Statistics, Common Sense, and Social Cost in Sykes v. United States

What role should statistics of social play in judicial decision making? In Sykes v. United States, in order to determine whether a vehicular flight from the police is likely to be dangerous, the majority opinion from Justice Kennedy, as well as the concurring opinion from Justice Thomas, heavily relied on empirical data.

Justice Kennedy noted that “although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Justice Thomas wrote that “common experience and statistical evidence confirm the “potential risk” of intentional vehicular flight.”  Justice Kagan found that the data was inconclusive, but noted the “majority’s intuition that dangerous flights outstrip mere failures to stop—that the aggravated form of the activity is also the ordinary form—seems consistent with common sense and experience.”

Here, we have 8 Justices who have different views about statistical data supporting social costs from vehicular flight, but in large part due to “commonsense conclusions,” “common experience,” “intuition” and “common sense and experience,” they agree on the outcome. None of these statistics were even introduced at trial, or admitted into evidence. Should courts be able to take judicial notice of these statistics because they conform to common sense?

What is the proper role for courts to consider statistics and common sense to illustrate social costs, such as dangers from vehicular flight?

Justice Scalia, in dissent, disagreed with this reliance on statistics.

Today’s opinion then outdoes Chambers in the volume of statistics that it spews forth—statistics  . . . concerning injuries attributable to police pursuits, statistics from the Department of Justice concerning injuries attributable to burglaries . . .  statistics from the U. S. Fire Administration concerning injuries attributable to fires . . .  statistics . . . concerning injuries attributable to police pursuits. (citations omitted).

Scalia raised a very important point–statistics raised in briefs were not challenged in the typical adversarial process.

Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery . . . An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all. The Court does not examine, for example, whether the police-pursuit data on which it relies is a representative sample of all vehicular flights. The data may be skewed towards the rare and riskier forms of flight.

Further, Scalia laments that courts are free to pick and choose which statistics they like–much like cherry-picking favorable legislative history–without any basis to disagree with them, based on no discernible reason other than “common sense.”

Scalia notes that these “untested judicial fact finding [are]  masquerading as statutory interpretation.”

The Court does not reveal why it chose one dataset over another. In sum, our statistical analysis in ACCA cases is untested judicial fact finding masquerading as statutory interpretation. Most of the statistics on which the Court relies today come from government funded studies, and did not make an appearance in this litigation until the Government’s merits brief to this Court.

So what is the proper role for courts to consider statistics and common sense to illustrate social costs, such as dangers from vehicular flight? As Scalia notes, courts are free to pick whatever statistics they want from a plethora of Brandeis Briefs submitted in every case. These statistics are not challenged in any adversarial process, and frequently stand in dispute. Most importantly, these facts were never introduced at the trial stage. Is this “Statutory Interpretation” or “Untested Judicial Fact Finding” in costume?

The relationship between statistics, common sense, and social costs takes on a higher degree of magnitude when adjudicating constitutional, rather than statutory, issues.

I have written about the selective reliance of statistics in the context of Second Amendment cases, focusing particularly on Justice Breyer’s one-sided reliance on statistics, in my article, The Constitutionality of Social Cost (which should drop in the Harvard Journal of Law & Public Policy in the next month or so).

With respect to Justice Breyer’s opinion in Heller, I noted that “when [he] weighs a relatively one‐sided sample of studies discussing the dangerousness of guns against three restrained interests,it is unsurprising how that scale tilts.” Although Justice Breyer views gun control issues a“highly statistical matter,” the statistics he relies on are far from undisputed.

Justice Scalia affirmed this point during oral arguments in McDonald, in the process of disagreeing with Justice Breyer over the role of statistics in determining constitutional rights:

JUSTICE BREYER: There are two ways [to consider the firearm regulation]. One is that—look at—all you have to do is look at the briefs. Look at the statistics. You know, one sidesaysa million people killed by guns. Chicago says that their—their gun law has saved hundreds, including—and they havestatistics—including lots of women in domestic cases. Andthe other side disputes it. This is a highly statistical matter.. . . .

JUSTICE SCALIA: There’s a lot of statistical disagreement onwhether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t—we don’tresolve questions like that on the basis of statistics, do we?

I agree with Scalia that although statistics are important “for the legislatures,”they are not important for “the judges.”

Depriving a person of a constitutional liberty, such as the right to keep and bear arms, based on disputed statistics is a flawed analysis. And Breyer’s statistics “show” that someone who has done absolutely nothing wrong, has taken no action other than applying for a permit, and has exhibited no propensity for violence–like Dick Heller or Otis McDonald, unlike Marcus Sykes who fled from the police–may cause harm in the future. This, among other reasons, has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.

