Current Issue

Emotional Regulation and Judicial Behavior

07 Jan 2012 03:54pm Terry A. Maroney 

Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. In the post-realist era it is possible to acknowledge that judges have emotional reactions to their work, yet our legal culture continues to insist that a good judge firmly puts those reactions aside. Thus, we expect judges to regulate their emotions, either by preventing emotion's emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation.

This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to "put emotion aside." While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that our legal culture does nothing to promote intelligent judicial emotion regulation and much to discourage it.

Circuit

Sexual Epistemology and Bisexual Exclusion: A Response to Russell Robinson’s “Masculinity as Prison: Race, Sexual Identity, and Incarceration”

15 Jan 2012 11:12am Michael Boucai 

In an effort to curb sexual assault behind bars, the Los Angeles County Jail currently houses inmates deemed homosexual and transgender in a special unit called "K6G." Professor Russell Robinson's Article, Masculinity as Prison: Race, Sexual Identity, and Incarceration, challenges this policy on a number of grounds. I focus in this Response on just two of Robinson's objections. First I affirm Robinson's proposal that carceral segregation programs, if they are to persist, will more effectively protect queer inmates from sexual assault if they do not fixate exclusively on queer identity. Homosexuality's complicated social epistemology, notoriously an "epistemology of the closet," compels this conclusion. I then reflect on some possible reasons (not necessarily justifications) for K6G's categorical exclusion of people who claim a bisexual identity. This exclusion is one of several aspects of the Jail's segregation policy that Robinson criticizes for disadvantaging individuals who diverge from a race- and class-specific stereotype of "the homosexual."

 

 

Inside Out

23 Dec 2011 09:13am Elizabeth F. Emens 

Russell Robinson has done it again. With Masculinity as Prison: Sexual Identity, Race, and Incarceration, he has given us another provocative Article, which illuminates a phenomenon in the world and, indirectly, in ourselves.

The Article represents much of what generally makes Robinson's work so compelling. First, he writes about tremendously complex subjects and attends to their many complexities in remarkably lucid prose. Second, despite his critical perspective, he does not hesitate to make prescriptive arguments. In this Article, he even ventures into the hallowed ground of constitutional argument, something he has not done since his first article on race-based casting. Third, Robinson is not afraid to offend people by taking controversial positions, yet for the most part he does not seem to court controversy. Finally, he manages to bridge multiple modes of scholarly writing, employing diverse methodologies to analyze problems rigorously and to transform readers' perspectives along the way. For example, Robinson often brings together empirical scholarship- whether extant social science data or his own empirical investigations-with narrative legal scholarship. Although this Article omits the personal narratives that sometimes characterize his writing, it is replete with evocative material from the characters he interviewed.

 

Standing to Sue in the Myriad Genetics Case

23 Nov 2011 09:07am Megan M. La Belle 

A short time ago, a three-judge panel of the United States Court of Appeals for the Federal Circuit issued its decision in Ass'n for Molecular Pathology v. USPTO (Myriad Genetics), one of the most important patent cases in recent history. The Myriad case addresses the controversial question whether isolated human genes related to breast and ovarian cancer can be patented. The case has garnered significant attention from various industries, the Department of Justice, the legal academy, the media, and the public. Features on the lawsuit have appeared in the New York Times, Washington Post, Wall Street Journal, and Los Angeles Times, and approximately forty amicus briefs were filed with the court. So far, commentators and amici have focused primarily on the substantive legal issues: Should genes be patentable subject matter? How do gene patents impact medical research and health care? Do gene patents promote innovation as required by the Constitution? Yet, the Myriad case also raises important questions about the justiciability of patent declaratory judgment disputes that have received surprisingly little attention.

 



The California Law Review is the preeminent legal publication at the UC Berkeley School of Law.
Founded in 1912, CLR publishes six times per year on a variety of engaging topics in legal scholarship.
The law review is edited and published entirely by students at Berkeley Law.