Law Commons^™

Big-Box Bullies Bust Benign Buyer Behavior: Wal-Mart, Get Your Hand Off My Receipt!, Victoria S. Salzmann

Victoria S. Salzmann

This Article is a critical analysis of “big-box” store policies that force consumers to hand over their receipts before they are permitted to leave. I argue that, at least in the tort context, the economic power of retail stores has grown beyond the limiting power of the law. To support this theory, I consider a practice I show to be unlawful under settled tort law—store demands for customer receipts. Considering this illegal practice against other unchecked illegalities performed by the superstores, I theorize that economic power is replacing the law as the personal liberty safeguard.

An Inconvenient Truth: Recognizing Andrea Yates Was A Victim Of Spousal Abuse: She Killed Her Children To Save Her Life, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. However, the legal system gives considerably less attention to these latter forms of abuse. One reason for the relative neglect in the area is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. We must consider …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez

mary k ramirez

Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing

Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …

Predicting Law School Success: A Study Of Goal Orientations, Academic Achievement And The Declining Self-Efficacy Of Our Law Students, Leah M. Christensen

Leah M Christensen

This study asked 157 law students to respond to a survey about their learning goals and motivations for learning in law school. The student responses were correlated to different academic variables, including class rank, LSAT scores, undergraduate GPA. Further, the study explored whether any relationships existed between goal orientations (mastery or performance) and law school success (class rank). The results were illuminating: despite the performance-based curriculum of law school, the most successful students were mastery oriented learners. In contrast, there was no statistical correlation between performance-oriented learning and law school success. Further, the LSAT score was the weakest predictor of …

The Kidney Donor Scholarship Act: How College Scholarships Can Provide Financial Incentives For Kidney Donation While Preserving Altruistic Meaning, Jake Linford

Jake Linford

In the United States, lives are lost on a daily basis due to a significant shortfall in the availability of kidneys for transplantation. The current debate over possible solutions has primarily taken place at two theoretical poles—open markets and pure altruism. This article provides a timely and original response, bridging the gulf between the poles by proposing an educational scholarship to encourage kidney donation, and presenting data which indicates that the scholarship incentive may well increase the availability of transplantable kidneys in a way that preserves altruistic donation and mitigates potentially coercive market pressures. In making this case, this article …

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

Social Cognition 'At Work:' Schema Theory And Lesbian And Gay Identity In Title Vii, Todd Brower

todd brower

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military’s “Don’t ask, don’t tell” regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 …

State Actors Beating Children: A Call For Judicial Relief, Deana Ann Pollard Sacks

Deana A Pollard

Controversy over public school corporal punishment is at an all-time high. On August 20, 2008, the Human Rights Watch/ACLU brought public attention to the issue by releasing its report on corporal punishment of children in American public schools. Lawsuits challenging this state action on constitutional grounds continue to be filed, as advocates seeking to ban school paddling refuse to accept that beating students is constitutionally permissible, despite their repeated losses in the federal courts, and the Supreme Court’s refusal to consider the issue again on June 23, 2008. Ignoring the uproar, nearly half of the United States continue to employ …

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

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 …

Exposing The Myth Of Homo Economicus, Ronald J. Colombo

Ronald J Colombo

The prevalence of the "homo economicus" model of humanity has crowded out considerations of important noneconomic aspects of human nature - most importantly, the moral dimension of human thought and conduct. As a result, our understanding of the present ills besetting the business world and the market economy is incomplete, and the policy prescriptions flowing therefrom are often suboptimal (if not counterproductive).

This book review situates "Moral Markets" within this larger debate over human nature generally. I show how, through the presentation of biological evidence and evolutionary theory, "Moral Markets" repudiates the "homo economicus" model of humankind, and supports the …

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 …

Evangelizing Climate Change, Albert Lin

Albert C Lin

Any effective response to climate change must address greenhouse gas (GHG) emissions from individuals, who are responsible for nearly one-third of total annual emissions. A leading proposal for doing so, developed by Michael Vandenbergh and Anne Steinemann, advocates the disclosure of information about an individual’s emissions, resulting harms, and steps that can be taken to reduce emissions. Providing information on individuals’ contribution to climate change will be important in countering common misconceptions that individual activities do not matter to the environment. Such proposals, however, give insufficient attention to the role of personal values. Values matter to efforts to change individual …

Preparing Law Students For Disappointing Exam Results: Lessons From "Casey At The Bat", Grant H. Morris

