Law Commons^™

In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt

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Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, …

Talking Back In Court, M. Eve Hanan

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No abstract provided.

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

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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 …

Mediator Burnout, Lydia Nussbaum

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Being a mediator is hard work Mediators must make meaningful connections with individuals without over-stepping bounds of impartiality, manage emotions without becoming emotionally invested, and empower decision-making without undermining self-determination. Decades of research into occupational stress, also known as "burnout," indicates that mediators not only are susceptible to burnout, but also that the symptoms of burnout undermine fundamental principles of quality mediation. For example, a burned-out mediator may exhibit narrow and uncreative thinking, diminished capacity to regulate emotions, compromised decision-making, and deficits in attention and memory.

The prospect of mediator burnout not only threatens the quality of mediation, but it …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

The Danger Zone: How The Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness, Sara Gordon

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Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and …

Inattentional Blindness: Psychological Barriers Between Legal Mandates And Progress Toward Workplace Gender Equality, Rachel J. Anderson

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This Article uses a law and psychology approach to identify ways to strengthen the administration of justice in the corporate workplace. Essentially, a better understanding of human behavior provides insights that are useful in crafting effective laws and improving the implementation of existing laws. The analysis of perception gaps due to inattentional blindness uncovers an under-theorized factor contributing to an enduring problem. Part I sets out the workforce crisis at the individual, company, national, and international levels and the role of gender inequality in this crisis and the pace of change. Part II discusses perception gaps among demographic groups as …

Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf

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This Article explores the ways children, many of whom are in foster care, are psychologically harmed by the law’s failure to ensure that the bonds they have with their siblings-of-origin are not permanently broken when one of the siblings is adopted; it therefore proposes ways that courts can better protect children from the psychological harm of having a biological sibling permanently removed from their life. It suggests that what is needed is a framework that allows visitation by biological siblings with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of the adoptive parents at issue …

All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon

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We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various …

Psychology And Effective Lawyering: Insights For Legal Educators, Jean R. Sternlight, Jennifer K. Robbennolt

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Psychology-the science of how people think, feel and behave-has a great deal to teach about a range of core competencies related to working with people and making good decisions. For example, psychologists have conducted extensive research into perception, memory, communication, individual and group decision-making, conflict, goal setting and planning, self-assessment, motivation, "grit," and many other matters that are central to effective lawyering. This research has much to contribute to an understanding of the work of lawyers and can be effectively incorporated into how we teach law students to practice law.

The Dsm-5: Implications For Health Law, Stacey A. Tovino

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In May 2013, the American Psychiatric Association released the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). Among other changes, the DSM-5 includes new entries for hoarding disorder and premenstrual dysphoric disorder as well as a reclassified entry for gambling disorder. Using these changes as examples, this Article examines the implications of the DSM-5 for key issues in health law, including health insurance coverage, public and private disability benefit eligibility, and disability discrimination protection. As a descriptive matter, this Article illustrates how the addition of new disorders and the reclassification of existing disorders in the DSM-5 …

What Jurors Want To Know: Motivating Juror Cognition To Increase Legal Knowledge & Improve Decisionmaking, Sara Gordon

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What do jurors want to know? Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision. But like all people, jurors who are asked to analyze information in a trial—even jurors who consciously want to reach a fair and accurate verdict—are unconsciously influenced by their internal goals and motivations. Some of these motives are specific to individual jurors; for instance, a potential juror with a financial interest in a case would be excluded from the jury pool. But other motivations, like the motive to understand the law …

The Sincerest Form Of Flattery: Examples And Model-Based Learning In The Law School Classroom, Terrill Pollman

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Responding to a changing landscape of law practice, law schools are searching for ways to structure the classroom experience and broader curriculum to promote more efficient and better learning outcomes. Although imitation, modeling, and the use of examples have become pre-eminent features of modern legal education, these pedagogies have remained largely unexamined. This article shows the power of teaching with examples in both the traditional and legal writing classroom, as well as how skillfully to limit the use of such pedagogy for maximum effect. Specifically, this article applies the findings of cognitive load research and composition theory to show that …

The Client Who Did Too Much, Nancy B. Rapoport

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Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

Behavioral Legal Ethics, Jean R. Sternlight, Jennifer K. Robbennolt

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Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. It is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical …

What Cognitive Dissonance Tells Us About Tone In Persuasion, Kathryn M. Stanchi

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This Article takes the first step in thinking about where good advocacy should draw the line between zeal and coercion. Legal advocates differ about how to navigate that line.' Is the best service to the client to be found in the most aggressive, strongest, hard-line approach? Or is a more tempered, reasonable approach most likely to produce the best results?

