Put your doubts to the angry-man test

Law, Probability and Risk

November 21, 2003

You've listened to the testimony, you've had the law read to you and interpreted it as it applies to this case. It now becomes your duty to try to separate the facts from the fancy. If there is a reasonable doubt - then you must bring in a verdict of 'not guilty'. If, however, there is no reasonable doubt - then you must, in good conscience, find the accused 'guilty'. The death sentence is mandatory in this case."

By a stroke of serendipity, I began reading the first three issues of this journal on a train to Edinburgh, where I witnessed a production of Twelve Angry Men . The words with which this review begins are the words of the judge in the play instructing the jury about to begin its deliberations. The play encapsulated vividly everything that the title of this journal suggests it ought to be about: the law and reasonable doubt, "probability", "risk", "reasoning" and "uncertainty". Implicit in the journal title, and explicit in the judge's instructions, is the point that the circumstances in which these words are invoked frequently lead to consequences of great significance. Lives and fortunes, happiness or misery all depend on the constructions placed on these words.

On the train back to London, I continued my reading. And when I got home I typed the key words of the title into Google. For "law" I got 61 million hits; for "risk" 29 million; for "probability" 5 million; and for "uncertainty" 3 million. Cyberspace is awash with concerns about the subject matter of this journal. And a superficial sampling of these millions of hits confirmed that each of these key words means different things to different people. There is clearly a place for a journal that will bring coherence to this important but inchoate subject. Is this it? My verdict is that it could be.

The journal's guidance to would-be contributors says that the readership includes people "interested in the evaluation, interpretation and presentation of evidence". I began applying the "angry-man" test to each of the articles. I became a lay juror, enjoined to make sense of the information presented to me - for those who have seen the film, I became the juror acted by Henry Fonda.

For those who have seen neither film nor play, allow me to explain. After hearing all the evidence and the judge's instructions, the jurors enter the jury room convinced, 11 to one, of the guilt of the accused. The sole dissenter (Fonda in the film) is not convinced of his innocence, he merely "doesn't know". What follows is a wonderful tutorial on the shades of meaning embodied in the term "reasonable doubt" - a tutorial that culminates in a unanimous verdict of not guilty. As an exploration of the difficulty of "reasoning under uncertainty", I found the play more incisive and instructive than most of the articles encountered in the first three issues of Law, Risk and Probability .

"Presentation" comes a poor third to the clever exploration of the technical problems of "evaluation" and "interpretation". Although the inaugural editorial stresses the multidisciplinarity of the journal - its target readership consists of academic lawyers, legislators, statisticians, probabilists and forensic scientists - in its guidelines for would-be authors it retreats from the aspiration of mutual intelligibility: "The editors accept that not all papers need be entirely intelligible to all readers." This is a pity. There are hundreds of journals in which lawyer can speak unto lawyer with as many Latinisms as they want and statistician can speak unto statistician with their hieroglyphics and arcane dialects. What would be really useful would be a journal that played the Fonda role - one that specialised in translating the evidence of the specialists into a language a legislator or juror might find intelligible.

From the first three issues, I read 21 articles and just nine passed the angry-man test (seven of which were book reviews). The first article in the first issue was not one of them. Written by academic lawyer D. H. Kaye, it proposes (I think) that the established view that plaintiffs in civil litigation must prove their cases by a "preponderance of evidence" should be modified to take account of the monetary value of the losses at stake. In making this argument, he takes a genteel swipe at R. J. Allen, whom he accuses of misrepresenting one of his arguments in a previous edition of his (Allen's) textbook. A year later, Allen is allowed to reply in the lead article. He notes that the present edition of his book "removes the offending reference of Professor Kaye's work". Here the debate becomes difficult to fathom. Allen appears unrepentant. Did Kaye threaten to sue? So far as I can follow the argument, Allen wins. It is always entertaining watching lawyers wrestling in mud, but applying my "angry-man" hat, I ask what does it matter?

Another complaint relates to the journal's treatment of "uncertainty". More than 80 years ago, Frank Knight, in Risk, Uncertainty and Profit , made a useful distinction between risk and uncertainty. "Risk" is where you know the odds, "uncertainty" is where you don't. None of the mathematical/statistical papers deals with true uncertainty. Without numbers, their methods are of no use, so they assume or invent numbers to turn uncertainty into risk.

I now turn to the good part of this curate's egg - the book reviews. The first issue presents four reviews of one book, Breaking the Deadlock by Richard Posner. The deadlock was the Bush-Gore presidential election in which the result was determined by the counting (or not) of hanging chads.

Here we have a momentous issue overhung by great uncertainty, and four impressively articulate people to address it. I imagine myself being on a jury (or perhaps a Supreme Court justice) addressed by these four advocates.

All had compelling arguments, and all acknowledged that they were dealing with the more difficult problem of uncertainty. Risk problems can be judged mechanically by invoking the "balance of probabilities", risk greater than 50 per cent, or "reasonable doubt" - some much higher, but arbitrary, probabilistic threshold. But uncertainty leaves judges and jurors to agonise - and in this case to wrestle with their political consciences.

What made these reviews compelling was that, at the time of writing, many of the same arguments were being rerun in California.

Should the editors decide to redirect the academic lawyers, statisticians, probabilists and forensic scientists to their specialist journals and focus on publishing articles of the quality of those found in the reviews of the Bush-Gore election - jargon-free articles that agonise articulately about uncertainties in a way accessible to an attentive jury - I might become a subscriber.

John Adams is professor of geography, University College London.

Law, Probability and Risk: A Journal of Reasoning under Uncertainty

Editor - Colin Aitken
Publisher - Oxford University Press, quarterly
Price - Institutions: £203.00 Individuals: £142.00
ISSN - 1470 8396 (print) 1470 840x (online)

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