Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law and Psychology (29)
- Disability Law (23)
- Jurisprudence (13)
- Human Rights Law (6)
- Law and Race (4)
-
- Civil Rights and Discrimination (3)
- Health Law and Policy (3)
- Law and Gender (3)
- Law and Society (3)
- Criminal Law (2)
- Education Law (2)
- International Law (2)
- Legal Education (2)
- Legal Ethics and Professional Responsibility (2)
- Medical Jurisprudence (2)
- Constitutional Law (1)
- Criminal Procedure (1)
- Estates and Trusts (1)
- Legal History (1)
- Legal Profession (1)
- Legal Remedies (1)
- Publication Year
- Publication Type
Articles 1 - 30 of 33
Full-Text Articles in Law
I Hope The Final Judgment’S Fair: Alternative Jurisprudences, Legal Decision-Making, And Justice, Michael L. Perlin
I Hope The Final Judgment’S Fair: Alternative Jurisprudences, Legal Decision-Making, And Justice, Michael L. Perlin
Articles & Chapters
At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows that many (perhaps most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced. This chapter explains why this goal of fairness, in the context of these cases, can never be met absent a consideration of …
Some Things Are Too Hot To Touch: Competency, The Right To Sexual Autonomy, And The Roles Of Lawyers And Expert Witnesses, Michael L. Perlin, Alison Lynch, Valerie R. Mcclain
Some Things Are Too Hot To Touch: Competency, The Right To Sexual Autonomy, And The Roles Of Lawyers And Expert Witnesses, Michael L. Perlin, Alison Lynch, Valerie R. Mcclain
Articles & Chapters
No abstract provided.
There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein
There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein
Articles & Chapters
This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.
Notwithstanding nearly …
A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt
A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt
Articles & Chapters
Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.
And, in the same vein, anyone who has been so involved with this area of law and …
On Desolation Row: The Blurring Of The Borders Between Civil And Criminal Mental Disability Law, And What It Means To All Of Us, Michael L. Perlin, Deborah Dorfman, Naomi Weinstein
On Desolation Row: The Blurring Of The Borders Between Civil And Criminal Mental Disability Law, And What It Means To All Of Us, Michael L. Perlin, Deborah Dorfman, Naomi Weinstein
Articles & Chapters
One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. As mental disability law has matured, a dual …
God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin
Articles & Chapters
Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …
I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin
I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin
Articles & Chapters
Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.
In this paper, I …
Tolling For The Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization Of Racial Minorities And Women In Institutional Mental Disability Law, Michael L. Perlin, Heather Ellis Cucolo
Tolling For The Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization Of Racial Minorities And Women In Institutional Mental Disability Law, Michael L. Perlin, Heather Ellis Cucolo
Articles & Chapters
Individuals with mental disabilities have traditionally been and continue to be subjected to rights violations and pervasive discrimination because of their mental disabilities. Seen as “the other,” individuals who are racial minorities and/or are women are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving theright to refuse medication).
It is impossible to examine these questions critically without coming to grips with the ways that expert testimony — testimony that is essential and necessary in all these cases — is infected with bias that leads to …
Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin
Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin
Articles & Chapters
In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.
I …
Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin
Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin
Articles & Chapters
This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear …
In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch
In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch
Articles & Chapters
This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to …
"Mr. Bad Example": Why Lawyers Need To Embrace Therapeutic Jurisprudence To Root Out Sanism In The Representation Of Persons With Mental Disabilities, Michael L. Perlin
"Mr. Bad Example": Why Lawyers Need To Embrace Therapeutic Jurisprudence To Root Out Sanism In The Representation Of Persons With Mental Disabilities, Michael L. Perlin
Articles & Chapters
Litigants with mental disabilities are taken less seriously by their own lawyers, trivialized by opposing counsel, and disparaged by judges. This is largely a result of “sanism,” an irrational prejudice of the same quality and character of other irrational prejudices such as racism, sexism or homophobia. Recognizing and combatting sanism creates extra burdens on lawyers who do seek to provide effective counsel for this population. Such lawyers need special tools to combat sanism, and we believe that lawyering skills rooted in therapeutic jurisprudence provide the best foundation through which to create a positive psychology of persuasion in this representation. Our …
Sexuality, Disability, And The Law: Beyond The Last Frontier? (2016), Michael L. Perlin, Alison Lynch
Sexuality, Disability, And The Law: Beyond The Last Frontier? (2016), Michael L. Perlin, Alison Lynch
Books
Sexuality, Disability, and the Law approaches issues of sexual autonomy and disability from multiple perspectives, including constitutional law, international human rights, therapeutic jurisprudence, history, cognitive psychology, dignity studies, and theories and findings on gender constructs and societal norms. Perlin and Lynch determine that if our society continues to assert that persons with mental disabilities possess a primitive morality, we allow ourselves to censor their feelings and their actions. By denying their ability and desires to show love and affection, we justify this disparate treatment. Our reliance on stereotypes has warped our attitudes and our policies, and has allowed us to …
I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin
I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin
Articles & Chapters
The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.
