I appreciate hearing this discussion from the economists' points of
view. You folks have the skills to approach these sorts of social and
economic problems that we lawyers do not have. However, I want to throw
something from the field of law into the discussion.
I have taught evidence a number of times, and I think that stopping to
consider some principles of evidence might be useful. First, Rule 401
tells us that we must only use evidence which is relevant -- that is
evidence which has the property of making a fact which is in issue more
probable or less probable. Much of the discussion seems to founder on
deciding what it is that is in issue here and what the line of causation
is from one fact to a conclusion.
Second, the rules of evidence are quite cautious about the use of
character evidence or propensity evidence . That is, we do not want to
try a person or an issue based on a person's propensity to do something.
We want to know if they did something. A great deal of this discussion
on IQ is focussed on propensity or something very like it. It does not
matter if I have a propensity to lie or steal or be law abiding. It does
matter if on the key occasion I -- in fact -- did any of those things.
When you move from a person's propensity to a group propensity you get
into ever more dangerous territory. It really does not matter very much
what 100 female law professors have a propensity to do when you are
making a judgment which hinges on what I have done. The danger of a lot
fo the discussion of IQ and what has worked or not worked is that it has
an almost immediate spill over from the group to the individual's
character / propensity and truly COLORS the discussion and limits
individuals.
Tbanks for the discussion.
Ellen J. Dannin
California Western School of Law
225 Cedar Street
San Diego, CA 92101
Phone: 619-525-1449
Fax: 619-696-9999
