Sheridan: Con-Law

SEE, I TOLD YOU THEY WUZ NUTS!

From today's "ASK MICK LASALLE" column in the "Movies" department of Datebook, the Pink Sheet magazine section of the San Francisco Chronicle comes this gem which ties in perfectly with today's earlier entry on this site:

Dear Mick LaSalle: We don't understand why you (and other critics) engender such hostility among certain readers when you express a thought, fact or opinion that differs from theirs. If we disagree with some aspect of a review, we don't get angry, so we don't get why people seem to take it as a personal affront.

Timothy Cavanaugh and Eric Vidal,

San Francisco

Dear Timothy Cavanaugh and Eric Vidal: People have always defined themselves according to preferences: Beatles or Stones, Democrat or Republican, Fitzgerald or Hemingway. And then, having defined themselves, they tend to divide and discard. Instead of having to care about all humanity, you care about your race, or your people, or your city or your family - it varies according to circumstances. On Mars, you might feel solidarity with any earthling. But in San Francisco, you might feel more kinship with people in your district and, if you're a little unbalanced, really believe that you're better than people who live in other districts. Those are the two impulses at work - to self-define and to discard. Now how this functions in terms of hate mail is that there are people who have made their preferences the essential component of their self-definition. So if you tell them that what they like is lousy - or you tell them that what they believe to be lousy is good - they take this as a direct threat to their selfhood and reality. Moreover, they immediately extrapolate from your opinion to imagine a world in which everyone feels like you, and in which they are all alone. Sometimes, they even imagine a world in which everyone disagrees with them about everything, which is why I often get mail that says something like, "And I bet you love George Bush, too!" You become, in that moment, a metaphor for the imaginary forces arrayed against them, and so they lash out as if they've been personally attacked.

That's the long answer. The short answer is that people are nuts.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/13/PKI31APBIR.DTL#ixzz0ZbV0Y9Qi

I'M RIGHT; YOU MUST BE NUTS SYNDROME

Often called preconceptions, our view of matters depends so much not only on where we stand but where we came from.  Hence the admonition from the group the white man drove under the tarpaulin of alleged civilization, the Native American, not to judge a man before walking in his moccasins, preferably some long distance.

At any rate, is there anyone who disputes that we are in thrall to our preconceptions?  Enslaved by them?

Some of us fight with them all the time.  Others I'm not so sure about.

Today's Sunday Times Magazine discusses the point in criticizing a recent Supreme Court ruling.

All I can say is that I wish I was as sure of anything as Justice Scalia seems to be about everything.  He'd have made a great pontiff.

On the subject of pop psychology masquerading as law, in California we have jury instructions that purport to be psychological truths, such as that fleeing from a crime scene, when done by the accused, may be taken as evidence of consciousness of guilt.  It may.  But it also may reflect a well-considered fear of our system of criminal injustice. 

If you've grown up learning from your parents that the kind, white, police officer directing traffic next to your grade school will help you so long as you approach him slowly with your hands in view and address him as "Officer," and say you need help, and you are similarly white, then you're probably okay.

But if you're a black kid and your parents have told you about some life experiences of their own or a friend, a relative, or another black person, you might have a different set of references.  I wouldn't advise approaching, or sticking around, when trouble breaks out and you're not in your own home but in some neighborhood where it would be inconvenient to answer questions about why you were there, whether you've committed some impropriety or not.  If you split, are you showing consciousness of guilt of the crime for which you're on trial?  Or just questionable judgment for being a black out after dark in the wrong neighborhood? 

We could argue about such things all day long.  But when it comes to the trial, the judge tells the jury that flight may indicate consciousness of guilt, so please feel free to come to a verdict that so indicates and thus uphold the law.

Who was the psychologist who put this, and other psychological doctrines into the law?

While I was prosecuting rape cases several decades ago, there was a jury called Lord Hale's Instruction in which the court instructed the jury that rape allegations were easy for a woman to make and difficult in the extreme for the accused to defend against no matter how innocent he was.

