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Professor Peter Tillers of Cardozo Law School in New York blogs for JURIST on the latest evidence issues...
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Thursday, April 15, 2004
O.W. Holmes, Jr., Made Modern on Matters of Gender

The same article I mentioned on the 14th (of this month) rendered one of the most famous passages in American law thus:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with [others], have had a good deal more to do than the syllogism in determining the rules by which [all] should be governed.

I wonder: Did it occur to the author or the editors that Holmes, by modern standards, was a "sexist" and that the reformulation of his (poetic) passage distorts an important item in the historical record?

Posted by Peter Tillers at 4:03 AM
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Wednesday, April 14, 2004
Straightening Out King James

What is person that thou are art mindful of it?

Posted by Peter Tillers at 6:16 AM
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Language Purification

Yesterday morning I saw the following footnote in a law journal:

n78. Cardozo, supra note 40, at 141 (edited for gender neutrality …).

Is this sort of linguistic cleansing (“reconstruction”?, “language purification”?) of source material common?

To give the student editors their due: they did not quote Cardozo’s “sexist” language; they paraphrased the portion of the statement by J. Cardozo that they found offensive. I am still troubled. Are you?

What would the editors of this law journal do with statements made by judges, treatise writers., etc., before, say, the 18th 0r 19th century, statements in which long-dead authors or judges use male pronouns to refer to human beings or to male judges? Would such statements also be edited to achieve “gender neutrality”?

Would Shakespeare’s language also be restated to conform to 21st century norms at the law journal in question?

Posted by Peter Tillers at 5:53 AM
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Professor Peter Tillers

"I have practiced a little bit of law -- I worked as a litigator, once in California and once in Texas -- but for most of my professional life I have studied and taught law.

In the early part of my academic career I dabbled in philosophy, particularly the philosophies of Kant and Hegel. But as I matured, I came to my senses. This explains why during the last 15 years I have devoted much more attention to evidence, inference, and proof in litigation than to German Idealism and similar matters. However, I did not succeed in completely obliterating the influence of philosophy and epistemology on my thinking. Thus, in my effort to understand and explain the process of proof in litigation, I have devoted a great deal of attention to matters such as probability theory and theories of evidence, inference, induction, and proof.

Peter Tillers is Professor of Law at Cardozo Law School, Yeshiva University. He revised volumes 1 &1A of Wigmore on Evidence (1983) and is the author of Probability and Inference in the Law of Evidence (1988; with E. Green).