Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship 6-1-2010 Who's Afraid of Law and the Emotions Kathryn Abrams Berkeley Law Hila Keren Follow this and additional works at:http://scholarship.law.berkeley.edu/facpubs Part of theLaw Commons Recommended Citation Kathryn Abrams and Hila Keren,Who's Afraid of Law and the Emotions, 94Minn. L. Rev.1997 (2010), Available at: http://scholarship.law.berkeley.edu/facpubs/1932 This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please [email protected]. Article Who's Afraid of Law and the Emotions? Kathryn Abramst and Hila Kerentt Introduction ........................................ 1998 I. A Brief History of Law and Emotions Scholarship ........ 2003 A. Challenging Legal Rationality ................. 2003 B. Studying the Emotions ................ ...... 2008 C. Making a Normative Turn .................... 2011 II. Echoes of the Law/Emotion Dichotomy .................. 2013 A. Undervaluing Affective Analysis as a Resource ....... 2014 B. Affirming Rationalist and Objectivist Premises ...... 2018 1. Behavioral Law and Economics ....... ...... 2018 2. Law and Neuroscience ............. ....... 2021 C. Rearticulating the Law/Emotion Dichotomy ............ 2027 III. Three Dimensions of Usefulness .................. 2033 A. Illumination .......................... ..... 2034 B. Investigation ........................ ...... 2040 C. Integration ........................ ........ 2049 1. Normative Goals .................. ...... 2050 a. A Framework for Analyzing Law's Relations to the Emotions ................. ..... 2050 b. Uses of the Framework ................ 2060 2. Normative Means ................. ....... 2062 a. Doctrinal Revision ............ ........ 2063 t Herma Hill Kay Distinguished Professor of Law, University of Cali- fornia at Berkeley School of Law. #t Assistant Professor of Law, Hebrew University-Jerusalem. We would like to thank participants at the New Directions in Law and the Emotions Conference, the Enlund Distinguished Lecture at DePaul University School of Law, the Law Culture and Humanities Annual Meeting, and the Berkeley Law Faculty Retreat for helpful exchanges on earlier drafts of this paper. We particularly appreciate the contributions of Susan Bandes, Clare Huntington, Terry Maroney, and Sarah Song, who read and commented on earlier drafts of this Article. We are also grateful to the students in our Spring 2008 seminar, "Challenges to Legal Rationality," for their spirited engagement with many of the ideas ultimately incorporated into this Article. Copyright © 2010 by Kath- ryn Abrams and Hila Keren. 1997 1998 MINNESOTA LAW REVIEW [94:1997 b. Institutional Competency or Design ............. 2064 c. Rhetorical and Deliberative Strategies ........ 2066 d. Policy and Programmatic Design ..... .... 2067 3. Normative Concerns ................ ..... 2068 Conclusion ............................... ....... 2073 INTRODUCTION Law and emotions scholarship has reached a critical mo- ment in its trajectory.' It has become a varied and dynamic body of work, mobilizing diverse disciplinary understandings to analyze the range of emotions that implicate law and legal de- cisionmaking. Conferences, academic collaborations, and even a number of law school seminars reflect its gradual dissemina- tion.2 Yet mainstream legal academics have often greeted it with ambivalence. They have not predictably viewed it as a re- source for addressing questions within their substantive fields. It is often treated as a novel academic pastime rather than an instrument for addressing practical problems. This reception contrasts sharply with that accorded two fields with significant overlap with law and emotions: behavioral law and economics, and the emerging field of law and neuroscience.3 In the sense 1. "Law and emotions" scholarship explores the reciprocal relations be- tween emotions and the law. It reflects pluralism along several dimensions: (1) attributes of cognition: law and emotions scholarship values the affective di- mensions of cognition as fully as the classically rational, rather than under- standing them as "other" or as potentially problematic departures from ration- ality; (2) cognate literatures: law and emotions scholarship may draw on economics, biological science, and more objectivist social sciences, but it also draws on literature, history, philosophy and other humanist disciplines; (3) normative goals: law and emotions scholarship engages law not simply, or even primarily, to correct the cognitive responses of legal subjects in favor of greater rationality; it aims to modify law more fully to acknowledge the role of specific emotions, or to use law to produce particular emotional effects. For a thoughtful article heralding the emergence of the field which defines it in somewhat different terms, see Terry A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field, 30 LAW & HUM. BEHAV. 