tag:blogger.com,1999:blog-1237087217187172116.post6858739811446109468..comments2024-03-27T18:18:11.525-06:00Comments on American Creation: One Nation Under God?Brad Harthttp://www.blogger.com/profile/17669677047039491864noreply@blogger.comBlogger51125tag:blogger.com,1999:blog-1237087217187172116.post-19843501666990562292008-10-10T01:15:00.000-06:002008-10-10T01:15:00.000-06:00Oh, let's close it now. It was a very good discus...Oh, let's close it now. It was a very good discussion and I for one learned stuff. Thx to all involved, especially you, Charles, for your ace arguments and expressed openness to counterarguments, and to Mr. H for serving as the author's ombudsman.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-40342185178406467362008-10-09T22:30:00.000-06:002008-10-09T22:30:00.000-06:00Matt:I read and reread comments carefully before r...Matt:<BR/><BR/>I read and reread comments carefully before replying. If I'm still missing something, I doubt that the problem is entirely with my reading comprehension skills, which I have good reason to believe are quite adequate to the level of material under discussion here. If you'd like to correct my misunderstandings, please do. If not, thanks again for the discussion.<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-70481921120791368112008-10-09T14:16:00.000-06:002008-10-09T14:16:00.000-06:00If the "reversal rate" tag is misleading, you can ...If the "reversal rate" tag is misleading, you can go back and re-read the comments to find out whom to complain to; neither Tom nor I had anything to do with it.<BR/><BR/>As for "Tom's observation" that cert-granters are biased because they think the cases coming out of the 9th are "fishy", you'd better re-read his comments because you have entirely missed his meaning.<BR/><BR/>And as for whether my argument "reduces" to cert rates per workload case, you can go back and re-read my comments on that too (although at least this time you're close).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-17104362516574633762008-10-09T09:58:00.000-06:002008-10-09T09:58:00.000-06:00OK, I think I'm beginning to see your perspective....OK, I think I'm beginning to see your perspective. And to the extent that I have it right, my reaction is that most of this discussion is irrelevant since your argument reduces to the single fact that the cert rate per workload case for the 9th C is roughly twice that for all circuits. (Not to mention that the charge that initiated this subthread - that the 9th C's "reversal rate" is much higher than that of "other circuits" - is quite misleading in at least two ways). Thus, the only question of interest is "why so?". I have no idea and don't really care - that's not a statistical question but a legal/procedural one which I'll gladly leave to others to address. <BR/><BR/>I will repeat my previous observation that if Tom is correct and it's because the cert-granters think the cases coming out of the 9th C are "fishy", it has to be because of some <I>a priori</I> bias on their part, which seems in itself a very strange posture for impartial "umpires". <BR/><BR/>But thanks for the exchange anyway. It did force me to learn a little about adverse selection, which has of late come up regularly but never before in a context that motivated me to pursue it.<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-5400930668931905042008-10-09T07:32:00.000-06:002008-10-09T07:32:00.000-06:00Hence, if the a priori probability of a case being...<I>Hence, if the a priori probability of a case being wrong is greater for one circuit than for others, so should be the a posteriori probability of being reversed.</I><BR/><BR/>No. You're dealing with adverse selection here. SCOTUS has removed all the decisions it does not care about, and applied it's <I>a priori</I> standard. At this point, the likelihood of a cert-worthy case being reversed is based on the likelihood that SCOTUS reverses the cases it selects. (The circuit of origin is almost irrelevant, SCOTUS does not care. This is why you find that the 9th C reversal rate is <I>remarkably</I> in line with the overall reversal rate.)<BR/><BR/>Your method does not weight for the total workload of a circuit. You have reduced the denominator sample size to the cert-worthy cases, which seems highly unfair to a circuit that gets far fewer cases selected (or reversed) than the 9th does relative to its workload.