My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of …
There Must Be Some Way Out Of Here: Why The Convention On The Rights Of Persons With Disabilities Is Potentially The Best Weapon In The Fight Against Sanism, Michael L. Perlin
There Must Be Some Way Out Of Here: Why The Convention On The Rights Of Persons With Disabilities Is Potentially The Best Weapon In The Fight Against Sanism, Michael L. Perlin
Articles & Chapters
It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define "sanism" as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that permeates all aspects of mental disability law and affects all participants in the mental …
Online, Distance Legal Education As An Agent Of Social Change, Michael L. Perlin
Online, Distance Legal Education As An Agent Of Social Change, Michael L. Perlin
Articles & Chapters
New York Law School (NYLS) created its online, distance learning mental disability law program in an effort to provide education in an area of the law that remains hidden in most law school curricula. Since 2000, it has offered its mental disability law courses in an online, distance learning format to its own students, to law students from other US-based law schools, to mental health professionals, to students in all the allied mental health professions and in the fields of criminology and criminal justice, and to activists and advocates (including members of the psychiatric survivor movement). It has offered the …
Salvation Or A Lethal Dose? Attitudes And Advocacy In Right To Refuse Treatment Cases, Michael L. Perlin
Salvation Or A Lethal Dose? Attitudes And Advocacy In Right To Refuse Treatment Cases, Michael L. Perlin
Articles & Chapters
The debate surrounding the right to refuse treatment controversy continues unabated in the relevant law and social science literature. However, there are two areas where scant research attention is found. These include the attitudes of patients and staff regarding right to refuse treatment decisions and the adequacy of counsel availed to patients who assert their constitutionally protected right to refuse. This article examines both issues, mindful of what they tell us about sanism and pretextuality with respect to mental disability law and right to refuse treatment jurisprudence.
They Keep It All Hid: The Ghettoization Of Mental Disability Law And Its Implications For Legal Education, Michael L. Perlin
They Keep It All Hid: The Ghettoization Of Mental Disability Law And Its Implications For Legal Education, Michael L. Perlin
Articles & Chapters
The Supreme Court has, since 1972, decided more than fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been …
Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin
Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin
Articles & Chapters
In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:
* The need to insure that all children receive adequate education
* The need to insure that the cure is not worse than the illness (that is, that …
“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard
“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard
NYLS Law Review
No abstract provided.
Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin
Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin
Articles & Chapters
This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …
Through The Wild Cathedral Evening: Barrier, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin
Through The Wild Cathedral Evening: Barrier, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin
Articles & Chapters
This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …
Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin
Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin
Articles & Chapters
This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons withDisabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us to …
Baby, Look Inside Your Mirror: The Legal Profession's Willful And Sanist Blindness To Lawyers With Mental Disabilities, Michael L. Perlin
Baby, Look Inside Your Mirror: The Legal Profession's Willful And Sanist Blindness To Lawyers With Mental Disabilities, Michael L. Perlin
Articles & Chapters
The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.
The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and …
Commentary: Mental Health Legislation, Michael L. Perlin
Commentary: Mental Health Legislation, Michael L. Perlin
Other Publications
No abstract provided.
Everything's A Little Upside Down, As A Matter Of Fact The Wheels Have Stopped: The Fraudulence Of The Incompetency Evaluation Process, Michael L. Perlin
Everything's A Little Upside Down, As A Matter Of Fact The Wheels Have Stopped: The Fraudulence Of The Incompetency Evaluation Process, Michael L. Perlin
Articles & Chapters
Health Law in the Criminal Justice System Symposium
Sanism And The Law, Michael L. Perlin
You Have Discussed Lepers And Crooks. Sanism In Clinical Teaching, Michael L. Perlin
You Have Discussed Lepers And Crooks. Sanism In Clinical Teaching, Michael L. Perlin
Articles & Chapters
There is a robust clinical literature on how issues of race and gender may influence all aspects of the clinicalsetting: the relationship between student and client, the relationship between student and student, the relationship between student and clinical supervisor, the attitude of the fact-finder toward the clinical client. But there has been virtually no attention paid to the role of sanism in the clinical setting.
Sanism is an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry. It permeates all aspects …
What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom: Are The Americans With Disabilities Act (And Olmstead V. L.C.) Anything More Than 'Idiot Wind', Michael L. Perlin
Articles & Chapters
Mental Disability law is contaminated by "sanism," an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA) - a statute that focused specifically on questions of stereotyping and stigma - appeared at first to offer an opportunity too deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court's 1999 decision in Olmstead v. L.C. …
Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin
Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin
Articles & Chapters
Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and …