Legal Theory Commons^™

I Share, Therefore It's Mine, Donald J. Kochan

Donald J. Kochan

The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …

Is Evolutionary Analysis Of Law Science Or Storytelling?, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

In recent years, some legal scholars have argued that legal scholarship could benefit from a greater reliance on theories of human behavior that arise from biological evolution. These scholars contend that reliance on biological evolution would successfully combine the rigor of economics with the scientific aspects of psychology. Complex legal systems, however, are uniquely human. Law has always been the product of cognitive processes that are unique to humans and that developed as a response to an environment that no longer exists. Consequently, the evolutionary development of the cognitive mechanisms upon which law depends cannot be rigorously modeled or studied …

The Uncertain Psychological Case For Paternalism, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Antisocial Personality Disorder And Therapeutic Justice Court Programs, Andrew Cannon, Rebekah Doley, Claire Ferguson, Nathan Brooks

Rebekah Doley

It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have antisocial personality disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the wellbeing of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing drug courts, or …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

Are People Probabilistically Challenged? Book Review Of Daniel Kahneman, Thinking, Fast And Slow (2011), Alex Stein

Alex Stein

Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and policymaker interested in behavioral economics. Thus far, behavioral economists did predominantly experimental work that uncovered discrete manifestations of people’s bounded rationality: representativeness, availability, anchoring, overoptimism, base-rate neglect, hindsight bias, loss aversion, and other misevaluations of probability and utility. This work has developed no causal explanations for these misevaluations. Kahneman’s book takes the discipline to a different level by developing an integrated theory of bounded rationality’s causes and characteristics. This theory holds that humans use two distinct modes of reasoning, intuitive (System 1) and deliberative (System …

Examining The Links Between Therapeutic Jurisprudence And Mental Health Court Completion, Allison D. Redlich, Woojae Han

Allison D Redlich

Research demonstrates that mental health courts (MHCs) lead to improved outcomes compared to traditional criminal court processes. An underlying premise of MHCs is therapeutic jurisprudence (TJ). However, no research, to our knowledge, has examined whether MHC outcomes are predicted by TJ principles as theorized. In the present study, we examined whether principles measured at the onset of MHC enrollment (knowledge, perceived voluntariness, and procedural justice) predicted MHC completion (graduation). Using structural equation modeling with MHC participants from four courts, a significant, direct relationship between TJ and MHC completion was found, such that higher levels of TJ were associated with higher …

Examining The Links Between Therapeutic Jurisprudence And Mental Health Court Completion, Allison D. Redlich, Woojae Han

Woojae Han

Research demonstrates that mental health courts (MHCs) lead to improved outcomes compared to traditional criminal court processes. An underlying premise of MHCs is therapeutic jurisprudence (TJ). However, no research, to our knowledge, has examined whether MHC outcomes are predicted by TJ principles as theorized. In the present study, we examined whether principles measured at the onset of MHC enrollment (knowledge, perceived voluntariness, and procedural justice) predicted MHC completion (graduation). Using structural equation modeling with MHC participants from four courts, a significant, direct relationship between TJ and MHC completion was found, such that higher levels of TJ were associated with higher …

Voices In The Beyond: Judicial Psychology And Citizens United, Kirby Farrell

kirby farrell

Abstract: A psychological analysis of the Supreme Court’s controversial Citizens United decision finds the concept of agency or personhood conflicted in its use by the majority. Some conservative justices in this and some other decisions, including Voting Rights enforcement (2006) and death penalty jurisprudence, have positioned authority and the voices of affected “persons” in the beyond: that is, in an abstract or metaphysical zone wherein reasoning cannot follow or be held responsible.

Deleuze & Guattari And Minor Marxism, Eugene W. Holland

Eugene W Holland

This paper suggests a version of Marxism - a minor Marxism - derived from Deleuze & Guattari's political philosophy.