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-28943600647796083252008-10-08T20:12:00.000-06:002008-10-08T20:12:00.000-06:00Tom:re my equations: "cool" or not, they...Tom:<BR/><BR/>re my equations: "cool" or not, they and the associated assumptions constitute my argument. If one disputes any of those, I'll consider the objections. Otherwise, I'm done with the issue.<BR/><BR/>"Judge Richard Posner [admittedly, a conservative]"<BR/><BR/>I have never understood why people say this. Judge Posner is one of my very few contemporary "idols", and it's because I consider him to be essentially a logic machine (recall that I'm a materialistic nihilist). I have read many of his books (LD&P multiple times and counting) and have never found him to be ideological. I assume the "conservative" label has been affixed because he occasionally comes up with conclusions that don't fit the "liberal agenda" (eg, justifying Bush v Gore and Clinton's impeachment), but I've never found his reasoning to be blatantly biased. I am a regular reader of the Becker-Posner blog, although I'm less impressed by Becker, whom I probably would label an ideological conservative if I knew what that meant.<BR/><BR/>Lazurus's article was OK, but as I've tried to convey, I'm not really interested in the "activist" court issue <I>per se</I>, just the statistical aspect.<BR/><BR/>"Note Scalia's prescience about a slippery slope."<BR/><BR/>I see his "if A then B" arguments not as slippery slopes, just logical consistencies. If school prayer=unconstitutional, then "under God" as well; if homosexual rights OK, then gay marriage OK. In each case, Scalia has a problem with A because it logically leads to B, and he fancies neither A nor B. He's not a fool, but he is unquestionably biased (as, of course, we all are, but some honestly admit it).<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-25971659977860885212008-10-08T18:20:00.000-06:002008-10-08T18:20:00.000-06:00Your equation is really cool-looking, but the poin...Your equation is really cool-looking, but the point can be made without it. What you overlook is another "limiting factor," the number of cases heard. If the SC reviewed only Ninth C cases, if it heard 25 cases, we might look for a reversal rate approximating the historical average. But if it reviewed 250, we would expect the rate to plummet. The Ninth isn't wrong all the time, nor consistently wrong across all its cases, most of which are relatively uncontroversial. That more of its cases are generally flagged <I>a priori</I> is no sign of bias by the SCOTUS, only of something fishy in the Ninth's decision; indeed your own argument would dictate that the <I>a posteriori</I> reversal rate would fall below historical averages if the Ninth were being unfairly reviewed at its greater rate. Mr. Huisman's argument stands.<BR/><BR/>Unfortunately, it's not available online, but Judge Richard Posner [admittedly, a conservative] did what's credited as the most thorough breakdown of the Ninth, and concluded its sky-high "dunk rate," as they call it [unanimous <I>and</I> supermajority reversals] cannot be explained away by statistical or other means.<BR/><BR/>I always enjoy Edward Lazurus' writing on the SCOTUS, although he's an unapologetic gentleman of the left with whose conclusions I frequently disagree.<BR/><BR/><A HREF="http://writ.news.findlaw.com/lazarus/20020711.html" REL="nofollow">In this very good 2002 article</A>, Lazurus concedes the results of the Posner study, and freely admits that "[t]his Circuit, unlike so many others, has a decidedly more liberal bent than the current Supreme Court."<BR/><BR/>But Lazurus doesn't see that as a problem. He argues that the Ninth is simply visionary, ahead of the curve, and to a gentleman of the left, that's a very good thing. My use of "radical" may be a bit perjorative, and "visionary" would be an approving way of putting it, but Lazurus and I are acknowledging the same thing.<BR/><BR/>The article touches briefly on the Pledge decision, and argues nothing in conflict with my original post or in this comments section. Neither do I have any problem with Lazurus' dissent from my views. People of good conscience can disagree about stuff. 40-odd comments later, we're back where we started, except perhaps for some math to tidy up. <BR/><BR/>[Note Scalia's prescience about a slippery slope. Heh. The man's no fool.]Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-73473643595016709982008-10-08T15:14:00.000-06:002008-10-08T15:14:00.000-06:00Matt: Re assembly lines and 75% of 100 vs 100% of ...Matt: <BR/><BR/>Re assembly lines and 75% of 100 vs 100% of 2, I don't find verbal approaches very reliable in statistical games because there are usually implicit, and hence often hidden, assumptions. If you are familiar with the Monty Hall problem, you can appreciate this. If not, check it out at wikipedia. It has fooled many, many well-versed people (and me, for what that's worth) who made their first guess based on "common sense". So, for better or worse, the following is my best semi-formal argument. <BR/><BR/>You make three key assertions:<BR/><BR/>1 - SCOTUS does not use random sampling techniques to select cases<BR/><BR/>2 - they use a method that (for the most part) looks for problems<BR/><BR/>3 - they apply a consistent standard uniformally across all circuits."<BR/><BR/>First, let's agree that #1 is obviously true. We also hope #3 - being basically an assumption of judicial integrity - is also, and hope it applies across cases as well. So, the interesting assertion is #2.<BR/><BR/>That assertion seems to suggest that the cert-granting justices are primarily looking for cases that they consider to have been wrongly decided, which in turn seems to be equivalent to assuming <I>a priori</I> bias. According to the "umpire" speeches of recent Justices in their confirmation hearings, that isn't supposed to happen. But even in the most unlikely event that it does, implicit in their doing so is an assumption on their part that the <I>a priori</I> probability of the selected cases from the 9th C being wrongly decided is higher than that of the other circuits. But if that is true and your third assertion is correct, IMO that implies that the <I>a posteriori</I> probability of being wrong and thus reversed should also be higher. But the limited data we have does not suport that conclusion in general although it may in the special case of unanimous decisions ("may" because of the small sample size).<BR/><BR/>That "IMO" is based on the following:<BR/><BR/>Let P{Ci=O} be the probability that case Ci from the ith circuit is reversed, let P{Ci=O|Ci=X} be the <I>a posteriori</I> (AKA conditional) probability of case Ci being reversed given that it was wrongly decided below, and let P{Ci=X} be the <I>a priori</I> probability that case Ci was wrongly decided. Then<BR/><BR/>P{Ci=O} = P{Ci=O|Ci=X}P{Ci=X}<BR/><BR/>Your assertion 3 is, I believe, equivalent to the conditional probability being constant across cases and circuits. Hence, if the <I>a priori</I> probability of a case being wrong is greater for one circuit than for others, so should be the <I>a posteriori</I> probability of being reversed.<BR/><BR/>In violation of my diatribe against verbal arguments, I will offer a "limiting case" observation, which doesn't prove anything but I think is suggestive. Suppose the cert-granting justices are absolutely convinced that in the current year one circuit is wrong so much more of the time than the others that they decide to pick cases from only that circuit. Then all of your ratio statistics are 100%. But if the reversal rate actually turns out to be consistent with the historical norm, what should one conclude?<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-36602618521046539582008-10-08T09:47:00.000-06:002008-10-08T09:47:00.000-06:00Charles,My understanding is that we are trying to ...Charles,<BR/><BR/>My understanding is that we are trying to come up with a measurement to determine which circuit is 'most overturned' at the top level. We've all agreed to adjust (weight) for case volume.<BR/><BR/>The key here is that we're looking for cases that were overturned. SCOTUS does a nice job of eliminating thousands of cases from our potential sample, but the fact that their selections don't guarantee us a 100% overturn rate should not stop us from simply removing the poor selections from our sample. The same logic applies to the unanimous reversals, which we use only to reduce the risk that a given SCOTUS decision is a 'mistake'.<BR/><BR/>So when we find that 35% of the cases overturned came from a circuit that only represented 19% of the cases adjudicated, we have a weighted measure of who is 'most overturned'.<BR/><BR/>I don't see why the fact that a disproportionate number of cases were selected from the 9th Circuit should not be held against them. SCOTUS does not use random sampling techniques to select cases, they use a method that (for the most part) looks for problems. My assumption is that they apply a consistent standard uniformally across all circuits.