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Building rule-based expert systems in case-based law Deedman, Galvin Charles 1987

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BUILDING R U L E - B A S E D E X P E R T SYSTEMS IN C A S E - B A S E D L A W  by G . C. D E E D M A N L L . B . , University of British Columbia, 1976  A T H E S I S S U B M I T T E D IN P A R T I A L F U L F I L L M E N T O F THE REQUIREMENTS FOR T H EDEGREE OF M A S T E R O F LAWS in T H E F A C U L T Y O F G R A D U A T E STUDIES (Faculty of Law)  We accept this thesis as conforming to the required standard  T H E U N I V E R S I T Y O F BRITISH  COLUMBIA  A p r i l , 1987 (?)  G . C. Deedman, 1987  In  presenting  degree  at  this  the  thesis in  University of  partial  fulfilment  of  of  department publication  this or of  thesis for by  his  or  her  e  representatives.  Law  April 29, 1987  for  an advanced  Library shall make  it  agree that permission for extensive  It  this thesis for financial gain shall not  The University of British Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 D a t  that the  scholarly purposes may be granted  permission.  Department of  requirements  British Columbia, I agree  freely available for reference and study. I further copying  the  is  by the  understood  that  head of copying  my or  be allowed without my written  ABSTRACT  This thesis demonstrates that it is possible to build rule-based expert systems in case-based law using a deep-structure analysis of the law and commercially available artificial intelligence tools. of  the  law of  negligence,  was  the  Nervous shock, an area  domain chosen.  The expert  whose  knowledge was used to build the system was Professor J.C. Smith of the Faculty of L a w at the University of British Columbia.  ii  TABLE OF CONTENTS  I.  INTRODUCTION  1  II.  THE PRESENT STATUS OF ARTIFICIAL INTELLIGENCE AND LEGAL THEORY WITH RESPECT TO CASE-BASED LAW  2  III.  EXPERT SYSTEMS  4  IV.  KNOWLEDGE ENGINEERING  7  V.  THE DEVELOPMENT OF EXPERT SYSTEMS  9  VI.  THE EMERGENCE OF SHELL SYSTEMS  10  VII.  EXPERT SYSTEMS AND LEGAL REASONING  14  VIII. THE ESSENTIAL IMPORTANCE OF UTILITY IN EXPERT SYSTEMS  19  IX.  THE BASIC THEORETICAL PRESUPPOSITION OF NERVOUS SHOCK ADVISOR  21  X.  TRADITIONAL LEGAL THEORY AND CASE-BASED LAW  22  A.  The Problem of Hard Cases  22  B.  Different Schools of Legal Thought  25  1.  RULE SKEPTICISM  25  (a)  American Legal Realism  28  (b)  The Critical Legal Studies Movement  29  2.  LEGAL POSITIVISTS  31  3.  T H E BALANCING OF INTEREST DOCTRINE OF SOCIOLOGICAL JURISPRUDENCE  32  C.  The Distinction Between Private Law and Public Law  34  D.  The Limits of Traditional Legal Theories  37  E.  The Critical Issues of Legal Reasoning with Respect to Building Case-based Expert Systems  41  iii  XI.  THE FLEX METHODOLOGY AND ITS UNDERLYING ASSUMPTIONS  45  XII.  THE ADVANTAGES OF THE FLEX APPROACH  45  XIII. THE UNDERLYING STRUCTURE OF THE NERVOUS SHOCK ADVISOR  48  A.  Introduction  48  B.  The Rule of Precedent  50  C.  The Rule of Relevancy  52  D.  The Ambiguity of the Concept of "Duty"  55  1.  T H E EXTENSION ISSUE  57  2.  T H E RISK ISSUE  59  3.  T H E STANDARD OF CARE ISSUE  60  4.  T H E REMOTENESS ISSUE  61  5.  T H E CONFUSION OF DIFFERENT KINDS OF ISSUES THROUGH T H E USE OF DUTY LANGUAGE  61  E.  A Deep-structure Analysis of an Action in Negligence  63  F.  The Ambiguity of Duty in Nervous Shock  65  G. Contrary Doctrines of Remoteness  69  H. The Reformulation of Remoteness Doctrines into  I.  XIV.  a Deep-structure Rule  74  A Deep-structure Analysis of Nervous Shock  75  J. Preparing to Build a Knowledge Base Using FLEX Methodology K. The Similarity Between the Way Lawyers Reason and the Back-chaining Control Strategy Used in Rule-based Expert Systems L. How The Nervous Shock Advisor Works THE FUTURE OF LEGAL EXPERT SYSTEMS  iv  77 79 84 87  BIBLIOGRAPHY Books  104  Articles  110  APPENDICES A.  Sample Consultations  124  B.  Knowledge Base  155  C.  Case File Index  201  D.  Case File  299  v  ACKNOWLEDGMENTS  This research was carried out under the auspices of the  UBC-IBM  Co-operative Project in Law and Computers which was generously by  I B M Canada L t d .  Sciences  and  Additional funding  Humanities  Research  was  provided  of  Canada  Council  funded  by the and  Social  the  Law  Foundation of British Columbia.  I owe principal  special  advisor,  encouragement,  thanks to a number of  Professor  J.C. Smith,  advice and assistance.  was  people an  for their help. unflagging  source  My of  Dean Peter T. Burns and Professor  Robert T . Franson, the Co-operative Project Director, were both consistently supportive of my efforts.  Doug A r n o l d , the Project Co-ordinator, provided  invaluable technical help and advice, as did Don Johnson, the Computer Systems Technician.  A n n a Holeton and E r i n Dowd helped me greatly in  preparing the manuscript.  vi  I.  INTRODUCTION  The  purpose of this thesis is to demonstrate that it is possible to  build a useful rule-based expert system in case-based  law using readily  available artificial intelligence technology.  I have not taken a traditional approach to the subject.  In other  words, I do not simply speculate about the pros and cons of building such a system and then reach some conclusion.  Instead I have chosen to build a  working system myself because that is the most graphic way of illustrating the validity of my assertion.  It also reflects my primary concern which is  to produce an end product which is of some use to practitioners  The  fact that I was able to do this proves a more general point;  namely, that people outside the field of traditional Computer Science now have access to technology which will allow them to build expert systems if they are prepared to invest some time in learning the use of a very high level computer language and the skills required to debrief the human expert on whose knowledge any system must be based.  Since  building  an  expert  system  necessarily  involves  a  close  collaboration between the domain expert and the person who debriefs him and  designs  the system (ie. the  knowledge engineer), this thesis is  unusual in that it was very much a joint effort.  I was the  also  knowledge  engineer and Professor J.C. Smith of the Faculty of Law was my domain expert.  In the thesis, therefore, I frequently write in the second person and  2 talk about "our" beliefs and what "we" did.  T o do otherwise would be to  deny that the whole enterprise was a partnership from start to finish.  The theoretical underpinning of the expert system is our conviction that  legal  decision  making can be reduced to  a rule-governed activity.  Without this as a conceptual starting point, it would have been futile to even attempt certainty  that  outcomes. the system  to build a legal expert system logical rules could be  because  formulated to  there would be no predict all  possible  A corollary of this theory is that the methodology used to build in question, Nervous Shock Advisor, can be used with equal  effectiveness to build other systems in different areas of case-based law.  II.  T H E PRESENT STATUS OF ARTIFICIAL INTELLIGENCE AND L E G A L T H E O R Y WITH RESPECT T O CASE-BASED LAW  The latest research in artificial intelligence (Al) and legal reasoning in the area of case law makes it evident that we have only just begun to explore the possibilities legal theory.  offered  T h e latest efforts  by the marriage of this technology at duplicating case-based  within a machine are not at all promising.  and  legal reasoning  Anne von der Lieth Gardner  recently completed an extensive research project and wrote her dissertation entitled, AN ARTIFICIAL INTELLIGENCE APPROACH TO LEGAL REASONING, soon to be published. work in A l . mainframe  1  which is  Gardner used case law reasoning as a domain to do  She attempted the construction of a program for a mid-size  computer,  which  would  duplicate  legal  reasoning  regarding  whether a particular set of facts or events would constitute an offer and an acceptance for the creation of a contract.  The program was implemented in  a dialect of the LISP (List Processing) language, a computer language which has been a major development tool in A l . Her dissertation combined legal philosophy and computer science, with somewhat greater emphasis on the latter, and required an academic background in both disciplines. It "presents a computational framework for modeling legal reasoning." She assumes that:  2  Legal philosophy tell us, among other things, that legal rules do not dictate legal outcomes: there is more going on in the decision of a case than ordinary deduction. One extra element is that there is often room for choice about which, of several possible decisions, is to be preferred. Another is that the choice, once made, sets a precedent, which may change the space of choices available in later cases.  Her resulting program is consistent that:  with her above assumption in  3  On some issues, the program reaches an answer deductively, determines that it knows nothing that might defeat the answer, and jumps to the conclusion that on this issue, the result is certain. On other issues, the program concludes that the human decision-maker has some room for choice.  She concludes that, "Reasoning about which would be the better choice remains a major research area for the future."* Her over all conclusion is that legal problems are in general too complex and "open textured" to be modeled within an artificially thinking machine.  A t the level of hard cases a judge  has discretion to choose between various alternatives, and it is this process of choice which cannot be machine duplicated. With this rather pessimistic assessment as our starting point, we began to explore the possibility of overcoming methodology.  the  problem  by  using  different  tools  and  a  different  III.  E X P E R T SYSTEMS  There has been a recent major development in the field of A l which raises some interesting possibilities for law.  It used to be said that, " / / it  works, it's not Al", but that is no longer true.  A l has moved out of the lab  and into the market place.  Research in the field has produced a new  technology  called  proved  and  methodology  effective  Professor  and efficient  Edward  expert system as:  "expert systems" which  in many  Feigenbaum of  fields.  5  One of  Stanford University, has  has its  already founders,  defined  an  6  ...an intelligent computer program that uses knowledge and inference procedures to solve problems that are difficult enough to require significant human expertise for their solution. Knowledge necessary to perform at such a level, plus the inference procedures used, can be thought of as a model of the expertise of the best practitioners of the field.  The knowledge of an expert system consists of facts and heuristics. The "facts" constitute a body of information that is widely shared, publicly available, and generally agreed upon by experts in a field. The "heuristics" are mostly private. The performance level of an expert system is primarily a function of the size and the quality of a knowledge base it possesses.  Expert systems do not necessarily attempt to model the mental processes of the brain in the machine.  7  The breaking free from this old A l paradigm  and dream has permitted the development of new techniques which have tremendous practical value.  The transition was one from general, domain-  independent methods of solving problems typified by GPS (General Problem Solver), a program created by Newell, Shaw and Simon in 1957, to specific, domain-dependent  methods.  The paradigm shift  was  from  power-based  techniques to knowledge-based expert  systems is  that  the  ones.  In fact, an essential characteristic of  knowledge  extremely narrow in its scope.  which  they  contain  is  deep,  but  Experience has shown that it is necessary for  these systems to be confined to very narrow domains in order for them to be capable of giving advice at a level which is comparable to that at which a  human  expert  operates.  This change  9  in  approach  in  A l gave  new  meaning to the maxim "Knowledge is Power". General analytical skills which are not backed by extensive knowledge  of a domain are useless when  comes to finding solutions to real problems.  it  A n interesting illustration of  this shortcoming involving a human being's reasoning processes is given by former L i b e r a l M.P., Donald Johnson, in his book UP THE HILL.  Speaking of  his former boss, Pierre Trudeau, Johnson says:  He is determined to rely upon his analytical equipment rather than a knowledge base and if he can destroy or wound an argument which he doesn't like with a quick, logical thrust he would rather do so than have to wrestle with the fundamental merits of his adversary's position. 10  In  fact,  we  are  Information Age. usefulness.  embody  11  the  in  the  Raw, undigested,  Knowledge  Age  rather  than  the  unorganized information has limited  by the human mind and structured in some usable way is  Expert  concepts.  really  Knowledge, on the other hand, meaning information which has  been processed powerful.  now  systems  can  reason  with  uncertain  They deliver advice rather than deductive heuristic  rules  of  an  expert  rather  than  data  and  fuzzy  conclusions.  They  the  fundamental  premises of a subject matter hard-coded into deductive procedures.  Expert  systems are made  up of  a knowledge  engine, and may be linked to a data base.  base,  an  inference  The knowledge base contains  facts (or means of obtaining them) and rules.  The inference engine is the  piece of software that reasons logically about the rules and facts in order to solve problems. through the  U n l i k e conventional computer programs, the path taken  knowledge  base is dynamic rather than predetermined.  It  depends entirely upon the facts provided by the user during the course of an interactive consultation.  The inference engine applies the rules in the  knowledge base to the facts elicited from the user and "reasons" about them as the  consultation  progresses.  Different  facts  cause different  succeed or fail at any given stage in the consultation.  rules to  The conclusions  reached by the inference engine are stored in a working memory as they are made.  This accumulation of intermediate results determines which further  rules are invoked and which other facts continues.  are sought  as the  consultation  Once all the necessary facts have been obtained in a particular  instance, the system gives its opinion which is usually weighted in terms of certainty.  The optional data base is linked to the knowledge  contains additional information that during a consultation.  base and  may be accessed at relevant  points  Inference engines called "shells", which can apply  modens ponens ("if...then...") logic to rules and facts, are now commercially available.  There are presently a substantial number of expert systems operating in  several  booming.  different  fields,  and the  expert  system  building industry  is  Indeed, a sign of the times is what one author offers as a tongue-  7  in-cheek definition of an expert system.  An expert system is a piece of software that causes TV producers to lose all sense of proportion. 12  IV.  KNOWLEDGE ENGINEERING  A  new  group  of  professionals  engineers", trained to debrief experts.  have  evolved,  called "knowledge  The knowledge engineer  extracts  knowledge of the domain from the expert and organizes it into some logical overall  structure.  Once  this  has  been  done,  the  knowledge  engineer  translates the knowledge into a series of "if...then..." rules which form part of the knowledge base.  There are other ways of representing knowledge in  expert systems, but these so-called production rules have proved particularly successful.  It  is  difficult  to  knowledge engineer should have.  specify  exactly  what  qualifications  a  The bottom line seems to be that it is  more of an art than a science and that on-the-job experience is essential.  Universities are doing very little to train knowledge engineers. "Universities are more interested in research," says Peter Hirsch, director of the knowledge engineering group at IBM's Science Centre in Palo Alto, Cal. Conventional computer science courses do not provide adequate preparation for the task. Knowledge engineering is a black art, demanding different types of skills and knowledge. Interviewing experts is one such skill. This requires the ability to find an automatic reasoning procedure that best matches the expert's thought processes. Practitioners learn the art by doing. 13  It has occurred to me that some of the skills which make a good lawyer are precisely those which knowledge engineering calls for.  Lawyers  need to be skilled at interviewing people - often experts - about a wide  range of different subjects and then to be capable of analyzing what they have been  told so that the  information can be ordered in some logical  manner for incorporation into a document or presentation to a court.  This  also demands a good command of the language; in other words, an ability to use precise declarative semantics.  It is no secret that there are far too many  lawyers on the job market at the moment.  Perhaps knowledge engineering  can offer some of them an alternate career.  It may well be that universities will eventually offer formal courses in knowledge engineering. and provides the  In the meantime, the private sector fills the gap  necessary  training in the  same  way  as it did  computer science became a recognized academic discipline. companies offer  courses in knowledge  before  A number of  engineering methodology.  14  Even  writers who are extremely skeptical about the potential of expert systems and who speak derisively of the label "knowledge engineering", concede that the field is a growing one.  To describe the process of designing, building, and testing expert systems and related Al software, the Al community has coined the term knowledge engineering. This pretentious term does have some advantages: it emphasizes that more than programming is involved; it's consistent with the term "knowledge base"; and it makes knowledge engineering sound more glamorous than usual. Indeed, knowledge engineering is widely touted as the most significant new result of computer technology, and it is the basis for a growing number of commercial ventures} 5  Rather than deriding knowledge engineering in a conventional fashion, one writer has acknowledged that it is a growth industry while poking fun at it. Using the psuedonym Rock  R. Farmer-Taylor (presumably a take-off  on  Rick  Hayes-Roth, one  of  the  founders  of  knowledge  engineering),  he  advocates an alternative: ignorance engineering.  Ignorance engineering was developed in part to solve the "knowledge engineering bottleneck". This problem arose because each knowledge-based expert system had to be hand-crafted over a long period of time by highly-paid knowledge engineers in consultation with scarce and uncooperative domain experts. The costs associated with this approach are not a problem because expert systems can be sold at any price. The problem is that there are too few knowledge engineers and, like engineers the world over, they much prefer to drink beer, so not enough expert systems can be produced and marketed to support the founders and stockholders of Al start-up companies. 16  The  point  is  that,  regardless  of  what  people  may  think  about  knowledge engineering, they are forced to admit that it is a burgeoning field.  V.  T H E DEVELOPMENT OF EXPERT SYSTEMS  The first expert system, D E N D R A L , was built at Stanford in 1964. It was designed to determine the structure of organic molecules on the basis of information fed it regarding the mass-spectrum of the particles after the molecule has been broken up by bombardment in a mass-spectrometer. now out performs all human experts in substantially less time. research  group  MYCIN, of  the  experts.  1 8  began  work  on  another  system  in  1972  It  The same  and produced  which diagnoses and prescribes treatment for bacterial infections  blood, and has also in a number of  tests out performed human  P R O S P E C T O R , a diagnostic system developed from 1978 onwards  for prospecting for minerals, was used to discover a hundred million dollar molybdenum deposit which had been missed by expert prospectors.  19  There  are now  a number of functioning expert systems in a variety for fields  ranging from M O L G E N which was designed  and constructed  expert advice in the field of molecular genetics, teaching economics.  VI.  20  for giving  to M E E S a system for  21  T H E EMERGENCE OF SHELL SYSTEMS  It was from M Y C I N that the shell systems evolved. The developers of M Y C I N realized that it could be emptied of its specific knowledge and that the inference engine could used to reason about problems in other domains. EMYCIN  (the "E" stands for "empty"), the first shell system, was the result.  There are now a number of constructing expert systems.  different shells commercially available for The one which we used to build the Nervous  Shock Advisor, M.1, marketed by Teknowledge Inc. of Palo Alto, California, is a direct descendant of E M Y C I N .  Nowadays it makes no sense to build one's own inference  engine  from the ground up as some institutions have done in the past and some are still doing. Besides the fact that it would be incredibly time consuming and require considerable assistance from skilled computer scientists,  there  is  little to be gained from it given that high quality shells which use standard methods of inference are readily available.  It would be like creating your  own custom-made word processor in order to write a book.  The user of a  shell need only create the knowledge base of rules and facts or meta-facts (ie. ways of determining facts). special syntax  of  The knowledge base must be written in the  a computer language  which the  inference  engine  can  understand.  The language  is  usually  very  high level  and English-like;  therefore, with a certain amount of effort, it can be learned by someone with little or no computing background. can generally  be created  Furthermore, the knowledge base  using a standard text editor.  The  completed  knowledge base is "loaded" into the inference engine which can then reason about its contents when a consultation is initiated.  The fundamental importance of shell systems is that they give people without any background in traditional computer science the capability of building useful rule-based systems provided that they are prepared to spend some time learning how to use the shell.  T o a non-computer scientist, it is  intimidating to have to master the complex procedural syntax of the more common high level computer languages in order to be able to do something useful with a computer.  However, this is no longer a necessary prerequisite  when it comes to A l thanks  to the advent  of  shells.  What is now  of  paramount importance is the ability to think creatively and logically at a higher level of abstraction.  This avoids the risk involved in expending a lot  of energy on learning a means to an end; namely, that the means becomes an end  in itself.  Speaking  about  the  student  of  traditional computer  science, Joseph Weizenbaum, an eminent teacher of the subject, sounded the following cautionary note.  He may so thoroughly commit himself to what he naively perceives to be computer science, that is, to the mere polishing of his programming skills, that he may effectively preclude studying anything substantive.  Unfortunately, many universities have "computer science" programs at the undergraduate level that permit and even  12 encourage students to take this course. When such students have completed their studies, they are rather like people who have somehow become eloquent in some foreign language, but who, when they attempt to write something in that language, find they have literally nothing of their own to say? 2  While Weizenbaum's analogy makes a good point very forcefully, it is, however,  somewhat  misleading  to  equate  what  has  "computer literacy" with literacy in a natural language.  become  known  as  The ability to read  and write a natural language carries with it access to a culturally  rich  written tradition which is inaccessible to the illiterate. Compared to natural languages,  computer languages  are  impoverished.  They  have  virtually  nothing to offer besides certain very application-specific advantages when it comes to communicating with the machine.  Now that the first flush of  enthusiasm about computer literacy has passed, serious questions are being raised about its value as an end in itself.  The primary emphasis in computer literacy should be in the historical, economic, legal and philosophical areas. Computers must be seen in their historical context - as part of an ongoing technological process. The economic and legal implications of their use are a rich source of material for exploring many important social issues. It would be a mistake to focus on the computer itself, because treating even such a marvelous machine in isolation can only result in superficial understanding. This is a real danger, if computer literacy courses are taught by programmers with little experience in other areas. 23  Shell systems allow substance to take precedence over form.  They  permit the knowledge engineer to focus on capturing the knowledge of the expert and getting a prototype system up and running as soon as possible. That is the strategy which we adopted. Throughout the development of our own system, we were guided by the following piece of very valuable advice.  13 The single most important piece of advice that one can give a model designer is to build a prototype model as soon as possible. Because expert reasoning problems are frequently poorly specified, one needs to have something concrete to view and "lay hands on." It is particularly important for the expert to see something running early. A running program is worth thousands of words from an unformalized interview with the expert. The initial prototype may be crude, will certainly be incomplete, and may contain inaccuracies, but at least it provides a focused point of departure from which the expert can make his suggestions. One of the sacrifices one has to make in building expert systems, is to be constantly told about the weaknesses and flaws in the system that is being designed. One has to expect that major revisions will have to be made in the system, particularly in the early stages. It is sometimes amazing to watch the pace of useful knowledge acquisition accelerate once a prototype model has been built. Instead of abstract suggestions from the expert and the model designers, one has a much more limited basis for converging to a practical system. And to those who point out that such constraints will fatally bias or limit the ultimate system design, the answer is that one must always keep an open mind to the need for making drastic changes of representation, and must be willing to put in the effort and resources to carry out these changes if they prove necessary. * 2  In fact, as the knowledge engineer, I had no idea just how difficult the foregoing advice would be to follow in practice.  A well-recognized side  effect of building an expert system is that the expert will often be forced to re-think her or his own ideas on the subject.  This can be a very useful  exercise in clarification for the expert, but enormously frustrating for the knowledge engineer who must be prepared to modify the original blueprint drastically to conform to the new reality, as is suggested above. However, it is very difficult  for the knowledge engineer to resist the temptation to  become attached to a model in which a lot of effort has been invested and which "works" as far as the computer is concerned even though the domain expert tells him that it is conceptually flawed.  I was aware of a very strong  resistance on my part when it came to making fundamental changes in the  system.  Perhaps this is an innate psychological trait among humans when it  comes to any sort of change ; we prefer to stick with things to which we have  become  accustomed.  However, no  matter  how  traumatic for  the  knowledge engineer, it is critical that the system should truly represent the expert's knowledge and be free of any distortion dictated by expediency. the expert gets up one morning and sees his world in a whole  If  different  light, the knowledge engineer must be prepared to scrap everything and begin again, no matter how distasteful he finds the prospect. The process of building an expert system seems deceptively simple at the outset.  In fact, it  is a difficult and time-consuming business, even using a shell.  Wrestling  with the conceptual structure of the system is every bit as demanding as coping  with  the  relentless,  unforgiving logic  of  the  computer  at  the  implementation stage.  VII.  EXPERT SYSTEMS AND L E G A L  REASONING  There are at present several research teams working on A l projects and  expert systems in the field of l a w .  25  A number of expert systems  perform a simple form of legal reasoning in the area of corporate tax l a w .  26  T A X M A N I and II combine the facts of tax cases and the relevant concepts of  the Internal Revenue Service Code to produce an analysis of the tax  consequences procedures.  27  of  corporate  transactions  through  deductive  J U D I T H , developed in West Germany, gives simple advice in  negligence questions on the basis of the German C i v i l C o d e . expert  systems techniques  litigated  inference  or settled.  29  to give  advice  TAXADVISOR  is  on whether an expert  28  L D S uses  a case should be  system  which gives  accountancy advice in the area of estate planning.  C C L I P S , a system  based on the Louisiana C i v i l Code, is a project which seeks to  develop  drafting  can  techniques  capable  of  producing statutory  texts  that  be  processed intelligently by computers, and thus, to produce a draft of the code which would allow legal consequences to be deduced by the computer from description of facts and the rules. a  rule-based  agreements  automatic  and  related  drafting  31  system  documents,  32  N O R M A L I Z E R is a prototype of for  and  drafting  Professor  rules, James  legislation, Sprowl  developed a system that uses regulations to draft legal documents.  33  has  As well  as the authors of the systems named above, there are also a number of other pioneers in the field of law and A l .  3 4  The only team to actually attempt to construct a rule  based-expert  system for case law legal reasoning is the team of R i c h a r d Susskind and D a v i d G o l d at Oxford.  Incidentally, unlike us, this group has decided to  custom build its own inference engine. They are working on a project in the area of divorce law which involves provisions in the Scottish C i v i l Code and some case law.  L i k e A n n von der Lieth Gardner, Susskind is also very  much aware of the significance of legal theory for A l and legal reasoning. He writes in his article, Expert Systems in Law: A Jurists prudential to Artificial  Intelligence and Legal  Reasoning?  