In 1983, a subcommittee of the American Statistical Association composed of legal educators and one judge issued a report describing existing programs for educating law students in statistics and offering recommendations for improving these programs. This article summarizes that report

Kaye, David H.

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Penn State Law eLibraryJournal Articles Faculty Works1984Thinking Like a Statistician: The Report of theAmerican Statistical Association Committee onTraining in Statistics in Selected ProfessionsDavid H. KayePenn State LawFollow this and additional works at: http://elibrary.law.psu.edu/fac_worksPart of the Legal Education CommonsThis Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in JournalArticles by an authorized administrator of Penn State Law eLibrary. For more information, please contact ram6023@psu.edu.Recommended CitationDavid H. Kaye, Thinking Like a Statistician: The Report of the American Statistical Association Committee on Training in Statistics inSelected Professions, 34 J. Legal Educ. 97 (1984).Thinking Like a StatisticianThe Report of the American Statistical AssociationCommittee on Training in Statistics inSelected ProfessionsDavid H. KayeLegal scholars are flirts, or rather, some are. They flirt with one disciplineafter another, learning a little, distorting a little, and discerning-they say-a lot. At one time, it seemed that law and psychology were threatening toengulf the field of criminal law. In recent years, moral philosophy hasinfused writing on constitutional law with a new vocabulary. In manysubjects, economic analysis has become an apparently indispensable workingtool of legal scholarship. Even sociobiology has crept into a few niches inthis hospitable environment.The impetus for many of these interdisciplinary movements has comemostly from legal theoreticians. The application of statistical theory to legalanalysis and proof is a different matter. Much recent interest in applyingprobability and statistics to legal matters has come out of the trenches, fromdevelopments in legal practice. Increasingly, in certain fields of practice,statistical argument has become part of the armamentarium of the attorney.Some courts have chastised the parties for using inferior statistical methods,1and some members of the bar, in turn, have criticized the law schools for"failing to teach quantification skills."2In 1983, a subcommittee of the American Statistical Association composedof legal educators and one judge3 issued a report describing existingDavid H. Kaye is Professor of Law, Arizona State University.1. Coble v. Hot Springs School District No. 6, 682 F.2d 721, 731-32 (8th Cir. 1982).2. A.B.A. Section of Legal Education and Admissions to the Bar, Bench and Bar Look at LegalEducation, Syllabus, November 1981, at 12, 6.3. The members of the subcommittee were Robert Charrow, University of Cincinnati Schoolof Law; Richard 0. Lempert, University of Michigan School of Law; Jack B. Weinstein,Chief Judge of the United States District Court for the Eastern District of New York;Stanton Wheeler, Yale University Department of Sociology and Yale Law School; andFranklin E. Zimring, Director, Center for Studies in Criminal Justice, University ofChicago School of Law. The author of this article served as the chair of the subcommittee.The chairperson of the American Statistical Association's Committee on Training inSelected Professions is George T. Duncan, School of Urban and Public Affairs, earnegie-Mellon University.© 1984 by the Association of American Law Schools. Cite as 34 J. Legal Educ. 97 (1984).Journal of Legal Educationprograms for educating law students in statistics and offering recommenda-tions for improving these programs. This article summarizes that report.41. The Need for Statistical Expertise in LawThe subcommittee's argument for formal statistical training in legaleducation is straightforward. "The life of the law," Oliver Wendell Holmesonce wrote, "has not been logic: it has been experience." 5 Certainly, law isnot a closed, deductive system. It is concerned with governing andcoordinating human behavior. To be effective, it must assimilate and buildon sound knowledge from a broad spectrum of disciplines. In appropriatecircumstances, legislators, attorneys, judges, and legal scholars should anddo draw on many sources of information. Although the profession has afondness for anecdote and introspection (partly because in many matters oflegal interest no better information is available), it also relies, withincreasing frequency, on more systematic forms of empirical research. Thediscipline of statistics is concerned with organizing and analyzing the datafrom such research. Techniques of descriptive and inferential statistics offersystematic means for making sense of and drawing conclusions from pastexperience.More specifically, the subcommittee identified the following as mattersrequiring statistical expertise that are important to the legal system:scientific and statistical evidence prepared for specific proceedings; programevaluation; psychological, sociological and economic studies; public healthand epidemiologic data and studies; social and economic data.II. Existing Training Programs for the Legal ProfessionA. Education Available to Law StudentsThe time has passed when students entering law school could confidentlyassume that they had put all quantitative analysis behind them. But what isthe extent of curricular offerings in statistics in law schools? To answer thisquestion, the subcommittee wrote to the deans of all schools (170) approvedby the American Bar Association as of 1981. It asked them to indicate whichof the following three conditions applied at their schools (and to comment asthey saw fit):Response 1: Statistical theory or methods are taught in a class (or classes) specifically devoted tothe subject.Response 2: Statistical theory or methods are taught to some extent in a class (or classes) devotedto a broader or related subject.Response 3: Statistical theory or methods are not taught in any of our classes.4. For those interested in greater detail, a copy of the report may be obtained by writing theauthor.5. Oliver Wendell Holmes, Jr., The Common Law, 5th printing, (Boston, 1923).Thinking Like a Statistician 99After some prodding, 151 schools (90 percent) responded. 