Law Commons^™

Precise Punishment: Why Precise Punitive Damage Requests Result In Higher Awards Than Round Requests, Michael Conklin

Michigan Business & Entrepreneurial Law Review

Imagine a setting where someone asks two people what the temperature is outside. The first person says it is 80 °F, while the second person says it is 78.7 °F. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player.

This Article reports …

The "Innocence" Of Bias, Osamudia James

Michigan Law Review

A Review of Biased: Uncovering the Hidden Prejudices that Shapes What We See, Think, and Do. by Jennifer L. Eberhardt.

“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier

Michigan Journal of Gender & Law

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …

Ordinary People And The Rationalization Of Wrongdoing, Janice Nadler

Michigan Law Review

Review of Yuval Feldman's The Law of Good People: Challenging States' Ability to Regulate Human Behavior.

Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao

Michigan Technology Law Review

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages …

Privacy Preserving Social Norm Nudges, Yifat Nahmias

Michigan Technology Law Review

Nudges comprise a key component of the regulatory toolbox. Both the public and private sectors use nudges extensively in various domains, ranging from environmental regulation to health, food and financial regulation. This article focuses on a particular type of nudge: social norm nudges. It discusses, for the first time, the privacy risks of such nudges. Social norm nudges induce behavioral change by capitalizing on people’s desire to fit in with others, on their predisposition to social conformity, and on their susceptibility to the way information is framed. In order to design effective social norm nudges, personal information about individuals and …

Misbehavioral Law And Economics, Jacob Hale Russell

University of Michigan Journal of Law Reform

Many legal rules—ranging from common-law contract doctrines to modern consumer protection regulations—are designed to protect individuals from their own mistakes. But scholars have neglected a core difficulty facing such policies: we humans are a motley bunch, and we are defined in part by our idiosyncrasies. As a result, one person’s mistake is another’s ideal choice. Making matters worse, it is hard to observe when a policy response misfires. If cognitive errors and psychological biases are as prevalent as current research suggests, then we have no reliable way of knowing consumers’ true preferences. So are we always faced with a dilemma, …

Nudge-Proof: Distributive Justice And The Ethics Of Nudging, Jessica L. Roberts

Michigan Law Review

A review of Cass R. Sunstein, The Ethics of Influence: Government in the Age of Behavioral Science.

Digging Into The Foundations Of Evidence Law, David H. Kaye

Michigan Law Review

Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.

The Resilience Of Noxious Doctrine: The 2016 Election, The Marketplace Of Ideas, And The Obstinacy Of Bias, Leonard M. Niehoff, Deeva Shah

Michigan Journal of Race and Law

The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amendment jurisprudence.

The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts …

Implicit Bias In Daily Perceptions And Legal Judgments, Keith B. Maddox, Samuel R. Sommers

University of Michigan Journal of Law Reform

In today’s demonstration, we explored the audience’s positive and negative associations with blacks and whites. The demonstration is an adaptation of the Implicit Association Test (www.projectimplicit.net), a computer-based task designed to explore mental connections between various concepts. Participants were presented with a list of concepts (stereotypically black and white names, pleasant and unpleasant concepts) in a column down the middle of a screen along with the response categories (black/white or Pleasant/Unpleasant) along the left and right sides. When reading a word, participants were asked to categorize it by slapping the knee (left or right) that corresponds to the category displayed …

The Fmla And Psychological Support: Courts Care About "Care" (And Employers Should, Too), Katherine Stallings Bailey

Michigan Law Review

The Family and Medical Leave Act (“FMLA”) recognizes an employee’s right to take leave to care for a qualifying family member. In light of the Act’s remedial nature, the intended scope of the care provision is broad, but its definitional details are sparse. As a result of the attendant interpretive discretion afforded to courts, the Seventh Circuit announced its rejection of the requirement—first articulated by the Ninth Circuit—that care provided during travel be related to continuing medical treatment. A facial analysis of the resulting circuit split fails to appreciate the fundamental difference between the Seventh and Ninth Circuits’ considerations: the …

Criminal Infliction Of Emotional Distress, Avlana K. Eisenberg

Michigan Law Review

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way. In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

Excuses In Exile, Anders Kaye

University of Michigan Journal of Law Reform

Suppose that I have intentionally killed another person and that I have done so without any justification. At first glance, it appears that I am guilty of murder, a very serious crime. Since I am guilty of this very serious crime, the state may inflict a very serious punishment on me—at least many years in prison, if not my whole life or the death penalty. But suppose that one of the following is also true in my case: (A) At the time that I killed my victim, I suffered from a mental disease and, as a result, lacked the substantial …

Tmi? Why The Optimal Architecture Of Disclosure Remains Tbd, Ryan Bubb

Michigan Law Review

We are inundated with disclosures in our daily lives. In one of the more evocative passages in their stimulating new book, More Than You Wanted to Know, Omri Ben-Shahar and Carl E. Schneider imagine a day in the life of someone who actually reads all those disclosures (pp. 95–100). During a commercial on the morning news, the protagonist hits pause on the TiVo to catch the fine print that would otherwise fly by. Breakfast is a slog, requiring close reading of the toaster’s ominous label and the disheartening nutrition facts on the butter and jam. More of the same awaits …

Solitary Confinement, Public Safety, And Recdivism, Shira E. Gordon

University of Michigan Journal of Law Reform

As of 2005, about 80,000 prisoners were housed in solitary confinement in jails and in state and federal prisons in the United States. Prisoners in solitary confinement are generally housed in a cell for twenty-two to twenty-four hours a day with little human contact or interaction. The number of prisoners held in solitary confinement increased 40 percent between 1995 and 2000, in comparison to the growth in the total prison population of 28 percent. Concurrently, the duration of time that prisoners spend in solitary confinement also increased: nationally, most prisoners in solitary confinement spend more than five years there. The …

Aborted Emotions: Regret, Relationality, And Regulation, Jody Lyneé Madeira

Michigan Journal of Gender & Law

Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.” These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with …

Personalizing Default Rules And Disclosure With Big Data, Ariel Porat, Lior Jacob Strahilevitz

Michigan Law Review

This Article provides the first comprehensive account of personalized default rules and personalized disclosure in the law. Under a personalized approach to default rules, individuals are assigned default terms in contracts or wills that are tailored to their own personalities, characteristics, and past behaviors. Similarly, disclosures by firms or the state can be tailored so that only information likely to be relevant to an individual is disclosed and information likely to be irrelevant to her is omitted. The Article explains how the rise of Big Data makes the effective personalization of default rules and disclosure far easier than it would …

Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner

Michigan Journal of Race and Law

Immigration is currently a hot topic; discussion of immigration reform and the problems in our current system appear in the news virtually every day. There is widespread consensus that our current immigration system is “broken,” but there is little agreement on why and even less on what should be done to fix it. These are difficult and important questions, involving many complex interrelated factors. While I do not hope and cannot aim to answer them completely in this Article, I will argue that in doing so we must consider an often overlooked and generally understudied issue: the effects of trauma …

The Transformative Potential Of Attorney Bilingualism, Jayesh M. Rathod

University of Michigan Journal of Law Reform

In contemporary U.S. law practice, attorney bilingualism is increasingly valued, primarily because it allows lawyers to work more efficiently and to pursue a broader range of professional opportunities. This purely functionalist conceptualization of attorney bilingualism, however, ignores the surprising ways in which multilingualism can enhance a lawyer's professional work and can strengthen and reshape relationships among actors in the U.S. legal milieu. Drawing upon research from psychology, linguistics, and other disciplines, this Article advances a theory of the transformative potential of attorney bilingualism. Looking first to the development of lawyers themselves, the Article posits that attorneys who operate bilingually may, …

