Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, 2010 New York Law School
Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin
Articles & Chapters
Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same ...
Habeas Corpus In The Age Of Guantánamo, 2010 Montclair State University
Habeas Corpus In The Age Of Guantánamo, Cary Federman
Department of Justice Studies Faculty Scholarship and Creative Works
The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then ...
Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, 2010 New York Law School
Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain
Articles & Chapters
The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will ...
Salvation Or A Lethal Dose? Attitudes And Advocacy In Right To Refuse Treatment Cases, 2010 New York Law School
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.
Good And Bad, I Defined These Terms, Quite Clear No Doubt Somehow: Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin
Articles & Chapters
There has been little consideration, in either the caselaw or the scholarly literature, of the potential impact of neuroimaging on cases assessing whether a seriously mentally disabled death row defendant is competent to be executed. The Supreme Court's 2007 decision in Panetti v. Quarterman significantly expanded its jurisprudence by ruling that such a defendant had a constitutional right to make a showing that his mental illness "obstruct[ed] a rational understanding of the State's reason for his execution." This article considers the impact of neuroimaging testimony on post-Panetti competency determination hearings, and looks at multiple questions of admissibility ...
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 ...
Last Stand? The Criminal Responsibility Of War Veterans Returning From Iraq And Afghanistan With Posttraumatic Stress Disorder, 2010 University of Virginia School of Law
Last Stand? The Criminal Responsibility Of War Veterans Returning From Iraq And Afghanistan With Posttraumatic Stress Disorder, Thomas L. Hafemeister, Nicole A. Stockey
Indiana Law Journal
As more psychologically scarred troops return from combat in Iraq and Afghanistan, society's focus on and concern for these troops and their psychological disorders has increased With this increase and with associated studies confirming the validity of the Posttraumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a "mental status defense, " such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan ...
Love As Legal Methodology: Comments On Love In A Time Of Envy, 2010 Georgetown University Law Center
Love As Legal Methodology: Comments On Love In A Time Of Envy, Naomi Mezey
Georgetown Law Faculty Publications and Other Works
In academic papers about emotion, it is not uncommon to find a kind of disconnect between the detachment of theoretical and scholarly language and the subject of the paper--the emotions. One of the lovely, and challenging, aspects of Jonathan Goldberg-Hiller's article is that it not only conveys the emotions that are its subject, but it brims with its own emotion; it reads like a text written out of shattered love. Goldberg-Hiller takes up Jean-Luc Nancy's contention that "love is shattered by its very essence. It fragments the self at the same time as it refracts into many forms ...
Discrimination Redefined, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
Discrimination Redefined, Ann C. Mcginley
In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual ...
Scientific Understandings Of Postpartum Illness: Improving Health Law And Policy?, 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law
Scientific Understandings Of Postpartum Illness: Improving Health Law And Policy?, Stacey A. Tovino
In its broadest sense, the Article examines the relationship between science and the law in the context of postpartum illness. From classical antiquity to the present day, physicians and scientists have investigated the causes, correlates, and consequences of the depressions and psychoses that develop in some women following their transition to motherhood. The scientific investigation of postpartum illness has been characterized by an open-ended search for knowledge with the recgonition that scientific findings published one day are subject to revision the next. Legislators and judges also have sought to understand postpartum illness as necessary to make laws that affect and ...
(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, 2010 Indiana University Maurer School of Law
(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla
Articles by Maurer Faculty
This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal ...
Nudge, Choice Architecture, And Libertarian Paternalism, 2010 University of Colorado Law School
Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag
In Nudge, Cass Sunstein and Richard Thaler describe how public and private institutions can improve on individual choices by nudging individuals into making selections that are right for them. Rejecting the Econ-101 caricature of the rational utility maximizer as inaccurate, Sunstein and Thaler apply the insights of behavioral economics to show how institutions can improve the delivery of services. Moving beyond attempts to remedy individual cognitive errors, Sunstein and Thaler also argue for "libertarian paternalism" - which they herald as the "Third Way." This Review assesses their claims critically, finding their development of "nudge" and "choice architecture" to be welcome additions ...
