The Perils of the Fight Against Cognitive Illiberalism

Christopher Slobogin

Responding to Dan M. Kahan, David A. Hoffman, and Donald Braman, Whose Eyes are you Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837 (2009)

Whose Eyes Are You Going to Believe? takes the Supreme Court to task for holding that any “reasonable” juror who watched the video of the car chase in Scott v. Harris would have to conclude that Harris created a culpably grave risk to other drivers on the road. Professor Kahan and his coauthors conjecture that the Court’s willingness to reach this conclusion was due to what they call “cognitive illiberalism,” an inability to recognize how cultural background influences one’s own (as opposed to others’) decisionmaking. To the authors, cognitive illiberalism is perilous not only because it might produce erroneous results, but also because, as they put it, it “needlessly magnifies cultural conflict over and discontent with the law.” One of the main assertions of the article is that judges should worry about lay views. This response comments on that idea from a couple of angles. First, it questions the premise of the article, which is that opinions like Scott cause more than a ripple among the populace. Second, it suggests that, if the authors’ premise is correct, then judicial review, at least of Fourth Amendment issues, would need to be severely circumscribed.

122 Harv. L. Rev. F. 1 (2009) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

FORUM ARCHIVE

RSS FEED

Harvard Law Review
Gannett House
1511 Massachusetts Ave
Cambridge, MA 02138

Editorial Office:
617-495-7889
617-496-5053 (fax)

Business Office:
617-495-4650
617-495-2748 (fax)