video analysis of the Supreme Court’s ruling in Scott v. Harris

In a path-breaking decision, the U.S. Supreme Court posted on its website a video along with text of its opinion in Scott v. Harris. Common sense is essentially multimodal. By including video along with its opinion, the Court provided a decision record that communicates its judgment more effectively than would just text.

The Court’s recording of its decisions has had significant effects. In the Court’s first copyright decision in 1834, the Court declared itself “unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” (Wheaton v. Peters, 33 U.S. 59, 668). The Court’s decisions thus became a legally secure component of the public domain. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court found, “this photograph [“Oscar Wilde, No. 18”] to be an original work of art, the product of plaintiff’s intellectual invention of which plaintiff is the author, and of a class of inventions for which the constitution intended that congress should secure to him the exclusive right to use, publish, and sell.” The Court did not however, include a reproduction of this photograph in its decision. It thus did not place in the public domain a work derived from a photograph of significant public importance. Not doing so, among other effects, lessened public understanding of its authoritative judgment

Verbal statements, whether in judicial opinions or elsewhere, are in some circumstances a poor substitute for video. Courts have long recognized the distinctive value of non-verbal evidence through their practice of admitting into evidence objects in addition to personal testimony and documents. A major issue in Scott v. Harris was the danger to the public from a driver fleeing from police cars signaling to the driver to pull over. Video from the police officers’ cars communicates extent and nature of the danger in a way that cannot be reduced to a collection of propositional statements of fact. The video also specifies an authoritative judgment with respect to the extent of danger much more clearly, especially to the general public, than does just a text.

The justices apparently did not consciously edit video in the Scott v. Harris case record in making their opinions. The case record included four color videos automatically recorded from police cars when they activated their sirens. The justices’ opinions included two very different descriptions of these videos. The decision record for the Court in this case includes, however, just one black-and-white video. That video (the “opinion video”) appears to be the video from one police car appended to the video from another.

Selecting relevant video is an important aspect of reasoned argument in Scott v. Harris. In the opinion video, a total of 3.9 minutes of video (24% of the total run time of the opinion video) showed the crash of Harris’ vehicle and the subsequent effects and actions (image of the overturned vehicle, the clouds of smoke rising from it, the police officers rushing toward the vehicle and desperately trying to open the car door to get Harris out of danger, etc.; for better understanding, watch the relevant segments of the video). Harris, who was only 19 years old, suffered permanent paralysis of his arms and legs from the crash. Irrespective of the legal issues associated with the crash, compassion is a natural and appropriate human reaction to Harris’ suffering. Nonetheless, this specific crash and its terrible human effect is not relevant to judging the reasonableness of the prior police decision to terminate the chase in a way that created a risk of serious injury or death for the fleeing driver. Including the video segment of the crash and its aftermath fosters well-recognized biases, e.g. hindsight bias, outcome bias, affective bias. Video for judging the reasonableness of the police action should excise the video segment showing the crash and its aftermath.

Camera viewpoint is an important, case-relevant aspect of video in Scott. The camera viewpoint of the video approximates that of the eyes of a police officer in a chasing police car. This video, as a resource for immersive, imaginative experience, is thus oriented toward persons imaginatively assuming the position of a police officer. Presenting the video in a way that helps persons imaginatively assume the position of a police officer is the best use of the video. Ensuring that viewers are conscious of that particular video viewpoint helps viewers to judge critically the effects of their viewing experience.

Diegetic time is another important, case-relevant aspect of the video. The video includes the period from when the police officers began to seek to stop the driver to when a police officer terminated the resulting chase. The dangerousness of the chase depends on specific circumstances occurring over time. These circumstances include the fleeing driver’s and the police officers’ physiological states. Since the human hormonal system has slower-acting but more general and longer-enduring effects than the human nervous system, events that trigger hormonal reactions associated with a situation of danger can shape subsequent actions and perceptions of time and danger. Hence judgments of public danger involve complicated temporal issues.

