Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism
Dan M. Kahan
Yale University - Law School
David A. Hoffman
Temple University - James E. Beasley School of Law; Cultural Cognition Project at Yale Law School; University of Pennsylvania Law School
George Washington University - Law School; Cultural Cognition Project
Harvard Law Review, Vol. 122, 2009
Harvard Law School Program on Risk Regulation Research Paper No. 08-18
Yale Law School, Public Law Working Paper No. 159
3rd Annual Conference on Empirical Legal Studies Papers
This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk to the public. Instead, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1,350 Americans. Overall 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. The paper also addresses the normative significance of these findings. The result in the case, we argue, might be defensible, but the Court's reasoning was not. Its insistence that there was only one reasonable view of facts itself displayed a characteristic of a form of bias - cognitive illiberalism - that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law's legitimacy.
Number of Pages in PDF File: 67
Keywords: cultural cognition, risk perception, Fourth Amendment, jury
Date posted: March 25, 2008 ; Last revised: April 16, 2013
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