Jeremy A. Blumenthal

Supported Decision-Making: A Viable Alternative to Guardianship?

The law has traditionally responded to cognitive disability by authorizing surrogate decision-makers to make decisions on behalf of disabled individuals. However, supported decision-making, an alternative paradigm for addressing cognitive disability, is rapidly gaining political support. According to its proponents, supported decision-making empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving them the assistance they need to make decisions for themselves. This article describes supported decision-making and its normative appeal. It then provides a descriptive account of how supported decision-making works based on the empirical literature on supported decision-making as well as that on shared decision-making, a related model used in medical contexts. The article shows how employing supported decision-making in lieu of guardianship, or integrating it into the guardianship system, has the potential to promote the self-determination of persons with intellectual and cognitive disabilities consistent with international and national legal norms. However, we find that, despite much rhetoric touting its advantages, little is known about how supported decision-making processes operate or about the outcomes of those processes. Further research is necessary to design and develop effective supported decision-making systems. We therefore propose a series of research questions to help inform policy choices surrounding supported decision-making.

Property law: a cognitive turn.

Despite more than a century of research by psychologists on issues relating to the law, most such research has focused on a small subset of topics relevant to the legal system. Here, I review several legal topics amenable to psychological research that fall under the broad umbrella of property law: (1) how the concepts of property and ownership are represented cognitively; (2) the relationship between wealth and happiness, consumer behavior, and the priming effect of money concepts; (3) animal and child development in cognition about and behavior toward property and ownership; and (4) the relevance of psychological research on home to legal policy. These and other areas provide potential research agendas for cognitive and social cognitive psychologists. After noting the importance of such research for legal doctrine, theory, and policy, I close with suggestions for effectively communicating empirical findings to the legal community.

A Moody View of The Law: Looking Back and Looking Ahead at Law and The Emotions

The current Symposium celebrates 3,400 years of law and emotion. How so? In Leviticus, Chapter 19 Verse 15, judges are instructed to judge rich and poor alike – interestingly, they are, separately, told not to favor the poor and not to favor the rich, but rather to do justice equally. Some interpreters read the prohibition on favoring the poor as trying to ensure that even positive emotions such as sympathy do not bias legal decision-making. Indeed, as this Chapter goes to press, the confirmation hearings for Judge Sonia Sotomayor are highlighting just such issues. Alternatively, we might say that we celebrate more than four centuries of law and emotion: In the late sixteenth century the common law began to recognize the offense of manslaughter, where a killing occurred in the course of a brawl or “chance [or chaunce] medley,” reflecting the passion or emotional state of those engaged in fighting (e.g., Brown 1963; Dressler 1982).1 We might also say that the psychological study of law and emotion is about 100 years old, harking back to the foundational legal psychological work of Hugo Munsterberg (1908) and his study of the biasing impact of emotion on memory and judgment, and of the clues that emotional reactions could give to a defendant’s guilt or innocence.