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Abstract

The field of law and emotion draws from a range of disciplines in the sciences, social sciences, and humanities to shed light on the emotions that pervade the legal system. It utilizes insights from these disciplines to illuminate and assess the implicit and explicit assumptions about emotion that animate legal reasoning, legal doctrine, the behavior of legal actors, and the structure of legal institutions. In light of law's focus on influencing social norms and on structuring effective and just institutions, one development that holds enormous promise is the growing interdisciplinary interest in collective decision making and in the emotional dynamics of groups. Work in the affective sciences on how emotion and cognition interact is another rich vein for legal scholars interested in the assessment of responsibility and blame, the role of morality in law, and a host of other areas. Another important frontier is exploration of concrete solutions to the problems identified by law and emotion scholars.
LS08CH09-Bandes ARI 9 October 2012 8:9
Emotion and the Law
Susan A. Bandes
1
and Jeremy A. Blumenthal
2
1
DePaul University College of Law, Chicago, Illinois 60604; University of Miami School of
Law, Coral Gables, Florida 33146; email: sbandes@depaul.edu, sbandes@law.miami.edu
2
Syracuse University College of Law, Syracuse, New York 13244;
email: jblument@law.syr.edu
Annu. Rev. Law Soc. Sci. 2012. 8:161–81
The Annual Review of Law and Social Science is
online at lawsocsci.annualreviews.org
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10.1146/annurev-lawsocsci-102811-173825
Copyright
c
2012 by Annual Reviews.
All rights reserved
1550-3585/12/1201-0161$20.00
Keywords
affect, cognition, deliberation, moral reasoning, social norms
Abstract
The field of law and emotion draws from a range of disciplines in the sci-
ences, social sciences, and humanities to shed light on the emotions that
pervade the legal system. It utilizes insights from these disciplines to il-
luminate and assess the implicit and explicit assumptions about emotion
that animate legal reasoning, legal doctrine, the behavior of legal actors,
and the structure of legal institutions. In light of law’s focus on influ-
encing social norms and on structuring effective and just institutions,
one development that holds enormous promise is the growing inter-
disciplinary interest in collective decision making and in the emotional
dynamics of groups. Work in the affective sciences on how emotion
and cognition interact is another rich vein for legal scholars interested
in the assessment of responsibility and blame, the role of morality in
law, and a host of other areas. Another important frontier is exploration
of concrete solutions to the problems identified by law and emotion
scholars.
161
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LS08CH09-Bandes ARI 9 October 2012 8:9
THE PROJECT IN BRIEF
The field of law and emotion draws from a range
of disciplines in the sciences, social sciences,
and humanities to shed light on the emotions
that pervade the legal system. It utilizes insights
from these disciplines to illuminate and as-
sess the implicit and explicit assumptions about
emotion that are found in every area of law. By
reevaluating legal doctrine and policy in light
of these insights, law and emotion scholarship
contributes to a more informed, realistic, and
effective framework for refining legal doctrine
and reforming legal institutions.
The study of law and emotion is, in one re-
spect, simply one of many interdisciplinary ef-
forts to bring a measure of behavioral realism
to the legal realm. Yet the field faces a chal-
lenge that sets it apart from other law and social
science endeavors. Although the debate about
the relationship between emotion and reason
dates back to ancient times, there is a hardy folk
knowledge portraying emotions as quick, hot,
irrational bursts of feeling that short-circuit ra-
tional deliberation and that are impervious to
study or correction (Maroney 2009). In the le-
gal realm, the term has long functioned as a
catchall category for much of what law aspires
to avoid or counteract: that which is subjec-
tive, irrational, prejudicial, intangible, partial,
and impervious to reason. Therefore, one re-
curring task of law and emotion theorists is to
counter the misconception that acknowledging
and investigating the role of emotion in law is
an illegitimate endeavor and one that will have
a destabilizing effect on the rule of law (Bandes
2009c, pp. 491–95; Abrams & Keren 2010).
Law and emotion scholarship enriches un-
derstanding of the law on multiple overlapping
levels:
1. First, it poses a challenge to standard
accounts of rational deliberation and
legal reasoning.
1
On the descriptive level,
1
Even the cognitive psychological literature on judgment un-
der uncertainty and the behavioral law and economics work
that grew out of it make little reference to emotion, except to
identify it generally as a distorting influence. This is so even
it rejects the fiction of pure, emotionless
rationality and explores precisely how
emotion and cognition interact. On the
normative level, it explores the appropri-
ate role of emotion in the identification
and implementation of legal norms and
in the deliberative process for juries,
judges, and other legal actors.
2. Second, at the level of specific doctrine,
law rests on myriad assumptions, both
explicit and implicit, about how emotion
influences behavior and about how to
channel emotion to influence decision
making in desirable ways. Law and
emotion scholarship scrutinizes these as-
sumptions in light of evolving knowledge
about the role of emotion in decision
making across a range of disciplines.
3. Finally, the field increasingly focuses on
emotion not only as an internal and indi-
vidual phenomenon but also as an essen-
tial component of social and institutional
dynamics. It thus sheds light on collective
decision making, on the conditions that
lead to legal change, and on the dynamics
of institutional behavior and institutional
reform.
This review begins with a brief history of
the field, followed by a definition of emotion
and some caveats about terminology. We then
turn to a necessarily selective overview of the
current range of scholarship. Finally, we sug-
gest directions for future study.
A SHORT HISTORY
The emergence of modern law and emotion
scholarship was fueled by several interrelated
trends. First, beginning in the 1980s and early
1990s, the topic of emotion began attracting
renewed scholarly attention in fields such as
when emotionally salient issues such as the role of fear in risk
assessment are at issue (Moran 2002). Given that emotions
help shape the heuristics and other cognitive tools that are es-
sential to the task of information processing (Forgas & East
2003, Englich & Soder 2009), the literature would benefit
from greater attention to emotional dynamics.
162 Bandes
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philosophy (Murphy & Hampton 1990, Nuss-
baum 1990), psychology (Clore et al. 1994), and
sociology (Thoits 1989). Second, legal scholar-
ship took an interdisciplinary turn—rejecting
the notion that all its questions could be an-
swered internally and seeking to incorporate
insights from other fields. Finally, epistemolog-
ical challenges to notions of judicial objectivity
first raised by the legal realists were renewed
and extended by f eminists, critical race theo-
rists, and other scholars (Abrams & Keren 2010,
pp. 2005–6). Feminist jurisprudence in partic-
ular was an important force behind emergent
law and emotion scholarship, arguing that law
tended to privilege a version of reason that ex-
iled important qualities such as empathy and
compassion—qualities that were traditionally
dismissed as feminine and therefore not suffi-
ciently rigorous (Henderson 1987, Minow &
Spelman 1988).
The necessary next steps in developing the
field, as Bandes (1996) argued, were to move
beyond the rehabilitation of certain emotions,
clarify that no particular emotional stance is
likely to be uniformly desirable or undesirable,
and turn to a more specific consideration of
the value of emotions, whether positive or
negative, in defined contexts. As Maroney
(2006, p. 122) described it: “[T]his stage of
the movement reached a high-water mark
with The Passions of Law (Bandes 2000), which
brought together scholars from several corners
of the academy...with a series of essays on the
relationship between law and a select group
of emotions, ranging from disgust to romantic
love.... Passions...prompted several book
reviews, the first publications in legal journals
to describe the emerging field as such, as well
as multiple conferences and symposia on law
and emotion.” Such symposia have become
increasingly common (see symposia listed in
the Related Resources section at the end of
this article; specific symposium articles are
also cited throughout). For more in-depth
histories, see Maroney (2006, pp. 120–23),
Bandes (2009c, pp. 506–9), Abrams & Keren
(2010, pp. 2003–8); for excellent summaries of
the development of emotion studies across dis-
Affective sciences:
an emerging
interdisciplinary field
composed of
psychologists,
neuroscientists,
anthropologists, and
other researchers
concerned with the
role of emotion in
human behavior and
decision making
ciplines more generally, see Hochschild (1983,
pp. 201–22) and Kagan (2007, pp. 10–20).