Even the Brandeis Brief from Mueller v. Oregon was littered with controversial statistics, that ultimately proved to be totally false. And, in reliance of that Brief, the Court issued a decision that just about everyone today would disagree with.

More attention should be given to how appellate judges take judicial notice of statistics that were never challenged at the trial level. Statistics, as much as people may wish to believe, are not objective. Courts at the trial level recognize this when introducing evidence, and permit advocates to challenge them before admission. Appellate courts would be well-served to make similar determinations before basing statutory, and even constitutional decisions, on these statistics. Statistics are not evidence until they are admitted as evidence.

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26 Responses

  1. Larry Rosenthal says:

    I fear that this post rather mischaracterizes Justice Breyer’s use of statistical evidence in Heller and McDonald. In those cases, at least to my eye, Justice Breyer is quite candid in acknowledging that the available statistical evidence on the efficacy of handgun bans is in conflict and of questionable probative value. For example, in Heller, he wrote: “What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.” Instead of trumpeting the ability of judiciary to analyze and rely on statistics, he used the difficulties with the statistical evidence to justify judicial deference “where a legislature is likely to have greater expertise and greater institutional factfinding capacity.”

    One can surely disagree with this approach as a matter of substantive constitutional law (although in my own scholarship, I have argued that the Second Amendment’s preamble suggests particularly broad regulatory authority), but I think it unfair to criticize Justice Breyer for failing to grasp the many disputes regardeing the available statistical evidence.

    Larry Rosenthal
    Chapman University School of Law

  2. Josh Blackman says:

    Breyer does not mention a single statistic that shows beneficial aspects of firearm possession. Yes, these statistics do exist, even though Justice Breyer (and perhaps you) may disagree with them. That supports into my point about citing statistics. For every statistic you find that says X, there is a statistic that says Opposite of X. You can attack the authors of both sides with similar arguments That is why I do not base my views on the 2nd Amendment on these empirical matters.

    Beyond the statistics, his discussion of any of the benefits of firearm ownership is rather trivial. I address this point at some length in my article linked above. Here is a passage:

    On one side are the potential costs to life guns can cause. But what is on the other side? What is the “benefit” of gun ownership? In calculating the constitutionality of social cost, we know what the externalities are, but what about the liberty interests? Justice Breyer spends seven detailed pages of his twenty‐two‐page Heller dissent, with ample footnotes, discussing the potential death‐related costs78—yet he devotes only two sparse pages, which are dismissive of any social benefits of firearm ownership.79 He identifies three interests behind the Second Amendment: preserving the militia, safeguarding guns for sporting purposes, and protecting ownership firearms for self‐defense. Because the District has no organized militia, there is really no feasible benefit to this first interest. With respect to sporting purposes, Justice Breyer suggests that D.C. residents could ride the Metro to Virginia or Maryland, where guns can be used for hunting purposes, and cites to the Washington Metro System’s website.81 With respect to self‐defense, Breyer concedes, begrudgingly, that the D.C. regulation “burdens to some degree an interest in self defense.”82 When Justice Breyer weighs a relatively one‐sided sample of studies discussing the dangerousness of guns against three restrained interests, it is unsurprising how that scale tilts.

    You are correct. Ultimately, his decision is not based on statistics, but based on his belief in deference to the legislature with respect to this right (but not others).

  3. Shag from Brookline says:

    I recommend Larry Rosenthal’s two “Plumbing” articles on Heller and McDonald v. Chicago for detailed background that I doubt Josh Blackman will address other than in a one-sided manner.

  4. dave hoffman says:

    How would you harmonize this with Scalia’s work in Scott, I wonder?

  5. Josh Blackman says:

    Larry’s “Plumbing” Article is a good read. I’d also recommend Joyce Malcom’s position in that piece (, and Patrick Charles’ reply to Joyce and Larry’s piece:

    I’m drawing a blank, but which Scott are you referring to? For what it’s worth, I am quite critical of Scalia’s position in McDonald and Heller with respect to his views of social cost. He fails to effectively rebut some of Breyer’s most effective arguments, and his nebulous dicta saps his holding of most of its force.

  6. dave hoffman says:

    Scott v. Harris, in which Scalia (arguably) engages in the kind of appellate fact-finding that he attacks the majority for here.

  7. Josh Blackman says:

    Oh Scott v. Harris. That’s what I thought you were referring to.

