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Marybeth Herald



Recent works by Marybeth Herald



Last Build Date: Thu, 04 Sep 2014 00:00:00 +0000

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Your Brain and Law School

Thu, 04 Sep 2014 00:00:00 +0000

Building on the latest scientific research, Professor Marybeth Herald's practical yet entertaining book, "Your Brain and Law School" (Carolina Academic Press, 2014), offers law students a formula for success in law school, on the bar exam, and as practicing attorneys. Mastering the law, either as a law student or in practice, becomes much easier if one has a working knowledge of the brain’s basic habits. Before you can learn to think like a lawyer, you have to have some idea about how the brain thinks.

The first part of this book (the Introduction to which is available for free download here) translates the technical research, explaining learning strategies that work for the brain in law school specifically, and calling out other tactics that are useless, explaining why they lead to dead ends. This book is unique in explaining the science behind the advice.

The second part of the book explores the brain’s decision-making processes and cognitive biases. These biases affect the ability to persuade, a necessary skill of a successful lawyer. The book explains the art and science of framing, the seductive lure of the confirmation and egocentric biases, and the egocentricity of the availability bias. This book uses easily recognizable examples from law, and life generally, to illustrate the potential of these biases to lead people to mistaken judgments. Understanding these biases is critical to becoming a successful attorney, proficient at fashioning arguments that appeal to the sometimes quirky processing of the human brain.




Situation, Frames, and Stereotypes: Cognitive Barriers on the Road to Nondiscrimination

Fri, 01 Jan 2010 00:00:00 +0000

The psychological literature enhances our understanding of discrimination. This essay discusses three examples of how that literature can contribute to limiting destructive gender bias in the workplace, in private interactions, and in the courtroom. First, situational pressures have a powerful influence on our actions and must be taken into account in combating employment discrimination. A workplace designed for traditional male needs (limited parenting and home responsibilities) will continue to pressure females out of the workplace or childbearing despite formal equality rules. Second, the use of the term “disorder” as a frame for describing persons with an intersex condition may not achieve the ultimate goals of the movement, despite its perceived short-term advantages for communicating with the medical community. This frame may provoke reflexive images that hinder communications with a number of other groups, including parents and the community at large. Finally, although transsexual plaintiffs have been able to take advantage of Title VII under the Supreme Court’s “sex stereotyping” theory in Price Waterhouse, that theory ultimately reinforces stereotyping by requiring the plaintiffs to set up stereotypes for comparison, and that condition may ultimately reinforce the stereotypes. Rooting out gender inequality requires an understanding of how these inequalities are embedded in our thinking processes.




Beyond the Binary: What Can Feminists Learn from Intersex and Transgender Jurisprudence?

Fri, 01 Jan 2010 00:00:00 +0000

This panel discussion focuses on recent developments in the intersex and transsexual communities. Recently, both movements have undergone profound changes and each has provided new and unique theoretical and practical perspectives that can potentially benefit other social justice groups. This dialogue describes these developments. It also emphasizes the importance of feminist, lesbian, gay, bisexual, transsexual and intersex activists becoming aware of the goals that they share and areas where their interests may diverge. As each of these movements develops their legal strategies, they need to be conscious of the potentially positive and negative ramifications that their approaches may have on similarly situated marginalized groups.




Deceptive Appearances: Judges, Cognitive Bias, and Dress Codes

Tue, 01 May 2007 00:00:00 +0000

Although it is no longer legal to deny women the right to work simply because they are women, an employer can still require women conform to gender-based appearance norms in order to keep their jobs. In some industries, lipstick, foundation, mascara, and blush remain essential components of a woman's professional uniform. In these industries, men are spared the obligation of cosmetic upkeep, because only women must don face-paint to appear comfortably recognizable to customers.

Why this differential dress-code is not considered discrimination on the basis of sex under Title VII is the mystery. The textual force of anti-discrimination law would seem to bar such obvious gender-based distinctions, but biases emerge in the law's application. The cognitive mechanisms at work in this area continue to blind judges to the gendered nature of employers' demands. The status quo bias, the representative heuristic, and framing influence the drive to limit the reach of anti-discrimination law.

Social science evidence suggests that we resist change, leading judges to privilege gender biased rules under the guise of social and cultural norms. The courts' intuitive – and unsupported - finding that gendered dress is not related to equal employment opportunities is undercut by studies showing that gender-based appearance rules set us up for prejudicial judgments. Judges also rely heavily on their ability to creatively frame their policy decisions. Rulings permit gender-based dress requirements by emphasizing that a dress code exists for all workers, even though the content dramatically differs for each sex. This framing masks the gendered assumptions that drive the court's policy preferences. This article identifies the cognitive biases lurking beneath the waterline of judicial decision-making and discusses their role in producing decisions at odds with Title VII's goal of eradicating employment discrimination. Exposing the unconscious linkages that gender still evokes – both in terms of how we expect men and women to look - and how we expect them to act - should lead judges to sounder applications of Title VII law in the appearance-code cases.




