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« Some reflections/admonitions on graphic reporting of data | Main | Is the perverse effect of AOT on political polarization confounded by a missing variable? Nah. »

Return of the chick sexers . . .

A repeat, but one that warrants repeating at this time of year . . . .

Okay, here’s a set of reflections that seem topical as another school year begins.

The reflections can be structured with reference to a question:

What’s the difference between a lawyer and a chick sexer?

It’s not easy, at first, to figure out what they have in common.  But once one does, the risk that one won’t see what distinguishes them is much bigger, in actuarial and consequential terms.

I tell people about the link between them all the time—and they chuckle.  But in fact, I spend hours and hours and hours per semester eviscerating comprehension of the critical distinction between them in people who are filled with immense intelligence and ambition, and who are destined to occupy positions of authority in our society.

That fucking scares me.

Anyway, the chick sexer is the honey badger of cognitive psychology: relentlessly fascinating, and adorable. But because cognitive psychology doesn’t have nearly as big a presence on Youtube as do amusing voice-overs of National Geographic wildlife videos, the chick sexer is a lot less famous. 

So likely you haven’t heard of him or her.

But in fact the chick sexer plays a vital role in the poultry industry. It’s his or her responsibility to separate the baby chicks, moments after birth, on the basis of gender.

The females are more valuable, at least from the point of view of the industry. They lay eggs.  They are also plumper and juicier, if one wants to eat them. Moreover, the stringy scrawny males, in addition to being not good for much, are ill-tempered & peck at the females, steal their food, & otherwise torment them.

So the poultry industry basically just gets rid of the males (or the vast majority of them; a few are kept on and lead a privileged existence) at soonest opportunity—minutes after birth.

The little newborn hatchlings come flying (not literally; chickens can’t fly at any age) down a roomful of conveyor belts, 100’s per minute. Each belt is manned (personed) by a chick sexer, who deftly plucks (as in grabs; no feathers at this point) each chick off the belt, quickly turns him/her over, and in a split second determines the creature’s gender, tossing the males over his or her shoulder into a “disposal bin” and gently setting the females back down to proceed on their way.

They do this unerringly—or almost unerringly (99.99% accuracy or whatever).

Which is astonishing. Because there’s no discernable difference, or at least one that anyone can confidently articulate, in the relevant anatomical portions of the minutes-old chicks.

You can ask the chick sexer how he or she can tell the difference.  Many will tell you some story about how a bead of sweat forms involuntarily on the male chick beak, or how he tries to distract you by asking for the time of day or for a cigarette, or how the female will hold one’s gaze for a moment longer or whatever. 

This is all bull/chickenshit. Or technically speaking, “confabulation.”

Indeed, the more self-aware and honest members of the profession just shrug their shoulders when asked what it is that they are looking for when they turn the newborn chicks upside down & splay their little legs.

But while we don’t know what exactly chicksexers are seeing, we do know how they come to possess their proficiency in distinguishing male from female chicks: by being trained by a chick-sexing grandmaster.

For hours a day, for weeks on end, the grandmaster drills the aspiring chick sexers with slides—“male,” “female,” “male,” “male,” “female,” “male,” “female,” “female”—until they finally acquire the same power of discernment as the grandmaster, who likewise is unable to give a genuine account of what that skill consists in.

This is a true story (essentially).

But the perceptive feat that the chick sexer is performing isn’t particularly exotic.  In fact, it is ubiquitous.

What the chick sexer does to discern the gender of chicks is an instance of pattern recognition.

Pattern recognition is a cognitive operation in which we classify a phenomenon by rapidly appraising it in comparison to large stock of prototypes acquired by experience.

The classification isn’t made via conscious deduction from a set of necessary and sufficient conditions but rather tacitly, via a form of perception that is calibrated to detect whether the object possesses a sufficient number of the prototypical attributes—as determined by a gestalt, “critical mass” intuition—to count as an instance of it.

All manner of social competence—from recognizing faces to reading others emotions—depend on pattern recognition.

But so do many do specialized ones. What distinguishes a chess grandmaster from a modestly skilled amature player isn’t her capacity to conjure and evaluate a longer sequence of potential moves but rather her ability to recognize favorable board positions based on their affinity to a large stock of ones she has determined by experience to be advantageous.

Professional judgment, too, depends on pattern recognition.

For sure, being a good physician requires the capacity and willingness to engage in conscious and unbiased weighing of evidence diagnostic of medical conditions. But that’s not sufficient; unless the doctor includes only genuinely plausible illnesses in her set of maladies worthy of such investigation, the likelihood that she will either fail to test for the correct, one fail to identify it soon enough to intervene effective, will be too low.

