Monday, January 07, 2008

Cultural Cognition and Judges: the case of Scott v. Harris

Dan Kahan

Do judges rely on cultural cognition?

Cultural cognition refers to the tendency to conform one’s beliefs about putatively dangerous forms of behavior to one’s cultural evaluations of them. It’s less costly, psychologically speaking, to believe that behavior one views as noble is also socially beneficial, and behavior one views as base is socially harmful, than vice versa. Studies suggest that this phenomenon accounts for public disagreements over a host of issues, from gun control to climate change to vaccination of school-age girls for HPV.

If this dynamic influences judgments of ordinary citizens, why not judges? Indeed, at least one prominent jurist has suggested it does. “[O]ften in law it is very difficult,” Richard Posner writes, “to verify (or falsify) empirical claims by objective data.” In such cases, “judges perforce fall back on their emotions or intuitions. They practice ... ‘cultural cognition.’ ” The Role of the Judge in the Twenty-First Century, 86 B.U.L. Rev. 1049, 1064-65 (2006).

In a new paper, Don Braman, David Hoffman, and I present the results of study that furnishes powerful, if indirect, confirmation of the effect of cultural cognition on judges. The occasion for the study was the Supreme Court’s decision in Scott v. Harris, 127 S. Ct. 1769 (2007).

In Scott, the Court held a police officer did not violate the Fourth Amendment when he deliberately rammed his cruiser into the car of a motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The driver’s car flipped over and crashed, leaving him paralyzed from the neck down. The Court placed decisive weight on a videotape, filmed from inside the pursuing cruisers. “No reasonable juror” who viewed the tape, the eight-justice majority concluded, could fail to see that the risk to the public justified deadly force to stop the fleeing motorist.

But one Justice who viewed the tape, Justice Stevens, did fail to perceive that. Rather than attempt to rebut Justice Stevens’s conflicting interpretation with reasoned analysis, however, the Court took the unprecedented step of uploading the video to its website and inviting readers of its opinion to decide for themselves. “We are happy,” Justice Scalia wrote for the Court, “to allow the videotape to speak for itself.”

We decided to take the Court up on this unusual invitation. We arranged to show the video to a diverse national sample of some 1,350 people and to ask them about their view of the issues the Court identified as dispositive in the case.

Based on cultural cognition theory, we hypothesized that our test subjects would likely divide along cultural lines. Individuals who subscribe to a worldview that is relatively “hierarchical,” we predicted, would likely be strongly inclined to agree with the Court’s assessment of the risks posed by the fleeing driver, whose defiance of authority would provoke their resentment and fear. In contrast, subjects who subscribe to a more egalitarian worldview, we predicted, would be angrier at the police, as symbols of overreaching authority figures, who were indifferent to the danger their own use of force posed to the well-being of bystanders, not to mention the driver. As a result, they would form the judgment that the decision to chase the driver and to use deadly force to halt his flight were not risk-reducing on net.

That’s exactly what we found. Overall, a majority of our subjects agreed with the Court on the key facts in the case and on the outcome. But across persons of opposing cultural worldviews and related characteristics, there were sharp (and statistically significant) disagreements about these issues.

At oral argument Justice Breyer mocked the driver’s lawyer, who was arguing that his client’s behavior did not pose a lethal risk to the public, by quoting Chico Marx’s question, “Who are you going to believe—me or your own eyes?” Our study suggests that the real question posed by the case is whose eyes the law should believe when culturally diverse people form competing perceptions of risk.

But do these results also suggest that cultural cognition is working in judges? Yes, at least indirectly.

The proof consists in the Scott Court majority’s failure to recognize the cultural partiality of its own perceptions. The Court’s appeal to brute sense impressions to justify its decision reflects a simple incomprehension that people with particular cultural commitments would likely see something very different. Only decisionmakers unaware of the role that cultural commitments were playing in their own perceptions of the facts could actually make an oversight like that.

Such an oversight, we argue in the paper, is unfortunate. Because it didn’t perceive that what one sees reflects one’s cultural outlooks, the Court clearly got it wrong when it said that “no reasonable” juror could form a view of the facts different from its own. In addition, and much worse, by stigmatizing as “unreasonable” anyone who disagreed with their view of the facts, the majority needlessly injected overtones of cultural partisanship into the decision that detracted from its legitimacy.

But can such consequences be avoided? This is a difficult question, but we believe they can. As Judge Posner suggests, cultural cognition might be an influence that judges, like the rest of us, have no power to escape. But as Judge Posner’s own observations reveal, we can all, judges included, recognize that our reasoning is influenced by our cultural values. By exercising only a modest degree of humility about the partiality of their own judgments on controversial facts (a matter about which Cass Sunstein has just published an important article), judges, as well as legislators and ordinary citizens, can go a long way to negating the tendency of cultural cognition to generate needless conflict and distrust.


It seems to me that social utility is at least one factor to be considered in whether behavior is noble or base. IOW, if behavior is socially useful that is, in itself, positive; if it is socially harmful, that is, in itself, base.

Or put differently, what would be an example of behavior that is personally noble, but socially harmful? What is an example of behavior that is personally base but socially useful? (Torturing a terrorist for valuable intelligence, maybe?)

