Law Commons^™

Criminal Infliction Of Emotional Distress, Avlana K. Eisenberg

Michigan Law Review

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way. In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

Aborted Emotions: Regret, Relationality, And Regulation, Jody Lyneé Madeira

Michigan Journal of Gender & Law

Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.” These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with …

Feeling Another's Pain: Sympathy And Psychology Saga Style, William I. Miller

Articles

Progress is hardly a given in the humanities or the suspect sciences. In many ways we are not quite as astute as our grandparents, and they not as much as theirs, and so forth in an infinite entropic regress. Would I trade Montaigne or Stendhal’s psychological acumen for even the best work that comes from social psychology departments? In this short essay I want to show just how good some medieval people, medieval Icelanders to be exact, were at understanding the mental and emotional states of others, and if of others then presumably, though not necessarily, also of themselves. And …

Maggots And Morals: Physical Disgust Is To Fear As Moral Disgust Is To Anger, Spike W. S. Lee, Phoebe C. Ellsworth

Book Chapters

No abstract provided.

Appraisal Theory: Old And New Questions, Phoebe C. Ellsworth

Articles

I describe my current thinking on two old questions—the causal role of appraisals and the relationship of appraisal theories to basic emotions theories and constructivist theories, and three (sort of) new questions—the completeness of appraisals, the role of language, and the development of automaticity in emotional responses.

Building Resilience In Foster Children: The Role Of The Child's Advocate, Frank E. Vandervort, James Henry, Mark A. Sloane

Articles

This Article provides an introduction to, and brief overview of trauma, its impact upon foster children, and steps children's advocates" can take to lessen or ameliorate the impact of trauma upon their clients. This Article begins in Part 11 by defining relevant terms. Part III addresses the prevalence of trauma among children entering the child welfare system. Part IV considers the neurodevelopmental (i.e., the developing brain) impact of trauma on children and will explore how that trauma may manifest emotionally and behaviorally. With this foundation in place, Part V discusses the need for a comprehensive trauma assessment including a thorough …

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 …

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine

University of Michigan Journal of Law Reform

For a number of reasons, including the complicated psychological makeup of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been the justificatory versus excusatory nature of the defense. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate how common law heat of passion may apply in instances in which there is no actual provocation or …

The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg

University of Michigan Journal of Law Reform

Professor Reid Fontaine's article, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, makes a convincing case for treating heat of passion wholly as an excuse not a justification, as the only sensible way to comprehend its various forms. In doing so, Professor Fontaine stimulates further thinking about heat of passion doctrine, along two dimensions.

Unjustified: The Practical Irrelevance Of The Justification/Excuse Distinction, Gabriel J. Chin

University of Michigan Journal of Law Reform

In recent decades, the distinction between justification and excuse defenses has been a favorite topic of theorists of philosophy and criminal law. Notwithstanding the impressive intellectual efforts devoted to the task, no single scholar or viewpoint appears to be on the verge of generating practical consensus about the concepts of justification and excuse, categorization of the defenses, or categorization of difficult individual cases. This Essay suggests that none of these goals can be usefully advanced through the justification/excuse distinction.

Misunderstanding Provocation, Samuel H. Pillsbury

University of Michigan Journal of Law Reform

Provocation is and always has been a compromise rule whose success depends on its ability to appeal to all ideological constituencies, and therefore will always-as long as it lasts-resist the final categorization that this question seeks. As long as provocation involves an inquiry into reasonableness, it will include considerations of justification. As long as it provides for mitigation of punishment based on the difficulty of resisting temptations to violence inspired by strong emotion, it will speak to considerations of excuse.

How Not To Argue That Reasonable Provocation Is Not An Excuse, Peter K. Westen

University of Michigan Journal of Law Reform

Reid Fontaine draws two conclusions regarding the partial defense to murder of reasonable provocation-one regarding its substantive content, the other regarding its formal classification…. I agree with both of Fontaine's two conclusions, and, indeed, I have previously written to that effect. Unfortunately, while I agree with Fontaine's conclusions, I do not think he adequately supports them.

On Passion's Potential To Undermine Rationality: A Reply, Reid Griffith Fontaine

University of Michigan Journal of Law Reform

This Reply is organized into several sections. Following the Introduction, I respond to my six distinguished commentators. In Section II, I consider Professor Chin's concern that the distinction between justification and excuse bears no practical relevance for the criminal law. In Section III, I respond to Professor Baron's argument that reasonable mistake of fact is consistent with justification-a view, she observes, that is generally reflected in the criminal law. Building on the discussion of whether mistake and justification are compatible, Section IV addresses Professor Pillsbury's treatment of heat of passion as a hybrid defense that uniquely incorporates components of both …

The Provocation Defense And The Nature Of Justification, Marcia Baron

University of Michigan Journal of Law Reform

In this Essay, I evaluate the evidence of "adequate nonprovocation” that Fontaine puts forward to show that the heat of passion defense is decidedly an excuse (more precisely, a partial excuse). I will be focusing my remarks on the traditional heat of passion defense.

The Irreducibly Normative Nature Of Provocation/Passion, Stephen J. Morse

University of Michigan Journal of Law Reform

I agree with Professor Fontaine that provocation/passion is best interpreted as a partial excuse, but the ground for my conclusion is normative and not analytic. Indeed, I fear that he has not made the analytic case in large part because he begs a question about failed justifications that has only a normative and not an analytic answer. This Essay first briefly provides my own understanding of provocation/ passion. In the course of doing so, I address Professor Fontaine's argument that provocation/passion should also be applied to people with provocation interpretational bias. I then turn to why Fontaine's case for …

Lawyer As Emotional Laborer, Sofia Yakren

University of Michigan Journal of Law Reform

Prevailing norms of legal practice teach lawyers to detach their independent moral judgments from their professional performance-to advocate zealously for their clients while remaining morally unaccountable agents of those clients' causes. Although these norms have been subjected to prominent critiques by legal ethicists, this Article analyzes them instead through the lens of "emotional labor," a sociological theory positing that workers required to induce or suppress feeling in order to sustain the outward countenance mandated by organizational rules face substantial psychological risks. By subordinating their personal feelings and values to displays of zealous advocacy on behalf of others, lawyers, too, may …

Shedding A Tear, William I. Miller

Articles

The tale that follows is also one of great gender anxiety, and it is true.

