prior probability

I will resume my epic, in-depth review of Nozick on Monday; in the meantime, all I want for Christmas is “Mariachi Show 2000” — check out their version of Jose Feliciano’s classic song “Feliz Navidad” — the best version I have ever heard!

To commemorate the holiday traditions of “Nochebuena” and Christmas I am posting this portrait of “The Virgin and Child with Saint Anne” by the Greek artist El Greco (b. 1541, d. 1614), who completed this work in the year 1600 in Toledo, Spain, where El Greco lived during the second half of his life. (This oil on canvas is now part of the art collection of the Wadsworth Atheneum Museum of Art in Hartford, Connecticut.) One of the things that I love about this work is that includes Saint Anne, the mother of the Virgin Mary and Jesus’ maternal grandmother.

Among other things, the holidays are a time when I finally get to catch up on my scholarly readings. Below, for example, is a listing of some of the sundry papers and books I am studying this season:

1. “Gametek: the math and science of gaming” by Geoffrey Engelstein.
2. “Where is my flying car?” by Josh Hall (cover pictured below).
3. “Games: agency as art” by C. Thi Nguyen.
4. “Do you have to reply to this paper?” by Saul Smilansky.
5. “Moral theory and anomaly” by Tom Sorrell.
6. “Measuring the accuracy of diagnostic systems” by John A. Swets.
7. “Extreme entrepreneurship” by Adam J. Sulkowski.

I still have one more piece of unfinished business before I resume my in-depth review of Robert Nozick’s magnum opus Anarchy, State, and Utopia, and that is “Grounding Legal Proof” — a paper on the “epistemology of evidence law” authored by Michael S. Pardo, a law professor at Georgetown. (Hat tip to my colleague and friend Larry Solum, who also teaches at Georgetown, for bringing Pardo’s thought-provoking paper to my attention last summer.) Specifically, how do we prove a fact in a legal case?

By way of example, consider the case of Muckler v. Buchl, 276 Minn. 490 (1967), available here, which Pardo mentions in the introduction to his paper. In that case, a 55-year-old woman fell down a flight of stairs at an apartment building and died four months later as a result of the injuries she suffered during the fall. Her husband brought a wrongful-death lawsuit against the landlord, and during the trial of this case, a witness testified that the stairs were dimly lit, but this witness did not actually see the plaintiff’s fall. Is there sufficient evidence for the jury to find, by a preponderance of evidence (the standard of proof in civil cases), that the woman’s fall was caused by the lack of lighting?

In summary, Professor Pardo provides a good overview of the two main academic schools of thought regarding how to approach questions like these — he describes probabilistic approaches to evidence as well as story-telling or “explanatory” accounts — but he is on more shaky ground (pun intended!) when he concludes that explanatory theories of evidence law are better than probabilistic ones. Why? Because Pardo’s basic “probability-versus-explanation” dichotomy presents us with a false choice! In reality, all evidence is probabilistic — even the definition of relevant evidence in the modern rules of evidence expresses the test of legal relevance in probabilistic terms — and as the great Frank Ramsey (pictured below), along with Bruno de Finetti, showed us almost 100 years ago, the truth-value of a disputed fact can always be expressed in terms of the fact-finder’s subjective “degree of belief” or credence. (FYI: I explain Ramsey’s ideas more fully here.)

To return to the tort case mentioned above, whether the evidence supports the conclusion that the woman’s fall was due to poor lighting is ultimately nothing more than a probabilistic guess based on the testimony presented in the case and one’s common sense. Or to borrow Professor Pardo’s own preferred jargon, whether an explanation of the evidence in a case is “plausible” or not — or whether that explanation is more believable than a competing story — depends on one’s subjective probability of that particular story being true. Why evidence scholars would choose to gratuitously reject this key insight is beyond me. Perhaps “probability-phobia” is to blame? Whatever the reason, if there is one area of law that stands to benefit the most from Ramsey and de Finetti’s insights it is the law of the evidence.

PS: I will return to the topic of evidence law and subjective probability after I complete my review of Nozick.