119 (2006) (arguing that law and emotions scholarship is organized around six approach- es: emotion-centered, emotional phenomenon, emotion theory, legal doctrine, theory of law, and legal actor). 2. See, e.g., Symposium on Law, Psychology, and the Emotions, 74 CHI.- KENT L. REV. 1423 (2000). 3. In their interdisciplinary exploration of dimensions of cognition that are not exclusively rational, these bodies of scholarship share common sub- stantive ground with law and emotions work. They are not coterminous, how- ever, in that some work within both behavioral law and economics and law and neuroscience analyzes forms of judgment, decisionmaking, cognition, or attributes of the mind which do not specifically involve emotion. Moreover, be- 2010] LAW AND THE EMOTIONS 1999 that all three challenge the narrow definition of rationality that has informed traditional legal thought, they can be seen as branches of the same tree or as related fields of scholarship.4 Despite this apparent proximity, however, several factors have prompted a different response. Law and emotions work is more epistemologically challeng- ing to conventional legal thought than those variants that have received wider recognition: it does not privilege rationality or prioritize the objectivist epistemologies that have become cor- nerstones of mainstream legal thought. It draws on humanistic disciplines in addition to knowledge from the sciences and the social sciences. It has arrived only recently at an explicit em- brace of normativity. And it is more plural in its normative as- pirations: it does not aim simply to correct legal subjects' deci- sionmaking in favor of rationality-the primary normative impetus in behavioral law and economics scholarship 5-but to modify legal doctrine to acknowledge and encompass affective havioral law and economics has, in some cases, a distinct normative project of moving human beings whose decisionmaking is impaired by flawed heuristics back in the direction of greater rationality. In noting the differential reception of these related bodies of work, our point is not to critique them. We use beha- vioral law and economics scholarship in this paper, as well as in our individual work. Similarly, one of us is a faculty participant in the MacArthur Founda- tion's Law and Neuroscience Program and the other has used particular neu- roscience works in her law and emotions writings. Our argument is, however, that these valuable bodies of work should not be taken to stand for the entire field of inquiry-into affective response or other departures from classically defined rationality-in mainstream legal scholarship. This pattern, as we con- tend below, is the product of a persistent dichotomizing of emotion and reason, and a prioritizing of rationality as a normative goal. See infra Part II. 4. See Jeremy A. Blumenthal, Emotional Paternalism, 35 FLA. ST. U. L. REV. 1, 2-3 (2007). According to Blumenthal: At least two bodies of legal scholarship have recently challenged the primacy of the traditional rational-actor, law and economics approach to law and policy. The first, taking a cognitive-psychological or behav- ioral economics approach, focuses on mental heuristics and biases that lead to departures from optimal or rational decisionmaking. This literature is voluminous and increasing. A second line of legal scho- larship focuses on the role of emotion in legal judgment and decision- making, whether by judges, juries, bureaucrats, legislators, or citi- zens. Although somewhat less developed than the first, this line of writing, and the empirical social science research it often seeks to in- corporate, has likewise demonstrated departures from the traditional conception of a rational decisionmaker. 5. See On Amir & Orly Lobel, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, 108 COLUM. L. REV. 2098, 2099 (2008) (book review) ("By understanding the ways in which individuals are suscepti- ble to biases and flawed decisionmaking, law and policy can help improve in- dividual and group behavior."). 