Math and the Law—A New Journal Series, 0118 ALBJ, 87 J. Kan. Bar Assn 1, 14 (2018)

 Author: Adam Dees, J. Position:: 87 J. Kan. Bar Assn 1, 14 (2018)

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Math and the Law—A New Journal Series

87 J. Kan. Bar Assn 1, 14 (2018)

Kansas Bar Journal

January, 2018

“I Went to Law School so I Wouldn’t Have to do Math!”

Many attorneys, at one time or another, have heard that old joke. But is that premise correct? Although math permeates the law, and somewhat vice versa, attorneys, (outside tax preparers and estate planning attorneys), seldom discuss the implications mathematics has on our profession. Trough the course of 2018, the KBA Journal will feature articles from a cadre of attorneys that regularly use math. From calculating child support to determining patent infringements to dealing with economic development, attorneys from all legal realms regularly use math.

Mathematical and logical thinking is all but required to enter law school. Te Law School Aptitude Test (LSAT) is replete with it.1 Laws and contracts are replete with “if, then” statements; statements of A=B, B=C, therefore A=C. Symbolic logic can win the day with court arguments; it can enhance contract drafting and create clear, crisp legislation.2 Symbolic logic may yet be used to push the law where it has not gone.

Why, then, do we hesitate to discuss this? Oliver Roeder, in his recent article “Te Supreme Court is Allergic to Math,” asserts “Te Supreme Court does not compute.”3 He argues for a top-down approach to using quantitative evidence, math and statistics. He requests that the U.S. Supreme Court begin looking towards quantitative evidence, math and statistics, and claims that lower courts will follow suit. Under stare decisis, this approach has merit. And yet, before the Supreme Court can hear the quantitative evidence, that evidence must first be presented to the district and appellate courts. Only then can mathematical and quantitative evidence flow to the Supreme Court for review.

Rather than arguing about how mathematics should be used in the court room, board rooms, and places of governance, this series will demonstrate how math is being used today throughout the legal community. In doing so, we expand the application of mathematics, as society, the law, and calculations advance.

Moreover, as education focuses more and more on science, technology, engineering, and math (STEM), continuing this conversation ensures that attorneys remain a vibrant part of the STEM classification—and even grow their share of that educational sector. Tis emphasis will continue to encourage former engineers, mathematicians, accountants, financial planners, teachers, and others drawing from STEM backgrounds to attend and succeed in law school, and go on to brilliant legal careers.

Te dreaded “word problem,” a mathematical problem expressed entirely in words typically used as an educational tool,4 abounds in the law. When discussing applying for Medicaid, the first questions are: “What resources do a husband and wife have? What resources are exempt under the law? And what resources must be divided between the spouses?” Ten, after the division of assets, does the applicant fall below the \$2,000.00 requirement allowed by the state? And, from the exempt assets, is there income that the applicant must pay that Medicaid will supplement? Tis is only one application of law and mathematics. Without the law, we could not create the framework to calculate the resources necessary for a person to receive Medicaid benefits, and without mathematics we could not calculate if the state was adequately providing those resources.

Moving from social benefits to the courtroom, child witnesses are routinely asked what grade they have completed and if they mastered certain skills—one being math. Many times, an individual’s ability to do math is relied upon to determine whether a witness is competent to testify.5

At the appellate level, Judge Leben has argued that incorrect math creates ambiguity in contracts.6 In his dissent in In re Marriage of Johnson, Leben argues that the district court agreed with him—so two judges determined that the math was ambiguous and two appellate judges disagreed—a mathematical argument. He further argues a contract is ambiguous when there’s more than one way to calculate the math (and yet the majority disagree).7

District courts have been reversed and remanded to do the actual math on the record when determining restitution owed to victims in criminal cases. In Pelso, the district court only held that the defendant should pay five percent of Board of Indigent Defense Services fees. Without knowing the precise amount, the Kansas Court of Appeals determined that the district court could not find that paying BIDS fees did not impose a hardship. Although the defendant could determine the BIDS fees due, it was up to the district court to make that explicit.8 On the other hand, the district court in State v. Westfall calculated that the defendant was capable of paying \$500.00 in BIDS fees and was upheld on review.9

Yet math does not always provide an answer (hence the series being "Math and the Law"). Te administrator of the estate in In re Estate of Powell argued that a statute of limitations of four months from the date of first publication of notice, or if the identity of the creditor is known, 30 days after actual notices ran on a creditor’s claim barred a creditor’s claim.10 Te creditor had fled a claim 76 days after receiving actual notice, which was outside the 30 day timeframe. Te court concluded that it was the longer of the two time periods, four months or 30 days, and that the creditor was within the four-month period. Although the administrator’s math was correct, the law was equally clear and the longer period prevailed.

Over the next year, other examples will be highlighted. Trough this, practitioners should be able to answer the proverbial question all middle and high school math students ask: when will I need to use these math skills in adult life? Attorneys will answer: every day.

Contrary to the old joke, we did not go to law school and become lawyers because we did not know how to do math— we went to law school and became lawyers because we can do math. We do math daily. When we do math correctly, justice is better served. Tis is a high goal for a simple tool, one that all lawyers must have in their toolbox.

Adam Dees is an elder care attorney practicing in Hays, Kansas with Clinkscales Elder Law Practice, P.A. He is a 2011 graduate of the University of Kansas School of Law. He received his bachelor’s degree in 2008 from Southwestern College in Winfield, Kansas. Adam is the coordinator of the 2018 Math and the Law series for The Journal.

Notes:

[1] https://www.lsac.org/jd/lsat/prep/logical-reasoning.

[2] See Layman E. Allen, Symbolic Logic: A Razor-Edged Tool for Drafting and Interpreting Legal Documents, 66 Yale L.J. 833, 855-57 (1957); cf. Robert S. Summer, A Note on Symbolic Logic and the Law, 13 J. Legal Educ. 486-492 (1961); cf. Layman E. Allen, Symbolic Logic and Law: A Reply, 15 J. Legal Educ. 1, 47-55 (1962).

[3] Te Supreme Court is Allergic to Math, Oliver Roeder, October 17, 2017. https://fivethirtyeight.com/features/the-supreme-court-is-allergic-to-math/?utm_campaign=Ravel%20Reading%20List&utm_ source=hs_email&utm_medium=email&utm_content=57664340&_ hsenc=p2ANqtz-_VvftoHclS0P8BXwaaiXBMEjmtu1pcMqDZFuD 2C4aWL3z9H-jTrAwpNxFfFWCUjNXDq7R4Qq3UtGzEyRWNP7 ad_KjSig&_hsmi=57698058

[4] Merriam-Webster Dictionary, “Word Problem” 2017.

[5]

State v. Cline, 295 Kan. 104 (2012).

[6]

See In re Marriage of Johnson, __ P.3d __ (August 18, 2017) (dissenting opinion).

[7]

Id.

[8]

See State v. Pelso, 264 P.3d 1059 (unpublished) (Kan. Sup. 2011).

[9] 253 P.3d 386 (Kan. Ct.App. 2011) (unpublished).

[10] 369 P.3d 342 (Kan. Ct.App. 2016); See K.S.A. 59-2239(1).

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