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Sufficiently Safeguarded?: Competency Evaluations of Mentally Ill Respondents in Removal Proceedings
Get PDFIn this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration, mental competency determinations in immigration court are made by immigration judges, most commonly without the benefit of any mental health evaluation or expertise. In reflecting on the protections and processes in place in the criminal justice system, and on interviews with removal defense practitioners at ten different sites across the United States, I conclude that the role of the immigration judge in mental competency determinations must be changed in order to protect the fundamental fairness of the proceeding. Specifically, I propose a central role for mental health professionals, whose expertise, evaluation, and testimony can inform the court and lead to a more thorough and fair decision making process
The Future of Empirical Legal Scholarship: Where Might We Go From Here?
Get PDFThe number of empirical legal studies published by academic journals is on the rise. Given theory’s dominance over the last few decades, this is a welcome development. This movement, however, has been plagued by a lack of rigor and a failure of editors to require disclosure of data and procedures that allow for easy replication of published results. Law journals, the editorial boards of which are manned solely by law students, might face the toughest hurdles in ensuring publication of only high quality empirical studies and in implementing and enforcing disclosure policies. While scholars in other fields including economics, psychology, and political science seem to be taking steps to address widespread quality issues, little is being done to address the problems in the law literature. The purpose of this essay is to argue that most proposed solutions offered over the last decade or so have not taken hold because they do not generate incentives powered by the interests of actors in positions to affect change. Those that have caught on might be causing more harm than good. I offer a set of proposals grounded in a framework based on tapping into the interests of both law journal student-editors and authors who submit empirical legal studies to law journals for publication. Improving the quality of empirical studies will require time and sustained effort, but the hope is that successful implementation of them (or others that provide strong incentives for change) will reduce the need for effort over time
Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments
Get PDFNumerous studies have shown that anchoring strongly effects juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led some to believe that “the more you ask for, the more you get.” Others believe that the damage demand must pass the “straight-face” test. But little scholarly literature exist to determine whether an outrageously high request really does undermine the plaintiff’s credibility, and whether this “credibility” effect outweighs the anchoring effect.
Likewise, little scholarly attention considers whether a defendant can effectively respond to the plaintiff’s high anchor. One obvious strategy would be a “counter-anchor” – the defendant suggesting a much lower damages award. However, defense attorneys worry that juries may interpret such a strategy as an admission of liability. Thus, in fact, defendants often allow the plaintiff’s anchor to go unrebutted, but this strategy has also not been rigorously tested.
To answer these questions, we conducted a randomized controlled experiment in which we exposed mock jurors to a shortened medical malpractice trial, manipulated with six different sets of damages arguments in factorial design. The plaintiff demanded either 5,000,000 non-economic damages. The defendant responded in one of three ways: (1) offering the counter-anchor that, if any damages are awarded, they should only be $50,000; (2) ignoring the plaintiff’s damage demand; or (3) attacking the plaintiff’s demand as outrageous and using this characterization to argue that the plaintiff’s entire case was not credible. Mock jurors were then asked to render a decision on both liability and damages. We then ran these individuals decisions through a computer simulation to create mock jury decisions.
Our study confirmed that anchoring has a powerful effect on the amount of damages mock juries award. However, a large damages demand also had a small negative effect on liability determinations. When looking at the expected value of the case – the average award when both liability and damage award are considered – these “credibility effects” were overwhelmed by anchoring effects. Different defendant responses also resulted in different outcomes when plaintiff anchored low, but none of these defense strategies are an effective antidote to the plaintiffs’ high anchor. We discuss implications for litigation strategy and policy
Et tu, Android?: Regulating Dangerous and Dishonest Robots
Get PDFConsumer robots like personal digital assistants, automated cars, robot companions, chore-bots, and personal drones raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety, and finances. They also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.
