Research Handbook on Law and Emotion 2021930673, 9781788119085, 9781788119078

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Table of contents :
Front Matter
Copyright
Contents
Contributors
Acknowledgements
Introduction
PART I FOUNDATIONS
Psychology
1. Lay conceptions of emotion in law
Neuroscience
2. The evolving neuroscience of emotion: challenges and opportunities for integration with the law
Philosophy
3. Law’s sentiments
Pedagogy
4. “Whose body is this?” on the role of emotion in teaching and learning law
PART II EMOTIONS
5. When souls shudder: A brief history of disgust and the law
6. Retribution: Not anger but respect for dignity
7. Closure in the criminal courtroom: The birth and strange career of an emotion
8. The aptness of anger
9. Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion
PART III LEGAL ACTORS
10. Comparing culturally embedded frames of judicial dispassion
11. The loyal defence lawyer
12. Researching judicial emotion and emotion management
PART IV LEGAL DOCTRINES
13. Family law and emotion
14. Debt’s emotional encumbrances
15. The emotional dynamics of property law
16. ‘…You don’t pay £100,000 to a lawyer unless you care about something’: The role of emotion in contract law
17. Engaging head and heart: An Australian story on the role of compassion in criminal justice reform
PART V LEGAL DECISION-MAKING
18. Emotional evidence in court
19. Emotional dimensions of visual evidence
20. Distancing devices and their challenge to judicial emotion realists - so far, yet so near
21. The emotional storying of Charles Ssenyonga as an HIV sexual predator in June Callwood’s ‘Trial Without End: A Shocking Story ofWomen and AIDS’
PART VI HISTORY OF LEGAL EMOTIONS
22. Love in the courtroom: The debate on crimes of passion in late nineteenth-century Italy
23. Lawyerization, providence, and emotion in the eighteenth-century criminal trial
24. Copping an attitude: Slang and the neglected racial history of fear and resentment toward law enforcement and legal authority
25. Curiosity and legal affect in Fulbeck’s A Direction or Preparative to the Study of the Lawe
26. Why the law needs the history of emotions: William Blackstone, Agamben and form-of-life
PART VII BEYOND THE COURTROOM
Legislation
27. Soft targets: Emotions in the passage of “stand your ground” legislation
International laws and tribunals
28. Between micro and macro justice: Emotions in transitional justice
29. How the emotions and perceptual judgments of frontline actors shape the practice of international humanitarian law
30. Images of reach, range, and recognition: Thinking about emotions in the study of international law
PART VIII CLASSIC ARTICLES
31. Empathy, narrative, and victim impact statements (1996)
32. Law and emotion: A proposed taxonomy of an emerging field
33. Who’s afraid of law and the emotions
Index
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RESEARCH HANDBOOK ON LAW AND EMOTION

RESEARCH HANDBOOKS IN LEGAL THEORY Research Handbooks in Legal Theory are designed to provide original and sophisticated discussions from an international and expert range of contributors. The volumes in this important series cover key topics within the field as well as major schools of thought, and also explore the application of legal theory to different areas of law. Comprising specially commissioned chapters from leading academics each Research Handbook brings together cutting-edge ideas and thought-provoking contributions and is written with a wide readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues, methods and debates, these Research Handbooks will be an essential resource for academic researchers and postgraduate students. Titles in this series include: Research Handbook on Feminist Jurisprudence Edited by Robin West and Cynthia Grant Bowman Research Handbook on Critical Legal Theory Edited by Emilios Christodoulidis, Ruth Dukes and Marco Goldoni Research Handbook on Natural Law Theory Edited by Jonathan Crowe and Constance Youngwon Lee Research Handbook on Private Law Theory Edited by Hanoch Dagan and Benjamin C. Zipursky Research Handbook on Modern Legal Realism Edited by Shauhin Talesh, Elizabeth Mertz and Heinz Klug Research Handbook on Law and Emotion Edited by Susan A. Bandes, Jody Lyneé Madeira, Kathryn D. Temple and Emily Kidd White