<BR/><BR/>If the Circuit A had a 75% overturn rate on 100 cases, and the Circuit B had a 100% overturn rate on 2 cases, and their overall workload was identical, who would you say is more out of step?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-84558770402194391512008-10-08T08:56:00.000-06:002008-10-08T08:56:00.000-06:00Mr. Huisman:Just to be sure we are on the same pla...Mr. Huisman:<BR/><BR/>Just to be sure we are on the same playing field, let me repeat yet again: I'm not defending anything, I'm trying to work a math problem and to the extent it's relevant, understand the SCOTUS procedures (IANAL).<BR/><BR/>To those limited ends, I would like to understand your points. Re item 1, how does cert get into the statistical analysis. My understanding is that cert is the process by which a case gets to SCOTUS, so that once one starts computing using the 68 cases it becomes irrelevant. Am I missing a subtlety? Also, what does "a hypothetical 'perfect' selection rate" mean? And last, why do you consider the various percentages computed by dividing 9th C numbers by total numbers relevant since we have established that a disproportionate number of cases came from the 9th C?<BR/><BR/>I don't know to whom item 2 was directed. Since I didn't introduce the idea of using unanimous reversals and was just "running the numbers", I assume it wasn't me. If that assumption is wrong, please elaborate since I missed your point. (And if it is right, "never mind".)<BR/><BR/>Since I started composing, your second comment appeared. Again I don't understand your terminology, specifically "a more consistently applied selection standard". I infer that you are addressing some issue relating to the selection of cases which are granted cert, but I don't understand what it is. Does the fact that a disproportionate number of cases came from the 9th C tell you something that you are trying to "add" to the raw numbers?<BR/><BR/>Thanks - CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-26208671103135386552008-10-08T08:25:00.000-06:002008-10-08T08:25:00.000-06:00I should have added in #2 above that the 10/23 (43...I should have added in #2 above that the 10/23 (43%) unanimous reversals is a valid metric (along the lines of #1) because it allows comparison among a more consistently applied selection standard.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-15560485708100427292008-10-08T07:52:00.000-06:002008-10-08T07:52:00.000-06:00Some comments:1) The percentage of cases reversed/...Some comments:<BR/><BR/>1) The percentage of cases reversed/vacated that were granted certiori is the least relevant statistic cited here. The appellate cases reversed/vacated - 19/54 (35%) represents a hypothetical 'perfect' SCOTUS selection rate.<BR/><BR/>2) The percentage of unanimous reversals from a circuit's total reversals is not particularly significant here either. The reason for using the unanimous reversal standard is to 'clean up' the sample (hopefully removing any uncertainty due to inherent SCOTUS issues as opposed to the 9th Circuit).<BR/><BR/>Again, I don't like relying on these statistics to make the charge of radical against the 9th, but I like them even less in their defense.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-6979067227212111422008-10-08T01:25:00.000-06:002008-10-08T01:25:00.000-06:00OK, if you insist. I hadn't actually thought it th...OK, if you insist. I hadn't actually thought it through carefully, but once I did I found that neither Prof. Chemerinsky nor Mr. Isaacson nor I had used quite the right numbers. But the results were pretty close.<BR/><BR/>Start with Mr. Huisman's numbers:<BR/><BR/>Appellate cases reviewed - 25/68 (37%)<BR/><BR/>Appellate cases reversed/vacated - 19/54 (35%)<BR/><BR/>Appellate cases unanimously reversed - 10/23 (43%)<BR/><BR/>9th Circuit % of total appellate cases - 19%<BR/><BR/>As previously noted, a disproportional number of cases reviewed came from the 9th C (19% of the total cases, 37% of those reviewed). We don't know why that is true, but it doesn't matter since the calculations involve only the 68 cases that actually made it to SCOTUS.<BR/><BR/>First, consider the reversal rate among all cases reviewed by SCOTUS:<BR/><BR/><I>Among the 68 cases that SCOTUS reviewed, how does the reversal rate among cases from the 9th C compare to the reversal rate among cases from the other circuits?