Watching and editing video can promote and communicate reasoned judgment of public danger. An important issue is the time span in which a judgment of dangerousness is reasonably made and revised. Whether unusual events are discounted in such a judgment, or weighted extra heavily, also is an important issue. Watching and editing video as if it were a transparently objective record of events (“naive realism”) obscures how video really works and impedes reasoned understanding of video’s truth value.[1]

Included below are two videos created from video in the Scott case record. The first video includes segments of video from the beginning of the chase, and a segment of video up to the end of the chase. The second video highlights relatively dangerous events that occurred during the chase. Both videos are designed for the viewer to assume imaginatively the position of a police officer. Both videos use selective cuts of the action and connect the video segments with half-second cross dissolves to preserves sense of immersion. Both videos preserve real-world temporal sequence, except for one shift in viewpoint that is visually obvious. The second video stops action at two points to suggest a circumstance that would have been particularly salient in a model of accumulating indications of danger. These videos are not designed to be deceptive or to be propaganda. They are meant to foster rational argument about the danger to the public of allowing the chase to continue.

Testing the effects of a video without carefully analyzing the form of the video in relation to the test isn’t reasonable. For example, a recent scholarly text described an “empirical test” of the Court’s conclusions in Scott. Or perhaps an empirical test of “who sees what in the Scott tape,” or of how a representative sample of jurors “would decide a real-life lawsuit,” or of whether the police or Harris were more at fault “for the risk posed to the public by the chase.” Perhaps the design of this surely quite expensive study was intended to determine “whether the Scott tape admits of competing interpretations” (a question that the justices opinions in Scott v. Harris would seem to have already decisively answered).[2] The study’s scholarly text of course does not speak for itself. The most charitable interpretation I can formulate of what’s written in the text is that the scholars studied naive realism in video.

The study presented to subjects a poorly reasoned, edited version of the Scott video. The edited video included at its end nine seconds of video of the crash and its aftermath. Why nine seconds of the crash rather than the available 231 seconds of video of the crash, or no video of the crash? No reason is given, nor is one readily identified. After a stimulus procedure that positioned a subject as a juror, the subject was presented with the edited Scott video that begins in media res with the camera viewpoint of a police officer. That’s an imaginative inconsistency.

The study’s edited video also has a broken imaginative stream and suppresses a key affective segment for no good reason. At 4 minutes, 52 seconds into video, it has a jump cut to the displayed text “a second police car takes the lead.” This silent, fixed text holds for two seconds, then there’s four frames of this text overlaid on four silenced frames of chase video, and then a jump cut eliminating the text and bringing in chase sound. A short but non-obvious overlap of real-world time follows the cut. The text interruption literally suggests a naively realistic recording of the chase. The interruption, however, breaks the temporal and emotional continuity that supports immersive imagination. The edited video does not include the emotionally affective video segment of the fleeing driving heading directly towards the camera and the subsequent recorded collision. No reason is given for excluding that video segment. Perhaps concern for maintaining the naive realism of following the fleeing driver is the reason. Editing to preserve naive realism is not a good reason for excising this video segment.

In light of this study, the Court’s pointing to common sense from video appears particularly important. Experimental studies of human behavioral economics have uncovered sharp deviations from standard models of rational behavior. Moreover, game-theoretic models and empirical results have shown that human behavior is highly sensitive to details of information, task framing, and circumstances. Most persons have neither time, training, or interest to evaluate meaningfully these and other issues. Careful empirical work can generate useful knowledge. But empirical work can also easily serve as a veil for ideology and have deliberative force primarily through the positional authority of its authors.

Watching video and editing video, in contrast, have some significant advantages. Many persons today have extensive experience watching video. The number of persons with experience in editing video is also growing rapidly. Video can communicate broadly judgments that are difficult to verbalize. Editing video can allow persons to engage in argument and counterargument concerning such judgments. Some forms of reason require extensive resources and training and are entrenched in social hierarchies of prestige and attention.[3] Watching and editing video allows for reason and argument more equally accessible to the public.

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Update:  On Feb. 11, 2008, I sent an email to Profs. Kahan, Hoffman, and Braman alerting them to what I perceived to be serious weaknesses in their article.  None of them responded. The article was subsequently published, with the problems described above, in the January 2009 issue of the Harvard Law Review. See 122 Harv. L. Rev. 837 (2009).

