Emotions in judging

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Chapter 11 endnote 57 & 58, from How Emotions are Made: The Secret Life of the Brain by Lisa Feldman Barrett.
Some context is:

[note 57] This kind of dispassionate decision-making is essentially what the law instructs in the sentencing portion of criminal cases.


[note 58] There is a longstanding controversy over the role of empathy and emotions in judicial practice.

Some legal scholars encourage emotions in judging, when balanced with cognition.[1][2][3][4][5][6][7][8][9]

Some believe that emotions can encourage moral decision making.[10] The argument goes something like this: It is OK to be angry when someone commits a crime, because feeling angry shows that you are committed to preserving moral order in a society that promotes respect for others.[10]  Judicial anger in this context is a demonstration of social reality: believing the in the laws and rules of society that require collective intentionality to exist. When sentencing a defendant, however, anger should be tempered with empathy for the situation. Fundamentally, this is an argument for emotional granularity.

For all the discussion of emotions having a place in legal decision-making, there is still a foundational assumption that emotions are problematic.  For example, Justices Stevens, Breyer, and Souter of the U.S. Supreme Court argued that the powerful emotional impact of victim impact statements made them especially prejudicial, and Justice Stevens’ remarks were especially telling, because he noted that they could rouse jurors’ sympathy for the victim, which would in turn invite a “verdict based on sentiment, rather than reasoned judgment” (Kelly v. California, 2008, p. 567-8).  Descartes is not dead after all.


Notes on the Notes

  1. Posner, Richard. 2001, Frontiers of Legal Theory. Harvard University Press, p. 226.
  2. Brennan Jr, William J. 1988. "Reason, Passion, and the Progress of the Law." Cardozo Law Review 10: 3.
  3. Wistrich, Andrew J., Jeffrey J. Rachlinski, and Chris Guthrie. 2014. "Heart versus head: Do judges follow the law of follow their feelings?" Texas Law Review 93: 855-923.
  4. Bandes, Susan A. 2009. "Empathetic judging and the rule of law." American Constitution Society Blog, May 20.
  5. Abrams, Kathryn. 2010. "Empathy and experience in the Sotomayor Hearings." Ohio Northern University Law Review 36: 263-286.
  6. West 2012 [full reference to be provided]
  7. Posner, Richard A. 1999. "Emotion versus emotionalism in law." In The Passions of Law, edited by Susan A. Bandes, 309-329. New York: NYU Press.
  8. Maroney, Terry A. 2013. "The Emotionally Intelligent Judge: A New (and Realistic) Ideal." Court Review 49: 100-113. 
  9. Ray, Laura Krugman. 2002. "Judicial Personality: Rhetoric and Emotion in Supreme Court Opinions." Washington and Lee Law Review, 59: 193-234.
  10. 10.0 10.1 Pillsbury, Samuel H. 1989. “Emotional Justice: Moralizing the Passions of Criminal Punishment.” Cornell Law Review 74: 655–710.