</I><BR/><BR/>The reversal rate for cases from the 9th C is 19/25 = 76%. The reversal rate for cases from all other circuits is (54-19)/(68-25) = 35/43 = 81%. Ie, the 9th C is slightly better.<BR/><BR/>Next, consider the unanimous reversal rate among all cases reviewed by SCOTUS:<BR/><BR/><I>Among the 68 cases that SCOTUS reviewed, how does the unanimous reversal rate among cases from the 9th C compare to the unanimous reversal rate among cases from the other circuits?</I><BR/><BR/>The unanimous reversal rate for cases from the 9th C is 10/25 = 40%. The unanimous reversal rate for cases from all other circuits is (23-10)/(68-25) = 13/43 = 30%. Ie, the rate for the 9th C is one third more than the rate for the other circuits, probably statistically significant (but not as dramatic as the comparison of 19% and 43%, neither of which is relevant).<BR/><BR/>Finally, consider an alternative approach to unanimous reversals:<BR/><BR/><I>Among the 54 cases that SCOTUS reviewed and reversed, how does the unanimous reversal rate among cases from the 9th C compare to the unanimous reversal rate among cases from the other circuits?</I><BR/><BR/>The unanimous reversal rate for reversed cases from the 9th C is 10/19 = 53%. The unanimous reversal rate for reversed cases from all other circuits is (23-10)/(54-19) = 13/35 = 37%. Ie, the rate for the 9th C is 43% more than the rate for the other circuits.<BR/><BR/>I'm not sure which of the last two calculations is more meaningful. Either way, it does appear that although the overall reversal rate for the 9th C is in line with the rate for the other circuits, unanimous reversals are more likely for them by a statistically significant amount.<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-35406851153999141092008-10-07T23:25:00.000-06:002008-10-07T23:25:00.000-06:00I respect your studies, Charles, and am willing to...I respect your studies, Charles, and am willing to admit I'm wrong if you can show the error of my ways. However, if I'm on an assembly line and 20% of my widgets are flagged for inspection as possibly defective, and half of them are found to indeed be defective [a nominal defect rate of 50%], I have a failure rate of 10%.<BR/><BR/>If the next fellow on the assembly line has only 10% of his work flagged for inspection and has the same nominal defect rate as me [50%], his failure rate is only 5%.<BR/><BR/>This is the rebuttal to Chermerinsky's argument, as he examines only the "nominal defect rate." He says since they're all equal, case closed. I do not see how 5 = 10.<BR/><BR/>Now, you made some additional arguments about "interesting" cases being more likely to be "flagged," and I stipulated that was a sound counterargument. However, we cannot simply negate or ignore <I>unanimous</I> reversals, for reasons I already gave. <BR/><BR/>If the discussion is not to sink into total negation---nihilism, if you will---a court that represents 43% of <I>all</I> assembly line defects [unanimous reversals] but only does 19% of the widget-making deserves more than a shrug of the shoulders.<BR/><BR/>If you want to deconstruct the term "radical" to meaninglessness, or discard the whole deal for its small sample size, that's fine, but your graduate education in statistics is not brought to bear, then.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-28047420833963537542008-10-07T20:16:00.000-06:002008-10-07T20:16:00.000-06:00"you and EA have poked holes only in the side you ..."you and EA have poked holes only in the side you disfavor"<BR/><BR/>As I tried to indicate in my comment, because of a relatively extensive background in probability theory, I am always interested in statistics problems just as an intellectual activity. I don't really think I have a "side" in this issue.<BR/><BR/>It is true that I consider the general concept of "activist" courts and judges to be somewhat dubious. But I was attacking this specific issue as a technician, not as a partisan. I even found Mr. Huisman's numbers highly suggestive until I saw the flaw. I won't rehash the point, but IMO Prof Chermerinsky and Mr. Isaacson's analysis is correct. And using their approach, I get the stats for unanimous reversals to be:<BR/><BR/> all = 34%, 9th C = 40%<BR/><BR/>Given the small sample size, I don't find that a convincing difference. But having no vested interest in the conclusion, I'll defer to someone who cares to interpret. I'm interested in "just the facts, ma'am".