That seemed to be the voice of experience, to me, but the women objected to it and this particular distillation of experience was tossed out by the California Supreme Court in around 1975.  The instruction on consciousness of guilt wasn't challenged and still exists.  The women had a powerful lobby and the spirit of the times behind them, which the 'consciousness of guilt' community didn't enjoy.

Perhaps the psychology that makes its way into legal doctrine is the product of what the majority of the community appears to believe, its preconceptions, that is.

Hail to our preconceptions and remember, slavery isn't bad, the slaves enjoy the benevolent protection of their master.  Disregard the overseer with the whip, however.  That was one of America's greatest preconceptions some time ago.  It took a great war, 600,000 Americans killed, to begin to eliminate that particular popular psychological preconception.  Four Ps, not bad.

The law professors argued that the justices in the majority were in the grip of a common psychological fallacy:

-that other people's perceptions might be shaped by socioeconomic position or political commitment, but they themselves perceived the objective truth.

Once again, The Times Magazine looks back on the past year from our favored perch: ideas. Like a magpie building its nest, we have hunted eclectically, though not without discrimination, for noteworthy notions of 2009 — the twigs and sticks and shiny paper scraps of human ingenuity, which, when collected and woven together, form a sort of cognitive shelter, in which the curious mind can incubate, hatch and feather. Unlike birds, we can also alphabetize. And so we hereby present, from A to Z, the most clever, important, silly and just plain weird innovations we carried back from all corners of the thinking world. To offer a nonalphabetical option for navigating the entries, this year we have attached tags to each item indicating subject matter. We hope you enjoy.

Cognitive Illiberalism

  Could the Supreme Court be undermining its legitimacy through its ignorance of some basic tenets of social psychology? Three law professors — Dan M. Kahan of Yale, David A. Hoffman of Temple and Donald Braman of George Washington — made that case in an article published in January in The Harvard Law Review. They charged the justices with the sin of  "cognitive illiberalism."

The article centered on a 2007 case, Scott v. Harris. Victor Harris was rendered quadriplegic after the police rammed his car, ending a nine-mile high-speed chase outside Atlanta. The issue was whether a suit by Harris against the officer who rammed him should be allowed to proceed to a jury trial. Lower courts were inclined to give Harris his day in court, because he had committed no crime except speeding before he fled, and while he topped 85 miles per hour during the chase, he was in theory in control of his car.

The Supreme Court disagreed and defended its position in an unprecedented way: by posting a video of the chase, taken by the police, on its Web site. "No reasonable jury," Antonin Scalia wrote for the majority, could watch the video without agreeing that the chase had to be stopped, even if it meant killing Harris. John Paul Stevens was the lone dissenter. Scalia wrote that Stevens's argument that Harris was not necessarily driving with life-threatening recklessness was so plainly false that anyone with eyes could see so. "We are happy to allow the videotape to speak for itself," Scalia wrote.

Did it? Kahan, Hoffman and Braman showed it to a diverse group of 1,350 Americans. Most of the test subjects saw things as the Supreme Court did: 75 percent concurred that deadly force was justified.

JUSTICE JOHN PAUL STEVENSILLUSTRATION BY CATH RILEY

The dissenters, however, were not randomly distributed: they reflected distinct subcategories of Americans, like liberal African-American women from cities in the Northeast.

The law professors argued that the justices in the majority were in the grip of a common psychological fallacy: that other people's perceptions might be shaped by socioeconomic position or political commitment, but they themselves perceived the objective truth.

The authors recommend that, before summarily deciding a case, "a judge engage in a sort of mental double-check." If he or she can picture a discrete group of Americans who would disagree that a decision is self-evident, go with a jury. To imply that minority groups are flatly unreasonable sends a "denigrating and exclusionary message" and will diminish support for the law. CHRISTOPHER SHEA