Law and Psychology Commons^™

How It Works: Sobriety Sentencing, The Constitution And Alcoholics Anonymous. A Perspective From Aa's Founding Community, Max E. Dehn

ExpressO

This paper analyzes the public health as well as constitutional issues that arise when persons are required by courts to participate in 12-step recovery programs.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

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This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …

Home As A Legal Concept, Benjamin Barros

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This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

The High School Attainment Credit: A Tax Credit Encouraging Students To Graduate From High School, David Richard Hansen

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High school dropouts are a serious problem facing America today. High school dropouts are more likely to be unemployed, earn less money when employed, place a larger burden on the government by requiring public assistance (welfare), and are more likely to be prone to a life of crime and violence than high school completers. While government at all levels continues to focus on schools and teachers in solving the dropout problem, this paper shows how parents are where the focus should lie. This paper proposes a revolutionary tax credit, the High School Attainment Credit (“HSAC”), which would cost-effectively eradicate the …

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

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The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

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This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

The Deep Structure Of Law And Morality, Robin B. Kar

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This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor …

The "Duty" To Be A Rational Shareholder, David A. Hoffman

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How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) "reasonable investor" have considered the disclosures important. As I establish through empirical and statistical testing of 500 cases analyzing the materiality standard, judicial findings of immateriality are remarkably common, and have been stable over time. Materiality's scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a "reasonable investor." Thus, materiality provides an …

Fraud By Hindsight, G. Mitu Gulati, Jeffrey J. Rachlinski, Donald C. Langevoort

Cornell Law Faculty Publications

In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that …

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

What Do Juvenile Offenders Know About Being Tried As Adults? Implications For Deterrence , Richard E. Redding

Working Paper Series

An underlying assumption in the nationwide policy shift toward transferring more juveniles to criminal court has been the belief that stricter, adult sentences will act as either a specific or general deterrent to juvenile crime. With respect to general deterrence - whether transfer laws deter would-be offenders from committing crimes - it is important to examine whether juveniles know about transfer laws, whether this knowledge deters criminal behavior, and whether juveniles believe the laws will be enforced against them. The current study is one of the first to examine juveniles' knowledge and perceptions of transfer laws and criminal sanctions. We …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

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Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Ken Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Flouting The Law, Janice Nadler

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What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust …

In The Minds Of Men: A Theory Of Compliance With The Laws Of War, William C. Bradford

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Whether, and, if so, why states elect to comply with international law are now the most central questions within the international legal academy. A skein of theories has been woven over the last decade to explain and predict state compliance, and a number of factors, including, inter alia, a desire to generate reciprocity, an interest in reducing transaction costs, normative commitments, domestic considerations, the degree of domestic incorporation of international legal regimes, reputational concerns, and fear of punishment, are purported to be causally linked.

However, as the study of international legal compliance ["ILC"] has matured, intramural divisions have been compounded …

International Child Abductions: The Challenges Facing America , Charles F. Hall

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International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Lawyers, Guns And Money: Content Contextualism And The Cognitive Foundations Of Statutory Interpretation, Gary Blasi

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The field of statutory interpretation is one of central importance to both lawyers and judges, perhaps even more central to their daily work than the analysis of appellate opinions. As a field of academic inquiry, however, the field has become rather stagnant and seems now at a stalemate between contending schools of thought, with most siding against the pure forms of textualism sometimes associated with Justice Scalia and arguing for some form of contextualism. What kinds of context should matter is disputed. Thus far, however, scholars have paid remarkably little attention to one crucial contextual factor: What is the statute …

Using Our Brains: What Cognitive Science Teaches About Teaching Law Students To Be Ethical, Professionally Responsible Lawyers, Alan M. Lerner

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Throughout our lives, below the level of our consciousness, each of us develops powerful values, intuitions, expectations, and needs that powerfully affect both our perceptions and our judgments. Placed in situations in which we feel threatened, or which implicate our values, our brains, relying on those implicitly learned, emotionally weighted, memories, can "downshift," to primitive, self-protective problem solving techniques - fight or flight. Because these processes operate below the radar of our consciousness, we react without reflection or the opportunity for interdiction. Thus, it may be that automatic, “emotional” reaction, rather than thoughtful, reasoned analysis leads to our responses to …

Booze, Drugs, And Rock & Roll: Crime During The College Years, Paul S. Gutman

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In this Article, the author examines the predilection of college and university students towards certain types of illegal behaviors. Specifically, the Article considers the widespread instances of drug use, under-age alcohol use, and "file-sharing" using Napster and its progeny. The Article's main focus is on why such illegal behaviors are rampant among college students who might otherwise be

Interpersonal Dynamics, Joshua D. Rosenberg

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This article explains the importance of relationship skills to attorneys. It explains why, despite the significance of these skills to attorneys, law schools and law firms ignore them. It then explains how these skills can be taught in law school, and how a relation al perspective can become not simply an important part of the law, but also an important part of the lives of lawyers. It develops and supports an ap proach that develops the cognitive, behavioral, perceptual and emotional skills and awareness essential to both accurate communication and productive and meaningful relationships. This approach is quite different from …