Leiter on the Legal Realists

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two ‘prediction’ theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists.     

Co-occurring Psychiatric and Substance Dependence Disorders as Predictors of Parolee Time to Rearrest

An estimated 500,000-plus people are on parole each year, many with serious co-occurring psychiatric and substance use disorders. Using cross sectional, self-report data this study examined the relationships between parolee time to rearrest, serious mental illnesses, and substance dependency (n = 1,121). Regression analyses indicated that after controlling for demographic and criminal justice variables, parolees with serious psychiatric and substance dependence disorders were rearrested faster than non-dually diagnosed parolees (p < .05). An explanation is that compared with parolees without dual diagnoses, parole violations by dually diagnosed parolees are detected and punished more quickly because of closer parole supervision.     

Not so great expectations: why we should accept and respect hopelessness and futility

Medicine and health care attempt to prevent and cure disease, restore lost function, and relieve suffering. These are positive aspirations in the face of disvalued states of being. Part of the approach to countering illness can be to encourage or therapeutically increase such states as optimism, emotional wellbeing, peace and meaning, and to try to decrease mental and existential distress and despair, feelings of vulnerability, feelings of loss and loss of meaning. The column briefly examines examples from three fields--cancer, psychotherapy and end-of-life--and the relationships between therapeutic and social pressures for optimism and hope, on the one hand, and wellbeing, health and freedom, on the other. It suggests that in each field there are risks that arise from premature and/or excessive accentuation of the positive, and neglect of the presence and importance of what is conventionally regarded as the negative.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 2 (Queensland)

This is the second article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Queensland, including the parens patriae jurisdiction of the Supreme Court. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance health directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Queensland.     

Impulse control and criminal responsibility: lessons from neuroscience

Almost all of the world's legal systems recognize the "M'Naghten" exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M'Naghten's logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defense, known variously as the "irresistible impulse" defense or the "control" or "volitional" test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is "yes." After examining the varied treatment of the defense in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defense of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.     

The relationship of negative self-schemas and insecure partner attachment styles with anger experience and expression among male batterers

The purpose of the study was to explore how negative self-schemas and partner attachments were related to the experience and expression of anger (i.e., trait anger, inward and outward expression of anger) in a sample of male batterers (n = 40) who participated in court-mandated group services. They completed the Experience in Close Relationships (ECR), the Young Schema Questionnaire-2 (YSQ-2), the State-Trait Anger Expression Inventory-2 (STAXI-2), and a demographic sheet. Male batterers who experienced pervasive anger (i.e., trait anger) tended to experience negative self-schemas associated with the Impaired Limits domain (respecting the rights of others, insufficient self-control, entitlement). Male batterers who tended to suppress their anger tended to feel avoidantly attached to their romantic partner and endorsed negative self-schemas associated with the Disconnection and Rejection domain (abandonment, emotional deprivation, defectiveness/shame). Implications for clinical practice with male offenders and future research are discussed.