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Tuesday, February 19, 2008

Some thoughts on "Whose Eyes"

Yesterday, at the end of Howard's post on shameless plugs -- really, though, the genre is a null set here on Prawfs! -- Howard mentioned the paper by my friends Dan Kahan, Dave Hoffman, and Don Braman, entitled: Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris.

As many of you know, the paper has received a good bit of attention in the blogosphere. See here, here, here, here, and here. It is written with characteristic panache and presents a rich vein of interesting ideas.

I had the chance to read it a few weeks ago and had some thoughts about it that I'll share based on the version I saw on SSRN; I've already shared these and some other reactions to the authors.

FWIW, most of my comments are on the last section of the article, as I'm confident I have little useful to say about anything preceding that. I won't do too much foregrounding on the points I raise; I assume readers of this post will have read the paper.

A) I remain somewhat skeptical of the utility of the grid/group characteristics that undergird the Cultural Cognition Project's work for some of the reasons I raised last year in my piece in the Texas LR

B) It's a bit interesting that Justice Stevens, who was a Republican appointed white guy from the mid-west, ends up being the "Bernie" character in the group, no? To my mind, it weakly and anecdotally suggests the problems of reading too much into cultural cognition generalizations. And why does Clarence Thomas, a poor black kid from rural Georgia, become like "Ron"? In other words, what explains why one's susceptibility to cultural cognition "patterns" evolves?

C) Some of my concern is predicated on the fact that I'm not sure how much to read into the descriptive differences discussed in table 1. Looking at the question, "agree with the court," what do we see? The black-white difference registers a 0.83, but region and gender are less than a 1/4 of that. Everything else falls in between with most of them less than a 1/2 point different out of a total of 6. I take it the authors see that variation as significant, but why? How much does that tell us?

To me, I think it shows there's a greater likelihood of uniting people under reason than dividing them under cultural cognition patterns.  Cf. Obamania.

D) p.44 around the role of juries, n.89.
There's a long discussion of the loveliness of juries here vis-a-vis liberal democracy. To my knowledge, the use of (update: *civil*) juries is scant elsewhere in liberal democracies, so any account that valorizes jury use in the civil system as significant for liberal democracy runs the risk of denying the liberal democracyness of all the other liberal democracies around the world that don't use it. In other words, to the extent the normative account of the paper strives toward liberal democracy's goals, consider whether the civil jury institution is necessary to it. If it's not, what's going on in the other liberal democratic regimes that conduces to the "law's democratic legitimacy in the moral sense"?

More importantly, but not critical to KHB's views, jury practice has little to do with democracy in the precise sense. They may be a popular voice but they have nothing to do with democracy in the sense of majoritarian law-making, and the rules that govern jury outcomes are also not about majoritarianism. E.g., they require unanimity to acquit in the federal context, which suggests just how ridiculously stacked they are  in favor of the gov't  anyway...the gov't can keep retrying on hung juries.

To my mind, the real place for making the laws accountable to democracy is not the jury but the ballot box for legislative and executive voting; thus, I don't understand why, on bottom of 46, "those who disagree lack any resources for understanding the law as theirs."  Anyway, people who seem to disagree with the "correct" view of "social reality" (as determined by the lawyers)  will likely get struck through voir dire anyway... For the politically marginalized, democracy qua voting is likelier to be more successful than jury service is in making the law "theirs."

E) p. 47: The claim that the decision in Scott will send a message of disapproval to a "dissenting group of citizens" is a bit overstated. Most people in the study's "dissenting group" (which recall has only at most one point of difference on a scale of 6) probably don't even know about the decision in Scott and have taken no umbrage. Perhaps that's not true in Kelo, where there seems to be a lot more popular reaction, but I didn't get a strong enough sense of evidence to show that anyone in your dissenting group was trying to be a norm entrepreneur at the state level to apply a different rule than enunciated as a floor in Scott v. Harris.

Here's a weak point of evidence for this notion: I earlier did a google news search of Scott v. Harris for the last month. Nothing comes up in the last month. Plug in Kelo, and you still get lots of hits. This suggests, albeit weakly, that one's making a whole tzimmes out of one carrot and the claim that Scott created a "needlessly partisan" view of the world is one that exists without sufficient evidence in the paper to indicate any popular outrage or even mild consternation.

P. 50: again my earlier point:  The authors write the Court could have avoided "stigmatizing an identifiable subcommunity's view of social reality." Where can I find these people? Who is their spokesperson? Maybe one can discuss them if they are out there. But given that I didn't see the differences as so substantial, I'm not sure there's a dissenting group of citizens mobilizing on this issue.

F)  P. 57: This part of the paper again raises some different questions I brought up in my Tex LR piece. Quickly, I'm not sure why we should be so conflict-averse over these "cultural clashes" when they are channeled properly through liberal democratic institutions. Many people view this to-and-fro over values as indicative of a healthy marketplace of ideas; admittedly, fact-finding should be less aligned with cultural partisanship, but the stats generated here regarding the patterns of reactions to the Scott video don't strike me as indicative of any impending rebellion or mass demonstrations.

G) P. 60-61: Last, I can't quite tell whether the authors are embracing a Straussian esoterism doctrine of judging by encouraging judges to decide on grounds other than those sincerely held by the judge (ie, the lower courts got the facts flatly wrong). If so, this is likely subject to some of the objections raised by Micah Schwartzman in his forthcoming Va. L Rev piece on Judicial Sincerity.

Again, a very thoughtful, vividly written, and provocative piece. Harvard Law Review will be lucky to get it!

Posted by Administrators on February 19, 2008 at 07:38 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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Wow, apparently from my mouth to HLR's ears. I'm really pleased to see that the HLR editors did in fact pick up this piece.

Posted by: Dan Markel | Feb 29, 2008 12:50:29 PM

They got his permission!!

Posted by: Dan Markel | Feb 20, 2008 4:49:01 PM

How did Yochai Benkler end up as the "Bernie" character? :)

Posted by: Stuart Buck | Feb 20, 2008 3:38:39 PM

First, while I agree with Dan's point about liberal democracy generally, we could narrow it to American liberal democracy, which long has fetishized (rightly or wrongly) the jury. Indeed, since Scott was a civil case, it is worth noting that the U.S. is about the last nation to have civil juries. Still, if we are going to provide for civil juries, the rules should not be applied so as to short-circuit that process.

Second, even if the members of the "disrespected" group take no umbrage (because the likelihood is most never would have been selected as one of the 12 jurors anyway), there remains a process point underlying KHB identity argument.

Posted by: Howard Wasserman | Feb 19, 2008 8:59:54 PM

I have no idea. Last I heard, the authors hadn't sent it out, but that was a couple weeks ago.

Posted by: Dan Markel | Feb 19, 2008 7:59:15 PM

"Harvard Law Review will be lucky to get it!"

-Is this supposed to mean it's been accepted to HLR?

Posted by: anon | Feb 19, 2008 7:56:29 PM

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