Law Commons^™

Jurors Believe Interrogation Tactics Are Not Likely To Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?, Iris Blandon-Gitlin, Kathryn Sperry, Richard Leo

Richard A. Leo

Situational factors – in the form of interrogation tactics – have been reported to unduly influence innocent suspects to confess. This study assessed jurors’ perceptions of these factors and tested whether expert witness testimony on confessions informs jury decision-making. In Study 1, jurors rated interrogation tactics on their level of coerciveness and likelihood that each would elicit true and false confessions. Most jurors perceived interrogation tactics to be coercive and likely to elicit confessions from guilty, but not from innocent suspects. This result motivated Study 2 in which an actual case involving a disputed confession was used to assess the …

The Short, Puzzling(?) Life Of The Civil Union, John G. Culhane

John G. Culhane

In the battle for marriage equality, equal protection has proven to be a more successful strategy than fundamental rights. This outcome is perhaps surprising, given that civil unions arguably afford at least "formal" equality to same-sex couples. Yet the supreme courts of Connecticut and California have emphasized the denial of equality that the difference in names connotes - civil unions or domestic partnerships v. marriage - and therefore have moved dramatically towards real equality. These two courts were the first to declare that sexual orientation is a suspect (California) or quasi-suspect (Connecticut) classification, thereby radically changing the debate and the …

Garcetti In Delaware: New Limits On Public Employees' Speech, Erin Daly

Erin Daly

In 2006, the Supreme Court decided Garcetti v Ceballos, 547 U.S. 410 (2006), which significantly altered the free speech rights of the more than 18 million Americans who are public employees for federal, state or local government. It revised the test it had formerly used for public employee speech and, in so doing, dramatically diminished the scope of their rights. This has significant implications not only for the individuals involved, but for the public at large, and for the praxis of democracy in America: by limiting what public employees can say about their workplaces, the Court has reduced the amount …

Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan

Alice Kaswan

A cap-and-trade program is likely to be a centerpiece of federal climate change legislation. The presence of a national market does not, however, render irrelevant the states’ vital interest in the goals and operation of a national trading program. This Article addresses a first critical question about a state’s role in a federal system: whether federal legislation should allow states to be more stringent than the federal government and to achieve that stringency through controls on stationary sources. This Article reviews the compelling justifications for allowing states to be more stringent. It then assesses particular mechanisms for achieving state stringency …

Applying Litigation Economics To Patent Settlements: Why Reverse Payments Should Be Per Se Illegal, Joshua P. Davis

Joshua P. Davis

One of the most pressing issues in antitrust law is how to assess settlements of patent disputes that involve payments from brand name to generic drug manufacturers. At stake are billions of dollars, both in inflated prices to consumers attempting to meet their medical needs and in exposure to liability for drug manufacturers. This Article applies the economics of dispute resolution to clarify the costs and benefits of various approaches to assessing patent settlements in the context of the Hatch-Waxman Act. It concludes that reverse payments should be banned under a per se rule, unless and until courts are presented …

Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly

James R. May

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …

False Confessions: Causes, Consequences And Implications, Richard A. Leo

Richard A. Leo

In the last two decades, hundred of convicted prisoners have been exonerated by DNA and non-DNA evidence, revealing that police-induced false confessions are a leading cause of the wrongful conviction of the innocent. This article reviews the empirical research on the causes and correlates of false confessions. After looking at the three sequential processes that are responsible for the elicitation of false confessions - misclassification, coercion and contamination - this article reviews the three psychologically distinct types of false confession (voluntary, compliant and persuaded) and then discusses the consequences of introducing false confession evidence in the criminal justice system. The …

Arbitration And Choice: Taking Charge Of The 'New Litigation', Thomas J. Stipanowich

Thomas J. Stipanowich

Despite meaningful efforts to promote better practices and ensure quality among arbitrators and advocates, criticism of American arbitration is at a crescendo. Much of this criticism stems from the fact that arbitration under standard procedures has taken on the trappings of litigation - extensive discovery and motion practice, highly contentious advocacy, long cycle time and high cost. Paradoxically, concerns about the absence of appeal on the merits in arbitration have caused some to craft provisions calling for judicial review for errors of law or fact in awards. It is time to return to fundamentals in American arbitration. Those who seek …

Psychological And Cultural Aspects Of Interrogations And False Confessions: Using Research To Inform Legal Decision-Making, Richard A. Leo, Mark Costanzo, Netta Shaked-Schroer