6 Figure A displaysthe pattern of these responses.Figure A. Distribution of responsesto law school curriculum censusResponse Frequencyl and 2 ++ 7, or 5 percent1 only ++ 8, or 5 percent2 only ++++++++ 22, or 15 percent3 only +++++++++++++++++++++++++++++ 115, or 76 percentAbout three-quarters (115) of the responding law schools provide notraining in statistical theory or methods. The proportion for all law schools(including the ones not approved by the A.B.A. and therefore not contactedas well as the ones contacted but not responding to the census) almostcertainly exceeds this figure. A few schools, such as the Harvard Law School,explained that law students had access to statistics classes at other units inthe university. None indicated how frequently their students exercise thisoption.About one-quarter (36) of the responding law schools say they have (orplan to have) some course offering that includes some instruction instatistical theory or methods (Response 1 or 2). Both public and private, andlarge and small enrollment institutions are well represented. The groupseems to be above average with respect to one measure of the prestige of itsmembers.7A smaller group of 15 schools (about 10 percent) report a course offeringwhose central focus is statistical methodology (Response 1). These schoolsalso include large and small, and public and private institutions. They tendto occupy high positions in the law school "pecking order," but not allhighly rated law schools are included.8 From their description, these courses,6. Public and private, large and small, highly selective and less selective, and high and low"prestige" schools can be found among the nonrespondents. However, when the distribu-tion of the rankings described at note 7 for nonrespondents is compared to that of theresponding law schools, it appears that the nonrespondents tend to be drawn from thebottom half of the perceived hierarchy of law schools.7. Efforts to assess the quality of professional schools, whether by objective criteria or byopinion polls, are perilous. Scott Van Alstyne, Ranking the Law Schools: The Reality ofIllusion? 1982 Am. B. Found. Research J. 649-84. Since most proposed criteria tend to behighly correlated with one another and because the subcommittee sought to characterize apattern rather than to determine the status of any particular school, it simply looked to therankings in the Cartte" Report on the Leading Schools of Education, Law, and Business,Change (February 1977), at 44. This poll of law school deans (which had a response rate ofonly 52 percent) classified the "top" ninety law schools into nine groups of ten. The mediangroup ranking for the schools reporting some instruction in statistics is 4.5, whichcompares favorably to the median of 8.5 that characterizes all 170 accredited law schools.8. The median of the Cartter Report group ratings of these law schools is 2.5. The distributionis shown below:+ ++o + + + 4 +Group rank 1 2 3 4 5 6 7 8 9Journal of Legal Educationfor the most part, seem comparable to a condensed, introductory under-graduate applied probability and statistics course for students who have noknowledge of calculus. Not surprisingly, the emphasis appears to be onapplications to legal problems. Most of these courses apparently are taughtby law professors, while others are taught by social scientists. A few, such asone offered in alternate years at the University of Chicago, are taught bystatisticians.The 32 courses that include some instruction in statistics but are notprimarily devoted to the subject (Response 2) included law and economics(5), law and social science or social science methods (12), law and psychology(4), employment discrimination (8), and evidence (3). A few schools said thatsuch classes as antitrust, civil procedure, contracts, and criminal law includeinstruction in statistical concepts.In sum, instruction for law students in statistical methods or theoryappears to be the exception rather than the norm in law schools. Of course,some students may have had training in statistics in undergraduate orgraduate study, but the reason most law schools do not include suchinstruction in their curriculum is probably not that they fear it would beredundant.B. Education Available to Practicing AttorneysUnfortunately, the subcommittee did not study the extent of instruction instatistics directed at practicing attorneys or judges. Some Continuing LegalEducation courses probably include discussions of applications of statisticsto law, as for example in the employment discrimination area. Symposia orworkshops sponsored by private institutions may also give attorneys someexposure to statistical developments. Although the subcommittee presentedalmost no information on such postgraduate education, these efforts, whilevaluable in other ways, probably do not constitute systematic, sustained, orwidely available instruction in statistics for attorneys.III. What Lawyers Should Know About StatisticsBecause attorneys practice law, not statistics, the subcommittee reasonedthat it is more important for them to be critical consumers of statisticalarguments than to be statisticians in their own right. The subcommitteesuggested that law school graduates should be competent users of descriptivestatistics and graphical presentations and that they should understand thebasic features of experimental design, survey techniques, statistical inference,and cost-benefit analysis.IV. Recommended Training Programs for Law StudentsIn considering the training law students ought to have in statistics, thesubcommittee asked how much, where and when. It concluded that theminimum academic training available to law