From an early focus on rehabilitating certain
positive emotions, on the field of criminal law,
and on the insights of psychology and philoso-
phy, the scope of law and emotion scholarship
has expanded considerably. It now covers the
range of positive and negative emotions;
2
doc-
trinal areas such as securities (Huang 2003), risk
regulation (Kahan 2008), foreclosure (White
2010), family law (Huntington 2008), and
trademark (Bradford 2008); and the insights of
a wide range of disciplines, including political
science, sociology, and anthropology. One gal-
vanizing development has been the growth of
the affective sciences in the wake of unprece-
dented scientific access to the neural underpin-
nings of social cognition and human emotions.
DEFINITIONAL ISSUES: WHAT
IS EMOTION? WHAT
ARE EMOTIONS?
One continual challenge of this emerging field
is defining its central term: emotion (see gen-
erally ISRE 2007). Ideally, those who deploy
the category “emotion” or terms describing
emotions in the legal realm will clarify their
working definitions, the context in which the
terms are being used (Kagan 2007, p. 41), and
what legal consequences flow from the use of
the terms. Clarity about working definitions is
a more achievable goal than attempting to gen-
erate abstract universal definitions for complex,
elusive, and nonstandardized concepts. With
that caveat in mind, here is a provisional def-
inition, distilled from current research across
several disciplines: Emotions are a set of eval-
uative and motivational processes, distributed
throughout the brain, that assist us in apprais-
ing and reacting to stimuli and that are formed,
interpreted, and communicated in social and
cultural context. They influence the way we
2
There has been a recent resurgence of interest in the positive
emotions and in their application to policy (see, e.g., Huang’s
2010 overview of happiness studies and legal policy; see also
Abrams & Keren 2007, Huang & Blumenthal 2009).
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Mood: affective state
that tends to be more
transient and diffuse
and less attributable to
a particular source
screen, categorize, and interpret information;
influence our evaluations of the intentions
or credibility of others; and help us decide
what is important or valuable. Perhaps most
important, they drive us to care about the
outcome of our decision making and motivate
us to take action, or refrain from taking action,
on the situations we evaluate.
In short, the current consensus across disci-
plines is that emotions are not, as folk knowl-
edge would have it, occasional, intense, unpre-
dictable moods that interfere with a steady state
of rationality. They are dynamic processes that
are integral to decision making (LeDoux 1996).
Whether and when emotions play a desirable
role in decision making is a separate question,
as discussed below.
Terms for particular emotions, such as re-
morse, disgust, or fear, likewise elude fixed def-
initions, both across and within disciplines. As
Kagan (1998, pp. 14–38) points out, for exam-
ple, a neuroscientist seeking to measure fear re-
sponses in lab rats, an anthropologist studying
fear responses to the approach of strangers, and
a child psychologist studying separation anxi-
ety all use the term fear but describe different
agents, targets, contexts, methodologies, and
research goals, and these need to be specified
to facilitate interdisciplinary interchange. One
seductive trap for jurists and legal scholars is to
deploy such terms as if they have stable mean-
ings not only within individual disciplines but
also when transported to the legal realm (see
Bandes 2009d, pp. 8–13). Massaro (2000) elo-
quently critiques this tendency in her discus-
sion of scholarship advocating the deployment
of shame to alter undesirable social norms. As
Massaro points out, the psychological literature
on shame “betrays very little consensus, other
than that this emotion is complex and central to
a person’s sense of self (p. 84). Nevertheless, as
she argues, the ambiguities and nuances of the
literature are “underplayed in the social norm
model in order to make universal claims about
human behavior” that are then relied upon to
impose legal sanctions (p. 84).
One model of scholarship that avoids this
definitional pitfall is an exchange between
Nussbaum (2000) and Kahan (2000) on the
role of disgust in the law. Nussbaum takes the
view that disgust plays no salutary role in law
and leads mainly to discrimination against re-
viled groups, whereas Kahan argues that dis-
gust helps demarcate areas in which law should
recognize strong moral opprobrium. Their dis-
agreement rests in part on their different no-
tions of the nature of disgust, which Nussbaum
defines, drawing from Rozin & Fallon (1987),
as an aversive reaction to animality and bod-
ily functions, and which Kahan views as more
akin to moral outrage. Readers are aided in
this debate by the fact that both authors clarify
their definitions of the term (Kahan 2000, p. 64;
Nussbaum 2000, pp. 24–26).
Conversely, for an example of the legal con-
sequences of definitional imprecision, consider
remorse. The legal system tends to behave as
if remorse is a monolithic property and, more-
over, one that can be reliably measured in a legal
setting. A perceived lack of remorse may lead
to a longer sentence, a denial of parole, or even
a death sentence, and yet the legal system has
paid scant attention to determining what an ap-
propriate display of remorse ought to look like,
to evaluating the ability of various fact finders
to ascertain whether a defendant is remorse-
ful, or to considering how displays and inter-
pretations of remorse might vary depending on
age, race, ethnicity, or other variables (Duncan
2002, Murphy 2007, Weisman 2009).
Scholars must remain alert to the per-
ils of imprecision in transporting terminology
and conclusions from one field to another.
Maroney’s (2006) law and emotion taxonomy
provides a valuable organizing framework for
scholars across the range of disciplines.
ILLUMINATION,
INVESTIGATION, AND
INTEGRATION
Illuminating and Investigating Law’s
Affective Dimensions
As Abrams & Keren (2010, p. 2033) usefully
describe, law and emotion scholarship seeks,
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first, to illuminate the affective features of le-
gal problems; second, to investigate these fea-
tures through interdisciplinary analysis; and fi-
nally, to integrate understanding into practical,
normative proposals. Here we focus on the il-
lumination and investigation stages of the in-
quiry, turning in the next section to how law
and emotion insights might be integrated and
implemented.
In some contexts, the affective dimensions
of a legal problem are at least partially ex-
plicit. Shaming punishments, for example, ex-
plicitly seek to invoke the emotion of shame
(Massaro 2000). Sentencing judges, jurors, and
parole boards emphasize the importance of a
defendant’s display of remorse (Haney et al.
1994, p. 163). Anti-sympathy instructions com-
mand juries to put the emotion of sympathy
aside (California v. Brown 1986). Tort law seeks
to measure emotional distress (Madeira 2006).
Criminal law regards homicides committed in
the heat of passion as less culpable than cold-
blooded murders (Lee 2003, Finkel & Parrott
2006).
More often, the affective component of law
is far less transparent. The illumination dimen-
sion therefore includes “the task of highlight-
ing the unacknowledged ways that emotions are
implicated in a particular legal setting” (Abrams
& Keren 2010, pp. 2033–34), as described in the
next section.
The role of emotion in doctrine. Doctrines
often rest on implicit assumptions about
emotion. For example, Calhoun (2000) argues
that objections to same-sex marriage rest upon
implicit assumptions about who is capable of
romantic love. Bagenstos & Schlanger (2007)
argue that disability law is based on unstated
misapprehensions about the likely level of hap-
piness and enjoyment of life attained by those
who become disabled. Or relatedly, doctrines
may fail to acknowledge emotional effects
or their consequences. S anger (2009, p. 414)
argues that humiliation is the unexamined by-
product of the requirement of judicial bypass
hearings for minors. Fisk (2001) argues that
employment law lacks a coherent theory of the
harms of workplace humiliation. Blumenthal
(2008, pp. 20–26) argues that abortion jurispru-
dence fails to consider whether the fear or anx-
iety generated by informed consent warnings
interferes with autonomous decision making.
More subtly, assumptions about what counts
as emotion may influence legal doctrine in ways
that go undetected. For example, appeals for
mercy may be coded as emotional and off-
limits, whereas appeals for vengeance or ret-
ribution may be coded as garden-variety legal
arguments (Bandes 2009c, pp. 497–98). Much
of the importance of the scholarship on law and
emotion lies in exploring the ways in which
the categories of reason and emotion are de-
ployed and in “challenging the notion of a neu-
tral, emotionless baseline” in legal theory and
practice (Bandes 1996, p. 370).
The role of emotion for various legal actors.
There has long been a robust empirical litera-
ture on jury decision making, albeit one that has
not had enough to say specifically about juror
emotion (but see Hastie 2001, Sundby 2003,
Kerr 2010) or about how the collective dynam-
ics of the jury room differ from the emotions of
individual jurors (but see Sunwolf 2004, Sundby
2005, Lynch & Haney 2011). It is more recently
joined by a literature on the role of emotion
in negotiation (e.g., Ryan 2005). Nevertheless,
the question of how emotion ought to figure in
the reasoning process of particular legal actors
or legal entities—for example, jurors as a col-
lective entity, legislators (see Sanger 2012), or
judges—is ripe for investigation.