Richard A. Leo

False confessions are a major cause of wrongful convictions. In many countries, physical abuse and torture are still used to extract confessions from criminal suspects. Cultural orientations such as collectivism and power distance may influence the tendency to confess, and a suspect's past experience in a country that uses physical abuse during interrogations may render suspects fearful and more prone to falsely confess. After looking at interrogations outside the United States, we examine the issue of why false confessions sometime occur in the U.S. legal system. We prove an overview of the stages of a typical interrogation and provide a …

The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian

Maya Manian

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …

Studying Wrongful Convictions: Learning From Social Science, Richard A. Leo, Jon B. Gould

Richard A. Leo

There has been an explosion of legal scholarship on wrongful convictions in the last decade, reflecting a growing concern about the problem of actual innocence in the criminal justice system. Yet criminal law and procedure scholars have engaged in relatively little dialogue or collaboration on this topic with criminologists. In this article, we use the empirical study of wrongful convictions to illustrate what criminological approaches—or, more broadly, social science methods—can teach legal scholars. After briefly examining the history of wrongful conviction scholarship, we discuss the limits of the (primarily) narrative methodology of legal scholarship on wrongful convictions. We argue that …

Constitutional Law And The Future Of Natural Resource Protection, James R. May

James R. May

This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …

Climate Change, Consumption, And Cities, Alice Kaswan

Alice Kaswan

In this article, Professor Kaswan argues that hoped-for greenhouse gas reductions cannot be achieved without reducing consumption. Given their control over land use and buildings, cities can play a key role in reducing consumption. She argues that, while existing federal proposals for a market-based approach could indirectly create incentives that would reduce emissions from transportation and buildings, the invisible hand of the market will not suffice. Nor can the federal government succeed alone. Local and regional governments could play a key practical and institutional role, and many have already initiated greenhouse gas reduction efforts.

Local governments are, however, unlikely to …

Inside Guantanamo, Peter J. Honigsberg

Peter J Honigsberg

In May 2007 I visited Guantanamo Bay, Cuba. What I saw and experienced then are fading away and will soon disappear, now that two-thirds of the nearly 800 detainees have been released and President Obama will close the detention centers within the year. Consequently, this essay provides a historical account of one person's media visit to Guantanamo, when it was a fully-operational prison violating human rights, due process and international law.

The essay describes not only the visit but also the application process -- a bizarre experience. The military's application concluded with two quotes from the New Testament and included …

Money Matters In Marriage: Unmasking Interdependence In Ongoing Spousal Economic Relations, Alicia B. Kelly

Alicia B. Kelly

This Article presents a rare exploration of the interactions among money, marriage and law while the relationship is ongoing. Using insights on the relational landscape from the social sciences as a lens, I examine the law’s regulation of spousal economic relations and its account of and potential impact within a functioning marriage. Building on my previous work, my claim is that the law governing money in marriage should be grounded on a distinctive and clarified model of partnership marriage that understands the relationship to be of equal persons who join forces to share the burdens and benefits of a shared …

Abuse And Discretion: Evaluating Judicial Discretion In Custody Cases Involving Violence Against Women, Dana Harrington Conner

Dana Harrington Conner

This Article is an exploration of the history and creation of the broad power of the custody trial judge, the unsatisfactory standards applied in custody cases involving violence against women, and our system’s inability to adequately review flawed decisions at the appellate level. The Article deconstructs both the process of judicial decision-making at the trial court level in custody cases involving batterers and the standards applied to these cases at the appellate court stage. In addition, the Article also proposes a multi-level approach to resolving the domestic violence dilemma in a custody case.

History confirms that the custody trial judge …

After The Bailout: Regulating Systemic Moral Hazard, Karl S. Okamoto

Karl Okamoto

How do we make our financial world safer? This Article offers a strategy for regulating financial markets to better prevent the kind of disaster we have seen in recent months. By developing a model of risk manager decision-making, this Article illustrates how even “good people” acting in utterly rational and expected ways brought us into economic turmoil.