Expert forensic auditors must master more than the technical details of accounting; they must acquire a properly calibrated capacity to recognize the pattern of financial irregularity that helps them to extract evidence of the same from mountains of business records.

The sort of professional judgment one needs to be a competent lawyer depends on a properly calibrated capacity for pattern recognition, too.

Indeed, this was the key insight of Karl Llewellyn.  The most brilliant member of the Legal Realist school, Llewellyn observed that legal reasoning couldn’t plausibly be reduced to deductive application of legal doctrines. Only rarely were outcomes uniquely determined by the relevant set of formal legal materials (statutes, precedents, legal maxims, and the like).

Nevertheless, judges and lawyers, he noted, rarely disagree on how particular cases should be resolved. How this could be fascinated him!

The solution he proposed was professional “situation sense”: a perceptive faculty, acquired by education and experience, that enabled lawyers to reliably appraise specific cases with reference to a stock of prototypical “situation types,” the proper resolution of which that was governed by shared apprehensions of “correctness” instilled by the same means.

This feature of Llewellyn’s thought—the central feature of it—is weirdly overlooked by many scholars who characterize themselves as “realists” or New Realists,” and who think that Llewellyn’s point was that because there’s no “determinacy” in “law,” judges must be deciding on the basis of “political” sensibilities of the conventional “left-right” sort, generating differences in outcome across judges of varying ideologies. 

It’s really hard to get Llewellyn more wrong than that!

Again, his project was to identify how there could be pervasive agreement among lawyers and judges on what the law is despite its logical indeterminacy. His answer was that members of the legal profession, despite heterogeneity in their “ideologies” politically understood, shared a form of professionalized perception—“situation sense”—that by and large generated convergence on appropriate outcomes the coherence of which would befuddle non-lawyers.

Llewellyn denied, too, that the content of situation sense admitted of full specification or articulation. The arguments that lawyers made and the justifications that judges give for their decisions, he suggested, were post hoc rationalizations.  

Does that mean that for Lewellyn, legal argument is purely confabulatory? There are places where he seems to advance that claim.

But the much more intriguing and I think ultimately true explanation he gives for the practice of reason-giving in lawyerly argument (or just for lawyerly argument) is its power to summon and focus “situation sense”: when effective, argument evokes both apprehension of the governing “situation” and motivation to reach a situation-appropriate conclusion.

Okay. Now what is analogous between lawyering and chick-sexing should be readily apparent.

The capacity of the lawyer (including the one who is a judge) to discern “correct” outcomes as she grasps and manipulates indeterminate legal materials is the professional equivalent of—and involves the exercise of the same cognitive operation as—the chicksexer’s power to apprehend the gender of the day-old chick from inspection of its fuzzy, formless genetalia.

In addition, the lawyer acquires her distinctive pattern-recognition capacity in the same way the chick sexer acquires his: through professional acculturation.

What I do as a trainer of lawyers is analogous to what the chicksexer grandmaster does.  “Proximate causation,” “unlawful restraint of trade,” “character propensity proof/permissible purpose,” “collateral (not penal!) law”—“male,” “male,” “female,” “male”: I bombard my students with a succession of slides that feature the situation types that stock the lawyer’s inventory, and inculcate in students the motivation to conform the results in particular cases to what those who practice law recognize—see, feel—to be the correct outcome.

It works. I see it happen all the time. 

It’s quite amusing. We admit students to law school in large part because of their demonstrated proficiency in solving the sorts of logic puzzles featured on the LSAT. Then we torment them, Alice-in-Wonderland fashion, by presenting to them as “paradigmatic” instances of legal reasoning outcomes that clearly can’t be accounted for by the contorted simulacra of syllogistic reasoning that judges offer to explain them. 

They stare uncomprehendingly at written opinions in which a structural ambiguity is resolved one way in one statute and the opposite way in another--by judges who purport to be following the “plain meaning” rule.

They throw their hands up in frustration when judges insist that their conclusions are logically dictated by patently question-begging standards  (“when the result was a reasonably foreseeable consequence of the defendant’s action. . .  “) that can be applied only on the basis of some unspecified, and apparently not even consciously discerned, extra-doctrinal determination of the appropriate level of generality at which to describe the relevant facts.

But the students do learn—that the life of the law is not “logic” (to paraphrase, Holmes, a proto-realist) but “experience,” or better, perception founded on the “experience” of becoming a lawyer, replete with all the sensibilities that being that sort of professional entails.

The learning is akin to the socialization process that the students all experienced as they negotiated the path from morally and emotionally incompetent child to competent adult. Those of us who are already socially competent model the right reactions for them in our own reactions to the materials—and in our reactions to the halting and imperfect attempts of the students to reproduce it on their own. 