2000 MINNESOTA LAW REVIEW [94:1997 response, or use law to channel, moderate, or foster the emo- tions. From these features, mainstream scholars may have in- ferred that law and emotions analysis is more distant from re- cognizable modes of legal thought, less suited to recognizable forms of legal normativity,6 and therefore has less pragmatic value.7 In this Article we respond to these doubts: law and emo- tions is a vital field whose distinctive insights and plural me- thodologies are essential, not simply to the full understanding of the role of emotions in many domains of human activity, but to their intelligent and responsible engagement by law. Our main goal in this Article is therefore to explain the pragmatic value of this school of thought, and enable broader application of law and emotions analysis to pressing legal problems. Some legal analysts may never be persuaded that emotions should become a focal concern of the law. They may prefer to view law as an arena that answers to the standards of rationality, draw- ing on analyses such as behavioral law and economics to re- spond to rationality's limits. But for those who are prepared to understand emotion not simply as a departure from rationality, but as an affirmative mode of apprehension and response, the law and emotions perspective offers a way by which legal actors and institutions can both accommodate and influence crucial dimensions of human experience. To this end, this Article seeks to analyze the ambivalent legal response to the law and emotions perspective. While the 6. For a thoughtful description of the centrality of particular forms of normativity to legal scholarship, see Edward L. Rubin, The Practice and Dis- course of Legal Scholarship, 86 MICH. L. REV. 1835 (1988). This attribute of mainstream legal scholarship has been the subject of trenchant and inventive critique. See, e.g., Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167 (1990); Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991); Pierre Schlag, Stances, 139 U. PA. L. REV. 1059 (1991); Steven L. Winter, Contingency and Community in Normative Practice, 139 U. PA. L. REV. 963 (1991); Steven L. Winter, Without Privilege, 139 U. PA. L. REV. 1063 (1991). Although we concur in some dimensions of this critique, our point is that one need not embrace it in order to see value in emerging law and emo- tions work: this work reflects more conventional forms of legal normativity as well. 7. Some readers contend not that law and emotions work lacks norma- tive or pragmatic value, but rather that it is associated with forms of norma- tivity that we should find threatening. Although we see this objection as less prevalent than the belief that law and emotions work simply fails to provide the kind of normative direction legal scholars and actors require, we will ad- dress it below. See infra Part III.C. 2010] LAWAND THE EMOTIONS 2001 recognition of emotional intelligence,8 or the award of the Nobel Prize to Daniel Kahneman,9 suggest a growing public apprecia- tion of the limits on human rationality, legal analysts may be experiencing greater difficulty in relinquishing their rationalist premises. In fact, we may be witnessing a recuperation of the tendency to dichotomize and hierarchize reason and emotion: one which casts doubt not on the presence of the emotions in law, but on the value of analyzing and responding to that pres- ence. Persistent legal skepticism about the emotions may also explain the warmer reception that has met the challenge to the assumptions of rationality offered by behavioral law and eco- nomics.10 Countering this skepticism about emotions, by high- 8. See, e.g., DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE: WHY IT CAN MATTER MORE THAN IQ 33-39 (1995) (explaining how "other characteristics," such as the ability to empathize with others are gaining increasing recogni- tion). 9. See Daniel Kahneman, Maps of Bounded Rationality: Psychology for Behavioral Economics, 93 AM. ECON. REV. 1449, 1457 (2003) ("Utility cannot be divorced from emotion, and emotions are triggered by changes. A theory of choice that completely ignores feelings such as the pain of losses and the re- gret of mistakes is not only descriptively unrealistic, it also leads to prescrip- tions that do not maximize the utility of outcomes as they are actually expe- rienced . . . ."). Kahneman received the Nobel Prize in Economic Sciences in 2002. Id. at 1449 n.f. 10. Admittedly, emotions and cognitive processes are intertwined and what further blurs the lines is the lack of an agreed-upon definition of "emo- tion," as opposed to emotionally driven behavior or decisions. Some theorists, for example, define emotion as the body's response to an "exciting fact." Ac- cording to this understanding, fear is the lightning-quick retreat that follows the sight of a bear, and sadness is the tears that follow bad news. See general- ly KEITH OATLEY ET AL., UNDERSTANDING EMOTIONS 4-8 (2d ed. 2006) (dis- cussing theories by Charles Darwin and William James). Such theories, which focus on a physiological response, somewhat decrease the gap between beha- vioral law and economics, in which the focus is on behavior, and law and emo- tions, in which the focus is on feelings. However, regardless of the breadth with which one defines emotion, behavioral law and economics tends to em- phasize decisions rather than emotions, a fact that is reflected in the alterna- tive names for this body of work: "behavioral decision theory" or "legal decision theory." See, e.g., Jeffrey J. Rachlinski, The "New" Law and Psychology: A Re- ply to Critics, Skeptics, and Cautious Supporters, 85 CORNELL L. REV. 739, 740 (2000) (using the term "behavioral decision theory" (BDT) and explaining that BDT research has been used to identify "cognitive decision-making processes"). Among these processes, Rachlinski notes the use of mental heuristics, which "can be useful, but sometimes produce cognitive illusions that result in errors or biases in judgment." Id. An exception that may prove the rule is the engagement of behavioral law and economics with the emotion of regret, which stands at the core of the sta- tus quo bias. See Russell Korobkin, Behavioral Economics, Contract Forma- tion, and Contract Law, in BEHAVIORAL LAW AND ECONOMICS 116, 117 (Cass R. Sunstein ed., 2000) (arguing that the known status quo bias should be un- 2002 MINNESOTA LAW REVIEW [94:1997 lighting the patterns and contributions of law and emotions work, will be our primary goal in this Article. Law and emo- tions work has great pragmatic potential, ranging from its con- ceptualization of legal problems, through its investigation of the relevant aspects of emotions, to the proposal of specific normative legal solutions. Realizing this potential should be of interest to a range of legal scholars and actors." In Part I, we offer a brief history of law and emotions scho- larship, emphasizing its challenges to the assumptions of legal rationality, its broad interdisciplinarity, and its more recent turn toward a normative focus. In Part II, we examine the am- bivalent response to this work among legal scholars, arguing that it reflects a renewed tendency to dichotomize and hierar- chize reason and emotion, and a related preference for analyses grounded in objectivist premises. The best answer to this new wave of skepticism, we argue, is to demonstrate the pragmatic value of law and emotions work. Notwithstanding the breadth of its challenges to legal rationality, the affective perspective can contribute to the familiar normative work of the law- revising and strengthening existing doctrine and decisionmak- ing and informing new legal policies-as well as the less famil- iar task of using law to improve people's affective lives. In Part III, we elaborate this pragmatic potential of law and emotions work. We contend its value lies along three dimensions: its ca- pacity to illuminate the affective features of legal problems; its ability to investigate these features through interdisciplinary analysis; and its ability to integrate that understanding into practical, normative proposals. We conclude our examination of these dimensions by discussing some explicit concerns that have been raised about legal intervention in the emotions. derstood in light of people's efforts to avoid the emotion of regret, which they suspect may arise from attempting to change the status quo). Another excep- tion is Cass Sunstein's work on fear. See CASS R. SUNSTEIN, LAWS OF FEAR (2005). Jeremy Blumenthal, who contributes to both bodies of work and takes a special interest in the emotions, has recently underscored the gap between behavioral law and economics and the emotions. Interestingly, for purposes of our focus, Blumenthal shares the belief that legal interventions with the emo- tions present special difficulty. See Blumenthal, supra note 4, at 5-6. 