prior probability

Note: This post is dedicated to the memory of my colleague and kindred spirit Carlos “Carlitos” del Valle, who the world lost on Saturday, July 11, 2020. I am also dedicating this post to all the people who were lucky enough to count Carlitos as a friend.

Earlier this week, I described two of my previous collaborations with my friend, colleague, and mentor Carlitos del Valle, beginning with the time we unwittingly co-authored a Supreme Court amicus brief together in 2004 and proceeding with our first fateful exchange of ideas in person in 2007. Among other things, Carlitos rekindled my love affair with chess and reminded me of the singular importance of stare decisis. But my most significant memory of Carlitos began with a simple question that our mutual friend and colleague Daniel Nina posed during a colloquium in Mayaguez, P.R. in the spring of 2007, a question that continues to haunt me to this day.

As I mentioned in my previous post, this 2007 colloquium was the most memorable conference I have ever attended. It was devoted to the law and ethics of the fictional world depicted in the 1982 movie Blade Runner, and one of the many themes in this beautiful science fiction film noir is the law and ethics of violence. The dystopian world of Blade Runner is a physically violent domain. A band of advanced “off-colony” Nexus-6 replicants–flesh-and-blood automatons who are “more human than human”–resort to physical violence and threats of violence throughout the entire movie in a futile effort to extend their fleeting four-year lifespans, and the police have hired a special agent, Rick Deckard, to track down the illegal replicants. Deckard, a “blade runner” and quite possibly (spoiler alert!) a replicant himself, is lawfully authorized to capture and kill his fellow replicants.

With this background in mind, here is the poignant question that Professor Nina posed to us during the colloquium: when, if ever, is violence legally or even morally justified?  Given the subject of the colloquium, this was not a mere rhetorical question, and Nina did not just let it hang in the air. He posed his question directly to every attendee, and he demanded an answer. I have since devoted several of my scholarly papers to Nina’s question and to the problem of violence and its relation to law generally, beginning with my 2011 paper “Life, Love, and Law“–a paper, by the way, that I dedicated to Carlitos himself. Later, I wrote a chapter (“Buy or Bite?“) for the 2014 book Economics of the Undead, where I explain why vampires must resort to violence to obtain their supplies of blood. (My answer, in two words, is “legal failure,” i.e. our unwillingness to legalize the sale of blood!) More recently, my 2019 paper “Domestic Constitutional Violence” explores the legality of President Dwight Eisenhower’s reluctant use of military force to enforce school desegregation in Little Rock.

But the larger point I want to make here is that all of these papers were in some shape or form inspired by Carlitos’ principled reply to Professor Nina’s colloquium question and by his passionate defense of the principle of non-violence. While all of our colleagues (including myself!), taking our perverse consequentialist theories to their logical conclusion, were more than willing to countenance the use of violence under certain narrow conditions (e.g. to fight apartheid or topple a corrupt regime), Carlitos’s resolute commitment to non-violence remained unwavering throughout our often-heated discussions. To the point, Carlitos’s Kantian moral compass eventually won me over. He changed my mind, and I will never forget that …

Note: I lost my friend and colleague Carlos “Carlitos” del Valle on Saturday, July 11, 2020. All my posts this week (except this one) are in his honor. May he never be forgotten.

My second collaboration with Carlitos involved a series of informal chess matches in April of 2007. As I explained in a previous post, Carlitos invited me (as well as my friend and colleague Orlando I. Martinez-Garcia) to stay at his home in Mayagüez, P.R. for the duration of a week-long interdisciplinary colloquium devoted to the law and ethics of the fictional world depicted in the 1982 movie Blade Runner. (The conference was called “Blade Runner: Memory, Surveillance, and the Disposable Subject,” and to this day, it was the most memorable academic conference I have ever attended.) After the second day of my stay, when Carlitos finally emerged from his quarters (he was holed up the previous day working on the paper* he was scheduled to give at the colloquium), Carlitos must have noticed me admiring an old wooden chess table tucked away in the corner of his library. Without hesitation, he invited me to a game of chess, but I was reluctant to play.

At this point in my story, I have to digress to explain that I had not played chess since I was a little child. My childhood friend, Carlos Fernandez, had introduced me to the game of kings in grade school (Carlos F., if you are reading this by any chance, thank you!), but truth be told, I had not played chess since we parted ways after the sixth grade. So, as I was saying, I was reluctant to play. But Carlitos insisted, and his Cheshire grin and magnanimous spirit won the day. We ended up playing several hard-fought matches during the course of my stay, during which time he explained to me the algebraic notation used by chess players to record their moves, the subtleties of the opening, the concept of a strategic sacrifice, and other crucial chess tactics. More importantly, this informal collaboration, consisting of hours of playing and talking about chess, not only reintroduced me to the beautiful world of chess; it also inspired me to create the most beautiful paper I have ever written. Let me explain …

The organizer of the colloquium, the indefatigable Daniel Nina, had scheduled an open-air screening of the film Blade Runner on a Friday night. I will never forget this remarkable occasion, for it occurred in the patio of centuries-old colonial building of the Eugenio Maria de Hostos Law School, and it was the first time I had ever seen the film. Crucially, my hours of chess-play with Carlitos alerted me to and gave me a special appreciation of the last few moves in the pivotal game between the characters J.F. Sebastian and Dr. Eldon Tyrell. The next day, someone (the young Spaniard José Domingo Lázaro Álvarez, if I recall correctly) mentioned to me that the moves played by Sebastian and Tyrell in the movie were based on the “Immortal Game,” a now-famous chess game played by Adolf Anderssen and Lionel Kieseritzky on 21 June 1851 in London.