<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-58453359340320991662008-10-07T17:04:00.000-06:002008-10-07T17:04:00.000-06:00Me either, which is why I used "or something." Bu...Me either, which is why I used "or something." But it indicates a belief that all truth is subjective.<BR/><BR/>Your objections are not unreasonable, BTW, and I certainly think being overturned 5-4 proves little or nothing. But I think the Ninth's sky-high <I>unanimous</I> reversal rate indicates <I>something</I>, and I do not think that skepticism should be ceded all wins. Since both you and EA have poked holes only in the side you disfavor, it's clear you're not exactly above the fray. I do think each side bears a burden of proof or at least the duty to provide argument and counterargument. <BR/><BR/>For instance, I do not surrender to the creationists just because they are correct there are huge holes in the fossil record's proof for evolution. [But that's another discussion, and I'm unprepared to argue their side of it. And I've yet to come up with a credible spokesman from their side on whom I could lean. But you see what I mean, and I hope you'll kindly stipulate the principle without us getting into the particulars.]Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-34374595695948778472008-10-07T16:45:00.000-06:002008-10-07T16:45:00.000-06:00Since I'm not claiming any court is activist, radi...Since I'm not claiming any court is activist, radical, whatever, it's not my responsibility to come up with a way of demonstrating it. I was just pointing out a possible flaw in the proposed method of doing so.<BR/><BR/>According to the definition I use, I am in fact a nihilist, but it's not clear why that is relevant. And "postmodern" seems to be one of those words which is bandied about as an insult by people who may or may not have a clear idea - if any - what they mean. (I don't.)<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-21061952499721517912008-10-07T16:09:00.000-06:002008-10-07T16:09:00.000-06:00But the end result is that you seem to be saying t...But the end result is that you seem to be saying there is no sensible way to say any court is any more radical than any other. This strikes me as nihilistic or postmodern or something.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-23394122435966069822008-10-07T13:48:00.000-06:002008-10-07T13:48:00.000-06:00Notwithstanding that Tom is correct that the "radi...Notwithstanding that Tom is correct that the "radical" issue is irrelevant to his post, the statistical question is much more interesting to me than the question of oaths. So, I'll belatedly chime in.<BR/><BR/>Quite apart from the statistical details, there seems to be a logical inconsistency in the general concept. Presumably, most of those who consider the 9th C to be "activist" (broadly meaning, I assume, that its decisions have a high probability of being "in error") also consider SCOTUS to be activist. If so, using SCOTUS reversals as a measure by which to judge lower court activism seems inappropriate. Eg, if SCOTUS decisions are in error with probability greater than 1/2, decisions from the lower court with the "most" (measured however one chooses) reversals are less likely to be incorrect, and thus that lower court would actually be the least activist.<BR/><BR/>Which suggests (as do many legal scholars) that the whole concept is rather silly. And to take the silliness to the extreme, one might argue that since 100% of overruled SCOTUS decisions come from itself, by the "reversal standard" SCOTUS is the ultimate activist court.<BR/><BR/>- CharlesCharles T. Wolvertonhttps://www.blogger.com/profile/12309746685166449683noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-80527190980287506542008-10-06T17:24:00.000-06:002008-10-06T17:24:00.000-06:00Eric, I'm not going to play the "offended" game wi...Eric, I'm not going to play the "offended" game with you either. You don't respond to the carefully-written rebuttals of your points, you just throw new ones out <I>ad infinitum</I>. That's insulting.<BR/><BR/>Your ignoring my main thesis and continuing to niggle at a side issue---even after I withdrew the remark for the sake of discussion---was insulting.<BR/><BR/>And my initial ire was directed at Prof. Chermerinsky's faulty statistical arguments. When you stood behind them, you simply got caught in the crossfire. But that was your choice.