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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Kobe Bryant or Anita Bryant? Who Is Big Ben’s Ideal Juror
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Thursday, September 10, 2009
Kobe Bryant or Anita Bryant? Who Is Big Ben’s Ideal Juror
Dan Kahan
It’s not clear that the case will ever make it to trial, but if it does, what sort of person would make the best juror for Pittsburgh Steelers quarterback “Big Ben” Roethlisberger in his defense to the civil sexual assault case filed against him? The answer might come as a surprise -- maybe not to Roethlisberger’s lawyers, but probably to many commentators involved in the debate over law and date rape. A study founded on the theory of cultural cognition suggests that Big Ben would likely be judged much more sympathetically by a jury dominated by women who subscribe to highly traditional gender norms than he would by one consisting literally of his “peers.” Cultural cognition refers to the tendency of people to conform their view of facts to their identity-defining group commitments. We all belong to groups that share basic understandings about how the world does and should work. Forming beliefs that undercut those understandings creates emotional dissonance and also threatens our connections with others whose good opinion we covet. Accordingly, when in legal settings we are required to make judgments about nebulous facts like “intent,” “causation,” “imminent danger,” and the like, we have a psychological tendency to see things that confirm rather than defy our group’s shared understandings. In a Harvard Law Review article based on the Supreme Court’s decision in Scott v. Harris, for example, David Hoffman, Donald Braman, and I presented study results finding that cultural values strongly predicted varying perceptions of the risks posed by a high-speed police car chase captured on a police cruiser videotape. The results of the study (which will be published in an article in the Pennsylvania Law Review) were consistent with cultural cognition hypothesis. Whether the accuser in Berkowitz effectively conveyed consent or the lack of it, I found, depended on whom was being asked. Individuals who adhered to a largely traditional cultural style, one that prescribes highly differentiated gender roles and features a commitment to hierarchical forms of authority and social organization more generally, were highly likely to believe that the accuser’s “no” did not really mean “no” in Berkowitz. In contrast, persons who subscribed to a more egalitarian cultural style that denies the legitimacy of hierarchic forms of social organization, including those founded on gender, were highly likely to perceive that the accuser did not consent, and that the defendant knew that. The influence of culture, the study found, was much larger than the legal definition of rape. In response to cases like Berkowitz, rape law reformers have proposed eliminating the traditional common law element of “force” and also the defense of “reasonable mistake” on consent. But subjects who were instructed to apply a standard reflecting one or another of these “reform” standards were as likely (around 45%) to find the Berkowitz defendant innocent as subjects instructed to apply the traditional common law definition. Subjects instructed that rape includes sex when a woman says “no” regardless of what she might have meant to convey or what the man understood her to be communicating -- a more radical reform not currently in force anywhere -- were slightly more likely to convict. But the size of this increase was small compared to the impact that cultural predispositions exerted under any legal standard. Gender also mattered much less than culture -- or rather mattered only in conjunction with it. Overall, women were no more or less likely to favor conviction than were men. However, women who subscribed to the hierarchical cultural style -- particularly older women who did -- were more inclined to form a pro-defendant view of the facts. This result also reflects cultural cognition. Persons who subscribe to traditional gender norms conceive of “token resistance” -- saying “no” but meaning “yes” -- as a strategy some women use to evade the stigma these norms visit on women who engage in casual sex. Women who have earned high group standing by conspicuously conforming to these norms are the ones whose relative status is most threatened by this strategy. As a result, in a case like Berkowitz they are the persons with the greatest psychological motivation to construe the facts in a manner that results in a condemnatory judgment of women who can be depicted as saying “no” while meaning “yes.” What’s the upshot of the influence of cultural cognition on the perception of consent? Well, for Big Ben, it means that Anita Bryant would likely be a better juror than Kobe Bryant. In fact, many criminal defense lawyers will tell you that older, more “traditional” women are their best jurors. For legal commentators, cultural cognition suggests the date rape debate is about something a bit different from what they have been assuming. One such position criticizes the traditional, common law definition of rape as reflecting a distinctively “male point of view.” It turns out, though, that whether “no” necessarily means “no” is not an issue that pits men against women; rather it’s one that pits men and women who subscribe to one cultural style against those who subscribe to another. Indeed, the persons with the greatest stake in preserving the law’s receptivity to possibility that the accuser was feigning lack of consent when she said “no” are certain women, whose cultural values make them resent other women whose behavior they regard as deviant and subversive. At the same time, this finding also weakens the claim of scholars who defend the common law. They argue that social conventions for expressing consent to sex are ambiguous, and that getting rid of the “force” requirement and the “reasonable mistake” defense would risk punishing innocently confused men. The study, however, suggests that young, sexually active men and women, particularly ones who share cultural styles, are unlikely to misunderstand each other; such persons form comparable impressions when they consider the facts in Berkowitz. Again, the individuals most likely to perceive that “no” means “yes” in such a case are older hierarchical women, who are motivated to perceive “token resistance” by a form of status anxiety. These women might well be surprised were the law to take the position that a defendant in that sort of case is guilty of rape. But the occasion for their distress wouldn’t be any miscommunication about their or their partners’ sexual intentions, much less one that puts them at risk of criminal punishment. What would disconcert these individuals about rape law reform would not be its effect on behavior but rather its social meaning. Because decisionmakers are so highly disposed to fit their view of the facts to their cultural worldviews, it’s not a surprise that the adoption of rape reform laws seems to have had little impact on the incidence of acquaintance rape. But precisely because the significance of “no” in a case like Berkowitz is such a conspicuous point of cultural contention, any position the law takes will inevitably be understood to be affirming one groups’ norms and denigrating those of another.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |