Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Mental health (32)
- Behavior (24)
- Emotions (17)
- Crimes (14)
- Insanity (14)
-
- Decision-making (13)
- Juries (13)
- Empirical studies (12)
- Psychiatry (11)
- History (10)
- Law reform (10)
- Michigan (10)
- Victims (10)
- Decision making (9)
- Defenses (9)
- Excuses (9)
- Mental illness (9)
- Crimes of passion (8)
- Discrimination (8)
- Guilt (8)
- Homicide (8)
- Justification (8)
- Provocation (8)
- Trials (8)
- Bias (7)
- Punishment (7)
- Capacity (6)
- Verdicts (6)
- Competency (5)
- Due process (5)
- Publication Year
Articles 31 - 60 of 169
Full-Text Articles in Law
Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert
Proposal To Reverse The View Of A Confession: From Key Evidence Requiring Corroboration To Corroboration For Key Evidence, Boaz Sangero, Mordechai Halpert
University of Michigan Journal of Law Reform
Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present Article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction, is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in …
Sticky Metaphors And The Persistence Of The Traditional Voluntary Manslaughter Doctrine, Elise J. Percy, Joseph L. Hoffman, Steven J. Sherman
Sticky Metaphors And The Persistence Of The Traditional Voluntary Manslaughter Doctrine, Elise J. Percy, Joseph L. Hoffman, Steven J. Sherman
University of Michigan Journal of Law Reform
This Article begins with a curious puzzle: Why has the traditional voluntary manslaughter doctrine in criminal law-the so-called "heat of passion" defense to a charge of murder-proven so resistant to change, even in the face of more than a half-century of seemingly compelling empirical and normative arguments in favor of doctrinal reform? What could possibly account for the traditional doctrine's surprising resilience? In this Article, we propose a solution to this puzzle. The Article introduces a new conceptual theory about metaphor-the "sticky metaphor" theory-that highlights an important aspect of metaphorical language and metaphorical thought that has been almost completely overlooked …
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.
Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine
Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine
University of Michigan Journal of Law Reform
For a number of reasons, including the complicated psychological makeup of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been the justificatory versus excusatory nature of the defense. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate how common law heat of passion may apply in instances in which there is no actual provocation or …
The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg
The Values Of Interdisciplinarity In Homicide Law Reform, Robert Weisberg
University of Michigan Journal of Law Reform
Professor Reid Fontaine's article, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, makes a convincing case for treating heat of passion wholly as an excuse not a justification, as the only sensible way to comprehend its various forms. In doing so, Professor Fontaine stimulates further thinking about heat of passion doctrine, along two dimensions.
Unjustified: The Practical Irrelevance Of The Justification/Excuse Distinction, Gabriel J. Chin
Unjustified: The Practical Irrelevance Of The Justification/Excuse Distinction, Gabriel J. Chin
University of Michigan Journal of Law Reform
In recent decades, the distinction between justification and excuse defenses has been a favorite topic of theorists of philosophy and criminal law. Notwithstanding the impressive intellectual efforts devoted to the task, no single scholar or viewpoint appears to be on the verge of generating practical consensus about the concepts of justification and excuse, categorization of the defenses, or categorization of difficult individual cases. This Essay suggests that none of these goals can be usefully advanced through the justification/excuse distinction.
Misunderstanding Provocation, Samuel H. Pillsbury
Misunderstanding Provocation, Samuel H. Pillsbury
University of Michigan Journal of Law Reform
Provocation is and always has been a compromise rule whose success depends on its ability to appeal to all ideological constituencies, and therefore will always-as long as it lasts-resist the final categorization that this question seeks. As long as provocation involves an inquiry into reasonableness, it will include considerations of justification. As long as it provides for mitigation of punishment based on the difficulty of resisting temptations to violence inspired by strong emotion, it will speak to considerations of excuse.
How Not To Argue That Reasonable Provocation Is Not An Excuse, Peter K. Westen
How Not To Argue That Reasonable Provocation Is Not An Excuse, Peter K. Westen
University of Michigan Journal of Law Reform
Reid Fontaine draws two conclusions regarding the partial defense to murder of reasonable provocation-one regarding its substantive content, the other regarding its formal classification…. I agree with both of Fontaine's two conclusions, and, indeed, I have previously written to that effect. Unfortunately, while I agree with Fontaine's conclusions, I do not think he adequately supports them.
On Passion's Potential To Undermine Rationality: A Reply, Reid Griffith Fontaine
On Passion's Potential To Undermine Rationality: A Reply, Reid Griffith Fontaine
University of Michigan Journal of Law Reform
This Reply is organized into several sections. Following the Introduction, I respond to my six distinguished commentators. In Section II, I consider Professor Chin's concern that the distinction between justification and excuse bears no practical relevance for the criminal law. In Section III, I respond to Professor Baron's argument that reasonable mistake of fact is consistent with justification-a view, she observes, that is generally reflected in the criminal law. Building on the discussion of whether mistake and justification are compatible, Section IV addresses Professor Pillsbury's treatment of heat of passion as a hybrid defense that uniquely incorporates components of both …
The Provocation Defense And The Nature Of Justification, Marcia Baron
The Provocation Defense And The Nature Of Justification, Marcia Baron
University of Michigan Journal of Law Reform
In this Essay, I evaluate the evidence of "adequate nonprovocation” that Fontaine puts forward to show that the heat of passion defense is decidedly an excuse (more precisely, a partial excuse). I will be focusing my remarks on the traditional heat of passion defense.
The Irreducibly Normative Nature Of Provocation/Passion, Stephen J. Morse
The Irreducibly Normative Nature Of Provocation/Passion, Stephen J. Morse
University of Michigan Journal of Law Reform
I agree with Professor Fontaine that provocation/passion is best interpreted as a partial excuse, but the ground for my conclusion is normative and not analytic. Indeed, I fear that he has not made the analytic case in large part because he begs a question about failed justifications that has only a normative and not an analytic answer. This Essay first briefly provides my own understanding of provocation/ passion. In the course of doing so, I address Professor Fontaine's argument that provocation/passion should also be applied to people with provocation interpretational bias. I then turn to why Fontaine's case for …
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 …
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Uncertainty Revisited: Legal Prediction And Legal Postdiction, Ehud Guttel, Alon Harel
Michigan Law Review
Legal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than …
Lawyer As Emotional Laborer, Sofia Yakren
Lawyer As Emotional Laborer, Sofia Yakren
University of Michigan Journal of Law Reform
Prevailing norms of legal practice teach lawyers to detach their independent moral judgments from their professional performance-to advocate zealously for their clients while remaining morally unaccountable agents of those clients' causes. Although these norms have been subjected to prominent critiques by legal ethicists, this Article analyzes them instead through the lens of "emotional labor," a sociological theory positing that workers required to induce or suppress feeling in order to sustain the outward countenance mandated by organizational rules face substantial psychological risks. By subordinating their personal feelings and values to displays of zealous advocacy on behalf of others, lawyers, too, may …
The Choice To Limit Choice: Using Psychiatric Advance Directives To Manage The Effects Of Mental Illness And Support Self-Responsibility, Breanne M. Sheetz
The Choice To Limit Choice: Using Psychiatric Advance Directives To Manage The Effects Of Mental Illness And Support Self-Responsibility, Breanne M. Sheetz
University of Michigan Journal of Law Reform
Psychiatric advance directives are a valuable tool for individuals with mental illnesses. Ulysses directives, in particular, allow individuals to bind themselves to treatment in advance of needing it for the purpose of overcoming illness-induced refusals. This Note evaluates the effectiveness of state advance directive statutes in three areas that are especially important for Ulysses directives: defining competency to execute, activate, and revoke directives; waiving the constitutional right to refuse treatment; and encouraging provider compliance. This Note ultimately advocates for other states to adopt provisions similar to a Washington State statute. The Washington statute authorizes Ulysses directives by allowing advance consent …
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
Michigan Law Review
While they often rely on the threat of penalties to produce deterrence, legal systems rarely use the promise of rewards. In this Article, we consider the use of rewards to motivate director vigilance. Measures to enhance director liability are commonly perceived to be too costly. We, however demonstrate that properly designed reward regimes could match the behavioral incentives offered by negligence-based liability regimes but with significantly lower costs. We further argue that the market itself cannot implement such a regime in the form of equity compensation for directors. We conclude by providing preliminary sketches of two alternative reward regimes. While …
Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt
Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt
University of Michigan Journal of Law Reform
The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to …
The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller
The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller
Michigan Law Review
Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …
Something Must Be Done: An Argument For The Partial Deregulation Of Research On Bipolar Disorder And The Implementation Of Rolling Informed Consent, Janalee S. Kraschnewski
Something Must Be Done: An Argument For The Partial Deregulation Of Research On Bipolar Disorder And The Implementation Of Rolling Informed Consent, Janalee S. Kraschnewski
University of Michigan Journal of Law Reform
Bipolar disorder (BD) cripples the lives of countless individuals across the globe. The healthcare community has had difficulty securing effective, long-term treatment for this disease. This Note argues that enlarging the pool of possible research subjects through partial deregulation of BD research would facilitate the development of better treatment. This Note further proposes the implementation of a system of rolling informed consent to ensure that actual and full consent is obtained from BD research subjects.