students should equal twosemester hours of a basic course in applied probability and statistics. It alsosuggested that the ability to select and utilize expert statistical advice shouldbe cultivated-in clinical or evidence-related courses, if not in an introduc-tory law school course in statistics itself.Thinking Like a StatisticianAs to where and when law students should obtain such training, thesubcommittee observed that a law school might choose to make an appliedstatistics course taught in a department of mathematics or statistics aprerequisite to a law school course or seminar on legal applications orclinical instruction in coping with expert statistical testimony. This wouldhelp ensure that students have a reasonably thorough introduction to basicstatistical methods as well as some exposure to any special features ofstatistical assessments in law.Insisting on particular prelaw courses, however, would be a majordeparture from present practice, and the subcommittee did not insist that thecompletion of an applied statistics course of the sort designed for mathe-matics and science majors is essential. An alternative is for the law school tooffer its own core course. In some respects, this course might be somethinglike a music appreciation course. The students need not train to becomposers or soloists, but they should leave the course able to distinguishamong a virtuoso performance, an acceptable rendition, and a bad technique.At the same time, attorneys should be prepared to make some statisticalassessments of their own. They should realize, for example, that a mean isnot generally the same as a median, and they should be able to decide whichmeasure of central tendency is the most revealing for a given application. Interms of the musical metaphor, they are not merely passive listeners, butmodest performers. A demonstrated ability to work simple problems may benecessary to acquire this statistics "appreciation and usage" skill, but thelaw school course could focus from the outset on the legal applications. Forinstance, the subcommittee pointed out that such a course might cover thefollowing topics:The meaning of probability: frequentist, personalist, and other interpretations; their appli-cability to proof in the courtroom;The rules of probability: independent and dependent events; conditional probability; Bayes'rule;Random variables and probability distributions: the binomial distribution; the normaldistribution;Describing data: graphical methods of exploratory data analysis; frequency distributions;measures of central tendency and of variability;Populations and samples: sampling methods; experimental design; bias and the advantages ofrandom sampling;Sampling distributions: the sampling distribution of the sample mean; types of error;Likelihood functions: Bayesian inference;Decision theory: the legal standards of proof;Multivariate methods: regression and analysis of variance; correlation and causation.Perhaps optimistically, the subcommittee opined that a well-designed corecourse can cover these topics, at an introductory level suited to law studentsand their needs, in one semester. It suggested that where a law school'sresources permit it, the law-trained instructor might teach the class togetherwith a statistician or other individual broadly trained in statistics.Although the report tends to treat the fundamentals of probability andstatistics as matters to be taught in their own right, the subcommittee did notinsist that this is the only way to teach material considered useful to lawyersJournal of Legal Educationor that no law student would be fit to practice without academic credit in astatistics course. It spoke of "interstitial" treatment of these topics as apossible way to convey some material. In addition, despite the role ofstatistical proof in certain specialized fields such as trademark and unfaircompetition and employment discrimination, it recognized that manylawyers can serve their clients quite well without resorting to anything morethan rather simple statistical concepts in their daily practice.Nevertheless, the committee emphasized that statistical thinking is both avaluable part of a general liberal arts education and a useful skill in legalplanning and litigation. Law schools, it said, should make special efforts toencourage and facilitate the study of statistics. Such efforts may includepublicizing for the students the kinds of practice that will require them tohave more than an intelligent layman's knowledge of statistics, giving lawschool course credit to students who successfully complete courses instatistics outside the law school, offering statistics courses within the lawschool, and dealing with statistical concepts as they arise in such traditionallaw school subjects.as torts, constitutional law, criminal law, and evidence.V. Summary of RecommendationsThe bottom line of the report is its summary of recommendations to legaleducators:Law schools, in advising undergraduates about good preparatory courses for law school, shouldinclude applied probability and statistics in their recommendations.Law schools should offer instruction in legal applications of statistics, including some clinicaltraining in dealing with experts.Law schools that do not themselves offer an introductory survey course in statistics shouldaward academic credit to a law student without prior training in statistics who successfullycompletes an undergraduate class in the subject.Law schools that offer an introductory course in statistics should consider staffing the coursewith a person trained in statistics as well as a person trained in law.

Thinking Like a Statistician: The Report of the American Statistical Association Committee on Training in Statistics in Selected Professions

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Thinking Like a Statistician: The Report of the American Statistical Association Committee on Training in Statistics in Selected Professions

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