Law Commons^™

Undead Statutes: The Rise, Fall, And Continuing Uses Of Adultery And Fornication Criminal Laws, Joanne Sweeny Dr.

JoAnne Sweeny

Cohabitation is a reality for a majority of Americans. Nonmonogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. …

Student Surveillance, Racial Inequalities, And Implicit Racial Bias, Jason P. Nance

Jason P. Nance

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department …

Transforming (Perceived) Rigidity In Environmental Law Through Adaptive Governance, J.B. Ruhl, Hannah Gosnell, Brian C. Chaffin, Craig A. Arnold

Craig Anthony (Tony) Arnold

The Endangered Species Act (ESA) is often portrayed as a major source of instability and crisis in river basins of the U. S. West, where the needs of listed fish species frequently clash with agriculture dependent on federal irrigation projects subject to ESA Section 7 prohibitions on federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on Section 7 characterizes the process as unwaveringly rigid, the legal “hammer” forcing federal agencies to consider endangered species’ needs when proposing operations and management plans for federally funded irrigation. In this paper, we identify barriers to an integrated …

Water Privatization Trends In The United States: Human Rights, National Security, And Public Stewardship, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

No abstract provided.

Litigation's Bounded Effectiveness And The Real Public Trust Doctrine: The Aftermath Of The Mono Lake Case, Craig Anthony (Tony) Arnold, Leigh A. Jewell

Craig Anthony (Tony) Arnold

No abstract provided.

The Most Important Current Research Questions In Urban Ecosystem Services, James Salzman, Craig Anthony (Tony) Arnold, Robert Garcia, Keith Hirokawa, Kay Jowers, Jeffrey Lejava, Margaret Peloso, Lydia Olander

Craig Anthony (Tony) Arnold

No abstract provided.

Environmental Law, Episode Iv: A New Hope? Can Environmental Law Adapt For Resilient Communities And Ecosystems?, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

No abstract provided.

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The "Guarantee" Clause, Ryan C. Williams

Ryan Williams

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate …

The Judge's Relative Is Affiliated With Counsel Of Record: The Ethical Dilemma, Leslie W. Abramson

Leslie W. Abramson

This Article examines various aspects of the ethical dilemmas judges face when assigned to preside over a case in which a relative is affiliated with counsel or record. It discusses relevant federal and state ethical standards including the appearance of partiality, the relative-lawyer's interest, and the disclosure of the relationship by judge and waiver. It then addresses the application of the standards in case law and other situations through the relative-lawyer's law firm position either as a partner, non-partner, or public attorney. The last part proposes supplemental Code or Commentary language for consideration by state and federal courts and legislatures.

State Taxation Of Exports: The Stream Of Constitutionality, Leslie W. Abramson

Leslie W. Abramson

No abstract provided.

The Judge's Ethical Duty To Report Misconduct By Other Judges And Lawyers And Its Effect On Judicial Independence, Leslie W. Abramson

Leslie W. Abramson

This Article discusses the judge's ethical duty to report misconduct by other judges and lawyers and the effect of this duty on judicial independence. It examines the judicial duty to disclose, compares it to a lawyer's ethical duty to disclose, and surveys several issues of interpretationand application of the judicial ethical requirement including when the duty to report arises, what misconduct should or must be reported, and what actions or disciplinary measure are appropriate for the judge to pursue. In addition, it discusses exceptions to the duty to disclose andproposes modification of the existing ethical standard.

Canon 2 Of The Code Of Judicial Conduct, Leslie W. Abramson

Leslie W. Abramson

No abstract provided.

Kentucky's Future Need For Attorneys, Leslie W. Abramson

Leslie W. Abramson

No abstract provided.

Living Apart Together As A “Family Form” Among Persons Of Retirement Age: The Appropriate Family Law Response, Cynthia Grant Bowman

Cynthia Grant Bowman

As the Baby Boom generation enters retirement age, patterns of living among older persons are beginning to change. Unlike their predecessors, the Baby Boomers lived through the sexual revolution, divorced more easily and more often, and institutionalized new patterns of coupling, such as cohabitation. As a result, the rate of marriage has declined and the percent of the population classified as “single” has gone up. This age cohort has now moved into the sixty-five-plus group and makes up those we think of as the retirement generation, or the “Third Age” group. As longevity has increased and the divorce rate for …

Time-Shifted Rationality And The Law Of Law's Leverage: Behavioral Economics Meets Behavioral Biology, Owen D. Jones

Owen Jones

A flood of recent scholarship explores legal implications of seemingly irrational behaviors by invoking cognitive psychology and notions of bounded rationality. In this article, I argue that advances in behavioral biology have largely overtaken existing notions of bounded rationality, revealing them to be misleadingly imprecise - and rooted in outdated assumptions that are not only demonstrably wrong, but also wrong in ways that have material implications for subsequent legal conclusions. This can be remedied. Specifically, I argue that behavioral biology offers three things of immediate use. First, behavioral biology can lay a foundation for both revising bounded rationality and fashioning …

The Neural Correlates Of Third-Party Punishment, Owen D. Jones, Joshua Buckholtz, Christopher L. Asplund, Paul E. Dux, David H. Zald, John C. Gore, Rene Marois

Owen Jones

This article reports the discovery, from the first full-scale law and neuroscience experiment, of the brain activity underlying punishment decisions.