The emotions of judges have generally re-
ceived scant attention, which is unsurprising
in light of the tenacity of the belief that the
jurist must rise above particular influences to
dispense blind justice. Recently, however, the
emotional dynamics of judicial decision making
have attracted substantial attention, prompted
in part by controversy over the role of empathy
in judging (Bandes 2009a, Abrams 2010, West
2012). Scholarship has focused both on how
judges deliberate (see, e.g., Posner 2008) and on
how the emotional dynamics of judicial delib-
eration affect judges (see, e.g., Maroney 2011b,
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LS08CH09-Bandes ARI 9 October 2012 8:9
discussing how judges do and should regulate
their emotions).
Scholars have used a variety of methods to
investigate the cognitive processes, emotions,
and intuitions of judges (in addition to the
time-honored methods of parsing judicial opin-
ions and reading judicial biography; see, e.g.,
Pillsbury 2000). These methods include inter-
views (see Maroney 2011b); paper and pencil
tests administered to test judicial intuitions and
the interaction between intuitive and delibera-
tive thinking (Rachlinski et al. 2007) and also
to test judges’ implicit biases (Rachlinski et al.
2009); empirical studies of the decisional dy-
namics of three-judge panels (Sunstein et al.
2006); linguistic coding of the emotional tenor
of Supreme Court justices’ questions at oral ar-
gument (Black et al. 2011); and, at least po-
tentially, the use of neural imaging technology
(Maroney 2011b, pp. 678–79).
The role of emotion in the reasoning
process. Emotion influences not only “the
content of cognition” but also how people
think” (Forgas 2001, pp. xiv, emphasis in
original). Cognitive science has progressed in
its understanding of the role of emotion in the
decision-making process by studying patients
with brain abnormalities or injuries that impair
emotional functions (e.g., Damasio 1994, 1999;
Bechara et al. 2000). More recently, the field of
cognitive neuroscience has employed powerful
neuroimaging technology to investigate the
dynamics of reasoning and emotion’s role
in the process of judgment (see, generally,
Sinnott-Armstrong 2008a,b and summaries
by Aronson 2010 and Goodenough & Tucker
2010). These new research tools supplement
existing paper-and-pencil tests, courtroom
mock-juror studies, and laboratory and field
studies on the interplay between emotion and
cognition (see Forgas 2001, pp. 1–23, for a
summary of foundational research).
The legal literature is mining this rich vein
to delve more deeply into precisely how emo-
tion influences legal judgment. We highlight
two strands of this research here: studies of the
effects of emotion and mood on judgment (with
a discussion of the application of that research
to the issue of victim impact statements) and
work in cognitive science on emotion and moral
decision making, with additional attention to
the subject of empathy.
Emotion and judgment. Substantial empirical
evidence shows that emotion affects judgment
in a variety of ways. On the most basic level,
emotion helps sort, evaluate, highlight, and pri-
oritize information and provides an impetus to
act upon it. It is “like an unseen lens that colors
all our thoughts, actions, perceptions, and judg-
ments” (Goodwin et al. 2001, p. 10). Studies
show that emotion affects individuals’ percep-
tions of probability and risk and their percep-
tions of fact more generally (e.g., Loewenstein
et al. 2001; Bandes 2008a; Kahan 2008, 2011).
Further, affective influences often occur out-
side of conscious awareness, and people tend
to minimize their effects (Haidt 2001). Recent
studies on affective forecasting also suggest that
people tend to inaccurately predict how they or
others will be emotionally affected in the future
by negative events such as harm or injury or by
positive events such as a monetary award (see
Blumenthal 2005b, Bronsteen et al. 2008).
As part of an extensive body of work on the
role of emotion in assessing legal responsibility
and blame, Feigenson (2010, pp. 46–47) identi-
fies four ways in which emotions can influence
legal judgments: (a) by affecting people’s strate-
gies for processing information; (b) by biasing
the perception, recall, or evaluation of facts in
a particular direction; (c) by providing informa-
tional cues to proper attribution of blame; and
(d ) by anticipating future emotions that might
follow from a judgment (see also Feigenson &
Park 2006).
Several examples illustrate these paths. Re-
searchers are focusing on distinguishing be-
tween the effects of sadness and anger on evi-
dentiary judgments (Semmler & Brewer 2002),
and on the impact of emotion during differ-
ent phases of litigation, for example, assess-
ment of blame versus assessment of damages
(Feigenson et al. 2001). More vivid depictions
of trial events (i.e., videotape versus written
166 Bandes
·
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presentation) have been linked to increased
mood change and to different liability judg-
ments (Fishfader et al. 1996). Studies show
that gruesome photographic evidence increases
mock jurors’ negative emotional state and usu-
ally leads to increased conviction rates (e.g.,
Bright & Goodman-Delahunty 2006). Edwards
& Bryan (1997) have shown that mock jurors
are unable to disregard emotionally charged ev-
idence when instructed to and that the emo-
tional content of such evidence leads mock
jurors to reach more guilty verdicts and im-
pose longer sentences. Blumenthal (2005a,b),
Feigenson & Park (2006), and Maroney (2006)
summarize many other studies of emotion’s im-
pact on legal judgments.
The example of victim impact statements.
Twenty years ago, the US Supreme Court re-
jected an Eighth Amendment challenge to t he
use of victim impact testimony (testimony by
family members and others close to the victim)
in capital trials (Payne v. Tennessee 1991). Victim
impact statements usefully illustrate both how
assumptions about emotion lead to concrete le-
gal consequences and how researchers might
investigate the validity of these assumptions.
In Payne v. Tennessee, the Court assumed
that victim impact statements serve an infor-
mational rather than an emotional purpose. It
found that without such evidence, the victim
may be turned into a “faceless stranger,” de-
priving “the State of the full moral force of its
evidence and [preventing] t he jury from having
before it all the information necessary to deter-
mine the proper punishment for a first-degree
murder” (p. 825). Victim impact statements,
in the Court’s view, provide information about
the uniqueness of the life lost and the impact of
the murder on the family (p. 825). The Payne
Court also assumed that hearing the statements
would not encourage jurors to engage in the
comparative valuation of victims and would not
lead to arbitrary judgments based on legally
irrelevant characteristics of the victim, the
victim’s family members, or the defendant
(p. 823). More recently, the Court declined to
decide whether the use of video victim impact
evidence, accompanied by music and narration,
merited reconsideration of its decision to per-
mit victim impact testimony (Kelly v. California
2008). Justices Stevens, Breyer, and Souter
would have considered the issue, arguing that
the powerful emotional impact of the state-
ments rendered them especially prejudicial.
Indeed, for Justice Stevens, the only effect of
the statements was to “rouse jurors’ sympathy
for the victims[,]...invit[ing] a verdict based
on sentiment, rather than reasoned judgment”
(pp. 567–68). Justice Stevens thus assumed
both that emotion is irrational and that
emotion in this context has a causal effect on
judgment.
Courts and commentators alike have criti-
cized the use of victim impact statements, ar-
guing that the emotion they generate, whether
favorable toward the witness or the victim or
unfavorable toward the defendant, undermines
the capital sentencing process and improperly
influences capital juries toward a death sentence
(Booth v. Maryland 1987, Bandes 1996, Logan
1999). B ut the debate about victim impact
statements is poorly served by a discourse that
either denies the presence of emotion entirely
(as the Payne decision does in classifying the
statements as merely informational) or equates
“emotional” with “prejudicial” (as Justice
Stevens does in the opinion quoted above). A
better approach is to acknowledge that victim
impact statements evoke emotion, investigate
the emotional dynamics they engender, and
inquire whether the emotions they evoke are
consistent with the goals of capital sentencing
and with constitutional safeguards against
arbitrary or unequal punishment. As Salerno
& Bottoms (2009, p. 279) observe in a recent
review of the literature, “the Court’s assump-
tions in those decisions are ripe for empirical
testing, and they have been tested, in a growing
number of studies that have produced mixed
findings” (see Wevodau & Blumenthal 2009
for a meta-analysis of studies).
