More on CELS: Cognitive Illiberalism

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.)

Comments

[Payday Loan Advocate]

Ohioans have a chance to speak up for their financial freedom. This election day, consumers who depend upon the availability of payday loans for unexpected emergency expenses they hadn’t budgeted for must speak up. HB 545 is not a Robin Hood that will “steal from the rich and give to the poor.” The reality is more like the Sheriff of Nottingham appointing more vassals. That’s what’s happening when banks and credit unions throw as much money as they do behind this measure; they seek not only to snatch up the business payday lenders who have been squeezed out of business will leave, but to subject consumers to a product that will be even more profitable for banks: overdraft protection. Opponents make a big thing out of a “monster” 391 percent APR on faxless payday loans, but overdraft protection typically costs in excess of 1,000 percent APR. Which one’s the moneymaker? Keep in mind that payday loans are typically only two-week loans to begin with, so it’s an apple to orange argument. Moreover, voting NO on HB 545 will help prevent a mass exodus of jobs (in excess of 6,000) from leaving the state of Ohio. Odds are that many who lose their jobs due to such government overregulation will leave to work and/or live outside Ohio, which creates a tax and spending power deficit for a state that’s already suffering severe budget problems. Then there will be over 1,600 empty storefronts. How will that look when you’re courting businesses to move to your state, Mr. Strickland? Maybe you should be reading the discussion people are having about HB 545 on the blog at http://ideatreks.wordpress.com/2008/05/01/ohio-house-bill-545/. NO on HB 545 makes sense if you want to fix your state’s economy.
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[David Johnston]

The incumbent governor of Ohio, Ted Strickland, is currently trying to get popular support for House Bill 545. This bill, passed unethically, without the voice of the people, would effectively cap the interest rate of no fax payday loans in Ohio to 36%. That would basically mean that any interest would only amount to a few dollars and change for any amount of money taken out, and effectively, kill the industry, and deprive citizens of the state of Ohio of this resource. Obama wants to do one better, and install this cap at the national level. What this means is that not only would the American public be deprived of an alternative to bank loans, credit cards, overdraft, or even worse, loan sharks, it would also eliminate multiple thousands of jobs in the US, put even more people out of work. Make sure to have your voice heard on this issue, whatever your particular opinion may be. Vote!

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[timothy moriarty]

Dear Friend:

Are you ready yet for the November 4th Elections? How about your friends, family, and neighbors?

More Americans are expected to vote this year than ever before in history, so don’t be left out! Be sure to ask everyone you know the following questions:

Are you registered to vote? If you moved recently, have you updated your voter registration?
Did you apply for an Absentee Ballot? Do you know your state may not require any reason?
Can you find your local Polling Place? Do you know it may have changed from last time?
The answers to these questions -- and all your voting needs -- can be found at www.StateDemocracy.org