“What,” I ask in mocking surprise, “you don’t get why these two cases reached different results in applying the ‘reasonable foreseeability’ standard of proximate causation?” 

Seriously, you don’t see why, for an arsonist to be held liable for causing the death of firefighters, it's enough to show that he could ‘reasonably foresee’ 'death by fire,' whether or not he could foresee  ‘death by being trapped by fires travelling the particular one of 5x10^9 different paths the flames might have spread through a burning building'?! But why ‘death by explosion triggered by a spark emitted from a liquid nitrate stamping machine when knocked off its housing by a worker who passed out from an insulin shock’—and not simply 'death by explosion'—is what must be "foreseeable" to a manufacturer (one warned of explosion risk by a safety inspector) to be convicted for causing the death of employees killed when the manufacturer’s plant blew up? 

"Anybody care to tell Ms. Smith what the difference is,” I ask in exasperation.

Or “Really,” I ask in a calculated (or worse, in a wholly spontaneous, natural) display of astonishment,

you don’t see why somoene's ignorance of what's on the ‘controlled substance’ list doesn’t furnish a "mistake of law" defense (in this case, to a prostitute who hid her amphetamines in tin foil wrap tucked in her underwear--is that where you keep your cold medicine or ibuprofen! Ha ha ha ha ha!!), but why someone's ignorance of the types of  "mortgage portfolio swaps" that count as loss-generating "realization events" under IRS regs (the sort of tax-avoidance contrivance many of you will be paid handsomely by corporate law form clients to do) does furnish one? Or why ignorance of the criminal prohibition on "financial structuring" (the sort of strategem a normal person might resort to to hide assets from his spouse during a divorce proceeding) furnishes a defense as well?!

Here Mr. Jones: take my cellphone & call your mother to tell her there’s serious doubt about your becoming a lawyer. . . .

This is what I see, experience, do.  I see my students not so much “learning to think” like lawyers but just becoming them, and thus naturally seeing what lawyers see.

But of course I know (not as a lawyer, but as a thinking person) that I should trust how things look and feel to me only if corroborated by the sort of disciplined observation, reliable measurement, and valid causal inference distinctive of empirical investigation.

So, working with collaborators, I design a study to show that lawyers and judges are legal realists—not in the comic-book “politicians in robes” sense that some contemporary commentators have in mind but in the subtle, psychological one that Llewellyn actually espoused.

Examining a pair of genuinely ambiguous statutes, members of the public predictably conform their interpretation of them to outcomes that gratify their partisan cultural or political outlooks, polarizing in patterns the nature of which are dutifully obedient to experimental manipulation of factors extraneous to law but very relevant indeed to how people with those outlooks think about virtue and vice.

But not lawyers and judges: they converge on interpretations of these statutes, regardless of their own cultural outlooks and regardless of experimental manipulations that vary which outcome gratifies those outlooks.

They do that not because, they, unlike members of the public, have acquired some hyper-rational information-processing capacity that blocks out the impact of “motivated reasoning”: the lawyers and judges are just as divided as members of the public, on the basis of the same sort of selective crediting and discrediting of evidence, on issues like climate change, and legalization of marijuana and prostitution.

Rather the lawyers and judges converge because they have something else that members of the public don’t: Llewellyn’s situation sense—a professionalized form of perception, acquired through training and experience, that reliably fixes their attention on the features of the “situation” pertinent to its proper legal resolution and blocks out the distracting allure of features of it that might be pertinent to how a non-lawyer—i.e., a normal person, with one or another kind of “sense” reliably tuned to enabling them to be a good member of a cultural group on which their status depends . . . .

So, that’s what lawyers and chick sexers have in common: pattern recognition, situation sense, appropriately calibrated to doing what they do—or in a word professional judgment.

But now, can you see what the chick sexer and the lawyer don’t have in common?

Perhaps you don’t; because even in the course of this account, I feel myself having become an agent of the intoxicating, reason-bypassing process that imparting “situation sense” entails.

But you might well see it—b/c here all I’ve done is give you an account of what I do as opposed to actually doing it to you.

We know something important about the chick sexer’s judgment in addition to knowing that it is an instance of pattern recognition: namely, that it works.

The chick sexer has a mission in relation to a process aimed at achieving a particular end.  That end supplies a normative standard of correctness that we can use not only to test whether chick sexers, individually and collectively, agree in their classifications but also on whether they are classifying correctly.

Obviously, we’ll have to wait a bit, but if we collect rather than throw half of them a way, we can simply observe what gender the baby chicks classified by the sexer as “male” and “female” grow up to be.

If we do that test, we’ll find out that the chick sexers are indeed doing a good job.