We used functional magnetic resonance imaging (fMRI) to measure brain activity of subjects as they read hypothetical scenarios about harm-causing protagonists and then decided whether to punish and, if so, how much.

The key variables were: a) presence or absence of excusing, justifying, or otherwise mitigating factors (such as acting under duress); and b) harm severity (which ranged from a stolen CD to a rape/murder/torture combination).

Findings include:

(1) Analytic and emotional brain circuitries are jointly involved, yet quite separately …

The Evolution Of Irrationality, Owen D. Jones

Owen Jones

The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Owen Jones

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that …

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Owen Jones

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

Parsing The Behavioral And Brain Mechanisms Of Third-Party Punishment, Owen D. Jones, Matthew Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Rene Marois

Owen Jones

The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood.

Using a brain-scanning technique known as functional magnetic resonance imaging (fMRI), we implemented a novel experimental design to …

Law And The Biology Of Rape: Reflections On Transitions, Owen D. Jones

Owen Jones

This Article serves is a sequel to a previous Article: Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999). Part I briefly considers the threshold question: why consider the behavioral biology of sexual aggression at all? Part II proposes that the first step in transitioning to a more accurate and more useful model of rape behavior is to avoid a number of common definitional ambiguities that plague most rape discussions. Because those ambiguities are particularly likely to foster misunderstandings about biobehavioral perspectives, Part II also clarifies the scope of what biobehavioral theories …

Law, Evolution, And The Brain: Applications And Open Questions, Owen D. Jones

Owen Jones

This essay discusses several issues at the intersection of law and brain science. If focuses principally on ways in which an improved understanding of how evolutionary processes affect brain function and human behavior may improve law's ability to regulate behavior. It explores sample uses of such "evolutionary analysis in law" and also raises questions about how that analysis might be improved in the future. Among the discussed uses are: 1) clarifying cost-benefit analyses; 2) providing theoretical foundation and potential predictive power; 3) assessing comparative effectiveness of legal strategies; and 4) revealing deep patterns in legal architecture. Throughout, the essay emphasizes …

Law, Responsibility, And The Brain, Owen D. Jones, Dean Mobbs, Hakwan C. Lau, Christopher D. Frith

Owen Jones

This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six essential limits on the use of brain imaging in courtroom procedures.

Endowment Effects In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Susan P. Lambeth, Mary Catherine Mareno, Amanda S. Richardson, Steven Schapiro

Owen Jones

Human behavior is not always consistent with standard rational choice predictions. The much-investigated variety of apparent deviations from rational choice predictions provides a promising arena for the merger of economics and biology. Although little is known about the extent to which other species also exhibit these seemingly irrational patterns of human decision-making and choice behavior, similarities across species would suggest a common evolutionary root to the phenomena.

The present study investigated whether chimpanzees exhibit an endowment effect, a seemingly paradoxical behavior in which humans tend to value a good they have just come to possess more than they would have …

Evolution And The Expression Of Biases: Situational Value Changes The Endowment Effect In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Molly Gardner, Susan P. Lambeth, Steven J. Schapiro

Owen Jones

Cognitive and behavioral biases, which are widespread among humans, have recently been demonstrated in other primates, suggesting a common origin. Here we examine whether the expression of one shared bias, the endowment effect, varies as a function of context. We tested whether objects lacking inherent value elicited a stronger endowment effect (or preference for keeping the object) in a context in which the objects had immediate instrumental value for obtaining valuable resources (food). Chimpanzee subjects had opportunities to trade tools when food was not present, visible but unobtainable, and obtainable using the tools. We found that the endowment effect for …

Law And Biology: Toward An Integrated Model Of Human Behavior, Owen D. Jones

Owen Jones

As first year law students unhappily discover, the meaning of "law" is frustratingly protean, shifting by usage and user. Depending on whom you ask, law is a system of rules, a body of precedents, a legislative enactment, a collection of norms, a process by which social goals are pursued, or some dynamic mixture of these. Law's principal purpose is to define and protect individual rights, to ensure public order, to resolve disputes, to redistribute wealth, to dispense justice, to prevent or compensate for injury, to optimize economic efficiency, or perhaps to do something else. And yet one thing is irreducibly …

Law & Neuroscience: What, Why, And Where To Begin, Owen D. Jones, Jeffrey D. Schall, Francis X. Shen

Owen Jones

This provides the Summary Table of Contents and Chapter 1 of our coursebook “Law and Neuroscience” (forthcoming April 2014, from Aspen Publishing). Designed for use in both law schools and beyond, the book provides user-friendly introductions, as well as detailed explorations, of the many current and emerging issues at the intersection of law and neuroscience.

One part of the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. A later part explains the basics of brain structure and function, the methods for …

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