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Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse Feb 2021

Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse

Faculty Scholarship at Penn Law

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes ...


Internal And External Challenges To Culpability, Stephen J. Morse Jan 2021

Internal And External Challenges To Culpability, Stephen J. Morse

Faculty Scholarship at Penn Law

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal ...


Images Of Reach, Range, And Recognition: Thinking About Emotions In The Study Of International Law, Emily Kidd White Jan 2021

Images Of Reach, Range, And Recognition: Thinking About Emotions In The Study Of International Law, Emily Kidd White

Articles & Book Chapters

There is much critical potential in bringing together the philosophy of emotion and the study of international law. Narratives about legitimate political and legal authority have tended to either assume that it is possible to extricate emotions from political judgement, or to rest upon uncomplicated (and wholly demystified) assumptions about the legibility of emotions over time and place. Philosophers interested in emotion have regularly grappled with questions concerning an emotion’s reach and range (insofar that the emotion in question bears an intersubjective component), and recognition (comprehensibility) of emotions beyond one’s own social and political communities (or even beyond ...


Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles E. Hintz Jan 2021

Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles E. Hintz

Faculty Scholarship at Penn Law

Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.

This Essay calls for a change: expand the use of a special findings verdict, the general verdict with ...


Is Executive Function The Universal Acid?, Stephen J. Morse Nov 2020

Is Executive Function The Universal Acid?, Stephen J. Morse

Faculty Scholarship at Penn Law

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to ...


Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application Of Liberal Consideration For Veterans With Post-Traumatic Stress Disorder, Jessica Lynn Wherry Oct 2020

Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application Of Liberal Consideration For Veterans With Post-Traumatic Stress Disorder, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

In recent years, the Department of Defense (DoD) has responded to the growing awareness of mental health issues for military servicemembers during and after service. This Article focuses on veterans who have already been discharged from service, and specifically those who have been discharged under other-than-honorable conditions for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD), traumatic brain injury, sexual assault, or sexual harassment. Thousands of former servicemembers have been kicked out of the military for misconduct rather than treated for mental health conditions they experienced due to their military service. When ...


(Not The) Same Old Story: Invisible Reasons For Rejecting Invisible Wounds, Jessica Lynn Wherry Oct 2020

(Not The) Same Old Story: Invisible Reasons For Rejecting Invisible Wounds, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

Thousands of former military servicemembers have been discharged with other-than-honorable discharges due to misconduct that can be traced to a mental health condition. These veterans may request a post-discharge change to their discharge characterization—known as a “discharge upgrade.” Discharge review boards consider discharge upgrade requests and typically (90-99% of the time) deny the requests. In the past few years, the Department of Defense has issued new policy guidance partly in response to the low grant rate and to specifically address the growing understanding of the relationship between misconduct and mental health conditions for military servicemembers. The policy guidance requires ...


Fiduciary Law And The Preservation Of Trust In Business Relationships, Brian J. Broughman, Elizabeth Pollman, D. Gordon Smith Aug 2020

Fiduciary Law And The Preservation Of Trust In Business Relationships, Brian J. Broughman, Elizabeth Pollman, D. Gordon Smith

Faculty Scholarship at Penn Law

This chapter explores the role of mandatory fiduciary obligations in preserving trust between business parties. Because contracts are inevitably incomplete, after investment there is always a risk of opportunism. While the parties could try to draft a more detailed agreement prohibiting various forms of opportunism, the very act of haggling over such protections may signal distrust, eliciting costly reactions (defensive measures/hedging/lack of intrinsic motivation) in the counterparty. In the absence of fiduciary protections, a vulnerable party may decide to forgo important protections against opportunism, not because such protections are suboptimal or hard to specify ex ante but because ...


See This Empty Cage Now Corrode: The International Human Rights And Comparative Law Implications Of Sexually Violent Predator Laws, Michael L. Perlin, Heather Ellis Cucolo Jul 2020

See This Empty Cage Now Corrode: The International Human Rights And Comparative Law Implications Of Sexually Violent Predator Laws, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law.

To briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far ...


Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb May 2020

Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not ...


Is The Establishment Clause Asymmetrical?, Sam Foer May 2020

Is The Establishment Clause Asymmetrical?, Sam Foer

Senior Honors Projects

Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto students ...