More than a decade of empirical research has
shown that victim impact statements increase
punitiveness in jurors. Studies consistently,
though not invariably, show that hearing these
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LS08CH09-Bandes ARI 9 October 2012 8:9
statements increases the probability of mock
jurors r endering a death sentence, at times
more than doubling the likelihood (Myers
& Arbuthnot 1999, Wevodau & Blumenthal
2009). The limited study of actual capital juries
also suggests an effect (Aguirre et al. 1999).
Whether this punitive effect is a prejudi-
cial effect is ultimately a legal question, but
one that should be evaluated in light of social-
scientific findings on how victim impact state-
ments operate in practice. Some scholars (e.g.,
Myers & Greene 2004) suggest that the puni-
tive effect of victim impact evidence is the
result of deeper processing, of more consid-
ered rational decision making that incorporates
emotion, in line with a long line of research
showing that negative mood is conducive to
less superficial thinking than positive or neutral
moods (e.g., Schwarz et al. 1991). (An important
caveat here is the distinction between mood and
emotion.) Others suggest, in line with F eigen-
son & Park’s (2006) model discussed above
[and also with Haidt’s (2001) social intuition-
ist model discussed below], that the anger the
statements arouse in jurors may activate a de-
sire to impose blame and a biased search for ev-
idence to validate that desire (Nadler & Rose
2003, pp. 443–48; Salerno & Bottoms 2009,
pp. 284–85).
Thus more research is necessary to identify
the emotions evoked by victim impact evidence
and their causal effect on judgment (Myers et al.
2002, Blumenthal 2009). Researchers should
better isolate which emotional experience is
at work, such as, for example, sympathy for a
witness, grief at the loss, or anger or disgust
toward the defendant. In addition, they should
explore the differential effects of anger and
sadness on the deliberative process (Lerner
& Keltner 2000, Blumenthal 2005a) and the
emotional impact of various forms of victim
impact evidence (Wevodau et al. 2012). They
should also investigate whether strong negative
emotions toward the defendant interfere with
the jury’s ability to remain open to the defen-
dant’s mitigation evidence. Finally, researchers
should continue to explore the dynamics of
empathy for various types of victims (Greene
1999, Sundby 2003) to determine whether
the statements encourage the comparative
valuation of victims and whether selective
empathy toward particular victims or their
family members affects sentencing.
Significantly—and connecting with our dis-
cussion of interpersonal emotion below—
virtually no research has traced the effect of
victim impact statements on the jury and its
deliberative processes. Only one of the mock-
juror studies (Myers & Arbuthnot 1999) seems
to have considered jury deliberation, and it
is still unclear how group deliberation affects
individual emotions (Blumenthal 2012). As
Bandes (2009d, p. 18) points out, “given how
much there is to learn generally about group
emotion, there is a particular need to focus on
how victim impact statements affect the emo-
tions of the jury as a collective entity.”
Finally, victim impact statements in capi-
tal cases have more recently been defended for
their role in providing closure to victims’ fami-
lies. This assumption, too, is ripe for empirical
testing (see Bandes 2009d, pp. 18–19; Madeira
2010).
The role of emotion in moral decision making.
Legal scholars have long debated the role of
“moral” emotions and capacities, such as moral
indignation, outrage, disgust, compassion, and
empathy, in norm creation and decision making
(Kahan 2000, Nussbaum 2006, Sunstein 2009).
Scientific studies lend increasing support to the
conclusion that emotion is integrally involved
in moral judgment, and substantial research is
underway on precisely how emotion, cognition,
and morality interact. Most current theories
adopt a version of a dual-process model, in-
volving some combination of quick, intuitive
judgments and slower, more deliberative judg-
ments. Much of the debate centers on how the
two processes interact.
One pitfall to watch for in the dual-process
model literature is slippage between the
concepts of intuition and emotion. Scholarship
in law, political science, and other disciplines,
to some extent abetted by the neuroscientific
literature itself, too often displays a tendency
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to equate intuitive with emotional and de-
liberative with reasonable, replicating the
problematic dichotomy between emotion and
reason. Not all quick, intuitive judgments are
emotional in nature, and emotion influences
slow, deliberative judgments in addition to
quick intuitive ones (Bandes 2008a, 2012).
In Haidt’s (2001) social-intuitionist theory,
moral decision making is intuitive, fast, un-
conscious, and automatic. According to this
approach, moral judgments are like aesthetic
judgments—stimuli lead to instant, affect-laden
feelings of moral approval or disapproval—and
involve a causal link: “Moral intuitions (includ-
ing moral emotions) come first and directly
cause moral judgments” (p. 814).
In contrast, moral grammarians (e.g.,
Hauser 2006, Mikhail 2007) suggest that indi-
viduals have innate templates that establish the
potential for a variety of moral systems. The
precepts and rules guiding these moral systems
yield judgments of stimuli’s moral rightness
or wrongness, just as language rules identify
whether a particular sentence is grammatically
proper. As in Haidt’s approach, these moral
judgments (like linguistic judgments) are auto-
matic and unconscious; unlike in Haidt’s model,
however, they do not involve emotion—indeed,
they generate emotions (Hauser 2006).
Greene and colleagues (e.g., Greene et al.
2001, p. 2106) suggest that some moral deci-
sions “engage emotional processing to a greater
extent than other[s], and these differences in
emotional engagement affect people’s judg-
ments” (see also Ugazio et al. 2012). They argue
that emotion automatically and unconsciously
influences personal but not impersonal moral
decisions. They suggest that fast, automatic, in-
tuitive moral responses tend to involve retribu-
tive reasoning, though that retributive reason-
ing may be subsequently revised or overridden
by slower, more controlled processing.
The implications of powerful neuroimaging
techniques such as fMRI and PET scans and
other cognitive psychology and neuroscience
findings for law are the subject of lively de-
bate (for a thorough, somewhat skeptical re-
view, see Pardo & Patterson 2010). Neurosci-
Affect: general term
subsuming emotion
and mood
entific findings offer insights into long-standing
philosophical and jurisprudential puzzles about
the nature of reason and emotion (see, e.g.,
Goodenough & Tucker 2010, p. 76) and raise a
host of questions as well. As Blumenthal (2010,
p. 203) notes, they raise “at least two vital re-
search questions for law and emotion scholars.”
First, which sorts of legal judgments fall into the
intuitive category? (See, e.g., Darley et al. 2000,
Darley 2009, arguing that notions of just pun-
ishment are intuitive and tend to be retributive
in nature; and see MacCoun 2012, exploring the
role of disgust and moral outrage in the forma-
tion of attitudes toward drug policy and other
policies involving risky behaviors.)
Second, what is the connection between
“neuron-level moral judgments and legal judg-
ments” (Blumenthal 2010, p. 204)? For exam-
ple, if Greene is correct that moral reasoning in
personal decisions triggers a different and more
emotional cognitive process from moral rea-
soning in decisions regarded as abstract and im-
personal, this conclusion has interesting impli-
cations for jury decision making in general, for
more specific issues like the use of videotaped
testimony, and for the validity of mock-jury
studies, among other issues. If Haidt is correct
that moral judgment comes first, followed by
a reasoning process that is designed to explain
rather than revise the initial intuition, his model
has, at minimum, important descriptive impli-
cations for our understanding of how judging
and other deliberative processes occur. It may
also have prescriptive implications. Along these
lines, Sunstein (2009) has explored the emotion
of moral indignation as a species of intuitive
processing that provides valuable information
to the legal system but that often needs to be
tempered by more reflective reasoning, and has
considered how various legal institutions and
processes (including homicide trials, adminis-
trative and legislative risk regulation, and puni-
tive damage assessments) ought to be structured
to ensure that both intuition and deliberation
play their appropriate roles.
Moreover, Haidt (2001), Bloom (2010), and
others argue that moral judgment flourishes not
in splendid isolation but in situations of s ocial
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interchange, particularly with those who hold
different perspectives. The implications of this
model for the structure of deliberative institu-
tions such as the jury and the judicial system are
well worth exploring (see, e.g., Bandes 2011,
discussing implications for judging).
