The Jama legal narrative. Part II: A foray into concepts of improbability

In judicial decision making, the doctrine of chances takes explicitly into account the odds. There is more to forensic statistics, as well as various probabilistic approaches which taken together form the object of an enduring controversy in the scholarship of legal evidence. In this paper, we reconsider the circumstances of the Jama murder and inquiry (dealt with in Part I of this paper: "The Jama Model. On Legal Narratives and Interpretation Patterns"), to illustrate yet another kind of probability or improbability. What is improbable about the Jama story, is actually a given, which contributes in terms of dramatic underlining. In literary theory, concepts of narratives being probable or improbable date back from the eighteenth century, when both prescientific and scientific probability was infiltrating several domains, including law. An understanding of such a backdrop throughout the history of ideas is, I claim, necessary for AI researchers who may be tempted to apply statistical methods to legal evidence. The debate for or against probability (and especially bayesian probability) in accounts of evidence has been flouishing among legal scholars. Nowadays both the the Bayesians (e.g. Peter Tillers) and Bayesioskeptics (e.g. Ron Allen) among those legal scholars whoare involved in the controversy are willing to give AI researchers a chance to prove itself and strive towards models of plausibility that would go beyond probability as narrowly meant. This debate within law, in turn, has illustrious precedents: take Voltaire, he was critical of the application or probability even to litigation in civil cases; take Boole, he was a starry-eyed believer in probability applications to judicial decision making (Rosoni 1995). Not unlike Boole, the founding father of computing, nowadays computer scientists approaching the field may happen to do so without full awareness of the pitfalls. Hence, the usefulness of the conceptual landscape I sketch here.

The Jama legal narrative part II: A foray into concepts of improbability

In judicial decision making, the doctrine of chances takes explicitly into account the odds. There is more to forensic statistics, as well as various probabilistic approaches, which taken together form the object of an enduring controversy in the scholarship of legal evidence. In this paper, I reconsider the circumstances of the Jama murder and inquiry (dealt with in Part I of this paper: 'The JAMA Model and Narrative Interpretation Patterns'), to illustrate yet another kind of probability or improbability. What is improbable about the Jama story is actually a given, which contributes in terms of dramatic underlining. In literary theory, concepts of narratives being probable or improbable date back from the eighteenth century, when both prescientific and scientific probability were infiltrating several domains, including law. An understanding of such a backdrop throughout the history of ideas is, I claim, necessary for Artificial Intelligence (AI) researchers who may be tempted to apply statistical methods to legal evidence. The debate for or against probability (and especially Bayesian probability) in accounts of evidence has been flourishing among legal scholars; nowadays both the Bayesians (e.g. Peter Tillers) and the Bayesio-skeptics (e.g. Ron Allen), among those legal scholars who are involved in the controversy, are willing to give AI research a chance to prove itself and strive towards models of plausibility that would go beyond probability as narrowly meant. This debate within law, in turn, has illustrious precedents: take Voltaire, he was critical of the application of probability even to litigation in civil cases; take Boole, he was a starry-eyed believer in probability applications to judicial decision making. Not unlike Boole, the founding father of computing, nowadays computer scientists approaching the field may happen to do so without full awareness of the pitfalls. Hence, the usefulness of the conceptual landscape I sketch here.

Subrogation and non-payment of rent

Explains the equitable doctrine of subrogation as it applies to tenants, assignees and landlords. Outlines the basic principle of subrogation and examines how the principle affects the legal position of the original tenant, the tenant's assignee, the tenant's surety and the original landlord.

Beneficial entitlement: no longer doing justice?

Discusses the House of Lords ruling in Stack v Dowden on the size of each legal owner's share of the equity in the family home in the event of the relationship breakdown of an unmarried couple. Considers whether the parties intended their beneficial interests to be different to their legal interests in the property. Comments on the court's primary concern of establishing, from the parties' conduct, their intention as regards beneficial ownership. Looks at whether indirect financial contributions give rise to a beneficial interest under a constructive trust and notes the relevance of the doctrine of proprietary estoppel.