Approach  5  It is beyond argument, however, that all expert systems must conform to some jurisprudential theory because all expert systems in law necessarily make assumptions about the nature of law and legal reasoning. To be more specific, all expert systems must embody a theory of structure and individuation of laws, a theory of legal norms, a theory of descriptive legal science, a theory of legal reasoning, a theory of logic and the law, and a theory of legal systems, as well as elements of a semantic theory,  a sociology and a psychology of law (theories that must all themselves rest on more basic philosophical foundations). If this is so, it would seem prudent that the general theory of law implicit in expert systems should be explicitly articulated...  After canvassing the field of A l and law Susskind concludes that,  "Despite growing awareness and interest in the application of Al to legal reasoning...there has not yet been developed a fully operational expert system in law that is of utility to the legal profession." 36  The reason why little progress has been made in law regarding the construction of  expert systems when compared with the success of  this  technology in other areas of knowledge such as medicine and engineering, is that there is a wide divergence of views about the critical issues of legal theory referred to by Susskind. In law there is no consensus about what law is, nor about the true nature of legal reasoning.  In the first place a legal  expert in a particular area of law is likely not to have any particular expertise in jurisprudence. Merely introducing an expert in legal theory to a project will furnish no solution as the assumptions about legal decision making of the legal expert will not necessarily be the same as those of the expert in the domain of knowledge to be put into the system.  The solution adopted by the Oxford group is to find an area of consensus between the leading legal theorists, and use that as the foundation of the jurisprudential assumptions for the system.  37  The problem with the  consensus method, however, is that it will furnish no theoretical framework for dealing with hard cases as the issue of how hard cases are to be decided  17 is exactly where little consensus will be found between legal theorists, and it is in the area of hard cases when special expertise is required.  On  the  other  hand while  expert  system  building  presents  many  challenges for legal theory, it also offers some interesting opportunities by way of  testing propositions of legal theory.  If someone  constructed an  expert system in an area of case law, which upon asking the user a series of questions to ascertain the facts, could then give the user a response in terms of the law, and cite the relevant cases for the legal issue, we could assume that "rule skepticism" is wrong, at least for that area of the law. an expert system were successfully jurisprudential  assumptions  about  Equally, if  constructed upon the bases of certain legal  reasoning, we  would have  some  evidence that those assumptions were valid.  The requirements for constructing expert systems in law raise some problems which are unique to this discipline. In other systems of knowledge from which one would wish to design a knowledge  base  for an expert  system there is generally much more of a consensus about the nature of the theory  which informs the  schools  would  generally  discipline.  not  offer  Medical,  courses  on  dental, and the  engineering  nature of  medicine,  dentistry or engineering because the practice of these professions  seldom  raises the kind of foundational questions which drives one back to basic theory about the discipline. practice, consequently,  38  Such issues, however, often arise in the legal  these are exactly  course in jurisprudence asks about law. what  law  is,  nor  about  the  true  the kinds of questions  which a  In law there is no consensus about  nature  of  legal  reasoning, but  it  is  nevertheless needed i f legal rationality is to be self-conscious.  Furthermore,  lawyers have no body of scientific knowledge which lies at the core of their discipline as do the experts in the fields where expert systems have been successfully created.  Rather, law rests upon sets of fundamental values  about which there is a great deal of societal dissensus.  39  In the first place legal concepts and rules have areas of imprecision because the process of legal reasoning constantly entails extending concepts to new situations.  Thus the concepts, in their application, are imprecise at  their outer edges.  Expert systems which must function with this type of  imprecision are often referred to as "fuzzy systems".  40  Expert systems for  law, however, will have a further area of complexity in that the experts will have different, and often contradictory theories about the nature of law and legal reasoning.  We might refer to systems such as these will be,  having this second layer of uncertainty, as "hairy systems".*  1  H a i r y systems such as legal expert systems will require two levels of expertise.  A n expertise will be required in the area of substantive law  which is the subject matter of the system, and an expertise in legal theory will also be necessary.  The number of experts in specific areas of law, who  also have true expertise in jurisprudence or legal theory, as contrasted with a mere smattering of knowledge, will be rather small.  It was fortunate that  my own expert, Prof. J.C. Smith, is one of that rare breed. One of the prime purposes  of  this  undertaking  is  to  aid the  legal  expert  who  lacks  jurisprudential expertise to construct expert systems in case-based law, and  as well, to enable those experts with some theoretical background, to adapt and more efficiently use their jurisprudential knowledge.  VIII.  T H E E S S E N T I A L I M P O R T A N C E O F U T I L I T Y IN E X P E R T SYSTEMS  M y strongest motivation in undertaking this work was the desire to achieve a result that would be in some way useful to practitioners.  After  having worked as a litigation lawyer in the real world for almost 10 years, I had  acquired a distinctively practical bent.  I was disinclined to embark  upon a graduate program that would culminate in a thesis that was an exercise in traditional scholarship and nothing more; hence my attraction to expert systems.  Expert systems typically work in real-world problem domains, rather than what Al scientists call toy-domains. In a real-world domain, the problem solver applies actual data to a practical problem and produces solutions that are useful in some effective way. In a toy domain, the problem is usually a gross simplification or unrealistic adaptation of some complex realworld problem. The problem solver handles artificial data that are simplified to make the problem easier and produces solutions that are of theoretical interest only.* 2  Believing that the ultimate proof of the pudding is in the eating, I decided that I would try to build a useful legal expert system rather than simply speculate  about whether  one could be built.  Moreover, the system itself  would have to be capable of providing advice on a par with that which a practising generalist  would expect to receive as a result of consulting an  expert in a particular area of the law.  In other words, a legal opinion about  the strength of the case supported by appropriate authorities from the case  law.  Anne  Gardner chose  to focus  on the  problems posed in the  examinations at the end of a first year contracts course.  law  This is certainly  not something that any practising lawyer would need to seek expert advice about.  Indeed, Gardner concedes that, in a sense, the problems she tackled  were "toy problems".  However, she does insist  that they are not  trivial  because their solution called for skills which all lawyers require and which, unlike  interviewing,  developed on the j o b .  drafting, 43  negotiating  and  trying  cases,  are  not  While there is merit in what she says, my interest  was in creating a system which would be helpful to lawyers who  have  already acquired the necessary practical skills, but still need sound expert advice from time to time.  After all, there is so much to know in law these  days, that nobody can be an expert in every area.  Indeed, most lawyers  have enough trouble keeping up to date with the developments in their own specialty.  J.J. Robinette is one of the elder statesmen of the Canadian bar.  He is generally acknowledged to be the best all-round counsel of his day, an accomplishment due in no small measure to his legendary capacity for hard work.  In a recent biography, a friend of Robinette's makes it plain that  nowadays no amount of dedication will enable any one lawyer to achieve the kind of mastery of so many areas of the law as Robinette did. have simply changed.  Ed Sexton is similarly amazed at Robinette's range and sees it as something unique and special - and dying - in Canadian courtrooms. "We won't see another John Robinette in this country," Sexton says. "That's partly because of the changing times. Law has become so specialized now that every corner has its experts. And clients are getting more sophisticated. It used to be that they just wanted a good counsel. Now they want a good counsel who's an expert in their particular problem. But the other reason we won't  Times  see another Robinette is because nobody else is so able in so many fields. ,.." 44  In approaching my task of building an expert system, I was ever mindful  of  the following piece of  advice offered to builders • of  expert  systems.  One must also consider very carefully whether the proposed application system would be of significant value if implemented. While this may seem obvious, many systems have progressed to relatively advanced stages, before it is recognized that there is no market for the application system. 45  IX.  T H E BASIC T H E O R E T I C A L PRESUPPOSITION O F N E R V O U S SHOCK ADVISOR  Having examined the available technology, let us now turn to look at the legal theoretical context.  Professor J.C. Smith, my expert, and I chose as  the domain of our expert system a narrowly circumscribed area of the law of negligence called nervous shock. Shock Advisor.  We decided to call the system Nervous  The decision to actually build a working system necessarily  implied a belief on our part that it was theoretically possible to do so using a rule-based shell.  In other words, the theoretical presupposition of the  exercise was that, at some level, legal decision making can be reduced to a rule-governed activity. Anne  Gardner's  In this respect, our starting point was at odds with  conclusion that  there  is  no  practical  computer to overcome the problem of open texture. given case there is always between alternatives.  a better  answer  when  way  of  using a  We felt that in any it comes  to choosing  Furthermore, we believed that that answer can be  determined in a rule-governed way.  I shall now go on to discuss at some  length how our ideas jibe with other theoretical approaches to case-based law.  X.  A.  TRADITIONAL LEGAL THEORY AND CASE-BASED LAW  The Problem of H a r d Cases  The  distinction  between  parlance of jurisprudence.  hard  and  easy  cases is  common  in  the  A n easy case is one where the legal answer to  the issue is clear and relatively  undisputed.  One generally  easy cases are settled whenever the facts are clear.  assumes that  Easy cases which reach  the point of litigation do so only in order that questions of fact can be resolved  according  to  the  legal  rules  of  proof.  Once  the  court  has  established the facts, the legal decision should be straightforward and easily reached  by  the  application  of  recognized patterns of inference.  the  law  to  the  facts  according  to  well-  Since easy cases by definition do not raise  difficult legal issues, they are very seldom appealed.  H a r d cases are an inevitable aspect of law.  A hard case is one which  does not fall under an existing rule of law, or which appears to fall under two rules, the application of which would lead to differing or opposing solutions one from the other, or a case which falls clearly under a rule of law, the application of which would produce an irrational result.  46  Since  the possibilities for human interaction are so varied and since we can never fully predict the future it is impossible to anticipate and create a useful rule which would anticipate and resolve every potential aspect of human interaction.  When the vagaries and vicissitudes of life throw into the focus  of the legal system a unique kind of dispute, arising from a new kind of activity, a new technology,  or a new  47  perspective  which creates a case  which fails to fall comfortably under the existing rules, the law must deal with it within its existing conceptual structure, and hence we have a hard case for the law.  Sometimes the new situation falls quite well under the criteria of the old rules, but the situation is such that i f we apply the old rule we would produce a very undesirable result. Riggs  v.  Palmer  48  where  the  A n example of this kind of hard case is  beneficiary  under  his  grandfather's  will  murdered his grandfather in order to receive his inheritance more quickly. This is a hard case because,  while it falls clearly under the law of  wills  which prescribes that the person so named by the testator in a valid will is to take under that will, we encourage murder i f we benefits of his crime under these conditions.  give a murderer the  It is impossible to foresee all  the situations which can arise where applying a rule of law to a case which clearly falls under the rule will lead to an undesirable result because of one new unforeseen factor now present which had never arisen in the previous cases.  It is well known and frequently noted that legal principles  often  appear to exist in the form of contradictory and/or contrary pairs, or that a legal principle can always be stated in two mutually inconsistent ways, one favourable to the plaintiff's case, and the other favourable to that of the defendant.  For example, an agreement  for the use of land or  premises  might be classified either as a lease or a mere license, or a person may have  the exclusive right to information to a spectacle because it is their property, or not have an exclusive right because the subject matter is not capable of being a property interest. because there opposing  appears  principles  or  Legal reasoning often is thought to be circular  to  be  no  clear guide  conceptual  to  categories  which  should  of be  two  relevant  applied  to  a  particular set of facts.  While the bifurcation of  legal categories is a part of the natural  process of categorization involved in systematizing the  indeterminacy  between  categories,  and  the  any area of choice  knowledge,  offered  a  judge  between inconsistent and alternative ways of categorizing, is an inevitable consequence of the adversarial method of litigation.  Lawyers on each side  of a legal issue will always state a relevant legal principle in such a way as to be favourable to their client's position.  The judge will then  generally  choose the formulation which will fit the way he has concluded that the case should be decided.  These various formulations get embedded in the  jurisprudence in a bifurcated form.  Consequently, it is not unusual for  lawyers to f i n d that there are two possible, opposing, and relevant principles which could reasonably be applied to the facts of their cases.  Generally only hard cases, that is to say cases which have no clear legal answer even when the facts have been established, reach the appeal stage.  Since it is the established practice of case reporting to report only  appeal cases, or cases at the trial level which raise interesting legal issues, nearly all the cases which make up the law reports are what would be called "hard cases". It is self evident that a useful rule-based expert system must  be able to handle or suggest legal solutions to  hard cases, i f it is to have  much practical value.  A n y comprehensive legal theory or philosophy of law must entail a theory about how hard cases are resolved within the law.  In fact, how hard  cases ought to be resolved is one of the central issues of jurisprudential dispute  which  underlies  and is  interrelated  with  many  other  issues of  contention such as the relationship between law and morality, whether law is an autonomous or an open-ended system, and the nature and function of rights.  One cannot have a theory of hard cases, however, unless there is  first a theory about how easy cases are to be resolved.  A theory of law,  therefore, must entail a theory of legal reasoning which will explain the resolution of both hard and easy cases.  B. Different Schools of Legal Thought 1. RULE SKEPTICISM  The degree to which legal reasoning is rule based should determine the  degree of  difficulty  systems in case-based law.  we  will  be  faced  with  in constructing  expert  If legal reasoning is highly rule determined and  i f most of those rules can be stated in the form of "if...then..." propositions, then legal expertise ought to be as capable of being captured in an expert system in the same way as any other form of expertise.  Many  lawyers,  judges, and legal theorists, however, are convinced that legal reasoning is not highly rule-determined.  While there are a variety of forms and degrees  of rule skepticism, the majority of  the legal  profession  would probably  consider themselves to be rule skeptics of one sort or another.  Rule skeptics hold in common the thesis that legal reasoning is not rule governed.  Judges, some claim, start with a conclusion which  they  "reach" on intuitive grounds and then select the premises which will "justify" it.  R a d i c a l rule skeptics such as the late professor Fred Rodell of the Yale  Law School took the position that the entire legal conceptual structure is a morass of technical abstract concepts which have little to do with reality. "Legal words and concepts and principles," he states, "float in a purgatory of their own, halfway between the heaven of abstract ideals and the hell of plain facts and completely out of touch with both of them. And that is why, in the last analysis, the language of The Law is inherently meaningless. reasoning process  is therefore  4 9  The legal  fraudulent, according to Rodell in that it  affects a non-existent context for its terms.  Rodell claimed and demonstrated that, given the facts of any case being appealed to the Supreme Court of the U n i t e d States, and the judges who would hear the case, he could predict with ninety-percent accuracy the decision or outcome of the case. His predictions would be made on the basis of his study of the beliefs, prejudices and preferences of the judges based on his analysis of  their decisions  according to a set of categories  in past cases which he had analyzed  such as criminal, civil liberties, religious  issues, or the rights of the accused.  50  His viewpoint is similar to that of  many lawyers who believe that the outcome of a jury case is virtually a foregone  conclusion once the jurors have been selected because  of their  prejudices.  Hence the great importance which is attached to jury selection,  especially in the United States where, unlike Canada, prospective jurors can be questioned at length by counsel.  One can easily see how an expert system could be constructed using Rodell as the expert, and creating rules of thumb which reflect his analysis. (A Rodell-like expert system could be made capturing the knowledge of an expert using methods of analysis similar to his.)  Such a system  would  produce a prediction based on the make-up of the court. It assumes, as does most forms of skepticism, such a mammoth amount of social and personal self-delusion that it is not usefully entertainable.  Rodell's theory will not  tell one anything about the law, since it assumes that there is no law, or that whatever the judges decide is what the law is. It would, having such skepticism, be valueless for purposes of legal research.  If an expert like  Rodell could be found today and an expert system built upon the basis of his expertise in predicting the decision patterns of known judges, it would have little commercial value and be of little theoretical interest.  Or it  would be a fortuitous but mere epiphenomenon.  A  useful  expert system  must be able to give  predictions without  information as to the personal identity of the judge because the decision to litigate or not must be made before the judge's identity becomes available. Secondly,  an  expert  system,  to  be  useful  to  lawyers,  must  produce  information about relevant cases and statutes which support its predictions In fact,  the main value of  potential as tools of research.  experts  systems to lawyers will  lie in their  (a) American Legal Realism  Rule skepticism has taken a number of forms during its history as a stream of American legal theory.  Rule skepticism originally appeared in the  United States in the form of a school of legal theory known as American Legal  Realism.  Legal  realism in that  form  was  an application of  the  philosophical school known as pragmatism, and incorporated the beliefs of the  pragmatists  about  human reasoning  in general.  Pragmatism is  the  dominant American version of empiricism in that the basic epistemological and ethical premises are that experience is the source of knowledge, and ethical judgments are subjective in that they cannot be verified as true or false.  In  this  tradition the  American  legal  systematic or formal analysis of law as such. of  logical  deduction  for  legal  reasoning,  realists  generally  avoided  They denied the applicability and in  particular denied  the  assumption that law is certain, questioning certainty both at the level of determining facts, and determining the law.  According to the realists legal  rules are not the major determining factor in reaching a judicial decision, but are mere rationalizations of a decision reached for other unarticulated) reasons.  (generally  The judge first reaches a tentative conclusion and  then attempts to find a premise in the form of a legal rule or rules which will justify the conclusion, thus moving from conclusion to premises.  The Holmes  father  (1841-1935)  of  American  who  played  legal an  realism itself influential  and  was  Oliver Wendell  active  role  development of pragmatism as a philosophical school of thought. important ideas which he contributed to the realists  movement  in  the  The most was  his  theory  of  defining  legal  concepts  in terms  of  the  actual or predicted  operations of the courts, and his belief that factors such as social policy or prejudices often play a more decisive role in the outcome of a case then do the legal rules. According to Holmes:  ...a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. 51  If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience 5 2  The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. 53  (b) The Critical Legal Studies Movement  There are very few  legal theorists writing in the tradition of  American Legal Realists today.  the  The most active contemporary school of  rule skepticism is the Critical Legal Studies movement.  The C R I T S , as they  have become known, are the intellectual heirs of legal realism enriched with a Marxist thought theology,  orientation, along with  such  as  phenomenology,  smatterings  and  of  sometimes  continental a  dash  of  European liberation  the particular mixture depending upon the particular w r i t e r .  54  While they share the realist's views of legal decision making, they articulate more  fully  the  underlying  prejudices  and  beliefs  which  are  the  true  motivating factors of decision, and explain them as the product of the class consciousness of that class from which most judges, legislators, and lawyers  are drawn.  Duncan Kennedy, a professor at Harvard Law School, believes  that the process of being socialized into accepting the values of the legal class begins at law school and continues throughout a lawyer's professional career.  His attitude towards judicial decision making is characteristic of  the C R I T S .  A second hierarchy is that of the judicial system, in which judges play the role of tin gods, exacting an extraordinary servility from their court personnel and the lawyers and litigants who appear before them. Judges are free to treat, and often do treat those who come before them with a degree of personal arrogance, a sense of entitlement to arbitrariness, and an insistence on deference that provide an extreme model of everything that is wrong with legal hierarchy. Lawyers are complicit in this behavior: they expect it, and even enjoy the purity of the experience—the absolute character of the submission demanded, with its suggestion of playing a game which is really and truly for keeps. Beyond that, the judicial system is based on the same extreme specialization of function and differentiation of capacities as the hierarchy of the bar and the internal hierarchy of particular firms. All of this deforms the very idea of justice, rendering it at once impersonal, inaccessible to ordinary human understanding and ordinary human practice, and intensely personal, since everything depends, most of the time, on the crotchets and whims of petty rf/c£a£or5.[Emphasis a d d e d ] 55  If the rule skeptics are right about legal reasoning, and it is the case that rules are irrelevant to the outcome of cases because judges can always construct out of the available legal materials a set of premises which will justify their conclusion, then there is no future for expert systems in law since Rodell's methodology would be effective only in regard to a highly politicized court such as the Supreme Court of the United States where judges are deliberately selected and appointed by the President because of  their particular biases and beliefs which are generally known within legal circles.  2. LEGAL POSITIVISTS  The two most commonly accepted theories of how judges decide hard cases are the discretion theory entailed in most versions of legal positivism, and  the balancing of interest theory  which is the explanation  generally  accepted by most persons who would not consider themselves to be legal positivists.  The statement of the discretionary theory which is most widely  accepted by the positivists is that of H . L . A . Hart who drew the distinction between the core of a rule, and its penumbra.  According to Hart every rule  has a core of clear and settled meaning, and a surrounding penumbra where meaning drifts into ambiguity and uncertainty.  56  When one is able to state  the facts of a case in a form which corresponds to the core meaning of a rule, one has an easy case and the judge has no choice but to apply the rule. Where, however, the facts fall within the penumbra of the rule, the judge is bound by no standard, but must "legislate" the solution.  He has, therefore,  a discretion as to how the case is to be decided.  Hart gives an example into parks. and  of a law which prohibits bringing vehicles  A motor car would fall within the core meaning of the rule,  so would, prima facie, be an easy case.  Toy cars, bicycles, motorized  wheel chairs, or even a World War II airplane put in as a showpiece, fall within the penumbra of uncertainty and are arguably vehicles.  In those  cases the judge must "legislate" or create the solution since one is not given  within the core meaning of the rule. artificial Gardner.  intelligence  in  law  have  This issue and its implications for been  discussed  at  some  length  by  57  Where a case falls  within the  core meaning of  the  rule, but an  irrational result would be produced i f the clear meaning of  the rule is  applied, the positivists' position would be that nevertheless the judge should consider the case to be a clear one and apply the rule in order that the clarity of the core meaning is not eroded.  This is what is meant by the  positivistic aphorism that hard cases make bad law.  Positivism can be seen to be a mild form of rule skepticism. function in easy cases, but not in the hard cases.  Rules  If the positivist view of  legal reasoning is correct then expert systems can only be built to handle easy cases.  If so, then expert systems have a somewhat limited utility in  law since it is hard cases which are litigated and require legal research by the practitioner.  A t best they would be a means of familiarizing some  lawyers with the conventional wisdom in areas of the law with which they are unfamiliar or of teaching law students the basics of the law as a form of computer-assisted instruction.  3. T H E BALANCING OF INTEREST DOCTRINE OF SOCIOLOGICAL JURISPRUDENCE  Sociological jurisprudence developed in the U n i t e d States, in part, as a response to the nihilism implicit in the rule skepticism of American Legal Realism.  It attempted to furnish a theory of legal reasoning for judges to  follow in place of the application of rules.  According to this theory it is  the duty of the judge to weigh and balance the conflicting interests which are at stake in any particular dispute, and to decide the case accordingly. This view differs from that of the positivist view described above because on this view the judge would not have as full a discretion since his or her decision will be dictated by the relative weights of the interest. be  applied  where  interests, but  they  not  represent  otherwise.  or incorporate  Nevertheless the  a correct judge  Rules may weighing  decides on  of  which  interest weighs more, at least in close cases.  One popular contemporary view is that  of  Ronald Dworkin.  and more sophisticated D w o r k i n uses Riggs  version of  this  v. Palmer as a  paradigm example of a hard case decided by the application of a principle (a man shall not profit by his own wrong) rather than by a rule. According to D w o r k i n , proper legal premises consist of more than rules, and include principles and policies as well. Dworkin balanced.  function 58  in  an  The latter, unlike rules which according to  all-or-nothing  manner,  must  be  weighed  and  While Dworkin believes that every case has a right answer, it is  not always reached by the application of rules.  Non-positivist positions such as that of Dworkin entail that in hard cases the court should weigh and balance the conflicting interests which are at stake.  According to this view the judge does not have a discretion but  should rule for the more important of the conflicting interests.  Balancing  or weighing interests, however, is an unfortunate and misleading metaphor as it suggests the existence of an objective scale or of criteria where neither  are to be found. model  of  Since Dworkin's version of the balancing of  judicial decision-making  furnishes  no order of  interest  precedence  or  criterion for the balancing or weighing process, in the final result, judicial decision-making is almost as discretionary as it is under positivism.  C.  59  The Distinction Between Private Law and Public Law  Traditional foundations  legal  theories  are  unsuited  for expert systems in case-based  for  the  theoretical  law in an additional way.  Whatever the particular jurisprudential assumptions which the legal expert may hold about the nature of a legal system, a rule of law, and judicial reasoning, they must be derived from the body of the law itself.  Legal  analysis ought to be the method by which our jurisprudential assumptions are clarified and critically examined. case-based  If we seek to build expert systems in  law then it should be case-based  law and only case-based  law  from which we seek the theoretical presuppositions which will underlie the knowledge base of the expert system.  