When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

That is the question that lurks behind a fascinating new paper by Dan Kahan, David Hoffman, and Donald Braman. The paper responds to Scott v. Harris, 127 S. Ct. 1769 (2007), in which the Supreme Court held that summary judgment was properly granted to a police officer in a § 1983 lawsuit challenging the officer’s decision to ram his police car into the car of a fleeing motorist. One of the paper’s authors, Dan Kahan (pictured at left), is visiting the Law School today to present the paper at a faculty workshop. (Dan will also be delivering the Boden Lecture here late this afternoon.) The paper begins by taking issue with a particular, case-specific assertion by the majority in Scott, but then opens up some much deeper questions about the roles of judge and jury in a culturally diverse democracy.

The majority in Scott relied on a videotape of the fleeing motorist, which purported to show that he was driving in such a dangerous manner as to justify the use of deadly force to stop him. The majority found the videotape sufficiently compelling that, in its view, no reasonable juror could find in favor of the motorist on his claim that the police officer had acted unreasonably in violation of the Fourth Amendment–thus, warranting a grant of summary judgment. Kahan and his coauthors, however, showed the same videotape to a diverse sample of 1,350 Americans, and found evidence of some disagreement with the majority’s view of the case. Thus, had the case been permitted to go to a jury, there is a statistically sound basis for expecting that one or more of the jurors would have had a considerably less positive view of the officer’s conduct than did the members of the Supreme Court.

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On Zeigler: How He Teaches

Thirty years of law teaching entitles an individual to pause, reflect, and pass along some insights about the craft.  Or so it seems to me.  Professor Donald Zeigler of New York Law School has availed himself of the opportunity by giving American legal education a slim yet rich volume with the three-word title How I Teach (Tribeca Square Press 2008). 

In much smaller print on this paperback’s cover appear the words “Successful techniques for the law school classroom.”  These seven additional words, coupled with the big three, pose something of a paradox.  Together they can be construed to suggest that all or virtually all of law teaching (or perhaps all or virtually all of what Professor Zeigler considers his law teaching) unfolds within the walls of the law school classroom.  In Professor Zeigler’s defense, the seven words do lend themselves to an alternative construction, a construction that conveys the limits and boundaries of his scholarly project.  Quite simply, Zeigler is eager to share with professional colleagues lessons that, presumably, have enabled him to develop into an effective classroom instructor and, also presumably, have enabled his students to extract considerable value from his classroom teaching.  And share he does.  It thus seems fair to cut Zeigler some slack in connection with the ten words he has selected to characterize his project.  Enough said about the volume’s cover, title, and subtitle.

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“Nucular” and “Nuclear” and So-Called Standard English

As a legal writing professor, one part of my job is to help students who didn’t grow up speaking or writing “Standard English” continue adapting their writing to meet the expectations of employers and clients.  Of course, to get through college, many students have already made changes in the way they use English.  But some students come to law school with additional work to be done.  In fact, at least for me, the effort to consciously conform my English speaking and writing patterns to expectations different from those I grew up with never really ends.  

So, like the blogger in this post at frogs and ravens (which I reached via feministlawprof), whatever criticisms I might make of Sarah Palin, jabs at her speech patterns rub me the wrong way.  As frogs and ravens points out, “How you pronounce a word says nothing about your character, your intelligence, your values, or your education.  All it says is whether you are (a) one of the lucky people who grew up speaking ‘the right way’ as your native accent, (b) one of the people who did not, or (c) one of the people who did not and makes a conscious effort to abandon the speech patterns of their childhood to fit in with the expectations of others.”  And it seems somewhat ironic, and, well, dumb, that the prejudice against “regional and working-class accents” enables a candidate “to distance herself from her upper-middle-class lifestyle, her position of power, and her lofty ambitions” just by the way she pronounces words.

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