About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

122 Harv. L. Rev. F. 1 (2009-2011)

handle is hein.journals/forharoc122 and id is 1 raw text is: THE PERILS OF THE FIGHT AGAINST COGNITIVE ILLIBERALISM Christopher Slobogin* Responding to Dan M. Kahan, David A. Hoffman, and Donald Bra- man, Whose Eyes Are You Going To Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARv. L. REV. 837 (2009). Scott v. Harris, involving the tragic consequences of a police- initiated car chase, would not be on anyone's list of important Su- preme Court criminal procedure decisions. The case did not announce new doctrine, but rather simply applied the law of excessive force in upholding summary judgment against Victor Harris, the plaintiff who was rendered quadriplegic by the chase. The decision was rendered even more trivial by the Court's explanation for its holding, an expla- nation that avoided providing any institutional reasons for taking a lax approach to high-speed chases,2 but rather focused solely on the facts, thus depriving the case of any broad precedential value. In Whose Eyes Are You Going To Believe?, however, Professor Kahan and his co- authors strive to make Scott of much greater interest. They advance the provocative argument that the Court's seemingly minimalist treatment of the case, far from assuring its blandness, could not only occasion disillusionment with the Court and the law generally, but also exacerbate cultural tensions.3 The principal target of Whose Eyes Are You Going To Believe? is the Supreme Court's conclusion - a conclusion contrary to that of the court below - that any reasonable juror who watched the video of the car chase would have to conclude that Officer Scott did not create a culpably grave risk to other drivers on the road. Using an innova- tive type of composite regression technique, the authors' analysis of their survey of approximately 1350 people indicated that a significant minority of the survey subjects disagreed with this assessment, espe- cially if they were African-American, liberal, Democrat, well-educated, * Milton Underwood Professor of Law, Vanderbilt University Law School. A version of this paper was presented at the 2008 Harvard Law School Criminal Justice Roundtable, which in- cluded Professor Kahan as a participant, as well as Professors Rachel Barkow, Paul Butler, Jeff Fagan, David Garland, Brandon Garrett, Bernard Harcourt, Maximo Langer, Tracey Meares, Daniel Meltzer, Erin Murphy, Dan Richman, Stephen Schulhofer, David Sklansky, Carol Steiker, Jordan Steiker, and Marie-Eve Sylvestre. 1 127 S. Ct. 1769 (2007). 2 See Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going To Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 887-94 (2009) (discussing policy rationales Court could have advanced for its decision). 3 See id. at 843. I

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most