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Harvard Law Review Forum

The Perils of the Fight Against Cognitive Illiberalism

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.