The Perils of the Fight Against Cognitive Illiberalism

Abstract:     
This paper critiques the recent article from Dan M. Kahan, David A. Hoffman, and Donald Braman, entitled Whose Eyes Are You Going To Believe? Scott v. Harris and the Perils of Cognitive Illiberalism. Based on a study of lay reactions to the fact situation in Scott v. Harris, in which the Supreme held that a car chase that rendered the plaintiff quadriplegic did not involve the use of excessive force, the authors suggest that the Court’s pronouncement in Scott that no reasonable juror could interpret the facts differently was erroneous. They also conjecture that the Court’s mistake was due to what they call 'cognitive illiberalism,' an inability to recognize how cultural background influences one’s own (as opposed to others’) decisionmaking. Cognitive illiberalism bothers the authors not only because it might produce erroneous judicial conclusions of the type they think occurred in Scott but because, as they put it, it 'needlessly magnifies cultural conflict over and discontent with the law.' This paper questions the premise of the article, which is that opinions like Scott cause more than a ripple among the populace. Further, even if the authors’ concern about the case’s effect on social cohesion is correct, this paper questions whether we should care, given the implications of the authors’ analysis for judicial review and Fourth Amendment doctrine.

Number of Pages in PDF File: 7

Keywords: excessive force, cognitive illiberalism, Scott v. Harris, Kahan, Fourth Amendment, car chase

Accepted Paper Series