Grant H Morris

It is a statistical fact of life that two-thirds of the law students who enter law school will not graduate in the upper one-third of their law school class. Typically, those students are disappointed in their examination grade results and in their class standing. Nowhere does this disappointment manifest itself more than in their attitude toward their classes. As students begin law school, they are eager, excited, and willing to participate in class discussion. But after they receive their first semester grade results, many students withdraw from the learning process; they are depressed and disengaged. They suffer a significant loss …

Methinks The Lady Doth Protest Too Little: Reassessing The Probative Value Of Silence, Mikah K. Story Thompson

Mikah K. Story Thompson

This article takes a fresh look at why individuals remain silent in the face of accusations by law enforcement. Traditionally, many courts have found that a defendant’s failure to protest her innocence reflects one of three things: (1) that the defendant has manifested her assent to the accusation by not responding; (2) that the defendant’s silence is a prior statement inconsistent with any testimony proclaiming innocence at trial; or (3) that the silence is substantive evidence of the defendant’s guilt. This article posits that a defendant’s silence actually means very little. Social science research regarding the possible meanings of silence …

The Place Of Storytelling In Legal Reasoning: Abraham Joshua Heschel’S Torah Min Hashamayim, Stefan H. Krieger

Stefan H Krieger

This article reads the teachings of two rabbis from the Second Century through the lenses of cognitive science on legal thinking and shows the relationship of their narratives and legal opinions. Cognitive scientists posit that both logical and narrative thinking are essential modes of cognitive functioning. The stories and legal decisions of Rabbi Akiva and Rabbi Ishmael, as described by Abraham Joshua Heschel in his masterpiece, Torah Min Hashamayim (Heavenly Torah) support these insights. Both rabbis lived in a critical period in Jewish history. The Temple, the central focus of the people’s connection with God, had been destroyed; large numbers …

Against Financial Literacy Education, Lauren E. Willis

Lauren E Willis

The dominant model of regulation in the United States for consumer credit, insurance, and investment products is disclosure and unfettered choice. As these products have become increasingly complex, consumers’ inability to understand them has become increasingly apparent, and the consequences of this inability more dire. In response, policymakers have embraced financial literacy education as a necessary corollary to the disclosure model of regulation. This education is widely believed to turn consumers into “responsible” and “empowered” market players, motivated and competent to make financial decisions that increase their own welfare. The vision is of educated consumers handling their own credit, insurance, …

Testing An Individual Systems Model Of Response Evaluation And Decision (Red) And Antisocial Behavior Across Adolescence, Reid Griffith Fontaine, Chongming Yang, Kenneth A. Dodge, John E. Bates, Gregory S. Pettit

Reid G. Fontaine

This study examined the bidirectional development of aggressive response evaluation and decision (RED) and antisocial behavior across five time-points in adolescence. Participants (n = 522) were asked to imagine themselves behaving aggressively while viewing videotaped ambiguous provocations, and answered a set of RED questions following each aggressive retaliation (administered at Grades 8 and 11 [13 and 16 years]). Self- and mother-reports of antisocial behavior were collected at Grades 7, 9/10, and 12 (12, 14/15, and 17 years). Using structural equation modeling, we found a partial mediating effect at each hypothesized mediational path, despite high stability of antisocial behavior across adolescence. …

When It's So Hard To Relate: Can Legal Systems Mitigate The Trauma Of Victim-Offender Relationships?, Jody L. Madeira

Jody L Madeira

This article argues that, in the aftermath of violent crime, a relationship that is both negative and involuntary can form between crime victims and offenders. This relationship fetters the victim to the crime and the criminal, rendering it difficult to recover from the transgression. To illustrate how such a relationship may form and what consequences it may have for victims, this article uses the Oklahoma City bombing as a case study, documenting through the use of original interviews an involuntary relationship in which victims’ family members and survivors perceived they were tethered to Timothy McVeigh. This perceived relationship with McVeigh …

Asimplify You, Classify You@: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Michael L Perlin

Abstract:

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

1. The need to insure that all children receive adequate education

2. The need to insure that the cure is not worse than the illness (that is, …

Regulation With Placebo Effects, Anup Malani

Anup Malani

There is a growing body of empirical evidence supporting the existence of placebo effects in medical contexts and is suggestive of nontrivial placebo effects in non-medical contexts. This paper reviews the literature on placebo effects, examines the implications for four fields of law (drug approval, informed consent law, consumer protection law, and torts) and suggests future areas for research on placebo effects. Specifically, it make the case for altering the drug approval process to account for, if not credit, placebo effects. It suggests allowing evidence of placebo effects as a defense in cases alleging violations of informed consent or false …

