Law and Psychology Commons^™

Development And Confirmatory Factor Analysis Of The Community Norms Of Child Neglect Scale, Rebecca Goodvin, David R. Johnson, Sam A. Hardy, Michelle Graef, Jeff M. Chambers

Center on Children, Families, and the Law: Faculty Publications

This article describes the development of the Community Norms of Child Neglect Scale (CNCNS), a new measure of perceptions of child neglect, for use in community samples. The CNCNS differentiates among four subtypes of neglect (failure to provide for basic needs, lack of supervision, emotional neglect, and educational neglect). Scenarios ranging in seriousness for each subtype were presented to a large community sample (N = 3,809). Confirmatory factor analyses indicated that a four-factor model provided a better fit to the data than did a model specifying only one overall neglect factor, suggesting this sample distinguished among the four subtypes of …

The Andrea Yates Case: Insanity On Trial, Phillip J. Resnick

Cleveland State Law Review

On June 20, 2001, Andrea Yates drowned each of her five children in her bathtub. The nation struggled to understand how a loving mother could systematically kill her children in apparent cold blood. No crime evokes more intense feelings than a mother killing her own children. There was extraordinary media coverage of her trial in Houston, Texas in 2002. Her defense attorneys, George Parnham and Wendell Odom entered a defense of not guilty by reason of insanity (NGRI) to multiple counts of first degree murder with death penalty specifications. The 2002 trial jury verdict of guilty was overturned on appeal. …

Psychiatric Restraint And Seclusion: Resisting Legislative Solution, Stacey A. Tovino

Scholarly Works

The use of restraint and seclusion in the American psychiatric setting has a rich history—rich in medical, ethical, legal, and social controversy. For centuries, mental health care providers used movement restrictions and solitary confinement to manage psychiatric patients. Superintendents of eighteenth and early nineteenth century insane asylums and other institutions of confinement believed that strait-waistcoats, “tranquilizer chairs,” “maniac beds,” chains, shackles, and “quiet rooms” deescalated agitation and promoted self-control. Reforms beginning in the nineteenth century helped make some psychiatric institutions more humane, in part because staff members were trained to find ways to calm potentially violent patients without imposing holds …

Imaging Body Structure And Mapping Brain Function: A Historical Approach, Stacey A. Tovino

Scholarly Works

Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical …

The Curious Incident Of The Law Firm That Did Nothing In The Night-Time, Nancy B. Rapoport

Scholarly Works

This essay argues that organizations (here, the Milbank, Tweed law firm) often ignore obviously bad behavior by their employees because of various psychological and sociological factors that prevent them from recognizing the behavior as bad in the first place.

The In-Between Places Where Children Are Socialized, Anne Dailey

Faculty Articles and Papers

In Between Home and School, Professor Rosenbury makes a splendid contribution to the emerging legal scholarship on the influence of cultural contexts on children's socialization. Scholars in this field have begun to study the effects on children of the media, peer relationships, civic institutions, and early caregiving environments. Professor Rosenbury's is a bold new voice in this genre offering a normative paradigm of space to replace the traditional dyadic model of state-parent authority over children. At the heart of the spatial paradigm is the view that in-between spaces socialize children in ways that differ both procedurally and substantively from the …

Interviewing Suspected Victims Of Child Maltreatment, Bette L. Bottoms, A R. Perona, E Sorenson, Cynthia J. Najdowski

Psychology Faculty Scholarship

No abstract provided.

Functional Neuroimaging And The Law: Trends And Directions For Future Scholarship, Stacey A. Tovino

Scholarly Works

Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation, and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging.

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

Scholarly Works

The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin

Articles & Chapters

No abstract provided.

International Human Rights And Comparative Mental Disability Law: The Universal Factors, Michael L. Perlin

Articles & Chapters

An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.

These are the factors …

Inside The Bankruptcy Judge's Mind, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich

Cornell Law Faculty Publications

In this paper, we extend our prior work on generalist judges to explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges. In one prior study of bankruptcy judges, Ted Eisenberg reported evidence suggesting that bankruptcy judges, like generalist judges, are susceptible to the "self-serving" or "egocentric" bias when making judgments. Here, we report evidence showing that bankruptcy judges are vulnerable to anchoring and framing effects, but appear largely unaffected by the omission bias, a debtor's race, a debtor's apology, and "terror management" or "mortality salience."'

