As part of my new commitment to posting more of my work on SSRN, I’ve just put up another forthcoming article that may be of interest to some readers. It offers a law and mind sciences (situationist / critical realist) perspective on Yale Law School’s Cultural Cognition Project (CCP) using a great recent article by CCP scholars Dan M. Kahan, David A. Hoffman, and Donald Braman as a case study. That article has been referenced in two recent New York Times pieces (including one that listed it as among the most important ideas of 2009).
If your interest is not yet piqued, I should also mention that the new SSRN post also has police chases and scandalous pictures of Angelina Jolie . . . or, well, at least one of those things.
The link is here; the abstract is found below.
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The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the situationist approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, the Article engages the case of Scott v. Harris, 127 S. Ct. 1769 (2007), the subject of a recent CCP study.
In Scott, the Supreme Court relied on a videotape of a high-speed police chase to conclude that an officer did not commit a Fourth Amendment violation when he purposefully caused the suspect’s car to crash by ramming the vehicle’s back bumper. Challenging the Court’s conclusion that “no reasonable juror” could see the motorist’s evasion of the police as anything but extremely dangerous, CCP Professors Dan M. Kahan, David A. Hoffman, and Donald Braman showed the video to 1,350 people and discovered clear rifts in perception based on ideological, cultural, and other lines.
Despite the valuable contribution of their research in uncovering the influence of identity-defining characteristics and commitments on perceptions, Kahan, Hoffman, and Braman failed to engage what may well be a more critical dynamic shaping the cognitions of their subjects and the members of the Supreme Court in Scott: the role of situational frames in guiding attributions of causation, responsibility, and blame. As social psychologists have documented—and as PLMS scholars have emphasized—while identities, experiences, and values matter, their operation and impact is not stable across cognitive tasks, but rather is contingent on the way in which information is presented and the broader context in which it is processed.
In large part, the Scott video is treated—both by the Supreme Court and by Kahan, Hoffman, and Braman—as if it presents a neutral, unfiltered account of events. This is incorrect. Studies of viewpoint bias suggest that the fact that the video offers the visual and oral perspective of a police officer participating in the chase—rather than that of the suspect or a neutral third party—likely had a significant effect on both the experimental population and members of the Court.
Had the Supreme Court watched a different video of the exact same events taken from inside the suspect’s car, this case may never have been taken away from the jury. Any discussion of judicial “legitimacy”—in both the descriptive and normative sense—must start here. The real danger for our justice system may not ultimately be the “visible fiction” of a suspect’s version of events, as Justice Scalia would have it, or cognitive illiberalism as Kahan, Hoffman, and Braman would, but the invisible influence of situational frames systematically prejudicing those who come before our courts.
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To read a sample of related Situationist posts, see “Whose Eyes are You Going to Believe?,” “Dan Kahan on the Situation of Risk Perceptions,” “Cultural Cognition as a Conception of the Cultural Theory of Risk,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “The Situation of Racial Profiling,” “The Situational Demographics of Deadly Force – Abstract,” and “The Situation of False Confessions.”