Case-based  law  deals  principally  interactions between individuals.  private  transactions  and  Private transactions and interactions are  governed and ordered by private law. case law.  with  Private law is judge made law or  Sometimes it has been necessary to alter or reform private law  through legislation, in which case the legislature is carrying out a function which should have been carried out by the courts, and the specific piece of legislation incorporates private law principles which systematically with the now modified case law.  fit in  On other occasions the legislature intervenes in private transactions by imposing on them a requirement of the public good.  In this kind of  situation the legislation need not be consistent with or systematically with the private law.  fit  Rather it sits above it as an imperative to which  private transactions must conform.  For example, the Wills Variation Act,  R.S.B.C.  on testamentary  1979,  c. 435  places  limits  freedom  by making  provision for dependents of the deceased to make claims on the estate where they  have  Napoleonic  been  excluded  from  or Germanic C i v i l  the  will.  Sometimes,  such  as  in  the  Codes, or codes derived from them,  the  principles of private law receive their authoritative form through legislative actions. code  Civilians, however, are well aware of the difference  and  a  piece  of  legislation.  Codes  are  a  product  of  between a scholarly  formulation, while legislation is a product of a political process.  The  foundations  of  private  law  are  to  practices, that of property, and that of contract.  be  found  in  two  social  Property principles or law  protect the means which we use in accomplishing our ends through our actions from wrongful interference.  What constitutes wrongful interference  is determined by the principles of tort law or delict.  Contract law enables  us to increase our potential for action and satisfying our own goals by the process of bargaining.  Thus the overriding goal or function of private law  is to protect and extend our free agency.  60  The principles of private law have their origins in Classical Roman law.  Classical Roman law is the foundation of  systems, whether common law or c i v i l .  6 1  all Western private law  Classical Roman law, the common  law, and the civilian codes and cases are the development of these principles within  the  context  of  the  myriad  of  possible  situations  of  private  interaction.  "Rights" and  "obligations" are  structure of private law.  parts  of  the  They are moral concepts, but their  within and not outside the l a w . have a foundation  integral  62  conceptual  moral bases lie  Private law must necessarily,  in moral principles, and it is  therefore,  these moral principles  which furnish a meaning for "obligation". Law is the natural and inevitable expression of this particular set of moral principles.  It is, at least in the  area of private law, the morality of liberty.  One can disagree with this kind of m o r a l i t y . its validity but argue that it is not sufficient. the Marxists.  Those Marxists, however,  63  Or one can recognize  Its most outspoken critics are  who truly understand the  and structure of private law, such as Pashukanis, recognize relationship between private law and rights and duties. rights  is  based  on  their  denial  of  the  validity  64  of  nature  the necessary  Their critique of the  morality  of  individualism from which the rights are derived.  Private law forms a system within and of itself. are systematically  related because they are deduced  common set of interrelated principles.  Its individual parts or inferred  Private law is a teleological  from a system  because its over-all function, goal, or policy (in the sense of the policy of the law) is the extension of human agency.  As argued above it is a moral  system  liberty,  because  it  is  the  foundation  of  the  equality  of  the  individual, and of fundamental rights.  Since the morality of private law  takes the freedom of the individual as basic, it is opposed to systems which take other values as fundamental.  Nevertheless this morality of freedom is  compatible with these other values such as those centering on community interests so long as they enter the system as the result of voluntary choice and are consistent with and supportive of the autonomy of each individual.  As a legal system private law forms what is often called by civilians, "the law of obligations". As such it forms a part, but only a part, of the legal systems of sovereign political bodies.  As a juridical system within wider  legal-political systems, the law of obligations is very similar in terms of basic principles whether or not it is the law of obligations of a Napoleonic or Germanic code or of the common law.  D. The Limits of Traditional Legal Theories  Legal theorists generally conceive of the law of particular sovereign political jurisdictions (of which the system known as the law of obligations is only a part) as a legal system. cannot  be systematically  teleological statute  law  assumptions  conflicts of  which  teleologically  involved  legislative  The parts of such a system,  between  schemes.  underlie  a  related as there the  The  substantive  foundations in legislation or a legislative  law  of  theoretical area  of  are  however,  fundamental  obligations  and  presuppositions law  which  has  the or its  scheme such as tax law, social  welfare law, or regulatory bodies, are based on a totally different set of presuppositions  than  the  presuppositions  which  underlie  the  law  of  obligations.  This reflects the conflict often referred to as between private  rights and the public good, or between the values of individualism and the values of community.  Legal theorists traditionally have sought a single overriding unified theory of law which will treat the law of obligations as a part.  Since there  is no systematic  obligations  teleological  relationship between  the law  of  (whether judge made or codified) and the law of legislative  schemes, or  between the juridical paradigm of law and the political paradigm of law, any unified theory will either have to describe a non-existent ideal political process which would be consistent teleological  basis  for  the  with private rights, or adopt a non-  systematic  relations.  This  is  why  the  most  successful unified analytical theories of law are positivistic such as those of Bentham, Austin, Kelsen, Hart, or Raz.  It also explains  why the non-  positivistic theories of law such as Pound, Laswell and McDougal, Stone, Fuller, D w o r k i n , or Finnis tend to be non-systematic and consequently nonanalytic.  There is still another reason why we believe that traditional legal theories  furnish  an  inadequate  expert systems in case-based law.  theoretical  foundation  for  constructing  No useful expert system can be built in  the area of case law unless it can be shown that hard cases can be explained in a rule-governed manner.  Traditional theories  simply do not  adequate explanations for how hard cases are decided. are  furnish  If the rule skeptics  right, and it is correct that hard cases are discretionary for the judge,  then the building of an expert system in law will be beyond the present  39 state of the art in A l . O n the other hand, rule-based expert systems may be a way of testing legal theory. which  will  predict  the  If a viable expert system can be developed  outcome of  hard  cases  with  a fair  degree of  accuracy, and will produce the relevant cases and statutes for the legal solution,  we may have a method of testing the validity of theories about  legal reasoning.  Even i f traditional legal theories can furnish an adequate theoretical foundation for constructing expert systems in case-based law, the question arises as to which theory or theories should be used. problem  is  the consensus model  described as follows:  which  Susskind  One answer to this  has adopted,  and has  65  ...fljt is submitted that the divergence of views within jurisprudence has been unrealistically accentuated by the typical foci of inquiry, in that legal theorists tend to concentrate on the inherently contentious issues while ignoring "straightforward" matters (which themselves may indeed raise insurmountable difficulties for the less capable). There may very well be consensus over many jurisprudential questions that has remained unarticulated on grounds of it being simplistic or mundane. Indeed, it may be in virtue of this presupposed, unifying substratum of concordance that dialogue between the various schools has been possible. For instance, theorists may all agree on the forms of legal argument that are both possible and desirable in the clearest of cases. This unanimity may not be apparent from the literature because "hard cases" and not crystal "clear cases" have invariably been jurists' object of study.  If there is such a concurrence of approach in relation to legal reasoning as well as to legal theory in general, then it is a model culled from that harmony that should be implemented in expert systems in law. If there is not, and if these conflicts affect the expert system enterprise, then a model that clashes as little as possible with the ruling theories should be developed. It is currently being endeavored to determine if a consensus theory of law (albeit of mundane and limited application), can be propounded.  The  conventional  wisdom  in  knowledge  engineering  circles  is  decidedly against the use of multiple experts in any single expert system. Experience has shown that to do so produces inconsistencies within the system.  A n expert system is simply a means of capturing the knowledge of  an existing human expert.  Experts typically differ at least on issues that  are by no means straightforward. the  views  impossible.  of 66  all experts  T o expect an expert system to reconcile  within any  given  domain  is  to  attempt  the  Whether or not attempting to find a consensus among legal  theoreticians will raise similar problems to that raised by the issue of a single expert versus multiple experts remains to be seen.  While  it  is  highly  likely  that  one  can  find  some  theoretical  assumptions about which most legal theorists would agree, it seems to us that the principal difficulty with the consensus method is that it will not furnish an adequate theory of how hard cases are to be decided, since, as seen by Susskind, jurisprudential disputes tend to center on this question. Thus the most critical issue for expert systems is the very point upon which one  is  likely  to  achieve  the  theories and legal theorists.  lowest  degree  of  consensus  between  legal  Furthermore, this approach seems to entail a  departure from standard techniques for building expert systems.  It is clear  that expert systems for law require two kinds of expertise, expertise in an area of substantive law and expertise in legal theory.  The ideal expert for  a legal expert system would be one who had expertise in both areas, and who had applied the latter to the former.  We see a further difficulty with the consensus method.  It is our  present opinion that it is the jurisprudential assumptions of the particular expert which are important, and not those of anyone else.  It is the theory  of law to which the expert committed and uses in her or his analysis of the substantive law, which ought to be built into the expert system containing that person's legal expertise.  If some kind of consensus theory of law is  imposed on the expert, the system may contain contradictions i f her or his own unarticulated jurisprudential assumptions are inconsistent with those of the consensus theory.  If the expert is an expert only in the area of substantive law, and is not an expert in legal theory, then the expert will need aid in clarifying and evaluating her or his own jurisprudential assumptions.  The expertise of  the legal theorist would aid the expert in legal doctrine in this process of clarification.  In the  first  position on rule skepticism.  place  doctrinal  experts  should clarify  their  We should never lose sight of the fact that it is  the explicit and implicit heuristic, meta-rules, and rules of the expert in the substantive law which must be built into the expert system.  If the doctrinal  expert is a rule skeptic she or he must have some theory of what drives decisions, i f not rules.  A n d if the doctrinal expert takes rules seriously she  or he must have some idea about how rules function.  E.  T h e Critical Issues of Legal Reasoning with Respect to Building Case-based Expert Systems  Issues in legal  theory such as the  relationship between  politics, legal theory and political theory, the relationship of law  law and morality,  and such questions as how hard cases are to be decided, have implications for work in expert systems.  There are at least three critical theoretical  issues so far as legal reasoning is concerned.  These are:  1. Is law an autonomous system of rules?  If so, then law can be distinguished from other sets of norms such as morals or public policy. is  to  say  Law will be recognizable in a rule-governed manner, that  through  recognizable  rules  will not  of  recognition.  be law.  Anything  The idea  of  which  a rule of  is  recognition  formulated by H . L . A . Hart.  He drew a distinction between the  rules  actions  which  prohibitions, determine  dictate and  methods  human  secondary of  rules  in  terms  which  adjudication of  of  function  the  rights to  not  and  create,  primary rules.  67  so was  primary  duties  or  change,  or  A l l of  this  assumes a theory of rule-governed social practices.  2. Do judges have a discretion in deciding hard cases?  If it is true that judges do have a discretion, then they are free to reach any particular decision on that point.  That is to say that they are not bound by  any particular standard. They are free to choose their own premises.  3. Is law teleologically neutral?  If law is not teleologically neutral then only certain purposes or goals will be appropriate for law, and certain others will not.  If "legal obligation" is to  be a meaningful concept then law must necessarily have a foundation in  some kind of moral principle or principles which can give "obligation" a normative as contrasted with a mere descriptive meaning.  68  Each of the above questions may be put in the form of propositions which may be true or false.  In order for it to be possible  to construct  expert systems in the area of case law which will have the capacity to deal with "hard cases", the proposition that law is an autonomous system would need to be true.  If we are not able to distinguish between what is law and  what is not law, then there would be no limits on what could constitute a proper legal argument. over  which  an  We would not have a discrete body of legal material  individual  could  acquire  an  expertise  if  any  assertion can function as a legitimate premise in a legal argument.  kind  of  It would  also seem necessary in order to construct the rules for an expert system that one be able to recognize what constitutes law in a rule-governed manner. Law, in other words, would need  to be an autonomous  system,  and the  expert would need to know the systematic relationship of its parts, at least in so far as her or his own areas of expertise are concerned.  If we are to be able to construct expert systems in case-based  law,  the proposition that judges do not have a discretion in deciding hard cases would need to be true.  If judges have a discretion then decisions need not  be rule-governed, and i f decisions cannot be stated in the form of rules, then it would be most difficult to build a knowledge system because the  factors  which direct a judge  base for an expert  to exercise her or his  discretion in any particular manner would be too complex and numerous.  If expert systems for case-based law are possible it would also need to be true that law is not teleologically neutral.  A n y knowledge base for an  expert system in the area of case law, would have to, in one way or another, entail the doctrine of precedent that relevantly alike cases be decided alike. If this is so then a criterion of relevancy or a principle or principles for deciding relevancy would be necessary.  It is difficult to imagine a criterion  of relevancy which would not in someway be a teleological one so long as "legal obligation" is to remain a meaningful concept.  69  If all of the above  remains true, then the goals of the law should be considered to be a part of the  law,  and  related  to  each  other  in  a systematic  way.  70  It  is  the  teleological aspects of the law which furnish the meaning for the normative legal concepts of "right", "duty", "obligation", and "justice".  Traditional legal theories all take positions in regard to one or more of the above three issues which would seem to be incompatible with the creation of  expert  significant  content  systems in case-based of  law.  Theories which  rule skepticism are not helpful.  entail a  Theories  which  provide for a significant degree of judicial discretion in decision-making are unlikely to furnish an adequate foundation for the creation of expert systems in case-based  law.  Theories, such as traditional natural law, or  sociological jurisprudence which recognize little distinction between what constitutes law and other matters of morality and social policy will also be inadequate.  Theories such as the various forms of legal positivism which,  while they recognize law as an autonomous system, hold that law is neutral so far as values are concerned, or to put it in a different way, hold that the  goals of the law are not to be considered as being a part of the law, will be unsuitable for expert systems building.  XI.  THE FLEX METHODOLOGY ASSUMPTIONS  A N D ITS U N D E R L Y I N G  We have called our methodology F L E X (an acronym for Fast L E g a l EXpert).  FLEX  methodology assumes that law is an autonomous system,  that judges do not have a discretion in hard cases, and that the goals of the law are a necessary part of the law.  It entails a legal theory which is like  legal positivism in that it assumes that law is an autonomous system and can therefore be subject to rigorous analysis, but, unlike positivism, it does not need to assume judicial discretion to explain hard cases; and contrary to positivism, it considers the goals of the law to be a part of the law.  Like  the non-positivist theories, it assumes that law has a necessary teleology, but unlike the non-positivist theories, it is analytical. The F L E X methodology, assumes, therefore, an analytical-teleological theory of law. that F L E X  T o the degree  methodology proves to be successful, we have evidence of the  correctness of the assumptions which are entailed in its construction.  It is  in this manner that work in expert systems and artificial intelligence should shed light on the nature and structure of legal reasoning.  XII.  THE ADVANTAGES OF THE FLEX  The  FLEX  APPROACH  methodology offers an alternative to rule skepticism by  offering an analysis of a system of laws, individual rules of law, and legal reasoning in terms of an underlying structure which may be assumed by but  not  necessarily  expressed  at  the  doctrinal  level.  The  deep-structure  approach to legal reasoning is based on the assumption that judges decide even  hard  necessarily  cases in  a rule-governed  aware of  the  meta-rules  manner even  when  which govern their  they  are  decisions.  not An  analogy can be drawn with the way children learn to speak a language. Most children learn to speak their native tongue, quite correctly, without any knowledge therefore,  of the  grammar of  the language.  can be a rule-governed activity  without being consciously aware of the rules. part of the language.  Speaking a language,  which people  can carry  out  The rules are a presupposed  71  The analogy can be carried over into law. the law contains meta-rules for deciding hard  The thesis would be that cases which lawyers and  judges unconsciously exhibit or otherwise adhere to in applying the law. The decision is then justified in the surface level rules and principles which make up the law, and in various ways reflect the meta-rules.  Both the  necessity for a deep-structure model of law for building expert systems, and the lack of such models in traditional jurisprudence and legal theory has been pointed out by Waterman, Paul, and Peterson, the creators of L D S (Legal decision making system) and S A L (System for Asbestos Litigation). They write:  72  Lack of a deep model. The legal area doesn't have a clear and well understood underlying (deep) model of many of the mechanisms involved in decision making. Some domains do have a fairly clear model that can be used to predict activity and explain reasoning....Deep knowledge of this sort is not easy to find in the legal area. This makes the task of developing competent explanation facilities for legal expert systems somewhat difficult....  One might expect that the large body of legal rulings and regulations that have been accumulated and formalized in the legal domain would make expert system development easier. Unfortunately, this is not the case. Instead, this characteristic of the domain, having rules that already exist, has led to trouble.  It is our conclusion that traditional legal theories will not be of all that much use in the construction of expert systems in case-based law.  In  the first place, they generally present a unified theory for law as a whole, failing to draw any significant distinctions between legislation and casebased law, nor do they focus directly on the law of obligations which is the foundation  for most  case-based  law.  Secondly, traditional theories  either analytical or teleological, but not both.  are  T h i r d l y , apart from Hart's  distinction between primary and secondary rules, there has been little search for or recognition of deep structure within traditional theories.  While this study presents a particular legal theory, it does so because that theory has been sufficiently creating expert systems.  rich to use as a theoretical basis  for  F L E X methodology, however, does not necessarily  presuppose the theoretical foundations of the Nervous Shock Advisor, rather we present it as a starting point, and as a set of assumptions which may be a useful starting point for doctrinal legal experts lacking jurisprudential expertise, or for legal theorists  who find  that their own jurisprudential  assumptions are not helpful in constructing an expert system.  We  will  go  on  to  examine  a  number  of  different  kinds  of  indeterminacies which seem to support rule skepticism, which appear in the law of negligence, particularly that part which relates to nervous shock. We  will show how each of these kinds of indeterminacies were resolved or dealt with  in  a rule-governed  fashion  through  the  use  of  deep-structure  in  constructing the Nervous Shock Advisor.  XIII.  A.  T H EUNDERLYING STRUCTURE OF T H E NERVOUS ADVISOR  SHOCK  Introduction  Rule skepticism  is both an appealing and a popular view  members of the legal profession.  One of the reasons why this is so is that  there are so many different sources of indeterminacy in legal Ambiguous  concepts,  conflicting  among  principles,  contrary  references, and abuses of logic are to name but a few.  doctrines,  reasoning. circular  The nature of some  of the kinds of indeterminacies will probably differ from one field of law to another while other patterns of indeterminacy may prevail throughout all parts of the law.  There are several different methods by which these various sources of indeterminacy may be described and categorized.  73  The fact that there is  no agreed taxonomy makes no difference to our analysis.  What we have to  say will be applicable whatever their source, or however they are described. F r o m our point of view, what is important is that they all have in common the fact that the greater the degree of indeterminacy, the less rule-governed the area of law will be, and consequently  the less will be the degree of  predictability of outcome for any set of facts raising a legal issue.  It is generally conceded that i f  an area of  law  is in the  main  indeterminate, it would not be amenable to developing expert systems.  74  If  expert systems are to be constructed in case-based law, methods must be found for transforming what appear to be areas of indeterminacy into a rule-governed structure.  The methods that work best may differ from one  area of the law to the next, but in general, there should be a good deal of carry over.  Methods that work in one area of  suggest solutions for another.  the law should at least  Most of our examples in this study are drawn  from the law of negligence, with an additional two or three from other areas of law.  We have set ourselves, as one of the goals of this project, the task of explaining the F L E X methodology in a way that will allow others to apply it in the areas of law of interest to them.  The F L E X methodology has been  developed for use in areas of case-based law that contain a high degree of indeterminacy. furnishing  It  is  impossible  a number of  to  explain  concrete examples.  this  methodology  without  For those examples  to be  meaningful to the reader, it will be necessary to take the reader into the areas of  indeterminacy within the scope  of the examples,  illustrate the  indeterminacy and give the details of the method of solution which allows rules to be formulated.  The examples are mainly drawn from the common  law of the British Commonwealth of Nations.  Civilians, however, should  have no d i f f i c u l t y recognizing similar problems, which arise in the law of delict.  Readers conversant with the American common law will find that  all of our examples will have counterparts in their own system. English legal doctrines and cases will even be familiar to them.  Some of the In several  of the examples American cases and doctrines will be used and referred to by way of comparison.  B. The Rule of Precedent  The principle of formal justice underlies the F L E X  methodology.  The underlying presupposition about legal reasoning in the area of case law is that legal judgments  are universalizable.  75  The doctrine of  precedent  which prescribes that like cases are to be decided alike can be restated in the form of a modus ponens rule which we will call  the principle of formal  . 76 justice:  If it is the case that in any judgment made in regard to a particular situation, that a particular person is or is not legally obligated to do a particular act, then it logically follows that anyone in a relevantly similar situation is or is not legally obligated to do the same act. Thus each case or judgment which holds that a particular person has a legal obligation to do a particular act, instances a rule of law which applies to all other persons in a relevantly similar situation.  The universalizability of legal judgments is reflected in the practice of citing precedents from many different legal jurisdictions to show what the law is in the particular jurisdiction of the court, at least so far as the law of c i v i l obligations is concerned.  Thus in any civil jurisdiction of any  province in Canada, the law of any other province will be cited, as well as decisions from England, Australia, New Zealand, and the U n i t e d States. On occasions DIGEST.  common law courts will even cite civilian codes, or even THE If,  on the other hand, an issue arises  that requires a court to  determine what the law is in a different jurisdiction, the law cannot be established by merely citing cases or precedents.  One must bring in an  expert to give testimony as to the law in the other jurisdiction.  Thus a  lawyer in British Columbia may cite English precedents to establish what the law of British Columbia is, but must call an expert witness to establish what the law of Great Britain is.  The universalizability of legal judgments is not only reflected in the doctrine of precedent, but is assumed by, or is entailed in many other legal principles and practices.  For example: the courts' duty of impartiality; the  rule of law (those who create and administer the law are subject to the law); the right to due process; equality before the law; and the reciprocal nature of rights and duties.  77  Use of the principle of formal justice often permits us to ignore the legal doctrine which a judge may cite to justify her or his opinion, while at the same time maintain continuity and consistency within the law.  This  underlying rule of legal reasoning along with the Boolean connectors "and", "or", and "not", can be used to deduce classes of factual situations decided cases, and link formal  justice  furnishes  them with legal conclusions. no criteria  of  relevancy for  from  The principle of deciding when a  particular factual situation is relevantly like another factual situation.  The  criteria of relevancy must, however, be teleological and the teleology must be derived from the law itself. of  obligations  made up of  78  The overriding goal or policy of the law  property, tort or delict, and contract, is the  protection and extension of the agency of the i n d i v i d u a l .  79  The teleology  which lies behind the law of negligence is the reduction of inadvertently caused  harm  to  others  as  a  result  of  people's  actions,  with  as  little  interference as possible with the freedom of action.  C. The Rule of Relevancy  The F L E X  methodology is based on the assumption that judges do  take the doctrine of follow "the law".  precedent seriously  - that they do seek and try to  It assumes that the criterion of relevancy is  teleological  and that judges do select between alternative lines of precedents in terms of the potential impact of the possibilities of decision as measured in terms of the goals of the legal practices ( ie. contract, property, etc.).  This pattern of  judicial decision-making can be stated in the form of a higher-order rule that we call the rule of relevancy:  80  If a case CI arises having some facts identical with some facts in Precedent PI and If some other facts are identical with some facts in Precedent P2,  and If the application of PI would lead to different results from those that would follow the application of P2, then CI should be decided according to the precedent which, if followed, will, when universalized as a rule of law, bring  about, because of the presence of the similar facts, the most desirable consequences in terms of the teleology of the legal system.  How  such  a  meta-rule  hypothetical example. severely  injured  can  function  Suppose facts  by a criminal  assault,  can  ( C l ) that and that  be  illustrated  the plaintiff he  discovers  by  has  a  been  that  the  defendant, the lawyer of the person who committed the assault, had prior knowledge of the intent to commit the assault.  Let us assume further that  the basis of the claim of the plaintiff against the defendant is an alleged duty on the part of the defendant to take some action such as warning the plaintiff, or going to the police, to prevent the harm from happening. A n d finally let us assume that this is a new case for the law, as it must at some time have  been, in that  there  is no precedent directly in point.  