Webs Of Faith As A Source Of Reasonable Disagreement, Gregory Brazeal

Gregory Brazeal

Contemporary political theorists and philosophers of epistemology and religion have often drawn attention to the problem of reasonable disagreement. The idea that deliberators may reasonably persist in a disagreement even under ideal deliberative conditions and even over the long term poses a challenge to the common assumption that rationality should lead to consensus. This essay proposes a previously unrecognized source of reasonable disagreement, based on the notion that an individual's beliefs are rationally related to one another in a fabric of sentences or web of beliefs. The essay argues that an individual's beliefs may not form a single, seamless web, …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd

Reid G. Fontaine

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …

New Developments In Developmental Research On Social Information Processing And Antisocial Behavior, Reid G. Fontaine

Reid G. Fontaine

The Special Section on developmental research on social information processing (SIP) and antisocial behavior is here introduced. Following a brief history of SIP theory, comments on several themes—measurement and assessment, attributional and interpretational style, response evaluation and decision, and the relation between emotion and SIP—that tie together four new empirical investigations are provided. Notable contributions of these studies are highlighted.

In Self-Defense Regarding Self-Defense: A Rejoinder To Professor Corrado, Reid G. Fontaine

Reid G. Fontaine

This is a rejoinder to Professor Corrado in the upcoming special section of the American Criminal Law Review on the nature, structure, and function of self-defense and defense of others law.

Does Response Evaluation And Decision (Red) Mediate The Relation Between Hostile Attributional Style And Antisocial Behavior In Adolescence?, Reid G. Fontaine

Reid G. Fontaine

The role of hostile attributional style (HAS) in antisocial development has been well-documented. We analyzed longitudinal data on 585 youths (48% female; 19% ethnic minority) to test the hypothesis that response evaluation and decision (RED) mediates the relation between HAS and antisocial behavior in adolescence. In Grades 10 and 12, adolescent participants and their parents reported participants’ antisocial conduct. In Grade 11, participants were asked to imagine themselves in videotaped ambiguous-provocation scenarios. Segment 1 of each scenario presented an ambiguous provocation, after which participants answered HAS questions. In segment 2, participants were asked to imagine themselves responding aggressively to the …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

Law Without Disgust: A Fetid Freedom, Matthew Jordan Cochran

Matthew Jordan Cochran

Martha Nussbaum has attacked disgust as an emotion incompatible with political liberal values; a primitive shrinking from animality that is used to subjugate vulnerable groups. Dr. Leon Kass has described disgust as a profound wisdom that teaches us the boundaries beyond which our given human nature becomes compromised. Kass's view of human dignity recognizes the hierarchical nature of being human, while Nussbaum's rather scatological account reduces mankind to a mere species of animal—an animal which is somehow an oppressor for shunning the accouterments of its own mortality. This article compares these two competing views on the interplay between disgust and …

Social Information Processing And Aggressive Behavior: A Transactional Perspective, Reid G. Fontaine, Kenneth A. Dodge

Reid G. Fontaine

Chapter has no abstract

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability …

The Wrongfulness Of Wrongly Interpreting Wrongfulness: Provocation Interpretational Bias And Heat Of Passion Homicide, Reid G. Fontaine

Reid G. Fontaine

In U.S. criminal law, a defendant charged with murder can invoke the heat of passion defense, an affirmative, partial-excuse defense so that he may be instead found guilty of the lesser crime of manslaughter. This defense requires the defendant to demonstrate that he was significantly provoked and, as a direct result of the provocation, became extremely emotionally disturbed and committed the killing while in this uncontrolled emotional state. In this way, the law makes a partial allowance for emotional dysfunction—the wrongfulness of the homicide is mitigated when the emotionally charged reactivity restricts the actor’s capacity for rational thought and reasoned …

Development Of Response Evaluation And Decision (Red) And Antisocial Behavior In Childhood And Adolescence, Reid Griffith Fontaine, Chongming Yang, Kenneth A. Dodge, Gregory S. Pettit, John E. Bates

Reid G. Fontaine

Using longitudinal data on 585 youths (48% female; 17% African American, 2% other ethnic minority), the authors examined the development of social response evaluation and decision (RED) across childhood (Study 1; kindergarten through Grade 3) and adolescence (Study 2; Grades 8 and 11). Participants completed hypothetical-vignette-based RED assessments, and their antisocial behaviors were measured by multiple raters. Structural equation modeling and linear growth analyses indicated that children differentiate alternative responses by Grade 3, but these RED responses were not consistently related to antisocial behavior. Adolescent analyses provided support for a model of multiple evaluative domains of RED and showed strong …

Affirmative Nomadology And The War Machine, Eugene W. Holland

Eugene W Holland

No abstract provided.