The rest was history. After the conference had ended, I wrote up a scholarly paper titled “El ajedrez in Blade Runner” (“Chess in Blade Runner”) in which I broke down the Immortal Game into three parts (opening, middle, and endgame) and carefully analyzed the sequence of play. Although others had done this before, my contribution was to establish a direct connection between chess tactics and legal strategy. Specifically, I showed how each individual move in the Immortal Game could be used to illustrate strategic aspects of law and ethics. To this day, it is the only scholarly paper I have ever written in my native tongue Spanish (aside from my honors thesis in college), and I consider it the most beautiful paper I have written to date. Looking back, Carlitos should be listed as a co-author of this paper, for it was inspired by my late-night discussions with Carlitos about chess. Gracias, Carlitos!

But my collaboration with Carlitos did not come to an end with chess. After our initial deep dive into the world of chess in April of 2007, we continued to discuss many other ideas over the years, and one of Carlitos’s ideas in particular would capture my imagination like never before. I will thus describe the third (and alas, last) phase of our two-decades-long collaboration in my next post.

* Carlitos’ paper was titled “Sobre ovejas electricas” (“On Electric Sheep”), an allusion to the title of the original Philip K. Dick novel on which the movie Blade Runner is loosely based. His paper appears in a beautiful collection of essays edited by Daniel Nina: “Blade Runner: memoria, vigilancia y el sujeto desechable” (Ediciones Callejón, 2008).

I just wasted an hour of my day attempting to navigate the Internal Revenue Service’s “free fillable forms” website in order to file an extension on my 2019 tax return. Suffice it to say I ended up just printing the damn form and sending it in via regular mail.

Note: This post is in honor of my dear friend and kindred spirit, Carlos “Carlitos” del Valle, who died on Saturday, July 11, 2020.

Although (as I explained in a previous post) I did not meet Carlitos in person until April of 2007, it turns out–unbeknownst to me at the time!–that we had collaborated together on a special legal project years before–back in the spring of 2004. The project was an amicus brief in support of a petition for certiorari before the United States Supreme Court. Although the Supreme Court eventually declined to hear our case (Vélez-Ortiz v. Rivera-Torres, 341 F.3d 86 (1st Cir. 2003), cert. denied, 541. U.S. 972 (2005)), I would like to take a moment to reflect on our collaboration.

First of all, how did I not know about Carlitos at this time? Truth be told, I was working on this brief pro bono on behalf of my mentor and friend, Pedro E. Ortiz-Alvarez, a legal giant who was the lead attorney for the Municipality of Sabana Grande, a small town in southwest Puerto Rico, and for Miguel Vélez-Ortiz, the mayor of this town at the time. (As an aside, one of the things this charming town is famous for is its “Pozo del Virgen,” pictured below.) Don Pedro asked me to write an amicus brief in this case, so I went to work. Inspired by the “Brandeis briefs” of yore, I dissected the qualified immunity standard from a “law and economics” perspective. (As as aside, I eventually converted my part of the brief into a traditional law review article titled “An Economic Analysis of the First Circuit’s Qualified Immunity Standard,” published in the Revista de Derecho Puertorriqueño, Vol. 45, No. 2 (2006), pp. 187-196. You can read my paper/brief here.)

Little did I know, however, that Carlitos was also working on part two our brief. In fact, I did not discover Carlitos’ Herculean contribution until Don Pedro sent me the final version of the brief! And lo and behold, it turns out we made an great legal duo. While part one of the brief (my part) was full of facts and figures and economic theories, part two (Carlitos’s part) was a doctrinal tour de force. Carlitos laid out all the relevant caselaw, distinguishing all the previously-decidedly cases that hurt our cause and drawing direct analogies to all the cases that helped us. More importantly, Carlitos unwittingly taught me a decisive lesson about the law. Although theory makes the academic world go around, legal theory needs to work in tandem with legal doctrine if you want to change the law. So, no matter how bad the existing state of affairs in any given area of law is (and the qualified immunity doctrine is a case in point!), judges take stare decisis seriously, and they will base their decisions on previous cases …

Carlitos would go onto to impact my scholarship in many other ways. I will describe those extra-powerful impacts soon. In the meantime, thank you, Carlitos. You will not be forgotten.