The  plaintiff's case is based on (PI) Tarasoff v. The Regents of the University of  California.  81  where  the  defendant  psychiatrists  was  held  liable  for  failing to warn that his patient intended to physically harm the plaintiff when he had prior knowledge.  The defendant's case is based on a clearly  recognized legal principle (P2) that a lawyer owes no duty to warn others of an intent on the part of their clients to cause pure economic loss to others through a criminal act.  PI, P2 and C l are all alike in that they involve a  relationship which entails a duty of confidentiality. In all three cases there is a foreseeable risk of harm if some action is not taken. risk is of physical harm.  The  legal  issue  In PI and C l the  In P2 the risk is of economic loss.  is  whether  the  lawyer-client  relationship  is  to  dominate or be dominated by the risk of physical harm to a third party, P2  inclining us toward the former, PI to the latter.  In the teleology of the law  of torts, however, it is quite clear that the prevention of physical injury is given  a much higher  priority  than is the  prevention  of  economic  loss.  Unless, therefore, the confidential relationship between a lawyer and his client can be seen to be relevantly different from the relationship between a psychiatrist and his patient, the case, C I , should fall under precedent PI rather than P2.  It is our contention that while a judge who decides such a case would not necessarily justify difficulty  her or his decision in these terms, or might  explaining exactly  why, she or he would probably follow  Tarasoff case, assuming it was accepted as correctly decided. case is a precedent  for the  have  ordering of  the  goal  of  the  the  The Tarasoff prevention  of  physical harm in relationship to the goal of maintaining the confidentiality of  professional  relationships.  It entails  the  proposition that  preventing  physical injury to persons is more important in terms of the teleology of the law, than the maintenance of professional confidentiality.  In the absence of  a relevant distinction between the two kinds of professional relationship, it is a precedent for the ordering of certain previously not explicitly ordered goals  in  relation  to  lawyer-client  confidentiality.  The  current  AIDS  (Acquired Immune Deficiency Syndrome) crisis has sparked a lot of debate about whether physicians have a duty to warn the sex partners of whom they diagnose as carriers of the v i r u s . A I D S face apply.  82  people  Since people who contract  virtually certain death, the Tarasoff  case would undoubtedly  D.  T h e Ambiguity of the Concept of "Duty"  The  FLEX  methodology  assumes  that  judges  accordance with an underlying goal-set revealed These goals are systematically related.  decide  cases  by teleological  in  studies.  These teleological relationships are a  part of what constitutes the "system" part of the concept of a "legal system". Expert systems in case-based  law must take into account this  teleology.  They should not accept legal doctrine at face value.  The  law of negligence, particularly that part centering around such  concepts as "duty" and "remoteness" are just such areas where legal doctrine may  not be trusted.  testing some  of the  This is why it makes an ideal area of the law for assumptions which underlie the F L E X  methodology.  This is why an alternative analysis is needed.  The  law of negligence, as a number of the following examples will  show, is generally considered to be one of the most indeterminate areas of the law.  If it is possible to build expert systems here, it should be possible  to construct them in a good number of other areas of case-based law.  One law of  of the best examples of the indeterminacies which plague the  negligence  is the  concept  of  duty of  care.  The source  indeterminacy is the multiple judicially determined meanings concept has been given in the law of negligence.  of  the  which the  Within this area of the  law "duty" has at least four different judicially determined meanings or functions.  83  The reason for this ambiguity lies in the historical distinction  made within the common law between questions of fact and questions of law.  Questions of fact were to be decided by a jury, and the resolution of  questions of law remained the prerogative of the judge.  Where a judge was  reluctant to leave a particular issue to the jury, he could avoid doing so by formulating the issue as a question of law.  One way of transforming the  issue into a question of law was to state it in terms of whether or not the defendant owed to the plaintiff, or was in breach of, a duty of care.  A  negligence case can raise a variety of quite different kinds of issues, many of them of a highly factual nature.  When judges in the past wanted to keep  some of these issues from the jury, and did so by framing them as issues of duty of care, a variety of issues were then stated in the same  language  framework—Did the defendant owe the plaintiff a duty of care?  The law of negligence caused harm.  deals with the question  of  unintentionally  If the harm suffered by a plaintiff was intended by the  defendant, then the proper cause of action would lie in some nominate tort such as assault or battery, but not in negligence. does not  place  a  prohibition on  certain  types  The law of of  activities  negligence as  do  the  nominate torts like assault, battery, defamation, or false imprisonment. The law of negligence prescribes that whatever actions we may take, we must carry them out in such a way that we do not cause harm to other persons: it prescribes an adverbial rather than a verbal prohibition.  1.  T H E EXTENSION ISSUE  Since failing to act does not cause harm, we generally concern ourselves with the consequences of not acting. act may not  be moral,  it generally  does not  entail  need  not  While a failure to civil  liability.  An  individual is generally not liable, in the absence of a special duty such as might lie in contract, for a failure to rescue a person in danger, since the person who fails to rescue is not the cause of the harm.  If, however,  the  person who fails to rescue caused the danger in the first place, then that person might well be liable.  If the failure to act is in the context of a  wider action, and changes the nature of that act so that it has  harmful  consequences, such as failing to put one's foot on the brake while driving a car, then liability would lie for causing the accident.  The distinction in the  law of negligence between causing harm and failing to prevent harm from happening is often referred to as the distinction between misfeasance and non-feasance. the  defendant  The legal issue is often stated in the form of the question: Did owe  the  plaintiff  a  duty?—which  would  mean—Did  the  defendant owe the plaintiff a duty to perform the act which he or she did not perform, and which, i f it had been performed, would have prevented the harm to the plaintiff.  The law of negligence does not require us to take care in regard to all possible harmful consequences of our actions, even though they may be quite  foreseeable.  potentially  harmful  Nearly  every  conceivable  human  consequences for other people.  If  action the  may  law  have  were to  attempt to impose liability for all foreseeable harmful consequences of all  our actions, action itself would become intolerably restricted.  There are  several different kinds of harmful consequences which may follow action. The  harm  suffering,  might be  physical injury  or pure economic  loss.  consequences for other people.  to  persons  Most  or property, emotional  human actions  have  economic  T o prohibit the causing of pure economic  loss to other people as a result of our actions would intolerably restrict action itself. negative  Since, for instance, any business  economic  consequences  for  some  venture may well  competitors,  have  commerce  and  markets would not be possible i f people were to be held liable for all of the economic consequences  of  their actions.  Physical  injury  to persons or  property, however, is not the general and necessary consequence of most action.  Actions can  following.  generally  take  place  without  such  consequences  Therefore the law can require people to take care not to cause  physical harm to others without unduly restricting action.  One  is  generally,  therefore,  liable  for  the  physically  harmful  consequences caused by one's actions, but not generally liable for the purely economic consequences.  The issue of whether the law requires a person to  take care in regard to a particular set or kind of consequences is also often stated in the form of the question: Did the defendant owe the plaintiff of care?—which  a duty  would mean—Did the defendant owe the plaintiff a duty  to take care not to cause the particular kind of loss suffered?—for example, a pure economic loss.  2. T H E RISK ISSUE  The answer to the above question is determined within the law by the teleological considerations which underlie the structure of rules making up the law of negligence.  The basic goal of the law of c i v i l obligations is  the facilitation of human action. action  from  The law of torts protects freedom of  "wrongful" interference.  The law  of  negligence  imposes  a  standard of care on agents to require them to take reasonable precautions when acting so as not to interfere with the actions of other persons. standard must not be so high as to obstruct action. imposed  regarding  limiting action.  the  prevention  harm  without  seriously  A standard cannot be imposed preventing  economic loss to others when we act. owed  physical  A standard can be  Therefore a duty of care is owed regarding the prevention  of physical harm when we act.  care is  of  That  to  prevent  economic  Consequently, in general, no duty of loss to  others  when  we  act.  Thus  teleological considerations which are to be found within the law are the basis for the resolutions which the law produces.  The law of negligence imposes liability only for harm caused through or  by  our  actions  which  we  could  consequently could have prevented.  have  reasonably  foreseen,  and  Reasonable foreseeability of harm is,  therefore, a necessary condition for responsibility and liability.  We cannot  be held responsible for harm which we could not reasonably foresee and, therefore, could not have prevented.  In every negligence case, therefore, the  question  the defendant  will  arise as to whether  could have  foreseen the harm which resulted from her or his action.  reasonably  T h e answer to  this question often takes the form of a conclusion that: The defendant owed no duty of care to the plaintiff—because harm.  there was no foreseeable risk of  Where there is a foreseeable risk of harm as a potential result of a  particular act, then a duty of care arises to see that the act is carried out in such a way that  the harm does not materialize.  The proximity of  the  plaintiff to the defendant is often a critical element in ascribing a duty in this sense of its usage.  A postal clerk would owe no duty to handle a  package with special care i f he could not foresee that the package contained nitroglycerin.  84  3. T H E STANDARD OF CARE ISSUE  Negligence is a normative concept in the sense that a person is only judged to be negligent i f their conduct has fallen below a certain standard of care: thus the use of the qualifier "reasonable". The standard of care is the norm of conduct which ought to have been followed.  Even though an  agent may have been non-negligent with respect to foreseeability, the agent may be negligent with respect to the standard of care which ought to have been taken  in the  light of  the foreseen  risk  Even i f  a certain  action  entailed a foreseen risk of harm, the precautions which the defendant took in regard to it, might well have been reasonable, or, in other words, have met  the  standard of  care.  The standard of  care sets the  duty.  The  defendant owes a duty to meet that standard, and i f the standard has not been met, then the defendant would be said to be in breach of a duty of care.  A defendant who maintains a cricket field could be found by a court  to owe  no duty to a plaintiff  struck by a cricket  ball, to maintain a  sufficiently high fence to prevent balls from leaving the field where the probability is that balls would very seldom be struck that high or f a r .  4.  8 5  THE REMOTENESS ISSUE  The harmful consequences conditions for further harm.  of a negligent act are often  themselves  As a result of an accident caused by the  defendant's negligence the plaintiff might require medical treatment. medical treatment  may produce further harmful  The  complications which in  turn may cause a further economic loss. Each particular harm must be dealt with separately.  If, for example, the defendant, while driving negligently,  hits the plaintiff and breaks his leg, and while the plaintiff is lying on the road, a third person steals his wallet, there would be no question of the defendant's liability for the broken leg.  However, an issue would arise as to  whether the defendant owed a duty of care in regard to the wallet.  As a  result of wearing a cast, the plaintiff might later fall and break his other leg.  The issue of whether  the defendant  would be liable for the  loss  resulting from the second break would generally be phrased in terms of duty of care language.  5. THE CONFUSION OF DIFFERENT KINDS OF ISSUES THROUGH THE USE OF DUTY LANGUAGE  Where, for example, an experimental laboratory negligently allows a highly contagious virus to escape which results in the death by disease or by governmentally-required slaughter of all the cattle in a particular area, and an auctioneer suffers economic loss as a result of the closing of the cattle  market, the legal issue which would arise would be put in terms of whether or not the defendants owed the the auctioneer a duty of care in regard to his loss of business profits.  86  This might mean, however, one or more of  several different things:  1.  It might raise the issue of whether or not people are required to exercise  any care at all to prevent others from suffering an economic loss.  2.  It might raise the  issue of  whether  or not the  economic  loss  was  foreseeable.  3.  It might raise the issue of whether, if the economic loss was foreseeable,  the defendant did everything which she or he ought to have done to prevent the loss, or in other words whether the defendant met the required standard of care.  4.  It might raise the issue of whether the economic loss was too remote  from the original negligence relating to the spread of the infectious disease for the courts to award recovery.  The essential issue in this case, given that the escape of the virus was due to the negligence of the defendant, is one of remoteness. negligence  is a necessary  A finding of  condition for an issue of remoteness  to arise.  Physical harm to some can often result in economic loss to others.  Where  the line for recovery is to be drawn must be determined by teleological considerations.  It must be sufficiently wide as to affect people's behaviour  by  inducing them to take care not to be negligent, but sufficiently narrow  so  as  not  to  make  the  price  of  action  so  high  that  action  itself  is  discouraged.  Because of the ambiguity of the concept of duty of care, one would not want to use it as a primary term in constructing the knowledge base of an  expert  system.  Rather, one would want an analysis  elements or issues in a negligence  action  which  would  of the  essential  be stateable in  language independent of the concept of duty of care, but which could be related to it so as to justify outcomes with cases which use the standard duty language.  E. A Deep-structure Analysis of an Action in Negligence  The  following  analysis  LIABILITY IN NEGLIGENCE  some sense of  the  law  of  a  cause  of  action  was  developed  in  as a result of the domain expert's attempt to make of  negligence  negligence is broken into seven steps:  for  law  students.  A n action  87  1. The extension issue: Will the courts extend a standard of care to a particular kind of loss or activity? 2. The risk issue: Did the conduct of the defendant create a reasonably foreseeable risk of harm? 3. The standard of care issue: What is the standard of conduct which the courts will impose in respect to 2? 4. The negligence issue: Was the actual conduct of the defendant below the standard of care?  in  5. The causal issue: Was their a cause-effect relationship between the actual negligent conduct of the defendant and the loss or damage suffered by the p l a i n t i f f , or was the loss due to some other event?  6. T h e remoteness issue: How f a r down the chain of causation w i l l the courts impose l i a b i l i t y when the claim was occasioned by an act of negligence?  7. The damages issue: How are the damages to be measured?  The  concept of a duty of care is used in the law of negligence to deal with  four different kinds of legal issues, the extension issue, the risk issue, the standard  of  care issue, and  the  remoteness issue.  88  Consequently  these  different issues are constantly being confused in the cases and literature. In particular, issues of extension and issues of remoteness are seldom clearly differentiated.  In  constructing an expert system  in an area of law  which on the  surface appears to have a high degree of indeterminacy, there is one cardinal rule  which should be followed,  and which  constructing the Nervous Shock Advisor.  we  have  complied  with  in  That is: Do not build into it either  the d o c t r i n a l legal rules of the subject area, nor use the legal concepts found i n the doctrine i f they are the source or the subject matter of the indeterminacy. concepts conflicting  One must use an analysis which is independent of the legal  where those concepts are ambiguous or have been the subject of judicial  interpretation.  If a concept is clear within the law, and  the cases merely refine and develop the concept then there is no reason why that concept cannot be incorporated into the rules which lie at the heart of  the expert system, and i f the rules of law in a particular area are relatively clear and straightforward, then one should be able to incorporate  them and  their correlative legal doctrine directly into the knowledge base.  If, on the  other hand, the concept is the subject of alternative or conflicting judicial interpretation, as is often the case in case-based law, one should seek an alternative conceptual structure for the foundations of the knowledge base. The futility of attempting to reconcile all the cases with one another if they are taken at face value inspired the poet Tennyson to write the following lines.  ....The lawless science of our law, That codeless myriad of precedent, That wilderness of single instances.  89  Most lawyers have shared Tennyson's sentiments about the common law at one time or another.  F.  T h e Ambiguity of Duty in Nervous Shock  Where the subject area of the law that will  be the object of  the  expert system contains basic concepts that have several different meanings, the area of law requires an analysis whereby these different meanings can be separated and clarified.  The Nervous Shock Advisor is based on the  above seven step analysis of a cause of action in negligence.  It furnishes  the foundation framework upon which the knowledge base was built.  The  knowledge base is linked to a data base which produces the right cases which will furnish both the precedents and the traditional doctrinal level of discourse which is generally used for arguing the legal issues. In the case of  nervous  shock,  the  issues  are  generally  argued  in  terms  of  duty  and  f oreseeability.  Consider where, for example, a mother is watching her child on a roller coaster, and the car, as a result of a negligent design, leaves the track and the child is seriously injured in the fall.  As a result of witnessing the  accident, the mother suffers psychological trauma which prevents her from carrying out her profession for six months. would be put in terms of  The legal issue that would arise  whether or not the defendant  owner and/or  operator of the coaster owed the mother a duty of care in regard to her nervous shock.  This might mean, however one or more of several different  things:  1.  It  might  raise  the  issue of  whether  or not  the  defendant,  in  the  particular circumstances, is required to exercise any care at all to prevent others suffering from nervous shock.  2.  The question might raise the issue of whether or not the nervous shock  was foreseeable.  3.  It might be asking the question of whether the nervous shock was too  remote from the original negligence relating to the design of the coaster, for the courts to award recovery.  The law  of  nervous  shock  furnishes  a paradigm example  confusion of issues of extension with the remoteness issue.  of  the  As stated by one  judge, "no absolutely clear picture emerges and many of the judgments speak with different  voices."  90  A l l of the judges repeat the litany that a plaintiff  cannot recover from a defendant for nervous shock unless the defendant owed the plaintiff nervous shock  a duty of care.  Some of the judges, however, treat  as a cause of action separate from the negligence which  produced the harm which caused the shock, by using duty of care language to ask whether the defendant owed a duty to the particular plaintiff who suffered the nervous shock, to take care not to produce nervous shock.  91  One judge phrased the question in this way:  The first question which arises is whether nervous shock is a substantive tort or whether a particular instance of damage flowing from a particular tort. If the latter, recovery depends upon the question of remoteness. If the former, recovery depends upon a breach of duty. Legal writers and commentators have expressed contrary views, but in my opinion the authoritative view is that nervous shock, other than that flowing from a physical injury suffered by a claimant as a result of a negligent act, is a substantive tort. This then poses the problem of what is the duty the breach of which gives rise to a claim for damages for nervous shock. 92  Other judges see the issue as one of remoteness. subject is taken by L o r d Denning where he states:  This perspective of the  93  / cannot see why the duty of a driver should differ according to the nature of the injury. I should have thought that every driver was under a plain duty which he owed to everyone in the vicinity. He ought to drive with reasonable care. If he drives negligently with the result that a bystander is injured, then his breach of duty is the same, no matter whether the injury is a wound or is emotional shock. Only the damage is different...If you view the duty of care in this way, and yet refuse to allow a bystander to recover for shock, it is not because there was no duty owed to him...but simply because it was too remote to be admitted as a head of damage.  A different result is reached by viewing the driver's duty differently. Instead of saying simply that his duty is to drive with reasonable care, you say that his duty is to avoid injury which he can reasonably foresee, or, rather, to use reasonably care to avoid it. Then you draw a distinction between physical injury and emotional injury, and impose a different duty on him in regard to each kind of injury, with the inevitable result that you are driven to say there are two different torts—one tort when he can foresee physical injury, and another tort when he can foresee emotional injury. I do not think that that is right. There is one wrong only, the wrong of negligence.  The contradiction between the above two views runs throughout the nervous shock cases.  Often it is not clear from the words of many of the  judgments just which view the judge is taking, or whether the judge is clear about the distinction in her or his own mind. of  negligence,  which  underlies  the  The above analysis of the law  construction  of  the  Nervous  Shock  Advisor, dictates that nervous shock raises an issue of remoteness, since in the standard case of nervous shock, the shock is the result of a negligent act which causes some other physical injury or risk of such injury.  Extension,  risk, and a departure from a standard of care are generally assumed before a nervous shock issue can even arise. shock cases give  While the assumption that nervous  rise to a remoteness issue is an essential  one  organizational structure of the knowledge base and the data files, it  for  the  would  in no way hamper a user who wished to argue for the opposite point of view.  The Nervous Shock Advisor does not furnish the user with legal  arguments, but only the cases from which the argument should be made.  G. Contrary Doctrines of Remoteness  T o categorize nervous shock as a remoteness issue, however, does not take one very far.  The law relating to remoteness of damages arising from  negligent acts is a paradigm example of bifurcated doctrines.  For many  years in both the United States and the Commonwealth there have always been two mutually inconsistent tests for whether or not a particular damage was too remote-- the foreseeability test, and the causation test.  The leading  American decision which best illustrates the two different approaches is the decision of the New Y o r k Court of Appeals in Palsgraf v. Long Island Railway C o . while  9 4  A servant of the defendant railway company, in that case,  attempting  dislodged  to  a package  aid  a  which  passenger fell  on  boarding  the  fireworks which exploded when they  rails.  fell.  the  train,  negligently  The package  The shock of  the  contained explosion  caused a scale to fall over on to the plaintiff, causing her injury. majority  judgment  foreseeability test.  was  written  by  Cardozo  C . J . who  applied  The the  He held that the defendant could not be held liable to  the plaintiff unless he was in breach of a duty owed to her.  Since it was  not foreseeable that the package contained fireworks which would explode and cause the scales to fall, no duty to her was owed.  The conduct of the  defendant's guard, he wrote, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, Relatively to her it was not negligence at all. perceived defines the duty to be obeyed.  96  95  standing far away.  The risk reasonably to be  Andrews J., in his dissenting judgment, held that once a person is found to be negligent, they are liable for all the damage of which their negligence foreseeable.  is  the  approximate  He wrote:  cause, whether  or not  that  damage  was  97  As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way....What we do mean by the word "proximate" is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.  For many years a parallel to these two approaches could be found in the law of England which was also followed, in this regard, in Canada, Australia, and New Zealand.  The analogue of Andrew's test of approximate  cause in Palsgraf was the direct cause test of the English Court of Appeal in In Re A n Arbitration Between Polemis and Furness. Withy & Co. L t d .  9 8  In  that case the owners of a ship brought an action against the charterers of the ship whose servant had negligently dropped a plank into the hold of the ship causing an unforeseeable benzene fumes ship.  chain of events in which a spark ignited  which caused an explosion and fire which destroyed the  Bankes L . J . described the two conflicting tests, stating:  99  According to the one view, the consequences which may reasonably be expected to result from a particular act are material only in reference to the question whether the act is or is not a negligent act; according to the other view, those consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable.  Warrington L . J . stated:  100  The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequences of the act.  The House of Lords, in the later case of Hav (or BourhilO v. Young applied the foreseeability test, and in a judgment in every way consistent with that of Cardozo C.J. in Palsgraf. while not actually over-ruling Polemis gave a judgment quite incompatible with i t .  1 0 1  The "proximate" or "direct" cause test for remoteness is hardly a test at all because  there are no criteria  for determining what  is direct or  proximate.  It is quite understandable why judges  applying it.  The Privy Council, on an appeal from Australia, in Overseas  Tankship  (U.K.)  L t d . v. Morts  Dock  have felt  & Engineering  Co. L t d .  uneasy  1 0 2  in  ( now  commonly referred to as Wagon Mound No. 1) adopted the foreseeability test and  expressly  rejected  the  Polemis to be wrong in law.  "direct" or  Both have been frequently cited and almost  never actually applied or followed. was reported in 1928  applied in one case.  103  test, declaring  The subsequent history of Wagon Mound No. 1  and Palsgraf are very similar.  since Palsgraf  "proximate" cause  Prosser and Smith stated in 1952 that it had only actually been squarely  Prosser describes how the foreseeability test has been  applied in the United States as f o l l o w s :  104  Such piecemeal foresight is a rope of sand, and offers neither certainty nor convenience, as the floundering in the cases seems to show. Here is Learned Hand, a great judge blandly assuring us  72 that it is beyond reasonable anticipation that a barge with which the defendant collides will sink, and will be carrying insurance. Here is Pennsylvania twice asserting that no reasonable man could foresee that any object struck by a speeding train or bus would fly off at an angle and hit a person not directly in its path. Here is Wisconsin, affirming that when a child is run down in the street there is no recognizable risk that its mother, in the vicinity, may suffer mental shock. Here is New York solemnly declaring that the foreseeability of the spread of the fire ends at the first ad joining house. I do not believe these things, I think they are rubbish. At the other extreme is another New York case, finding it all foreseeable when a collision forced a taxicab over a sidewalk and into a building and loosened a stone, which fell on a bystander and killed her, while the taxicab was being removed twenty minutes later by a wrecking car. There is also Texas, which had no difficulty at all in foreseeing that a mud hole left by a defendant in a highway would stall a car, that a rescuer attempting to tow it out would get his wooden leg stuck in the mud and that a loop in the tow rope would lasso his good leg and break it. Illustrations might be multiplied, as every negligence lawyer knows, but surely these are enough.  Similar examples can be found throughout the common law world. In Canada, for instance, one court found that it was not foreseeable that a mother would suffer nervous shock when told of the death of two of her children and the severe injury of the third in a motor vehicle a c c i d e n t ,  105  while another court found that it was reasonably foreseeable that when a driver negligently losses control of her vehicle when attempting to avoid a cat, she would run into a wire fence; that the impact would pop out the staples holding the wire; that two weeks later dairy cows would come along and  eat  the  staples along  with  the grass,  and contract  "hardware disease" and would have to be slaughtered.  "reticulitis" or  106  N o sooner was Wagon Mound No. 1 reported than courts began to retreat from i t .  1 0 7  Just five years later, in Overseas Tankship (ILK.) L t d . v.  The Miller Steamship Co. Ptv. L t d . (now commonly referred to as the Wagon  Mound No. 2). a case arising from exactly involving  a  different  foreseeability possible.  108  test  ship,  from  the  Privy  reasonable  the same set Council  of  subtly  foreseeability  to  facts,  only  shifted  the  foreseeable  A t the level of the legal language used by the courts in both  cases the courts used a test of foreseeability of the damage or injury. injury  was  as  foreseeable  then  it  foreseeable then it is too remote. foreseeability test.  is  not  too  remote,  and  if  it  If the  was  not  There are, however, two versions of the  If the court decides to find the particular damage too  remote, it can justify the decision in terms of the Wagon Mound No. 1 test of reasonable foreseeability because the kind of damages which give rise to an issue of remoteness are seldom reasonably foreseeable.  If they were, they  would be a part of the initial risk of harm on which the judgment of negligence rests, and a question of remoteness would not arise.  If the court  finds the particular damage not too remote, it can justify the decision in terms of the Wagon Mound No. 2 test of foreseeable as possible because this will  cover  negligence.  almost  any  kind  of  injury  or  damage  which  can  follow  Consequently experts in the field of negligence consider the law  to be basically indeterminate and, therefore, u n p r e d i c t a b l e .  Commonwealth courts do not admit that they  109  have available  two  conflicting tests of remoteness, and in the academic literature concerning this topic most authors will be found to consider remoteness issues to be a matter of policy, or within the discretion of the judges.  110  Thus remoteness  of damages is an area which appears to be one of the most discretionary and the least rule-governed of any part of case-based law.  H. The Reformulation of Remoteness Doctrines into a Deep-structure Rule  On the basis of the  theory of negligence which was derived from  the theory of action set out in rule  was  decisions.  clarified  L A W  A N D  ITS P R E S U P P O S I T I O N S ,  which reconciles the  two  inconsistent  a deep-structure Wagon  It takes the form:  Physical damage to persons or property resulting from a negligent action are not too remote if they are reasonably foreseeable in the particular, or are one of a reasonably foreseeable class of injuries.  In particular it is reasonably foreseeable that:  1. Dangerous activities when carried out negligently create a wide variety of particular kinds of risks of harm; 2. Injury to persons can also result in further damage from particular susceptibilities or medical complication to the injured person or to others: and 3.  The creation of a risk invites rescue.  It can be concluded from the decided cases that as a general rule:  1. No physical injury or property damage caused by a motor vehicle accident is too remote. 2. No physical injury or property damage caused by a highly dangerous activity such as that involving the handling of explosives, highly inflammable or toxic substances, high voltage electricity, fire, or use of dangerous objects or machinery is too remote.  Mound  75  3. No increased physical or emotional injury resulting f r o m an unusual or particular susceptibility of a person suffering damage as a result of a negligent act is too remote.  4. No medical complication resulting f r o m an injury to a person whether or not the complications are due to an act of a t h i r d party, whether negligent or not, is too remote.  5. No physical injury rescuer is too remote.  or nervous shock suffered  by a  6. Nervous shock resulting i n some f o r m of incapacity, suffered as a result of an injury or risk of injury to oneself or someone else is not necessarily too remote.  Ninety-two  percent  of  the  cases  which  raise  issues  of  remoteness  of  damages, decided by the courts of England, Canada, Australia, and New Zealand from the latter part of the 19th century up to the present, conform to  the  above  outcome.  rules  whatever  legal  doctrine  was  used  to  justify  the  111  I. A Deep-structure Analysis of Nervous Shock  Nervous shock, as a class of injury, is foreseeable, even though the specific circumstances are often not foreseeable in the particular. the cases show that recovery is not always given.  However,  When nervous shock is or  is not too remote cannot be justified or explained in terms of foreseeability, even though that is the rationale given for the decision in almost every decided case. Recovery is confined, however, to cases where there is a close family relationship between the person suffering the injury and the person suffering the shock, and to cases where the close relative had a certain  degree of  visual exposure  to the  event which caused the shock.  These  limitations create an exception to the more general rule of remoteness stated above.  Nervous shock is one of the foreseeable classes of injury which can  follow from a negligent act, but it is subject to the qualification t h a t :  112  Nervous shock resulting in some form of incapacity, is too remote unless it is inflicted on a near family relative as a result of witnessing or coming upon the immediate or near aftermath of a serious accident involving a family member.  Almost  all  the  decided  nervous  shock  cases  are  consistent  with  this  principle.  An  analysis  of  the  decided  cases  dealing  with  nervous  shock  indicates that recovery is allowed only in a sub-class of cases within the general category of nervous shock.  Nervous shock, at first glance, would  thus appear to be an exception to the deep-structure remoteness rule in that, although the class of injury is foreseeable, not every case within the class is recoverable as not being too remote.  There are two necessary conditions to  recover in an action for nervous shock: a degree of visual exposure to the shock-producing event, and a degree of close family relationship.  While at  first such limitations may seem arbitrary, the consistency with which they are applied without ever being expressly articulated in the legal doctrine, would indicate that a teleological factor is a work, limiting the range of recovery.  This should take us back to the two underlying policies which set  the limits of remoteness, (a) the prevention of harm, with (b) the minimum limitation on freedom of action.  L i f e experience, as it is brought before the courts in the form of legal disputes, show that in general nervous shock is suffered only when these two factors, (1) a visual exposure, and (2) a close emotional or familial relationship is present.  While nervous shock is a foreseeable consequence of  the creation of a physical risk of harm to people, it is not foreseeable over the class of all persons, and under a wide variety of circumstances as is the case with  the  other foreseeable  substances or dangerous articles.  categories  of  injury  such as  dangerous  A careful analysis of the cases leads us,  therefore, to a redefinition of the foreseeable class.  In the case of nervous  shock, while it is never foreseeable in the particular, it is foreseeable  that  members of a family sometimes do suffer nervous shock i f they are visually exposed to an accident or its close aftermath where someone dear and close to them is harmed. Nervous shock, therefore on a closer analysis turns out not to be an exception to the deep-structure remoteness rule after all since, the foreseeable  class cannot be described merely in terms of the kind of  injury, but must be described as well in terms of who suffers it and under what conditions.  J.  Preparing to Build a Knowledge Base Using F L E X Methodology  The F L E X methodology consists of the following fundamental steps:  1. Define a narrow and deep universe of discourse for the advisor.  2. Build a data base by gathering all the case law which falls within the universe of discourse as far back in time as desired, and within the selected jurisdictions. Make a short brief of each case.  3. Select the goal of the advisor.  4. Analyze the cases in terms of the traditional doctrine as expounded in the cases and in the legal texts.  5. Organize the case data base according to the initial analysis in terms of traditional doctrine.  6. Ascertain to what degree the traditional analysis can account for the decided cases.  7. If the traditional analysis can, in general, account for most of the decided cases, isolate out the "hard" cases and seek underlying patterns which might account for or explain them.  8. If the traditional analysis cannot account for the decided cases, develop a second analysis which is independent of the conceptual terms of the traditional analysis, in terms of which the data base of cases can be explained.  9. Formulate the second analysis into deep structure rules or principles which would appear to explain those patterns of decisions.  10. D i v i d e and analyze the data base of cases in terms of the second analysis.  11. Restructure the analysis and the deep structure rules until you are left with only a few random lower level decisions which may not fit the analysis. These can be assumed at this point to be wrongly decided.  12. Re-examine the cases in the data base and modify the briefs so that they include the relevant factors of the final analysis.  13. When this is done, the expert then conceives of possible hypothetical examples which might arise, and decides which to link into the system, and connects them to the cases which could be argued to be similar by analogy.  79 A t this point the expert and the knowledge engineer should be ready to go on  to  start  knowledge which  drafting  base.  is used  the specific  Standard for what  rules  expert system  which  will  form  methodology,  is termed "fuzzy systems",  113  part  of the  particularly should  that  be quite  adequate, and a good commercial shell such as M.1 should be s u f f i c i e n t .  K.  114  The Similarity Between the Way Lawyers Reason and the Back-chaining Control Strategy Used in Rule-based Expert Systems  There is a remarkable similarity between the way that lawyers reason and the goal-directed reasoning strategy used in rule-based expert systems like M . l .  T h e pattern of inference entailed in expert systems starts with the  identification of a goal that it wishes to achieve.  It then moves back from  the goal down paths of inference seeking a path to the facts which will sustain  the  goal  (backward  chaining),  115  or seeks  eventually reach the goal (forward c h a i n i n g ) .  116  a  path  which  will  Backward chaining is the  preferred control strategy when it comes to rule-based expert systems. can  be explained  in terms  of the following  It  set of rules which might  represent the knowledge base of a mini expert system which will  advise  whether an applicant is qualified for admission to a graduate p r o g r a m :  G O A L = Is applicant qualified for the grad program? (i.e. conclusion = applicant is qualified for the grad program or conclusion = applicant is N O T qualified for the grad program)  117  Rule 1 if applicant has law degree from an accredited law school in Canada, U.S. or Commonwealth country then applicant has undergrad law degree from a reputable institution  Rule 2 if applicant's overall average in each year of law school >70% then applicant's academic performance was above average  Rule 3 If applicant has practiced law in Canada with a high degree of competence for > 5 years then applicant has exceptional qualifications Rule 4 if applicant has post-grad degree in area relevant to thesis topic then applicant has exceptional qualifications  Rule 5 if applicant's thesis topic is in an area of interest to at least 2 faculty members and at least 2 faculty members are prepared to supervise the applicant then applicant's thesis topic meets faculty guidelines  Rule 6 if applicant has undergrad law degree from a reputable institution and applicant's academic performance was above average or applicant has exceptional qualifications and applicants' thesis topic meets faculty guidelines then applicant is qualified for the grad program  Rule 7 if_ applicant has N O T undergrad law degree from a reputable institution or applicant's academic performance was N O T above average and applicant has N O T exceptional qualifications or applicants' thesis topic does N O T meet faculty guidelines then applicant is N O T qualified for the grad program  The inference engine will scan the knowledge base until it finds the first rule with  a conclusion  happens to be Rule 6.  which satisfies its goal.  In this  case, that  rule  The inference engine will then attempt to satisfy in  turn each of the premises of Rule 6 which precede the conclusion beginning at the first one.  It will then wind its way back through the other rules  seeking as sub-goals other premises it must satisfy in order to conclude that each of the premises which comprise Rule 6 are true.  If any one of the  premises of Rule 6 fail (except those connected by or which must both fail) the overall conclusion of the rule must fail and the inference engine passes on to consider Rule 7. because failure to satisfy  Rule 7 will necessarily  succeed  i f Rule 6 fails  any of the premises of Rule 6 will satisfy  the  conclusion of Rule 7.  The illustration of back-chaining which follows is from a lawyer's point of view.  more interesting  It is a somewhat simplified but  essentially  accurate set of rules which could form the knowledge base of a mini-system which determines whether a client will be convicted of the criminal offence of driving with blood alcohol content in excess of .08%.  The back-chaining  reasoning pattern would be exactly the same in this case as in the previous example.  GOAL = will client be convicted of over .08? (i.e. conclusion = client will be convicted of over .08 or client will NOT be convicted of over .08) Rule 1 if each breathalyzer test taken not less than 15 minutes apart and all tests completed as soon as practicable and all tests completed within 2 hours of detention then statutory time limits complied with.  Rule 2 if at least two breathalyzer tests taken and statutory time limits complied with and lowest breathalyzer reading over .08 then the certificate shows blood alcohol content over .08.  Rule 3 if copy of certificate handed personally to client and significance of certificate explained to client then proper service of true copy on client.  Rule 4 i f clear photocopy of original certificate made or carbon copy compared and found identical then a true copy of original certificate made.  Rule 5 i f client told of right to counsel and client understood rights then Charter rights were properly given when client detained.  Rule 6 i f Charter rights were properly given when client detained and a true copy of original certificate made and proper service of true copy on client then the certificate of analyses is admissible.  Rule 7 i f the certificate of analyses is admissible and the certificate shows blood alcohol content over .08 then it is proved client's blood alcohol content exceeded .08 at the time.  83 Rule 8 if the client was actually driving a motor vehicle or the client was sitting behind the wheel with the engine running then the client was in care and control of a motor vehicle.  Rule 9 if the client was in care and control of a motor vehicle and it is proved client's blood alcohol content exceeded .08 at the time then client will be convicted of over .08.  Rule 10 if the client was N O T in care and control of a motor vehicle or it is N O T proved client's blood alcohol content exceeded .08 at the time then client will N O T be convicted of over .08.  I should emphasize that a real knowledge base is much more complex. The rules would be formulated using the  syntax  of a very high level  computer language rather than the abbreviated English I have chosen for the purposes of the example.  The knowledge base would also contain means  of generating questions to obtain necessary facts, as well as a whole host of other features.  I present these two examples  simply to illustrate how a  back-chaining control strategy works.  When lawyers reason they follow a pattern of inference similar  to back-chaining.  The lawyer's  dictated by the needs of the client.  legal system  particular case  Although lawyers are constrained by  and bound by a code of  essentially intellectual mercenaries.  is  The lawyer starts with that as a given  and then seeks means of achieving it. the rules of the  goal in any  somewhat  ethics, they  are  They start with a specific goal such as  recovery for a plaintiff in a specific cause of action.  The particular cause  of action such as a tort will have certain necessary  conditions.  If, for  example, the goal is a successful action in malicious prosecution, the lawyer will recall the necessary conditions such as:  1. The initiation of 2. judicial proceedings 3. which result in damage to the plaintiff's reputation, person, freedom, or property, and 4. which are terminated 5. in the plaintiff's favour, and 6. which were brought without reasonable cause, and 7. which were brought with malice.  Each of the above necessary conditions can be made the subject of rules or sets of rules, and each  necessary  condition can be linked with  phenomena by rules which are of the form (facts (necessary condition No. x ).  factual  a, b, and c) constitute  The lawyer will reason back through each to  discover i f a particular set of facts contains all the necessary and sufficient conditions for a successful cause of action.  L. How The Nervous Shock Advisor Works  The  Nervous  Shock  Advisor  (NSA) has  all  the  fundamental  characteristics of a rule-based expert system which were discussed earlier,  and these will not be reiterated. identifying its specific  features.  A t this point I shall limit myself It is designed  to act as an  assistant to lawyers and others with some legal training.  to  intelligent  Particular facts  are elicited from the user during the course of an interactive consultation which can be run on an I B M PC.  The machine requires a minimum of 512K  of R A M (Random Access Memory) i f the latest version of M.1 is used and the  knowledge  base  is  loaded  previously saved to a file.  in  a  compressed  form  which  been  If the knowledge base is loaded from source code  or an older version of M.1 is used, 640K of R A M is needed.  Consultations  are initiated by simply typing "go" and then responding to the asked.  has  questions  O n the basis of the facts provided, the user is advised whether or  not a client has a good cause of action in nervous shock, together with the confidence level of the opinion in percentage terms.  If there is no cause of  action, N S A will inform the user which material element of the plaintiff's case  is  lacking.  In  either  instance  it  will  supply  case citations  and  summaries of the case reports to justify its opinion i f the user wishes to see them.  The cases supplied are identified as falling into one or more of three  categories: on point, relevant by analogy and contra.  When N S A determines  that there is a cause of action, it offers the user the option of seeing two additonal groups of cases.  First, the cases in which the courts have allowed  recovery for the particular symptoms experienced by the client.  Secondly,  the cases on which the defendant is most likely to rely in order to defend the action.  In every consultation, the user is given the opportunity of  perusing the full text of the leading case on nervous shock.  A l l cases are  retrieved automatically from a data base which has been linked to the advisor.  118  A t any point during the consultation, the user can interrogate  the system and ask "why" in response to any question.  N S A will provide a  short text explanation of its reasons and then repeat the question.  A hard  copy of the consultation can be obtained if the computer being used is linked to a printer.  N S A was built at the Faculty of Law as part of the U B C - I B M Cooperative Project in Law and Computers. began  in M a y , 1986.  January, 1987.  The system was  The initial planning of N S A  substantially  Minor additions and refinements  completed  in early  were finished by March,  1987.  Since copyrighted software system  in  electronic  Arrangements  to  form  have  the  is required to run N S A , the working  cannot system  be  incorporated  demonstrated  Professor Robert T. Franson, Project Director. publicly  at  various stages of  its  into  may  be  this  made  thesis. through  N S A has been demonstrated  development.  119  A number of  consultations in hard copy are contained in Appendix A .  sample  These have been  included to give the reader a flavour of how N S A works in the absence of a hands-on demonstration.  H a r d copies of the Knowledge Base, Case File Index and Case File are to be found in Appendices B, C and D respectively.  The Knowledge  Base has comments throughout which explain in general terms how it works. The Case File Index conclusions inference.  aggregates the groups of cases which apply to  reached by N S A at  the end of  each  of  its many paths  the of  The Case File contains summaries of all the relevant cases on  87  nervous shock decided since 1888 in Canada, Great Britain, Australia and New Zealand (74 in all), as well as full text of what is currently the leading case.  XIV.  THE FUTURE OF LEGAL EXPERT  SYSTEMS  Expert systems in law will not be quite the same as the old idea of a slot machine kind of justice where you feed in the facts and the law and the machine cranks out a conclusive decision. systems generally  do not  contain first  merely the heuristic rules of the expert.  In the first place  principles.  Rather they  expert contain  They, therefore, do not and will  not contain "The Law" except as it might implicitly be assimilated in the expert's heuristic rules.  Being idiosyncratic to the particular expert whose  expertise is built into the advisors, they can have no authoritative standing. They are merely tools of research, but they powerful  and valuable  modified  with  new  particular domain. of legal research.  tools,  law,  and  because they  they can  could turn out to be very can  be  be  easily  comprehensive  updated  and  within  the  In fact, expert systems may become indispensable tools The writer of an article in the January, 1987, edition of  the American Bar Association Journal has suggested that lawyers may be liable for malpractice if  an expert system  has been created to cover a  particular area of the law and they fail to consult i t .  1 2 0  The other side of  the coin, as another writer has recently pointed out, is that a lawsuit could arise i f expert systems are consulted and fail to perform correctly, or give inaccurate or misleading  answers  leading  to  injury.  121  I mention  this  question of potential liablity only in passing because it would make a thesis topic in itself.  It does not seem unreasonable to hold lawyers liable for failing to consult an expert system given that they are much more user friendly than existing methods of legal research and that they provide answers which are tailor-made to fit the facts provided by the user. merely provide a general number of examples.  discussion of  Legal texts, by contrast,  an area illustrated by a limited  Q u i c L a w and L E X I S are useful, but they just provide  the lawyer with access to a list of cases which contain the key words or phrases  specified  by  her  or him.  These  computerized  distinguish the relevant cases from those not relevant.  systems  cannot  Furthermore, they  tend to provide either too much or too little in the way of raw material.  Legal expert systems are about as close as one can get to the busy lawyer's favourite research tool: the telephone. is of the essence. terms of  For practising lawyers, time  Their professional lives revolve around recording it in  billable hours or lamenting  the lack of  it.  When an unusual  problem arises, they do not waste time researching it from the ground up. They pick up the phone, run the facts by a friend with recognized expertise in the area, and get a quick opinion.  Once they have some sort of answer  which they know is basically correct, they can polish it up for themselves secure in the knowledge that they are on the right track.  A legal expert  system emulates this process with one important difference; namely, that the system is always available for a consultation whereas the friend might not be.  89  The most exaggerated claim made by a legal writer about expert systems is that made by John Miller, a lecturer in law from New Zealand. He  predicts  that  they  will  eventually  replace  lawyers  as a result of  advanced expert systems which will be produced by the F i f t h Generation Project in J a p a n .  122  Miller seems to have failed to grasp the fundamental  fact that expert systems are based on human expertise, or, if he has, he is unclear about how the human expert will be replaced by a machine.  However, as I indicated earlier, given the amount of talent and money being expended on developing Fifth Generation Systems, it is highly likely that some form of advanced expert system will be produced and I cannot see why legal reasoning would be too complex for such systems. ...  Nor can it be assumed that legal expert systems would not be created as a matter of priority. A state has an obligation to make details of its law available to all its citizens. This can only be done properly with expert systems. Furthermore, lawyers have never enjoyed great popularity with the public and their suggested replacement, especially by a user friendly expert system would be a popular move. ...  The only hope that I can see is for the legal profession to seize the opportunities offered by modern technology to provide inexpensive highly efficient comprehensive legal service to all sectors of society. If this was done, attitudes would change and they would be seen as the appropriate controllers of expert systems rather than as suitable for re placement by them. 123  His  statements  dispassionate analysis.  have  the  ring  of  political  rhetoric  rather  than  It seems reasonable to conclude, therefore, that they  are intended for the ears of his government which, having abolished the right to sue for negligently caused personal i n j u r y , receptive to such ideas.  1 2 4  would presumably be  In the course of his article, he does admit with  respect to his predictions about expert systems and law that:  "Most lawyers  of course think that this is nonsense. the majority of my colleagues.  O n this issue I am in agreement with  A more realistic assessment of the  Fifth  Generation Project is given by Terry Winograd in a book he co-authored with  Fernando  Flores,  U N D E R S T A N D I N G  C O M P U T E R S  A N D  C O G N I T I O N .  1  2  6  Winograd's impeccable credentials put him in a much better position to give a balanced viewpoint than Miller.  He has been actively engaged for many  years  artificial  in  computer  science  and  intelligence  research  at  the  Massachusetts Institute of Technology, Stanford University, and Xerox Palo Alto Research Centre.  His work has centred around designing systems for  the representation and analysis of language and knowledge.  His conclusion  about the F i f t h Generation Project is as follows.  The grandiose goals, then, will not be met, but there will be useful spinoffs. In the long run, the ambitions for truly intelligent computers systems, as reflected in this project and others like it around the world, will not be a major factor in technological development. They are too rooted in the rationalistic tradition and too dependent on its assumptions about intelligence, language, and formalization. 127  In essence, we must heed the old adage and know ourselves better before we put too much faith in expert systems.  In a sense, these systems are a scam.  They skim the cream from the surface of the human mind without being fully aware of how it floated  to the top in the first place.  Cognitive  psychologists working in A l have had some useful insights about the nature of human expertise, but they are a long way from full understanding.  By  side stepping for the time being the issue of how the mind functions and instead  making use  of  its  end  products in conjunction with  relatively  straightforward techniques which were developed in the early days of A l , we have achieved an eminently pragmatic blend of human and machine.  In any event, in the long run, the real issue will be not whether human expertise can be removed from legal decision making but whether it ought to be.  There are some human functions for which computers should  not be substituted regardless of what they can or cannot be made to d o .  1 2 8  As intelligent assistants, legal expert systems can take lawyers very rapidly to a good jumping off point in their search for the solution to a particular  problem.  From  that  point onwards they  can use  their  own  creativity and ingenuity to reach a uniquely human solution to the problem. In this way, they will be spared the drudgery of sifting through a mass of irrelevant  material  and  the  overlooked some critical detail.  stress  of  wondering  whether  they  have  Most lawyers I know have experienced the  horror of waking up with the cold sweats in the early hours of the morning tormented by the thought that they have missed some vital point in their preparation of  a case.  They  bogged down in a morass of unifying structure.  have also known the frustration of being detail without  being able  to discern any  In effect, the expert system reasons by analogy up to a  point by fitting the user's facts  into a framework constructed from  the  basic elements that are necessary to support a cause of action based on those particular facts.  It is then left to the lawyer's own imagination to refine  and extend the analogy in more subtle ways which will best support his client's case.  Given the present state of the art in A l , this is the best that  92  can be done to overcome what has been seen to be a conceptual stumbling block in the way of the development of legal expert systems.  Most legal problems tend to be poorly defined and broad-ranging. Moreover, they typically involve large amounts of common sense and reasoning by analogy — things that existing expert systems are unable to do. 129  The day when computer systems will be able to reason using analogy and common sense in a way that comes close to what humans do is a long way off.  The most ambitious attempt to achieve this goal is the C Y C Project  undertaken by Microelectronics & Computer Technology Corp. of Texas.  130  The project just began and has a 10-year life span.  Austin,  Basically, it  involves building a massive knowledge base of real world facts, heuristics and methods for efficiently reasoning over the whole knowledge base which would themselves be contained within it.  In effect, it is an attempt  to  simulate in a machine the rich background of information acquired over a lifetime which humans draw upon when they reason about anything, but which they take completely for granted.  