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-52631589155030366272008-10-06T16:10:00.000-06:002008-10-06T16:10:00.000-06:00Your insults offend me Tom. Please retract them.Your insults offend me Tom. <BR/><BR/>Please retract them.Eric Alan Isaacsonhttps://www.blogger.com/profile/14144268111747323445noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-77262513773339385202008-10-05T21:43:00.000-06:002008-10-05T21:43:00.000-06:00The SC spent 14% of its time [10 cases] unanimousl...The SC spent 14% of its time [10 cases] <I>unanimously</I> overturning the Ninth, which accounted for only 19% of <I>all</I> appellate cases [68]. This argues against your [very good] objection that perhaps the SC takes more Ninth cases because they're "interesting."<BR/><BR/>And I see once again that Mr. Isaacson emits a fog where clarity is needed. The reversal rate was never argued except by you, Eric, and Prof. Chermerinsky, and it's a faulty argument to begin with.<BR/><BR/>Since you didn't respond to the principled replies and rebuttals of your previous inadequate arguments, I can only assume your emphasis and style is on quantity of arguments, not the quality of them, so that the other fellow eventually gives up.<BR/><BR/>Perhaps that works for you in the courts. It works with me. It's not worth the trouble to dissect your latest attempt. [You opened the door to the problem of <I>en banc</I> decisions, for instance, which undercuts one of your own previous arguments.]<BR/><BR/>And since I withdrew my remark about the Ninth many comments ago, I can only assume you're content with diddling with the irrelevant details you think you can win, rather than the actual topic of the post.<BR/><BR/>I'm OK with that, Eric, except that we are obviously not searching for truth, but playing Debate Club or "Law & Order." I have to get better at declining to play such games.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-90642809317632148972008-10-05T12:45:00.000-06:002008-10-05T12:45:00.000-06:00I took graduate courses in probablity and statisti...I took graduate courses in probablity and statistics. The sample size for a statistic doesn't include any items that don't appear in the equation that produces that statistic. The equation is 43%=10/23. There is no 68.Explicit Atheisthttps://www.blogger.com/profile/05501109533475045969noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-3812733221801664442008-10-05T02:00:00.000-06:002008-10-05T02:00:00.000-06:00Checking the Harvard Law Review’s statistics for t...Checking the Harvard Law Review’s statistics for the Supreme Court’s <A HREF="http://www.harvardlawreview.org/issues/118/Nov04/StatsFTX.pdf" REL="nofollow">October 2003 Term</A>, I find that the Supreme Court reversed or vacated the opinions below in 100% of the decisions reviewed from the Second Circuit (two of two), Fifth Circuit (six of six), Tenth Circuit (three of three), and Federal Circuit (one of one). Yet that does not suggest that these circuits, with their aggregate reversal rate of 100% for the term, are more “liberal” than the Ninth Circuit. <BR/><BR/>When I begin to review the term's unanimous “nukings” of Ninth Circuit opinions, I find cases like <I>National Archives and Records v. Favish,</I> 541 U.S. 157 (2004), in which the Ninth Circuit agreed with a lawyer for <A HREF="http://www.aim.org/" REL="nofollow">Accuracy in Media</A> the “conservative watchdog group,” who sought release of photographs from Vince Foster’s death scene. Two of the Ninth Circuit’s Ronald Reagan appointees, Judges Noonan and O’Scannlain agreed with AIM’s lawyer, over the dissent of Judge Pregerson, a Jimmy Carter appointee (who is regarded by many as one of the Ninth Circuit’s more liberal judges). <I>See Favish v. Office of Independent Counsel,</I> 217 F.3d 1168 (9th Cir. 2000). But the liberal dissenter was right, for the Supreme Court unanimously reversed, ruling against the right-wing organization. <BR/><BR/>So, it appears that even Ninth Circuit rulings that favor conservatives are counted to demonstrate that the court is “too liberal.”Eric Alan Isaacsonhttps://www.blogger.com/profile/14144268111747323445noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-66776347245141548762008-10-05T01:13:00.000-06:002008-10-05T01:13:00.000-06:00This comment has been removed by the author.Eric Alan Isaacsonhttps://www.blogger.com/profile/14144268111747323445noreply@blogger.com