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Articles 1 - 7 of 7
Full-Text Articles in Law
Property's Morale, Nestor M. Davidson
Property's Morale, Nestor M. Davidson
Michigan Law Review
A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Michigan Journal of Race and Law
Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …
Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert
Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert
University of Michigan Journal of Law Reform
Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present Article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction, is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in …
Sticky Metaphors And The Persistence Of The Traditional Voluntary Manslaughter Doctrine, Elise J. Percy, Joseph L. Hoffman, Steven J. Sherman
Sticky Metaphors And The Persistence Of The Traditional Voluntary Manslaughter Doctrine, Elise J. Percy, Joseph L. Hoffman, Steven J. Sherman
University of Michigan Journal of Law Reform
This Article begins with a curious puzzle: Why has the traditional voluntary manslaughter doctrine in criminal law-the so-called "heat of passion" defense to a charge of murder-proven so resistant to change, even in the face of more than a half-century of seemingly compelling empirical and normative arguments in favor of doctrinal reform? What could possibly account for the traditional doctrine's surprising resilience? In this Article, we propose a solution to this puzzle. The Article introduces a new conceptual theory about metaphor-the "sticky metaphor" theory-that highlights an important aspect of metaphorical language and metaphorical thought that has been almost completely overlooked …
Losing It, William I. Miller
Losing It, William I. Miller
Articles
You are in your sixties, even fifties, and you are walking by a shop window, or in some area in which a security monitor shows a scan of the line you are in. You sneak a look. You see someone in the space where you should be but you do not recognize the interloper. Then, after an unseemly lag of a second or two you are forced to remake your own acquaintance; it seems you no longer know yourself at first sight. The you behind your eyes believes you look like you did twenty years ago, and it assumes that …
Legal Reasoning And Scientific Reasoning, Phoebe C. Ellsworth
Legal Reasoning And Scientific Reasoning, Phoebe C. Ellsworth
Articles
In my presentation for the 2010 Meador Lectures on Rationality, I chose to compare legal reasoning and scientific reasoning. Both law and science pride themselves on the rationality of their intellectual methods and believe that those methods are designed to analyze questions and reach the correct conclusions by means of reason, free from cognitive or emotional biases. Of course, both law and science often fall short of this ideal at all levels, from the decisions about individual legal cases or scientific studies to the acceptance of general theories. In many ways, the biases that mislead legal and scientific thinkers are …
Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth
Ask And What Shall Ye Receive? A Guide For Using And Interpreting What Jurors Tell Us, Barbara O'Brien, Samuel R. Sommers, Phoebe C. Ellsworth
Articles
We review the extensive body of studies relying on jurors' self-reports in interviews or questionnaires, with a focus on potential threats to validity for researchers seeking to answer particularly provocative questions such as the influence of race in jury decision-making. We then offer a more focused case study comparison of interview and questionnaire data with behavioral data in the domain of race and juror decision-making. Our review suggests that the utility of data obtained from juror interviews and questionnaire responses varies considerably depending on the question under investigation. We close with an evaluation of the types of empirical questions most …