Because …

Of Apples And Trees: Adoption And Informed Consent, Ellen Wertheimer

Working Paper Series

This article argues that the doctrine of informed consent should apply to the process of adopting a child. There is substantial evidence that all adopted children are at higher risk of learning disabilities and mental health problems than nonadopted children. The article first summarizes the social science evidence demonstrating these risks and discusses some of the reasons why more extensive studies have not yet been done. The article then turns to the law of informed consent as created and applied in the contexts of medicine and law, and concludes that informed consent doctrine should apply to the process of adoption. …

The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller

Michigan Law Review

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding

Working Paper Series

Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. “Irresistible impulse” (or “control”) tests, on the other hand, provide an insanity defense to those who …

Legal Construct Validation: Expanding Empirical Legal Scholarship To Unobservable Concepts, David S. Goldman

ExpressO

This article contends that many of the fundamental concepts of law (such as justice, incentives, and deterrence) are not directly measurable, and have, therefore, been largely ignored by empirical legal scholarship. Fortunately, other social sciences have confronted this same obstacle and have developed methods with which to empirically assess these intangible concepts. I propose that the concept of construct validation, which has been developed in the psychology subfield of psychometrics, can be adapted to law to measure these unobservable traits. To adapt construct validation to law, empirical legal scholars must 1) develop generalized theories, 2) infer multiple hypotheses from these …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

The Group Dynamics Theory Of Executive Compensation, Michael B. Dorff

ExpressO

The corporate governance debate has focused recently on executive compensation. While defenders of the status quo assert that CEO compensation – and corporate governance generally -- is efficient, critics contend that boards have been captured by powerful CEOs who demand excessive pay unconditioned on their performance. Both sides argue that the evidence garnered from CEO compensation justifies their positions on legal reform of corporate governance as a whole. Defenders of the status quo argue that the system works well as is, as demonstrated by the enormous success of U.S. corporations. Critics concerned about managerial power propose reforms that will increase …

Understanding Farmers’ Forecast Use From Their Beliefs, Values, Social Norms, And Perceived Obstacles, Qi Hu, Lisa M. Pytlikzillig, Gary Lynne, Alan Tomkins, William J. Waltman, Michael Hayes, Kenneth Hubbard, Ikrom Artikov, Stacey Hoffman, Donald A. Wilhite

Lisa PytlikZillig Publications

Although the accuracy of weather and climate forecasts is continuously improving and new information retrieved from climate data is adding to the understanding of climate variation, use of the forecasts and climate information by farmers in farming decisions has changed little. This lack of change may result from knowledge barriers and psychological, social, and economic factors that undermine farmer motivation to use forecasts and climate information. According to the theory of planned behavior (TPB), the motivation to use forecasts may arise from personal attitudes, social norms, and perceived control or ability to use forecasts in specific decisions. These attributes are …

Understanding The Influence Of Climate Forecasts On Farmer Decisions As Planned Behavior, Ikrom Artikov, Stacey Hoffman, Gary Lynne, Lisa M. Pytlikzillig, Q. Steven Hu, Alan Tomkins, Kenneth Hubbard, Michael Hayes, William J. Waltman

Lisa PytlikZillig Publications

Results of a set of four regression models applied to recent survey data of farmers in eastern Nebraska suggest the causes that drive farmer intentions of using weather and climate information and forecasts in farming decisions. The model results quantify the relative importance of attitude, social norm, perceived behavioral control, and financial capability in explaining the influence of climate-conditions information and short-term and long-term forecasts on agronomic, crop insurance, and crop marketing decisions. Attitude, serving as a proxy for the utility gained from the use of such information, had the most profound positive influence on the outcome of all the …

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

The (Boundedly) Rational Basis Of Trademark Liability: Reconciling The Federal Trademark Dilution Act And The Lanham Act, Jeremy Sheff

ExpressO

The confusion that has accompanied the effort to graft a dilution remedy onto federal trademark law has sown deep uncertainty about the remedy's proper scope and purpose. This confusion is an outgrowth of the peculiar history of dilution theory in the development of trademark law, and the resulting tension between uniqueness-based theories of dilution and theories based on free-riding concerns. This Article takes the position that the current conceptual framework for trademark liability is misguided. By focusing its analysis on consumer beliefs about the relationship between a mark and a manufacturer, current trademark doctrine is ignoring a far more persuasive …

Forgotten Racial Equality: Implicit Bias, Decision-Making And Misremembering, Justin D. Levinson

ExpressO

This Article argues that judges and jurors unknowingly propagate racism through their legal decisions because they misremember case facts in implicitly biased ways. Such an argument bridges discourse in implicit social cognition, memory studies, and legal decision-making. Social cognition research indicates that implicit racial biases are automatic, pervasive, and often operate without conscious awareness. Memory studies demonstrate that memory errors are meaningful and systematic, and are often facilitated by stereotypes. Decision-making theory teaches that memory errors can not only affect the results of individual decision-making processes, but also that group deliberations are unlikely to resolve these errors. The author argues …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

The Purpose Of Child Support, Ira M. Ellman

ExpressO

What is the appropriate amount of child support to require in particular cases? How should we take account, if at all, of subsequent events such as either parent’s remarriage? It seems obvious that the answers to such questions ought to turn on our purpose in requiring support payments in the first place. But while fixing the amount of child support can be politically contentious, and has attracted the attention of partisans on both sides of the gender gap, the literature contains no systematic examination of support rules in light of their underlying policy purpose. This article fills that gap. It …

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff

ExpressO

Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.