Duty to mitigate in leasehold law

Discusses by reference to case law, including Commonwealth authorities, the rights and duties of landlords where demised premises are abandoned by a tenant who has defaulted on the rent, including the remedies available to the landlord, the limitations on his right to sue for loss of rent due between abandonment and expiration of the term, and the applicability of the contractual doctrine of mitigation of damages in leasehold law. Examines the Court of Appeal decision in Reichman v Beveridge on the duty of mitigate loss in an action merely seeking recovery of rent as it accrues due.

Constructive thinking

Discusses the House of Lords ruling in Cobbe v Yeoman's Row Management Ltd on whether the doctrine of constructive trust, as an alternative to proprietary estoppel, could be invoked by a property developer under the Law of Property (Miscellaneous Provisions) Act 1989 s.2(5) where an agreement for the acquisition of an interest in land failed to comply with s.2(1), but where the developer had incurred expenditure obtaining planning permission to develop the property. Reflects on whether there are circumstances in which the courts will find a constructive trust in order to avoid the effects of s.2(1).

Trust, leadership and economic necessity in post-compulsory education

Trust is a complex concept that has increasingly been debated in academic research (Kramer and Tyler, 1996). Research on 'trust and leadership' (Caldwell and Hayes, 2007) has suggested, unsurprisingly, that leadership behaviours influence 'follower' perceptions of leaders' trustworthiness. The development of 'ethical stewardship' amongst leaders may foster high trust situations (Caldwell, Hayes, Karri and Bernal, 2008), yet studies on the erosion of teacher professionalism in UK post-compulsory education have highlighted the distrust that arguably accompanies 'new managerialism', performativity and surveillance within a climate of economic rationalisation established by recent deterministic skills-focused government agendas for education (Avis, 2003; Codd, 1999, Deem, 2004, DFES, 2006). Given the shift from community to commercialism identified by Collinson and Collinson (2005) in a global economic environment characterised by uncertainty and rapid change, trust is, simultaneously, increasingly important and progressively both more fragile and limited in a post compulsory education sector dominated by skills-based targets and inspection demands. Building on such prior studies, this conference paper reports on the analysis of findings from a 2007-8 funded research study on 'trust and leadership' carried out in post-compulsory education. The research project collected and analysed case study interview and survey data from the lifelong learning sector, including selected tertiary, further and higher education (FE and HE) institutions. We interviewed 18 UK respondents from HE and FE, including principals, middle managers, first line managers, lecturers and researchers, supplementing and cross-checking this with a small number of survey responses (11) on 'trust and leadership' and a larger number (241) of survey responses on more generalised leadership issues in post-compulsory education. A range of facilitators and enablers of trust and their relationship to leadership were identified and investigated. The research analysed the ways in which interviewees defined the concept of 'trust' and the extent to which they identified that trust was a mediating factor affecting leadership and organisational performance. Prior literature indicates that trust involves a psychological state in which, despite dependency, risk and vulnerability, trustors have some degree of confident expectation that trustees will behave in benevolent rather than detrimental ways. The project confirmed the views of prior researchers (Mayer, Davis and Schoorman, 1995) that, since trust inevitably involves potential betrayal, estimations of leadership 'trustworthiness' are based on followers' cognitive and affective perceptions of the reliability, competence, benevolence and reputation of leaders. During the course of the interviews it also became clear that some interviewees were being managed in more or less transaction-focused, performative, audit-dominated cultures in which trust was not regarded as particularly important: while 'cautious trust' existed, collegiality flourished only marginally in small teams. Economic necessity and survival were key factors influencing leadership and employee behaviours, while an increasing distance was reported between senior managers and their staff. The paper reflects on the nature of the public sector leadership and management environment in post-compulsory education reported by interviewees and survey respondents. Leadership behaviours to build trust are recommended, including effective communication, honesty, integrity, authenticity, reliability and openness. It was generally felt that building trust was difficult in an educational environment largely determined by economic necessity and performativity. Yet, despite this, the researchers did identify a number of examples of high trust leadership situations that are worthy of emulation.