Research Handbook on Law and Emotion Edited by

Susan A. Bandes Centennial Professor of Law Emeritus, DePaul University College of Law, USA

Jody Lyneé Madeira Professor of Law and Louis F. Niezer Faculty Fellow, Maurer School of Law, Indiana University, USA

Kathryn D. Temple Professor of Law and Culture, Department of English, Georgetown University, USA

Emily Kidd White Assistant Professor, Osgoode Hall Law School, York University, Canada

RESEARCH HANDBOOKS IN LEGAL THEORY

Cheltenham, UK • Northampton, MA, USA

© The Editors and Contributors Severally 2021

Cover image: Paweł Czerwiński on Unsplash. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2021930673 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781788119085

06

ISBN 978 1 78811 907 8 (cased) ISBN 978 1 78811 908 5 (eBook)

Contents

List of contributorsviii Acknowledgementsxvi Introduction1 Susan A. Bandes, Jody Lyneé Madeira, Kathryn D. Temple and Emily Kidd White PART I

FOUNDATIONS

PSYCHOLOGY 1

Lay conceptions of emotion in law Terry A. Maroney

15

NEUROSCIENCE 2

The evolving neuroscience of emotion: challenges and opportunities for integration with the law Maria Gendron

27

PHILOSOPHY 3

Law’s sentiments Robin West

44

PEDAGOGY 4

“Whose body is this?” on the role of emotion in teaching and learning law Gillian Calder

PART II

62

EMOTIONS

5

When souls shudder: A brief history of disgust and the law Carlton Patrick

80

6

Retribution: Not anger but respect for dignity Jeffrie G. Murphy

94

7

Closure in the criminal courtroom: The birth and strange career of an emotion Susan A. Bandes

102

8

The aptness of anger Amia Srinivasan

119 v

vi  Research handbook on law and emotion 9

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion Steven Tudor, Michael Proeve, Richard Weisman and Kate Rossmanith

131

PART III LEGAL ACTORS 10

Comparing culturally embedded frames of judicial dispassion Åsa Wettergren and Stina Bergman Blix

147

11

The loyal defence lawyer Lisa Flower

165

12

Researching judicial emotion and emotion management Sharyn Roach Anleu, Jennifer K. Elek and Kathy Mack

180

PART IV LEGAL DOCTRINES 13

Family law and emotion June Carbone and Naomi Cahn

197

14

Debt’s emotional encumbrances Pamela Foohey

215

15

The emotional dynamics of property law Heather Conway and John Stannard

229

16

‘…You don’t pay £100,000 to a lawyer unless you care about something’: The role of emotion in contract law Emma Jones

248

17

Engaging head and heart: An Australian story on the role of compassion in criminal justice reform Lorana Bartels and Anthony Hopkins

268

PART V

LEGAL DECISION-MAKING

18

Emotional evidence in court Hannah J. Phalen, Jessica M. Salerno, and Janice Nadler

288

19

Emotional dimensions of visual evidence Neal Feigenson

312

20

Distancing devices and their challenge to judicial emotion realists – so far, yet so near Lee Marsons

21

The emotional storying of Charles Ssenyonga as an HIV sexual predator in June Callwood’s ‘Trial Without End: A Shocking Story of Women and AIDS’ Jennifer M. Kilty

327

342

Contents  vii PART VI HISTORY OF LEGAL EMOTIONS 22

Love in the courtroom: The debate on crimes of passion in late nineteenth-century Italy Emilia Musumeci

23

Lawyerization, providence, and emotion in the eighteenth-century criminal trial 374 Amy Milka and David Lemmings

24

Copping an attitude: Slang and the neglected racial history of fear and resentment toward law enforcement and legal authority  Nicole Mansfield Wright

25

Curiosity and legal affect in Fulbeck’s A Direction or Preparative to the Study of the Lawe407 Simon Stern