Read more:

Notes:

[1] Silbey (2004) provides a useful, if rather diffuse, discussion of case law concerning the use and admissibility of film as evidence. It also discusses important aspects of film and appreciates the work of film scholars and literary critics. Particularly given communication industry developments, it’s worth noting that learning by doing is a common and effective way for better understanding how audiovisual media work.

[2] See Kahan, Hoffman, and Braman (2008) pp. 4, 12, 17-20.

[3] Id. p. 2 states that in the oral argument of Scott v. Harris at the Supreme Court, the justices “were making clear that their inclinations rested on a foundation that simply does not admit of counterargument: brute sense impressions.” Similarly, id. p 63 states, “To our knowledge, Scott v. Harris is the only case in which the Supreme Court has invoked brute sense impressions to justify its decision.” Sense impressions are no less brutish than any other aspect of human functioning. Moreover, sense impressions do admit possibilities for reason and learning. Common human sense naturally integrates different levels of sensory processing.

On the video: The Court posted the opinion video as a large (93 megabyte) RealMedia format download in black-and-white at 720×480 resolution. The color video used in the video above is from the Kahan, Hoffman, and Braman (2008) study video posted on Youtube (320×240 resolution). I downloaded this video, converted it to AVI format, edited it and added a relevant segment from the Court’s opinion video (converted to AVI format), and then converted the resulting video back to Flash video format (320×240 resolution) for posting on YouTube. Video format conversions typically generate some loss of video quality. If I have been able to work directly with the case record video, the above videos could have been produced in color at 720×480 resolution with only one format conversion for online streaming. Such video would have provided a more immersive, more affective viewing experience.

To make it easier for persons to watch and edit the Scott v. Harris video, I uploaded the opinion video to the Internet Archive, as well as the above two videos (opinion video, judgment video 1, judgment video 2). From there, these videos can be streamed, downloaded, and edited in convenient formats. Securing and uploading the case record video to the Internet Archive would be a valuable additional contribution to public discussion.

References:

Kahan, Dan M., Hoffman, David A. and Braman, Donald (2008), “Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris” (January 6, 2008). Available at SSRN: http://ssrn.com/abstract=1081227.

Silbey, Jessica M. (2004), “Judges as Film Critics: New Approaches to Filmic Evidence,” University of Michigan Journal of Law Reform, Vol. 37, p. 493. Available at SSRN: http://ssrn.com/abstract=556981.

action inventory for social networks

Social networks are having difficulty generating advertising revenue (more discussion). Search is valuable for advertising because ads can help users get what they are seeking in their search. On social networking sites, users primarily engage in presence-oriented communication. If ads in those circumstances are even noticed, they are mainly an undesired distraction.

Social networks need to encourage their users to generate ad-relevant circumstances. Recommendations from friends is a major influence on purchasing behavior. The challenge is to organize “recommendations from friends” within social networks so as to add value to those recommendations and not undermine the non-instrumental quality of friendship. Doing this may require social networks to integrate into more field-specific sharing of information.

Consider a dining record service. Users would be provided with tools to build a database of what, where, and when they ate out in a restaurant. Users are likely to find this much easier than writing a restaurant review. Moreover, users are more likely to recognize the value to themselves of creating a record of their dining activities. It would be like the highly successfully LibraryThing, but instead of what you have in your library, this service would be about what you’ve put in your stomach.

A social network with a large number of users would a valuable asset for building a dining record service. Many web entrepreneurs could easily create a dining record service. But database scale (e.g. for identifying local patterns of taste) would be a key competitive advantage. Social networks could help build scale for a dining record service because dining together is such a socially significant experience. The total number of meals eaten together is probably one of the best indices of real friendship. Not inviting someone to dinner, and then plotting to make sure that they know they weren’t invited, or that don’t learn that they weren’t invited, is ubiquitous social drama. Social networks have the sort of tools for enabling, sharing, and managing that social drama.

Dining record pages would be valuable action inventory for advertising. A user creating or reviewing records about where she or he has eaten would probably value advertisements about other places to eat. She or he might then also value diet ads. And exercise ads! The more you exercise, the more times you can go to that favorite restaurant of yours.