Public Opinions Of Unmanned Aerial Technologies In 2014 To 2019: A Technical And Descriptive Report, Lisa M. Pytlikzillig, Janell C. Walther, Carrick Detweiler, Sebastian Elbaum, Adam Houston Apr 2020

Public Opinions Of Unmanned Aerial Technologies In 2014 To 2019: A Technical And Descriptive Report, Lisa M. Pytlikzillig, Janell C. Walther, Carrick Detweiler, Sebastian Elbaum, Adam Houston

Lisa PytlikZillig Publications

The primary purpose of this report is to provide a descriptive and technical summary of the results from similar surveys administered in fall 2014 (n = 576), 2015 (n = 301), 2016 (ns = 1946 and 2089), and 2018 (n = 1050) and summer 2019 (n = 1300). In order to explore a variety of factors that may impact public perceptions of unmanned aerial technologies (UATs), we conducted survey experiments over time. These experiments randomly varied the terminology (drone, aerial robot, unmanned aerial vehicle (UAV), unmanned aerial system (UAS)) used to describe the technology, the purposes of the technology (for economic, environmental, or security goals ...


Evaluating The Facilitating Attuned Interactions (Fan) Approach: Vicarious Trauma, Professional Burnout, And Reflective Practice, Katherine Hazen, Matthew W. Carlson, Holly Hatton-Bowers, Melanie Fessinger, Jennie Cole-Mossman, Jamie Bahm, Kelli Hauptman J.D., Eve Brank, Linda Gilkerson Mar 2020

Evaluating The Facilitating Attuned Interactions (Fan) Approach: Vicarious Trauma, Professional Burnout, And Reflective Practice, Katherine Hazen, Matthew W. Carlson, Holly Hatton-Bowers, Melanie Fessinger, Jennie Cole-Mossman, Jamie Bahm, Kelli Hauptman J.D., Eve Brank, Linda Gilkerson

Faculty Publications of the Center on Children, Families, and the Law

Background: This evaluation examined the use of the Facilitated Attuned Interaction (FAN) approach to reflective practice among child welfare and early childhood professionals working with vulnerable children and families.

Objective: The aims of the current evaluation were to test (a) the role of vicarious trauma in predicting professional burnout, (b) the effect of reflective practice quality in decreasing professional burnout, and (c) the ability of reflective practice quality to lessen the relationship between vicarious trauma and professional burnout.

Participants and Setting: The sample included sixty-three professionals across diverse professions including child welfare social workers, early childhood educators, and child welfare ...


The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby Jan 2020

The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby

Articles

No abstract provided.


Mandatory, Fast, And Fair: Case Outcomes And Procedural Justice In A Family Drug Court, Melanie Fessinger, Katherine Hazen, Jamie Bahm, Jennie Cole-Mossman, Roger Heideman, Eve Brank Jan 2020

Mandatory, Fast, And Fair: Case Outcomes And Procedural Justice In A Family Drug Court, Melanie Fessinger, Katherine Hazen, Jamie Bahm, Jennie Cole-Mossman, Roger Heideman, Eve Brank

Faculty Publications of the Center on Children, Families, and the Law

Objectives: Problem-solving courts are traditionally voluntary in nature to promote procedural justice and to advance therapeutic jurisprudence. The Family Treatment Drug Court (FTDC) in Lancaster County, Nebraska, is a mandatory dependency court for families with allegations of child abuse or neglect related to substance use. We conducted a program evaluation examining parents’ case outcomes and perceptions of procedural justice to examine whether a mandatory problem-solving court could replicate the positive outcomes of problem-solving courts. Methods: We employed a quasi-experimental design that compared FTDC parents to traditional dependency court parents (control parents). We examined court records to gather court orders, compliance ...


Behavioral Comparative Law: Its Relevance To Global Commercial Law-Making, John Linarelli Jan 2020

Behavioral Comparative Law: Its Relevance To Global Commercial Law-Making, John Linarelli

Scholarly Works

This is a book chapter written for a British Society of Legal Scholars funded conference held at Durham University Law School. It develops a framework by which to evaluate the making of commercial law at the global level. It offers an approach to evaluating the process by which primarily intergovernmental organisations produce commercial law. The approach grounds in both behavioural science and comparative law. The focus is mainly but not exclusively on global rule makers such as the United Nations Commission on International Trade Law (UNCITRAL) and the International Institute for the Unification of Private Law (UNIDROIT). It articulates what ...