Empathy. A related research area is the cogni-
tive science of empathy, which sheds light on
how individuals understand the minds, desires,
and motivations of others (for an excellent com-
pendium, see Decety & Ickes 2009). The role
of empathy in law has been much discussed
recently, specifically in the judicial context, as
mentioned above. The debate has been bedev-
iled by definitional ambiguities (Bandes 2009a),
ambiguities that are not unique to law. Neu-
roscientific studies of empathy are helping to
disambiguate the neural underpinnings of vari-
ous types of empathy, some of which also go by
such names as sympathy and compassion (Bat-
son 2009). For example, “among philosophers,
coming to feel as the other feels has often been
called ‘sympathy,’ not empathy.... Among psy-
chologists, it has been called ‘emotional conta-
gion,’ ‘affective empathy’ and ‘automatic emo-
tional empathy...’” (p. 6).
These definitional ambiguities are relevant
to legal and political debates over the role of
empathy in judging. For example, some con-
cerns about judicial use of empathy are based
on the notion that empathy entails a sentimen-
tal attachment to—or a desire to offer assistance
to—one of the parties in a controversy and is
thus inconsistent with impartiality. This con-
cern may be well-founded if empathy means an
“impulse to respond with sensitivity and care to
the suffering of another” (Batson 2009, p. 9).
However, if empathy consists of understanding
the thoughts and feelings of another (Batson
2009, p. 4), then it is, arguably, an essential ca-
pacity for judges (Posner 2008, p. 117; West
2012).
Moreover, the dynamics of empathy are
relevant to law in much broader contexts. If
empathy is the capacity to understand the
thoughts and feelings of another, it becomes
clear that it is not an occasionally employed
sentiment or a sentiment directed solely at
those less fortunate, but a tool that is in constant
(albeit not always accurate) use in legal decision
making. Once empathy is understood in this
light, it becomes possible—and essential—to
investigate how empathy is employed in a
variety of legal contexts. For example, studies
suggest not only that juries have difficulty
empathizing with defendants from other racial
and demographic backgrounds (Haney 2005,
pp. 189–209; Lynch & Haney 2011) but also
that juries in homicide cases tend to feel more
empathetic toward some homicide victims than
others and that this selective empathy influ-
ences their verdicts (Sundby 2003). The science
and social science of empathy also point the way
toward the possibility of addressing empathy
deficits or selective empathy; empathy appears
to be a capacity that is eminently trainable
(Goleman 2006, pp. 314–15; Feshbach &
Feshbach 2009).
Implications for Implementation
and Reform
As the foregoing discussion illustrates, the re-
lationship between law and emotion is multi-
faceted. Therefore, the reforms to which in-
sights from law and emotion scholarship point
may take many forms, including revising doc-
trine, reconsidering the design of legal insti-
tutions or the allocation of institutional roles,
revisiting policy objectives or their means of
implementation, and rethinking means of com-
munication and persuasion. Abrams & Keren
(2010, pp. 2049–68) present a thorough analy-
sis of these approaches; we offer some examples
here.
Doctrinal revision is the most straightfor-
ward type of reform, at least in theory. Where
legal doctrine relies on erroneous assump-
tions about emotions or emotional dynamics,
it ought to be reconsidered. For example,
shaming sanctions are meant to deter and re-
habilitate, and if it turns out that they not only
serve neither purpose but also actually stig-
matize and marginalize offenders in a way that
interferes with both these goals, then shaming
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sanctions serve no legitimate penal purpose and
should no longer be imposed (Massaro 2000).
3
But the reform implications of law and emo-
tion scholarship extend well beyond doctrinal
revision. Two key points about implementation
must be emphasized. First, although much re-
mains to be learned about how emotion and
cognition interact, it is clear that the folk con-
cept of emotions as unknowable and untamable
is incorrect. Not only can emotions be studied,
from the neurobiological to the individual to
the interpersonal level, but there is growing ev-
idence that they can also be guided, channeled,
and educated.
On the individual level, numerous studies
show that people are able to regulate or man-
age the emotions they experience, whether by
reconstructing aspects of a situation, shifting
attention, reappraising reactions to a situation,
or avoiding situations that might elicit a
particular emotion altogether (see Maroney
2011a, reviewing the literature and applying
it to judicial emotion). Much of the primary
emotion regulation and management research
thus far has developed in the context of coping
strategies and psychological health. Thus, an
important avenue for law and emotion research
will be to move this line of research into
decision making generally and legal decision
making in particular.
Not only can emotions be managed, they
can be educated. Emotion-based capacities such
as empathy (Feshbach & Feshbach 2009), as
discussed above, appear to be highly educa-
ble. There is some evidence that this educa-
tive capacity exists not only for emotions in
conscious awareness, but even for intuitive, un-
conscious emotions; implicit biases; and stereo-
types (Goleman 2006, pp. 300–4; Blumenthal
3
We do not suggest that the mere presence of a disconnect
between legal standards and knowledge in the sciences or so-
cial sciences should lead automatically to revision of doctrine
or policy. Law has requisites that may weigh against chang-
ing doctrine, including rule-of-law values such as notice and
predictability. This is a tension that exists in any area of law
informed by knowledge from evolving fields, n ot a problem
unique to questions of emotion and law (Blumenthal 2002).
2010, pp. 196–98; Kang & Lane 2010).
4
It
appears that people can be educated to make
subconscious operations accessible (Gigerenzer
2007) and that initial automatic reactions can be
regulated by higher-order cognitive processes
(Berkowitz et al. 2001). This work has impor-
tant implications for a range of legal decision
makers (see, e.g., Rachlinski et al. 2009, dis-
cussing how judges’ implicit biases might be
ameliorated; Haney 2005, pp. 189–209, dis-
cussing the role of the capital system in ex-
acerbating or ameliorating “empathic divides”
based on race). However, much remains to be
learned about the dynamics of bias correction.
Once inappropriate or harmful influences on
decision making are identified, the question for
researchers is how the legal system can effec-
tively address them, correct for them, and guide
decision making into more appropriate chan-
nels (Blumenthal 2007; see also Jolls & Sunstein
2006).
The second key point, discussed in more
detail in the next section, is that the conven-
tional focus across disciplines on emotions as
private, internal feelings has been enormously
limiting, both in general and in the legal con-
text. Emotions are dynamic processes that are
shaped and guided by social and institutional
context, and thus it is crucial to pay attention
to how legal context affects emotions and
emotional capacities.
Research by Robbennolt (2003) and
Etienne & Robbennolt (2007) provides a good
illustration of the importance of attention
to context, demonstrating that apologies and
their emotional effects can have salutary con-
sequences in some situations but not in others.
Robbennolt has shown that in civil litigation, a
full apology from the offender can reduce the
victim’s anger and increase sympathy for the
4
The emotional dimensions of bias and prejudice remain
an underexplored aspect of the implicit bias literature.
Goleman (2006, pp. 298–300) describes the creation of us-
them categories asheavily influenced by fear,uneasiness, anx-
iety, and other emotions and the mutation of subtle biases
into full-fledged prejudices as a process in which fear, anger,
and hatred are deeply implicated. See also Parkinson et al.
(2005, pp. 119–20).
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tortfeasor; indeed, a full apology also makes
it more likely that a settlement offer will be
accepted (Robbennolt 2003). However, in the
criminal context, Etienne & Robbennolt (2007)
found that even though apologies should work
similarly—reducing anger, ameliorating an
offender’s feelings of guilt, increasing sym-
pathy for the offender—the dynamics of plea
bargaining in the criminal justice system (e.g.,
the fact that attorneys negotiate and parties do
not meet face-to-face) nevertheless reduce the
effectiveness of apologies. Wohl et al. (2011)
made similar findings regarding the effects of
apology at the intergroup level.
Just as emotions are shaped by social and in-
stitutional context, institutions are constructed
in light of assumptions about emotional dynam-
ics. In the legal realm, as elsewhere, these as-
sumptions are ripe for scrutiny in light of a
growing body of interdisciplinary knowledge
about emotion in group and institutional set-
tings (Bandes 2009b, p. 394), as discussed in
the next section.
EMOTION IN GROUP AND
INSTITUTIONAL SETTINGS
Nearly 30 years ago, sociologist Arlie
Hochschild (1983, pp. 201–3) identified
the tendency to treat emotions as private
and internal as one of the major barriers to
serious inquiry into the nature of emotions.
Nevertheless, until recently, the social sciences
continued to study individual subjects and their
individual emotions (Bandes 2009d, p. 4 n.12)
and then assume that the knowledge had broad
application to emotions in diverse contexts,
including settings that involved complex group
and institutional dynamics. For law, with its
focus on structuring effective institutions to
guide and channel human behavior, this narrow
focus on private, individual emotions has been
problematic. Emotions are social processes
that arise, in part, through interactions or
anticipated interactions with others (Salovey
2003). They both influence and are influenced
by social, cultural, and institutional context.