11. It is interesting to compare our effort to demonstrate the usefulness of law and emotions against skepticism to a similar call coming from behavioral law and economics. See Rachlinski, supra note 10, at 742 ("If [behavioral deci- sion theory] is to have a future in the law, law professors must find it to be a useful tool to address meat-and-potatoes legal issues ...."). 2010] LAW AND THE EMOTIONS 2003 I. A BRIEF HISTORY OF LAW AND EMOTIONS SCHOLARSHIP Scholarship on law and emotions has undergone a rapid development, from a movement allied with feminists and other critical scholars in challenging legal rationality and objectivity, to an interdisciplinary effort aimed at exploring many dimen- sions of human affective response.12 Most recently, law and emotions work has taken a normative turn, using the fruits of interdisciplinary exploration to argue for changes in legal con- ceptualization, policy, and doctrine.13 A. CHALLENGING LEGAL RATIONALITY Law and emotions scholarship began by arguing that emo- tions have a vital role to play in legal thought and decisionmak- ing.14 This radical claim confronted a long intellectual tradition that dichotomized reason and emotion15 and construed legal thought as a professionally instilled cognitive process, which could be powerfully unsettled by affective response.16 The de- tachment of legal rationality reflected the historic view of law as a quasi-science: a process of deducing, from a framework of legal principles, the rule to be applied to a particular case.17 A detached, rationalist stance also served to insulate judges from pressure by the political branches18 or from undue sympathy 12. See infra notes 44, 46-53 and accompanying text. 13. See infra notes 46, 60-62 and accompanying text. 14. See, e.g., Angela P. Harris & Marjorie M. Shultz, 'A(nother) Critiqueo f Pure Reason" Toward Civic Virtue in Legal Education, 45 STAN. L. REV. 1773, 1774 (1993) ("[W]hen emotions are acknowledged and rigorously examined, they can serve as a guide to deepening intellectual inquiry. ..."). 15. See, e.g., id. at 1775 ("Law schools operate at the junction of the acad- emy and the legal profession. Both realms tend to polarize reason and emotion and to elevate reason."). 16. In this Article, we use the term "affective" interchangeably with "emo- tional." This draws on the definition of "affective" as "relating to, arising from, or influencing feelings or emotions." MERRIAM-WEBSTER'S COLLEGIATE Dic- TIONARY 21 (11th ed. 2003). This is not, of course, the only way one could de- fine "affect." See, e.g., OATLEY ET AL., supra note 10, at 29 (defining "affective" as comprehending a larger domain including emotions, moods, and disposi- tions). 17. See Harris & Shultz, supra note 14, at 1776 (noting that Christopher Columbus Langdell, "the father of modern legal education," treated law as a science and legal reasoning as a deductive process). 18. See Judith Resnik, On the Bias: Feminist Reconsiderationso f the Aspira- tions for Our Judges, 61 S. CAL. L. REV. 1877, 1882-84 (1988) (arguing that judges have always valued impartiality and independence, even when sover- eigns sought judicial favor). 2004 MINNESOTA LAW REVIEW [94:1997 with one or more of the parties. 19 Emotion floods careful, stagewise reasoning in a tidal wave of affect; its association with particulars sweeps decisionmakers from their impersonal, Archimedean pedestal.20 Law and emotions scholars challenged this entrenched understanding with two kinds of arguments. The first was a descriptive claim: emotions already infuse decisionmaking whether or not they are recognized by legal ac- tors.21 The second, and perhaps more central, argument was normative. Legal decisionmaking is enriched and refined by the operation of emotions because they direct attention to particu- lar dimensions of a case, or shape decisionmakers' ability to understand the perspective of, or the stakes of a decision for, a particular party. Efforts to exile affective response-a damag- ing outgrowth of historic dichotomizing--can produce legal judgments that are shallow, routinized, devaluative, and even irresponsible. One setting in which scholars applied this challenge was the law school classroom. Scholars such as Marjorie Shultz and Angela Harris described and confronted the exaggerated objec- tivism of the pedagogic environment.22 They highlighted the damage that can be produced when emotion is devalued or ex- iled from the classroom,23 and the benefit that can be gained when emotion is acknowledged and used to illuminate unno- ticed assumptionS24 or to direct attention to norms and com- mitments that speakers intuitively value.25 19. See id. at 1885 ("If freed from having to engage personally with what occurs subsequent to their judgments, judges may be enabled to impose rul- ings that would otherwise be too painful to pronounce."). 