We don’t have that with lawyers’ or judges’ situation sense.  We just don’t.

We know they see the same thing; that they are, in the astonishing way that fascinated Llewellyn, converging in their apprehension of appropriate outcomes across cases that “lay persons” lack the power to classify correctly.

But we aren’t in a position to test whether they are seeing the right thing.

What is the goal of the process the lawyers and judges are involved in?  Do we even agree on that?

I think we do: assuring the just and fair application of law.

That’s a much more general standard, though, than “classifying the gender of chicks.”  There are alternative understandings of “just” and “fair” here.

Actually, though, this is still not the point at which I’m troubled.  Although for sure I think there is heterogeneity in our conceptions of the “goals” that the law aims at, I think they are all conceptions of a liberal political concept of “just” and “fair,” one that insists that the state assume a stance of neutrality with respect to the diverse understandings of the good life that freely reasoning individuals (or more accurately groups of individuals) will inevitably form.

But assuming that this concept, despite its plurality of conceptions, has normative purchase with respect to laws and applications of the same (I believe that; you might not, and that’s reasonable), we certainly don’t have a process akin to the one we use for chick sexers to determine whether lawyers and judges’ situation sense is genuinely calibrated to achieving it.

Or if anyone does have such a process, we certainly aren’t using it in the production of legal professionals.

To put it in terms used to appraise scientific methods, we know the professional judgment of the chick sexer is not only reliable—consistently attuned to whatever it is that appropriately trained members of their craft are unconsciously discerning—but also valid: that is, we know that the thing the chick sexers are seeing (or measuring, if we want to think of them as measuring instruments of a special kind) is the thing we want to ascertain (or measure), viz., the gender of the chicks.

In the production of lawyers, we have reliability only, without validity—or at least without validation.  We do successfully (remarkably!) train lawyers to make out the same patterns when they focus their gaze at the “mystifying cloud of words” that Cardozo identified the law as comprising. But we do nothing to assure that what they are discerning is the form of justice that the law is held forth as embodying.

Observers fret—and scholars using empirical methods of questionable reliability and validity purport to demonstrate—that judges are mere “politicians in robes,” whose decisions reflect the happenstance of their partisan predilections.

That anxiety that judges will disagree based on their “ideologies” bothers me not a bit.

What does bother me—more than just a bit—is the prospect that the men and women I’m training to be lawyers and judges will, despite the diversity of their political and moral sensibilities, converge on outcomes that defy the basic liberal principles that we expect to animate our institutions.

The only thing that I can hope will stop that from happening is for me to tell them that this is how it works.  Because if it troubles me, I have every reason to think that they, as reflective decent people committed to respecting the freedom & reason of others, will find some of this troubling too.

Not so troubling that they can’t become good lawyers. 

But maybe troubling enough that they won't stop being reflective moral people in their careers as lawyers; troubling enough so that if they find themselves in a position to do so, they will enrich the stock of virtuous-lawyer prototypes that populate our situation sense  by doing something  that they, as reflective, moral people—“conservative” or “liberal”—recognize is essential to reconciling being a “good lawyer” with being a member of a profession essential to the good of a liberal democratic regime.

That can happen, too.

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Reader Comments (18)

Interesting piece. Thanks. Two comments:

For sure, being a good physician requires the capacity and willingness to engage in conscious and unbiased weighing of evidence diagnostic of medical conditions. But that’s not sufficient; unless the doctor includes only genuinely plausible illnesses in her set of maladies worthy of such investigation, the likelihood that she will either fail to test for the correct, one fail to identify it soon enough to intervene effective, will be too low

Perhaps paradoxically, it is interesting to note that one of the most important attributes that makes a doctor a good diagnostician is the ability to not fall into a trap of having their analysis of available data be constrained by their patterns of experiences with previously identified cause-and-effect, to think "outside the box." At some point, IMO, that reflects a tension with the notion of limiting conjecture to "plausible illnesses," if not in a literal sense, but perhaps in a conceptual sense. It's a balancing act, IMO. And based on my experiences in a variety of areas, I think there is a similar art of balance in a variety of fields. I consider that balance to be akin to the practice of what, IMO, makes for the best teachers and the best carpenters - a dedication to the constant search of a line to walk between the adjacent worlds of theory and practice (real world experience).

Observers fret—and scholars using empirical methods of questionable reliability and validity purport to demonstrate—that judges are mere “politicians in robes,” whose decisions reflect the happenstance of their partisan predilections.

Reflecting on the events of the day (i.e., confirmation hearings), my own "fret" is that while perhaps in the vast majority of cases judges can use a combination of situational wisdom and learned expertise to converge on a basically wise body of law, the special circumstances of special cases (i.e., a subset of the subset of the cases that wind up before SCOTUS), ideologically rooted motivated reasoning has an outsized effect.

