Broken Telephone in Court Opinions

In my Academic Legal Writing book, I caution students who are writing law review articles against relying on court opinions’ factual assertions about social science evidence, or even about past cases. Always read, quote, and cite the original source, I tell them (though I realize, of course, that many lawyers don’t have the luxury of taking the research time to do that). Don’t let the intermediate source’s errors become your errors.

I just came across another interesting example, from the recent Florida same-sex adoption decision, In re Matter of Adoption of X.X.G. and N.R.G (emphasis added):

The Department says that there are disturbingly high domestic violence rates among same-sex couples. However, the Department selectively quotes the testimony by Dr. Peplau. In reality, Dr. Peplau testified that gay people or gay couples do not have higher rates of domestic violence than heterosexual couples. R. 811. In the population-based study cited by Dr. Peplau, “the highest rate of domestic violence, defined as physical assault or rape … was 20 percent, and that was for women in heterosexual relationships being attacked by their male partner.” R. 812. The rates for all other groups was lower. This was consistent with a study by the Centers for Disease Control, which found that over an eighteen-year period, ninety-five percent of female homicide victims were women killed by a male domestic partner. R. 814.

Ninety-five percent of female homicide victims were women killed by a male domestic partner — that struck me as suspiciously high. Unfortunately, I couldn’t track down the actual court record (“R. 814” is a cite to the record), even by contacting the court. But I e-mailed Dr. Peplau, who reported that she had testified about this CDC report, and in particular about this passage:

During 1981-1998, a total of 346,258 homicides were recorded in the SHR [Supplemental Homicide Reports] database, and a total of 381,408 homicides (excluding those involving legal intervention) were recorded in the vital records database. Among the SHR homicides, 16,809 were dropped from the analysis because they were classified as negligent manslaughter or justifiable homicide or were associated with legal intervention (i.e., homicide associated with police intervention). An additional 28,927 homicides were dropped from the analysis because they involved multiple victims aged >10 years or because the age, race, or sex of the victim was missing. Consequently, 300,522 SHR homicides were available for analysis. The average weight applied to the IPH [Intimiate Partner Homicide] counts to generate the estimated number of IPHs was the ratio of vital records homicides (381,408) to 300,522 or 1.28.

Of 300,522 records, SHRs recorded 35,601 (11.8%) IPHs (i.e., one victim aged >10 years) with complete information on age, race, and sex. After weighting, an estimated 45,513 (11.9%) IPHs occurred during 1981-1998. Of these 45,513, approximately 28,991 (63.7%) of homicides were perpetrated against females, 93.8% of males were victimized by females, and 99.5% of females were victimized by males.

So the report was that 99.5% (not 95%) of those women who were killed by intimate partners (setting aside negligent homicides and justifiable homicides, such as defensive homicides) were women killed by male intimate partners, and only 0.5% were women killed by female intimate partners. Very different, I think, from “ninety-five percent of female homicide victims were women killed by a male domestic partner” (even setting aside the 95% vs. 99.5% discrepancy).

Now it may well be that the judges read the report or Prof. Peplau’s testimony correctly. The paragraph I quote from the court decision is indeed about the relative crime rates within lesbian couples as opposed to heterosexual couples, and the report is relevant to that (though if it’s used for that purpose, the 95% vs. 99.5% difference is very substantial, and one would also want to know how many female-female couples were around at the time in the first place, compared to male-female couples). But the court’s sentence summarizing the report is incorrect. If you rely on the court’s assertion in a future article about the fraction of female homicide victims were women killed by a male domestic partner, you’ll be badly wrong.

So, as I said, in your own scholarship you should read, quote, and cite the original source for the assertion, not an intermediate source (including a court opinion). Here’s another example, by the way, that I give in the book, from a U.S. Supreme Court opinion.

Even Supreme Court opinions can contain mistakes; for instance, Reno v. ACLU, where the Court struck down the first Internet indecency ban (the Communications Decency Act), said the following to distinguish two earlier cases:

The breadth of the CDA’s coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg [v. New York, 390 U.S. 629 (1968),] and [FCC v.] Pacifica [Foundation, 438 U.S. 726 (1978)], the scope of the CDA is not limited to commercial speech or commercial entities.

Sounds like you can confidently assert, citing Reno, that the restrictions in Ginsberg and Pacifica were limited to commercial speech or commercial entities.

Unfortunately, the Reno opinion was wrong. The Ginsberg law, which barred the sales of certain sexually themed magazines to minors, was not limited to commercial speech: Such magazines, even ones sold for money, do not qualify as commercial speech, a term that generally refers only to commercial advertising. The Pacifica regulation was not limited either to commercial speech or to commercial entities; the broadcast in Pacifica itself was noncommercial speech carried by a nonprofit, noncommercial radio station. Whoops.

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