To be successful, social networks may need a more integrated and specialized information organization than widget-based applications can deliver.

transforming Thomas Jefferson’s library into the Library of Congress

Hard-working volunteers have recently entered Thomas Jefferson’s personal library into LibraryThing. The U.S. Congress purchased Jefferson’s library in 1815 to replace to the library Congress lost when the British Army burned the Capitol in 1814.[1] Thus Jefferson’s library on LibraryThing documents the library that formed Congress’s new library in 1815.

Although Jefferson was at the forefront of intellectual and political life of his time, his library contained rather old books. In 1815, 90% of his library books were printed more than a decade earlier. Half of his library books were printed more than 35 years earlier, that is, prior to 1779. In terms of Jefferson’s life (he was 72 years old in 1815), half the books in his library were printed before he reached 36 years of age. The formation of the U.S., the French Revolution, the rapid growth in book production, and Jefferson’s two terms as president did not put a large share of books into his library.[2]

Jefferson’s books were old in relation to movements in the book trade. In the U.S. at the beginning of the nineteenth century, book sellers kept a print edition for sale for perhaps a decade.[3] In both Britain and the U.S., book production, particularly that of fiction, grew strongly relative to macroeconomic trends from about 1780. In contrast, the number of books per publication year in Jefferson’s library trends downward from the mid 1780s.

The publication dates of books in Jefferson’s library indicate that as he grew older, he acquired a larger share of books addressing current affairs and applied technology. The table below gives the median publication dates of Jefferson’s books by book categories. Apart from newspapers, agriculture formed the most current category. That’s consistent with Jefferson’s interest in fostering an agricultural nation of yeoman farmers. The most dated category consisted of ecclesiastical law and history. Human efforts to build a city of God did not interest Jefferson. His library also show relatively little interest in new developments in poetry and fine arts (Romanticism) and in fiction (novels). Jefferson, in short, was a founding policy wonk.

Categories of Books
in Thomas Jefferson’s Library, 1815
Catogory of Books # Titles Median Pub. Year
Newspapers 47 1797
Agriculture 133 1795
Medicine 141 1791
Politics 1194 1790
Technical Arts 131 1788
Natural Philosophy 189 1786
Mathematics 123 1784
Astronomy 36 1770
Geography 335 1768
Polygraphical 44 1768
Tales and Fables 73 1766
Religion 260 1764
Ethics and Morals 211 1762
Law 654 1762
History 550 1761
Language 261 1760
Fine Arts 88 1757
Poetry 274 1756
Ecclesiastical 44 1700

Compared to when it purchased books for its library in 1800, Congress paid a higher price for older books when it purchased Jefferson’s library. In 1800, Congress paid $2.97 per book for 740 books that it purchased from a London bookseller. This price includes the cost of packaging and shipping the books from London. The bookseller wrote:

we earnestly hope the books will arrive perfectly safe, great care having been taken in packing them. We judged it best to send trunks rather than boxes, which after their arrival would have been of little or no value. Several of the books sent were only to be procured second-handed, and some of them, from their extreme scarcity, at very advanced prices. We have in all cases sent the best copies we could obtain and charged the lowest prices possible.[4]

In 1815, Congress paid Jefferson $3.69 per volume for 6487 volumes, plus at least an additional $0.10 per volume for packing and shipping from Monticello, Virginia.[5] Adjusted for inflation, this price is about 20 cents higher per volume than the price per volume for the books purchased in 1800. Apparently all but several of the books purchased in 1800 were new books, which probably means that they had been printed within the previous decade. In contrast, 90% of Jefferson’s books were printed more than a decade earlier.

Older, higher priced books are not necessarily worse than newer, lower-priced books. Older books might be more scarce than newer books, and hence more valuable. Book prices varied greatly depending on the size of the book, the quality of its binding, the paper used, and engravings included in the book. Average price and median age are important descriptions of a collection of books, not inverse measures of the attractiveness of purchasing a collection.