"Nigger": A Critical Race Realist Analysis Of The N-Word Within Hate Crimes Law, Shayne E. Jones, Gregory S. Parks

Shayne E Jones

On a 2005 summer morning, Nicholas “Fat Nick” Minucci (White) beat Glenn Moore (Black) with a baseball bat and robbed him. During the assault, Minucci repeatedly screamed the N-word. At trial, Minucci’s attorney argued that he had not committed a hate crime. The essence of the defense’s argument was that Minucci’s use of the N-word while assaulting and robbing Moore was not indicative of any bias or prejudice. The defense went on to indicate that Minucci had Black friends, was immersed in Black culture, and employed the N-word as part of his everyday vocabulary. Two Black men—Gary Jenkins (hip hop …

Spiritualism And Will(S) In The Age Of Contract, Christopher J. Buccafusco

Christopher J. Buccafusco

Spiritualism was one of the most salient cultural phenomena of late-nineteenth-century American life. The belief of considerable numbers of respectable citizens that they could communicate with the dead via an entranced medium called into question both popular and scientific conceptions of rationality, volition, and freedom. In turn, these changing ideas about the mind challenged American law’s commitment to its belief in free and reasonable legal actors. This Article, the first to consider Spiritualism’s implications for American law, examines the legal reaction to the anxieties Spiritualism generated for the age of contract. Principally, it looks at the judicial response to cases …

The Alien Invasion?, Ediberto Roman

Ediberto Roman

The Alien Invasion? explores the increasingly prevalent undercurrent of xenophobia and nativism appearing both in political circles and major media outlets throughout the nation. Of prime significance to the invasion rhetoric are the arguments that the current wave of immigration is of a volume unprecedented in American history, that it negatively impacts the nation’s economy, and that it puts America’s national security at risk by allowing potential terrorists to permeate our borders. By juxtaposing the substance of such claims with empirical data demonstrating the actual effects of the Latino and Latina immigrant population, The Alien Invasion? seeks to demonstrate that …

Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan S. Masur, John Bronsteen, Christopher Buccafusco

Jonathan S. Masur

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person’s capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Neither Saints Nor Devils: A Behavioral Analysis Of Attorneys' Contingent Fees, Eyal Zamir, Ilana Ritov

Eyal Zamir

The market for legal services, and particularly lawyers’ Contingent Fee (CF) arrangements, have been extensively studied from legal, economic and sociological standpoints, but curiously not from a behavioral perspective. Building on Kahneman and Tversky’s Prospect Theory, this paper presents a series of experiments designed to reveal people’s preferences regarding attorneys’ fees and their perceived fairness.

Contrary to common economic wisdom, we demonstrate that loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients’ preferences for CF. Facing a choice between a mixed “gamble” and a pure positive one, plaintiffs prefer …

Stalking The Walking Wounded: An Empirical Study Of Lawyer Distress, Work Satisfaction, And Decisionmaking Preferences, Susan Daicoff

Susan Daicoff

Abstract: Attorney distress is an empirically-documented phenomenon. Depression and alcoholism, for example, occur among attorneys at about twice the rate found in the general population. Empirical research also suggests that certain personality attributes and decisionmaking preferences distinguish attorneys from the general population. Previous research had investigated the relationship of lawyer dissatisfaction to certain personality attributes and decisionmaking preferences, as well as the relationship of law student distress to values. Focusing on practicing lawyers, this empirical study investigated the relationship between attorney distress, work dissatisfaction, and two decisionmaking preferences. This study found no relationship between the two decisionmaking preferences and attorney …

Law And Biology, Morris B. Hoffman

Morris B. Hoffman

Survey of the impacts of emerging evolutionary and neuroscientific insights into the foundations of law.

Is Today The Day We Free Electroconvulsive Therapy?, Mike Jorgensen

Mike Jorgensen

ABSTRACT IS TODAY THE DAY WE FREE ELECTROCONVULSIVE THERAPY? By Mike E Jorgensen Electroconvulsive Therapy, or “ECT,” has become increasingly more popular to treat certain mental illnesses, especially severe depression and pseudo dementia. The stigma it suffered due to prior barbaric type applications in the past are largely historic, and most medical professionals will agree that ECT is safe today, has very minimal side effects, not inherently abusive, and no long- term detriments. Yet, with the increase in popularity and the safe applications, ECT is still treated archaically under the law and the legislative restraints are causing an indigent, elderly …