"...but that just doesn't happen!..." Or: "Who is the 'Pakistani Dr' now?"--a fragment on the professional judgment of law professors
From correspondence with a friend & collaborator of preternatural intelligence and critical reflection; in response to her rejection of a "proof," presented in the form of a computer simulation, of the "impossibility" of using "rules of evidence" to conform adversary adjudication to the goal of rational truth seeking:
Extravagance. "Oh, but this just doesn't happen -- look at the cases!" Really? It's in the nature of the phenomenon not to be directly observable. If we are committed to rational truth seeking, we should be trying to figure out how to create observations of influences we wouldn't detect in the normal course but that in fact undermine our conclusions about what we are seeing. In any case, everything I have ever observed (when I summon the will to observe; like you, like everyone else, I am trained not to) tells me that this is exactly what effective trial advocacy is about. A trial is not a conveyor belt onto which pieces of evidence are added to be processed down the line by a Bayesian proof aggregator. It is a violent struggle from the start to impose a narrative template, to which the factfinder can be expected to mold every piece of proof. The forms of information processing that lawyers anticipate and jockey to grab hold of and point in the desired direction are hostile to accurate factfinding -- deeply hostile to it. The idea that "trials work just fine, especially with a little fine tuning w/ rules of evidence that anticipate cognitive biases" is a 2nd order form of flawed information processing that occurs in those officially certified to play the role of critical examiners of the system; that they end up saying exactly that, moreover, helps to insulate the flaws even more securely from the truly unbearable realization that we are making people's lives depend on an arbitrary game. Or in any case, this what I believe "at home"; "at work" I, too, believe the system is perfectly rational.