Karl Marx, Eugene W. Holland

Eugene W Holland

No abstract provided.

Diabolical Frivolity Of Neoliberal Fundamentalism, Sefik Tatlic

Sefik Tatlic

Today, we cannot talk just about plain control, but we must talk about the nature of the interaction of the one who is being controlled and the one who controls, an interaction where the one that is “controlled” is asking for more control over himself/herself while expecting to be compensated by a surplus of freedom to satisfy trivial needs and wishes. Such a liberty for the fulfillment of trivial needs is being declared as freedom. But this implies as well the freedom to choose not to be engaged in any kind of socially sensible or politically articulated struggle.

Loneliness As A Partial Mediator Of The Relation Between Low Social Preference In Childhood And Anxious/Depressed Symptoms In Adolescence, Reid Griffith Fontaine, Chongming Yang, Virginia Salzer Burks, Kenneth A. Dodge, Joseph M. Price, Gregory S. Pettit, John E. Bates

Reid G. Fontaine

This study examined the mediating role of loneliness (assessed by self-report at Time 2; Grade 6) in the relation between early social preference (assessed by peer report at Time 1; kindergarten through Grade 3) and adolescent anxious/depressed symptoms (assessed by mother, teacher, and self-reports at Time 3; Grades 7–9). Five hundred eighty-five boys and girls (48% female; 16% African American) from three geographic sites of the Child Development Project were followed from kindergarten through Grade 9. Loneliness partially mediated and uniquely incremented the significant effect of low social preference in childhood on anxious/depressed symptoms in adolescence, controlling for early anxious/depressed …

On-Line Social Decision Making And Antisocial Behavior: Some Essential But Neglected Issues, Reid G. Fontaine

Reid G. Fontaine

The last quarter century has witnessed considerable progress in the scientific study of social information processing (SIP) and aggressive behavior in children. SIP research has shown that social decision making in youth is particularly predictive of antisocial behavior, especially as children enter and progress through adolescence. In furtherance of this research, more sophisticated, elaborate models of on-line social decision making have been developed, by which various domains of evaluative judgment are hypothesized to account for both responsive decision making and behavior, as well as self-initiated, instrumental functioning. However, discussions of these models have neglected a number of key issues. In …

Social Information Processing And Cardiac Predictors Of Adolescent Antisocial Behavior, Reid G. Fontaine

Reid G. Fontaine

The relations among social information processing (SIP), cardiac activity, and antisocial behavior were investigated in adolescents over a 3-year period (from ages 16 to 18) in a community sample of 585 (48% female, 17% African American) participants. Antisocial behavior was assessed in all 3 years. Cardiac and SIP measures were collected between the first and second behavioral assessments. Cardiac measures assessed resting heart rate (RHR) and heart rate reactivity (HRR) as participants imagined themselves being victimized in hypothetical provocation situations portrayed via video vignettes. The findings were moderated by gender and supported a multiprocess model in which antisocial behavior is …

Testing An Individual Systems Model Of Response Evaluation And Decision (Red) And Antisocial Behavior Across Adolescence, Reid G. Fontaine

Reid G. Fontaine

This study examined the bidirectional development of aggressive response evaluation and decision (RED) and antisocial behavior across five time points in adolescence. Participants (n5522) were asked to imagine themselves behaving aggressively while viewing videotaped ambiguous provocations and answered a set of RED questions following each aggressive retaliation (administered at Grades 8 and 11 [13 and 16 years, respectively]). Self- and mother reports of antisocial behavior were collected at Grades 7, 9/10, and 12 (12, 14/15, and 17 years, respectively). Using structural equation modeling, the study found a partial mediating effect at each hypothesized mediational path despite high stability of antisocial …