Subtly Selling the System: Where Psychological Influence Tactics Lurk in Judicial Writing

Anne E. Mullins*

 

“The opinion, as an expression of judgment, is an essay in persuasion. The value of the opinion is measured by its ability to induce the audience to accept the judgment.” 

As a nation, we are deeply committed to the rule of law. Particularly with the rise of law and economics, we think of the people served by the judicial system as rational actors. And, while many of us recognize that our courts are inherently political institutions, we still think of our judges persuading us with only solid legal analysis. But we are not always rational actors, and judges do not persuade us with only their analysis. Judges capitalize on psychological tactics that influence us to do what they tell us to do or to conclude that their decisions are, in fact, the correct ones. These are the same tactics that market participants of all stripes, from big businesses to fundraising charities to kids selling lemonade, use to get what they want.

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*Assistant Professor, University of North Dakota School of Law. J.D., University of Chicago School of Law; A.B., Dartmouth College. I would like to extend special thanks to David Bell, Xinmei Zhang and Yongge Dai Professor at the Wharton School of the University of Pennsylvania, for introducing me to psychological influence tactics in business marketing, and to Dr. Robert Cialdini’s exceptional work in the field. I thank Suzanne Rowe, Jen Reynolds, Anne Enquist, Michael Higdon, Lucy Jewel, Michael Sackey, Suparna Malempati, Cindy Archer, Emily Grant, and Tim Kelley for their thoughtful feedback. I also thank the Association of Legal Writing Directors for their Scholars’ Forum and Scholars’ Workshop; both were critical to the development of this article. Finally, I thank Meg Kirschnick, Chris MacMillan, Dawn Jagger, Anna Makowski, and Caitlin Kelly Engle for their outstanding research assistance and feedback.

Silence Is Golden… Except in Health Care Philanthropy

Stacey A. Tovino*

 

Imagine a forty-year-old woman who has been diagnosed with stage IV colorectal cancer and who has less than a ten percent chance of living five years from the date of her diagnosis. The woman’s physician, who specializes in oncology and practices at a hospital affiliated with a major academic medical center, recommends a combination of surgery, chemotherapy, and radiation to treat the woman’s cancer. This article addresses the permissible scope of uses and disclosures of the woman’s individually identifiable health information that may be made by the hospital and the physician for the purpose of attempting to raise funds for the hospital’s own benefit.

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*Lincy Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. Ph.D., University of Texas Medical Branch; J.D., University of Houston Law Center; B.A., Tulane University. I thank Nancy Rapoport, Interim Dean, and Daniel Hamilton, Dean, William S. Boyd School of Law, for their financial support of this research project. I also thank William J. Winslade (James Wade Rockwell Professor of Medicine, University of Texas Medical Branch) for his comments on an earlier presentation of this article, and Jeanne Price (Director, Wiener-Rogers Law Library), Chad Schatzle (Student Services Librarian, Wiener-Rogers Law Library), Jennifer Gross (Reference and Collection Management Librarian, Wiener-Rogers Law Library), Bryn Esplin (3L and President, Health Law Society, Boyd School of Law), and Danny Gobaud (3L, Boyd School of Law) for their outstanding assistance in locating many of the sources referenced in this article. I further thank the participants of the 66th Annual Meeting of the Southeastern Association of Law Schools in Palm Beach, Florida, for their helpful comments and suggestions on earlier presentations and versions of this article.

“To Corral and Control the Ghetto”: Stop, Frisk, and the Geography of Freedom

Anders Walker*

 

Behind police brutality there is social brutality, economic brutality, and political brutality. — Eldridge Cleaver

Few issues in American criminal justice have proven more toxic to police/community relations than stop and frisk. To take just one example, federal judge Shira Scheindlin recently declared that stops lacking “individualized reasonable suspicion” had become so “pervasive and persistent” in New York City that they not only reflected “standard [police] procedure,” but had become “a fact of daily life” for minority residents. Scheindlin promptly ordered “immediate changes to the NYPD’s policies,” meanwhile recalling the Supreme Court’s observation in Terry v. Ohio that “the degree of community resentment” caused by a particular police practice could influence judicial “assessment” of that practice.

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*Professor, Saint Louis University School of Law; Ph.D, 2003, Yale University; J.D., 1998, Duke University; B.A., 1994, Wesleyan University. I would like to thank Tracey Meares, David Sklansky, Jeffrey Fagan, Devon Carbado, Darryl K. Brown, Kami Chavis Simmons, Scott Sundby, Arnold Loewy, Eric J. Miller, and Joel Goldstein for input on this piece. I would also like to thank Adina Schwartz, Dorothy Schultz, and the members of the John Jay College of Criminal Justice faculty for early conversations on this topic, including insight into the role that riots played in the development of a Humanities curriculum for the New York City Police Department.

Abortion and the Constitutional Right (Not) to Procreate

Mary Ziegler*

With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance. This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.

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*Assistant Professor, Florida State University College of Law. J.D., 2007, Harvard Law School; B.A., 2004, Harvard College. Professor Ziegler would like to thank Beth Burkstrand-Reid, Caroline Corbin, Jaime King, Maya Manian, Rachel Rebouché, and Tracy Thomas for sharing their thoughts on earlier drafts of this piece.

Vape Away: Why a Minimalist Regulatory Structure is the Best Option for FDA E-Cigarette Regulation

Nick Dantonio

People smoke to get a buzz. Plain and simple. Every time a person decides to smoke a cigarette they make a personal costbenefit decision. The benefits of smoking often include improved concentration and mood as well as providing sedative and euphoric effects. On the other hand, the costs of smoking traditional, combustible cigarettes are quite high. The adverse effects of smoking combustible cigarettes have become common knowledge over the past fifty years, beginning with the required warnings on cigarette packs in the 1960s, as countless studies have affirmed the link between cigarette smoking and a seemingly endless list of negative health effects.

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