Law Commons^™

Thinking Like Thinkers: Is The Art And Discipline Of An "Attitude Of Suspended Conclusion" Lost On Lawyers?, Donald J. Kochan

Donald J. Kochan

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The …

Procedural Justice Post-9/11: The Effects Of Procedurally Unfair Treatment Of Detainees On Perceptions Of Global Legitimacy, David Welsh

The University of New Hampshire Law Review

[Excerpt] “The Global War on Terror has been ideologically framed as a struggle between the principles of freedom and democracy on the one hand and tyranny and extremism on the other. Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged America’s image both at home and abroad. Throughout the world, there is a growing consensus that America has “a lack of credibility as a fair and just world leader.” The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional …

Utilizing The Past To Shape The Future: The Rehabilitation Of Child Soldiers In Darfur, Michael K. Marriott

Michael K Marriott

Child soldiering, an unfortunate reality of war, has become increasingly common in modern warfare. With world attention focused on the genocide taking place in the Darfur region of Sudan, issues regarding the use of child soldiers in the conflict have come to light. By providing an overview of the use of child soldiers both globally and in Sudan, discussing the relevant legal norms theoretically governing the country and providing a case study on Sierra Leone, this paper ultimately provides an analysis and proposed framework for comprehensive programs that could be put into action after cessation of hostilities in an attempt …

Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd

Reid G. Fontaine

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

If The Shoe Fits They Might Acquit: The Value Of Forensic Science Testimony, Jonathan Koehler

Faculty Working Papers

The probative value of forensic science evidence (such as a shoeprint) varies widely depending on how the evidence and hypothesis of interest is characterized. This paper uses a likelihood ratio (LR) approach to identify the probative value of forensic science evidence. It argues that the "evidence" component should be characterized as a "reported match," and that the hypothesis component should be characterized as "the matching person or object is the source of the crime scene sample." This characterization of the LR forces examiners to incorporate risks from sample mix-ups and examiner error into their match statistics. But how will legal …

Reflexivity In Financial Markets: A Neuroeconomic Examination Of Uncertainty And Cognition In Financial Markets, Steven Pikelny

Senior Projects Spring 2011

Financial markets exist to disperse the risks of an unknown future in an economy. But for this process to work in an optimal fashion, investors – and subsequently markets – must have a way to interpret uncertainty. The investor rationality and market efficiency literature utilizes a methodology inadequate to address this fact, so I supplement it with the perspectives of epistemology, economic sociology, neuroscience, cognitive science, and philosophy of mind. This approach suggests that what is commonly viewed as market “inefficiency” is not necessarily caused by investor irrationality, but rather by the inherent nature of the epistemological problem faced by …

Are We Responsible For Who We Are? The Challenge For Criminal Law Theory In The Defenses Of Coercive Indoctrination And "Rotten Social Background", Paul H. Robinson

All Faculty Scholarship

Should coercive indoctrination or "rotten social background" be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community's shared intuitions of justice support it. The law’s rejection of such defenses suggests that there …

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

All Faculty Scholarship

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …

Gender Inequality In The Law: Deficiencies Of Battered Woman Syndrome And A New Solution To Closing The Gender Gap In Self-Defense Law, Meredith C. Doyle

CMC Senior Theses

Dr. Lenore Walker developed battered woman syndrome to address the issue of domestic violence and to give battered women a defense in situations in which they kill their abusive partners when they are not overtly threatening them. Self-defense law is based on male on male combat. Women are less able to protect themselves in an attack by a man, and so they may preemptively attack their sleeping partners to avoid a situation in which they cannot adequately protect themselves. Battered woman syndrome explains why these battered women act in a way that is irrational to a non-battered person. Walker's theory …

Foreword: Advances In The Behavioral Analysis Of Law: Markets, Institutions, And Contracts, Avishalom Tor

Journal Articles

Avishalom Tor, Special Editor

The collection of articles in this Special Issue is based on an international conference on Advances in the Behavioral Analysis of Law: Markets, Institutions, and Contracts that took place on December 8, 2009 at the University of Haifa Faculty of Law in Israel. The conference addressed cutting-edge legal issues at the intersection of law, economics, and psychology from a diverse set of viewpoints, bringing together scholars engaged in both theoretical and experimental behavioral analyses of law.