Author: Donald Braman


Horse Racing the Democratic Endgame — Spoiler Alert?

First, I should disclose that I’m an Obama supporter, and I have been from the outset. I’ve given his campaign money, I’ve made calls, I hit the streets, I even worked the legal boiler room in Austin last week for his campaign in Texas (I also punched in some phone lines, bought donuts, and did about a dozen other things — and if you’ve ever worked a campaign, you’ll know how that goes). My hope is that he is our next president, and if he wins in Pennsylvania, I think there’s a fair chance he will be.

But I’m also a realist and, after Texas and Ohio, I’m starting to look around for alternative endings. Here’s one that seems, at least for the moment, not as horrific as the Democratic implosion many are predicting.

Let’s say Clinton, by orchestrating a rerun in Florida and Michigan (she’ll pay for it herself if she has to), comes out ahead in delegates and popular votes. Were that the case, she’d be the presumptive nominee. Who should she offer the VP slot to? Obama, of course; she’d be a fool not to. If she doesn’t, she’ll alienate many of his supporters and, in all likelihood, lose the general election. Of course she’ll have to put up with him stealing her thunder whenever they’re together, but that’s a small price for her to pay to sit in the Oval Office. She needs Obama to win.

And he’ll accept; he’d be a fool not to. He’d be the presumptive nominee in eight years with all the “executive experience” anyone could want from him — and he’ll still be relatively young for a nominee. I think he also wouldn’t have much of a choice. If he were to refuse, he’d be seen as an election spoiler.

Of course, he may well be the nominee — in which case he would offer her the VP slot. At her age, though, I’m not sure she’d be willing to take one for the team. And I don’t think she’d worry overly about spoiling the election for the Democrats.


Female Genital [fill in the blank]

The debate over Female Genital Mutilation/Cutting (an earlier round of which was blogged about here by Sarah Waldeck), continues at Teirneylab. I won’t recount all the arguments and evidence on both sides. Instead, I want to ask a legal question: How should evidence of FGM/C weigh in a custody hearing? Should evidence that a immigrant mother has had her daughter ritually cut support an inference of poor parenting? What if the mother hasn’t yet cut the child, but plans to in the future (perhaps by returning to her country of origin)? Is the inference obvious, or does it depend on context? Were an adverse party to raise the issue against your client in a custody case, what would you do?

As you think about your answer, also ponder the role that cultural cognition might play in resolving this kind of legal question. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. I, for example, find myself interrogating studies showing that women who undergo FGM/C are no less likely to have fulfilling sexual lives and pleasurable sexual experiences far more intensely and critically than I do those that suggest the rituals produce long-lasting trauma. I am not in a position to evaluate the primary evidence myself and, when I reflect on my own reactions, I’m not a neutral evaluator of the secondary evidence. Can we expect a judge or social worker to be immune to the same cognitive biases?

Here’s another question to close the loop: Apparently I think that FGM/C is harmful, at least in part, because I think it is base — but I also think it is base because I think it is harmful! And if I (admittedly) can’t trust my intuitive assessment that it is really harmful, can I trust my normative evaluation of the practice as wrong?

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The New Scholars of Judicial Partisanship

These days it seems like everyone is a legal realist. Or are they?

For example, I can’t decide whether Miles and Sunstein are or aren’t. They’ve undoubtedly made major contributions to the empirical study of caselaw. Sunstein, Miles, and others have extended, for example, the path-breaking work of Ricky Revesz on partisanship and judging in the area of environmental law to a host of other areas, and have done some fascinating work on panel effects and deliberation. They do great work.

I can’t help but puzzle a little, though, over the title to their new piece, The New Legal Realism. Now legal realists provide several rich accounts of how legal actors made decisions. Because the law is often indeterminate, legal realists argue, judges have to draw (and often heavily) on values and social norms to resolve questions of law and fact. Indeed, legal realists can be credited as the first sophisticated theorists of how values, norms and cognition interact in judicial decision-making. But Miles and Sunstein’s account of The New Legal Realism seems, at least to my eye, closer to what many critics of legal realism mistakenly take it to be: an accusation that judging is just partisanship dressed up in legal rhetoric and opportunistic precedent selection.

So what would an accurate account of legal realism look like?

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Grimmelmann — Lawyers, Blogs, and Money

James Grimmelmann has an interesting post about the problems that (might) arise when legal scholars mix blogging with money. Curious what all of you think of this point: “Perhaps no posts have suffered from sponsorship, but it’s in the nature of such conflicts of interest that I might never see the damage. Indeed, the damage can take place without anyone at all being consciously aware of it.” I’ve had informal conversations with legal bloggers (not of this blog) where generating money for the time they put in was a significant (which is not to say the primary) issue that they paid attention to. Again, though, again, it wasn’t clear whether this was, on net, a bad thing. Anyway, this whole post is just an excuse to get you to click this link — just be sure to let them know I sent you!

UPDATE: Jon Garfunkel rightly calls my attention to the fact that Frank Pasquale responded to James over at the laboratorium.


Steven Pinker channels Mary Douglas

Steven Pinker has an interesting article in the New York Times that lines up nicely with recent research into cultural cognition and develops (unwittingly) the ground-breaking work of Mary Douglas. Leaving aside the (minor and entirely unnecessary) bits about Chomsky, evolution, and biology, the piece comes down to a broad-ranging discussion of the ways that people tend to be sensitive to clusters of moral concerns.  He talks in particular about widespread values like harm-avoidance, fairness, community, authority and purity.  Part of what is nice about the Pinker discussion is his acknowledgment that these values are almost always contingent on culture — it’s culture that determines what is perceived as harmful, what is fair, who one’s community is, when (and what forms of) authority should be respected, and what makes something pure, what contaminated. 

