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Full-Text Articles in Law
Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli
Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli
Faculty Journal Articles and Book Chapters
The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant’s past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. In the usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior. Lawmakers rely on this narrative when they create exceptions. However, this account arguably misses a highly troublesome …
Sex, Marriage, Medicine, And Law: 'What Hope Of Harmony?', Thomas Wm. Mayo
Sex, Marriage, Medicine, And Law: 'What Hope Of Harmony?', Thomas Wm. Mayo
Faculty Journal Articles and Book Chapters
This essay offers a critique of the Kansas Supreme Court's decision in In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), and similar cases that hold that for purposes of the opposite-sex marriage rule, an individual's sex is determined at birth, is genetically fixed, and cannot be changed through surgery or hormone therapy. The result for transgendered individuals is a legal regime that is hostile to medical care that brings external sex characteristics into line with sexual identity. The result for society is a legal rule that is at odds with scientific opinion. Finally, the result for the opposite-sex …
Metaphors Matter: How Images Of Battle, Sports And Sex Shape The Adversary System, Elizabeth G. Thornburg
Metaphors Matter: How Images Of Battle, Sports And Sex Shape The Adversary System, Elizabeth G. Thornburg
Faculty Journal Articles and Book Chapters
Metaphors are not pretty figures of speech; they affect the way people within cultures perceive reality. It is therefore significant that the metaphors most commonly used for the adversary system center on war and sports. This tends to over-emphasize the competitive aspects of litigation and disguise opportunities for more cooperative behavior. This article collects and analyzes those metaphors, and discusses the reasons for their powerful hold on legal culture. It also considers some of the negative effects of the metaphorical system and speculates about whether we could find and nurture alternative metaphors.