    I suppose watching a video tape and taking notice of it would be considered a form of appellate fact-finding.

    There are a number of distinctions–most importantly, the video depicted events in the actual case before them, rather than abstract statistics about gun violence, or vehicular escapes that did not concern the parties in interest–but I see your point. I suppose the proper way to have introduced this evidence would have been to allow counsel for both sides to provide testimony and the like about this video in the trial phase. It really should not be up to the Court to interpret unadmitted evidence for the first time. Though, in my mind, the video is much less offensive to that principle than statistics.

  8. Gary Boatwright says:

    Scalia forgot to mention that Justices can also cherry pick which of our Founders they choose to channel when determining the “intent of the framers”. Why does anyone pretend that opinions any judge, including S.C. Justices, are anything more than personal opinions?
    In California the standard of review for over-ruling a trial court judge is whether or not the decisions was “clearly erroneous”. To give you some idea of how much latitude this standard gives judges, I won a case on appeal where the trial court Judge ruled that “intent to trespass” was a general intent crime.

    How crazy is that? Pretty standard reasoning for an Orange County, California trial court judge. Is there really some jurisdiction in America where trial court judges or appellate judges make a genuine effort to apply the law? It appears to me that train left the station several decades ago.

  9. Gary Boatwright says:

    Exactly what I’m talking about. From Prof. Rosenthaul’s reply to Prof. Malcom (at 105:85):

    [Begin quote] Let us start with Professor Malcolm‘s assessment of McDonald. She commends Justice Thomas‘s opinion, which, she tells us, makes a compelling case for incorporation [of the Second Amendment] under the Privileges or Immunities Clause. She tells us that this approach, of those taken by
    the various opinions in McDonald, is the more historically accurate.
    In the opinion that Professor Malcolm finds so compelling, Justice Thomas tells us that constitutional provisions are written to be understood by the voters. Thus, the objective of this inquiry is to discern what ordinary citizens at the time of ratification would have understood the Privileges or
    Immunities Clause to mean. [End quote]

    Is there anybody on the planet who sincerely believes that ordinary citizens at the time of ratification had an actual opinion of the Privilege and Immunities Clause? Are we supposed to channel Hoss Cartwright or Festus to determine what “ordinary citizens” understood about the Privileges and Immunites Clause?

    Bottom line: There are at least five whack jobs on the U.S. Supreme Court who only pay passing attention to a rule of law as they mow it down like an eight-teen wheeler running over a skunk in the road. How do you people manage to pretend that America’s metaphorical “rule of law” continues to have meaning or relevance? No, really. Is there some sort of Vulcan Mind Meld trick you folks have for ignoring the reality of our sorry and pathetic judiciary?

  10. Gary Boatwright says:

    In support of my position I offer this from Wikipedia:

    “Lies, damned lies, and statistics” is a phrase describing the persuasive power of numbers, particularly the use of statistics to bolster weak arguments, and the tendency of people to disparage statistics that do not support their positions. It is also sometimes colloquially used to doubt statistics used to prove an opponent’s point.

    The term was popularised in the United States by Mark Twain (among others), who attributed it to the 19th-century British Prime Minister Benjamin Disraeli (1804–1881): “There are three kinds of lies: lies, damned lies, and statistics.” However, the phrase is not found in any of Disraeli’s works and the earliest known appearances were years after his death. Other coiners have therefore been proposed. The most plausible, given current evidence, is Englishman Sir Charles Wentworth Dilke (1843–1911).[citation],_damned_lies,_and_statistics

  11. Shag from Brookline says:

    Gary is too polite to reference “law office history” with cherry picking by Justices that ends up leaving us with the pits in their opinions.

    Also, it should be emphasized that eight (8) Justices disagreed with Justice Thomas on incorporation of the Second Amendment via the 14th Amendment’s privileges or immunities clause.

  12. Shag,
    8 justices did not join Thomas’ opinion but they did not disagree. The plurality said they need not reach the issue, the dissent said something similar

  13. Shag from Brookline says:

    And why, pray tell, did they not reach the issue? Recall the constitutional law profs amici brief in McDonald pushing for the P or I Clause. Perhaps the eight (8) were merely being polite regarding Thomas’ view.

    David S. Cohen’s “The Paradox of McDonald v. City of Chicago” lays out the “voting paradox” in that case. The article is available via SSRN but I do not have the URL. It was published in The George Washington Law Review, Vol. 79, Page 823 (2011). The focus is much upon Thomas’ opinion.