You That Build The Death Planes: Bob Dylan, War And International Affairs, Michael L. Perlin Jan 2020

You That Build The Death Planes: Bob Dylan, War And International Affairs, Michael L. Perlin

Articles & Chapters

Several years ago, I wrote that Bob Dylan was “a scholar with a well-developed jurisprudence on a range of topics including civil, criminal, public, and private law” (Perlin, 2011, p.1396). In that article, I discussed and analyzed Dylan songs that dealt with, variously, civil rights, inequality in the criminal and civil justice systems, institutions, governmental/judicial corruption, equality and emancipation, and the role of lawyers in the legal process. (Id.). But I noted that I was omitting – for space considerations – any discussion of Dylan songs dealing with war and international affairs (Id., p. 1398, n. 15).

In this paper ...


Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson Jan 2020

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

Faculty Scholarship at Penn Law

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering ...


Pouring A Little Psychological Cold Water On Online Dispute Resolution, Jean R. Sternlight Jan 2020

Pouring A Little Psychological Cold Water On Online Dispute Resolution, Jean R. Sternlight

Scholarly Works

This Article examines the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. It makes five main points:

(1) The phrase ODR is too broad to be useful. This phrase encompasses many different kinds of technology (computer, phone, video, mechanical pencil), many different kinds of dispute resolution (litigation, negotiation, arbitration, mediation), disputes arising in many different contexts (consumer, family, property, tax, employment, etc.), and many different roles (technology as neutral, technology as aide to neutral, technology as aide to disputant, etc.). In order to consider whether and when ODR can be most useful we will need to ...


Justifying Bad Deals, Tess Wilkinson-Ryan Jan 2020

Justifying Bad Deals, Tess Wilkinson-Ryan

Faculty Scholarship at Penn Law

In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers — even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation via ...


Trauma-Informed Advocacy: Learning To Empathize With Unspeakable Horrors, Susan Ayres Jan 2020

Trauma-Informed Advocacy: Learning To Empathize With Unspeakable Horrors, Susan Ayres

Faculty Scholarship

No abstract provided.


Discounting Credibility: Doubting The Stories Of Women Survivors Of Sexual Harassment, Deborah Epstein Jan 2020

Discounting Credibility: Doubting The Stories Of Women Survivors Of Sexual Harassment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only ...


Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White Nov 2019

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories ...


Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach Oct 2019

Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant's mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products ...


Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich Aug 2019

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Georgetown Law Faculty Publications and Other Works

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly as many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made ...


Law Library Blog (August 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law Aug 2019

Law Library Blog (August 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Against The Received Wisdom: Why Should The Criminal Justice System Give Kids A Break?, Stephen J. Morse Jul 2019

Against The Received Wisdom: Why Should The Criminal Justice System Give Kids A Break?, Stephen J. Morse

Faculty Scholarship at Penn Law

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about ...


Assessing Cognitive Interview Mnemonics And Their Effectiveness With Non-Native English Speakers, Bryan Keith Wylie Jun 2019

Assessing Cognitive Interview Mnemonics And Their Effectiveness With Non-Native English Speakers, Bryan Keith Wylie

FIU Electronic Theses and Dissertations

The cognitive interview is a widely recommended forensic interviewing strategy which elicits more details than comparison interviews. However, little research has attended to which of its component mnemonics drive the overall effect. Furthermore, some mnemonics—like asking witnesses to recall in reverse order—are cognitively demanding. Responding to cognitively demanding interview mnemonics may be challenging for witnesses who are already under heavy cognitive load, such as non-native English speakers. Speaking a second language is a cognitively difficult task that may leave non-native English speakers with limited cognitive resources to devote to complex interviewing mnemonics. Other mnemonics, though, may be particularly ...


Brief Of Amicus Curiae 290 Criminal Law And Mental Health Law Professors In Support Of Petitioner's Request For Reversal And Remand, Kahler V. Kansas, 18-6135 (U.S. June 6, 2019), Paul F. Rothstein Jun 2019

Brief Of Amicus Curiae 290 Criminal Law And Mental Health Law Professors In Support Of Petitioner's Request For Reversal And Remand, Kahler V. Kansas, 18-6135 (U.S. June 6, 2019), Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles.

Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional ...


The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz Apr 2019

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to what psychologists have ...