Are You Covered? The Need For Improvement In Insurance Coverage For Autism Spectrum Disorder, 44 J. Marshall L. Rev. 291 (2010), Marissa Mazza
The John Marshall Law Review
No abstract provided.
Between Access To Counsel And Access To Justice: A Psychological Perspective, 2010 Fordham Law School
Between Access To Counsel And Access To Justice: A Psychological Perspective, Nourit Zimmerman, Tom R. Tyler
Fordham Urban Law Journal
Looking into the pro se phenomenon, this paper will explore the lessons that can be learned from the experiences of the many individuals representing themselves in the American legal system today. Our interest in this paper will try to understand better the procedural values that matter to people and how they are related to having or not having professional legal representation. Does having a lawyer or not having a lawyer influence the experiences of lay people operating within the legal system, their evaluations of the process and the system, and of the outcomes obtained by them, and in what ways ...
Lessons From The Financial Crisis, 2009 University of Tennessee
Lessons From The Financial Crisis, Maurice Stucke
Maurice E Stucke
What lessons can we learn from the financial crisis concerning the issues of systemic risk, firms too big to fail, and the income inequality in the United States today?
In light of the public anger over the financial crisis and bailouts to firms deemed too big to fail, this Essay first addresses the issue of systemic risk posed by mergers generally and those in the financial services industries specifically. The federal government heard concerns in the 1990s about mega-mergers in the financial industry. The Department of Justice, for example, heard concerns that the Citibank-Travelers merger would create an institution too ...
When A Monopolist Deceives, 2009 University of Tennessee
When A Monopolist Deceives, Maurice Stucke
Maurice E Stucke
This essay uses one context - a monopolist’s deceptive advertising or product disparagement - to illustrate how competition authorities and courts should evaluate a monopolist’s deception under the federal antitrust laws. Competition authorities should target a monopolist’s anticompetitive deception, which courts should treat as a prima facie violation of the Sherman Act without requiring a full-blown rule of reason analysis or an arbitrary, multi-factor standard.
Antitrust 2025, 2009 University of Tennessee
Antitrust 2025, Maurice Stucke
Maurice E Stucke
Antitrust policy in the United States has roughly twenty to thirty year cycles. So if past cycles are reliable indicators of future ones, we are at (or approaching) a new antitrust policy cycle, with 2025 being the approximate midpoint.
Any new policy cycle will be defined by three fundamental questions: a. What is competition? b. What are the goals of competition law? c. What should be the legal standards to promote these goals?
Rather than predict the state of antitrust policy in 2025 (such as more or less cartel enforcement), this Essay maps two scenarios based on these three fundamental ...
Situation, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, 2009 Thomas Jefferson School of Law
Situation, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald
The psychological literature enhances our understanding of discrimination. This essay discusses three examples of how that literature can contribute to limiting destructive gender bias in the workplace, in private interactions, and in the courtroom. First, situational pressures have a powerful influence on our actions and must be taken into account in combating employment discrimination. A workplace designed for traditional male needs (limited parenting and home responsibilities) will continue to pressure females out of the workplace or childbearing despite formal equality rules. Second, the use of the term “disorder” as a frame for describing persons with an intersex condition may not ...
The Persistence Of Low Expectations In Special Education Law Viewed Through The Lens Of Therapeutic Jurisprduence, Richard Peterson
For more than thirty-five years a paradigm of low expectations has infected efforts to educate children with disabilities and has been a persistent and stubborn obstacle to the successful implementation of the Individuals with Disabilities Education Act (IDEA), and its predecessor, the Education of All Handicapped Children Act (EAHCA). This dilemma raises questions addressed in this paper: What is meant by low expectations in the context of Special Education Law? What are the root causes of this phenomenon, and what makes it so resistant to change? How does it impede implementation of the IDEA? And lastly, in what ways does ...
The 'Next Friends' Suit: Mary Baker Eddy And The Church Of Christ Scientist, On Trial, 2009 Chapman University
The 'Next Friends' Suit: Mary Baker Eddy And The Church Of Christ Scientist, On Trial, Lorin Geitner
Lorin C. Geitner
An examination of the competency trial of Mary Baker Eddy, and its subsequent effects and consequences.