Law and Psychology Commons^™

International Human Rights And Comparative Mental Disability Law: The Role Of Institutional Psychiatry In The Suppression Of Political Dissent, Michael L. Perlin

Articles & Chapters

For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons …

Kumho For Clinicians In The Courtroom: Inconsistency In The Trial Courts, Michael L. Perlin

Other Publications

No abstract provided.

Commentary: Mental Health Legislation, Michael L. Perlin

Other Publications

No abstract provided.

You Got No Secrets To Conceal: Considering The Application Of The Tarasoff Doctrine Abroad, Michael L. Perlin

Articles & Chapters

No abstract provided.

The Scientific Shortcomings Of Roper V. Simmons, Deborah W. Denno

Faculty Scholarship

This Article contends that some of the case law and social science research that form the basis for the United States Supreme Court's decision in Roper v. Simmons are insufficient and outdated. The Court also relies heavily upon briefs submitted by the respondent and his amici, in lieu of providing more pertinent citations and analysis that could have enhanced and modernized the Court's arguments. The sparse and sometimes archaic sources for Roper potentially limit the opinion's precedential value. For example, the Court cites Erik Erikson's 1968 book, Identity: Youth and Crisis, to support the view that, relative to adults, juveniles …

A Psychology Of Emotional Legal Decision Making: Revulsion And Saving Face In Legal Theory And Practice, Peter H. Huang, Christopher J. Anderson

Publications

Professor Martha C. Nussbaum is an accomplished scholar in an impressive variety of fields. Drawing on her diverse academic backgrounds, Nussbaum has written extensively about emotions and their importance for law from the perspective of her primary specialty, philosophy. Her book Hiding from Humanity criticizes the roles that two particular emotions, disgust and shame, play in the law. Its central thesis is that, as legal actors, we should be wary of disgust and shame because indulging in those emotions allows us to hide from our humanity - both our humanity in the general sense and also those specific features of …

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

Publications

This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

Against "Academic Deference": How Recent Developments In Employment Discrimination Law Undercut An Already Dubious Doctrine, Scott A. Moss

Publications

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an "academic deference" argument. Citing the importance of their "academic freedom," defendants and sympathetic courts have asserted that federal courts should decline to "invade" higher education with "federal court supervision." Whether or not courts cite the "academic deference" doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that …

The Problems With Blaming, Theodore Y. Blumoff

ExpressO

This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. I synthesize the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s wicked …

Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel

ExpressO

This article is an empirically-based follow-up to a piece I published last year in the Journal of Legal Education entitled, On Collegiality, 54 J. Legal Educ. 406 (2004). It provides insight into the process of conducting empirical research and sets forth some preliminary – yet very intriguing – data and qualitative information gleaned from a survey responded to by more than 1200 law professors nationwide. The survey addressed a wide range of topics related to collegiality and job satisfaction in the legal-academic profession.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

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

ExpressO

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

ExpressO

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

ExpressO

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 …

The 'Abuse Excuse' In Capital Sentencing Trials: Is It Relevant To Responsibility, Punishment, Or Neither?, Paul J. Litton

Faculty Publications

The violent criminal who was a victim of severe childhood abuse frequently appears in the responsibility literature because he presents a difficulty for theorists who maintain the compatibility of causal determinism and our practices of holding persons responsible. The challenge is based on the fact that learning about an offender's horrific childhood mitigates the indignation that many persons feel towards him, possibly indicating that they hold him less than fully responsible. Many capital defendants present evidence of suffering childhood abuse, and many jurors find this evidence to count against imposing death. The most obvious explanation for a response like this …

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

ExpressO

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 …

Technology Wars: The Failure Of Democratic Discourse, Gregory N. Mandel

Michigan Telecommunications & Technology Law Review

Conflicts over the use and regulation of various technologies pervade public discourse and have dramatic implications for the public interest. Controversies over the regulation of genetically modified products, nuclear power, and nanotechnology, among others, provoke some of the most socially and politically volatile debates of our time. These technology conflicts extract a substantial price from society--they create costly inefficiencies, prevent society from optimally managing new technologies, consume vast resources, and retard technological growth. This Article develops a framework for understanding technology controversies, and consequently proposes new means for resolving or ameliorating a variety of seemingly intractable legal and regulatory standoffs. …

Imposing Self-Interest: Behavioural Law And Economics, The Ultimatum Game, And Value Possibilities, Michael Ilg

Dalhousie Law Journal

With the recent emergence of the behavioural approach to law and economics, there is now a systematic critique of law and economics which remains sympathetic to its overall objectives. Rather than seek to undermine traditional law and economics, the intent of the behavioural approach is generally to augment it, and render its formulations more representative of reality. Drawing upon experimental evidence and well-known examples of anomalies within economic theory, behavioural scholars claim that the law needs to better account for instances of individual irrationality. Having identified the situations when rational maximization does not hold, behavioural scholars are then able to …

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

ExpressO

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

ExpressO

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

ExpressO

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 …

Race, Trust, Altruism, And Reciprocity, George W. Dent Jr.

University of Richmond Law Review

No abstract provided.

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

ExpressO

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 …

Psychology, Factfinding, And Entrapment, Kevin A. Smith

Michigan Law Review

Through the entrapment defense, the law acknowledges that criminal behavior is not always the result of a culpable mind, but is sometimes the result of an interaction between the individual and his environment. By limiting the amount of pressure and temptation that undercover agents may bring to bear on a target, the defense recognizes that the ordinary, law-abiding citizen can be persuaded, cajoled, or intimidated into criminal activity that, he would never consider absent law-enforcement interference. Appropriate application of the defense requires, however, that courts be able to accurately separate the truly wicked from the merely weak-willed, and offensively coercive …

Comment: Mental Health Treatment And Mistreatment In Prisons, Joyce Kosak

William Mitchell Law Review

No abstract provided.