  14. Ken Rhodes says:

    As a mathematician, rather than an attorney, I feel compelled to point this out (as I do quite frequently in social situations, too):

    In 2. Josh wrote: “… my point about citing statistics. For every statistic you find that says X, there is a statistic that says Opposite of X.”

    In 10. Gary quoted Wikipedia, which in turn quoted luminaries of the past: ““Lies, damned lies, and statistics” is a phrase describing the persuasive power of numbers, particularly the use of statistics to bolster weak arguments, and the tendency of people to disparage statistics that do not support their positions.”

    Those two quotes reflect a widespread misunderstanding of “statistics.” Statistics are simply numbers–counted, measures, and calculated. What we DO with statistics is what creates the interpretation of “both X and not-X” from the numbers.

    Many highly trained statisticians, even though they know how to do all sorts of sophisticated tests and computations, are not very good at figuring out what the numbers mean, because they are careless at figuring out what’s been included, what’s been left out, and what’s important. Needless to say, folks who don’t have the training will impute whatever meaning they are looking for, and will find a way of interpreting the data to support that meaning.

    This, I suppose, supports the view that important issues involving rights, responsibilities, and constitutional concerns ought not be resolved by reference to interpretation of statistics, since we can trust the statistics, but we can’t count on the interpretations.

  15. Josh Blackman says:


    Thanks for the post. Elsewhere I have written about Judges acting as experts ( In patent cases they act as engineers. In free exercise cases they act as theologists. Now, in criminal procedure cases they act as mathematicians. In originalist cases, they (all 9 Justices, Shag, not just the McDonald majority) act as historians.

    I often think about how we can rely on Juges, who lack formal training in these areas, to make important decisions in cases affect our rights and liberties.

  16. Shag from Brookline says:

    I do not disagree with this:

    “In originalist cases, they (all 9 Justices, Shag, not just the McDonald majority) act as historians.”

    But law office history and cherry picking, on both sides of so many 5-4 decisions, demonstrate the failings of the Justices as historians, bringing into question judicial review. Chapter 6, “Law v. Will” of Barry Friedman’s “The Will of The People” is very interesting in this regard during the so-called Lochner Era to compare with the current Court. (For some reason the song lyrics “The rich get richer and poor get poorer” come to mind.)

  17. Brett Bellmore says:

    Of course, as the Belesilles affair demonstrated, “faculty office” history isn’t necessarily any better than “law office” history, where the topic has ideological salience.

    In fact, in the Heller and McDonald cases, the Court’s ‘law office’ history, on both sides, came from real historians. It WAS ‘faculty office’ history!

    The whining about “law office” history is coming from people who don’t want history to be taken into account, not from people who want good history used.

  18. Shag from Brookline says:


    “In fact, in the Heller and McDonald cases, the Court’s ‘law office’ history, on both sides, came from real historians.”

    is NOT a fact. Perhaps Brett can identify ” … people who want good history used” as well as define what “good history” means other than the eye (ideology) of the beholder.

  19. Patrick J. Charles says:

    First, I must say I find this debate fascinating. Second, Brett, I am uncertain why you hold onto the Belesilles issue like so many do to assert historians are biased. Can’t the same be said for lawyers and legal scholars? Belesilles was held accountable for his improper methodologies as any academic historian should be. This is the difference between the professions of a historian and legal scholar. A historian’s career can be ruined by scandal, but a legal scholar’s generally is not. I don’t think I have ever heard of a law professor losing their job by having their thesis and methodological approach shredded.

    How many NRA and SAF Second Amendment myths have been exposed now? The answer is they are countless, yet I do not see individuals saying, “Remember when ‘Gun Scholar X’ falsely asserted we have a right to independently form militias separate from government” or something to this effect. It is a double standard you are imposing.

    The number of false historical claims by legal scholars is growing to assert a predisposed agenda and this careless approach to history has huge repercussions in society. David Thomas Konig has written on this in the Northeastern Law Journal. However, I will say this alleged historical approach to “legal reform” is nothing new in the pantheons of history. History provides us with numerous examples of the ancient constitution or British Constitution being revised in the print culture to assert ideological preferences. This held true from the sixteenth century through the founding era.

    This begets the question, “Is part of originalism rewriting history to conform to my methodology?” I would answer “yes,” for this revising of history to fit a ideological preference has existed since the invention of the press.

  20. Brett Bellmore says:

    “Belesilles was held accountable for his improper methodologies as any academic historian should be.”

