Over at Concurring Opinion Josh Blackman takes a first whack at understanding what the recent Sykes decision means for judges' approach toward statistical evidence. One interesting aspect is that, as Josh notes, "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." (emphasis added) For those interested, it was Justice Scalia who pushed back at the collective (if varying) reliance on statistical evidence in Sykes. Perhaps odder still is that none of the empirical evidence the Sykes opinion relies on (again, in varying degrees) was raised at trial, briefed, or formally entered into evidence.
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