26

Why the law needs the history of emotions: William Blackstone, Agamben and form-of-life Kathryn D. Temple

359

391

421

PART VII BEYOND THE COURTROOM LEGISLATION 27

Soft targets: Emotions in the passage of “stand your ground” legislation Jody Lyneé Madeira and Catherine Wheatley

438

INTERNATIONAL LAWS AND TRIBUNALS 28

Between micro and macro justice: Emotions in transitional justice  Susanne Karstedt

460

29

How the emotions and perceptual judgments of frontline actors shape the practice of international humanitarian law Rebecca Sutton

477

30

Images of reach, range, and recognition: Thinking about emotions in the study of international law Emily Kidd White

492

PART VIII CLASSIC ARTICLES 31

Empathy, narrative, and victim impact statements (1996) Susan A. Bandes

514

32

Law and emotion: A proposed taxonomy of an emerging field Terry A. Maroney

534

33

Who’s afraid of law and the emotions Kathryn Abrams and Hila Keren

566

Index601

Contributors

Kathryn Abrams is Herma Hill Kay Distinguished Professor of Law at UC-Berkeley School of Law, where she teaches Constitutional Law, Feminist Jurisprudence, and a range of courses on law and social movements to both law students and undergraduates. Kathy’s early work on feminist theory and advocacy led to explorations of experiential storytelling, and the ways that oppressed groups cultivate and express agency under circumstances of constraint. This work also drew her interest to the role of, and resistance to, emotionally-grounded argumentation in law. Kathy’s recent work has focused more explicitly on social movements, including their storytelling and management and manifestation of emotions. She is now completing a book on the undocumented immigrants’ movement in Phoenix, Arizona. She holds a BA from Harvard and a JD from Yale Law School.  Susan A. Bandes is Centennial Distinguished Professor Emeritus at DePaul University College of Law. Before entering academia, she was staff counsel for the Illinois ACLU. She is a member of the American Law Institute and a fellow of the American Bar Foundation. Bandes has published widely in the fields of federal jurisdiction, criminal procedure, capital punishment, and law and emotion. Her interdisciplinary anthology on law and emotion, The Passions of Law, was published by NYU Press in 2000. She is a cofounder (with Jody Madeira) of the Collaborative Research Network on Law and Emotion, which is affiliated with the Law and Society Association. In addition to writing about emotion, she is currently working with psychologists on a series of experiments on the impact of emotionally powerful evidence on jury decision-making. In addition, she addresses judges, lawyers and other groups on the impact of emotion and assumptions about emotion on the pursuit of justice.   Lorana Bartels is the Program Leader and Professor of Criminology at the Australian National University and an Adjunct Professor of Law at the University of Canberra and University of Tasmania. She is also a Fellow of the Australian Academy of Law and Life Member of Clare Hall at the University of Cambridge. Her key research interests are therapeutic jurisprudence, sentencing, corrections, and the treatment of women and Indigenous peoples in the criminal justice system.  Stina Bergman Blix is Associate Professor of Sociology at Uppsala University. She researches the role of emotions in professional work, rationality, law, theatre and qualitative methods. She is currently principal investigator of an international comparative project (JUSTEMOTIONS) funded by the European Research Council investigating the emotive-cognitive process of judicial decision-making. Her work has been published in journals such as Emotion Review and Qualitative Research and she has written Professional Emotions in Court: A Sociological Perspective (Routledge, 2018) with Åsa Wettergren.  Naomi Cahn is Professor of Law at University of Virginia. She has written numerous law review articles on elder law, family law, reproductive technology, and trusts and estates. She has co-authored various casebooks, and the fifth edition of her co-authored family law casebook was published in 2019. In addition, she has written numerous books, including – with viii

