Month: November 2017


If you love Jeopardy!, and you love Torts, this is the game for you.  Host at least two teams, and use the following rules — as played with my Torts class on our last class of the semester (substitute your own fun facts about the team members for the “Name that Student” category).

  • The host does not show the questions in advance.  The last team that answers a question correctly selects the next category and point value.
  • When a team member selects a category, anyone from any of the teams can buzz in as soon as he or she wants by simply saying the word “buzz,” without conferring with the team.  At that point, the host stops reading the question.  Only the person who buzzed in can answer the question, with no help from team members.  If that team gets it wrong, the host will continue reading the question until another team buzzes in.  A team can choose not to attempt to answer a question.
  • The first team to answer a question correctly gets the points for that question.
  • A team gets the allotted amount of points if it answers a question correctly, but the allotted points are deducted if the team answers incorrectly.
  • For Final Tortspardy!, each team confers and decides how much to wager, before seeing the question.  Each team can wager up to the total amount of points that team has.  The team can then confer when answering the question.
  • Players do not have to answer in the form of a question.

Questions below. Categories are duty, breach, causation, miscellaneous, and name that student. 

Continue reading “THIS IS TORTSPARDY!”

When and How Should Courts Use Math?

In Gill v. Whitford, the Supreme Court will decide whether and when partisan gerrymanders violate the First and Fourteenth Amendments.  Plaintiffs claim that Wisconsin’s electoral map, drawn to afford Republicans a significant partisan advantage in the legislature, deliberately dilutes the votes of certain voters and penalizes them for their viewpoints/political beliefs.  Gill‘s threshold question of whether the longstanding but corrosive practice of partisan gerrymandering is unconstitutional is a difficult one.  However, the question of how courts should determine whether an unconstitutional partisan gerrymander has occurred is even thornier.

Some scholars propose using a test called the “efficiency gap,” which measures how many votes are “wasted” by each party.  Wasted votes are defined as votes above the number needed to win in a winning district and all votes in a losing district.  The fewer the votes a party wastes, the more likely it has engaged in partisan gerrymandering.  Those who object to the use of the efficiency gap argue that it does not measure the fair translation of votes to representatives in single-member districts.

One reason the Justices have been reluctant to declare partisan gerrymandering unconstitutional is because of the Court’s wise skepticism about incorporating math and statistics into its jurisprudence.  Law is a methodology that relies mostly on analogy, logical reasoning, and critical interpretation of text.  Lawyers and judges are not trained as experts in math, or in any social science.  The assessment and application of complex, mathematically-based concepts is not within their institutional expertise.  However, law and math share many similarities, even if the law has normative elements and math aims to be purely descriptive.  Mathematical principles, like legal rules, are explanatory abstractions that provide guidance, uniformity, and consistency to whatever fits within its parameters.  Statistics, like law, tries to fairly account for a large number cases with a small amount of data, and ultimately is open to subjectivity and interpretation.  In addition to these similarities, courts already incorporate math and statistics in a wide-ranging number of contexts, from the evaluation of scientific evidence of causation in toxic torts cases to the examination of the false positive rate of drug-sniffing dogs.  Cataloging some of the instances where courts incorporate math helps illuminate how the Court should proceed in Gill v. Whitford.

Continue reading “When and How Should Courts Use Math?”

Abridged. (Discussion of timely links sent by colleagues and friends.)

This month’s Abridged features a cyclist getting fired for giving the middle finger to President Trump’s motorcade, the methods law enforcement uses to prevent violent clashes between white supremacists and anti-fascist counter-protesters, and a lawsuit concerning a serious case of cyber-harassment.

Today’s theme:  Targeting Speech Without Targeting Content

Continue reading “Abridged. (Discussion of timely links sent by colleagues and friends.)”

Louis C.K., Consent, and Safety Versus Autonomy

This week, I taught my Torts students doctrines related to consent, which is a defense to intentional torts like battery and criminal charges like rape.  This week, a comic hero of mine, Louis C.K., has been accused of violating multiple women without their consent.  Some of the accusations are conscience shocking.  Some of these accusations sound plausibly criminal, while others sound like they should not be actionable.  A deeper examination of the doctrine of consent — what it protects, and why we should be cautious about raising the bar too high on when it has been granted — is necessary to separate the illegal from the creepy.  Harmful is not the same as actionable, for important reasons that balance the tension between protecting safety and promoting autonomy.

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Rules and Results in Masterpiece Cakeshop


Masterpiece Cakeshop v. Colorado Civil Rights Commission illustrates the tension between rules and results in legal reasoning.  This blog post will cover the difficulty of articulating a viable legal rule in Masterpiece Cakeshop.   I have previously blogged about the free speech and religious liberty arguments in the opening brief of Petitioners Jack Phillips and Masterpiece Cakeshop; the implications of Justice Gorsuch’s dissent in Pavan v. Smith on Masterpiece Cakeshop; and the line-drawing problems presented by this case.

Two weeks ago, the briefs of Respondents Colorado Civil Rights Commission and of Charlie Craig and David Mullins were filed.  Respondents argue that Masterpiece Cakeshop des not have a First Amendment right to refuse to bake a cake for a same-sex wedding.  Commercial entities, they argue, should not be permitted to refuse to sell a product to a customer because of that customer’s identity characteristics.   According to the Colorado Civil Rights Commission, “Phillips violated the [Colorado public accommodations law] because he refused to sell any wedding cake of any design to an entire category of customers.”

Respondents’ arguments are compelling.  If the Supreme Court accepts Respondents’ position, the Court will have to articulate a fair, coherent rule that accords with First Amendment precedent.  Respondents propose something clear: a seller cannot refuse to sell a product to gay couples if it would sell the identical product to straight couples.  Respondents focus on the selling, and argue that selling cakes is not speech, just like allowing military recruiters access to university campuses was not deemed speech in Rumsfeld v. Forum for Academic and Institutional Rights.  However, allowing a speaker access to one’s facilities is much less expressive than the act of baking a custom-designed cake, which Petitioners consider to be a form of art.  In their brief, Petitioners had argued that Colorado’s antidiscrimination law compels pure speech.  However, baking and selling a cake is less expressive than a parade or standing to salute the flag.  Neither Petitioners’ nor Respondents’ best cases lead to a legal rule that harmonizes with other, foundational First Amendment jurisprudence.  Both sides seem guided not by rules, but by results.

Continue reading “Rules and Results in Masterpiece Cakeshop”