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.

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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

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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.

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Abridged. (In which I connect all the links shared with me over the past week.)

One of the excellent benefits of teaching and writing on First Amendment issues is that friends and colleagues send me articles about First Amendment doctrine, free speech values, and academic freedom.  To respond to these myriad current events, I am creating a new type of post, called Abridged.  In Abridged, I will share, discuss, and connect all of the links sent to me over the past week. I would love to hear your thoughts as well.

Today’s theme:  Is the marketplace of ideas broken?

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The Math Problem in The Good Doctor, and Why It Matters

I enjoy the television show The Good Doctor, as I enjoy most medical dramas.  This week’s episode, “Point Three Percent” makes an all-too-common math error.  This error has profound significance for criminal procedure, tort law, and scientific studies, because it changes whether we consider certain data significant.

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Why I Don’t Want You To Save Me From The Patriarchy

There are many valid approaches to combating sexism.  Reasonable minds can differ about the underlying definition of sexism, the ideal situation to achieve, and about the best strategies for achieving gender equality.  As a free speech-minded egalitarian, I want to share my own approach.  In our culture of increasing polarization, the most committed to a given cause are the most vocal, and more moderate views are not voiced.  There are a subset of views on this sensitive topic, in particular, not often expressed, especially in certain circles.  In my own personal experience with discussions about gender discrimination, I find that people tend to over-read discrimination and to remove the onus on women to assert themselves.   That doesn’t mean the opposite doesn’t also happen, but we need better methods for discerning which is which.

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Common Misconceptions about Constitutional Rights

The misinformation in public discourse about our most important rights – those protected by the Constitution – is apparent on discussion threads on every major issue.  The next time you see an incorrect statement about our constitutional rights, link to this blog post.   When people don’t know their constitutional rights, they cannot exercise them.

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Who is Allowed to Speak in the “Me Too” Conversation?

Earlier this month, journalists exposed Hollywood’s open secret that movie executive Harvey Weinstein harassed and assaulted female actresses.  Weinstein denies allegations of non-consensual sex, and he deserves his presumption of innocence in a courtroom, where evidence can be tested and weighed.  The conversation has, rightly, moved to larger cultural forces that sustained and facilitated Weinstein’s abuses of power.  Last Sunday, social media exploded with the hashtag “MeToo,” so that women who have been sexually assaulted or harassed can share their stories.  Soon after that, the meta conversation began about whether men, or gender non-conforming women, should also share their stories.

I believe that answer is a resounding yes.  Calls for silencing certain comments as irrelevant are an illegitimate, and counterproductive, way of simplifying and impoverishing a conversation.

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Politicizing Tragedies, and the Sins of the First Amendment

I began thinking about this post on Yom Kippur, the day when Jews ruminate on their sins.

This week, students affiliated with the College of William & Mary’s Black Lives Matter movement shut down a speaking event featuring an alumna from the American Civil Liberties Union.  The ACLU speaker had come to discuss “Students and the First Amendment.”  I do not support the tactic of hijacking a speaking event for one’s own purposes, even for a good cause.  A coordinated effort to shout down a scheduled speaker is not protected First Amendment activity.  Nor do I agree with the protesters’ sentiment that “liberalism is white supremacy.”  The protection of hate speech is a critical component of maintaining robust, viewpoint-neutral speech protections, and liberalism has likely promoted civil rights better than any other system of political thought.

However, the activists who refused to even let students interact with the ACLU’s Claire Gastañaga highlight an important point with which I have been reckoning: the First Amendment is process-based and somewhat justice-neutral.  The First Amendment provides a methodology – open exchange of ideas – for attaining truth and reaching the best results, but must remain fairly agnostic about what those results are.   My own views about the First Amendment, and my exaltation of open, dispassionate dialog as a way of reaching enlightenment, often lead to political paralysis or a ceding of political responsibility to others.  Strong belief in a values-neutral process like free speech can lead to political disengagement.   The aftermath of the heartbreaking events in Las Vegas provide a useful lens for my reckoning with the sins of the First Amendment.

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