Contributors  ix Professor June Carbone—Marriage  Markets (OUP 2014)  and Red Families v. Blue Families (2010).   Gillian Calder is an Associate Professor at the University of Victoria’s Faculty of Law. She holds a Magisteriate in Laws from York University and teaches constitutional law, family law and related seminars. Her research examines the ways that law shapes our understanding of the family, through performative, feminist and critical pedagogy lenses. June Carbone is the Robina Chair of Law, Science and Technology at the University of Minnesota Law School. She received her J.D. from the Yale Law School, and her A.B. from the Woodrow Wilson School of Public and International Affairs at Princeton University. She teaches Property, Family Law, and Assisted Reproduction and the Family. She has written From Partners to Parents: The Second Revolution in Family Law (Columbia University Press, 2000), the third, fourth and fifth editions of Family Law with Leslie Harris and the late Lee Teitelbaum (Aspen, 2005, 2009, 2014), Red Families v. Blue Families  (Oxford University Press, 2010); Marriage Markets: How Inequality is Remaking the American Family (Oxford University Press, 2014), both with Naomi Cahn.  Heather Conway is a Full Professor of Property Law and Death Studies at the School of Law, Queen’s University Belfast. She has written articles on emotion in selected aspects of property law and succession law, and—with her colleague John Stannard—co-edited a volume of essays entitled The Emotional Dynamics of Law and Legal Discourse (Hart Publishing, 2016). Professor Conway’s main research expertise lies in bodily disposal laws and the legal framework governing the fate of the recently dead, especially family disputes surrounding funerals, commemoration and exhumation. She has written and presented extensively in this area, and is the author of The Law and the Dead (Routledge, 2016). Jennifer K. Elek, Ph.D., is a Senior Court Research Associate in the Research Division at the National Center for State Courts. Since joining the National Center for State Courts in 2010, her work has focused on evidence-based criminal justice policies and practices for courts; decision-making biases and fairness in the courts; and judicial education and professional development. Some of her other research includes work on the use of structured risk and needs assessments to inform decision-making, program evaluations of problem-solving courts, and judicial performance evaluation in the states. Neal Feigenson is Professor of Law at Quinnipiac University School of Law, where he teaches torts, evidence, visual persuasion in the law, and civil procedure. He researches and writes about the cognitive and social psychology of legal judgment and the uses of visual media and multimedia in legal communication and persuasion. His most recent book is Experiencing Other Minds in the Courtroom (University of Chicago Press, 2016). Lisa Flower has a Ph.D. in sociology and has recently published her first book Interactional Justice: The Role of Emotions in the Performance of Loyalty. She is a lecturer in sociology and criminology at Lund University. Her most recent research project explores the clash of emotional expectations between legal professionals and lay participants by studying live reports in online media.  Pamela Foohey is Professor of Law at the Indiana University Maurer School of Law and Chair of the Advisory Board to Indiana University’s Center for Law, Society & Culture.

