The Broader Situation: A Case Study of Cop Car Cameras

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.”

Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List

Doug Kysar and Situationist contributor Jon Hanson recently posted on SSRN their important 1999 article, Taking Behavioralism Seriously: The Problem of Market Manipulation (74 N.Y.U.L. Rev. 363) on SSRN. Here is the article’s abstract.

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For the past few decades, cognitive psychologists and behavioral researchers have been steadily uncovering evidence that human decisionmaking processes are prone to nonrational, yet systematic, tendencies. These researchers claim not merely that we sometimes fail to abide by rules of logic, but that we fail to do so in predictable ways.

With a few notable exceptions, implications of this research for legal institutions were slow in reaching the academic literature. Within the last few years, however, we have seen an outpouring of scholarship addressing the impact of behavioral research over a wide range of legal topics. Indeed, one might predict that the current behavioral movement eventually will have an influence on legal scholarship matched only by its predecessor, the law and economics movement. Ultimately, any legal concept that relies in some sense on a notion of reasonableness or that is premised on the existence of a reasonable or rational decisionmaker will need to be reassessed in light of the mounting evidence that humans are “a reasoning rather than a reasonable animal.”

This Article contributes to that reassessment by focusing on the problem of manipulability. Our central contention is that the presence of unyielding cognitive biases makes individual decisionmakers susceptible to manipulation by those able to influence the context in which decisions are made. More particularly, we believe that market outcomes frequently will be heavily influenced, if not determined, by the ability of one actor to control the format of information, the presentation of choices, and, in general, the setting within which market transactions occur. Once one accepts that individuals systematically behave in nonrational ways, it follows from an economic perspective that others will exploit those tendencies for gain.

That possibility of manipulation has a variety of implications for legal policy analysis that have heretofore gone unrecognized. This article highlights some of those implications and makes several predictions that are tested in other work.

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SSRN has just announced its Journal of Behavioral & Experimental Economics and Journal of Behavioral Economics Top Ten lists for papers posted in the last 60 days.  Taking Behavioralism Seriously made both lists.

To download the paper for free click here.  That link will direct you to the abstract and various download options.  To download the companion article, Taking Behavioralism Seriously: Som Evidence of Market Manipulation (112 Harvard L. Rev. 1420) click here. For a sample of related Situationist posts, see “Promoting Smoking through Situation” and “The Situation of Subprime Mortgage Contracts – Abstract.”

The Cultural Situation of the HPV Vaccine – Abstract

Situationist Contributors Dan Kahan, Geoffrey Cohen, and Paul Slovic and their coauthors Donald Braman, and John Gastil, recently posted a fascinating paper, “Who Fears the HPV Vaccine, Who Doesn’t, and Why? An Experimental Study of the Mechanisms of Cultural Cognition” on SSRN. Here’s the abstract.

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The cultural cognition hypothesis holds that individuals are disposed to form risk perceptions that reflect and reinforce their commitments to contested views of the good society. This paper reports the results of a study that used the controversy over mandatory HPV vaccination to test the cultural cognition hypothesis. Although public health officials have recommended that all girls aged 11 or 12 be vaccinated for HPV – a virus that causes cervical cancer and that is transmitted by sexual contact – political controversy has blocked adoption of mandatory school-enrollment vaccination programs in all but one state. A multi-stage experimental study of a large and diverse sample of American adults (N = 1,500) found evidence that cultural cognition generates disagreement about the risks and benefits of the HPV vaccine. It does so, the experiment determined, through two mechanisms: biased assimilation, and the credibility heuristic. In addition to describing the study, the paper discusses the theoretical and practical implications of these findings.

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For a related set of Situationist posts on cultural cognition, click here.

The Situational Demographics of Deadly Force – Abstract

James P. McElvain and Augustine J. Kposowa have an interesting new article, “Police Officer Characteristics and the Likelihood of Using Deadly Force,” in 35 Criminal Justice and Behavior, 505-521 (2008). Here’s the abstract.

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Past research on police shootings, when examining officer characteristics, has focused on the officer’s race, particularly when it is not the same as the race of the person shot. Data from 186 officer-involved shootings were used to examine whether race effects existed and, if so, would be eliminated or attenuated by controlling for officer gender, education, age, and history of shooting. Male officers were more likely to shoot than female officers, and college-educated officers were less likely to be involved in shootings than officers with no college education. Risk of officer-involved shooting was reduced as the officer aged. White, non-Hispanic officers were more likely to shoot than Hispanic officers; however, there was no significant difference between Hispanic and Black officers. Officers with a previous history of shooting were more than 51% as likely to shoot during the follow-up period as officers without a history of shootings.