Malcolm Gladwell and Legal Scholarship

 Gordon Smith and Orin Kerr have interesting posts up about their respective writing processes. I’m struck by the parallels with the two types of creativity – conceptual and experimental – that Malcolm Gladwell (pictured to the left) discusses in his latest New Yorker piece (which in turn draws on the work of David Galenson).  As the distinction is explained on Galenson’s web site: “Experimental innovators work by trial and error, and arrive at their major contributions gradually, late in life. In contrast, conceptual innovators make sudden breakthroughs by formulating new ideas, usually at an early age.” The latter, one imagines, write law review articles before doing the research.  The former go through lots of research, and lots of drafts, before arriving at a final product.

I’ve found that I tend toward the experimental.  For my first article, I thought I had a good sense, when I started, of where it was headed.  It turned out okay, but in retrospect I think I was a little too much the captive of my opening idea. Over time I’ve become more comfortable with the notion that I will, at the outset, have almost no idea where an article is headed.  I pick a topic and ask myself, in effect, “what’s up with that?”  I have some preliminary thoughts, of course, but find that the immersion that comes through research reveals interesting angles that I hadn’t anticipated.  There’s a cumulative effect as well.  Having been at the same family of topics for six-plus years, I feel like I’ve acquired not only a greater base of knowledge, but also a better sense of how to go about immersing myself in the research process. (Cue the comments about the value of a Ph.D.)

If nothing else, Gladwell’s essay (and Galenson’s research) gives me reason to keep plugging away.  There may or (much more likely) may not be a major contribution lurking within.  The only way for a fellow like me to find out is to keep at it.

Cross posted at PrawfsBlawg.

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What Do Reasonable Jurors Get to Decide After Scott v. Harris?

This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.

On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.

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Imagining the Reasonable Jury

As has already been noted here, Dan Kahan dropped by the law school earlier this week and gave three fascinating presentations to the law school community. One, which Michael commented on earlier, was on his paper (co-authored with David Hoffman and Donald Braman) criticizing the Supreme Court’s decision in Scott v. Harris, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.”

In brief, Kahan and his co-authors argue that the Supreme Court went awry in Scott by refusing to credit the views of “an identifiable subcommunity” as being within the realm of those held by “reasonable jurors.” This refusal to credit such beliefs with reasonableness, they argue, is potentially destructive of the legitimacy of the justice system.

It’s a fascinating argument, backed by a novel empirical approach to assessing the views of “reasonable jurors” in a use of force case like Scott. But I’m left with a question about the theory, and a question about Scott: Today, I want to focus on the theory: How are judges to tell when the views of “an identifiable subcommunity” are at issue, making summary judgement less appropriate? Monday, I’ll focus on Scott: I’m not certain that the Scott holding is as Kahan et al. describe it, which way may mute their concern.

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