x  Research handbook on law and emotion Professor Foohey’s research centers on bankruptcy, business, consumer finance, and commercial law. She is a co-principal investigator on the Consumer Bankruptcy Project, an on-going, long-term research project studying persons who file bankruptcy. Her work in business bankruptcy focuses on non-profit entities, with a particular emphasis on how churches and other religious organizations use bankruptcy. Professor Foohey currently serves on the editorial advisory board of the American Bankruptcy Law Journal, which is a peer-reviewed academic law review published by the National Conference of Bankruptcy Judges.  Maria Gendron is an Assistant Professor of Psychology at Yale University. She received her Ph.D in Social Psychology from Boston College in 2013 and completed a post-doctoral fellowship in Affective Neuroscience at Northeastern University. Dr Gendron conducts research on the nature of emotion, with a particular focus on the sources of variation in emotional responses across contexts, individuals, and cultures. Her research incorporates methods and theory from social psychology, cultural psychology, and affective neuroscience.  Anthony Hopkins is a Senior Lecturer at the Australian National University College of Law. He is also a criminal defence barrister who began his career in Alice Springs, working for Aboriginal Legal Aid. Anthony’s research focuses on the criminal justice system, equality and the importance of understanding the experience of ‘others’. More recently he has focused on exploring the links between equality, compassion and therapeutic jurisprudence.  Emma Jones is a Senior Lecturer and Director of Student Wellbeing for the School of Law at the University of Sheffield, UK.  Her research interests focus on the role of emotions in private law, legal education and the legal profession.  She undertakes both theoretical and empirical work. Her monographs include Emotions in the Law School: Transforming Legal Education Through the Passions.  Emma previously qualified as a teacher and practised as a solicitor, specializing in construction law.   Susanne Karstedt is a Professor in the School of Criminology and Criminal Justice and the Criminology Institute at Griffith University, Australia. She was among the first to establish emotion research in criminology (with I. Loader and H. Strang, Emotions, Crime and Justice, 2011), and has written widely on emotions in contemporary criminal justice. Most recent work focuses on emotion dynamics in genocide and crimes against humanity, and in transitional justice processes dealing with such crimes. She is a Fellow of the Academy of the Social Sciences in Australia. Hila Keren is a Law Professor and the Associate Dean of Research at Southwestern Law School in Los Angeles, where she teaches contracts and business associations. Her scholarship is often interdisciplinary and aims at bringing the perspective of the other into legal analysis in the hope that law can help to foster a more egalitarian world. As part of this aspiration, Hila writes about the interaction of law and the emotions to enrich conventional legal thinking with knowledge about human beings and their vulnerabilities. In recent years, Hila’s work includes in-depth criticism of neoliberalism: the way it took over our lives, including our emotions and the legal reforms that are badly needed to undo some of the damage. She earned her law degree and Ph.D. from the Hebrew University of Jerusalem in Israel and completed a two-year post-doctorate fellowship at UC Berkeley’s Center of Law and Society. Emily Kidd White is an Assistant Professor at Osgoode Hall Law School. She holds a J.S.D. and an LL.M. from New York University School of Law. She writes on topics of constitutional

Contributors  xi law, and legal and political philosophy, including on the role of emotion in legal reasoning. She is the author of Emotions in Legal Reasoning (OUP, Legal Philosophy Series, forthcoming). Jennifer M. Kilty is Full Professor, Department of Criminology, University of Ottawa. Her research examines various issues at the intersection of health, gender, law and confinement. Author of numerous articles and book chapters, her edited and authored books include: Demarginalizing Voices: Commitment, Emotion and Action in Qualitative Research (2014, UBC Press), Within the Confines: Women and the Law in Canada (2014, Women’s Press), Containing Madness: Gender and ‘Psy’ in Institutional Contexts (2018, Palgrave), and the Enigma of a Violent Woman: A Critical Examination of the Case of Karla Homolka (2016, Routledge).  David Lemmings was formerly Professor of History at the University of Adelaide  and Leader of the ‘Change’ Program in the Australian Research Council Centre for  the History of Emotions. He has published extensively on the socio-cultural history of  law and the legal professions in eighteenth-century Britain. His books include Gentlemen and Barristers: The Inns of Court and the English Bar, 1680–1730, Clarendon Press, 1990, and Professors of the Law: Barristers and the Culture of English Law in the Eighteenth Century, Oxford University Press, 2000. Most recently he has edited a number of collections related to the history of emotions, including with Heather Kerr and Robert Phiddian, Passions, Sympathy and Print Culture (Palgrave-Macmillan, 2015) and with Allyson N. May, Criminal Justice during the Long Eighteenth Century: Theatre, Representation and Emotion (New York: Routledge, 2019). In 2016 he edited Book 1 of Blackstone’s Commentaries on the Laws of England for Oxford University Press.   Kathy Mack (B.A. Magna cum Laude, Rice University; J.D. Stanford Law School; LL.M. University of Adelaide) is Emerita Professor, Flinders University. Since 1994, with Matthew Flinders Distinguished Professor Sharyn Roach Anleu, she has been engaged in socio-legal research into the Australian courts and judiciary, including an investigation of the production of guilty pleas and research into the everyday work of the judiciary. Their latest book is Judging and Emotion: A Socio-Legal Analysis (Routledge, 2021). Jody Lyneé Madeira is Professor of Law and Louis F. Neizer Faculty Fellow at the Indiana University Maurer School of Law in Bloomington, Indiana, where she co-directs the Center for Law, Culture & Society and serves as Bioethics Liaison for the Indiana Clinical & Translational Sciences Institute. She is an expert on qualitative and mixed-methods research, and her research focuses on the intersection of law, emotion, communication, medicine, torts, and public health, prioritizing applications within trauma, reproductive technologies, bioethics, substance use, and firearm violence. She is the author of Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception (University of California Press, 2018) and  Killing McVeigh: The Death Penalty and the Myth of Closure (New York University Press, 2012). Jody holds a Ph.D. and a J.D. from the University of Pennsylvania and an M.S. in Sociolinguistics from Georgetown University. Terry A. Maroney is Professor of Law and Professor of Medicine, Health, and Society at Vanderbilt University. Professor Maroney has been a leading scholar in the law and emotions area for over a decade, with a particular focus on judicial emotion. She has written extensively on the topic, frequently presents to judicial groups around the world, and is heading an empir-

