Law Commons^™

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public …

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

Scholarly Works

We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

Gone In Sixty Milliseconds: Trademark Law And Cognitive Science, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that "Kodak soap" was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to …

Speech And Strife, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai

Faculty Scholarship

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

Scholarly Works

This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision-making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Articles in Law Reviews & Other Academic Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

A Cognitive Theory Of Fiduciary Relationships, Gregory S. Alexander

Cornell Law Faculty Publications

Is there anything special or distinctive about fiduciary relationships? Or is the term "fiduciary" nothing more than a label that obscures rather than clarifies? Recently, several law-and-economics scholars, building on the economic literature on agency costs, have argued that nothing categorically distinguishes fiduciary from nonfiduciary legal relationships. So-called fiduciary relationships, they argue, are nothing more or less than contractual relationships.

This Essay hypothesizes that courts possess a fairly well-developed schema of the fiduciary role, but have not developed a comparable schema for ordinary contracting parties. The fiduciary role-schema often makes courts more likely to over-interpret behavior of fiduciaries than in …

Cognitive Theory And The Selling Of The Flat Tax, Deborah A. Geier

Law Faculty Articles and Essays

In this article, Professor Deborah A. Geier brings to bear the insights of Professor Edward J. McCaffery, regarding the interaction of cognitive theory and the tax world, to the flat tax proposal. The article explores how the perceptual biases described by Professor McCaffery might affect both taxpayers' impressions of the contours of the proposed tax base and their behavioral reponses to the same incentive. The author warns that any errors in her application of Professor McCaffery's work to the flat tax are entirely her own.