statistical issues in a number of torts involving very complex epidemiology, I have noticed that not more than 1% of them actually understand the basic concepts on biostatistics and epidemiology. The rest repeatedly make mistakes that only harm their clients and contribute to bad case law.
Posted by: ahp | Aug 29, 2006 6:11:31 PM
By the way, I've pasted below the abstract for the Greenland article mentioned above. I am an outsider to the law profession and its education, and I suspect that it is not realistic for students to delve into technical topics such as these unless they have a special interest in health-related torts. However, I would recommend this article for lawyers who practice in the field. Additionally, Johns Hopkins has provided the lay public with a great primer on biostats for free (access it at http://ocw.jhsph.edu/Topics.cfm?topic_id=33). Here's the Greenland abstract:
"Epidemiologists, biostatisticians, and health physicists frequently serve as expert consultants to lawyers, courts, and administrators. One of the most common errors committed by experts is to equate, without qualification, the attributable fraction estimated from epidemiologic data to the probability of causation requested by courts and administrators. This error has become so pervasive that it has been incorporated into judicial precedents and legislation. This commentary provides a brief overview of the error and the context in which it arises."
S Greenland, Relation of probability of causation to relative risk and doubling dose: a methodologic error that has become a social problem, American Journal of Public Health, Vol 89, Issue 8 1166-1169.
Posted by: ahp | Aug 29, 2006 7:09:14 PM
I agree with Nordberg on the dire need in legal education (higher education generally) to better school students in the basics of logic (emphasis on basics, with a tilt toward vocabulary and taxonomy) and the varieties of logical inference. The longer I teach, the more I'm convinced it would be the best return on the tuition investment for many of them. But where do you shoehorn it into the curriculum, especially when it is (1) not teachable by most law professors (let's be honest), and (2) competing for voters--the faculty who vote on curriculum changes--who are deeply invested in their own little part of the traditional curriculum, like, for example, "torts" [?] This, of course, only punctuates the skeptical reception Nordberg's *bonuses* are likely to get as well. Epistemology? Most law professors (let alone law students) run screaming from the notion.
Posted by: Jamison Colburn | Aug 29, 2006 7:23:06 PM
AHP is right. Greenland and others have thoroughly punctured the notion that satisfaction of the "more likely than not" standard for causation equates to a relative risk exceeding 2.0. Yet the idea still has a mesmeric hold on many in the legal profession -- partly because they often have a hard time following the arguments rebutting it, even though those arguments should be relatively comprehensible, as biostatistical arguments go.
Colburn's right too. Legal writing courses spring to mind. It was something of a struggle to get legal writing into the curriculum in the first place. And once shoehorned in, the courses haven't done that much good, partly because law schools don't bring in well-trained writers to teach them.
But a man can dream.
Posted by: Peter Nordberg | Aug 30, 2006 6:46:46 AM