xii  Research handbook on law and emotion ical study on U.S. judges’ work-related emotional experiences and how they seek to regulate them.  Lee Marsons is a doctoral candidate at the University of Essex researching the application of conversation analytic methods in exploring displays of emotion in appellate court audio-visual data. His research particularly focuses on the United Kingdom Supreme Court.  Amy Milka is a researcher in eighteenth-century history, literature and culture at the University of Adelaide. She is the author of several articles on law and emotions, including (with David Lemmings) , ‘Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom’(2017) 38(2) Journal of Legal History 155–78; ‘Feeling for Forgers: Character, Sympathy and Financial Crime in London During the Late Eighteenth Century’ (2019) 42(1) Journal for Eighteenth-Century Studies 7–25; and ‘“Preferring Death”: Love, Crime, and Suicide in Eighteenth-Century England’ – forthcoming in Eighteenth-Century Studies (2020) 53(4) Journal for Eighteenth-Century Studies 685–705.  Jeffrie G. Murphy was Regents’ Professor of Law, Philosophy, and Religious Studies at Arizona State University until his death in September 2020. Murphy was the past president of the American Philosophical Association and presented the 2010 Stanton Lectures to the Divinity Faculty at the University of Cambridge. Over his 50-year career in academia, he published transformative work in many fields. His groundbreaking and evolving body of work on mercy, forgiveness, and retribution is among his most influential. It includes the books Punishment and the Moral Emotions: Essays in Law, Morality, and Getting Even: Forgiveness and its Limits. Murphy’s chapter on retribution and respect for dignity, which he wrote for this volume, was his final work, and it is an honor and a privilege to publish it. Emilia Musumeci is Lecturer in History of Medieval and Modern Law at the University of Teramo, Italy.  She has written extensively on many aspects of the history of criminal law. Currently her research is focused especially on the legal history of emotions and the legal history of body and sexuality. Her publications include Cesare Lombroso e le neuroscienze: un parricidio mancato (Milan, FrancoAngeli, 2012), and Emozioni, Crimine, Giustizia. Un’indagine storico-giuridica tra Otto e Novecento (Milan, FrancoAngeli, 2015). Janice Nadler is a Research Professor at the American Bar Foundation and Nathaniel L. Nathanson Professor of Law at Northwestern University. Her primary research interests lie at the intersection of law and psychology. She has conducted empirical studies on how victim impact information affects judgments about criminal responsibility, the influence of moral character on criminal judgments of blame, and public opinion about health and environmental risks posed by the contemporary food system. Carlton Patrick, J.D., Ph.D., is an Assistant Professor of Legal Studies at the University of Central Florida. He studies the psychology of legal decision-making, often from an evolutionary perspective. He has been a visiting scholar in the Center for Neuroscience and Society at the University of Pennsylvania and practiced law with the law firm Holland & Knight LLP. He is the co-author of Objection: Disgust, Morality, and the Law.  Hannah J. Phalen is a doctoral student in the Psychology and Law program at Arizona State University. She also has her law degree from Arizona State University. Her research focuses on the ways in which gender, expressed emotions, and emotionally evocative evidence