Law, Self-Pollution, And The Management Of Social Anxiety, Geoffrey P. Miller

Michigan Journal of Gender & Law

This article considers the anxieties about masturbation and spermatorrhoea from the standpoint of cultural-legal analysis. Seen from this perspective, the worries about masturbation provided an object onto which social anxieties could be displaced and thereby managed. Norm entrepreneurs who played on public fears manipulated basic cultural polarities in order to present masturbation and spermatorrhoea as objects of horror and disgust-things that needed to be expelled, if possible, from the body social.

Sentimental Stereotypes: Emotional Expectations For High-And Low-Status Group Members, Larissa Z. Tiedens, Phoebe C. Ellsworth, Batja Mesquita

Articles

Three vignette studies examined stereotypes of the emotions associated with high- and low-status group members. In Study 1a, participants believed that in negative situations, high-status people feel more angry than sad or guilty and that low-status people feel more sad and guilty than angry. Study 1b showed that in response to positive outcomes, high-status people are expected to feel more pride and low-status people are expected to feel more appreciation. Study 2 showed that people also infer status from emotions: Angry and proud people are thought of as high status, whereas sad, guilty, and appreciative people are considered low status. …

The Anatomy Of Disgust In Criminal Law, Dan M. Kahan

Michigan Law Review

My goal in this review is to call attention to a defect in the dominant theories of criminal law and to identify a resource for remedying it. The defect is the absence of a sophisticated account of how disgust does and should influence legal decisionmaking. The corrective resource is William Miller's The Anatomy of Disgust. To make my claims more vivid, consider two stories. Both involve men who were moved to kill by disgust toward homosexuality.

Ann Arbor, December 1997, William I. Miller

Articles

In a journal entry from Dec 1997, Miller describes his daily thoughts and activities. He recalls watching "Beauty and the Beast," contemplating his views on sex and being sick during the Christmas season.

An Essay On The Piano, Law, And The Search For Women's Desire, Julia E. Hanigsberg

Michigan Journal of Gender & Law

The thesis of this essay is a simple one: to have a measure of control over her destiny, to have any choices, a woman must be a sexual agent, a subject of desire rather than an object. How can women exercise any autonomy in any other realms if in their most intimate lives they are unable to voice their desires? I do not mean to suggest that sexuality has unlimited explanatory power or that everything about women's domination can be explained by a rearticulation of desire. I do believe, however, that although the issue of sexuality is much discussed, feminist …

Upward Contempt, William I. Miller

Articles

Contempt and shame go hand in hand. Actions that should shame us, styles of self-presentation that should humiliate us if we are socially competent enough to have such a purchase on ourselves, are those actions and styles that generate and justify the contempt of others for us. Or, changing the causal order: one's contempt of us will generate shame or humiliation in us if we concur with the judgment of our contemptibility, that is, if the contempt is justified, or indignation and even vengeful fury if it is unjustified. Contempt is thus a mechanism of ranking people or of contesting …

Deep Inner Lives, Individualism And People Of Honour, William I. Miller

Articles

With the exception of St Augustine and perhaps Abelard, often praised as modern before their time, it is not unusual to find it maintained that the individual was not available in any serious conceptual, psychological or even sociological way before the seventeenth century. Our thick and deep self, according to this view, is thus a rather recent phenomenon. Some more expansive souls find the individual already emerging a century earlier, during the Reformation. Within the last three decades, medievalists, chagrined at being contemned by classicists on one flank and an alliance of Renaissance scholars, early modernists, modernists and post-modernists on …

'I Can Take A Hint': Social Ineptitude, Embarrassment, And The King Of Comedy, William I. Miller

Articles

The phrase "I can take a hint," when said seriously, contains its own denial. It reveals that the speaker has not been very adept at recognizing the hints already given, nor very graceful about not making a scene once he has recognized them. Its very utterance has the effect of punishing the hint-giver by making her hint fail as a hint. The truly successful hint works by gaining its end with no extra awkwardness added to the social encounter. The good hint should be barely perceived by the person toward whom it is directed. We could even say that it …

Shame, Culture, And American Criminal Law, Toni M. Massaro

Michigan Law Review

The purpose of this Article is to analyze whether this link is one that American criminal court judges can, or should, exploit. I begin with a description of the new shaming sanctions and the possible justifications for this type of penalty. I then identify both psychological and anthropological aspects of the phenomenon of shame, or "losing face." I describe several cultures in which shaming practices are, or were, significant means of sanctioning behavior, and outline the shared features of these cultures.

These psychological and anthropological materials, taken together, suggest that shaming practices are most effective and meaningful when five conditions …

Legality And Empathy, Lynne N. Henderson

Michigan Law Review

This article rejects the assumption that legality - by which I mean the dominant belief system about the Rule and role of Law - and empathy are mutually exclusive concepts. Failure to recognize the phenomenon of empathy explicitly in legal decisions more generally may result from a fear of the emotional realm as irrational, rather than a rational. It may stem from a belief that the divide between "subject" and "object" is uncrossable. The resistance to empathy may be attributable to the adversarial ideology acquired during law school understanding the adversary is not important unless it serves one's instrumental …