Recently, a number of disciplines have
begun to focus on emotion in social context.
The sociology of emotion is now a burgeoning
field (Lange 2002, Turner & Stets 2005).
Psychologists are increasingly interested in
emotion and social cognition and emotional
dynamics in group settings (Parkinson et al.
2005) and in the interaction between emotion
and culture (Niedenthal et al. 2006), an interest
they share with anthropologists (Lutz & White
1986). Political scientists are exploring the role
of emotion in democratic deliberation (Marcus
2002, Westen 2007, Krause 2008, Lakoff 2008,
Sajo 2011). The emerging field of affective
neuroscience is examining the neural dynamics
of emotional interchange (Davidson & Sutton
1995, Goleman 2006). Criminologists are
looking at the role of emotion in a variety of
contexts, including the formation of punitive
attitudes, the dynamics of violence, and the
structure of criminal justice institutions such
as police departments and prisons (Karstedt
et al. 2011). Viewing emotions in their broader
social and cultural context permits a fuller
understanding of their role in the law and
points the way toward a rich set of questions for
future scholars in the field of law and emotion:
1. Emotion and social norms: Emotions
such as shame, fear, trust, and the desire
for approval are intimately involved in
the development, communication, and
enforcement of the norms animating law.
Legal scholars have engaged with the
emotional aspects of norm creation in a
few discrete areas, notably on the topic
of why and how we punish ( see, e.g.,
Braithwaite 1989, Garvey 2003, Markel
2004, Bandes 2008b, Berman & Bibas
2008, Darley 2009). But emotions are
implicated in a wide array of basic social
norm questions, such as the creation of
familial norms (see Huntington 2010) or
norms of respect for intellectual property
(see Goodenough 2009, pp. 400–1), or
questions of why citizens obey the law
or feel themselves part of a polity (Deigh
2000, Dubber 2006, Gewirtzman 2009).
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2. Emotion cultures: Law is permeated
with implicit social and cultural expec-
tations about the feeling and display of
emotion (for discussion generally of emo-
tion cultures, feeling norms, and expres-
sion norms, see Hochschild 1983, Thoits
1989, Clark 1998). These include, for ex-
ample, expectations about who is capable
of romantic love and therefore marriage
(Calhoun 2000), or about what rape vic-
tims or domestic violence victims ought
to feel and how they ought to express
their feelings (Schuster & Propen 2011),
or about what pregnant women ought to
feel toward their unborn babies (Guthrie
2008). The study of emotion cultures
also encompasses the culture of particu-
lar legal institutions, such as the bench
(Maroney 2011a), the courtroom (Haney
2005), the law school classroom (Harris
& Shultz 1993), and the law firm (Levit
& Linder 2010).
5
3. Effects of group dynamics on the
emotions of individuals: What effect
does group participation have on the
emotions of individuals? For instance,
does jury deliberation increase or de-
crease the emotional effect of gruesome
photographic evidence or victim impact
statements? The results of the empirical
research are mixed (see Blumenthal
2012); for example, some studies suggest
that group discussion diminishes nega-
tive but not positive mood effects (Forgas
1990); others suggest that group delib-
eration increases punitiveness in jurors
(Myers & Arbuthnot 1999, pp. 99–100).
The area is ripe for jury researchers.
4. The unique dynamics of group-level
emotion: The study of group-level or
collective emotion has been hampered by
5
The issue of emotion cultures in law school classrooms and
in the practice of law is an important aspect of the field of
therapeutic jurisprudence, which is concerned with the ther-
apeutic (or countertherapeutic) impact of the legal system
on legal actors, litigants, and others affected by its operation
(see, e.g., Wexler & Winick 2003).
two types of misconceptions. From a de-
scriptive standpoint, the decision making
of deliberative bodies has too often been
approached as merely the aggregate of the
decision making of a number of individu-
als. A collective body, however, is an en-
tity with its own characteristics (Tavuchis
1991, pp. 99–100; Krause 2008, pp. 144–
45). Thus, for example, jury studies that
focus on the deliberation of individual
jurors fail to capture the complex emo-
tional dynamics of the jury room and how
such dynamics affect the formation of
collective mood. In the realm of political
science, as Krause (2008, pp. 144–45)
argues in her examination of the role of
moral sentiments in democratic deliber-
ation, the focus on decision making as an
aggregation of individual preferences fails
to capture the dynamics of the “process
of forming common judgments.” From a
normative standpoint, collective emotion
and collective judgment have too often
been dismissed with pejoratives such
as mob action, group think, and crowd
dynamics (Bandes 2012) rather than
studied in all their complexity. In a salu-
tary trend, increasing empirical research
is under way on group-level emotion,
intergroup emotion, and emotional
contagion (Barsade 2002; Parkinson
et al. 2005, pp. 87–143; Goleman 2006,
pp. 13–26; Smith et al. 2007). One area
of particular relevance to law is research
on the conditions conducive to informed
deliberation and on the relationship
between informed deliberation and the
heterogeneity of the decision-making
body (see, e.g., Sommers 2006).
5. Emotion and institutional structure:
Institutions are, inevitably, constructed
in light of assumptions about emotional
dynamics, and these assumptions should
be illuminated and evaluated. Knowledge
of emotional dynamics can be utilized
to restructure incentive systems (see
Gigerenzer 2007, pp. 157–58) and con-
struct more effective legal institutions.
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For example, Minow (2000) has examined
the respective roles of divorce courts,
mediation and arbitration tribunals, and
truth and reconciliation commissions
in channeling, educating, exacerbating,
and responding to emotions. Bandes
(2006a) has criticized the incentive
structure of some prosecutors’ offices
that place a high premium on group
loyalty at the expense of accountability
and respect for the rule of law. Ahmed &
Braithwaite (2011) have investigated how
institutional management of shame and
pride affects bullying in the workplace.
6. Emotion and the role of government:
Emotion theory offers insight into how
citizens make essential decisions about
health, finance, safety, marriage, family,
and other issues related to well-being.
First, what role might government have
in promoting or discouraging various
emotions in order to help citizens flour-
ish in these or other areas (Blumenthal
2007, Huang & Blumenthal 2009)? Sec-
ond, what role do emotions play in the
shaping and communication of citizens’
values on issues of public importance,
such as governance and collective welfare
(Marcus 2002, Westen 2007, Krause
2008, Lakoff 2008)? Finally, what is the
appropriate role of citizens’ emotional
commitments and moral sentiments in
shaping governmental (Krause 2008)
and constitutional (Gewirtzman 2009,
pp. 679–81; Sajo 2011) goals and values?
7. Emotion and the mobilization of
rights: Emotion theory can shed im-
portant light on how rights are con-
ceived, how perceptions of fairness and
unfairness arise, how political persua-
sion works (Marcus 2002, Westen 2007,
Krause 2008, Lakoff 2008), and what
drives and sustains legal change and re-
form. Emotion can bind commitments
to social and legal structures or pro-
voke or sustain a challenge to those
structures (Goodwin et al. 2001, Turner
& Stets 2005). Conversely, legal devel-
opments can create emotional momen-
tum that leads to social change (see,
e.g., Gould 2001, discussing the mobi-
lizing effect of the US Supreme Court’s
decision in Bowers v. Hardwick 1986).
Abrams (2011, pp. 553–62) recently of-
fered an “exploratory typology” of is-
sues concerning the relationship between
emotions and the mobilization of rights.
These include the affective dimension of
the initial recognition of injury through
moral shock; the affective connections
that influence how an injury is understood
and communicated; the anger, grief, or
other emotions that lead to ascribing re-
sponsibility or blame; and the emotions
that motivate the rights mobilization and
those that sustain it or cause it to lose
momentum.