In the final analysis, the validity of legal expert systems must be ascertained in terms of their practicality and usefulness. be purely pragmatic. Indeed, they  Practising lawyers  are nothing i f  are pragmatic to the point of  amoral by some people.  The test will thus not pragmatic.  being considered  downright  If practitioners are showing an interest in expert  systems - and they are, at least in the U.S. - it is safe to assume that the  technology has passed a fairly rigorous kind of acid test.  Despite the relatively small number of expert systems that now exist for the law there is much interest in developing commercial legal applications. Many law firms and insurance companies are seriously exploring this technology, some even creating expert system groups or departments to perform in-house research and development. We predict that within a few years most of the ma for insurance companies and many legal firms will be heavily involved in the building of expert systems. 131  Expert systems, therefore, present a unique opportunity to test theory in terms of practice.  A r t i f i c i a l Intelligence  and legal reasoning is an area where  theory  meets practice with a vengeance and each stands to gain much from the interaction.  Legal problems and patterns of reasoning have furnished an  interesting body of material for testing and developing ideas in the field of artificial intelligence.  Equally, the technology and tools developed in A l , in  particular expert systems, furnish a new kind of empirical test for legal theory.  It well may be that in the next few years as more and more A l  methods  are used in law  drafting,  teaching,  to develop  and prediction, the  fundamentally altered.  aids  and tools for research,  way we  do legal  theory  legal  may be  A n d as jurisprudence may be transformed, the way  we practice law may be transformed as well.  NOTES Anne von der Lieth Gardner, AN ARTIFICIAL INTELLIGENCE APPROACH TO LEGAL REASONING, (Ph.D. dissertation, Stanford University, Report No. STAN-CS-85-1045, June 1984, Department of Computer Science). Also see Anne Gardner, Overview of Artificial Intelligence approach to legal reasoning, in Charles Walter (ed.), COMPUTER POWER AND LEGAL REASONING, (West Publishing Co., St. Paul, Minnesota, 1985) at 247274. Id. at  187.  Id. Id. at  188.  For a general introduction to the field see, Peter Jackson, INTRODUCTION TO EXPERT SYSTEMS, (Addison-Wesley Publishing Co., Menlo Park, California, 1986). Alex Goodall, THE GUIDE TO EXPERT SYSTEMS, (Learned Information, Medford, New Jersey, 1985). Donald A . Waterman, A GUIDE TO EXPERT SYSTEMS, (Addison-Wesley Publishing Co., Menlo Park, California, 1986). Paul Harmon and David King, EXPERT SYSTEMS: ARTIFICIAL INTELLIGENCE IN BUSINESS (John Wiley & Sons, New Y o r k , 1985) at 5. Jackson, supra note 5 at 1-18. R.I. Levine, D . E . Drang, and B. Edelson, A COMPREHENSIVE GUIDE TO AI AND EXPERT SYSTEMS, (McGrawH i l l , Toronto, 1986) at 3-24. Peter S. Sell, EXPERT SYSTEMS-A PRACTICAL INTRODUCTION, (John Wiley & Sons, New Y o r k , 1985) at 2-3. Donald A . Waterman, A GUIDE TO EXPERT SYSTEMS, (Addison-Wesley Publishing Co., Menlo Park, California, 1986) at 26. Donald Johnson, UP THE HILL, (Optimum Montreal, 1986) at 99.  Publishing  International,  Constantin V. Negoita, EXPERT SYSTEMS AND FUZZY SYSTEMS, (Benjamin/Cummings, Menlo Park, California, 1985). Richard Forsyth, Fuzzy Reasoning Systems, in Forsyth (ed.), EXPERT SYSTEMS PRINCIPLES AND CASE STUDIES, ( Chapman and H a l l , New Y o r k , 1984) at 51. R i c h a r d Forsyth, The architecture of expert systems, in EXPERT SYSTEMS, PRINCIPLES AND CASES STUDIES, Richard Forsyth ed. (Chapman and H a l l , London, 1984) at 10. Paul K i n n u c a n , Computers That Think Like Experts, (January, 1984), HIGH TECHNOLOGY 30 at 37.  I attended a course in December, Alto, California. John Shore,  T H E  S A C H E R T O R T E  1985,  at Teknowledge  A L G O R I T H M  A N D  O T H E R  Inc., Palo  A N T I D O T E S  T O  ( V i k i n g , Markham, Ontario, 1985) at 241. See pp. 241-244 for this writer's negative views about expert systems. It seems to me that his arguments about expert systems being part of the software crisis are refuted by the fact that by their very nature expert systems are small enough to be testable. Furthermore, they are designed to assist human decision making rather than to supplant it. C O M P U T E R  A N X I E T Y ,  Rock R. Farmer-Taylor, A Brief Review of Ignorance (June, 1985), C A N A D I A N A R T I F I C I A L I N T E L L I G E N C E 27 at 27. Jackson, supra note 5 at 19.  Engineering  Harman and K i n g , supra note 6 at 134.  Harmon and K i n g , Id. at 15. F . Hayes-Roth, D . A . Waterman, D.B. Lenat, B U I L D I N G E X P E R T S Y S T E M S , (Addison-Wesley Publishing Co., Menlo Park, California, 1983) at 9. C. Townsend and D. Feucht, D E S I G N I N G A N D P R O G R A M M I N G P E R S O N A L E X P E R T S Y S T E M S , (Tab Books Inc., Blue Ridge Summit, Pennsylvania, 1986) at 15. Harman and K i n g , supra note 6 at 145. Jackson, supra note 5 at 177. Waterman, supra note 5 at 247. supra note 18 at 108.  Hayes-Roth, Waterman, and Lenat,  Goodall, supra note 5 at 29. Joseph Weizenbaum, C O M P U T E R P O W E R A N D Freeman and Co., New Y o r k , 1976) at 277-278. R i c h a r d S. Rosenberg, C O M P U T E R S A N D T H Wiley & Sons Inc., Toronto, 1986) at 362.  R E A S O N  (W.H.  S O C I E T Y ,  (John  H U M A N  E I N F O R M A T I O N  Sholom M . Weiss and Casimir A . K u l i k o w s k i , A P R A C T I C A L G U I D E T O D E S I G N I N G E X P E R T S Y S T E M S , (Rowman & Allanheld, New Jersey, 1984) at 106. For an overview see Charles Walter, supra note 1. Susskind, Expert Systems in Law: A Jurisprudential Artificial Intelligence and Legal Reasoning, (1986), 49 T H R E V I E W 168. Waterman, supra note 5 at 267.  Richard E. Approach to E M O D E R N  L A W  For examples see: D. Shpilberg, L . E . Graham, and H . Schatz, ExperTAX : an Expert System for Corporate Tax Planning, (1986) 3 E X P E R T S Y S T E M S 136, and Dean A . Schlobohm, TA—A Prolog Program Which Analyzes Income Tax Issues Under Section 318(a) of the Internal Revenue Code, in Walter, supra note 1 at 765; R. Hellawell, A sm  Computer Program for Legal Planning and Analysis: Taxation of Stock Redemptions (1980), 80 C O L U M B I A L A W R E V I E W 1363. L . Thorne McCarty, Reflections on Taxman: An Experiment in Artificial Intelligence and Legal Reasoning (1977), 90 H A R V A R D L A W R E V I E W 837. The TAXMAN Project: Towards a Cognitive Theory of Legal Argument, in B. Niblet (ed.) C O M P U T E R S C I E N C E A N D L A W , (Cambridge University Press, Cambridge, 1980) at 23. W.G. Popp and B. Schlink, Judith, A Computer Program Lawyers in Reasoning a Case (1975), 15 J U R I M E T R I C S 303.  to  Advise  D . A . Waterman and M . A . Peterson, Models of Legal Decision making, in P. K l a h r and D . A . Waterman (eds.) E X P E R T S Y S T E M S , T E C H N I Q U E S , T O O L S , A N D A P P L I C A T I O N S , (Addison-Wesley Publishing Co., Menlo Park, California, 1986) at 135. M . Peterson and D . A . Waterman, An Expert Systems Approach to Evaluating Product Liability Cases, in Walter, supra note 1 at 627. D . A . Waterman, J. Paul, and M . Peterson, Expert Systems for Legal Decision Making (1986), 3 E X P E R T S Y S T E M S 212. Goodall, supra note 5 at 20. Waterman, supra note 5 at 269. Cary G . DeBessonet, A Proposal For Developing the Structural Science of Codification (1980), 8 R U T G E R S C O M P U T E R & T E C H N O L O G Y L A W J O U R N A L 47. An Automated Approach to Scientific Codification (1982), 9 R U T G E R S C O M P U T E R & T E C H N O L O G Y L A W J O U R N A L 27. An automated Intelligent System Based on a Model of a Legal System (1984), 10 R U T G E R S C O M P U T E R & T E C H N O L O G Y L A W J O U R N A L 31. C . G . DeBessonet and G . R . Cross, Representation of Some Aspects of Legal Causality, in Walter, supra note 1 at 205. C . G . DeBessonet, J. Hintze, and W. Waller, Automated Retrieval of Information: Toward the Development of a Formal Language For Expressing Statutes (1979), 6 S O U T H E R N U N I V E R S I T Y  L A WR E V I E W  1.  Laymen E . A l l e n , A Language-Normalization Approach to Informational Retrieval in Law (1968), 9 J U R I M E T R I C S J O U R N A L 41. L . E . Allen and C.S. Saxon, Computer Aided Normalizing and Unpacking: Some Interesting Machine-Processable Transformations of Legal Rules, in Walter, supra note 1 at 495. L . E . Allen and C.S. Saxon, One Use of Computerized Instructional Gaming in Legal Education: To Better Understand the Rich Logical Structure of Legal Rules and Improve Legal Writing (1985), 18.2 J O U R N A L O F L A W R E F O R M 383. Grayfred B. Gray, Statutes Enacted in Normalized Form: The Legislative Experience in Tennessee, in Walter, supra note 1 at 467. James A . Sprowl, Automating the Legal Reasoning Process: A Computer That Uses Regulations and Statutes to Draft Legal Documents (1979), 1 A M E R I C A N  B A RF O U N D A T I O N  R E S E A R C H J O U R N A L  See for example, Carole D. Hafner, C O M P U T E R  M O D E L  O F  L E G A L  at  3.  A N I N F O R M A T I O N  K N O W L E D G E ,  (UMI  S Y S T E M  B A S E D  Research  O N A  Press,  Michigan, 1981) and the authors included in Walter, supra note 1, and in B. Niblet (ed.), supra note 27. R i c h a r d E . Susskind, supra note 25 at 183. Id. at 181. Id. at 183-184. The consensus as to what constitutes the proper practice of medicine is not as clear as one might think at first glance. As well as the standard medicine taught in the medical schools there are such methodologies as naturopathic medicine, holistic medicine or homeopathic medicine. The debates about what is the proper or best form of medicine, however, are different than the jurisprudential debates about law. The analogue of the medical debates would be disputes about whether mediation or adjudication is the best way to resolve disputes; or whether government regulation or adjudication is the best method of maintaining safety within an industry or protecting the environment. There is, on the other hand, no analogue in medicine to the issues in legal theory which separates positivists from realists or natural law theorists. For a contrast of medical and legal expertise see, Dietrich Rueschemeyer, Lawyers and Doctors: A Comparison of Two Professions, in V i l h e l m Aubert (ed.), S O C I O L O G Y O F L A W , (Penguin, Harmondsworth, Middlesex, England, 1969) 267 at 270-272. Constantin V . Negoita, supra note 11. This term was coined by my expert, Professor J.C. Smith. Donald A . Waterman, supra note 5, at 26-27. Anne von der Lieth Gardner, A N A R T I F I C I A L L E G A L R E A S O N I N G , supra note 1 at 6. Jack Batten, R O B I N E T T E , T H E D E A Canada, Toronto, 1984) at 210.  N  I N T E L L I G E N C E  O F C A N A D I A N  L A W Y E R S ,  A P P R O A C H  T O  (Macmillan of  Sholom M . Weiss and Casimir A . K u l i k o w s k i , A P R A C T I C A L G U I D E T O D E S I G N I N G E X P E R T S Y S T E M S , (Rowman & Allanheld, New Jersey, 1984) at 105. J.C. Smith, L E G A L O B L I G A T I O N , London, 1976) at 2.  (Athlone Press of the University of  A classic example is the courts' attempt to deal with computer technology using a piece of legislation which was enacted decades before computers were even conceived of. The Copyright A c t , R.S.C. 1970, c. C-30, was first adopted in 1921 and has remained  substantially unchanged ever since. In a recent case, the Federal Court (Trial Division) had to decide whether a computer program embodied in a silicon chip inside a computer is a subject matter in which copyright exists. The court found that it was by concluding that the original source code fell within the definition of "original literary work" and that the object code etched into the chip was a "translation" of that work. See: Apple Computer Inc. and Apple Canada Inc. v. Mackintosh Computers Ltd. (1986), 3 F . T . R . 118. 115 N . Y . 506, 22 N . E . 188 (1889). Fred Rodell, W O E U N T O Y O U , Brooklyn, New Y o r k , 1959) at 136.  L A W Y E R S ! ,  (Pagent-Poseidon  Ltd.  Rodell taught a seminar at the Yale Law School for many years. In this seminar, he taught and practiced his methodology by obtaining the briefs, factums, and material of cases before they were heard by the Supreme Court. Rodell then made his predictions and had his students make theirs by using his methods, and then verified the results by comparing them with the actual decisions of the Court when they were handed down. Oliver Wendell Holmes, The Path of the Law, in C O L L E C T E D P A P E R S , (Harcourt, Brace and Co., New Y o r k , 1920) 167 at 169.  L E G A L  Id. at 171. Id. at 173. See  for  example Roberto M . Unger, T H E C R I T I C A L L E G A L S T U D I E S (Harvard University Press, Cambridge, 1986). David K a i r y s (ed.) T H E P O L I T I C S O F L A W , (Pantheon Books, New Y o r k , 1982).  M O V E M E N T ,  Duncan  Kennedy,  H I E R A R C H Y ,  A  L E G A L  P O L E M I C  E D U C A T I O N  A G A I N S T  A N D  T H E S Y S T E M ,  T H E  (Afar  R E P R O D U C T I O N  O F  Press, Cambridge,  Massachusetts, 1983) at 39-40. H . L . A . Hart, Positivism and the Separation of Law and Morals, in Hart, E S S A Y S IN J U R I S P R U D E N C E A N D P H I L O S O P H Y , (Clarendon Press, Oxford, 1983) 49 at 62-72. H . L . A . Hart, T H E C O N C E P T O F L A W (Clarendon Press, O x f o r d , 1961) at 120-150. Anne von der Lieth Gardner, A N A R T I F I C I A L L E G A L R E A S O N I N G , supra note 1 at 38-41.  I N T E L L I G E N C E  A P P R O A C H T O  Ronald D w o r k i n , T A K I N G R I G H T S S E R I O U S L Y (Harvard University Press, Cambridge, Massachusetts, 1977) at 22. Id. at 36.  S.C. Coval and J.C. Smith, L A W A N D I T S Kegan Paul, London, 1986) at 115-124. J.C. Smith and D . N . Weisstub, London, 1983) at 398-435.  T H E  P R E S U P P O S I T I O N S  W E S T E R N  I D E A  O F L A W  (Routledge &  (Butterworths,  S.C. Coval and J.C. Smith, supra note 60. See for example Christian Bay, From Contract to Community, in Fred R. Dallmayr (ed.) F R O M C O N T R A C T T O C O M M U N I T Y (Marcel Dekker Inc., 1978) pp. 31-43, and Bay, Hayek's Liberalism: The Constitution of Perpetual Privilege (1971), 1 T H E P O L I T I C A L S C I E N C E R E V I E W E R 110-123. E.B. Pashukanis, The General Theory of Law and Marxism, in Hugh Babb, trans., S O V I E T L E G A L P H I L O S O P H Y (Harvard University Press, 1951) 193-201. R . E . Susskind, supra note 25 at 183-84. Paul Harmon and D a v i d K i n g , supra note 6 at 199-200. Hart,  T H E  C O N C E P T O F L A W ,  supra note 56 at 89-96.  Smith, supra note 46 at 42-59. 56 at 79-88.  Hart,  T H E  C O N C E P T  O F L A W ,  supra note  Smith, supra note 46. S.C. Coval and J.C. Smith, supra note 60 at 115-124. Noam Chomsky, A S P E C T S O F T H Cambridge, Massachusetts, 1965).  E T H E O R Y  O F  S Y N T A X  (M.I.T.  Press,  D . A . Waterman, J. Paul, and M . Peterson, Expert Systems for Legal Decision Making (1986), 3 E X P E R T S Y S T E M S 212 at 214. Julius Stone, L E G A L S Y S T E M A N D L A W Y E R S ' R E A S O N I N G S , (Stevens & Sons, London, 1964) at 235-300. E . H . Levi, A N I N T R O D U C T I O N T O L E G A L R E A S O N I N G , (University of Chicago Press, Chicago, 1949). O.C. Jensen, T H E N A T U R E O F L E G A L A R G U M E N T , (Blackwell, O x f o r d , 1957). N . Blodgett, Artificial B A R  A S S O C I A T I O N  Intelligence Comes of Age, (Jan. 1987)  J O U R N A L  68  at  A M E R I C A N  70.  J.C. Smith, L E G A L O B L I G A T I O N , (Athlone Press of the University of London, 1976) at 88-108. The moral philosopher, R . M . Hare, in F R E E D O M A N D R E A S O N (Oxford University Press, O x f o r d , 1965) at 35 argues that in contrast to moral judgments, legal judgments are not universalizable. He writes: "This is one reason why the word 'ought' cannot be used in making legal judgments; if a person has a certain legal obligation, we cannot express this by saying that he ought to do  such and such a thing, for the reason that 'ought'-judgments have to be universalizable, which, in the strict sense, legal judgments are not. The reason why they are not is that a statement of law always contains an implicit reference to a particular jurisdiction..." Hare is wrong in assuming that such judgments contain a specific reference to jurisdiction. One must distinguish between statements of judgments which contain a particular reference and are consequently not universalizable, and statements which, although they may contain a particular reference, are about judgments which do not. A n example of the latter is the statement that "In England the judgment is held that one ought not to kill bulls for sport". While the statement itself is not universalizable, the judgment which it expresses, "One ought not to kill bulls for sport," is. Thus, while it is the case that it is the courts of particular legal jurisdictions which make judgments that some action ought or ought not to be done, the judgments themselves are universalizable. See also, S.C. Coval and J.C. Smith, L A W A N D I T S P R E S U P P O S I T I O N S , supra note 60. J.C. Smith, ibid, at 89. Ibid, at 90-97. Ibid, at 174-189. S.C. Coval and J.C. Smith, supra note 60. J.C. Smith, supra note 46 at 185. 529 P. 2d. 553. See for example, Joan Breckenbridge, AIDS carriers put doctors in dilemma, The Globe and M a i l , Saturday, A p r i l 11, 1987, at 1. J.C. Smith, L I A B I L I T Y I N N E G L I G E N C E , Carswell, Toronto, 1984) at 7-13.  (Sweet and Maxwell,  London,  Parrott v. Wells Fargo & Co.. 15 Wall., U.S., 524, 21 L . E D . 206 (1872). Bolton v. Stone. [1951] A . C . 850. Weller & Co. v. Foot and Mouth Disease Research Institute. [1966] 1 Q.B. 569. J.C. Smith, supra note 83 at 3-7. Id. at 7-13. A l f r e d L o r d Tennyson, Aylmer's Field, 1864. Comyn J. in Whitmore v. Eurowavs Express Coaches L t d . . The Times, 4 May 1984, cited in F . A . Trinade, The Principles Governing the  101  Recovery for Negligently Caused Nervous Shock (1986), 45 L A W  J O U R N A L  476  at  C A M B R I D G E  476.  9 1  See for example H a v ( or Bourhill) v. Young. [1943] A . C . 92 (H.L.).  9 2  Abramzik v. Brenner (1962), 62 W.W.R. 332 at 335 (Sask. C.A.).  9 3  K i n g v. Phillips. [1953] 1 Q.B. 429 at 439 (C.A.).  9 4  1 62 N . E . 99.  9 5  Ibid.  9 6  Id. at 100.  9 7  Id. at 103.  9 8  [1921] 3 K . B . 560.  9 9  Id. at 569.  1 0 0  Id. at 574.  1 0 1  [1943] A . C . 92.  1 0 2  [1961] A . C . 388.  1 0 3  Y . B . Smith and William L . Prosser, C A S E S (Foundation Press, Brooklyn, 1952) at 231.  104  William L . Prosser, S E L E C T E D T O P I C S O N of Michigan, A n n Arbor, 1954) at 219.  A N D M A T E R I A L S  T H E L A W O F T O R T S ,  O N  (University  1 0 5  Abramzik v. Brenner. (1967) 65 D . L . R . (2d) 651 (Sask. C.A.).  1 0 6  Falkenham v. Zwicker (1978), 93 D . L . R . (3d) 289.  1 0 7  J.C. Smith,  1 0 8  [1967] 1 A . C . 617.  1 0 9  J.C. Smith,  1 1 0  Ibid.  1 1 1  Id. at 140.  1  1  2  L I A B I L I T Y  L I A B I L I T Y  L A W A N D I T S N E G L I G E N C E ,  1 1 3  IN N E G L I G E N C E ,  supra note 83 at 101-114.  IN N E G L I G E N C E ,  supra note 83 at 112.  supra note 75 at 21-25. supra note 83 at 131-161. P R E S U P P O S I T I O N S ,  Constantin V . Negoita, supra note 11.  T O R T S  L I A B I L I T Y  IN  Marketed by Teknowledge Inc., 1850 Embarcadero R d . , Palo Alto, C A 94303. Goodall, supra note 5 at 43. Id. at 45. This fairly simple example was put together for a lecture which I gave on Expert Systems in a class on legal reasoning. The linkage between the knowledge base and the data files was written in the C programming language by Doug A r n o l d , the Project Co-ordinator. Other valuable technical assistance was rendered by Don Johnson, the Project's Computer Systems Technician. The UBC-Queens University Joint Conference of Computers and Law on June 26, 1986. The Conference of Academic and Scientific Executives (CASE), an international conference sponsored by I B M , on October 8, 1986. The A n n u a l Meeting of the Association of American Law Schools at Los Angeles, California, on January 6, 1987. U B C Open House, March 7 & 8, 1987. N . Blodgett, supra note 74 at 70. Janet S. Zeide, Esq. and Jay Liebowitz, Using Expert Legal Perspective (Spring 1987) I E E E E X P E R T 19 at 20.  Systems: The  John Miller, Expert Systems - The end of the legal profession?, (1984), N E W Z E A L A N D L A W J O U R N A L 85 at 85-88. Id. at 87-88. Accident Compensation Act, 1972, No. 43. This A c t erodes the philosophical basis of Western law by permitting individual freedom of action without imposing a corresponding personal liability for negligence. John Miller, supra note 122 at 87. Terry Winograd and Fernando Flores, U N D E R S T A N D I N G C O M P U T E R S A N D C O G N I T I O N (Ablex Publishing Corp., Norwood, New Jersey, 1986) at 133-139. Id. at 138-139. Joseph Weizenbaum, C O M P U T E R P O W E R A N D H U M A N R E A S O N (W.H. Freeman and Co., New Y o r k , 1976) at 269-270. A full discussion of human versus machine decision making is beyond the scope of this paper. The subject is a highly controversial one. See for example: Anthony D'Amato, Can/Should Computers Replace Judges?, (1977) n G E O R G I A L A W R E V I E W at 1277; Albert J. Millus, Would You Settle for a  103  Robot on the Bench?, 57 N E W Y O R K S T A J. Spengler, Machine-Made Justice: C O N T E M P O R A R Y  P R O B L E M S  at  B A R J O U R N A L at 22; and Joseph Some Implications, 2 8 L A W A N D  T E  37.  Paul Harmon and D a v i d K i n g , supra note 6 at 7. 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ARTIFICIAL INTELLIGENCE: Some Legal and Implications. (1983) IV(2) A . I . M A G A Z I N E 5.  Approaches  Zeide, Janet S. and Jay Liebowitz. Perspective. (Spring 1987) I E E E E  The Legal  Using Expert 19.  X P E R T  Systems:  APPENDIX A  SAMPLE CONSULTATIONS  SAMPLE CONSULTATION NO. 1 HYPOTHETICAL A man is standing on a downtown street talking to a friend. His ten-year-old son is part way down the same block on the sidewalk watching workmen on a construction site where a new office tower is being built. The skeleton of the building is in place and work is going on at several different levels which are as yet unenclosed. O n one of the upper floors, a workman has negligently failed to secure a piece of machinery properly. The machine begins to roll towards the edge of the building where it borders the street. One of the workmen yells a warning just before the machine rolls over the edge. The father turns and sees the machine fall and crush his son to death. He suffers nervous shock. He is often depressed about his son's death and sometimes contemplates suicide. C a n he recover?  CONSULTATION F L E X >go  *.*.*.*  Welcome to Nervous Shock Advisor  *-*-*-*  I will tell you whether or not your client has a cause of action in nervous shock. Simply type your answers to my questions on the keyboard located below the screen. If you wish to know why a particular question is being asked, feel free to type "why" in response to the question. Y o u may also type "unknown" i f you are unable to answer a particular question. If so, I shall canvass whatever other options are available to me. [The banner appears whenever a consultation is started, but will not be duplicated in the subsequent examples.] Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results? 1. negligent 2. deliberate » 1 Was the nervous shock sustained as the result of an incident in which any person or persons, including the plaintiff, suffered physical harm or the risk of such harm? ( N O T E : Option No.3 necessarily implies that there was more than one victim). 1. harm 2. risk 3. both 4. neither » 1  Who was the victim of the incident which caused the nervous shock: the plaintiff, a third-party or both? ( N O T E : If there was more than one third-party victim, your responses to any questions about a third-party should relate to the most serious case only). 1. plaintiff 2. third-party 3. both  »2  Was the other person killed? »yes Is your client closely related to the other person? »yes Is the other person a member of your client's immediate family; namely, the child, spouse, parent or sibling of your client? ( N O T E : Regard a step-relationship as equivalent to a natural one i f the person was treated like a member of the natural family and a grandparent as equivalent to a parent i f the grandparent had been filling the role of a parent). 1. child 2. spouse 3. parent 4. sibling 5. neither » 1 D i d your client see the incident happen? »yes D i d the nervous shock cause an expense, a loss of income or an incapacity which was sufficiently serious to support a claim for damages? »yes Into which of the following general categories did the symptoms of nervous shock fall: physical illness; mental disorder; sleep disturbance? Separate each option by a comma i f more than one is applicable 1. physical-illness 2. mental-disorder 3. sleep-disturbance  »2  JUDGMENT:  an action lies 100 percent.  The following is a breakdown of the various elements involved in this decision. If any element has a certainty factor of less than 100% you should regard it as a weak link in the chain and focus on bolstering your case in that area.  Negligence established 100 percent. Appropriate triggering event 100 percent. Third-party principal victim 100 percent. Certainty not increased because only one victim involved. Sufficiently serious incident 100 percent. Plaintiff connected to the victim 100 percent. Plaintiff exposed to incident 100 percent. Damage proved 100 percent. I am pleased to inform you that your client has a cause of action for nervous shock. Would you like to peruse the cases which support my decision? »yes Press Enter to continue... T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T SITUATION:  * DEATH—CHILD—WITNESS * CASES O N POINT: 1 Howes v. Crosby (1984), 45 O.R. (2d) 449, 6 D . L . R . (4th) 698, 29 C . C . L . T . 60 (C.A.). 2 Richards v. Baker, [1943] S.A.S.R. 245 (S.C). *  Other Family Relationships  3 Storm v. Geeves, [1965] Tas. S.R. 252 (S.C). 4  Walker v. Broadfoot, [1958] O.W.N. 173 ( H . C ) .  * RELEVANT BY ANALOGY: * Injury—Related—Witness 5 Pollard v. Makarchuk (1958), 26 W.W.R. 22 (Alta. S.C). Pg D n to continue ... Enter the number of the case you wish to see: 1 [When the selection is made and the "Enter" key pressed, the text of the case summary appears on a new screen.]  Howes v. Crosby (1984), 45 O.R. (2d) 449, 6 D . L . R . (4th) 698, 29 C . C . L . T . 60 (C.A.). FACTS The plaintiff mother was walking along the shoulder of a road holding her young daughter's hand when the girl was struck from behind by a  128  car driven negligently by the defendant. The brother and sister of the victim were also walking with their mother and witnessed the accident. The father came to the scene immediately and attempted to give mouth to mouth resuscitation to his child but the young victim died. The entire family sued and recovered for nervous shock.  SYMPTOMS P. 452 ... "As noted earlier, the attack is made on the awards to Susan and David. Janet was five at the time of her death, Susan was seven and D a v i d was sixteen.  (a) Susan [In cases which are relevant for their F A C T S , the full S Y M P T O M S portion of the case will not be shown.] [Exit from data file.] Y o u said that your client had mental problems. Would you like to peruse the cases which relate to these symptoms? »yes Press Enter to continue... T H E F O L L O W I N G CASES A R E R E L E V A N T T O M E N T A L SYMPTOMS:  1 Walker v. Broadfoot, [1958] O.W.N. 173 (H.C.) (depression, suicide). 2 H i n z v. Berry, [1970] 2 Q.B. 40, [1970] 2 W.L.R. 684, [1970] 1 A l l E . R . 1074 ( C A . ) (depression, suicidal ruminations). 3 Brice v. Brown, [1984] 1 A l l E . R . 997 (Q.B.) (insanity). 4 Tsanaktsidis v. Oulianoff (1980), 24 S.A.S.R. 500 (S.C.) (severe depression). 5 Montgomery v. Murphy (1982), 37 O.R. (2d) 631, 136 D . L . R . (3d) 525 (H.C.) (depression). 6 K o h n v. State Government Insurance Commission (1976), 15 S.A.S.R. 255 (S.C.) (intensified depression). 7 M c L o u g h l i n v. O'Brian, [1982] 2 W.L.R. 982, [1982] 2 A l l E . R . 298 (H.L.) (personality change). 8 Fenn v. City of Peterborough (1976), 14 O.R. (2d) 137, 1 C . C . L . T . 90, 73 D . L . R . (3d) 177, varied 25 O.R. (2d) 399, 9 C . C . L . T . 1 ( C A . ) (loss of pride and self-respect). 9 Hogan v. City of Regina (sub. nom. M c N a l l y v. City of Regina), [1924] 2 W.W.R. 307, 18 Sask L . R . 423, [1924] 2 D . L . R . 1211 ( C A . ) (amnesia). Pg D n to continue ...  Enter the number of the case you wish to see:  2  Hinz v. Berry, [1970] 2 Q.B. 40, [1970] 2 W.L.R. 684, [1970] 1 All E.R. 1074 (C.A.). FACTS The plaintiff, her husband, and their children were on an outing. The plaintiff was picking flowers on the one side of the street while her husband was on the other near the parked van with the children. A car driven by the defendant went out of control and crashed into the husband and children. Upon hearing the crash, the plaintiff turned around and saw the aftermath of the accident. There was blood everywhere. She ran across the road to attend to her family. The husband died and the children were severely injured. As a result of witnessing this tragedy the plaintiff suffered a morbid depression and had frequent suicidal ruminations. Her claim for recovery in nervous shock was permitted. SYMPTOMS P. 43 ..."she is suffering from a morbid depression; she is now officially ill. ... irritable with the children ... exhausted, has frequent suicidal ruminations and at the same time is covered with guilt at being like this. At the trial, five years after the accident, she frequently broke down when giving evidence." P. 44 ... "period of not far short of six years, in a sad and depressed state. ... she has been and still is in a positively morbid state. There is a recognisable psychiatric illness. ... the lady is not only sad and depressed but is in a morbid state of depression..." [Exit from data file.] The most effective defence to an action in nervous shock is often that of insufficient proof of damages. Would you like to see the cases where this argument succeeded? »yes Press Enter to continue...  T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T SITUATION:  * NO PROOF OF L E G A L L Y RECOGNIZED DAMAGES * * * * * * *  Nervous shock is a legal, not a medical term. It includes a variety of symptoms resulting from the mental trauma produced by an accident or its aftermath. In contrast, damages are not recoverable for pure grief and emotional suffering. Damages for nervous shock are often difficult to prove so often the most effective defence is the argument that there is insufficient proof of the kind of damages which are recoverable in an action for nervous shock.  * Plaintiff Harmed A n d T h i r d Party Harmed 1 G r i f f i t h s v. C.P.R. (1978), 6 B . C . L . R . 115 (C.A.). 2 Kernested v. Desorcy, [1978] 3 W.W.R. 623, affirmed [1979] 1 W.W.R. 512 (Man. C.A.). 3 Rowe v. McCartney, [1976] 2 N.S.W.L.R. 72 (C.A.). * Plaintiff Risk A n d T h i r d Party Harmed Pg D n to continue ...  Enter the number of the case you wish to see:  3  Rowe v. McCartney, [1976] 2 N.S.W.L.R. 72 (C.A.). FACTS The plaintiff was the owner of a car and reluctantly permitted her friend to drive it. The plaintiff and her friend were involved in a motor vehicle accident and, as a result, the plaintiff suffered some physical injuries and her friend was rendered a quadriplegic. T h e accident was due solely to the negligence of the plaintiff's friend but the plaintiff suffered depressive neurosis as a result of her feelings of guilt for having permitted her friend to drive the car. Her claim for recovery on the basis of nervous shock was dismissed. [Exit from data file.]  Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »yes Press Enter to continue...  LEADING CASE  1 F u l l Text: M c L o u g h l i n v. O'Brian, [1982] 2 A l l E . R . 298 (H.L.). * T h e following are also important and leading cases for the law * of nervous shock. Y o u may wish to look at their summaries. 2 3 4 5 6 7  Jaensch v. Coffey (1984), 54 A . L . R . 417, 58 A . L . J . R . 426 (H.C.), affirming 33 S.A.S.R. 254 (Sup. Ct. F.C.). Hambrook v. Stokes Brothers, [1925] 1 K . B . 141 (C.A.). H i n z v. Berry, [1970] 2 Q.B. 40, [1970] 2 W.L.R. 684, [1970] 1 A l l E . R . 1074 (C.A.). Boardman v. Sanderson, [1964] 1 W.L.R. 1317 (C.A.). K i n g v. Phillips, [1953] 1 Q.B. 429, [1953] 2 W.L.R. 526, [1953] 1 A l l E . R . 617 (C.A.). H a y (or Bourhill) v. Young, [1943] A . C . 92, [1942] 2 A l l E . R . 396 (H.L.).  Enter the number of the case you wish to see: 1 F u l l Text: M c L o u g h l i n v. O'Brian, [1982] 2 A l l E . R . 298 (H.L.). FACTS L o r d Wilberforce, L o r d Edmund-Davies, L o r d Russell of K i l l o w e n , L o r d Scarman and L o r d Bridge of Harwich 15, 16 February, 6 May 1982 APPEAL The plaintiff, Rosina M c L o u g h l i n , appealed against the judgment of the Court of Appeal (Stephenson, Cumming-Bruce and Griffiths L J J ) ([1981] 1 A l l E R 809, [1981] Q B 599) given on 16 December 1980 dismissing her appeal against the judgment of Boreham J on 11 December 1978 whereby the judge dismissed her claim against the defendants, Thomas A l a n O'Brian, A E Docker & Sons L t d , Raymond Sygrove and Ernest Doe & Sons L t d , the respondents to the appeal, for damages for shock, distress and injury to her health. T h e facts are set out in the opinion of L o r d Wilberforce. Michael Ogden Q C and Jonathan Haworth for the appellant. Michael Turner Q C and John Leighton Williams for the respondents. Their Lordships took time for consideration.  132 6 May. The following opinions were delivered. L O R D W I L B E R F O R C E . M y Lords, this appeal arises from a very serious and tragic road accident which occurred on 19 October 1973 near Withersfield, Suffolk. The appellant's husband, Thomas M c L o u g h l i n , and three of her children, George, aged 17, Kathleen, aged 7, and G i l l i a n , nearly 3, were in a Ford motor car; George was driving. A fourth child, Michael, then aged 11, was a passenger in a following motor car driven by M r . Pilgrim; this car did not become involved in the accident. The F o r d car was in collision with a lorry driven by the first respondent and owned by the second respondent. That lorry had been i n collision with another lorry driven by the third respondent and owned by the fourth respondent. It is admitted that the accident to the F o r d car was caused by the respondents' negligence. It is necessary to state what followed in full detail. As a result of the accident, the appellant's husband suffered bruising and shock; George suffered injuries to his head and face, cerebral concussion, fractures of both scapulae and bruising and abrasions; Kathleen suffered concussion, fracture of the right clavicle, bruising, abrasions and shock; G i l l i a n was so seriously injured that she died almost immediately. A t the time, the appellant was at her home about two miles away; an [Note: The judgment continues for many more pages.] [Exit from data file.] Thank you for consulting Nervous Shock Advisor. FLEX >  133 SAMPLE CONSULTATION NO. 2 HYPOTHETICAL Jane is i n her early twenties and lives with her boyfriend Dick who is approximately the same age. They both commute by bus to their jobs in different areas of the downtown core. They usually arrive home at their trendy townhouse at about the same time. One day Jane is walking home from the bus stop, when she sees a group of people standing around a person lying in the roadway who has been struck by a negligent driver some minutes earlier. Jane discovers that the victim is Dick and that he has been seriously injured. She suffers nervous shock. D i c k ultimately makes a f u l l recovery, but in the meantime Jane has recurring nightmares about this awful experience. Can she recover?  CONSULTATION Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results? 1. negligent 2. deliberate  »1 Was the nervous shock sustained as the result of an incident in which any person or persons, including the plaintiff, suffered physical harm or the risk of such harm? ( N O T E : Option No.3 necessarily implies that there was more than one victim). 1. harm 2. risk 3. both 4. neither  »1  Who was the victim of the incident which caused the nervous shock: the plaintiff, a third-party or both? ( N O T E : If there was more than one third-party victim, your responses to any questions about a third-party should relate to the most serious case only). 1. plaintiff 2. third-party 3. both » 2 Was the other person killed? »no D i d the other person suffer visibly serious injuries? »yes Is your client closely related to the other person? »no D i d your client and the other person live together in an intimate personal relationship analogous to a marriage? »yes  134  Did your client see the incident happen? »no Did your client arrive at the scene right after the accident and see the condition of the other person? »yes Did the nervous shock cause an expense, a loss of income or an incapacity which was sufficiently serious to support a claim for damages? »yes Into which of the following general categories did the symptoms of nervous shock fall: physical illness; mental disorder; sleep disturbance? Separate each option by a comma if more than one is applicable 1. physical-illness 2. mental-disorder 3. sleep-disturbance »3 JUDGMENT: an action lies 70 percent. The following is a breakdown of the various elements involved in this decision. If any element has a certainty factor of less than 100% you should regard it as a weak link in the chain and focus on bolstering your case in that area. Negligence established 100 percent. Appropriate triggering event 100 percent. Third-party principal victim 100 percent. Certainty not increased because only one victim involved. Sufficiently serious incident 100 percent. Plaintiff connected to the victim 70 percent. Plaintiff exposed to incident 100 percent. Damage proved 100 percent. I am pleased to inform you that your client has a cause of action for nervous shock. Would you like to peruse the cases which support my decision? »yes Press Enter to continue...  135  T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T  T H I R D PARTY INJURY-NEARBY * R E L E V A N T BY ANALOGY:  SITUATION:  AND ATTENDED-LIVING TOGETHER |  1 Marshall v. Lionel Enterprises Inc., [1972] 2 O.R. 177, 25 D . L . R . (3d) 141 (H.C.). *  Minor Injury—Lucky Escape—Related—Witness «  2 Boardman v. Sanderson, [1964] 1 W.L.R. 1317 (C.A.). 3 Pollard v. Makarchuk (1958), 26 W.W.R. 22 (Alta. S.C). * D e a t h - R e l a t e d - P l a i n t i f f Nearby and Attended 4  H i n z v. Berry, [1970] 2 Q.B. 40, [1970] 2 W.L.R. 684, [1970] 1 A l l E.R. 1074 (C.A.). 5 Howes v. Crosby (1984), 45 O.R. (2d) 449, 6 D . L . R . (4th) 698, 29 C . C . L . T . 60 (C.A.). Pg D n to continue ...  Enter the number of the case you wish to see:  1  Marshall v. Lionel Enterprises Inc., [1972] 2 O.R. 177, 25 D . L . R . (3d) 141 ( H . C ) . FACTS The victim, husband of the plaintiff, purchased a snowmobile with a defective clutch from the defendant. The husband suffered grievous injury while riding the vehicle. The plaintiff did not see the actual accident but came upon the aftermath of it, saw her injured husband, and suffered nervous shock as a result. The defendants attempted to have the plaintiff's statement of claim struck but the court dismissed this motion. [Exit from data file.]  Y o u said that your client had sleep problems. Would you like to peruse the cases which relate to these symptoms? »yes Press Enter to continue...  | |  T H E F O L L O W I N G CASES A R E R E L E V A N T T O SLEEP SYMPTOMS:  1 Howes v. Crosby (1984), 45 O.R. (2d) 449, 6 D . L . R . (4th) 698, 29 C . C . L . T . 60 ( C A . ) (insomnia, nightmares). 2 Brice v. Brown, [1984] 1 A l l E . R . 997 (Q.B.) (insomnia). 3 Storm v. Geeves, [1965] Tas. S.R. 252 (S.C.) (sleeplessness, nightmares). 4 Fenn v. City of Peterborough (1976), 14 O.R. (2d) 137, 1 C . C . L . T . 90, 73 D . L . R . (3d) 177, varied 25 O.R. (2d) 399, 9 C . C . L . T . 1 ( C A . ) (nightmares). 5 Hogan v. City of Regina (sub. nom. M c N a l l y v. City of Regina), [1924] 2 W.W.R. 307, 18 Sask L . R . 423, [1924] 2 D . L . R . 1211 ( C A . ) (insomnia).  Enter the number of the case you wish to see:  3  Storm v. Geeves, [1965] Tas. S.R. 252 (S.C). FACTS The plaintiff mother, who was inside her home, heard the noise of an accident from outside but did not know what it was. The plaintiff sibling, who had witnessed the accident, immediately informed her that her daughter had been struck by a truck outside the house. The plaintiff mother ran out to see her child squashed beneath a truck. Due to difficulties in releasing the trapped child, she was pinned beneath the truck for a good portion of an hour. The child victim died. As a result, the plaintiff mother fell in a state of reactive depression for a 15 month period following the death and suffered recurring nightmares. The plaintiff sibling showed a marked behavioural change and became silent, moody, depressive and apathetic. Both plaintiffs recovered for nervous shock.  SYMPTOMS P. 267 ... "She suffers from a recurring nightmare... various sedatives have been prescribed. ... she is still in a state of reactive depression... pathological mourning.  ...depressed, obsessed by the loss; she remains sleepless, agitated, tense. ...cried and displayed deep emotion."  P. 269 ... "The case of the boy Hendrikus is much more serious. ... a marked change in his personality. He became moody, silent, depressed and apathetic to work and play. His school work deteriorated. ... boy had suffered grave psychic injury,..." [Exit from data file.]  The most effective defence to an action in nervous shock is often that of insufficient proof of damages. Would you like to see the cases where this argument succeeded? »no Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »no Thank you for consulting Nervous Shock Advisor. FLEX >  138  SAMPLE CONSULTATION NO. 3 HYPOTHETICAL Elmer is a bit of a wimp but his jock friends manage to persuade him to take up windsurfing by assuring him that the sport is perfectly safe. One day about a month later, Elmer is practising his rudimentary skills in an area just off the beach reserved for novice windsurfers. The area has been cordoned off by floats. Tony, a daredevil sailor, is out in the bay on his sail boat with a girlfriend. There is a stiff breeze blowing and Tony has one hand on the tiller and the other arm around the lady's waist. T u r n i n g to glance at his girlfriend, Tony becomes mesmerized briefly by her beauty. In the meantime, his speedy boat sails onward. He negligently fails to keep a proper lookout and sails into the supposedly safe area where Elmer is barely managing to balance on his board. When Elmer sees Tony's boat bearing down on him, he is paralyzed by fear. A t the last moment Tony snaps out of his trance and takes evasive action. The hull of his boat strikes Elmer's windsurfer a glancing blow and Elmer falls into the water. As he flounders around in a panic, the mast of the windsurfer lands on his head and he suffers a small cut above the eye. T h e injury is not serious and no stitches are required. However because of his delicate disposition, Elmer suffers nervous shock. Every time thereafter that he sees a sailboard he feels nauseated. Eventually the strain gives him an ulcer and he requires surgery. C a n he recover?  CONSULTATION Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results? 1. negligent 2. deliberate »1 Was the nervous shock sustained as the result of an incident in which any person or persons, including the plaintiff, suffered physical harm or the risk of such harm? ( N O T E : Option No.3 necessarily implies that there was more than one victim). 1. harm 2. risk 3. both 4. neither » 1  Who was the victim of the incident which caused the nervous shock: the plaintiff, a third-party or both? ( N O T E : If there was more than one third-party victim, your responses to any questions about a third-party should relate to the most serious case only). 1. p l a i n t i f f 2. third-party 3. both » 1 Was your client injured, even slightly, in circumstances that could well have resulted in far more serious injury? »yes D i d the nervous shock cause an expense, a loss of income or an incapacity which was sufficiently serious to support a claim for damages? »yes Into which of the following general categories d i d the symptoms of nervous shock fall: physical illness; mental disorder; sleep disturbance? Separate each option by a comma i f more than one is applicable 1. physical-illness 2. mental-disorder 3. sleep-disturbance » 1 JUDGMENT:  an action lies 100 percent.  The following is a breakdown of the various elements involved in this decision. If any element has a certainty factor of less than 100% you should regard it as a weak link in the chain and focus on bolstering your case in that area. Negligence established 100 percent. Appropriate triggering event 100 percent. Plaintiff principal victim 100 percent. Certainty not increased because only one victim involved. Sufficiently serious incident 100 percent. Connection to a third-party victim not essential to recovery on these facts. Plaintiff exposed to incident 100 percent. Damage proved 100 percent. I am pleased to inform you that your client has a cause of action for nervous shock.  Would you like to peruse the cases which support my decision? »yes Press Enter to continue...  T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T  SITUATION:  * PLAINTIFF O N L Y - H A R M * CASES O N POINT: 1 Negro v. Pietro's Bread Co., [1933] O.R. 112, [1933] 1 D . L . R . 490 (C.A.). * R E L E V A N T BY ANALOGY: * Plaintiff O n l y - R i s k 2 Dulieu v. White & Sons, [1901] 2 K . B . 669. 3 D u w y n v. Kaprielian (Infant) (1978), 22 O.R. (2d) 736, 7 C . C . L . T . 121, 94 D . L . R . (3d) 424 (C.A.). 4 Taylor v. Weston Bakeries L t d . (1976), 1 C . C . L . T . 158 (Sask. Dist. Ct.).  *  Plaintiff Harmed A n d T h i r d Party Harmed Pg D n to continue ...  Enter the number of the case you wish to see: 1 Negro v. Pietro's Bread Co., [1933] O.R. 112, [1933] 1 D . L . R . 490 (C.A.). FACTS The plaintiff purchased bread from the defendant company and, while eating the bread, discovered broken pieces of glass. T h e plaintiff was able to remove the glass from within his mouth with no damage save a slight scratch of the throat. However, the plaintiff suffered extreme shock and excitement over the possible serious consequences and, from then on, he became nauseous whenever he attempted to eat bread. The plaintiff's claim for nervous shock was permitted and Coultas was not followed. SYMPTOMS P. 115 ... "The result of this excitement and fear of serious consequences and the shock suffered by finding himself in what he thought to be serious danger produced a deplorable condition of nausea which was renewed whenever he attempted to eat bread. [Exit from data file.]  Y o u said that your client had physical problems. Would you like to peruse the cases which relate to these symptoms? »yes Press Enter to continue... T H E F O L L O W I N G CASES A R E R E L E V A N T T O P H Y S I C A L SYMPTOMS:  1 Pollard v. Makarchuk (1958), 26 W.W.R. 22 (Alta. S.C.) (headaches, vomiting, weightloss). 2 Negro v. Pietro's Bread Co., [1933] O.R. 112, [1933] 1 D . L . R . 490 ( C A . ) (nausea). 3 Schneider v. Eisovitch, [1960] 2 Q.B. 430, [1960] 2 W.L.R. 169, [1960] 1 A l l E . R . 169 (dermatitis). 4 Richards v. Baker, [1943] S.A.S.R. 245 (S.C) (exacerbation of thyroid condition). 5 M c L a u g h l i n v. Toronto Railway Co. (1916), 9 O.W.N. 407, varied as to the amount of damages 10 O.W.N. 135 ( C A . ) (miscarriage). 6 Jaensch v. Coffey (1984), 54 A . L . R . 417, 58 A . L . J . R . 426 ( H . C ) , affirming 33 S.A.S.R. 254 (Sup. Ct. F . C ) (gynaecological problems resulting in hysterectomy). 7 Dulieu v. White & Sons, [1901] 2 K . B . 669 (premature delivery). 8 Hambrook v. Stokes Brothers, [1925] 1 K . B . 141 ( C A . ) (hemorraging, stillbirth). Pg D n to continue ...  Enter the number of the case you wish to see:  5  M c L a u g h l i n v. Toronto Railway Co. (1916), 9 O.W.N. 407, varied as to the amount of damages 10 O.W.N. 135 (C.A.). FACTS The plaintiff passenger in a night train belonging to the defendant was hit by a metallic sign board which became detached from where it was hanging in the car. The plaintiff's husband, sitting beside her, received a serious cut on his head which had to be stitched. The plaintiff wife was also struck but she sustained only a slight swelling on the top of her head. The plaintiff alleged that she suffered nervous shock and claimed that she miscarried as a result. Plaintiff's claim was permitted.  SYMPTOMS P. 407 ... "The wife was also struck, but the extent of her outward injury was a slight swelling on the top of her head, according to the evidence of a medical man to whom they repaired, before they went home, for the purpose of having the husband's head stitched up. The wife was then in a nervous and excited condition. She swore that she was pregnant at the time. The main contest was as to whether she was ever pregnant, and whether certain appearances which the medical man who attended her (the one who stitched her husband's head) described were consistent with a miscarriage produced by the accident or were attributable to some diseased condition of the uterus."  The learned Chief Justice finds that the injury which she suffered, of whatever nature, it was, was the result of (1) the physical injury and (2) of shock resulting therefrom and (3) of the nervous excitement and shock caused by her being present while her husband's injuries were being attended to; but is unable to determine the respective proportions in which these three elements were contributing causes he attaches more importance to the first and second than to the third."  * * N . B . The case is not clear as to whether the nervous shock suffered was a result of the plaintiff's own injuries or as a result of witnessing the more serious injuries sustained by her husband. I would assert that it is more likely the former because of the date of the case; Coultas was still being followed and it mentions that the defendant was attempting to argue that the nervous shock was a result of seeing a doctor attend to her husband's injuries. [Exit from data file.]  The most effective defence to an action in nervous shock is often that of insufficient proof of damages. Would you like to see the cases where this argument succeeded? »no Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »no Thank you for consulting Nervous Shock Advisor. FLEX >  SAMPLE C O N S U L T A T I O N NO. 4 HYPOTHETICAL Mother is in the kitchen preparing lunch. Her four-year-old daughter is playing outside on the unfenced front lawn a few feet from the sidewalk. A car being driven at excessive speed rounds a nearby corner and the negligent driver loses control. The vehicle mounts the sidewalk and its wheels cross the lawn about a foot from where the child is playing. The driver regains control of the car and brings it safely to a stop back on the pavement. He is shaken up but the child is unhurt and not particularly alarmed. While the driver is making sure that no damage has been done, a neighbour who witnessed the incident runs into the house and tells the mother exactly what happened. The mother rushes outside, becomes distraught at the prospect of what might have happened and suffers nervous shock. She suffers from periodic attacks of acute anxiety as a result of the incident. Can she recover?  CONSULTATION  Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results? 1. negligent 2. deliberate » 1 Was the nervous shock sustained as the result of an incident in which any person or persons, including the plaintiff, suffered physical harm or the risk of such harm? ( N O T E : Option No.3 necessarily implies that there was more than one victim). 1. harm 2. risk 3. both 4. neither » 2 Who was the victim of the incident which caused the nervous shock: the plaintiff, a third-party or both? ( N O T E : If there was more than one third-party victim, your responses to any questions about a third-party should relate to the most serious case only). 1. plaintiff 2. third-party 3. both » 2 Is your client closely related to the other person? »yes Is the other person a member of your client's immediate family; namely, the child, spouse, parent or sibling of your client?  ( N O T E : Regard a step-relationship as equivalent to a natural one i f the person was treated like a member of the natural family and a grandparent as equivalent to a parent i f the grandparent had been filling the role of a parent). 1. child 2. spouse 3. parent 4. sibling 5. neither » 1 D i d your client see the incident happen? »no J U D G M E N T : no cause of action. R E A S O N : plaintiff not exposed incident. I regret to inform you that the damage is too remote to permit recovery for nervous shock because your client was not sufficiently involved in the incident.  Would you like to peruse the cases which support my decision? »yes Press Enter to continue... T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T SITUATION:  * PLAINTIFF H A D INSUFFICIENT E X P O S U R E T O INCIDENT 1 Abramzik v. Brenner (1967), 62 W.W.R. 332, 65 D . L . R . (2d) 651 (Sask. C. A.). 2 Babineau v. MacDonald (No. 2) (1975), 59 D . L . R . (3d) 671, 10 N.B.R. (2d) 715 (C.A.). 3 D u w y n v. K a p r i e l i a n (Mother) (1978), 22 O.R. (2d) 736, 7 C . C . L . T . 121, 94 D. L . R . (3d) 424 (C.A.). 4 Bourque v. Surette (1978), 23 N.B.R. (2d) 357, 44 A.P.R. 357 (Q.B.). 5 Dietalbach v. Public Trustee, [1973] 5 W.W.R. 93, 37 D . L . R . (3d) 621 (B.C.S.C.). 6 Bunyan v. Jordan (1937), 57 C . L . R . 1, 54 W.N. 61, 37 S.R. (N.S.W.) 119 (H.C.). 7 Pratt and Goldsmith v. Pratt, [1975] V . R . 378 (Sup. Ct. F . C .  Enter the number of the case you wish to see:  3  D u w y n v. K a p r i e l i a n (Mother) (1978), 22 O.R. (2d) 736, 7 C . C . L . T . 121, 94 D . L . R . (3d) 424 (C.A.). FACTS The defendant negligently backed his car into a parked car in which the plaintiff's infant son and mother were seated. The defendant dented the parked car and shattered glass into the interior. No physical injuries were sustained as a result of the accident. The plaintiff mother of the infant was in a nearby building at the time of the accident and upon hearing the commotion, came out to see people gathered around her vehicle and hear her baby screaming. As a result of the accident, the plaintiff mother alleged nervous shock evidenced by her need to take tranquilizers. The mother's claim for nervous shock as a result of the incident was dismissed. SYMPTOMS P. 755 ... "From the foregoing it seems reasonably clear that the condition of emotional upset of which she justly complains was caused by the constant obligation of having to cope with Brent and not by the initial upset which she underwent immediately following the accident and, as such, is not recoverable (Hinz v. Berry, supra) but further, as indicated, I doubt whether, on the evidence, it qualifies as legally compensable nervous shock." [Exit from data file.]  Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »why There are usually one or two cases from the highest courts in jurisdictions governed by comparable law which review and restate the law on a particular subject. The persuasive force of these leading cases makes it essential that a lawyer dealing with a similar sort of case be aware of them. Judges assume that lawyers have read these cases. T o be unfamiliar with them can be a source of considerable embarrassment. Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »no Thank you for consulting Nervous Shock Advisor. FLEX >  SAMPLE CONSULTATION NO.5 HYPOTHETICAL Max prides himself on being a practical joker. O n A p r i l 1st he is walking past a restaurant in Whistler Village carrying his skis over his shoulder after a beautiful day of skiing in the spring sunshine. Crowds of people are sitting at tables outside enjoying drinks in the sun. As he passes by, Judy, the wife of Max's good friend John, calls him over. She tells him that she is waiting for John who is late and wonders whether Max has seen him. Being a quick thinker, Max immediately assumes a tragic air and says to Judy, "Didn't you hear about the avalanche?" Judy's face turns ashen. Max goes on to say that he last saw John heading towards the West Bowl with a group of other skiers and that a ski patroller subsequently told him that there was a massive slab avalanche over there just afterwards. A t this point Judy becomes hysterical and collapses. Max tries to explain that it is an A p r i l Fool's joke, but by then Judy requires medical attention. John arrives shortly afterwards and his friendship with Max ends on the spot when he finds out what has happened. Judy needs bed rest for several days because of the nervous shock she has suffered. C a n she recover?  CONSULTATION Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results? 1. negligent 2. deliberate » 2 J U D G M E N T : an action may well lie for causing nervous shock. R E A S O N : in general, nervous shock resulting from an intentional wrong is not considered to be too remote. However, I am afraid that Nervous Shock Advisor limits itself to providing advice about cases where the nervous shock was suffered as a result of the defendant's negligence. The intentional infliction of nervous shock falls within a different realm of the law of torts.  147  Would you like to peruse the cases which support my decision? »yes Press Enter to continue... T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T  * INTENTIONALLY INDUCED NERVOUS 1 2 3 4  SITUATION:  SHOCK  Wilkinson v. Downton, [1897] 2 Q.B. 57. Janvier v. Sweeney, [1919] 2 K . B . 316, affirmed [1919] 2 K . B . 326 (C.A.). Bielitzki v. Obadisk, [1922] 2 W.W.R. 238 (Sask. C.A.). Timmermans v. Buelow (1984), 38 C . C . L . T . 136 (Ont. H . C ) .  * NERVOUS SHOCK RESULTING F R O M A N INTENTIONAL *ACT  WRONGFUL  5 Purdy v. Woznesensky, [1937] 2 W.W.R. 116 (Sask. C.A.). 6 Stevenson v. Basham, [1922] N . Z . L . R . 225 (Auck. S.C). 7 Edmonds v. Armstrong Funeral Home L t d . , [1931] 1 D . L . R . 676 (Alta. S.C.-A.D.). * HELD FOR DEFENDANT: 8 Radovskis v. Tomn (1957), 65 Man. R. 61, 9 D . L . R . (2d) 751 (Q.B.).  Enter the number of the case you wish to see: 1  Wilkinson v. Downton, [1897] 2 Q.B. 57. FACTS The defendant had the intention of playing a practical joke on the plaintiff and he told her that he had been sent to inform her that her husband had just been hit in a accident and suffered two broken legs. The defendant instructed the plaintiff to fetch pillows and go the accident site to retrieve her husband. The statements were false; however the plaintiff acted on the words spoken by the defendant. As a result of the news, the plaintiff suffered nervous shock to her system, displaying symptoms of vomiting and other effects on her reason. T h e court held that there is liability for the intentional infliction of nervous shock where there is an element of wilfulness on the part of the defendant and the plaintiff's illness is a direct consequence of the defendant's conduct. T h e court found that the defendant's intent to play a practical joke in making the statements sufficient to constitute the element of w i l f u l infliction of nervous shock.  SYMPTOMS The plaintiff suffered nervous shock to her system, displaying symptoms of vomiting and other effects on her reason. [Exit from data file.]  Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »no Thank you for consulting Nervous Shock Advisor. FLEX >  SAMPLE CONSULTATION NO. 6 HYPOTHETICAL Joe, a mild-mannered bank clerk on his summer vacation, arrives at the scene of a serious accident. A crowded tour bus has been struck by a negligently driven train at a crossing in the rural part of beautiful British Columbia. A number of people have been killed and there are severely injured survivors trapped in the mangled wreckage. Joe offers his assistance to the lone R C M P officer who is doing his best to cope with the situation. Needless to say, the offer is gratefully accepted. His exposure to this gruesome scene causes Joe to suffer nervous shock. His mind attempts to suppress the awful memory, resulting in periods of amnesia. The victims were all strangers to him. Can he recover?  CONSULTATION Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results? 1. negligent 2. deliberate » 1 Was the nervous shock sustained as the result of an incident in which any person or persons, including the plaintiff, suffered physical harm or the risk of such harm? ( N O T E : Option No.3 necessarily implies that there was more than one victim). 1. harm 2. risk 3. both 4. neither » 1 Who was the victim of the incident which caused the nervous shock: the plaintiff, a third-party or both? ( N O T E : If there was more than one third-party victim, your responses to any questions about a third-party should relate to the most serious case only). 1. plaintiff 2. third-party 3. both » 2 Was the other person killed? »yes Is your client closely related to the other person? »no D i d your client and the other person live together in an intimate personal relationship analogous to a marriage? »no  Were your client and the other person engaged to be married? »no Did your client attempt to assist the other person after the incident? »yes Did the nervous shock cause an expense, a loss of income or an incapacity which was sufficiently serious to support a claim for damages? »yes Into which of the following general categories did the symptoms of nervous shock fall: physical illness; mental disorder; sleep disturbance? Separate each option by a comma if more than one is applicable 1. physical-illness 2. mental-disorder 3. sleep-disturbance »2 JUDGMENT: an action lies 70 percent. The following is a breakdown of the various elements involved in this decision. If any element has a certainty factor of less than 100% you should regard it as a weak link in the chain and focus on bolstering your case in that area. Negligence established 100 percent. Appropriate triggering event 100 percent. Third-party principal victim 100 percent. Certainty not increased because only one victim involved. Sufficiently serious incident 100 percent. Plaintiff connected to the victim 70 percent. Plaintiff exposed to incident 100 percent. Damage proved 100 percent. I am pleased to inform you that your client has a cause of action for nervous shock.  Would you like to peruse the cases which support my decision? »yes Press Enter to continue...  T H E F O L L O W I N G CASES A R E R E L E V A N T T O Y O U R F A C T  SITUATION:  * THIRD P A R T Y - R E S C U E R * CASES O N POINT: 1 Chadwick v. British Transport Commission, [1967] 2 A l l E . R . 945 (Q.B.). 2 Mount Isa Mines L t d . v. Pusey (1970) 45 A L J R 88.  Enter the number of the case you wish to see: 1  Chadwick v. British Transport Commission, [1967] 2 A l l E . R . 