You Can't Take It With You: Constitutional Consequences of Gender Identity Rulings

Tue, 01 Nov 2005 00:00:00 +0000

Contradictory approaches to defining male and female can create bizarre and confusing results as transsex persons cross state lines and find that their legal sex changes according to the laws of a given jurisdiction. Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the absurd (a man must be able to fertilize ovum and beget offspring, while women must produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other one-half of the states. This article discusses the constitutional implications of the varied approaches to determining a person's legal sex. It concludes that states that refuse to recognize an amended birth certificate from a sister state violate principles of full faith and credit and unconstitutionally infringe upon the right to travel under the dormant Commerce Clause. In addition, when states impose sex tests that are based on gender stereotypes and force people to live as the sex that conflicts with their self-identified sex, they violate the Fourteenth Amendment's equal protection and substantive due process mandates.




Transgender Theory: Reprogramming Our Automated Settings

Tue, 01 Nov 2005 00:00:00 +0000

Over the course of the last few decades, both law and society have struggled to deprogram unhelpful and downright destructive gender stereotypes that are ubiquitous in our everyday existence. It has not been an easy task, nor entirely successful on either the legal or cultural front. Laws that prohibit gender discrimination, such as Title VII, have helped end overt discrimination. The next phase involves the challenging problem of unconscious bias, which often effectively keeps us treading the same mental paths while bypassing any roads not traveled.

It is not surprising then that when the validity of even the basic categories of male and female are questioned, the collective unconscious of our society rebels even more against the challenge. The categories of male and female, like yin and yang, are a universal explanatory principle. Yet science has upset what we had come to think of as second nature - two easily identifiable sexes. Scientific evidence reveals that the terms "male" and "female" hide a complexity of biology, chromosomes, and chemicals that in some cases resist such easy labeling. Medical technology advanced in the latter part of the twentieth century to enable surgery to alter anatomy, and suddenly there was visual proof that your sex identified at birth was no longer the immutable characteristic that many assumed it to be.

When confronted with these developments, an interesting mix of science, psychology, and law emerged in the court cases. This essay briefly surveys these cases and discusses some emerging trends. Shackled into labeling humans as unambiguously male and female, courts lose the ability to recognize the complexity of transsexuality. New information is shuttled off to storage because it does not fit into pre-existing categories. Ultimately, what we learn from this situation is that courts, like human brains, initially resist data that counters longstanding categorical assumptions. Presenting new scientific evidence is not in itself sufficient when asking courts to confront settled categorical rules; re-framing the debate in broader terms is essential. In Europe, the broad theory of human rights provided specific protection for transsex persons. In the United States, the broad theory of gender nonconformity, with the application in the area of how transsex persons were also subject to sex stereotyping, has proven persuasive. But with regard to marriage, courts in the United States have not grasped the complexity. They have shown a marked resistance to understanding the issues, and are locked into framing human intimacy in terms of male and female, even when unable to satisfactorily define those terms.




Eyes Wide Shut: Erasing Women's Experience, From the Clinic to the Courtroom

Fri, 01 Jul 2005 00:00:00 +0000

n his decade long exploration of female sexuality, Sigmund Freud professed to be on a mission to answer the elusive question, what do women want. Unfortunately, the 19th century psychiatrist was unable to separate that question from the one he ultimately answered, What do men want women to want? In some sense, Freud's inquiries provide an apt metaphor for the medical professions' stance toward female experience. When confronted with the difference presented by the female body as well as women's unique life experience, the medical field has responded with approaches that range from bemusement to hostility to intense indifference.

Although the pernicious effect of gender bias on healthcare delivery is well-known, less attention has been paid to its secondary effects. Disinterest in or hostility to the female experience leads to an informational vacuum that allows for the development of ideas, theories, and assumptions founded on cognitive bias, rationalization, and wishful thinking rather than empirically-based knowledge. These biases, then, are imported into the legal field where they undergird juridical movements that serve to disadvantage women.

This essay explores how, in the medical context, the stunted development of knowledge about women, becomes, in the legal context, a dangerous thing. In examining the interplay between medical and social science information and legal dogma, this essay will discuss how bodies of knowledge are selectively pursued, exploited, or ignored in the service of patriarchal assumptions that achieve expression in legal responses to emerging social dilemmas. Selective information flow between the medical and legal professions results in untoward consequences in a wide variety of settings. Here, we limit our focus to two: The first part of the essay discusses the impoverished medical discourse on female sexuality and how inattention to female sexual fulfillment has led to legal rules that disproportionately affect women's expression as sexual beings. The second part, examines available social science data detailing the distinction between psychological and genetic parenthood and shows how that data has been ignored in favor of judicial presumptions that privilege men and disadvantage women in disputes over frozen embryos. A close look at these contested arenas of sexuality and reproduction demonstrates the difficulty of charting women's progress toward equality. On the surface, in both law and medicine, norms of gender equity command facial allegiance. Medicine disavows its earlier efforts to exclude women from the profession, while law proffers the equal protection doctrine as proof that sexist behavior can be rooted out in a zero tolerance legal culture. Under the waterline, though, unconscious beliefs and stereotypes hold sway. These unruly currents lead to rationalizations and cognitive errors that elude rigorous examination, but affect women at work, at home, and in the bedroom.