This is precisely the point that anthropologists have long been making and, were Pinker an anthropologist his not mentioning Douglas would be unforgivable. But Pinker makes and effort and does draw on a number of recent anthropological studies to make his points. He also notes that the content of these values not only vary across communities, but change over time (smoking becomes impure, homophobia becomes unfair, and so on). If this is the sort of thing that floats your boat, then I’ll point you to a study by Dan Kahan, James Grimmelmann, and your truly that goes one step further, suggesting how these shifts occur and why they occur in recognizable patterns.  And if you want to read from one of the giants on whose shoulders Pinker and the rest of us value-scholars stand, have a look at two Mary Douglas classics: Purity and Danger and (with political scientist Aaron Wildavsky) Risk and Culture. We miss you Mary!


Whose Eyes in Scott v. Harris? KHB Reply

Over on Volokh Conspiracy, Orin Kerr has posted a thoughtful and fair-minded response to our study of public interpretations of the Scott v. Harris video (previously blogged on Concurring Opinions here and here). Orin generously credits our empirical study with succeeding in making the “broad point [that we] want to make,” and that he says he himself “completely” accepts: that “videos can be construed in different ways,” that “it’s too easy for [people] to look at a video and see what [they] want to see,” and that as a result “[w]e”—presumably, including judges—“need to step outside of our preconceptions and be aware of how other people might construe the facts” revealed in such a medium. Nevertheless, Orin suggests that our study suffers from a “significant methodological error” because the study “ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used.”

To keep the debate going, we’ll make three points to make in response:

1. We did ask the subjects to address, in a plain and straightforward way, the key factual predicate of the Court’s decision.

Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris’s driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 (“the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury”); id. at 1778 (“it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians …,  to other civilian motorists, and the other officers”); id. at 1779 (“The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise”). In contrast, Justice Stevens, in dissent, repeatedly stated that he didn’t perceive such a risk. See id. at 1783 (“passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction”); id. (“This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’ ”). 

As Orin notes, we asked our subjects to pick sides in this dispute by indicating their level of agreement or disagreement with two propositions: that “Harris drove in a manner thatput members of the public at great risk of death,” and that he “drove in a manner thatput the police at great risk of death.” Orin says he objects to “great risk,” even though it’s among the hodge podge of different phrases Scalia himself used. We chose that phrase because it struck us as a characterization of the necessary degree of heightened risk that would be familiar to, and likely understood in uniform ways by, ordinary people. One would have to impute to our subjects fairly strange motivations to twist normal language—to a degree that would make even a sophistic lawyer blush—to worry that those who shared Scalia’s view of the tape would think they should nevertheless report disagreement with him.

Indeed, as Orin observes, the vast majority of subjects, far from being steered away from Scalia’s position by this question wording, did report agreement with him on this point. Contrary to how Orin summarizes our position, then, we don’t mean to criticize the Court for “privileging a conservative white male view of the case.” Rather we take up the more subtle normative issue of whether, in a summary judgment setting, courts should ever send a case to a jury in order to assure that the majority considers the factual perceptions of an admitted minority, whose members nevertheless share a common set of identifying characteristics, experiences, and values.

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A Call for a Cease Fire in the Gun Debate

We’ve all been flooded with information about the horrible shootings at Virginia Tech. Perhaps you’ve heard from friends or politically minded bloggers about what this means about guns and gun control. As part of a team of researchers that studies the way people process information about firearms and their regulation, I can tell you that this is a natural way to react to tragedy.

But if you look at public opinion following each major school shooting over the last twenty years, can you guess which way the shootings have driven public opinion on gun control? Neither way. That’s right, each school shooting has had exactly no effect on public opinion regarding gun control.

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Neuroscience and Law

Jeffery Rosen has a fascinating article in this week’s New York Times Magazine. While the article is balanced and careful, the “buy me, read me” headlines and several of the researchers that Rosen quotes suggest that a law-and-neuroscience revolution is brewing. I want to add my voice to the skeptics that Rosen quotes, though with a different perspective. To my mind, recent findings in the field of neuroscience will change law only at the margins; and its main contribution will be to confirm the central tenets of legal realism, and will thus have only minor effects on most legal concerns.

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Global Warming, Nukes, and the Cultural Police

There are plenty of good reasons for those who believe they are shepherds of God’s creation to care about global warming; and there are plenty of good reasons for environmentalists to prefer nuclear power over fossil fuels, given the relative ecological impact. So why are prominent members of the religious right complaining about the growing environmentalism among evangelicals? And why are some environmentalists inflamed by the warming of greens to nuclear power?

One common complaint by the disgruntled is that their wayward brethren are simply mistaken about the facts. Plenty of those on the right complain that global warming hasn’t been conclusively demonstrated; or they argue that even if it is occurring, that it isn’t necessarily a bad thing. And plenty of environmentalists argue that nuclear power hasn’t yet been proven safe. This kind of hyper-skepticism, though, doesn’t exactly pervade the reasoning of either group on other issues. Indeed, we are all selectively skeptical in this way about certain things. So why some things and not others?

Here, I think, the theory of cultural cognition can help.

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