Law Commons^™

Adulthood In Law And Culture, Vivian E. Hamilton

Faculty Publications

Young people today come of age in a cultural and economic milieu that prolongs their attainment of the traditional markers of adulthood. Their subjective conceptions of the transition to adulthood also depart radically from the traditional conception, with its emphasis on discrete transition events (including marriage and entry into the workforce). Instead, the modern transition to adulthood is a gradual process comprising the acquisition of general capabilities, rather than the achievement of externally constructed events. The state-established age of legal majority stands in marked contrast to this gradual and prolonged process. Not only does it categorically establish the inception of …

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Cornell Law Faculty Publications

The neuroscience of empathy provides one more reason to believe that the decision to sentence another human being to death is inevitably an arbitrary one, and one that cannot be divorced from either race or caprice. While we can tinker with aspects of capital trials that exacerbate caprice and discrimination stemming from empathy, we cannot alter basic neural responses to the pain of others and therefore cannot rationalize (in either sense of the word) empathic responses.

Taking Charge 2016: A Study Of The Strategic Budgeting Priorities Of The Residents Of Lincoln, Nebraska, Lisa M. Pytlikzillig, Addison Fairchild

Lisa PytlikZillig Publications

This report presents the results of the 2016 Taking Charge initiative sponsored by the City of Lincoln. This initiative included an online survey and a half-day, face-to-face, Community Conversation. Most previous Taking Charge activities have focused more narrowly on the immediate concerns of an impending budget proposal (e.g. which specific programs should be funded or discontinued to maintain a balanced budget). This year’s efforts also focused on specific items relevant to the City’s future budget policy priorities. As usual, residents were also given the opportunity to rate the City’s performance and City officials on a variety of performance characteristics.

A …

Law, Responsibility, And The Sciences Of The Brain/Mind, Stephen J. Morse

All Faculty Scholarship

This chapter is a submission to the Oxford Handbook of Law and the Regulation of Technology edited by Roger Brownsword. It considers whether the new sciences of the brain/mind, especially neuroscience and behavioral genetics, are likely to transform the law’s traditional concepts of the person, agency and responsibility. The chapter begins with a brief speculation about why so many people think these sciences will transform the law. After reviewing the law’s concepts, misguided challenges to them, and the achievements of the new sciences, the chapter confronts the claim that these sciences prove that we are really not agents and that …

Trending @ Rwu Law: Deborah Johnson's Post: Implicit Bias And The Law: 04/12/2016, Deborah Johnson

Law School Blogs

Also available @ http://law.rwu.edu/blog/implicit-bias-and-law

Popularizing Hearsay, Justin Sevier

Scholarly Publications

No abstract provided.

Adverse Childhood Experiences In The New Mexico Juvenile Justice Population, Yael Cannon, George Davis, Andrew Hsi, Alexandra Bochte

Georgetown Law Faculty Publications and Other Works

Faculty from the University of New Mexico (UNM) School of Law and the UNM School of Medicine, and New Mexico’s Children, Youth and Families Department (CYFD) initiated a joint project to look at the prevalence of Adverse Childhood Experiences (ACEs) nationally and in New Mexico. The study was intended to better establish the association between early childhood trauma and delinquency, as well as to explore the role that law and medicine can play in ensuring better health and juvenile justice outcomes for children who have experienced ACEs.

Current Issues In Therapeutic Jurisprudence, David Wexler

Articles & Chapters

No abstract provided.

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

Helping Our Students Reach Their Full Potential: The Insidious Consequences Of Stereotype Threat, Russell A. Mcclain

Faculty Scholarship

No abstract provided.

The Death Penalty And Mental Illness In International Human Rights Law, Richard Wilson

Articles in Law Reviews & Other Academic Journals

Introduction: This symposium primarily focuses on the extraordinary legal and personal saga of one man, Joe Giarratano, his decades-long heroic struggle to overturn his death sentence and, ultimately, to obtain his release and exoneration. Prior to the conference, my only acquaintance with the Giarratano case was the decision in Murray v. Giarratanol-the U.S. Supreme Court decision holding that the Sixth Amendment right to appointed counsel does not extend to the post-conviction stages of death penalty litigation. The symposium provided a much broader perspective on the saga of Joe Giarratano, whose own legal skills parallel those of the many lawyers involved …

Measuring Older Adult Confidence In The Courts And Law Enforcement, Joseph A. Hamm, Lindsey E. Wylie, Eve M. Brank

Department of Psychology: Faculty Publications

Older adults are an increasingly relevant subpopulation for criminal justice policy but, as yet, are largely neglected in the relevant research. The current research addresses this by reporting on a psychometric evaluation of a measure of older adults’ Confidence in Legal Institutions (CLI). Confirmatory factor analysis (CFA) provided support for the unidimensionality and reliability of the measures. In addition, participants’ CLI was related to cynicism, trust in government, dispositional trust, age, and education, but not income or gender. The results provide support for the measures of confidence in the courts and law enforcement, so we present the scale as a …

Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate Bloch, Jeffery Gould

Faculty Scholarship

No abstract provided.

