Judicial Mindfulness

Like all human beings, judges are influenced by personal routines and behaviors that have become second nature to them or have somehow dropped below the radar of their conscious control. Professor Ellen Langer and others have labeled this general state mindlessness. They have distinguished mindful thinking as a process that all people can employ to gain awareness of subconscious influences, and thus increase the validity of their decisions. In this Article, I establish a theory of judicial mindfulness that would guard against two types of cold bias when interpreting legal materials. The first harmful bias involves traumatic past events that might unknowingly influence judges when they decide cases that are reminiscent of the trauma. The second harmful bias involves the elimination of valid legal theories or the interpretation of ambiguous phrases to mean only one thing, thus motivating premature decision-making. Judicial mindfulness is attainable when judges implement two psychological techniques that fit within psychologists Wilson and Brekke\u27s general framework for correcting instances of mental contamination: (1) negative practice and (2) transitional or dialectical thought. These systems alert judges to their biases by allowing them to understand how they arrive at decisions, and then offer a framework that analyzes the processes they employ to achieve legitimate legal conclusions

Beyond Restoration of Honor : Compensating Veterans for the Psychological Injuries of the Gay and Transgender Bans

This Article is titled “Beyond Restoration of Honor” specifically to introduce the policy priority of ensuring that all Sexual and Gender Identity Minority (SGIM) veterans who were harmed by...discriminatory policies [like Don\u27t Ask, Don\u27t Tell] can obtain and use Veterans Affairs (VA) disability benefits for injuries resulting from discrimination while in the military. While this Article highlights the value of codifying a series of specific SGIM stressor markers for PTSD in the VA’s regulations concerning personal assault and creating presumptions of service-connection for specific military experiences, existing laws and regulations permit service-connection for these injuries without further regulatory changes. In recognition of the policy concerns facing this large, under-served group of military veterans, this Article adopts a three-step approach. Part I briefly explores the relationship between SGIM status and adverse mental health outcomes among U.S. veterans. This Part pays particular attention to the characteristics of the anti-gay bans that have theoretically caused mental health injuries. Part III then examines the existing VA disability framework for compensating mental health injuries. This Part identifies VA disability compensation as the appropriate vehicle to address the unmet needs of impacted SGIM veterans. Part III describes the research methodology and results of a study that identified and analyzed VA disability appeals in which veterans claimed that SGIM orientation discrimination caused their mental health condition. Through natural language processing (NLP) strategies and machine learning (ML) algorithms, the study identified 118 Board of Veterans’ Appeals cases out of 123,011 decisions addressing service-connection for mental health disorders. This Part presents the results of statistical analysis of the relationships between case outcomes and case characteristics. It specifies the types of mental health conditions most often claimed and awarded in SGIM discrimination cases, the demographic background of the veterans who appealed, and other factors related to the success and failure of these claims. As an aid to practitioners, this Part introduces an Online Supplement containing a digest of summarized cases, indexed by different facts which may resemble the background of a future veteran’s claim. The last Part concludes with recommendations to ensure that those veterans who have been impacted by the military’s discriminatory policies are able to address longstanding needs and overcome persistent stigma surrounding requests for assistance. This Part discusses the benefits of developing a presumption related to SGIM discrimination in the regulations related to traumatic stressors. It also explores Canada’s recent experience developing a comprehensive governmental approach to veterans who experienced the Gay Purge and is a noteworthy example of success in the restoration of honor. It further draws salient lessons from cases litigated under the present adjudication framework. In sum, the Parts below offer a comprehensive roadmap for immediate action—well beyond simply the restoration of honor. This abstract has been adapted from the author\u27s introduction

The Precautionary Principle as the Law of Planetary Defense: Achieving the Mandate to Defend the Earth Against Asteroid and Comet Impacts While There is Still Time

Current legal and policy efforts to enable adequate defense against potential asteroid or comet collisions with the earth are insufficient because they are indirectly premised upon theories that require verification of a clear and imminent threat before governmental agencies can act. This Article identifies the precautionary principle as the preeminent law of planetary defense against asteroid and comet impacts. The precautionary principle requires governments to take action to prevent harm even when it is uncertain if, when, or where the harm will occur. It requires governments to implement specific frameworks for making prompt decisions, directs intergovernmental bodies to plan for the worst case scenario, and requires planners to develop self-reinforcing standards by scheduling continuing simulations and updates to their technical guidelines. If governments institute these measures and then fail in their efforts to protect earth populations, the principle shields agencies from liability with Good Samaritan immunity. Finally, the precautionary principle mandates that governments coordinate the roles of all the different agencies that could foreseeably become involved in planetary protection in advance of any actual threat. The development of the Initial National Response Plan by the Department of Homeland Security and the experience of governments responding to public health issues offer further guidance to planetary defenders