This paper argues that the FTC\u27s grant of authority and existing jurisprudence are well-suited for protecting consumers who buy and interact with robots. The FTC has proven to be a capable regulator of communications, organizational procedures, and design, which are the three crucial concepts for safe consumer robots
Zivotofsky v. Kerry: The Supreme Court of the United States, the Politics of American Jewry and the Biblical Balaam
No full textThe Congress of the United States has been trying for some time to propel the president to recognize the city of Jerusalem as the capital of Israel. The president has resisted, citing both policy considerations and constitutional power. In Zivotofsky v. Kerry the Supreme Court of the United States was asked to decide which branch of the government, under the constitution, is authorized to make such decisions. On 8 June 2015, one day and forty-eight years after Israel’s Six-Day War victory, the Court held that the decision rests with the president, not with congress. This article reviews the complex position of the justices, raises questions about the role of American Jewry in this controversy and uses the parable of biblical Balaam to problematize decisions to litigate such major decisions related to foreign affairs
Civil Marriage for Same-Sex Couples, Moral Disapproval, and Tensions between Religious Liberty and Equality
Get PDFIn the United States and Europe, an increasing emphasis on equality has pitted rights claims against each other, raising profound philosophical, moral, legal, and political questions about the meaning and reach of religious liberty. Nowhere has this conflict been more salient than in the debate between claims of religious freedom, on one hand, and equal rights claims made on the behalf of members of the lesbian, gay, bisexual, and transgender (LGBT) community, on the other. As new rights for LGBT individuals have expanded in liberal democracies across the West, longstanding rights of religious freedom—such as the rights of religious communities to adhere to their fundamental teachings, including protecting the rights of conscience; the rights of parents to impart their religious beliefs to their children; and the liberty to advance religiously based moral arguments as a rationale for laws—have suffered a corresponding decline. This book brings together some of the world’s leading thinkers on religion, morality, politics, and law to analyze the emerging tensions between religious freedom and gay rights. What implications does an expanding regime of equality rights for LGBT individuals have on religious freedom? What are the legal and moral frameworks that govern tensions between rights claims for gay equality and religious freedom? How are these tensions illustrated in particular legal, political, and policy controversies? And what is the proper way to balance new claims of equality against existing claims for freedom of religious individuals and groups
Banks\u27 Culture Problem: You Can\u27t Have Just One
No full textIn the wake of the Wells Fargo scandal, a whole host of industry stakeholders and observers have tried to piece together a solution to banking\u27s culture problem. Yet before we settle on what banks\u27 culture should be, we are still lacking a clear definition of what banking\u27s culture is today
Juvenile Competency and Pretrial Due Process: A Call for Greater Protections in Massachusetts for Juveniles Residing in Procedural Purgatory
Get PDFWhile juvenile courts continue to balance and reevaluate the dual goals of community safety and rehabilitation of youth, juveniles who are not competent to stand trial have been left without sufficient procedural protections. This paper examines Massachusetts’ approach to juvenile competency, due process, and pretrial procedure, within a national context. The inadequacies of the Massachusetts juvenile competency laws are not unique. Currently there are nineteen states that either entirely lack juvenile-specific competency legislation or merely incorporate inapposite adult criminal statutes and standards into the juvenile context—making it difficult or impossible for those juvenile courts to dismiss or divert a delinquency petition following an incompetency finding. Massachusetts and states similarly situated should adopt explicit statutory language to delineate the basis for a juvenile incompetency finding and the grounds for dismissing delinquency complaints pretrial after an incompetency finding has been made. This paper proposes that Massachusetts adopt a timeline for effecting such dismissals based in part on the amount of time a juvenile could face if committed to the juvenile correctional authority following an adjudication of delinquency. The paper also recommends best practices of states that are pioneering juvenile legislative reforms like dismissal timelines and incompetency presumptions. Finally, we suggest a more stringent regulatory framework be put in place governing the pretrial detention of youths who have been found not competent to stand trial—a framework that recognizes and preserves the juvenile\u27s substantive rights to education, mental health and rehabilitative services. Without legislation, juveniles found not competent to stand trial remain subject to the prospect of indefinite locked detention, often without access to the necessary services that contribute to future success as well as attainment of competency. This lack of due process runs counter to the foundational goals of the juvenile justice system
Federal Civil Practice, 2016 Edition
No full textKnowledge of the Federal Rules of Civil Procedure is essential for any federal litigator. Federal Civil Practice takes a step-by-step approach to federal practice, discussing the intricacies of federal civil procedure and providing key insights on applicable rules. Understanding the timeline of a case in this manner is vital for all litigators. Indeed, the only way to be proactive, rather than simply reactive, in litigating a case is to know what is going to happen in the next stage, and in the next stage after that, and so on. When you know what\u27s going to happen next, you can plan your strategy and tactics more effectively. Planning how to litigate a case is just as important as actually litigating it. Federal Civil Practice goes beyond simple explanations of the Federal Rules of Civil Procedure and helps you plan your litigation strategy and tactics.
Even before a complaint is filed, the Federal Rules play a significant role in litigation. Federal Civil Practice helps you understand the Preliminary Considerations\u27 you should think about prior to filing, such as conducting an investigation pursuant to Rule 11, choosing a forum, and conducting legal research. Federal Civil Practice also discusses Key Details which are seemingly small, but nevertheless important, as well as pre-trial conferences, discovery practice, and summary judgment. Federal Civil Practice will benefit new and seasoned attorneys alike.https://scholarship.law.bu.edu/books/1331/thumbnail.jp
The Proposed Separation of Powers Restoration Act Goes Too Far
Get PDFIf passed, the Separation of Powers Restoration Act would require federal courts conducting judicial review of agency action to decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.” Although I have long been highly critical of Chevron, see, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should be Overruled, 42 Conn. L. Rev. 9 (2010), and also have misgivings about Auer deference, I fear that the proposed Act goes too far in completely eliminating deference to agency legal determinations