Isolated Confinement In Michigan: Mapping The Circles Of Hell, Elizabeth Alexander, Patricia Streeter

Michigan Journal of Race and Law

For the past twelve months, there has been a burgeoning campaign to abolish, or greatly reduce, the use of segregated confinement in prisons. Advocates for the campaign call such classifications "solitary confinement" despite the fact that in some states, like New York, prisoners in these cells are often double-celled. The Michigan Department of Corrections, as well as other prison systems, uses labels such as "segregation," "special management," "special housing," and "observation" for these classifications. Prisoners ordinarily use traditional terms, such as "the hole." In this Essay we will refer to such restrictive classifications as "segregation" or "segregated confinement." Our perspective …

The Federal Bureau Of Prisons: Willfully Ignorant Or Maliciously Unlawful?, Deborah Golden

Michigan Journal of Race and Law

The Federal Bureau of Prisons ("BOP") and the larger U.S. government either purposely ignore the plight of men with serious mental illness in the federal prison system or maliciously act in violation of the law. I have no way of knowing which it is. In a complex system comprising many individual actors, motivations are most likely complex and contradictory. Either way, uncontrovertibly, the BOP and the U.S. government, against overwhelming evidence to the contrary, continuously assert that there are no men with serious mental illnesses housed in the federal supermax prison, the Administrative Maximum facility in Florence, Colorado, also known …

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Michigan Journal of Gender & Law

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims ofintimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth. While the situation that gave rise to the battered womens movement in the 1970s is often presumed to …

Is The Prosecution Of War Crimes Just And Effective? Rethinking The Lessons From Sociology And Psychology, Ziv Bohrer

Michigan Journal of International Law

Should perpetrators of genocide, violent acts against civilians during war, or other massive violations of core human rights be punished? International criminal law (ICL) answers this question affirmatively, asserting that the punishment of such atrocities is just and that their effective prosecution can (and should) contribute to the prevention of such future acts. Moreover, an increasing attempt has been made in the international and domestic arenas to act in accordance with these assertions of ICL through the prosecution of war crimes. During the last two decades the role of ICL has become gradually more significant, and the fall of the …

The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Forlik, Linda S. Whitton

University of Michigan Journal of Law Reform

The introduction in 1997 of "substituted judgment" as a guiding principle for guardian decisions was a key contribution of the UPC to guardianship reform. The current UPC Section 5-314(a) instructs guardians to "consider the expressed desires and personal values of the ward" when making decisions and to "at all times ... act in the ward's best interest." This dual mandate for guardian decisions was intended to promote the self-determination interests of incapacitated adults. This Article argues that in practice the standard has failed to achieve this goal. It analyzes the shortcomings of UPC Section 5-314(a) and other statutory decision-making standards …

Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum

Michigan Law Review

A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …

Reform That Understands Our Seniors: How Interdisciplinary Services Can Help Solve The Capacity Riddle In Elder Law, Thomas Richard Stasi

University of Michigan Journal of Law Reform

This Note suggests an interdisciplinary approach to assist in determinations of legal capacity. It also urges an amendment to the Model Rules and current law firm business models, so attorneys can better approach capacity challenges. While this Note does not presume to resolve the problems faced by capacity determinations, the purpose is to offer functional alternatives to the current working models. Part I reviews the Model Rules' treatment of capacity issues, detailing attorneys' conflicting ethical duties and the ambiguous methodology for capacity evaluations. Part II examines the customary processes that attorneys presently follow for seeking diagnostic evaluations and highlights their …

When Coercion Lacks Care: Competency To Make Medical Treatment Decisions And Parens Patriae Civil Commitments, Dora W. Klein

University of Michigan Journal of Law Reform

The subject of this Article is people who have been civilly committed under a state's parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This …

Property's Morale, Nestor M. Davidson

Michigan Law Review

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

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 …