Congress’s purchase of Jefferson’s library was quite controversial. One Congressman opposed the bill to purchase the Jefferson’s library with this argument:

the library contained irreligious and immoral books, works of the French philosophers, who caused and influenced the volcano of the French Revolution, which had desolated Europe and extended to this country. [The Congressman stated that he] was opposed to a general dissemination of that infidel philosophy, and of the principles of a man [Jefferson] who had inflicted greater injury on our country than any other, except Mr. Madison. The bill would put $23,900 into Jefferson’s pocket for about 6,000 books, good, bad, and indifferent, old, new, and worthless, in languages which many can not read, and most ought not; which is true Jeffersonian, Madisonian philosophy, to bankrupt the Treasury, beggar the people, and disgrace the nation.[6]

Representatives also put forward less partisan reasons for not approving the bill to purchase the library:

Others, among whom were a number of the political and personal friends of Mr. Jefferson, opposed the bill on the ground of the scarcity of money, and the necessity of appropriating it to purposes more indispensable than the purchase of a library; the probable insecurity of such a library placed here; the high price to be given for this collection; its miscellaneous and almost exclusively literary (instead of legal and historical) character, etc. [7]

The bill to purchase Jefferson’s library was narrowly approved: 81 votes for, 71 votes against.

The accumulation of knowledge doesn’t happen automatically. Jefferson’s library testifies to the personal effort and political controversy associated with accumulating knowledge in the early nineteenth-century. Many signs in the twenty-first century indicate that personal effort and political controversies remain at the center of knowledge accumulation.

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Read more:

On the data and calculations:

I calculated the publication year statistics given above by extracting the Jefferson library from LibraryThing, cleaning it slightly, and recoding the (first) category for each book. Here’s a year-by-year summary of the publication dates and book counts. For more detail, here are the individual records with the tab-delimited fields author, title, publication year, original category, and recoded category. For records that included a publication year range, the year in this dataset is the average of the given range. For years that included a “-” (such as “178-“), I’ve replaced the dash was the midpoint of the dashed range. The recoded categories are historically appropriate terms, but are not necessarily consistent with Jefferson’s hierarchical organization of categories.

The dataset excludes 101 records that do not include a publication year. These records do not appear to have a strong publication-year bias. Given the large total number of dated records (4788), excluding a 102-record sample with even some date bias probably wouldn’t effect aggregate statistics much. Note, however, that the LibraryThing Jefferson stat page gives an average publication year of 1754. I calculate an average year of 1756. If the LibraryThing average uses a zero-value for records with no publication year, that might account for the lower LibraryThing average.

The median is a more easily interpretable summary statistic for publication years. The average can depend significantly on a few outliers, e.g. a few very old books. I suggest that LibraryThing replace on its member stat page the “average” publication year line with a “50% of your books were printed before” line.

As with any data source, you should crosscheck and evaluate the datasets I have shared for possible mistakes. Sharing data helps to advance knowledge, and I encourage everyone to do so.

More historical data on libraries.

Notes:

[1] Some evidence indicates that many books were not destroyed in the fire, but were lost after being removed from the building in 1814. See Johnston (1904) pp. 66-7. For another example of losing valuable federal government property in a nineteenth century fire, see this discussion of the Smithsonian fire of 1865.

[2] When Jefferson was President, he suggested books to be purchased for the library of Congress. See Johnston (1904) p. 37. Thus government purchases may have substituted for Jefferson’s personal purchases. Note also that some of Jefferson’s books may not have been included in the library he sold to Congress in 1815. Jefferson described his library as containing “between nine and ten thousand volumes.” See Johnston (1904) p. 70. The library he sold to Congress consisted of 6,487 volumes.

[3] Amory (2000) p. 198.

[4] Johnston (1904) p. 24, quoting a letter apparently from Cadell & Davies, the London bookseller. See id. pp. 24-5 for the total cost. The items procured for that sum probably also included three maps.

[5] On packing and shipping costs, see id. p. 104.

[6] Id. p. 86, quoting Representative Cyrus King of Massachusetts.

[7] Id., general text. Some argued that Jefferson’s library was worth $50,000; others stated that such a library “might be bought in any of the large cities for half the money.”

References:

Amory, Hugh (2000) “A Note on Imports and Domestic Production,” in Hugh Amory and David D. Hall, The Colonial Book in the Atlantic World (Cambridge: Cambridge University Press, 2000)

Johnston, William Dawson (1904), History of the Library of Congress : volume I, 1800-1864 (Washington: GPO).