    Belesilles’ wasn’t guilty of “improper methodology”, he was guilty of deliberate, conscious fraud. He made up from whole cloth probate records which he claimed to have examined, which had been destroyed before his birth. Records he did find, he recounted inaccurately. He altered the text of historical documents he quoted, to make them agree with his thesis. Other quotes he took out of context, to imply the opposite of what they meant in context.

    That’s not “improper methodology”, that’s fraud.

    And he got the Bancroft prize, damningly, after much of this had been exposed. Because your academic historians didn’t want to look at the evidence. Yes, they finally acted, only after the entire profession was starting to be tarred with Belesilles’ wrong; They had to be dragged kicking and screaming into investigating, and Emory flatly refused to look into the most damning charges. Which, I presume, is the basis of your “improper methodology”, as that’s all Emory was willing to look into.

    The fact is, if laymen hadn’t objected to Belesilles’ fraud in huge numbers, the academic community might never have gotten around to repudiating his fraud. Because they liked what he had to say.

    So, yes, the whole affair demonstrates that the academic historian community is untrustworthy where subjects are politically salient. Faculty office history is no better than law office history, save where the subject is so uncontroversial that there’s unlikely to be any law office history in the first place.

    This is not to say that doing good history is impossible in such cases. Just that you can’t rely on the academics to be any more reliable than anybody else, where they have political opinions on the line.

  21. Shag from Brookline says:

    Perhaps in the context of Brett’s last comment, he might identify subjects that are NOT politically salient as they relate to good constitutional history. It’s clear where Brett’s political opinions lay.

  22. Patrick J. Charles says:


    No matter how you categorize it–fraud, improper methodologies, etc.–the fact of the matter remains that he was held accountable. This does not happen to legal academics that make fraudulent historical claims on the Second Amendment. At the same time, to discount the entire academic historian profession and claim they are biased is unwarranted. Should not your same rule of thumb apply to legal academia as well? Have not numerous legal works claimed false historical truths to advance an agenda? Can’t the same be said for psychologists, doctors, socialogists, political scientists, etc? Where does your line of thinking end?

  23. Shag from Brookline says:

    Gregory Rodriguez’s LATimes oped today (6/13/11) “A Political History Lesson – Sarah Palin’s Paul Revere goof is a reminder that we all use and abuse history to justify our stances and actions in the present” starts out briefly with the extensive and stupid media focus on Weinergate and Terminatorgate before jumping into history, putting history in current focus. As for Brett, he does not seem to favor redemption with his “Johnny-one-note” on Belesiles that he uses to paint over all academic historians. Brett should spend some time reading Jack Rakove’s “Original Meanings – Politics and Ideas in the Making of the Constitution” (1996) to better understand efforts of good historians.

  24. Brett Bellmore says:

    Of course I believe in redemption; Perhaps you’d like to relate what redemptive acts Belesilles engaged in, when he wasn’t busy republishing his work of fiction at a less picky publishing house, with a foreword claiming he was the victim of a witch hunt? Perhaps you could relate exactly when he admitted to his fraud, apologized to the people he’d deceived, and promised never to do the like again?

    I think the Belesilles affair tars the whole field of academic history, because, although he met with at least a bit of consequences in the end, historians had to be dragged kicking and screaming into that accountability, and many still insist on pretending he was guilty of nothing more than “improper methodologies”.

  25. Patrick J. Charles says:


    At no point am I defending Belesilles for what he did, nor do I endorse how he went about it. I have never read Belesilles work nor do I plan to. When I started researching and writing on the Second Amendment, I started a new because I did not want to be swayed from either side’s perspective. It was not until I completed my primary research that I began delving into the gun right scholars’ work that you applaud. Needless to say, I found a lot of errors from the individuals you support as exposing the truth behind the scandal.

    Thus, your stance is rather hypocrtical in that you to cast all historians as biased, base this opinion solely on your personal perceptions of academia, and support the research of those who improperly cast history. Brett, you are certainly entitled to your opinion and freedom of conscious. I just don’t think your argument is very convincing to a unbiased observer.

  26. Shag from Brookline says:

    Check out R. B. Bernstein’s “The Constitution as an Exploding Cigar and Other ‘Historian’s Heresies’ About a Constitutional Orthodoxy” in Vol. 55 New York Law School Law Review 1073 (2010/11) available via a link at the Legal History Blog. The article describes well the distinctions between the historian and the lawyer advocate on constitutional history. Bernstein refers to “forensic history” rather than the supposedly pejorative “law office history.”