Legal Indeterminacy in Insanity Cases: Clarifying Wrongfulness and Applying a Triadic Approach to Forensic Evaluations

Kate E. Bloch and Jeffrey Gould

Volume 67, Issue 4, 913-56

Insanity law in the United States embodies a convoluted collection of often ill-defined standards. The wrongfulness test, which is used in most U.S. jurisdictions, requires a determination of whether the accused knew or had the substantial capacity to appreciate that the acts were wrong at the time the accused committed them. To assist the trier of fact in making that determination, courts and parties commonly invoke the acumen of forensic experts. But, wrongfulness in insanity law is a word with many possible meanings. In this Article, an academic forensic psychiatrist and a legal scholar propose approaches for effectively navigating this legal indeterminacy. The authors parse and clarify key definitions of wrongfulness and provide practical guidance, including an option for a triadic evaluation, for forensic experts called upon to assist the trier of fact in analyzing the complex interface of morality, mental illness, and the law.

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Does Antidiscrimination Law Influence Religious Behavior? An Empirical Examination

Netta Barak-Corren

Volume 67, Issue 4, 957-1022

What role should the behavioral reality of conflicts regarding gender, sexuality, and religious convictions play in the theory and doctrine of antidiscrimination law? Although the past several decades have seen broadening tension between traditional beliefs and legal and societal norms—the most recent manifestation being Obergefell v. Hodges—almost no empirical work has been done to elucidate the behavioral reality of conflicts between religion and antidiscrimination law.

This Article is the first empirical behavioral study on the decisions made by religious people under norm conflict. Drawing on two decision experiments with over 3500 religious individuals and in-depth interviews with senior religious managers, this Article examines the central theoretical explanations for why people (dis)obey the law. Is compliance more successfully achieved by improving the perceived fairness of judicial proceedings (as predicted by the procedural fairness theory) or by adjusting the outcomes of these proceedings (as predicted by the economic analysis theory)? Conventional wisdom assumes that greater fairness and milder outcomes would facilitate compliance. However, the data suggest that greater procedural fairness has little to no impact on compliance decisions, while milder outcomes that afford monetary penalties as substitutes for legal compliance are not perceived as more acceptable and actually erode adherence to legal norms rather than promoting it. This Article discusses the broader implications of my findings for religious accommodations, offering recommendations to lawmakers who wish to mitigate conflicts between law and religion without relinquishing fundamental legal commitments.

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Sufficiently Safeguarded?: Competency Evaluations of Mentally Ill Respondents in Removal Proceedings

Sarah Sherman-Stokes

Volume 67, Issue 4, 1023-66

In 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 decisionmaking process.

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Understanding Validity in Empirical Legal Research: The Case for Methodological Pluralism in Assessing the Impact of Science in Court

Teneille R. Brown, James Tabery, and Lisa G. Aspinwall

Volume 67, Issue 4, 1067-86

What makes a study valid or invalid? In 2013, the Hastings Law Journal published a law review article by law professor Deborah Denno entitled What Real-World Cases Tell Us About Genetic Evidence. This article questioned the validity of an article that we published in Science: The Double Edged-Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths? Denno’s trenchant critique focused on our use of experimental, rather than archival, methodology, and revealed a misunderstanding of the diverse goals of empirical legal research. One study, which in our case investigated the impact of biological explanations of criminal behavior on sentencing, is not meant to answer the universe of potentially relevant questions. This is as true in science as it is in law. Rather, experimental and archival projects complement each other by asking and answering different questions aimed at different forms of validity. We describe archival and experimental research methods, and then explain how their design impacts external validity, including concerns of ecological validity, robustness, and generalizability; internal validity; and construct validity. We appreciate Denno’s questions about external validity in particular, specifically asking how and under what conditions a particular set of experimental effects might occur in real court cases. However, the questions she poses do not challenge the internal validity of our study—that is, its ability to identify particular causal factors that influence judges’ ratings and sentencing decisions in the particular set of conditions and case features we tested. By explaining the tradeoffs between different forms of validity, this brief article may serve as a helpful tool for scholars in law, psychology, and other social sciences, as well as attorneys and judges who rely on empirical legal research in their work.

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Confronting Williams: The Confrontation Clause and Forensic Witnesses in the Post-Williams Era

Taryn Jones

Volume 67, Issue 4, 1087-118

In Williams v. Illinois, the division of the U.S. Supreme Court created substantial confusion as to the proper application of the Confrontation Clause to forensic witnesses. In the decision, the Court affirmed the conviction of the defendant, Sandy Williams, because the plurality and Justice Thomas, in his concurrence, determined that the DNA profile produced by an outside laboratory was not testimonial and thus Williams did not have a constitutional right to crossexamine the laboratory analysts. The plurality and the concurrence, however, presented two distinct rationales for deeming the report nontestimonial. The case has consequently left lower courts without firm guidance as to when forensic reports are testimonial.

This Note critically examines two state responses to the testimonial nature of autopsy reports following the confusion created by the Williams decision, and whether testimony of surrogate witnesses on these reports under the current legal interpretation violates the Confrontation Clause.

I will argue that this confusion creates a demand for judicial restraint. Courts should err on the side of excluding evidence in order to preserve the Sixth Amendment confrontation right.

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Coordination or Consolidation? Accountable Care Organizations and Antitrust Policy Under the Medicare Shared Savings Program

Michael J. Montgomery

Volume 67, Issue 4, 1119-52

The U.S. health care system is expensive, fragmented, poorly organized, and fails too often to deliver high quality care that is both accessible and cost efficient. In 2014, Americans spent an estimated $3.1 trillion on health care, averaging $9695 per capita and accounting for 17.8% of gross domestic product (“GDP”). Over the course of the next decade, these figures are projected to increase by an average of 5.8% per year, reaching an estimated $5.4 trillion and 19.8% of GDP by 2024. In an effort to curb this unsustainable trend of rising health care costs, Congress enacted the Medicare Shared Savings Program (“MSSP”) in conjunction with the Affordable Care Act (“ACA”) in 2010. The MSSP created a Medicare framework for Accountable Care Organizations (“ACOs”), a new health care delivery model that promotes health care provider accountability, cost efficiency, and higher quality care. At the same time, the program raises serious antitrust concerns in that it facilitates horizontal integration between competitors, thus perpetuating increased concentrations of provider market power that allow providers to drive up health care prices. This Note argues that there is a need for increased vigilance on the part of Centers for Medicare and Medicaid Services in regulating ACOs participating in the MSSP to prevent the acquisition and exercise of pricing power. Antitrust enforcement alone remains an inadequate solution to the problem of provider market power and, accordingly, additional regulatory efforts are necessary to promote competition and, at the very least, mitigate and contain the anticompetitive effects of health care market consolidation under the MSSP.

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In re A-R-C-G-: A Game-Changer for Children Seeking Asylum on the Basis of Intrafamilial Violence

Sarah M. Winfield

Volume 67, Issue 4, 1153-80

After over a decade of advocacy on behalf of women fleeing their home countries because of horrific domestic violence, practitioners and legal scholars obtained a precedential legal victory in August 2014. In In re A-R-C-G-, the Board of Immigration Appeals recognized that domestic violence can constitute persecution within the meaning of the Immigration and Nationality Act, and that nationality, gender, and the inability to leave a marital relationship can form the basis of a proper social group under the Act.

Children fleeing intrafamilial violence, however, continue to face an uphill battle in seeking asylum. Widespread disparities in the outcomes of asylum adjudications in general demonstrate a need for uniformity and consistency. This Note argues that In re A-R-C-G-’s rationale applies to children’s asylum claims that are based upon intrafamilial violence.

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