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Full-Text Articles in Law
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 …
Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald
Situations, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald
Michigan Journal of Gender & Law
A study of the psychological literature can enhance legal theory by focusing attention on how the human brain perceives, distinguishes, categorizes, and ultimately makes decisions. The more that we learn about the brain's intricate operations, the more effective we can be at combating the types of gender biased decisions that influence our lives. In developing strategies to achieve equality, feminist, gay, lesbian, bisexual, transgender, and intersex activists would be wise to learn from the psychological literature. This Article highlights a few examples illustrating how this knowledge might re-direct strategic choices for combating gender inequality.
Poll Workers, Election Administration, And The Problem Of Implicit Bias, Antony Page, Michael J. Pitts
Poll Workers, Election Administration, And The Problem Of Implicit Bias, Antony Page, Michael J. Pitts
Michigan Journal of Race and Law
Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law …
The Logician Versus The Linguist- An Empirical Tale Of Functional Discrimination In The Legal Academy, Andrea Kayne Kaufman
The Logician Versus The Linguist- An Empirical Tale Of Functional Discrimination In The Legal Academy, Andrea Kayne Kaufman
Michigan Journal of Gender & Law
This paper, focusing exclusively on gender, asks whether male and female law students express different preferences for logic-based learning models. A wide variety of educational theories and other theories have been used to conceptualize different learning preferences among law students but until now, none has focused on logical intelligence compared with the other intelligences. Using Harvard educational psychologist Howard Gardner's theory of Multiple Intelligences, this paper describes an empirical study establishing that male and female law students express differences in preferring logical intelligence over the other intelligences. This paper introduces the concept of "functional discrimination," addressing the ways in which …
The Progress Of Passion, Kathryn Abrams
The Progress Of Passion, Kathryn Abrams
Michigan Law Review
Like an abandoned fortress, the dichotomy between reason and the passions casts a long shadow over the domain of legal thought. Beset by forces from legal realism to feminist epistemology, this dichotomy no longer holds sovereign sway. Yet its structure helps to articulate the boundaries of the legal field; efforts to move in and around it infuse present thinking with the echoes of a conceptually distinct past. Early critics of the dichotomy may unwittingly have prolonged its influence through the frontal character of their attacks. By challenging a strong distinction between emotion and reason, critics kept it, paradoxically, before legal …
"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
University of Michigan Journal of Law Reform
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 to 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. - ruling that …
The Anatomy Of Disgust In Criminal Law, Dan M. Kahan
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.
The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson
The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson
Michigan Journal of Race and Law
This article will address specifically the relationship between race and credibility in legal cases, while acknowledging that broader bias issues are often, though sometimes imperceptibly, intertwined in racially biased credibility determinations. Part I will survey race and credibility issues that have arisen in courts, with particular focus on two modern habeas corpus cases. Part II will summarize the legal rules that presently regulate racially influenced assessments of credibility; it may surprise some readers to realize that there is no established mechanism for challenging racially biased credibility determinations. Part I will propose some standards for determining when race is permissibly used …