20. Owen M. Fiss, Reason in All Its Splendor, 56 BROOK. L. REV. 789, 799 (1990) ("Often, but not always, our passions seem directed toward, or attached to, particulars ...."). 21. See Harris & Shultz, supra note 14, at 1774 ("[E]motions can never successfully be eliminated from any truly important intellectual undertaking, in the law or elsewhere."). 22. See generally id. (advocating for an acknowledgement of emotion in the law school setting). Other critiques of the law school classroom made simi- lar methodological or epistemological points, but organized them as a critique of the gendering of the law school classroom, rather than as a critique of its impoverished rationality. See, e.g., Catherine Weiss & Louise Melling, The Le- gal Education of Twenty Women, 40 STAN. L. REV. 1299, 1300 (1988) (noting differences in the ways in which men and women experience law school). 23. Harris & Shultz, supra note 14, at 1799. 24. See, e.g., id. at 1792 (discussing an example of a male student's use of an expletive during a law seminar in an exchange about reproductive deci- sionmaking and abortion). 25. See id. at 1786 ("[E]motions embody some of our most deeply rooted 2010] LAWAND THE EMOTIONS 2005 Although the law school classroom, and even the court- room,26 claimed the attention of some early law and emotions scholars, their primary focus was on the judge. This was par- ticularly embattled territory as, in conventional legalism, the judge remained the legal actor, whose paradigmatic status re- quired the separation of legal reason from emotion.27 Unlike "jurors [or] children," Richard Posner famously declared, judges discipline themselves to respond to the problems before them with careful, linear rationality.28 Notwithstanding the depth and centrality of these mainstream commitments, early law and emotions scholars argued that judges not only did, but should, permit affective forms of knowledge to shape their deci- sionmaking. In revealing and lauding the role of emotion in adjudica- tion, these scholars drew on a varied foundation, which was emerging both inside and outside the law. The legal realists' challenge to judicial objectivity29 had been extended by a set of broader epistemological challenges raised by feminist psycholo- gists, 30 philosophers,31 and legal scholarS32 during the 1980s views about what has importance." (quoting MARTHA C. NUSSBAuM, LOVE'S KNOWLEDGE 42 (1990))). 26. Lynne Henderson, for example, discusses the empathic presentation of clients' claims and lives in the lawyers' briefs in cases such as Brown v. Board of Education, and Shapiro v. Thompson. See Lynne Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1596-607, 1612-17 (1987). Justice Brennan discusses the effect on his decisionmaking process of the appellees' brief in Goldberg v. Kelly. See William J. Brennan, Jr., Reason, Passion, and "The Progress of the Law", 10 CARDOZO L. REV. 3, 21 (1988). 27. See, e.g., Fiss, supra note 20, at 790 ("Given its deliberative character, the judicial decision may be seen as the paragon of all rational decisions, espe- cially public ones."). 28. Richard A. Posner, Emotion Versus Emotionalism in Law, in THE PASSIONS OF LAW 311 (Susan A. Bandes ed., 1999). Resisting the siren song of affect has been viewed as crucial because of emotion's inevitable intertwine- ment with particulars: judges, as Owen Fiss has argued, must eschew res- ponses that draw them toward specific individuals or motivations, and resolve cases in a detached and impartial spirit, "on the basis of reasons accepted by the profession and the public." Fiss, supra note 20, at 801. 29. However, some heirs to legal realism have retreated toward objectiv- ism, or formalism, in implementing the realist suggestion that law could be ameliorated through more systematic reliance on social policy analysis, or the social sciences. See Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 504 (1988) (book review) (arguing that "liberal" heirs to legal real- ism have "recreate[d] significant elements of formalist reasoning"). 30. See generally MARY FIELD BELENKY ET AL., WOMEN'S WAYS OF KNOW- ING (1986) (demonstrating the incompleteness of the linear, hierarchical model of normative reasoning by highlighting contextual reasoning emphasizing so- cial station in some subjects, particularly girls and women); CAROL GILLIGAN,