'I Hope the Final Judgment’s Fair': Alternative Jurisprudences, Legal Decision-Making, and Justice

The Cambridge Handbook of Psychology of Legal Decision-making (Monica Miller et al eds. 2022 Forthcoming)

NYLS Legal Studies Research Paper No. 3989991

28 Pages Posted: 27 Dec 2021

Date Written: December 20, 2021

Abstract

At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows us that many (perhaps, most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced.

Interestingly, the notion of “community sentiment” –urged as a potential solution to some of the underlying problems -- often has the exact reverse effect, and delegitimatizes the proceedings, relying as it often does on individuals false “ordinary common sense,” a factor that makes fair decisionmaking much more elusive.

This chapter will discuss these issues, and will explain why this goal of fairness, in the context of these cases, can never be met unless we also consider the virulence of sanism and pretextuality, and the misuse of heuristics that allow us to willfully blind ourselves to gray areas of human behavior, and predispose individuals to endorse beliefs in accord with their prior experiences.

Keywords: fairness; therapeutic jurisprudence; procedural justice; restorative justice; sanism; mental disability law; criminal procedure

Suggested Citation

Perlin, Michael L., 'I Hope the Final Judgment’s Fair': Alternative Jurisprudences, Legal Decision-Making, and Justice (December 20, 2021). The Cambridge Handbook of Psychology of Legal Decision-making (Monica Miller et al eds. 2022 Forthcoming), NYLS Legal Studies Research Paper No. 3989991, Available at SSRN: https://ssrn.com/abstract=3989991 or http://dx.doi.org/10.2139/ssrn.3989991

Michael L. Perlin (Contact Author)

New York Law School ( email )

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New York, NY 10013
United States
212-431-2183 (Phone)

HOME PAGE: http://https://www.nyls.edu/faculty/faculty-profiles/emeriti_faculty/

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