DunceIn the recent argument before the US Supreme Court about gerrymandering, Gill v. Whitford, a mathematical formula was presented to the judges that requires adding together two numbers (“wasted” vote totals) and dividing the sum by a third number (the total number of votes cast.) This formula is called the “Efficiency Gap” and lawyers told the justices that if the answer was greater than 7%, courts could conclude that partisan gerrymandering was at work.

Four justices expressed anxiety about using any mathematical formula to measure partisanship, with one even calling the idea “baloney”. Chief Justice Roberts responded, “…it may be simply my educational background, but I can only describe [that] as – sociological gobbledygook.” Paul Smith, the lawyer making the argument responded,  “Your Honor, this is – this is not complicated.”After the case was argued, the American Sociological Association said in a letter to Justice Roberts, “[We] are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted. What you call “gobbledygook” is rigorous and empirical.” They added, “Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff.”

We think that it’s not too much of a generalization to state that the vast majority of people who go to law school are those who decide early in their schooling that they don’t do well in science and math. (Patent attorneys are, however, exceptions to this generalization because the Patent Office requires that we have at least an undergraduate degree in science or engineering, as well as a law degree.) The top lawyers in the land, those nine Supreme Court justices, are certainly not exceptions. They have undergraduate degrees in history, literature, economics, government, philosophy, public affairs, and political science.

In general, complex technology matters are beyond the ken of many lawyers and judges in our state and federal courts. After a famous case concerning spermicidal jelly and birth defects was decided against the overwhelming weight of scientific evidence in the 1980s, The New England Journal of Medicine, as reported by the New York Times, wrote, “The Wells v. Ortho decisions are of great concern to the medical community because they indicate that the courts will not be bound by reasonable scientific standards of proof.” The New York Times echoed that concern when it concluded, “the Federal judiciary has placed itself opposite the best judgment of the scientific community….That Judge Shoob and the appellate judges ignored the best scientific evidence is an intellectual embarrassment. The practical result is that many citizens may suffer.”

As recently explained in the blog FiveThirtyEight.com,

“This is a real problem,” Sanford Levinson, a professor of law and government at the University of Texas at Austin, told me. “Because more and more law requires genuine familiarity with the empirical world and, frankly, classical legal analysis isn’t a particularly good way of finding out how the empirical world operates.” But top-level law schools like Harvard – all nine current justices attended Harvard or Yale – emphasize exactly those traditional, classical legal skills, Levinson said.

Add to this ProPublica’s recent report that the Supreme Court makes factual errors that change case outcomes, and you have a significant problem in our judicial system.

Beyond hoping for a change in law school admission standards and curricula, neither of which is likely to occur, there is a solution to this problem, and it’s been around since 1946. Every judge, in every court, in every case, has the unquestioned power to appoint experts to assist him or her in understanding the evidence. (e.g., Federal Rule of Evidence 706.) Yet, this power goes largely unexercised by judges. Instead, many judges require attorneys and witnesses to answer questions by so simplifying the subject matter as to render it meaningless. Justice Stephen Breyer is famous for his analogies equating complex technologies to bicycle components, often posing hypotheticals that require the lawyer arguing before the Court to find some chain, sprocket, or pedal that may be used to explain a technology as complex as optical data storage media or genetic testing. While the Justice’s questions are amusing, and often seek a fine point of legal reasoning, when they obscure the technical facts of the case before the Court, they do a disservice to the litigants, and to all of us who depend on the courts to rule wisely.

Our world is increasingly governed by complex technology systems, facts are under attack in politics, and our decisions are increasingly made with reference to empirical data about the state of the world. By refusing to either educate themselves about such matters, or to employ court-appointed experts to assist them, judges are becoming increasingly detached. Such is the present state of patent law, that judges (alone, and without any particular knowledge or experience) are now free to look at a duly-issued patent for computational systems, medical diagnostics, or new drugs, and simply declare the patent to be invalid because the judge, without expert assistance or technical analysis, determines that the invention is “abstract” or a “law of nature.”

There is a simple solution, but there exists no means to compel our judges to admit their ignorance and to hire experts to assist them. Until more judges come to the bench with a technical education, or admit that expert guidance would be helpful, we will all continue in our intellectual embarrassment.

— Lawrence A. Husick, Esq.

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