My friend of many years Gustavo Gelpi, the Chief Judge of the United States District Court for the District of Puerto Rico, knew Carlos del Valle for even more time than I did. Judge Gelpi wrote up a short eulogy in honor of Carlitos (once again, pictured below) and has graciously granted me permission to repost his eulogy here:

“Carlitos Del Valle, as all who knew him came to call him, was the quintessential idealist. He never saw ‘The Law’ as a mere profession or way to make a living. Rather, he saw it as an instrument that can bring great social change or reform; as a means to help the otherwise powerless or less fortunate; as a David to challenge the Governmental Goliath. To him ‘The Law’ was his very essence and purpose in life.

“I knew Carlitos for three decades. During that time there were periods when he represented the Commonwealth Government and there were others where he represented plaintiffs with civil rights claims against the Government. While indeed a zealous advocate regardless which side he was on, he always presented broader issues than those most other lawyers would raise.

“Back in 2008 I presided over an important case involving the Commonwealth’s noncompliance with the Medicaid statute. As counsel for the Government, Carlitos prevented his client from being found in contempt and ensured that all pending payments be made. Any other attorney would have settled for said result, but not him. Rather, he proceeded to go beyond that and literally indicted the United States Government for disparately treating United States citizens in Puerto Rico as it pertains to federal health benefits. He thus asked the Court to rule that the Insular Cases no longer applied to the Commonwealth. That was his typical self. He will certainly be missed.”

I will only add this to Judge Gelpi’s eulogy: More than any other man I knew, Carlitos truly embodied the spirit of Don Quijote–both for his idealism and willingness to tilt at powerful windmills.

In honor of my fellow bibliophile, dear friend, and scholarly colleague, Carlos del Valle (pictured below), here is a revised excerpt from one of my papers, which was published in 2015 in a special issue of the “Revista del Colegio de Abogados de Puerto Rico.” In this passage, I describe the first time I met Carlitos:

“Like the cluttered mailboxes of most academics, mine was flooded with scores of colloquia invitations and assorted ‘calls for papers.’ In those days, though, I had no travel budget to speak of, so most of these intriguing invitations, the equivalent of intellectual junk mail, would end up in the little black wastebasket tucked away under my old-school 1950s-era desk. But one academic invite stood out from the others.

“The invite described week-long conference devoted to “Blade Runner: Memory, Surveillance, and the Disposable Subject,” to be held the following spring (April 2007) at a small, independent law school … in the town of Mayagüez on the western end of the Island of Puerto Rico…. The organizer of the conference, Daniel Nina, not only accepted my proposal, he offered to provide me housing for the duration of the one-week conference. Daniel served as the indefatigable moderator and social host of the conference. His comments were always original, thoughtful, and politically incorrect when necessary, and his sharp wit as well as his mischievous sense of humor were a refreshing antidote to all those dull and boring academics who tend to take themselves and their work too seriously.

“During the conference, I ended up staying in the home of one of Daniel’s colleagues on the Mayagüez law school faculty, Carlitos de Valle. But who was this Carlitos de Valle? During the first night of my stay, I did not see much of my generous host, as he was holed up in his quarters on the upper level of his home, putting the finishing touches on his paper.

“Nevertheless, I immediately sensed that Carlitos was a kindred spirit, a man of ideas, a fellow intellectual agnostic, the moment I had walked through the door of his humble abode. The walls were lined with plain wood bookshelves, and the bookshelves were filled with books. There were books in the living room, books in the dining room, books in the bedrooms. Like Ernest Hemingway’s tropical Finca Vigía on the outskirts of Havana, Carlitos’s home was overflowing with well-worn books of all shapes and sizes. It was as if his home were one big Borgesian library.

“Amid this spiraling collection of books, I experienced yet another intellectual epiphany, perhaps my most important one. You see, Carlitos had collected and read many of the same books and authors that I had. His home was in many ways a larger version of my own small ramshackle Miramar apartment. But missing from Carlitos’s hallowed shelves were the trilogy of tomes of my own intellectual heroes–Thomas Schelling, Ronald Coase, and Richard Dawkins.

“That’s when it hit me all of a sudden! How many essential books were still missing from the bookshelves of my own meager Miramar library? What unread books were still waiting to be read? The books one has yet to read might just be as important as the books one has actually read.”

To sum up, Carlitos was not only a beloved law professor, he was also a scholar’s scholar, a lover of truth, and a true friend. In the next day or two, I will describe our first professional collaboration together: the time we co-authored a legal brief in support of a petition for certiorari before the United States Supreme Court.

Below is a recent photograph of my fellow bibliophile and chess aficcionado Carlos del Valle. Alas, I learned yesterday that my dear friend, colleague, and kindred spirit has suddenly passed away, and I am literally heart-broken over this unexpected news. I will say more about our friendship and Carlitos’s enormous impact on my own intellectual development in the next day or two. In the meantime, however, check out this letter in the form of a law review article, which I addressed to Carlitos many years ago.