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

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?

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
Ron.a.dolin@radicalconcepts.com
@LegalNoise

Inconsistency Robustness and the Law: A Random Walk

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