Back in July, my summer slumber was rudely interrupted by an intemperate, ad hominem rant from statistican Sander Greenland. Greenland’s rant concerned my views of the the Supreme Court’s decision in Matrixx Initiatives v. Siracusano, 563 U.S. 27 (2011).
Greenland held forth, unfiltered, on Deborah Mayo’s web blog, where he wrote:
“Glad to have finally flushed out Schachtman, whose blog did not allow my critical dissenting comments back when this case first hit. Nice to see him insult the intellect of the Court too, using standard legal obfuscation of the fact that the Court is entitled to consider science, ordinary logic, and common sense outside of that legal framework to form and justify its ruling – that reasoning is what composes the bulk of the opinion I linked. Go read it and see what you think without the smokescreen offered by Schachtman.”
“A megateam of reproducibility-minded scientists look to lowering the p-value,” Error Statistics (July 25, 2017).
Oh my! It is true that my blog does not have comments enabled, but as I have written on several occasions, I would gladly welcome requests to post opposing views, even those of Sander Greenland. On Deborah Mayo’s blog, I had the opportunity to explain carefully why Greenland has been giving a naïve, mistaken characterization of the holding of Matrixx Initiatives, in his expert witness reports for plaintiffs’ counsel, as well as in his professional publications. Ultimately, Greenland ran out of epithets, lost his enthusiasm for the discussion, and slunk away into cyber-silence.
I was a bit jarred, however, by Greenland’s accusation that I had insulted the Court. Certainly, I did not use any of the pejorative adjectives that Greenland had hurled at me; rather, I simply have given legal analysis of the Court’s opinions and a description of the legal, scientific, and statistical errors therein.1 And, to be sure, other knowledgeable writers and evidence scholars, have critiqued the Court’s decision and some of the pronouncements of the parties and the amici in Matrixx Initiatives2.
This week, John Pfaff, a professor at Fordham Law School, published an editorial in the New York Times, to argue that “The Supreme Court Justices Need Fact-Checkers,” N.Y. Times (Oct. 18, 2017). No doubt, Greenland would consider Pfaff’s editorial to be “insulting” to the Court, unless of course, Greenland thinks criticism can be insulting only if it challenges views he wants to see articulated by the Court.
In support of his criticism of the Court, Pfaff adverted to the Chief Justice’s recent comments in the oral argument of a gerrymandering case, Gill v. Whitford. In a question critical of the gerrymander challenge, Chief Justice Roberts described the supporting evidence:
“it may be simply my educational background, but I can only describe as sociological gobbledygook.”
Oral Argument before the U.S. Supreme Court at p.40, in Gill v. Whitford, No. 16-1161 (Oct. 3, 2017). The Chief Justice’s dismissive comments about gobble may well have been provoked by an amicus brief filed on behalf of 44 election law, scientific evidencce, and empirical legal scholars, who explored the legal and statistical basis for striking down the Wisconsin gerrymander. See Brief of Amici Curiae, of 44 Election Law, Scientific Evidence, and Empirical Legal Scholars, filed in Gill v. Whitford, No. 16-1161 (Sept. 1, 2017).
As with Greenland’s obsequious respect for the Matrixx Initiatives opinion, no one is likely to have been misled by Chief Justice Roberts’ false modesty. John Roberts was graduated summa cum laude from Harvard College in three years, although with a major in a “soft” discipline, history. He went on to Harvard Law School, where he was the managing editor of the Harvard Law Review, and was graduated magna cum laude. As a lawyer, Roberts has had an extraordinarily successful career. And yet, the Chief Justice went out of his way to disparage the mathematical and statistical models used to show gerrymandering in the Gill case, as “gobbledygook.” Odds are that the Chief Justice was thus not deprecating his own education; yet, inquiring minds might wonder whether that education was deficient in mathematics, statistics, and science.
Policy is a major part of the court’s docket now, whether the Justices likes it or not. The Justices cannot avoid adapting to the technical requirements of scientific and statistical issues, and they cannot simply dismiss evidence they do not understand as “gobbledygook.” Referencing a recent ProPublica report, Professor Pfaff suggests that the Supreme Court might well employ independent advisors to fact check their use of descriptive statistics3.
The problem identified by Pfaff, however, seems to implicate a fundamental divide between the “two cultures” of science and the humanities. See C.P. Snow, The Rede Lecture 1959. Perhaps Professor Pfaff might start with his own educational institution. The Fordham University School of Law does not offer a course in statistics and probability; nor does it require entering students to have satisfied a requirement of course work in mathematics, science, or statistics. The closest offering at Fordham is a course on accounting for lawyer, and the opportunity to take a one-credit course in “quantitative methods” at the graduate school.
Fordham School of Law, of course, is hardly alone. Despite cries for “relevancy” and experiential learning in legal education, some law schools eschew courses in statistics and probability for legal applications, sometimes on the explicit acknowledgement that such courses are too “hard,” or provoke too much student anxiety. The result, as C.P. Snow saw over a half century ago, is that lawyers and judges cannot tell gobbledygook from important data analysis, even when it smacks them in the face.
1 With David Venderbush of Alston & Bird LLP, I published my initial views of the Matrixx case, in the the form of a Washington Legal Foundation Legal Backgrounder, available at the Foundation’s website. See Schachtman & Venderbush, “Matrixx Unbounded: High Court’s Ruling Needlessly Complicates Scientific Evidence Principles,” 26 (14) Legal Backgrounder (June 17, 2011). I expanded on my critique in several blog posts. See, e.g., “Matrixx Unloaded” (Mar. 29, 2011); “The Matrixx Oversold” (Apr. 4, 2011); “The Matrixx – A Comedy of Errors” (Apr. 6, 2011); “De-Zincing the Matrixx” (Apr. 12, 2011); “Siracusano Dicta Infects Daubert Decisions” (Sept. 22, 2012).
2 See David Kaye, “The Transposition Fallacy in Matrixx Initiatives, Inc. v. Siracusano: Part I” (Aug. 19, 2011), and “The Transposition Fallacy in Matrixx Initiatives, Inc. v. Siracusano: Part II” (Aug. 26, 2011); David Kaye, “Trapped in the Matrixx: The U.S. Supreme Court and the Need for Statistical Significance,” BNA Product Safety & Liability Reporter 1007 (Sept. 12, 2011).