IMO, the confirmation hearings, while an impressive window into the sophistication of legal scholarship, is also a rather depressing charade that only serves to reinforce the iron hand of ideological partisanship.

September 6, 2018 | Unregistered CommenterJoshua

Two of the hens in my flock of twelve definitively *can* fly. Not hop onto a gatepost, glide, etc, but take off from a standing start, fly 30 metres up into a tree, and fly back again.

September 9, 2018 | Unregistered CommenterMichael Souris

The text must come first. The text must stand and must be interpreted in the plainest way possible. An external observer ought to be able to go up to the book and point to the passages and say, "But this is what the laws are its definitions, and here its guarantees, and I claim are its exceptions, and their conditions, and I claim having satisfied them..."

Anything else means that the law is not what is written, but that the courts are rigged shows, and the government is not one of codified laws, but is in reality a tyranny of tradition and wishful thinking dressed up as lawyerliness. I am always an eager student of law, but I have grown to hate American common law because of its propensities to Holmesian self-justification. It works correctly enough a lot of the time, but the system itself is quite fundamentally unjust. In my view, both English law, which has no constitution and essentially admits to being a great amalgam of tradition, and French law, which has a constitution and has weak judicial precedent, are better than the American system, which combines constitutionalism with stare decisis to ill effect.

September 10, 2018 | Unregistered Commenterdypoon

@Michael: Perhaps your "hens" are really some other kind of bird. Chick-sexing requires a certain technical expertise, after all.

September 10, 2018 | Registered CommenterDan Kahan

@Dypoon-- the only text that counts is the benign or malignant meaning of one's behavior against the background of social norms.


1. Charles L. Black, Jr., Law as an Art, in Charles L. Black, Jr., The Humane Imagination 33 (Ox Bow Press, 1986):

<<"Some lawyers talk as though they thought maximum clarity always desirable even though they wouldn’t have to probe very deeply to find that fraud, and fiduciary obligation, and undue influence, have been carefully isolated from exact definition, because such exact definition would simply point out safe ways of immunity, and, to the birds of prey, make the law ‘their perch and not their terror.’>>

2. Nash v. United States, 229 U.S. 373, 376 (1913) (Holmes, J.):

<<[T]the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. “An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attend-ing it” by common experience in the circumstances known to the actor. “The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.” Com. v. Pierce, 138 Mass. 165. “The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.”>>

September 10, 2018 | Registered CommenterDan Kahan

Another difference between chick sexing and the law: change. The external anatomy of chicks hasn't changed much (if at all) since chick sexing became a thing. Laws and norms change.

Consider a few: eye witness testimony, admissions of guilt to police, childhood memories, certain types of forensic evidence (fingerprints, shell casings, etc.) - all parts of the justice system that have been found fairly recently to be (excuse the pun) suspect, but which previously were greatly respected. If professional lawyer sensibilities about cases are based on pattern matching, how well can they accommodate changes in attitudes about these? Recently-educated lawyers perhaps are educated to pattern match with the new norms (at least if their law professors can accommodate the changes themselves). But that means we have generational change at best. And, I suspect that judges skew considerably older than the average lawyer.

Perhaps if you really want an appropriately matched sexing test, start giving chicken sexers penguin chicks with no additional training.

Another difference is the requirement of public trust. Although, this is perhaps where lawyer justification confabulation, even though providing only fictions, helps. If the general public were to recognize that the legal system is not based on code, but instead based on elite socialized sensibilities, how would they react? Perhaps Dypoon's complaint is indicative.

Another difference - certain potential litigants, due to their wealth, can pre-test the presentation of their case against a collection of trusted laywers on their payroll to determine how best to exploit imperfections in the common pattern matching algorithm. This strategy is obviously unavailable to less wealthy potential litigants. So, "their perch and not their terror" still applies, only now the perch is wealth-based instead of knowledge-based.

BTW, these are all variations on issues (accommodating change, public trust, exploitation hacks) that are arising now with AI pattern matching.

