Law Commons^™

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

All Faculty Scholarship

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the …

Pride & Property: An Interdisciplinary Analysis Of Their Symbiotic Relationship, Donald J. Kochan

Donald J. Kochan

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 …

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 …

Feeling Another's Pain: Sympathy And Psychology Saga Style, William I. Miller

Articles

Progress is hardly a given in the humanities or the suspect sciences. In many ways we are not quite as astute as our grandparents, and they not as much as theirs, and so forth in an infinite entropic regress. Would I trade Montaigne or Stendhal’s psychological acumen for even the best work that comes from social psychology departments? In this short essay I want to show just how good some medieval people, medieval Icelanders to be exact, were at understanding the mental and emotional states of others, and if of others then presumably, though not necessarily, also of themselves. And …

Maggots And Morals: Physical Disgust Is To Fear As Moral Disgust Is To Anger, Spike W. S. Lee, Phoebe C. Ellsworth

Book Chapters

No abstract provided.

Appraisal Theory: Old And New Questions, Phoebe C. Ellsworth

Articles

I describe my current thinking on two old questions—the causal role of appraisals and the relationship of appraisal theories to basic emotions theories and constructivist theories, and three (sort of) new questions—the completeness of appraisals, the role of language, and the development of automaticity in emotional responses.

Tiger Cub Strikes Back: Memoirs Of An Ex-Child Prodigy About Legal Education And Parenting, Peter H. Huang

Publications

I am a Chinese American who at 14 enrolled at Princeton and at 17 began my applied mathematics Ph.D. at Harvard. I was a first-year law student at the University of Chicago before transferring to Stanford, preferring the latter's pedagogical culture. This Article offers a complementary account to Amy Chua's parenting memoir. The Article discusses how mainstream legal education and tiger parenting are similar and how they can be improved by fostering life-long learning about character strengths, emotions, and ethics. I also recount how a senior professor at the University of Pennsylvania law school claimed to have gamed the U.S. …

Building Resilience In Foster Children: The Role Of The Child's Advocate, Frank E. Vandervort, James Henry, Mark A. Sloane

Articles

This Article provides an introduction to, and brief overview of trauma, its impact upon foster children, and steps children's advocates" can take to lessen or ameliorate the impact of trauma upon their clients. This Article begins in Part 11 by defining relevant terms. Part III addresses the prevalence of trauma among children entering the child welfare system. Part IV considers the neurodevelopmental (i.e., the developing brain) impact of trauma on children and will explore how that trauma may manifest emotionally and behaviorally. With this foundation in place, Part V discusses the need for a comprehensive trauma assessment including a thorough …

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 …

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

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

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

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

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

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

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

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 …

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 …

Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang

Publications

No abstract provided.

Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas

All Faculty Scholarship

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child …

Risk Realization, Emotion, And Policy Making, Chris Guthrie

Vanderbilt Law School Faculty Publications

In their study of terrorism and SARS, Professor Feigenson and his colleagues report "significant positive correlations between people's risk perceptions and their negative affect." In their review of the judgment and decision-making literature, Professor Slovic and his colleagues document the interplay between reason and emotion in assessing risk. And in the context of a soldier's concerns for himself and his family, Professor Moran provides a powerful narrative of fear. But what happens when such threats are actually realized? Do we accurately predict the emotional impact of such events? Or are there meaningful and predictable differences between the feelings we forecast …

Shedding A Tear, William I. Miller

Articles

The tale that follows is also one of great gender anxiety, and it is true.

Law, Self-Pollution, And The Management Of Social Anxiety, Geoffrey P. Miller

Michigan Journal of Gender & Law

This article considers the anxieties about masturbation and spermatorrhoea from the standpoint of cultural-legal analysis. Seen from this perspective, the worries about masturbation provided an object onto which social anxieties could be displaced and thereby managed. Norm entrepreneurs who played on public fears manipulated basic cultural polarities in order to present masturbation and spermatorrhoea as objects of horror and disgust-things that needed to be expelled, if possible, from the body social.

Not Interaction But Melding - The "Russian Dressing" Theory Of Emotions: An Explanation Of The Phenomenology Of Emotions And Rationality With Suggested Related Maxims For Judges And Other Legal Decision Makers, Peter Brandon Bayer

Scholarly Works

Even after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and justice.

The project of truly apprehending emotions, however, requires more than appreciating that they play a crucial role in …

Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang

Publications

This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.

Sentimental Stereotypes: Emotional Expectations For High-And Low-Status Group Members, Larissa Z. Tiedens, Phoebe C. Ellsworth, Batja Mesquita

Articles

Three vignette studies examined stereotypes of the emotions associated with high- and low-status group members. In Study 1a, participants believed that in negative situations, high-status people feel more angry than sad or guilty and that low-status people feel more sad and guilty than angry. Study 1b showed that in response to positive outcomes, high-status people are expected to feel more pride and low-status people are expected to feel more appreciation. Study 2 showed that people also infer status from emotions: Angry and proud people are thought of as high status, whereas sad, guilty, and appreciative people are considered low status. …

The Anatomy Of Disgust In Criminal Law, Dan M. Kahan

Michigan Law Review

My goal in this review is to call attention to a defect in the dominant theories of criminal law and to identify a resource for remedying it. The defect is the absence of a sophisticated account of how disgust does and should influence legal decisionmaking. The corrective resource is William Miller's The Anatomy of Disgust. To make my claims more vivid, consider two stories. Both involve men who were moved to kill by disgust toward homosexuality.

Dangers Of Monetary Commensurability: A Psychological Game Model Of Contagion, Peter H. Huang

Publications

No abstract provided.

Ann Arbor, December 1997, William I. Miller

Articles

In a journal entry from Dec 1997, Miller describes his daily thoughts and activities. He recalls watching "Beauty and the Beast," contemplating his views on sex and being sick during the Christmas season.