Dave Hoffman over at Concurring Opinions wasn't the only blogger at CELS in Ithaca. Although he and I apparently went to different panels, like him, I thought the conference was excellent and the quality of the papers and discussion extremely high. Congratulations and thanks to all of the conference organizers.
One particularly interesting paper was, coincidentally (or not) co-authored by Dave Hoffman, and was previously blogged about here. The paper, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism by Dan Kahan, David Hoffman, and Donald Braman (forthcoming in Harvard Law Review), takes advantage of a unique experiment made possible by modern technology. In Scott v. Harris, the Supreme Court addressed whether summary judgment was appropriate in a claim of excessive force where a police officer rammed his car into the car of the fleeing suspect, who was rendred quadriplegic. The Court held that the use of deadly force was reasonable under the circumstances, given the risk that the car chase posed to the public. The Court rested its conclusion on the contents of a videotape, shot from the police car itself, that was entered into evidence and that the Court posted on its website. Interestingly, however, despite the fact that the Court said that no reasonable juror could find the use of force excessive, one Supreme Court justice -- Justice Stevens -- concluded otherwise.
Taking advantage of the now publicly available videotape, the paper's authors showed the video to 1350 Americans. As they explain, "a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities." So individuals who tend to see the world hierarchically (demographically more likely to be white, male, and from the South or West), were more likely to agree with the Court majority than were individuals who take a more egalitarian perspective (demographically more likely to be nonwhite, female, and from the Northeast).
Normatively, these observations suggest that judges should, at a minimum, be cautious about the claims they make about what a "reasonable juror" could conclude. (Indeed, as the discussant, Neal Feigenson, pointed out, even if all members of the jury were completely average across all of the dimensions identified by the authors, there would still be a significant probability that at least one juror would believe that the police used excessive force. ) Assuming that one's own views are the only reasonable views, which is essentially what the majority did, "invested [the Court's] decision with culturally partisan overtones that detracted from the decision's legitimacy." As the authors point out, when different sorts of people have predictably different perspectives, deliberation is particularly appropriate.
This project suggests an interesting take on whether the standard for judgment as a matter of law -- which is, the Court has emphasized, the same is the standard for summary judgment -- should be different. Perhaps once a jury has in fact heard all the evidence, it should be allowed to render a verdict, and the fact of that verdict should help to inform the judge's ruling on the JML motion. This comes up often in employment cases, where JML is often sought -- and apparently disproportionately granted -- by employer-defendants. (See here and here for more of my thoughts on courts' overzealousness in granting summary judgment and judgment as a matter of law in employment cases.)
Yesterday was the best of days, and it was the worst of days. I was a participant and presenter at the "Research Conference on Access to Civil Justice: Empirical Perspectives," which is an ambitious event organized by the indomitable Sam Estreicher, NYU law prof and co-director for the Opperman Institute of Judicial Administration. 
Recent Comments