September 10, 2018 | Unregistered CommenterJonathan

The chick sexers pattern-recognition skills converge upon outcome, which as you note is audited to keep it near to reality. The pattern-recognition skills of lawyers and judges are not focused upon outcomes, but instead converge upon optimised process execution. And they are also audited, constantly. So if the process is executed flawlessly, to the current standard of the law (which of course, evolves longer term), the process will be replicable with the same result albeit executed by different servants of the law. Or at least that is the ideal, the same as in science. And while the standards of evidence weighing and process cannot typically for practical reasons be as high as in a science lab, the appeals court does, whenever there is suspicion of process flaw, ‘re-run’ trials to check for replicability, the same as a different lab re-running a science experiment; albeit to some extent virtually, i.e. relying on previous chunks such as cross examinations by re-analysis, rather than literally re-running them. Although of course there are literal re-runs / re-trials sometimes too. And in turn, the appeals court is also audited by higher appeals. Where replication is largely not achieved, corrections are applied, not only for the judgement of the particular case, but often recommendation for process improvement because something systemic was exposed, meaning the same flaw might happen again without a fix to remove that possibility. So the audit process is iterative over many cases, and though it may fail to catch many individual case issues (a big majority are never appealed anyhow, I presume), the audit process is nevertheless a valid means of objectively checking / improving the execution of the system, which itself relies on the pattern recognition skills of its many servants. Another big difference between check-sexers and servants of the law is that the latter are part of a system which depends upon the communal working of the whole, and indeed the wider society in which the whole lives. So many different types of skills interlock and co-evolve within a system that also spans many generations, all of whom record everything for future reference and to serve the basis of improvement, so this system is theoretically at least far less fragile to a few individuals straying off the mark, even ‘masters’ straying off the mark re best process, should there for whatever reason be a sparsity of audit for a while.

However, law contains a dilemma at its heart. If, like ideal science, it was executed flawlessly every time, to a rule set that was clinically objective, maybe you would be happy that the principles you want to preserve would indeed get preserved, and indeed per above, individual pattern-recognition skills plus audits of same would be focussed on keeping it that way. But unlike science, there is not actually an objective rule-set upon which to base a properly objective execution in the first place. All law rests fundamentally on moral pillars, and morals come from the dominant culture. At a much deeper level than day to day murders and burglaries or whatever, the law acts as a bastion to prevent cultural fads, such as Nazism or Communism or the Religion du jour or whatever, sweeping through society and wholesale altering societies rules and relationships. Or at least to slow any such cultural wave down until ‘normailty’ is perhaps restored before all is lost. But should the law fail in this respect, it will then become a bastion to protect the new culture. And while cultural diversity within servants of the law helps in this endeavour of protection against invasion, the truth is also that the law as it currently stands (lets say you are largely happy with it in your country as of this moment) depends not on flawless execution but on a convergence, a consensus, regarding the current cultural principles of your country that have been fixed into that law long term. This is because the interaction of individuals even in the most ‘advanced’ societies, as your own work shows, is not based mainly upon a communal reasoning ability that can constantly / dynamically work from 1st principles to realise that the liberal values you like are the current best scenario, even if future history shows this to be absolutely true . These principles are to a large extent *culturally* supported. Hence the dilemma; you reasonably don’t want convergence on an intruding / rising culture that pushes the law in some undesirable direction (all rising cultures push against and modify the law), but you need cultural convergence on the current cultural baseline, in order to give even a flawless execution of process the bedrock it needs to maintain not just replicable outcomes, but replicable outcomes deemed acceptable in your culture. Pattern recognition is hence not your problem, at least while the law still contains the means to audit this skill, such as appeals and retrials and appeals of appeals. If the law ever converges upon something undesirably different to the liberal principles you believe it currently supports, that’ll be because of cultural invasion (new culture or morphed older culture), and the cultural cognition that this invokes not just in servants of the law, but in large numbers of individuals within society generally.

September 11, 2018 | Unregistered CommenterAndy West

This is the start of the fall semester. I picture Dan in front of classrooms of law students justifying the expense, and usually debt, that the students have assumed in order to partake in his instruction. This can be justified by the fact that yes, indeed, the students have enlisted in a very powerful tribe. One that is very likely to get them further in legal and financial life than if they had applied the same amount of intelligence and effort to a law school education at some top notch but public, not Ivy League, law school. But what are the central values, the commonality of vision that such an education and tribal membership conveys? Is there one?

Is there a centrality of vision of justice and goals for liberty, justice and “a good liberal democratic regime”? Take for example two currently very prominent Yalies: Sonya Sotomayor and Brett Kavanaugh. Does the Yale Law tribe have common values? It does enmesh graduates into a pattern, I'm a Yalie, I think highly of myself, these new Yalies must be worthy too. So hire/appoint them, not somebody else. This does successfully sort for intelligence, but also privilege. And it leaves many other intelligent law graduates by the wayside.