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Love, Anger, And Lawyering, Deborah J. Cantrell

Publications

This essay explores how mindfulness practices helped one lawyer, now legal scholar, explore the roles of love and anger in lawyering.

Countering The Plaintiff’S Anchor: Jury Simulations To Evaluate Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson, David Yokum

Sturm College of Law: Faculty Scholarship

Numerous studies have shown that the amount of a juror's damages decision is strongly affected by the number suggested by the plaintiffs attorney, independent of the strength of the actual evidence (a psychological effect known as "anchoring"). For scholars and policymakers, this behavior is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). One noted paper even concluded that "the more you ask for, the more you get. " Others believe that the damage demand must pass the "straight-face" test because outlandishly high demands will diminish credibility and risk …

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

Had To Be Held Down By Big Police: A Therapeutic Jurisprudence Perspective On Interactions Between Police And Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

It is a truism that the largest mental health facilities in the nation are the nation’s largest urban jails. Most of the predictable solutions that are offered to curb the influx of individuals with mental illness into jails -- especially those that urge the loosening of civil commitment standards and the return to large psychiatric institutions -- are dreary at best, unconstitutional at heart, and mean-spirited at worst. However, we pay remarkably little attention to one of the primary causes of this reality: the decisionmaking processes "on the street" by police officers who choose to apprehend and arrest certain cohorts …

Behind The Nylon Curtain: Social Cohesion, Law, And The Disaggregation Of American Culture, Rebecca Roiphe, Doni Gewirtzman

Articles & Chapters

No abstract provided.

"Mr. Bad Example": Why Lawyers Need To Embrace Therapeutic Jurisprudence To Root Out Sanism In The Representation Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

Litigants with mental disabilities are taken less seriously by their own lawyers, trivialized by opposing counsel, and disparaged by judges. This is largely a result of “sanism,” an irrational prejudice of the same quality and character of other irrational prejudices such as racism, sexism or homophobia. Recognizing and combatting sanism creates extra burdens on lawyers who do seek to provide effective counsel for this population. Such lawyers need special tools to combat sanism, and we believe that lawyering skills rooted in therapeutic jurisprudence provide the best foundation through which to create a positive psychology of persuasion in this representation. Our …

In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch

Articles & Chapters

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to …

A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Meta-Mindfulness: A New Hope, Peter H. Huang

Publications

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the …

The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference.

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the …

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

Scholarly Works

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

Scholarly Works

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 …

Modest Retributivism, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Predicting The Knowledge–Recklessness Distinction In The Human Brain, Iris Vilares, Michael J. Wesley, Woo-Young Woo-Young Ahn, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen J. Morse, Gideon Yaffe, Terry Lohrenz, Read Montague

All Faculty Scholarship

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria.

We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those …

Adolescent Sex Offender Registration Policy: Perspectives On General Deterrence Potential From Criminology And Developmental Psychology, Cynthia J. Najdowski, H. M. Cleary, M. C. Stevenson

Psychology Faculty Scholarship

Sex offender registration policies have expanded rapidly, now extending to adolescent offenders across the nation. Policies mandating registration are based, in part, on arguments that registration is needed to prevent dangerous sex offenders from committing additional offenses and that risk of registration deters would-be offenders from offending in the first place. Research suggests that registration does not serve the former specific deterrent function for adolescents, but less is known regarding the latter goal of general deterrence. The disciplines of criminology and developmental psychology both offer important theoretical perspectives, but these frameworks have yet to be applied to this unique context. …

Your Corrupt Ways Had Finally Made You Blind: Prosecutorial Misconduct And The Use Of Ethnic Adjustments In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

Articles & Chapters

In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court's decision in Atkins v. Virginia, some prosecution experts have begun using so-called "ethnic adjustments" to artificially raise minority defendants' IQ scores, making such defendants-who would otherwise have been protected by Atkins and, later, by Hall v. Florida-eligible for the death penalty. Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. He relied further on epigenetics to demonstrate that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores, and …