Law Commons^™

Anti-Speech Acts And The First Amendment, Richard K. Sherwin

Articles & Chapters

In many states today, there are laws on the books designed to protect the legitimacy and fairness of elections by barring the knowing or reckless dissemination of demonstrably false statements. Regulating this kind of deliberate deception protects the public against the erosion of First Amendment freedoms – such as the freedom to think and express one’s own thoughts and to meaningfully deliberate in an electoral process free from deliberate efforts to flood the zone of public discourse with confusion and mistrust based on deliberate and provable falsehoods. Some of these regulations, however, have been successfully challenged on First Amendment grounds. …

It’S Not Complicated: Containing Criminal Law’S Influence On The Title Ix Process, Margaret B. Drew

Faculty Publications

Title IX processes that address campus sexual assault are undergoing dramatic changes in structure as well as in review. After receipt of the Department of Education’s 2011 “Dear Colleague” letter, colleges and universities were impelled to review how their institutions were implementing Title IX. From website information through decision making on alleged violations, the ways in which higher education addresses federally guided changes is a matter of national conversation. This essay addresses change in light of campus sexual assault allegations, and does not explicitly address other forms of Title IX complaints, such as athletic funding and opportunities. This essay will …

Monroe Freedman And The Morality Of Dishonesty: Multidimensional Legal Ethics As A Cold War Imperative, Norman I. Silber

Hofstra Law Review

This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as …

Property, Duress, And Consensual Relationships, David Blankfein-Tabachnick

Michigan Law Review

Professor Seana Valentine Shiffrin has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin’s previous rigorous, careful, and morally sensitive work spans contract law, intellectual property, and the freedoms of association and expression. Speech Matters is in line with Shiffrin’s signature move: we ought to reform our social practices and legal and political institutions to, in various ways, address or accommodate moral values—here, a stringent moral prohibition against lying, a strident principle of promissory fidelity, that is, the principle that one ought to keep one’s promises, and the general value of veracity. The book …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Peter R. Reilly

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin F. Marceau

Sturm College of Law: Faculty Scholarship

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the …

Lies And Their Protection: A Comparison Of The Right To Lie About Receiving A Military Honor In The United States And Canada, Marilyn N. Harvey

University of Miami International and Comparative Law Review

No abstract provided.

Tactics Of Political Lying: The Iguanas Affair, Brian Martin

Faculty of Law, Humanities and the Arts - Papers (Archive)

Political lying recurrently becomes a major issue in the media. Audience members seldom have first-hand information and hence rely on media stories to assess claims. Although background information may not be available, the tactics used by key players are more likely to be reported. Two models for analysing tactics are introduced, one based on methods of deception, detection and response, the other based on methods to reduce or increase outrage over something perceived to be wrong. Each model is applied to claims and counterclaims concerning the behaviour of two Australian politicians. Most of the tactics used in the case study …

Using Brain Imaging For Lie Detection: Where Science, Law, And Policy Collide, Daniel D. Langleben, Jane Campbell Moriarty

Jane Campbell Moriarty

Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or …

Investigative Deceit, Kevin C. Mcmunigal

Faculty Publications

Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series …

The Criminalization Of Lying: Under What Circumstances, If Any, Should Lies Be Made Criminal?, Bryan H. Druzin, Jessica Li

Bryan H. Druzin

This paper argues that lying should be a crime. In doing so we propose the creation of a wholly new category of crime, which we term “egregious lying causing serious harm.” The paper has two broad objectives: the first is to make the case why such a crime should even exist, and the second is to flesh out how this crime might be constructed. The main contribution of the paper lies in the radical nature of its stated aim: the outright criminalization of certain kinds of lies. To our knowledge, such a proposal has not previously been made. The analysis …

Sincerity And Reason Giving: When May Legal Decision-Makers Lie?, Mathilde Cohen

Mathilde Cohen

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald C. Peters

UF Law Faculty Publications

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …

Lying And Lawyering: Contrasting American And Jewish Law, Steven Resnicoff

College of Law Faculty

Can desirable ends justify what would otherwise be undesirable means? The answers to this question depends on a variety of factors, including the ends to be accomplished, the means to be employed, the person who would use them, and the parties against whom they would be directed. This article begins by discussing American rules regarding lying by lawyers. The article argues that those rules place insufficient importance on the protection of innocents, have a corrosive effect on the moral values of lawyers who obey them and alienate lawyers who disobey them. The article then examines the Jewish law approach which, …

The Professional And The Liar, Richard H. Underwood

Law Faculty Scholarly Articles

Many individuals in society think that all lawyers are liars. Some think lawyers are allowed to lie. Regrettably, some American lawyers apparently think so too. In the United States there has been, and continues to be, a troubling lack of professional consensus when it comes to litigating a case. Indeed, lawyers who are neither corrupt nor insensitive have been accused of arguing that the elicitation of false testimony, and the use of it, is a professional responsibility. Fairness also calls for some acknowledgment that even the most cunning, zealous, and successful of trial lawyers have agonized over such moral choices. …

The Professional And The Liar, Richard H. Underwood

Kentucky Law Journal

No abstract provided.

Lying To Protect Privacy, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Lies And Law, Robert F. Nagel

Publications

No abstract provided.

Trends. Clinton/Lewinsky, Star Chambers, The Starr Report: E Pluribus Unum Or E Uno Plures?, Ibpp Editor

International Bulletin of Political Psychology

The author discusses the effect of lying on the presidency and impeachment.

To The Best Of My Recollection: Memory Malingerers And Congressional Testimony, Ibpp Editor

International Bulletin of Political Psychology

This article (1) describes some common concepts of clinical research on memory malingering and (2) advocates the heuristic value of these concepts for political committees seeking to devise methods that elicit truthful statements from individuals providing testimony.

Truth Verifiers: From The Hot Iron To The Lie Detector, Richard H. Underwood

Kentucky Law Journal

No abstract provided.

Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher

Faculty Scholarship

George Jones's ordeal was the product of, and in turn sheds light upon, police practices of investigating crimes and writing reports. Written police reports of criminal incidents and arrests give details such as the time, place, and nature of criminal conduct; the names and addresses of victims and witnesses; physical characteristics of the perpetrator(s) or arrestee(s); weapons used; property taken, recovered, or seized from the arrestee; and injuries to persons and property. Through their reports, the police "have fundamental control over the construction of [the] 'facts' for a case, and all other actors (the prosecutor, the judge, the defense lawyer) …

The Privacy Rights Of Rape Victims In The Media And The Law, Panel Discussion, Helen Benedict

Fordham Law Review

No abstract provided.

Lying: Moral Choice In Public And Private Life, Michigan Law Review

Michigan Law Review

A Review of Lying: Moral Choice in Public and Private Life by Sissela Bok

Criminal Law - Contradictory Statements Under Oath As Grounds For Perjury In The Federal Courts, Richard M. Adams S.Ed.

Michigan Law Review

Perjury has frequently been described as one of the more difficult convictions to obtain, and the truth of this saying is no better illustrated than in the case of Harvey Matusow. During the two years in which ex-Communist Matusow served as a professional government witness, he accused 180 or more persons as being members of the Communist Party or Communist sympathizers. This same witness has now described himself as a "habitual and perpetual liar" and has publicly admitted that all of his previous testimony was false. On the strength of this recantation, motions were filed for a new trial in …