CONCLUSION
The law offers an unparalleled opportunity for
emotion researchers: a rich occasion to explore
emotion as it operates in a complex set of in-
stitutions designed to reflect, channel, and edu-
cate human behavior. Legal theory and practice
stand to benefit tremendously from this body
of knowledge, and indeed, we proceed with-
out this essential insight into human behavior
at our peril, constructing and maintaining legal
institutions and crafting legal doctrines that too
frequently rest on unexamined or demonstra-
bly faulty assumptions about emotion and its
effects on human behavior. Law and emotion
scholarship has often focused on illuminating
the role of emotion in law, which is an essen-
tial aspect of the project, but one that must be
increasingly accompanied by interdisciplinary
investigation, by debate about whether the dis-
connect between assumptions and evidence in-
terferes with the administration of justice, and
by concrete proposals for implementation and
reform.
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FUTURE ISSUES
1. Underexplored doctrines: These include First Amendment issues such as the regulation
of offensive speech; the emotional dynamics animating the separation of powers doctrine;
the role of emotional attachment to property in the measure of just compensation or in
adverse possession doctrine; the role of trust in contract law (Hill & O’Hara 2007); and
assumptions about affective bonds undergirding the law of wills and trusts.
2. Underexplored legal actors: Studies of juries should move beyond the focus on individual
jurors and take increasing account of the dynamics of the jury as a collective entity. The
salutary trend toward studying judicial emotion should be expanded to include studies of
how emotion affects decision making by legislators, regulators, attorneys (Smith 2004,
Bandes 2006b), and other legal actors.
3. Emotion and persuasion: Emotion’s role in rhetoric and persuasion is often dismissed
as a form of manipulation or pandering, yet emotion plays an essential role in effective
communication and persuasion. What role does, and should, emotion play in the per-
suasiveness of various forms of legal argument, including judicial opinions and dissents
(Ray 2002), the arguments of advocates, and jury deliberation?
4. Emotion and legislation: In addition to studying legislators, scholars might focus on
the relationship between emotion and legislation. For example, what is the appropriate
role of emotion in providing an impetus for legislation? What is the role of legislation
in acknowledging or giving voice to constituent emotion? [See, for example, Sanger’s
(2012) discussion of legislation requiring the provision of stillborn birth certificates.]
5. Strategies for educating emotion: In light of increasing evidence that institutions can
be structured to promote a range of values and emotional attributes, debate about the
structure and function of legal institutions should encompass the question of which val-
ues and attributes are worth promoting in particular contexts and how to do so. For
example, institutions can be structured to increase participation, to increase awareness of
or empathy for diverse viewpoints, to encourage more thorough and informed deliber-
ation, and to work toward other goals that are consistent with participatory democracy
and informed citizenry. Moreover, there is mounting evidence that emotion cannot be
cordoned off from ethical and moral judgment without impairing both ethical judgment
and well-being; such evidence has broad implications for the teaching and practice of
law.
DISCLOSURE STATEMENT
The authors are not aware of any affiliations, memberships, funding, or financial holdings that
might be perceived as affecting the objectivity of this review.
ACKNOWLEDGMENTS
The authors thank Kathryn Abrams and Terry Maroney for extraordinarily helpful comments on
an earlier draft of this article.
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LS08CH09-Bandes ARI 9 October 2012 8:9
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Annual Review of
Law and Social
Science
Volume 8, 2012
Contents
Legacies of Legal Realism: The Sociology of Criminal Law and
Criminal Justice
Jerome H. Skolnick pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp1
Mass Imprisonment and Inequality in Health and Family Life
Christopher Wildeman and Christopher Muller pppppppppppppppppppppppppppppppppppppppppppp11
After Critical Legal History: Scope, Scale, Structure
Christopher Tomlins pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp31
Paying Attention to What Judges Say: New Directions in the Study
of Judicial Decision Making
Keith J. Bybee ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp69
Behavioral Ethics: Toward a Deeper Understanding
of Moral Judgment and Dishonesty
Max H. Bazerman and Francesca Gino ppppppppppppppppppppppppppppppppppppppppppppppppppppp85
Varieties of Transition from Authoritarianism to Democracy
JiˇıPˇrib´n ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp105
Substance, Scale, and Salience: The Recent Historiography
of Human Rights
Samuel Moyn ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp123
Immigration, Crime, and Victimization: Rhetoric and Reality
Marjorie S. Zatz and Hilary Smith ppppppppppppppppppppppppppppppppppppppppppppppppppppppp141
Emotion and the Law
Susan A. Bandes and Jeremy A. Blumenthal ppppppppppppppppppppppppppppppppppppppppppppp161
Law, Environment, and the “Nondismal” Social Sciences
William Boyd, Douglas A. Kysar, and Jeffrey J. Rachlinski ppppppppppppppppppppppppppppp183
Bullying
Eve M. Brank, Lori A. Hoetger, and Katherine P. Hazen pppppppppppppppppppppppppppppp213
Pro Se Litigation
Stephan Landsman ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp231
v
Annu. Rev. Law. Soc. Sci. 2012.8:161-181. Downloaded from www.annualreviews.org
by Depaul University on 10/26/12. For personal use only.
LS08-Frontmatter ARI 5 October 2012 12:49
Regulating Sex Work: Heterogeneity in Legal Strategies
Bill McCarthy, Cecilia Benoit, Mikael Jansson, and Kat Kolar pppppppppppppppppppppppppp255
History Trials: Can Law Decide History?
Costas Douzinas ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp273
Empirical Studies of Contract
Zev J. Eigen ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp291
Sociolegal Studies on Mexico
Julio R´ıos-Figueroa ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp307
Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship
Jon B. Gould and Scott Barclay pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp323
Law’s Archive
Renisa Mawani ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp337
International Human Rights Law and Social Movements: States’
Resistance and Civil Society’s Insistence
Kiyoteru Tsutsui, Claire Whitlinger, and Alwyn Lim ppppppppppppppppppppppppppppppppppp367
Law and Economics of Intellectual Property: In Search
of First Principles
Dan L. Burk pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp397
Legal History of Money
Roy Kreitner ppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp415
The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive
Sociology of Law
Yves Dezalay and Mikael Rask Madsen ppppppppppppppppppppppppppppppppppppppppppppppppppp433
Rethinking Corruption in an Age of Ambiguity
Janine R. Wedel pppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppppp453
Indexes
Cumulative Index of Contributing Authors, Volumes 1–8 pppppppppppppppppppppppppppppp499
Cumulative Index of Chapter Titles, Volumes 1–8 pppppppppppppppppppppppppppppppppppppp502
Errata
An online log of corrections to Annual Review of Law and Social Science articles may be
found at http://lawsocsci.annualreviews.org
vi Contents
Annu. Rev. Law. Soc. Sci. 2012.8:161-181. Downloaded from www.annualreviews.org
by Depaul University on 10/26/12. For personal use only.
Article
Full-text available
Legal consciousness is the individual consciousness which reflects legal phenomena. Well-developed legal consciousness plays a crucial role in informing citizens of his legal right and ability to exercise these rights, therefore forms certain connections of individuals and society, and its development is a key part of individual’s socialization process. Here, we investigated the emotion aspect of legal consciousness (henceforth legal emotion) and tried to identify several factors affecting the development of legal emotion and several factors affected by legal emotion. A large sample of Chinese junior middle school students (N = 967) completed a battery of self-reported questionnaires regarding legal emotion, peer attachment, self-esteem, prosocial tendencies, and interpersonal trust. The results indicated that for early adolescents, peer attachment predicts both positive and negative legal emotion. Importantly, peer attachment affects legal emotion partially through self-esteem. We also showed that negative legal emotion acted as a mediator on the relationship between interpersonal trust and prosocial tendencies. The results provided important insights into the role of legal emotion, the emotion aspect of legal consciousness, in the social interactions and its potential psychological mechanism.
Article
Full-text available
One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole. But little is known about a key aspect of parole decision‐making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person's remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person's past and present motivations, beliefs, and affective states. To understand how parole board members make sense of remorse, we draw on in‐depth interviews with parole commissioners in California, the state with the largest proportion of parole‐eligible lifers. We find that commissioners' remorse assessments hinge on their perceptions of lifers' relationships to law and carceral logic. In this way, relational legal consciousness—specifically, second‐order legal consciousness—functions as a stand‐in for the impossible task of knowing another person's heart or mind. We distinguish relational from second‐order legal consciousness and argue that understanding how they operate at parole hearings reveals the larger import of relational legal consciousness as a mechanism via which existing power relations are produced and reproduced, bridging the legal consciousness and law and emotion literatures.