This Article looks at cognitive science for guidance on this question. One cognitive process that seems to be integral to tone is cognitive dissonance, a concept I will explain in Part II. I then take a close look at two …

Book Review: "Gustav Shpet’S Contribution To Philosophy And Cultural Theory", Francis J. Mootz Iii

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The author reviews Gustav Shpet’s Contribution to Philosophy and Cultural Theory edited by Galin Tihanov. The volume provides a comprehensive introduction to the significance of the Russian philosopher Gustav Shpet (1879-1937) in the development of phenomenology, hermeneutics, semiotics, literary theory, psychology, and cultural criticism.

Further Support For Mental Health Parity Law And Mandatory Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

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In this Article, I provide additional support for my recent proposal* to extend federal mental health parity law and mandatory mental health and substance use disorder benefits to all public healthcare program beneficiaries and private health plan members. I begin by examining health-related doctrine outside the context of mental health insurance law, including disability discrimination law, civil rights and human rights law, health information confidentiality law, healthcare reform law, and child and adult health and welfare law, and I find that not one of these laws provides inferior legal protections or benefits for individuals with mental illness. I also analyze …

All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Stacey A. Tovino

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This Article is the second, and most important, installment in a three-part series that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness. The basic impetus for this historical, medical, and legal project is a belief that there exists no rational or consistent method of distinguishing physical and mental illness in the context of health insurance law. The first installment in this series narrowly inquired as to whether a particular set of disorders, the postpartum mood disorders, are or should be classified as physical or mental illnesses in a range of health law contexts.* This second …

A Proposal For Comprehensive And Specific Essential Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

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This Article analyzes the initial efforts of the Federal Department of Health and Human Services to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, …

Reforming State Mental Health Parity Law, Stacey A. Tovino

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This Article is the final installment in a three-part project that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness in the context of health insurance. The first installment in this series narrowly inquired as to whether the postpartum mood disorders should be classified as physical or mental illnesses in a range of health law contexts, including the context of health insurance. The second installment was broader in scope and challenged a number of federal provisions that allow publicly- and privately-funded health care programs and plans to provide mental health insurance benefits that are less comprehensive …

The Power Of Priming In Legal Advocacy: Using The Science Of First Impressions To Persuade The Reader, Kathryn M. Stanchi

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The contribution of this Article is the synthesis of legal advocacy and the psychological studies of priming. It shows advocates how priming can help them make better strategic decisions in their briefs and gives specific examples of different ways to use priming in persuasive writing. Part I defines the basic concept of priming and gives examples of different ways that priming works. Part II begins the application of the priming studies to law. The focus of Part II is on priming the reader's emotional response through theme and story. It also examines how emotions can impact decision making in unexpected …

Scientific Understandings Of Postpartum Illness: Improving Health Law And Policy?, Stacey A. Tovino

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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 …

Discrimination Redefined, Ann C. Mcginley

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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 …

Lessons From Enron - And Why We Don't Learn From Them, Nancy B. Rapoport

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This article discusses why even the smartest of people can make boneheaded decisions, and it suggests that the only way to avoid future Enrons is to take into account the cognitive mistakes that humans tend to make.

Good Lawyers Should Be Good Psychologists: Insights For Interviewing And Counseling Clients, Jean R. Sternlight, Jennifer Robbennolt

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To work effectively with clients, witnesses, judges, mediators, arbitrators, experts, jurors, and other lawyers, attorneys must have a good understanding of how people think and make decisions, and must possess good people skills. Yet, law schools have tended to teach very little, directly, about human behavior, and current critiques of legal education do not focus on the importance of psychological insights to attorneys. In particular, lawyers and legal education have not taken full advantage of the great strides that have been made in the field of scientific psychology in recent decades. Similarly, psychologists are not doing as much as they …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

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Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

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This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

The Impact Of Neuroscience On Health Law, Stacey A. Tovino

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Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

Playing With Fire: The Science Of Confronting Adverse Material In Legal Advocacy, Kathryn M. Stanchi

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The Article seeks to use the science to determine what treatment of adverse information is most beneficial to the client's position. A careful study of the science reveals that, overall, it is advantageous for the advocate to volunteer negative information and rebut it early, and that a direct and in-depth confrontation of negative information is generally more effective than an indirect and cursory treatment.

A close look at the finer points of the data, however, reveals that the question of disclosure is a complicated one. Therefore, legal advocates should learn about the research findings and the theories underlying the research …