To Err Is Human, Keith A. Rowley
To Err Is Human, Keith A. Rowley
Michigan Law Review
There are many kinds of mistakes. One kind-a rational, well-intended act or decision resulting in unanticipated, negative consequences-was the focus of Allan Farnsworth's previous foray into the realm of legal angst. Another kind-an act or decision prompted by an inaccurate, incomplete, or uninformed mental state and resulting in unanticipated, negative consequences- is the subject of the present book. Like its predecessor, Alleviating Mistakes does not confine itself to contract law, Farnsworth's home turf; it explores criminal, tort, restitution, and other areas of substantive law as well. As such, it paints on too large a canvas to capture its entirety in …
Technology Wars: The Failure Of Democratic Discourse, Gregory N. Mandel
Technology Wars: The Failure Of Democratic Discourse, Gregory N. Mandel
Michigan Telecommunications & Technology Law Review
Conflicts over the use and regulation of various technologies pervade public discourse and have dramatic implications for the public interest. Controversies over the regulation of genetically modified products, nuclear power, and nanotechnology, among others, provoke some of the most socially and politically volatile debates of our time. These technology conflicts extract a substantial price from society--they create costly inefficiencies, prevent society from optimally managing new technologies, consume vast resources, and retard technological growth. This Article develops a framework for understanding technology controversies, and consequently proposes new means for resolving or ameliorating a variety of seemingly intractable legal and regulatory standoffs. …
Psychology, Factfinding, And Entrapment, Kevin A. Smith
Psychology, Factfinding, And Entrapment, Kevin A. Smith
Michigan Law Review
Through the entrapment defense, the law acknowledges that criminal behavior is not always the result of a culpable mind, but is sometimes the result of an interaction between the individual and his environment. By limiting the amount of pressure and temptation that undercover agents may bring to bear on a target, the defense recognizes that the ordinary, law-abiding citizen can be persuaded, cajoled, or intimidated into criminal activity that, he would never consider absent law-enforcement interference. Appropriate application of the defense requires, however, that courts be able to accurately separate the truly wicked from the merely weak-willed, and offensively coercive …
Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring
Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring
University of Michigan Journal of Law Reform
The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood. The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize …
Two Standards Of Competency Are Better Than One: Why Some Defendants Who Are Not Competent To Stand Trial Should Be Permitted To Plead Guilty, Jason R. Marshall
Two Standards Of Competency Are Better Than One: Why Some Defendants Who Are Not Competent To Stand Trial Should Be Permitted To Plead Guilty, Jason R. Marshall
University of Michigan Journal of Law Reform
This Note argues that the present uniform standard of competency, competence to stand trial, be abolished in favor of two standards: competence to stand trial and competence to plea bargain. Part I traces the history of the competency standard by exploring its common law origins, the Supreme Court rulings that frame the debate, an academic reformulation of the competency inquiry, and the interests protected by requiring that defendants be competent to proceed through the criminal process. Part II contrasts the cognitive abilities, capacity to communicate with counsel, and courtroom behavior of defendants standing trial with those qualities required of defendants …
The Illusion Of Law: The Legitimating Schemas Of Modern Policy And Corporate Law, Ronald Chen, Jon Hanson
The Illusion Of Law: The Legitimating Schemas Of Modern Policy And Corporate Law, Ronald Chen, Jon Hanson
Michigan Law Review
This Article is about some of the schemas and scripts that form and define our lives. It is about the knowledge structures that shape how we view the world and how we understand the limitless information with which we are always confronted. This Article is also about the "evolution of ideas" underlying corporate law and all of modern policymaking. It is about the ways in which schemas and scripts have influenced how policy theorists, policymakers, lawyers, and many others (particularly in the West) understand and approach policymaking generally and corporate law specifically. It is about both the invisibility and blinding …
Breaking The Camel's Back: A Consideration Of Mitigatory Criminal Defenses And Racism-Related Mental Illness, Camille A. Nelson
Breaking The Camel's Back: A Consideration Of Mitigatory Criminal Defenses And Racism-Related Mental Illness, Camille A. Nelson
Michigan Journal of Race and Law
This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent …
Regret Theory - Explanation, Evaluation And Implications For The Law, Grant B. Gelberg
Regret Theory - Explanation, Evaluation And Implications For The Law, Grant B. Gelberg
University of Michigan Journal of Law Reform
This Note discusses regret theory, which offers an alternative explanation of rational behavior in risky or uncertain situations. Unlike traditional law and economics, which is based on expected utility theory, regret theory posits that individuals either rejoice or experience regret after making a decision, and that the anticipation of these feelings influences choices ex ante. In recent years, studies have shown the robustness of regret theory, particularly when individuals compare action to inaction, in disparate feedback environments, and when decisional agency is altered. These, and other factors, influence regret theory's impact on litigant behavior, as well as on the …
In Light Of Reason And Experience: Against A Crime Fraud Exception To The Psychotherapist-Patient Privilege, Catherine Thompson Dobrowitsky
In Light Of Reason And Experience: Against A Crime Fraud Exception To The Psychotherapist-Patient Privilege, Catherine Thompson Dobrowitsky
University of Michigan Journal of Law Reform
This Note argues against the adoption of a crime fraud exception to the federal psychotherapist-patient privilege. Part I argues that the restrictive legal elements of the privilege adequately exclude fraudulent or criminal statements from protection. Part II addresses the needed distinction between the dangerous patient exception and the crime fraud exception to the psychotherapist-patient privilege and concludes that the adoption of a crime fraud exception would threaten a limited dangerous patient exception. Part III contends that the policies underlying the attorney-client and psychotherapist-patient privileges must be distinguished and do not merit a shared crime fraud exception. This Note concludes that …
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 …