945 (Q.B.). FACTS Following a train collision near his home, the plaintiff voluntarily took an active part in rescue operations at the scene of the accident. The accident claimed ninety lives and many others were trapped and injured. As a result of the horror of the experience, the plaintiff suffered a prolonged and disabling anxiety neurosis which required hospital treatment. The plaintiff's claim for nervous shock was allowed. SYMPTOMS P. 948-9 ..."After the accident, he started sleeping badly, waking up in the night and talking of the little boy whom he had seen. Mrs. Chadwick found that he was not sleeping and about Christmas time, that is to say four or five weeks after the accident, he stopped working. He was shaking. Mrs. Mills, another witness, whom Mr. Chadwick had helped with whist drives, also described how she saw him change. She  first noticed him shaking about five weeks after the accident, and there is no doubt that a marked change was noticed within a few weeks [Exit from data file.]  Y o u said that your client had mental problems. Would you like to peruse the cases which relate to these symptoms? »yes Press Enter to continue... T H E F O L L O W I N G CASES A R E R E L E V A N T T O M E N T A L SYMPTOMS:  | | | | | | | | | | | | | | | | | | |  1 Walker v. Broadfoot, [1958] O.W.N. 173 (H.C.) (depression, suicide). 2 H i n z v. Berry, [1970] 2 Q.B. 40, [1970] 2 W.L.R. 684, [1970] 1 A l l E . R . 1074 ( C A . ) (depression, suicidal ruminations). 3 Brice v. Brown, [1984] 1 A l l E . R . 997 (Q.B.) (insanity). 4 Tsanaktsidis v. Oulianoff (1980), 24 S.A.S.R. 500 (S.C.) (severe depression). 5 Montgomery v. Murphy (1982), 37 O.R. (2d) 631, 136 D . L . R . (3d) 525 (H.C.) (depression). 6 K o h n v. State Government Insurance Commission (1976), 15 S.A.S.R. 255 (S.C.) (intensified depression). 7 M c L o u g h l i n v. O'Brian, [1982] 2 W.L.R. 982, [1982] 2 A l l E . R . 298 (H.L.) (personality change). 8 Fenn v. City of Peterborough (1976), 14 O.R. (2d) 137, 1 C . C . L . T . 90, 73 D . L . R . (3d) 177, varied 25 O.R. (2d) 399, 9 C . C . L . T . 1 ( C A . ) (loss of pride and self-respect). 9 Hogan v. City of Regina (sub. nom. M c N a l l y v. City of Regina), [1924] 2 W.W.R. 307, 18 Sask L . R . 423, [1924] 2 D . L . R . 1211 ( C A . ) (amnesia). Pg D n to continue ...  Enter the number of the case you wish to see:  9  Hogan v. City of Regina (sub. nom. M c N a l l y v. City of Regina), [1924] 2 W.W.R. 307, 18 Sask. L . R . 423, [1924] 2 D . L . R . 1211 (C.A.). FACTS The plaintiff mother was strolling with her family when a streetcar belonging to the defendant was negligently backed into them. The streetcar ran over and killed two of the plaintiff's children and knocked the plaintiff down so that she was brought to her hands and knees. However, the plaintiff did not sustain any physical injuries as a result of the fall. The plaintiff sued on the basis that she suffered nervous shock at seeing her two children killed. Her nervous shock manifested itself in symptoms of headaches, dizziness, insomnia, loss of memory and bodily weakness. The plaintiff recovered on the basis that the jury found that physical injury was sustained.  SYMPTOMS P. 311 ..."The evidence, however, showed that prior to the accident Mrs. McNally's health had been good, that she had been strong and well, but that ever since the accident she had been suffering from nervous shock, from headaches and dizziness, and from insomnia and loss of memory, as well as bodily weakness. Dr. Rothwell, in his evidence, stated that, while there had been no organic injury, that is, no destruction of any part of the body, Mrs. McNally appeared to him to be suffering from a form of neurosis called neurasthenia, and he gave it as his opinion that this condition was due to the "experience of the shock of the accident, and also the mental worry that continued on after the accident", and he pointed out that from the shock there might be a real physical reaction. He further said that a woman in pregnancy, as Mrs. McNally was at the time, was more susceptible to nervous shock and permanent nervous disabilities than she otherwise would be, and he intimated that Mrs. McNally's condition, if allowed to become permanent, might lead to insanity." P. 317 ..."According to her own evidence, she has been nervous since the accident; somewhat sleepless at night; cannot do her work as well as usual, but in reality has taken charge of her home and family; suffers from headaches and is dizzy at times. Dr. Rothwell testified that she was suffering from functional neurosis, which means that the nervous element in the body is not acting as it ordinarily would, and that such condition generally follows a great muscular and nervous exhaustion, or exhaustion of the body from sickness, and also from emotional shock; that there was no organic destruction or symptoms of any organic charge and that he believed the plaintiff was suffering from emotional shock." P. 319 ... "It has been pointed out in recent judicial decisions that the nervous system is just as much a part of man's physical system as an arm or a limb, perhaps very much more important. The relation between fright or shock and the nervous structure of the body is a matter which depends upon scientific and medical testimony, and I do not see how a Court can lay down as a matter of law that, if negligence causes fright, and such fright in turn affects the nervous structure of the body in such a way as to cause injury to health, such injury cannot be a consequence which, in the ordinary course of things, would flow from the negligence of the defendant. On this point I agree with the reasoning and the conclusion of my brother Lamont." **N.B. In this case, the court followed Coultas and stated that the law required physical injury to the plaintiff before recovery for nervous shock would be permitted. Here the jury found that the plaintiff did sustain physical injuries though the evidence clearly states that she did not suffer any physical injuries as a result of being knocked down by the streetcar. There was impact however. There is no evidence as to whether the plaintiff feared for her own safety.  No damages were awarded on the basis of near-miss of serious injury. [Exit from data file.] The most effective defence to an action in nervous shock is often that of insufficient proof of damages. Would you like to see the cases where this argument succeeded? »no Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area? »no Thank you for consulting Nervous Shock Advisor. FLEX >  APPENDIX B KNOWLEDGE BASE  /* N E R V O U S SHOCK ADVISOR C A L D E E D M A N , M A R C H 18, 1987 UBC LAW SCHOOL COMPUTERS A N D T H E LAW PROJECT Copyright (c) 1987 by G.C.Deedman.  A l l rights reserved.  "Flesh and blood is weak and frail susceptible to nervous shock ... " T.S.Eliot, "The Hippopotamus". This system is designed to provide advice to a legally trained user about whether or not, on a given set of facts, a plaintiff has a cause of action for negligently inflicted nervous shock. The domain expert on whose knowledge the system was based, is Professor J.C.Smith of the Faculty of Law at the University of British Columbia. The knowledge engineer who designed and built the system was G.C.Deedman. The knowledge base is largely self-documenting because of the declarative semantics used to formulate the rules and the text explanations linked to all the questions which the advisor can ask through the rules which trigger them. Additional comments have been added where necessary to clarify the way in which the system operates.  */ initialdata = [advice-given]. /*  CONFIGURATION  configuration(banner) = [nl, nl, U N I V E R S I T Y O F BRITISH COLUMBIA',nl,nl, F A C U L T Y O F LAW',nl,nl, IBM-UBC',nl, J O I N T P R O J E C T O N C O M P U T E R S IN L A W ' , nl.nl.nl]. configuration(prompt) = ' F L E X > '.  */  /*  NEGLIGENCE  */  automaticmenu(negligence). enumeratedanswers(negligence). question(negligence) = 'Was the incident which caused the nervous shock the result of an act on the part of the defendant which you, as a lawyer, would characterize as negligent or deliberate with respect to any of its harmful results?'. legalvals(negligence) = [negligent, deliberate]. rule-001: i f negligence = negligent then right-tort. explanation(rule-OOl) = [nl, 'There is a fundamental distinction to be drawn in law between cases of negligently inflicted nervous shock and cases where the nervous shock suffered by the victim was attributable to a deliberate unlawful act on the part of the defendant. This Advisor limits itself to giving advice on the law as it relates to negligence.',nl]. rule-002:  i f negligence is unknown and display([nl, 'Let us proceed with the consultation anyway, but please understand that the results you will get are predicated on the assumption that there WAS indeed negligence. I hope that is clear!',nl,nl]) then right-tort. rule-003: i f negligence = deliberate then wrong-tort. /*  HARM-TYPE •  */  automaticmenu(harm-type). enumeratedanswers(harm-type). presupposition(harm-type) = right-tort. question(harm-type) = 'Was the nervous shock sustained as the result of an incident in which any person or persons, including the plaintiff, suffered physical harm or the risk of such harm? ( N O T E : Option No.3 necessarily implies that there was more than one victim).'. legalvals(harm-type) = [harm, risk, both, neither].  /*  FALSE-REPORT  */  presupposition(false-report) = (harm-type = neither) or (harm-type is unknown). presupposition(false-report) = not(cached(victim-type = X)). presupposition(false-report) = not(cached(victim-type is unknown)). question(false-report) = 'Was the nervous shock caused by the reception of a false report of some matter seriously affecting the plaintiff? (e.g. That a close relative had been killed).'. legalvals(false-report) = [yes, no]. rule-004:  i f harm-type = harm or harm-type = risk or harm-type = both then valid-harm-claim.  explanation(rule-004) = [nl, 'The basic dichotomy in nervous shock cases is between those where there was actual harm and those where there was simply a risk of harm. Where there was harm, the extent of the harm must be determined.',nl]. rule-005:  i f false-report then valid-news-claim.  explanation(rule-005) = [nl, 'In a limited number of cases, the courts have allowed recovery for nervous shock where it was caused by the reception of a particularly distressing piece of false news.',nl]. rule-006:  i f harm-type = neither or harm-type is unknown then invalid-harm-claim.  rule-007:  i f false-report = no or false-report is unknown then invalid-news-claim.  /* PUBLICATION presupposition(publication) = false-report.  */  question(publication) = 'Did the defendant disseminate or cause the dissemination of the false report?'. legalvals(publication) = [yes, no].  rule-008:  i f publication then false-news.  explanation(rule-008) = [nl, T n cases of nervous shock induced by the reception of a false report, it must be established that the defendant was responsible for the report being "published" in the legal sense of the word.',nl]. rule-009: i f false-report and publication = no or publication is unknown then false-news = no. rule-010:  if false-news then serious-incident cf 55.  rule-Oil:  i f false-news then connection-to-victim.  rule-012:  i f false-news then exposure-to-incident.  /*  BEST-DEFENCE  presupposition(best-defence)  -  */  = cached(judgment = an-action-lies cf X ) .  question(best-defence) = 'The most effective defence to an action in nervous shock is often that of insufficient proof of damages. Would you like to see the cases where this argument succeeded?'. legalvals(best-defence) = [yes, no]. rule-013:  i f best-defence = no or best-defence is unknown then defences-given.  explanation(rule-013) = [nl, 'It is important for lawyers to understand the arguments on both sides of a case if they are to be fully prepared. Even i f you are acting for the plaintiff, you should be aware of the standard defence to this kind of action. If you are acting for the defendant, it goes without saying that you should be familiar with these cases.',nl]. / * The following rule accesses a linkage to an external data file from which cases are retrieved i f the user wishes to examine them. Subsequent rules with similar syntax perform the same function. * /  160 rule-014:  i f best-defence and text(defence-cases) = [ D E F E N C E ] and s t r i n g o f ( D E F E N C E ) = C A S E L I S T and external(selectcases, [CASELIST]) = Y S T R I N G then defences-given.  /*  TEXT(DEFENCE-CASES)  */  nocache(text(def ence-cases)). text(defence-cases) = [7]. /*  LATEST-CASE  */  question(latest-case) = 'Would you like to read what is currently the leading case on the law of nervous shock in order to get a good overview of the area?'. legalvals(latest-case) = [yes, no]. nocache(overview). rule-015: i f latest-case = no or latest-case is unknown and display([nl, 'Thank you for consulting Nervous Shock Advisor.', nl]) then overview. explanation(rule-015) = [nl, 'There are usually one or two cases from the highest courts in jurisdictions governed by comparable law which review and restate the law on a particular subject. The persuasive force of these leading cases makes it essential that a lawyer dealing with a similar sort of case be aware of them. Judges assume that lawyers have read these cases. T o be unfamiliar with them can be a source of considerable embarrassment.',nl]. rule-016:  i f latest-case and full-text(leading-cases) = [ T E X T ] and s t r i n g o f ( T E X T ) = C A S E L I S T and external(selectcases, [CASELIST]) = Y S T R I N G and display([nl, 'Thank you for consulting Nervous Shock Advisor.', nl]) then overview. /*  FULL-TEXT(LEADING-CASES)  nocache(full-text(leading-cases)). f ull-text(leading-cases)  = [1].  */  /*  -  VICTIM-TYPE  */  presupposition(victim-type) = right-tort. presupposition(victim-type) = valid-harm-claim. presupposition(victim-type) = not(cached(harm-type = both)). automaticmenu(victim-type). enumeratedanswers(victim-type). question(victim-type) = 'Who was the victim of the incident which caused the nervous shock: the plaintiff, a third-party or both? ( N O T E : If there was more than one third-party victim, your responses to any questions about a third-party should relate to the most serious case only).'. legalvals(victim-type) = [plaintiff, third-party, both]. rule-017:  i f victim-type = plaintiff then primary-victim.  explanation(rule-017) = [nl, 'The elements which need to be established to support a case of this kind differ depending on the identity of the victim of the primary event which caused the nervous shock.',nl]. rule-018:  i f victim-type = third-party then secondary-victim.  rule-019:  i f harm-type = both then multiple-victim.  rule-020:  if victim-type = both then multiple-victim.  rule-021: i f primary-victim or secondary-victim or multiple-victim or cached(false-news) then victim = ascertained. rule-022:  i f not(primary-victim) and not(secondary-victim) and not(multiple-victim) then victim = unascertained.  /*  OTHER-HARM  presupposition(other-harm) presupposition(other-harm) presupposition(other-harm) presupposition(other-harm)  = = = =  (not(cached(harm-type = risk))). multiple-victim. poor-plaintiff. (not(harm-type = both and plaintiff-harmed)).  question(other-harm) = 'Was the other person injured?'. legalvals(other-harm) = [yes, no]. /*  OTHER-RISK  presupposition(other-risk) presupposition(other-risk) presupposition(other-risk) presupposition(other-risk)  = = = =  multiple-victim. (not(cached(harm-type = harm))). not(cached(other-harm)). poor-plaintiff.  presupposition(other-risk) = (not(harm-type = both and plaintiff-at-risk)). question(other-risk) = 'Did the other person narrowly escape being seriously injured?'. legalvals(other-risk) = [yes, no]. rule-023:  i f other-harm or other-risk then serious-incident.  rule-024:  i f other-harm = no and other-risk = no and not(cached(poor-plaintiff)) then serious-incident = no.  rule-025:  i f multiple-victim and plaintiff-harmed or plaintiff-at-risk and not(cached(other-harm)) and not(cached(other-risk)) then connection-to-victim.  /* FATALITY presupposition(fatality) = valid-harm-claim. presupposition(fatality) = (victim = ascertained). presupposition(fatality) = secondary-victim or poor-plaintiff = no. presupposition(fatality) = not(primary-victim). presupposition(fatality) = not(cached(harm-type = risk)). presupposition(fatality) = not(cached(harm-type = neither)). presupposition(fatality) = not(cached(other-X = no)). presupposition(fatality) = not(cached(serious-incident = yes cf X)).  question(fatality) = 'Was the other person killed?'. legalvals(fatality) = [yes, no]. /*  SERIOUS-INJURIES  */  presupposition(serious-injuries) = not(cached(harm-type = risk)). presupposition(serious-injuries) = not(cached(harm-type = neither)). presupposition(serious-injuries) = poor-plaintiff = no or secondary-victim. presupposition(serious-injuries) = not(primary-victim). presupposition(serious-injuries) = (victim = ascertained). presupposition(serious-injuries) = not(cached(other-X = no)). presupposition(serious-injuries) = not(cached(serious-incident = yes cf X)). question(serious-injuries) = 'Did the other person suffer visibly serious injuries?'. legalvals(serious-injuries) = [yes, no]. /*  LUCKY-ESCAPE  */  presupposition(lucky-escape) = not(cached(harm-type = risk)). presupposition(lucky-escape) = not(cached(harm-type = neither)). presupposition(lucky-escape) = poor-plaintiff = no or secondary-victim. presupposition(lucky-escape) = not(primary-victim). presupposition(lucky-escape) = (victim = ascertained). presupposition(lucky-escape) = not(cached(other-X = no)). question(lucky-escape) = 'Was the other person slightly injured in a narrow escape from death or serious injury?'. legalvals(lucky-escape) = [yes, no]. /*  NEARMISS  -  presupposition(nearmiss) = valid-harm-claim. presupposition(nearmiss) = (harm-type = risk) or (harm-type = both). presupposition(nearmiss) = (poor-plaintiff = no) or secondary-victim. presupposition(nearmiss) = not(cached(primary-victim)). presupposition(nearmiss) = (victim = ascertained). presupposition(nearmiss) = not(cached(lucky-escape)). presupposition(nearmiss) = not(cached(other-X = no)).  */  question(nearmiss) = ' D i d the other person come very close to being killed or seriously injured?'. legalvals(nearmiss) = [yes, no]. rule-026: if primary-victim and plaintiff-harmed then serious-incident. explanation(rule-026) = [nl, 'The basic dichotomy in nervous shock cases is between those where there was actual harm and those where there was simply a risk of harm. Where there was harm, the extent of the harm must be determined.',nl]. rule-027: i f primary-victim and plaintiff-at-risk then serious-incident cf 80. explanation(rule-027) = [nl, 'The basic dichotomy in nervous shock cases is between those where there was actual harm and those where there was simply a risk of harm. In the case of a risk, the victim must have come very close to being injured.\nl]. rule-028: if multiple-victim and plaintiff-harmed or plaintiff-at-risk and not(cached(other-harm)) and not(cached(other-risk)) then serious-incident. rule-029: i f harm-type = harm or harm-type = both and fatality or serious-injuries then has-incident. explanation(rule-029) = [nl, 'The basic dichotomy in nervous shock cases is between those where there was actual harm and those where there was simply a risk of harm. Where there was harm, the extent of the harm must be determined.\nl]. rule-030: i f harm-type = harm or harm-type = both and lucky-escape then has-incident cf 80.  165 explanation(rule-030) = [nl, 'The basic dichotomy in nervous shock cases is between those where there was actual harm and those where there was simply a risk of harm. Where there was harm, the extent of the harm must be determined.',nl]. rule-031: i f harm-type = risk or harm-type = both and not(primary-victim) and nearmiss then has-incident cf 50. explanation(rule-031) = [nl, 'The basic dichotomy in nervous shock cases is between those where there was actual harm and those where there was simply a risk of harm. In the case of a risk, the victim must have come very close to being seriously injured.',nl]. rule-032:  i f has-incident then serious-incident.  rule-033:  i f not(cached(primary-victim)) and not(cached(poor-plaintiff)) and not(cached(serious-incident = yes cf X)) and fatality is unknown and serious-injuries is unknown and lucky-escape is unknown and nearmiss is unknown then serious-incident = no.  rule-034:  i f not(cached(primary-victim)) and not(cached(serious-incident = yes cf X)) and not(has-incident) then serious-incident = no.  rule-035:  i f primary-victim then connection-to-victim.  rule-036:  i f primary-victim then exposure-to-incident.  /* rule-037: rule-038:  PLAINTIFF-INVOLVED i f multiple-victim then plaintiff-involved. i f primary-victim then plaintiff-involved.  */  166  rule-039:  i f plaintiff-involved then exposure-to-incident.  /* PLAINTIFF-HARMED presupposition(plaintiff-harmed) = plaintiff-involved. presupposition(plaintiff-harmed) = not(cached(harm-type = risk)).  */  question(plaintiff-harmed) = 'Was your client injured, even slightly, in circumstances that could well have resulted in far more serious injury?', legal vals(plaintiff-harmed) = [yes, no]. /* PLAINTIFF-AT-RISK presupposition(plaintiff -at-risk) = plaintiff-involved. presupposition(plaintiff-at-risk)=not(cached(plaintiff-harmed)). presupposition(plaintiff-at-risk)= not(cached(harm-type = harm)). question(plaintiff-at-risk) = ' D i d your client narrowly escape being seriously injured?'. legalvals(plaintiff-at-risk) = [yes, no]. rule-040:  i f plaintiff-harmed = no and plaintiff-at-risk = no and not(cached(multiple-victim)) then serious-incident = no.  rule-041:  i f plaintiff-harmed or plaintiff-at-risk and not(cached(primary-victim)) then poor-plaintiff.  rule-042:  i f plaintiff-harmed = no and plaintiff-at-risk = no and not(cached(primary-victim)) then poor-plaintiff = no.  /* rule-043:  */  AGGRAVATED-INCIDENT —-  */  i f multiple-victim and plaintiff-harmed and other-harm then aggravated-event.  explanation(rule-043) = [nl, Tn cases where multiple victims were involved in the incident which caused the nervous shock, there need only have been relatively minor injury.',nl].  rule-044:  i f multiple-victim and plaintiff-harmed and other-risk then aggravated-event.  explanation(rule-044) = [nl, 'In cases where multiple victims were involved in the incident which caused the nervous shock, there need only have been relatively minor injury or a risk of injury.',nl]. rule-045:  i f multiple-victim and plaintiff-at-risk and other-harm then aggravated-event.  explanation(rule-045) = [nl, 'In cases where multiple victims were involved in the incident which caused the nervous shock, there need only have been relatively minor injury or a risk of injury.',nl]. rule-046:  i f multiple-victim and plaintiff-at-risk and other-risk then aggravated-event.  explanation(rule-046) = [nl, 'In cases where multiple victims were at risk in the incident which caused the nervous shock, there need only have been a risk of injury.',nl]. rule-047:  i f aggravated-event then aggravated-incident.  rule-048:  i f not(aggravated-event) then aggravated-incident = no.  /*  CERTAINTY-AUGMENTED  The following rules increase the certainty of recovery in aggravated incidents once it has been established that all the requisite elements of a cause of action are present and that the increase would raise the pre-existing factor.*/  168  rule-049: i f aggravated-incident and close-relationship and not(cached(associated)) and cached(judgment = an-action-lies cf X ) and X < 100 and do(reset judgment = an-action-lies cf X ) and do(set judgment = an-action-lies cf 100 because aggravated) then certainty-raised. rule-050: i f aggravated-incident and not(cached(close-relationship)) and associated and cached(judgment = an-action-lies cf X ) and X < 100 and do(reset judgment = an-action-lies cf X ) and do(set judgment = an-action-lies cf 100 because aggravated) then certainty-raised. rule-051: i f aggravated-incident and not(cached(close-relationship)) and not(cached(associated)) and harm-last-resort and cached(judgment = an-action-lies cf X ) and X < 100 and do(reset judgment = an-action-lies cf X ) and do(set judgment = an-action-lies cf 100) then certainty-raised. rule-052: i f aggravated-incident and not(cached(close-relationship)) and not(cached(associated)) and not(cached(harm-last-resort)) and risk-last-resort and cached(judgment = an-action-lies cf X ) and X < 100 and do(reset judgment = an-action-lies cf X ) and do(set judgment = an-action-lies cf 100) then certainty-raised. rule-053: i f aggravated-incident and close-relationship and not(cached(associated)) and cached(judgment = an-action-lies cf X ) and X = 100 then certainty-raised = no.  rule-054:  i f aggravated-incident and not(cached(close-relationship)) and associated and cached(judgment = an-action-lies cf X ) and X = 100 then certainty-raised = no.  rule-055:  i f aggravated-incident and not(cached(close-relationship)) and not(cached(associated)) and harm-last-resort and cached(judgment = an-action-lies cf X ) and X = 100 then certainty-raised = no.  rule-056:  i f aggravated-incident and not(cached(close-relationship)) and not(cached(associated)) and not(cached(harm-last-resort)) and risk-last-resort and cached(judgment = an-action-lies cf X ) and X = 100 then certainty-raised = no.  rule-057:  i f certainty-raised then certainty-increase.  rule-058:  i f certainty-raised = no then certainty-increase = no.  rule-059: i f certainty-increase or certainty-increase = no then certainty-augmented. /*  CONNECTION-TO-VICTIM  presupposition(connection-to-victim) = valid-harm-claim. presupposition(connection-to-victim) = secondary-victim or multiple-victim. presupposition(connection-to-victim) = serious-incident. /*  -  RELATED  presupposition(related) = valid-harm-claim. question(related) = 'Is your client closely related to the other person?'. legalvals(related) = [yes, no].  /*  TYPE-RELATIONSHIP  •*/  presupposition(type-relationship) = valid-harm-claim. automaticmenu(type-relationship). enumeratedanswers(type-relationship). question(type-relationship) = 'Is the other person a member of your client's immediate family; namely, the child, spouse, parent or sibling of your client? ( N O T E : Regard a step-relationship as equivalent to a natural one i f the person was treated like a member of the natural family and a grandparent as equivalent to a parent if the grandparent had been filling the role of a parent).'. legalvals(type-relationship) = [child, spouse, parent, sibling, neither]. /*  COHABITATION  -  */  presupposition(cohabitation) = valid-harm-claim. question(cohabitation) = ' D i d your client and the other person live together in an intimate personal relationship analogous to a marriage?'. legalvals(cohabitation) = [yes, no]. /*  ENGAGED  */  presupposition(engaged) = valid-harm-claim. question(engaged) = 'Were your client and the other person engaged to be married?'. legalvals(engaged) = [yes, no]. /*  RESCUER  */  presupposition(rescuer) = valid-harm-claim. presupposition(rescuer) = bodily-harm. question(rescuer) = 'Did your client attempt to assist the other person after legalvals(rescuer) = [yes, no].  the incident?'.  HARM-LAST-RESORT  /*'  presupposition(harm-last-resort) presupposition(harm-last-resort) presupposition(harm-last-resort) presupposition(harm-last-resort)  = multiple-victim. = plaintiff-harmed. = not(cached(close-relationship)). = not(cached(associated)).  question(harm-last-resort) = ' D i d the plaintiff suffer the nervous shock all or in part because of injury to himself?'. legalvals(harm-last-resort) = [yes, no]. /*  RISK-LAST-RESORT  presupposition(risk-last-resort) presupposition(risk-last-resort) presupposition(risk-last-resort) presupposition(risk-last-resort)  *  = multiple-victim. = plaintiff-at-risk. = not(cached(close-relationship)). = not(cached(associated)).  question(risk-last-resort) = 'Did the plaintiff suffer the nervous shock all or in part because of a fear of injury to himself?'. legalvals(risk-last-resort) = [yes, no]. rule-060:  i f harm-type = harm and fatality or serious-injuries then bodily-harm.  rule-061:  i f related and type-relationship = child or type-relationship = spouse or type-relationship = parent or type-relationship = sibling then close-relationship.  explanation(rule-061) = [nl, 'The closest relationship recognized by the law is that between members of the so-called nuclear family.',nl]. rule-062:  i f related and type-relationship = neither then close-relationship = no.  rule-063: i f related and close-relationship then connection-to-victim. explanation(rule-063) = [nl, 'Some sort of proximate relationship must be established between the person who suffered the nervous shock and the victim of the event which triggered it. Generally speaking, a plaintiff cannot recover for nervous shock arising out of a traumatic incident which involved a stranger. A close family tie is the strongest legal relationship.',nl]. rule-064:  i f cohabitation or engaged then associated.  explanation(rule-064) = [nl, 'Some sort of proximate relationship must be established between the person who suffered the nervous shock and the victim of the event which triggered it. Generally speaking, a plaintiff cannot recover for nervous shock arising out of a traumatic event which involved a stranger.',nl]. rule-065: i f cohabitation = no and engaged = no then associated = no. rule-066:  i f related and close-relationship = no or close-relationship is unknown and associated and cached(cohabitation) then connection-to-victim cf 70.  rule-067:  i f related and close-relationship = no or close-relationship is unknown and associated and cached(engaged) then connection-to-victim cf 60.  rule-068:  i f related = no or related is unknown and associated and cached(cohabitation) then connection-to-victim cf 70.  rule-069:  i f related = no or related is unknown and associated and cached(engaged) then connection-to-victim cf 60.  rule-070:  i f related = no or close-relationship = no and associated = no and fatality and rescuer then connection-to-victim cf 70.  explanation(rule-070) = [nl, 'While there must generally be a legally proximate relationship between the person who suffers the nervous shock and the victim of the event which triggers it, the law makes a policy exception in the case of rescuers. This policy is obviously designed to encourage good Samaritans.\nl]. rule-071: i f related = no or close-relationship = no and associated = no and fatality = no and serious-injuries and rescuer then connection-to-victim cf 50. explanation(rule-071) = [nl, 'While there must generally be a legally proximate relationship between the person who suffers the nervous shock and the victim of the event which triggers it, the law makes a policy exception in the case of rescuers. This policy is obviously designed to encourage good Samaritans.',nl]. rule-072:  i f related is unknown and associated is unknown and fatality and rescuer then connection-to-victim cf 70.  rule-073:  if related is unknown and associated is unknown and fatality = no and serious-injuries and rescuer then connection-to-victim cf 50.  174  rule-074:  i f harm-last-resort or risk-last-resort then connection-to-victim.  explanation(rule-074) = [nl, 'Even in the absence of some sort of proximate relationship between a thirdparty victim of nervous shock and the plaintiff, recovery is usually allowed where the plaintiff was injured or nearly injured.',nl]. rule-075: i f harm-last-resort = no and risk-last-resort = no then connection-to-victim = no. rule-076:  i f rel