A Bedroom of One's Own: Law and Sexual Privacy After Lawrence v. Texas

Mon, 01 Nov 2004 00:00:00 +0000

Lawrence v. Texas, which gave constitutional protection to same-sex adult sodomy, is the latest signpost on the Court's sexual privacy trail. The Supreme Court's opinion avoids formulating a specific rule to guide discretion, opting instead to focus on overruling Bowers. Nevertheless, Justice Scalia's dissent, with its ominous prophecy that Lawrence will be the death of legislation banning sex aids and other morality crimes, provides a tantalizing promise of a potentially broad application. This article considers that potential in the context of various state laws banning sex aids. Alabama's law, for example, banning such devices, is based on Alabama's claim that the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.

Part I of this Article details and critiques generally the Supreme Court's past precedent limiting constitutional privacy and liberty rights. By using history and tradition in interpreting the limits of substantive due process, the Court allowed gender discrimination to infect constitutional interpretation. A lack of concern about women's health issues has fueled a history and tradition that is oblivious to the realities of women's sexual selves. Part II discusses the history of sex aids - specifically devices intended to allow women to achieve orgasm - in the context of their history and tradition. Surprisingly, vibrators have a history and tradition of non-regulation. Part III examines the interaction between gender bias in legal and medical applications, specifically in the case of sex aids. Ultimately, medical stereotypes can infect case law, and medical bias can reinforce gender stereotypes in the law. Part IV details how states enforce statutes outlawing such devices. These laws are not just quaint artifacts of an earlier time and place - Alabama's law was passed in 1998 - and prosecution under these laws results in convictions and jail sentences. Part V reviews the Lawrence majority opinion and searches for clues as to what the decision means for sexual privacy generally, and for sex aids specifically. This article concludes that the change in focus is a narrow victory for liberty and privacy interests, at most shifting the burden to the government to justify its reasons for impinging those interests whose application, not surprisingly, will depend upon the proclivities of the Court that applies it in the next case. When considering sex aid cases after Lawrence, however, the courts should not view the situation from a male-centered definition of sexuality that reduces women's normal needs to pathologies or diseases or that ignores sexuality unrelated to procreation. Rather, courts should examine whether it is constitutionally permissible for a state to outlaw the sale of sexual devices that are used in the privacy of an adult's own bedroom. They should rationally conclude that the government has no such power.




Until Life Support Do Us Part: A Spouse's Limited Ability to Terminate Life Support for an Incompetent Spouse With No Hope of Recovery

Sat, 01 Jun 2002 00:00:00 +0000

This paper deals with a MCS patient in California - a case that highlights our uncertain steps into state regulation of the end of life. After a 1993 automobile accident, 42-year-old Robert Wendland fell into the classification of a MCS with no hope of recovery. He had made no advance directives as to his health care. His wife of 20 years sought to withhold artificial feeding and hydration after three surgeries to replace Robert's feeding tube. The 20-member ethics committee at the hospital, Robert and Rose's three children (two were of college age), and Robert's brother, all supported her decision. Robert's sister and mother - who had both been estranged from Robert for many years - opposed her decision.

One outcome of the combination of the Supreme Court decisions in Cruzan and Glucksburg is that the government retains the right to write the rules for persons seeking to end their own life, the states can experiment through their legislatures or constitutions, and, of course, the federal government can always try to preempt the states. California has attempted to legislatively resolve the issue of the right to die and the case of the conscious but incompetent patient. In interpreting this legislation, however, the California Supreme Court placed a heavy burden of proof (clear and convincing evidence) on the conservator's family, including the spouse of incompetent in a MCS, making it a practical impossibility to stop feeding and hydration when there is no written advance directive. Neither the legislative language nor history directed that standard. This essay argues that spouses should not be placed in the same position as other conservators in these situations, although the court's decision reflects an underlying discomfort with end of life decisions for MCS patients, no matter the relationship of the decision maker to patient.




Licensing Speech: The Case of Vanity Plates

Fri, 01 Jun 2001 00:00:00 +0000

Vanity license plates qualify as protected speech under the First Amendment, and denying plate requests because of their content contradicts traditional principles of free speech. State motor vehicle departments are almost as creative as applicants when it comes to ferreting out offensive license plate requests through the use of computer programs and linguists. Offensiveness, however, remains an elusive concept to capture and often lies in the eyes of a single viewer. When the government takes on the role of arbiter of good taste, it leads to arbitrary decision making and chaotic results.

Under traditional First Amendment doctrine, vanity license plates do qualify as speech by the plate owner, and government regulation of plate requests is a content-based and viewpoint-based abridgement of speech. Although the government may have an interest in regulating some of the most offensive plates, it does not justify the wholesale regulation of vanity plates under an offensiveness standard. If states choose to open up license plates for speech, society must tolerate some of the offensive speech rather than distort First Amendment doctrine to resolve the problem. The free speech principles honored in Cohen v. California should be preserved here despite the perceived offensiveness of the speech.