A Refreshing Jury COLA: Fulfilling the Duty to Compensate Jurors Adequately

This Article adopts a new perspective on the obligation of states to compensate jurors on the basis of their financial needs. It combs the nation’s history for answers to a variety of significant questions: Why do states compensate jurors? Have there ever been minimal levels of juror compensation among the states of the union? Have any legal challenges resulted in governments raising jury fees? Have states developed uniform standards for juror compensation in light of varied economic conditions? While, at times, the responses to these questions will be brief, answering them is crucial to understanding how jury fees can be set in accordance with both their purpose and their history. In order to set fees fairly, legislatures and courts should use the federal minimum wage as a guideline for determining the minimum compensation owed to jurors. This indexing process would increase the amount of jury compensation as the federal minimum wage increases. The index would remedy the lack of foresight that resulted from the pattern set by the initial jury compensation statutes. Much like legislation enacting pension increases for disabled veterans of the Civil War, jury payment provisions of the same time frame only cited then-current monetary values. This jury Cost of Living Adjustment (COLA) immediately would increase the pay of most jurors and remedy the legislative neglect of this issue evident in recent years. It would also serve to keep states abreast of the necessity to increase their juror compensation in the future

Note, When Wishing on a Star Just Won’t Do: The Legal Basis for International Cooperation in the Mitigation of Asteroid Impacts and Similar Transboundary Disasters

This Note uses the threat of collisions of large space bodies with the Earth as a vehicle to investigate the legal duties of nations to participate in collective efforts at megadisaster mitigation. Asteroids and comets are space bodies while meteors occupy a less-threatening category. Although they differ in chemical composition and in visibility to the naked eye, large space bodies can endanger multiple nations simultaneously. Space bodies are ideal topics of investigation because the magnitude of the threats they pose is inestimable. Legal obligations to mitigate Earth impacts apply equally well to other infrequent threats that are currently of the lowest priority among disaster response personnel

Understanding the Person Beneath the Robe: Practical Methods for Neutralizing Harmful Judicial Biases

This article presents hands-on self-awareness techniques for use by judges, arbitrators, members of commissions, and other legal decision-makers who are confronted with complex cases. All too often, these judges are expected to make the “right” decisions without knowing how to accomplish this task. While judges, no doubt, are capable of applying the law to a case, this is only one aspect of righteous behavior. This article is concerned with the related expectation that judges are capable of rendering fair and impartial decisions. No matter how much training they receive, judges can only avoid biases that are known to them

The Duty to “Expect the Unexpected”: Mitigating Extreme Natural Threats to the Global Commons Such as Asteroid Impacts with the Earth

This Article develops a framework to govern the interactions of nations cooperating to mitigate the threat of unexpected natural disasters that potentially could affect them all. It uses asteroid impact with the Earth as the representative example because this is an unusual and extreme disaster that has created difficulty for lawmakers due to its many unanswerable questions. By explaining a number of the legal requirements necessary to mitigate such threats, this Article identifies legal principles that apply equally to natural threats throughout the global commons. The law involved in this analysis arises, in great part, from the judicial recognition of a state\u27s duty of self-preservation. To this end, the American civil defense experience provides guidance on the extent of a government\u27s duty to plan for the unknown, as does the Vorsorgeprinzip in Germany. At the international level, the doctrine of cooperative preservation requires nations to cooperate in joint preventive actions to mitigate dangers so great that no single country alone could effectively protect its citizens from the harm. In order to obtain greater insight into developing an international framework for mitigating extreme natural disasters, this Article considers examples of the law applied to existing efforts to mitigate transboundary nuclear and biochemical disasters, multinational forest fires, and the spread of new and re-emerging infectious diseases across international borders

Dismantling America’s Largest Sleeper Cell: The Imperative to Treat, Rather Than Merely Punish, Active Duty Offenders with PTSD Prior to Discharge from the Armed Forces

By separating combat veterans with uniquely military discharges that make many ineligible for effective PTSD treatment, the active duty armed forces are creating a class of future offenders, specially trained to be lethal, whose violent acts against themselves, their families, and the public collectively amass more casualties, incur more costs, and drain more resources in the homeland than the underlying traumatic episode in the war zone. The obligation to treat these offenders and help them successfully transition to civilian society with preserved VA benefits before discharge is not merely a laudatory goal of therapeutic jurisprudence, but a mandate under the precautionary principle which guides the laws of public health and safety. To meet this obligation, the military must work collaboratively with civilian agencies while offenders are still under military control. Mutual self-preservation demands this

Sex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals

Military prosecutors and defense attorneys must both interact with traumatic case material stemming from victims, offenders, or evidence tied to a sexual offense. The context of the attorney\u27s specific duties makes them susceptible to different types of indirect or Secondary Traumatic Stress [STS] stemming from the litigation. At base, STS generically describes the manner in which a person can be traumatized simply from hearing or being exposed to someone else\u27s trauma or implementations that caused it