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Cultural cognition also plays a role in how films are made. The "dominant point of view" of the film (although not the only point of view) is often from the police's perspective, not the driver's (or criminal suspect's) perspective. Daniel Lassiter at Ohio University has a slew of studies showing that camera angle affects the assessment of voluntariness of the filmed version of a criminal suspect's confession. Alternate points of view (and interpretations other than the dominant one) can be seen (and made) but it takes work and a critical eye toward film, which many people don't seem to foster, especially toward documentary-like film. Film meaning can seem so transparant because it looks like the world unfolding around us, but it is not. It is a representation made by someone. Only Justice Stevens, in Scott v. Harris, seems to get that. For more on this see Filmmaking in the Precinct House and the Genre of Documentary Film, Columbia Journal of Law and the Arts (2005) or Criminal Performances in New Mexico Law Review (2007).

Or put differently, what would be an example of behavior that is personally noble, but socially harmful? What is an example of behavior that is personally base but socially useful? (Torturing a terrorist for valuable intelligence, maybe?)

I'm not sure I personally would defend such practices, but a great many have been approved in the past. For example, dueling was once considered personally noble, though it was eventually banned as socially harmful. The death penalty is often said to be socially useful, though I doubt anyone would argue that being the executioner is personally noble. All of these issues imply a value structure behind them.

If judges could recognize this phenomenon and the import of the "whose eyes" issue, we might avoid a repeat of the worst aspect of Scott--the granting of summary judgment based on the supposedly singular story told by the video.

But, more broadly, what does cultural cognition do to the entire summary judgment process? If diverse people (including judges) form diverse views of evidence, does that mean everything has must go to a jury?

Cultural cognition refers to the tendency to conform one’s beliefs about putatively dangerous forms of behavior to one’s cultural evaluations of them.

For the bonus round, differentiate beliefs from cultural evaluation.

I mean no offense, but this revelation seems like a basic discussion of ethnocentrism from my Intro to Anthropology lectures (indeed, I'll probably use it as an example someday).

Furthermore, I wonder about the sort of cultural arrangement that would be necessary for judges on the Supreme Court--a hierarchical institution if ever there was one--to favor an "egalitarian worldview."

But, more broadly, what does cultural cognition do to the entire summary judgment process? If diverse people (including judges) form diverse views of evidence, does that mean everything has must go to a jury?

Not everything. Suppose the driver in Scott v. Harris was heading right for a temporary grandstand full of people camping out for the best seats to watch the town parade the next day, and the police decided they had to "take him out" to ensure he didn't hit the grandstand.

It seems to me you get summary judgment on the "no reasonable juror" standard on that one.

Fundamentally, if you believe in the jury system, the jury has to make the call whenever reasonable people can disagree as to the reasonableness of conduct. But that still leaves room for summary judgment in the cases where there really isn't a reasonable argument that the defendant's conduct violated the standard of care.

Had the police officer received formal training prior to this incident regarding the technique he used? If so, was there a manual describing the technique and how and when it should be used or not used? Or did he use his "common sense" gained perhaps from watching movies and TV shows involving car chases? Haven't a lot of police departments stopped high speed chases because of the dangers involved, using communications with other communities to do the job by less dangerous means? Perhaps Justice Scalia watches the Fox Network's "Cops" program in his support of the officer's judgment.


Sigh, another shining light dimmed. But not unexpected, in my own profession (medicine) one can find similar patterns, although I cannot quote such studies – think end of life issues, women reproductive rights, stem cell research, etc…

My pappy used to say: Be proud of your ignorance, it indicates you are not dumb. And thus, a few simple questions:

1. The tape was evidence introduced in what appears to be a civil suite. Is the “unprecedented step to upload the video to its website” a function of evidence from a lower court trial being selectively appended, or a function that the evidence was a video, or both?

2. If the step was“unprecedented”, who decides to post the material, a unanimous 8 (in a 8 to 1 decision) or a simple majority of five Justices. If so, are the names of the approving and or disapproving justices listed?

3. Is it a common practice, or ‘unprecedented” for a Justice (re Scalia) to comment in the body of a post?

Professor Kahan’s post, given that the 5 Justices of an 8 Justice majority was socialized from birth by the Catholic Church, provides a reasonable explanation for what is beyond argument. The Court has become the instrument of a specific identifiable ideology. Nothing wrong with that, except that this “cultural majority’ are of the same religion, and includes no women.

The issue posed by my questions is simple: Has the Court begun to use its information systems to proselytize its ideology? Even a weak maybe damages this Court, and its Justices, and weakens any future decisions.

Full disclosure: I am graduate of a Catholic High School, University, and Medical School. Prof. Kahan just looked at one side of the coin…

"If diverse people (including judges) form diverse views of evidence, does that mean everything has must go to a jury?"

"Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, ...:

"Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,..."

I'd say that's a definate "yes". It's remarkable, though, the extent to which the non-jury components of the justice system find the jury dispensable, the clear mandates above not withstanding. In particular, it's amazing the extent to which that "all" in the sixth amendment is flatly ignored.

This is a great study, and hopefully raising awareness of cultural cognition will go a long way in mitigating its effects.

Also, thanks for the link to the Sunstein article! So often, even when I disagree with Prof. Sunstein's answers, I feel he is one of the few people asking the right questions.

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