The assertion of this Article is that the root cause of the current financial crisis is systemic moral hazard. Systemic moral hazard poses a unique challenge in crafting a regulatory response. The challenge lies in that the best response to systemic moral hazard …

Organizational Culture, Professional Ethics, And Guantanamo, Greg Mcneal

Greg McNeal

In this symposium essay I draw attention to the intersection between the social scientific literature on organizational culture and the legal ethics literature. Drawing from the organizational theory literature I detail a framework for assessing organizational culture and explain how organizational culture reflects more than rules and structure within an organization, but rather represents deeper values, practices, and ways of thinking. While organizational culture is difficult to change, it can be modified or sustained through power, status, rewards, and other mechanisms. After establishing a baseline for assessing organizational culture I highlight efforts by the Bush administration to exercise control over …

An Interdisciplinary Framework For Understanding And Cultivating Law Student Enthusiasm, Emily Zimmerman

Emily Zimmerman

Anecdotal evidence abounds about the loss of enthusiasm experienced by law students. Law review articles too note this loss of enthusiasm and the demoralization of law students that occurs during their time in law school. However, although the loss of law student enthusiasm is frequently noted, little has been done to systematically analyze law student enthusiasm. Existing literature does not provide a definition of "law student enthusiasm" or a foundation of theory and research for understanding law student enthusiasm and its significance in legal education.

In an effort to fill the gap in our understanding of law student enthusiasm, this …

Police Paternalism: Community Caretaking, Assistance Searches, And Fourth Amendment Reasonableness, Michael R. Dimino

Michael R Dimino

The Intersection Of Constitutional Law And Environmental Litigation, James R. May

James R. May

The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …

Why I Teach, Amanda Smith

Amanda Sholtis

A Comment On James Grimmelmann’S Saving Facebook, Susan Freiwald

Susan Freiwald

This paper comments on Professor James Grimmelmann’s article Saving Facebook (94 Iowa L. Rev. 1137 (2009) http://http://works.bepress.com/james_grimmelmann/20). provides a useful analysis of the privacy debates surrounding this social networking web site. Grimmelmann provides valuable sociological and psychological material for future legislators to draw on in considering legislative control of Facebook and similar sites. Grimmelmann uses Facebook to provide concrete examples of privacy concerns to build on the more general framework provided by the works of Daniel Solove. The comment does take exception to Grimmelmann’s analysis in several points. Chief among these is Grinnlemann’s lack of evidence in support of his …

The Mature Product Preemption Doctrine: The Unitary Standard And The Paradox Of Consumer Protection, Jean M. Eggen

Jean M. Eggen

The history of the U.S. Supreme Court's product preemption doctrine has been characterized by inconsistency and confusion. Product regulation and common-law product liability actions are primarily concerned with assuring the health and safety of the consuming public, and it is not surprising that the Court's product preemption decisions have focused substantially on medical devices and drugs. Recent government studies have shown, however, that the FDA is hampered in reaching its safety goals by insufficient resources and increasing demands. This article reassesses the Court's product preemption doctrine in the light of a triad of new decisions issued in 2008 and 2009. …

The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo

Emily Ryo

Drawing upon original court records and other previously-unexamined archival materials, this article uncovers the story of one of the earliest reported and documented cases of sex trafficking in American history, United States v. Ah Sou, 138 F. 775 (9th Cir. 1905). Through Ah Sou’s legal challenge, we investigate the development of international human rights norms relevant to sex trafficking and the domestication of those norms in U.S. law. We then examine in detail the remedies presently available for sex trafficking victims and apply those remedies retrospectively to Ah Sou’s case. We conclude that despite the development of the law—both in …

The Pda's Causation Effect: Observations Of An Unreasonable Woman, Michelle A. Travis

Michelle A. Travis

While many scholars rightfully have critiqued the Pregnancy Discrimination Act (“PDA”) as falling short of achieving the ultimate goal of equal employment opportunities for women, this Article reveals one of the PDA’s most important successes. By recognizing pregnant women as a “given” in the workplace, the PDA launched a quiet revolution in the way that judges make causal attributions for adverse employment outcomes. Specifically, the PDA provided judges with the conceptual tools that were needed to help shift causal attributions to an employer, rather than attributing a pregnant woman’s struggles in the workplace to her own decision to become a …

The Usual Suspect Classifications: Criminals, Aliens And The Future Of Same-Sex Marriage, Michael A. Helfand

Michael A Helfand

In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as traits that are in the words of the Supreme Court in Frontiero v. Richardson, mere "accident[s] of birth." In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in …

From False Confession To Wrongful Conviction: Seven Psychological Processes, Richard A. Leo, Deborah Davis

Richard A. Leo

A steadily increasing tide of literature has documented the existence and causes of false confession as well as the link between false confession and wrongful conviction of the innocent. This literature has primarily addressed three issues: the manner in which false confessions are generated by police interrogation, individual differences in susceptibility to interrogative influence, and the role false confessions have played in documented wrongful convictions of the innocent. Although the specific mechanisms through which interrogation tactics can induce false confessions, and through which they can exert enhanced influence on vulnerable individuals have been widely addressed in this literature, the processes …