Via Marginal Revolution, the Amazing Tyler Cowen recently blogged about this new paper by Aleksandra Urmana, et al. To the point, the paper studies search results across five search engines — Google, Bing, DuckDuckGo, Yahoo!, and Yandex –in order to figure out which search engine censors conspiracy theories the most. (For his part, Cowen asks, Which search engine does the most to censor true conspiracy theories?) The Urmana, et al., paper concludes that, except for Google, the other four search engines “consistently displayed conspiracy-theory results and returned links to conspiracy-dedicated websites in their top results, although the share of such content varied across queries.” In other words, it is Google that does the most to censor conspiracy theories. What if, instead of trying to suppress or censor conspiracy theories, Google set up a special market to allow people bet on them instead? I propose just such a possibility here and here. I will say more about my “retrodiction market” idea in my next post.

In addition to my regular teaching duties, I worked on the following projects this year:

Published works

1. Adam Smith in Love in Econ Journal Watch.
2. Betting on Conspiracies in the Journal of Brief of Ideas.
3. Teaching Tiger King in the Saint Louis University Law Journal.

Accepted for publication/forthcoming

1. Breaking Bad Promises — my contribution to a new book on Better Call Saul and Philosophy.
2. Kurt Gödel and the Leibniz Cover-Up — accepted for publication in the Journal of Law & Public Policy.
3. Lockdowns as Takings — accepted for publication in the Idaho Critical Legal Studies Journal.

Ideas & works-in-progress

1. The Chegg Conspiracy — a proposed criminal complaint against Chegg, Inc.
2. Why Not Use Auctions to Allocate Launch Licenses? — a five-part series of blog posts on SpaceX and the FAA, which are available here, here, here, here, and here, and which I will write up into a formal white paper during the holiday break.
3. Guam, Puerto Rico, and the 13th Amendment — a 214-word abstract for the Constitutional Law Institute’s inaugural conference on the Reconstruction Amendments to be held at the University of Chicago Law School in April of 2022.

I also reviewed several books during the 2020-2021 academic year. Lastly, here are my year-in-review blog posts for 2020, 2019, and 2018.

Happy Holidays! Although I am all about Las Posadas, Nochebuena, and Puerto Rican parrandas this time of year, I have to confess that I also love Bruce Springsteen’s rock-and-roll homage to Santa. (Hat tip to Kara Jayne for the link to this vintage 1978 version of this classic Yuletide song.) On a different note, congratulations to the fall cohort of the Class of 2021 at my home institution, the University of Central Florida (UCF), who just received their college degrees, including my undergraduate teaching assistant Antonella Vitulli, who graduated summa cum laude.

The National Archives released another batch of JFK assassination records — 1,491 documents in all — earlier this week (December 15), but this batch of evidence still represents less than 10 percent of the more than 15,000 documents that the government is still hiding from us. For additional background, check out this 2015 blog post by Lauren Harper as well as this recent report by Bryan Bender and Claire Rafford. Here is an excerpt from the Bender & Rafford report:

“The disclosure of the 1,491 documents by the National Archives [on December 15, 2021] follows an executive order from President Joe Biden … that establishes a new process for releasing all remaining JFK-related archives, which were originally supposed to be made public in 2017. But Biden also delayed the full disclosure of thousands of additional files for at least another year — and potentially indefinitely if agencies can convince him or his successors that they need to be kept secret to protect national security.” (links in the original; emphasis added)

Note: My previous JFK posts are available here.

That is the title of my latest project. I will post a complete draft on SSRN soon, but in the meantime, here is the abstract:

My paper explores the first of the Reconstruction Amendments — the Thirteenth Amendment of 1865 — from the lens of America’s unincorporated territories. Specifically, I identify one possible unintended consequence of abolition. In summary, three decades after the Thirteenth Amendment was officially ratified, the United States gained possession of the Philippines, Puerto Rico, and Guam from Spain in the aftermath of the Cuban-Spanish-American War of 1898. Although the Philippines was officially recognized by the United States as an independent nation on July 4, 1946, the remaining members of this overseas colonial trio — Guam and Puerto Rico — are still “unincorporated” territories of the United States. Given that all persons residing in these territories have severely limited constitutional rights — Chamorros and puertorriqueños are to this day still not allowed to cast ballots in U.S. presidential elections, to name just one glaring example of this strange constitutional situation — my paper will explain why the continued existence of non-self-governing insular possessions like Guam and Puerto Rico violates the original public meaning of Section 1 of the Thirteenth Amendment, which prohibits the existence of “involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, … within the United States, or any place subject to their jurisdiction.”