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Kahan, Hoffman, and Braman Respond on Scott v. Harris Article:
Dan Kahan, Dave Hoffman, and my colleague Don Braman have responded to my post on their new article on Scott v. Harris with a fresh post of their own: Whose Eyes in Scott v. Harris? KHB Reply.

  I hope to respond soon on the merits, but for now I just wanted to point out the response for those who were following the exchange. Oh, and if you have no idea what I'm talking about, you can start by reading their very interesting article, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris.
GV:
I am a bit confused. According to the wise John Roberts, being a judge is just like being an umpire. It's that easy! So surely our life experiences would not in any way effect a judge's decision in a particular case, as this paper seems to imply.
1.15.2008 11:22am
OrinKerr:
gv,

Your snark seems to miss the mark. First, Roberts' comment was obviously normative, not descriptive. Second, the paper does not assess how a judge's background determines their views; rather, it tests how opinions vary among prospective jurors. Of course, I gather the point of the comment was to be snarky, and the effort is duly noted.
1.15.2008 12:13pm
Seeking Clarification:
Do KHB believe that Garner was wrongly decided, and that it should go to the jury whether a fleeing felon can be shot in the back of the head? Because I'm sure there are diverse demographics different from the Garner Ct that would think it quite reasonable to do so.

I presume that KHB don't think so, and I imagine the reason why is they recognize that the Ct defines reasonableness in ways that it believes create optimal legal rules, just as common-law courts do for negligence, and that those rules are not questions of fact. So the question is why they believe that the Garner q should be taken away from the jury, but the Scott q (whether police need break off pursuit of a felon fleeing dangerously) must go to the jury. I can't think of a legitimate answer.
1.15.2008 1:13pm
GV:
It was partly meant as snarky.

You've explained Roberts statements several times as being normative, not descriptive. I assume he was being normative, but I'm not sure why that's relevant. His normative view makes descriptive assumptions that are clearly wrong (and absurd). Ought implies can. And given that the law is at times indeterminate, judging is not going to be like umpiring. It's not a flaw in judging; it's part of the condition of judging. Perhaps put another way, if Roberts, when he is thinking about how to decide a case, is striving to act like an umpire, he's deluding himself. Cases that go before the Supreme Court are about competing interpretations of rules, and legal norms cannot settle the dispute because they support different interpretations. Thus, you must resort to non-legal norms to come to a conclusion. This is nothing like umpiring, which is generally simplistic and mechanical. Judging, particularly for a Supreme Court judge, is not generally simplistic and mechanical. This is true because judging cannot be, not because it should not be. Robert's analogy showed him either to be incredibly naive (which we all know he's not) or he was being entirely misleading. Fine, strive to be neutral and "apply the law". Given that this isn't always possible, then what?

Regarding your second point, I'm not sure I follow. The paper provides evidence for the view that your background will affect how you view facts. Judges are not immune to this. In other words, the paper makes the completely non-startling point that our experiences will shape how we view things. We all agree on these points. This obvious descriptive point undercuts Roberts view that judging ought to be like umpiring because as a matter of fact, judging cannot be like umpiring given that a judge cannot step out of his own skin. The fact that our own experiences will change how we interpret facts (or decide something is reasonable) is just one of the many things that leads to indeterminacy in the law.
1.15.2008 1:23pm
Dan Kahan (www):
Hi, GV. I think the paper furnishes *indirect* evidence of cultural cognition on judges. I wrote a post about that in Balinization.

Cultural Cognition is not so much the influence of experiences on perceptions (obviously, we can only make sense of things in light of what we have seen, done before, etc.) but rather the less obvious cognitive influence of values, which make some factual beliefs more pleasing to us than others. Imagine an umpire who wanted to call an honest game, but because he grew up rooting for the Red Sox subconsciously gives their hitters a wider strike zone.

We actually use this analogy in another paper to explain what happens in the minds of ordinary people when they look at facts in politically charged self-defense cases: they honestly try to conform their decisions to the facts as they see them in controversial cases like ones involving battered women who kill sleeping husbands, harassed commuters who kill panhandling teens, etc. but because those facts (beliefs, intentions, predictions of future dangerousness) are all hard to observe, they gravitate toward perceptions that fit various sorts of moral or cultural judgments they are making about the actors involved. As a result, people become culturally polarized--not b/c they are reacting to these cases "politically," as is often heatedly charged (by those on both sides of the ideological spectrum), but because their honest view of the facts is influenced in this way by values.

In support of Orin's view that "neutral umpire" is normative, I think people in this situation would actually feel disappointed to learn that their values had influenced their view of the facts, in much the same way that an umpire who is trying to call an honest game would be disappointed to learn that his rooting interest for one team had subconsciously colored his views of close calls. Normatively, just as the professional umpire wants to be neutral, we as jurors or citizens evaluating contentious cases, want to be neutral and decide according to principles the law uses in self-defense cases. We are, in this way, let down by cultural cognition. It's a sort of cognitive bias that defeats our moral aims.

I think Orin himself has adverted to this, both in his post about our paper, where he discussed the need to "step back from preconceptions and realize others can form different views of the facts" (I think that's how he put it) and in his taser-video post. In our self-defense study paper and in our Scott v. Harris paper, we consider how people -- judges included -- can try to avoid being defeated in this way by the interplay between facts &values, so that we can realize our common ends to apply the law -- which I think for the most part *does* reflect principles people of diverse values all agree with --can be neutrally applied.
1.15.2008 1:57pm
Dan Kahan (www):
Oh-- don't want to monopolize discussion (I prefer to lurk &learn, as I did in profitably following the interesting respones to Orin's initial post), the response to Seeking Clarification is (a) you are right we agree w/ rule from Garner &(b) we do indeed acknowledge in the paper that a *rule* of reasonableness for car-chases, derived not from a guess about how a "reasonable juror" would necessarily see the video but from legal-policy sense (the common currency of many 4th amendment rules), would not have been subject to the normative critique we offered. I myself think Scott was rightly decided because police-chases, insofar as they create risk for members of the public and not just for individual suspects, can be adequately regulated in the democratic *political* process, which we can be confident will be sensitive to the order-liberty tradeoff chases involve. Save judicial review for cases like Garner, where force is used in a concentrated way that doesn't put the public at large at risk and hence doesn't create adequate political incentives to regulate the police. (Obviously, this is a John Ely position.) I co-authored an amicus brief for cities &municipalities, who supported the outcome sought by Orin's client, that took exactly this position in Scott v. Harris.
1.15.2008 2:15pm