This usually works reasonably well, as long as drastic changes to the existing power structure are to be avoided. As Andy West notes, “justice” rests on the moral pillars of the dominant culture. Pattern recognition is a central human trait, one that has strong cultural underpinnings. In application of the law, there has been, through the decades what is seen by some, Martin Luther King, for example, an optimistic vision that “The arc of the moral universe is long, but it bends towards justice”. This is only of marginal use to any given individual legal defendant. It does not work well if the focus is on the outliers, such as the atypical graduates, Sonya Sotomayor and Brett Kavanaugh.

Regarding pattern recognition and chicken sexing: The main thing about the effectiveness of chicken sexing, is that it works reasonably well within the cost parameters of the chicken industry. The thing that matters most is that egg laying females are correctly identified, so as not to waste feed on near worthless non egg layers. As an example of ignoring minorities, intersexed chickens are apparently successfully identified as not female: Technological advances like DNA anaylysis may change things. It might help identity an elite class of prolific egg laying females, and maybe could identify Michael Souris' flying chickens and shuttle them off to be feedstock to Buffalo Wild Wings.

The manner in which humans apply pattern recognition is defined by culture. Ancient peoples may have navigated by the stars and ancient footpaths through watersheds or along shorelines. More modern cultures might use a grid system with street addresses. A globe with a compass for determining north and south. But what if AI eliminates human recognizable patterns in favor of a randomized data point identification system such as that of What Three Words? How does that affect how people think about the world?

The dilemma we face today, partially exemplified by the gulf in vision between Sonya Sotomayor and Brett Kavanaugh, is one of navigating changing times. Of course, from the beginning, the US Constitution did not provide liberty and justice for all. But in most times, there has been a sense of improvement, being part of bending that arc towards justice. This is, in fact, what makes law school seem appealing to idealists, not just to future corporate hacks.

Globalization is not new, the slavery/cotton, sweatshop/textile, trade goods economy of the time of the American Revolution, and the establishment of the US Constitution, was highly global. But the advent of the fossil fuel driven Industrial Revolution brought the promise of improvements to all. One in which, to those in power in the US at least, it seemed as if ideals of democracy would grow and spread. What does the future portend? Will we manage to navigate this repeat of an oligarchical, Robber Baron era and come out the other side with a redefined, environmentally sustainable and just society? Or will the application of AI leave more of us under feudal domination, like China's unfortunate Uighur Moslem minority, in Xinjiang province?

There are more important things to discuss than the supposed yes/no of chicken sexing.

September 12, 2018 | Unregistered CommenterGaythia Weis

Not about sexing, but still quite sexy:

Overall, the traders thought that studies in the market would replicate 63 percent of the time—a figure that was uncannily close to the actual 62-percent success rate.

The traders’ instincts were also unfailingly sound when it came to individual studies.

I would not have bet that prediction markets would do that well at outing non-reproducible studies. Perhaps this result itself won't be reproducible...

September 12, 2018 | Unregistered CommenterJonathan

The only text that counts is the benign or malignant meaning of one's behavior against the background of social norms.

I'm a bit confused, Dan, because this is text on the internet; do you consider this reality a good thing, an unavoidable thing, or a unfortunate thing?

I think it would be downright horrible if what you say is true. Isn't that the whole reason why laws have text in the first place? If not, why not just dispense with the whole charade and move straight to kangaroo criminal trials?

September 14, 2018 | Unregistered Commenterdypoon

@Dypoon-- Or a "chick sex trial . . . . ."

September 15, 2018 | Registered CommenterDan Kahan

"If not, why not just dispense with the whole charade and move straight to kangaroo criminal trials?"

A quote that has been circulating the interwebs recently on a slightly different topic might address this: "The purpose of an election is not just to select a winner, but to convince the loser, and their supporters, that they lost." Reword this a bit as: The purpose of the codified law isn't to demarcate justice, but to convince the losers in court, and their supporters, that they lost.

I do find it interesting that Dan spends some of his time fighting against tribally-infused opaque conventions that override evidential truth-conducivity, and some other of his time inculcating similarly opaque conventions. And, some other time searching for justification of the latter, perhaps to convince those of us clinging to a more principled ideal that we've lost.

Oh, modernity! Come for the enlightenment, stay for the cynicism.

September 15, 2018 | Unregistered CommenterJonathan

"I think it would be downright horrible if what you say is true. Isn't that the whole reason why laws have text in the first place? If not, why not just dispense with the whole charade and move straight to kangaroo criminal trials?"

Law is codified morality, in the same way that grammar books and dictionaries codify language. The problem is, morality, like language, is not uniform. There are different dialects, jargons, accents, creoles, and vernaculars. Both morality and language are imprinted when young, by observing the society you grow up in and doing pattern recognition. As they are adaptive social instincts - designed to enable humans to live in close proximity, cooperating without stepping on one another's toes - they converge very roughly on a common solution. People negotiate their language and their morality with everybody they come into contact with. It's a compromise between self-interest, conformity to the traditional norm, adapting to new circumstances, and simplifying the structure through the use/recognition of general rules and patterns. If a new verb is invented, the endings come for free by generalisation from the existing structure. But there are also irregular verbs, that follow no such structure. It is a peculiar mixture of order and chaos.