Article
Full-text available
The article examines the professional emotion management underlying prosecutors’ work in court. Building on interviews and observations of forty-one prosecutors at five offices in Sweden, and drawing on sociological theories of emotion habituation, we analyze the emotion management necessary to perform frontstage (in court) professionalism as a prosecutor. We divide our analysis into three key dimensions of habituation: the feeling rules of confidence and mastering anxiety associated with an independent performance; the feeling rules of emotional distance and a balanced display associated with performing the objective party; and the playful and strategic improvisation of feeling rules associated with relaxed emotional presence. The routinization of feeling rules and the gradual backgrounding of related emotion management leads to habituation. Our findings enhance understanding of emotion management skills as part of tacit knowledge conveyed in the legal professions where emotion-talk and emotional reflexivity are little acknowledged. The article also contributes to the largely US-dominated previous research by adding a civil law perspective on prosecutorial emotion management.
Article
Full-text available
The procedural justice model has become widely recognized as a key crime prevention and reduction strategy, spurring its adoption across police agencies throughout the United States in an effort to address mounting concerns regarding police use of force. Recent critiques, however, have called attention to the need for greater examination of potential contributing factors that are underdeveloped in investigations of the procedural justice model, including the role of emotions. This article takes stock of interdisciplinary advancements to critically examine scholarly investigations exploring associations between procedural (in)justice, emotions, and compliance behaviors within the context of police‐citizen interactions. In doing so, continued gaps are identified. Lastly, this article concludes by identifying future pathways and recommendations for the scholarly advancement of our understanding of emotions and their continued relevance to the procedural justice model.
Article
LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.
Article
This article examines the emotional terrain and discursive frames that govern the constitution of those subject to the “dangerous offender” (DO) designation in Canada. Focusing on the emotion of remorse, we discuss four narratives involving individuals who went through the DO hearing process, gaining significant media attention. Asking what role Indigeneity and other factors play in how the media discuss the emotional comportment of DOs, we examine the persistence of particular discursive frames in these narratives, and the counter-frames that challenge or disrupt dominant understandings of what it is appropriate to feel. The expression of emotion, and its interpretation, can be critical to the outcome of cases, criminalized people/survivor stigmatization, and normalization of punishment and may also motivate community mobilization and prompt policy change. Yet, emotion, and how it may be performed and interpreted differently, is not well understood or discussed in these narratives.
Article
Legal socialization researchers have largely ignored the importance of emotion in the legal socialization process and engagement in crime. The purpose of the current study was to argue the potential importance of moral emotions (e.g., guilt) in legal socialization and take a preliminary step to integrate an emotion component into an existing model. The current study investigated whether the moral emotion of guilt, using both proneness and anticipatory measures, would predict rule‐violating behavior (RVB) as part of the integrated cognitive legal socialization model. The study used survey data from 474 participants who were part of a longitudinal study of adolescent rule‐violating behavior. Results showed that guilt proneness functioned as a predictor of RVB in parallel with legal reasoning, while anticipatory guilt served as a mediator in parallel with normative attitude mediators. Enforcement status (i.e., feeling people should be punished for committing RVB) mediated the relation between guilt proneness and RVB, while normative status (i.e., approval for engaging in RVB) and anticipatory guilt mediated the relation between legal reasoning and RVB. These findings help to advance legal socialization by demonstrating the unique contribution of emotion in legal socialization theory and provide a foundation for future research in this area. The implications for the role of emotion in both the integrated cognitive legal socialization model and the procedural justice legal socialization model and future directions for further inquiry are discussed.
Article
Courtrooms are often emotionally charged atmospheres where parties have a vested interest in the proceedings and their outcomes. Judges are exposed to a wide range of emotions and stressors in the course of their work. Though the ideal of a dispassionate judge persists, more empirical work is needed to identify how judges regulate their own emotional experience in court. Using Maroney and Gross typology of emotion regulation strategies, this study explored the self-reported use and preference of these strategies among a sample of U.S. judges. Using both quantitative and qualitative approaches, we found that judges reported using a variety of intrinsic (self-directed) and extrinsic (directed toward others) emotion regulation strategies, though judges reported using some strategies such as suppression more frequently than others. We also found that many of the strategies judges described matched a subset of the strategies described by Maroney and Gross supporting their typology.
Article
Full-text available
This article analyzes rational decision‐making in court as an emotive‐cognitive process formed in and through social interaction. Current theoretical perspectives have shown how emotion and thought are intertwined in the workings of the human brain but have seldom elaborated on the contextual and structural features of rational‐emotional decision‐making. I propose a model that maps emotional processes and emotional management demands to the temporally extended, stepwise process of rational‐legal decision‐making. I show that (a) the bounded structure of the decision‐making process actualizes different emotive‐cognitive complexes at different stages and (b) the demand for objectivity in rational decision‐making calls for parallel emotional processes and subject positions to remain independent while sustaining social cohesion.
Article
Research on moral judgment has been dominated by rationalist models, in which moral judgment is thought to be caused by moral reasoning. The author gives 4 reasons for considering the hypothesis that moral reasoning does not cause moral judgment; rather, moral reasoning is usually a post hoc construction, generated after a judgment has been reached. The social intuitionist model is presented as an alternative to rationalist models. The model is a social model in that it deemphasizes the private reasoning done by individuals and emphasizes instead the importance of social and cultural influences. The model is an intuitionist model in that it states that moral judgment is generally the result of quick, automatic evaluations (intuitions). The model is more consistent than rationalist models with recent findings in social, cultural, evolutionary, and biological psychology, as well as in anthropology and primatology.
Book
From questions surrounding motives to the concept of crimes of passion, the intersection of emotional states and legal practice has long interested professionals as well as the public—recent cases involving extensive pretrial publicity, highly charged evidence, and instances of jury nullification continue to make the subject particularly timely. With these trends in mind, Emotion and the Law brings a rich tradition in social psychology into sharp forensic focus in a unique interdisciplinary volume. Emotion, mood and affective states, plus patterns of conduct that tend to arise from them in legal contexts, are analyzed in theoretical and practical terms, using real-life examples from criminal and civil cases. From these complex situations, contributors provide answers to bedrock questions—what roles affect plays in legal decision making, when these roles are appropriate, and what can be done so that emotion is not misused or exploited in legal procedures—and offer complementary legal and social/cognitive perspectives on these and other salient issues: • Positive versus negative affect in legal decision making. • Emotion, eyewitness memory, and false memory. • The influence of emotions on juror decisions, and legal approaches to its control. • A terror management theory approach to the understanding of hate crimes. • Policy recommendations for managing affect in legal proceedings. • Additional legal areas that can benefit from the study of emotion. Emotion and the Law clarifies theoretical grey areas, revisits current practice, and suggests possibilities for both new scholarship and procedural guidelines, making it a valuable reference for psycholegal researchers, forensic psychologists, and policymakers.
Article
Victim impact statements ("VIS") at capital sentencing tend to increase the likelihood of a death sentence. Four empirical mock juror studies examined whether expert testimony about affective forecasting - the prediction of future emotional reactions, to hypothetical events - can eliminate that effect. I predicted that VIS would increase the likelihood of death sentences, but that expert testimony about affective forecasting would attenuate that effect and reduce death sentences to a rate as though there were no VIS. The hypothesis was supported, in particular when participants specifically rated the expert as credible. Implications for practitioners and for future research are discussed.
Article
Must we put passions aside when we deliberate about justice? Can we do so? The dominant views of deliberation rightly emphasize the importance of impartiality as a cornerstone of fair decision making, but they wrongly assume that impartiality means being disengaged and passionless. In Civil Passions, Sharon Krause argues that moral and political deliberation must incorporate passions, even as she insists on the value of impartiality. Drawing on resources ranging from Hume's theory of moral sentiment to recent findings in neuroscience, Civil Passions breaks new ground by providing a systematic account of how passions can generate an impartial standpoint that yields binding and compelling conclusions in politics. Krause shows that the path to genuinely impartial justice in the public sphere--and ultimately to social change and political reform--runs through moral sentiment properly construed. This new account of affective but impartial judgment calls for a politics of liberal rights and democratic contestation, and it requires us to reconceive the meaning of public reason, the nature of sound deliberation, and the authority of law. By illuminating how impartiality feels, Civil Passions offers not only a truer account of how we deliberate about justice, but one that promises to engage citizens more effectively in acting for justice.