The problem with kangaroo courts - the reason we fear them - is that different sub-cultures speak different languages of morality, and we fear that we may fall into the hands of a court that speaks a different moral dialect. We said "could've" because we were raised to think that correct, but are tried by people who thing "could of" is the correct construction. When we don't know what rules an unknown future court is going to apply, there is a moral uncertainty and ambiguity about what rules we are to follow. There are hundreds of different dialects and jargons. We cannot know them all, and we cannot comply with them all, and we cannot predict which standard we might eventually be tried by, and in any case, most of them are not the one we intuitively believe to be the one true meaning of "right". The one we were raised with.

So the purpose of law is the same as the purpose of style guides and grammar manuals and dictionaries. Grammar books can only give a stilted shadow of the richness of a living language. Language is immensely complicated - the full grammar of the English language as disentangled by linguists takes more than a thousand pages to explicate, and it is a constantly moving target. Law, likewise. We write it down to settle arguments - how does the dictionary define this disputed word? Which of the many different interpretations are we expected to use?

But what Dan is saying is that the dictionaries are only telling part of the story. Language lawyers are also native speakers of the language, and although they probably could not precisely articulate the true rules, they know them intuitively - they had absorbed them before they were three years old. Moral lawyers are similarly aware of the moral consensus in their society - which is partly society at large, and partly the lawyerly sub-culture of precedent, and partly the legislative context. The dictionaries are often ambiguous, and sometimes plain wrong. But as a native speaker, you can generally figure out "what they really mean". And yes, there is definitely an odour of kangaroo about that - but they go to lengths to try to make it sufficiently consistent and close to the collective morality to satisfy most litigants.

It turns out, according to the dictionaries, that "I could of done it" is wrong? Fair enough. That's close enough that I can live with it. I'm puzzled that the verb "to have" indicates posession, and I'm not clear on what is posessed in this case, but we'll accept the dictionary's judgement and not try to deconstruct the rules behind it. But "Samuel Johnson's dictionary was pregnant" is clearly a nonsense, even though the word "pregant" is listed in the dictionary as meaning "full of meaning, significant, or suggestive" (as in "a pregnant pause" or "a pregant silence"). No - our intuitive understanding of language recognises that the dictionary isn't giving the full rules here. And so it is with law.

You don't want your essay to be judged by people with very different dialects to you, but you also don't want to be judged by a too-literal-minded by-the-book grammarian who doesn't really understand the language at an intuitive level. What we want is more complicated.

PS. Dan, nice to see you back! Are you staying?

September 15, 2018 | Unregistered CommenterNiV

@NiV-- am I staying? We'll have to wait & see, as Trump would say. At moment am being crushed by other obligations, & blog, sadly, is not making it past triage

September 17, 2018 | Registered CommenterDan Kahan

'We'll have to wait & see...'

FWIW I think this blog is world-class, not least for the aspect of sharing progress as it happens, and actively encouraging contribution especially via the WSMD feature. I hope you find the time to at least keep it ticking over. 14.3 billion readers can't be wrong :)

September 17, 2018 | Unregistered CommenterAndy West


Thahks for the kind words. Agree about the 14 billion (embarrassingly, the subscription list down to 13 biillion as a result of the gaps in between postings)

September 18, 2018 | Registered CommenterDan Kahan

"You don't want your essay to be judged by people with very different dialects to you, but you also don't want to be judged by a too-literal-minded by-the-book grammarian who doesn't really understand the language at an intuitive level. What we want is more complicated."

Yours is a British answer, NiV. That answer makes total sense for English law. But I don't think it makes sense for American law. England has no constitution; all of its law's guarantees are statutory, or are known by tradition.

The US not only has a constitution; it also has a history of discrimination that has often been at odds with its constitutional guarantees to the states, to the peoples of the states, and to individuals. One of the most important tools of legal oppression in the US has been the tactic of getting the courts to say in their power of judicial review, "This text, despite what it may say, means what we think it means, and not what you think it means." My position is that Americans should fear the establishment of tradition at least as much as we fear that of religion, and within tradition is included the establishment of social norms as standards of benignness and malignancy of one's actions, as Dan describes.

September 24, 2018 | Unregistered Commenterdypoon

Never gets old. I recount hearing the original talk to my students each year, and send them to the most recent blog post every year.

October 3, 2018 | Unregistered CommenterDon

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