Contributors  xiii influence legal decision-making. Her research has been published in top psychology and law journals and has been funded by the American Psychology-Law Society.  Michael Proeve is Senior Lecturer in Psychology at the University of Adelaide, Australia. He is a clinical and forensic psychologist, with published work in the areas of remorse, shame, mindfulness, and assessment and treatment of sexual offenders. His publications include Remorse: Psychological and Jurisprudential Perspectives (2010) (co-authored with Steven Tudor), and he is co-editor of Remorse and Criminal Justice: Multi-disciplinary perspectives (Routledge, forthcoming).  Sharyn Roach Anleu is Matthew Flinders Distinguished Professor of Sociology at Flinders University and Fellow of the Academy of the Social Sciences in Australia. She is the author of Law and Social Change and four editions of Deviance, Conformity and Control. With Emerita Professor Kathy Mack, she leads the Judicial Research Project, undertaking empirical socio-legal research into the Australian judiciary and its courts. Their latest book is Judging and Emotion: A Socio-Legal Analysis (Routledge, 2021). In 2018 Sharyn and Jessica Milner Davis co-edited Judges, Judging and Humour (Palgrave). Kate Rossmanith is Senior Lecturer in Cultural Studies at Macquarie University, Australia. She researches relationships between performance, emotion and the law, and between ethnographic methods and literary forms. She is the author of Small Wrongs: How we really say Sorry in Love, Life and Law (Hardie Grant Books 2018), which explores remorse in the criminal justice system and remorse in our everyday personal lives. She is the co-editor of Remorse and Criminal Justice: Multi-disciplinary Perspectives (Routledge, forthcoming).  Jessica M. Salerno is an Associate Professor of Psychology at Arizona State University and a Society for Experimental Social Psychology Fellow. Her research investigates the intersection of social psychology and legal decision-making, focusing on emotion and intergroup processes. Her work has been published in major psychology and law journals, and has been funded by the National Science Foundation. She has received early career awards from the American Psychology-Law Society and the Association for Psychological Science.  Amia Srinivasan is the Chichele Professor of Social and Political Theory at All Souls College, Oxford. She writes on topics in epistemology, metaphilosophy, political philosophy and feminism. John Stannard has been a Lecturer on the staff of the Queen’s University of Belfast Law School since 1977. His interest in law and emotion dates back to a conference paper written in 1992, and since then he has published on the subject in a range of journals, including the Journal of Criminal Law, the Northern Ireland Legal Quarterly and the New South Wales Law Review. He has also delivered papers at numerous conferences, including the Society of Legal Scholars, the Irish Association of Law Teachers, the Association for the Study of Law, Culture and the Humanities, the International Association for Law and Mental Health, the Socio-Legal Studies Association and the Multisensory Law Colloquium. Together with Heather Conway, he was joint editor of The Emotional Dynamics of Law and Legal Discourse, published by Hart in 2016. He has spent time as a Visiting Scholar at the Center for Law and Society in Berkeley, California, and he is keen on encouraging contacts between different groups of scholars working in the field of law and emotion on both sides of the Atlantic.

xiv  Research handbook on law and emotion Simon Stern is Professor of Law and English at the University of Toronto. He is co-editor of the Oxford Handbook of Law and Humanities (2020) and of the Oxford University Press series  Law and Literature. Recent publications include work on law and narrative theory, authorship and copyright, the history of obscenity law and its literary contexts, and the law’s imaginative capacities and affordances. He is currently working on a book-length study of the history and theory of legal fictions.  Rebecca Sutton holds a Leverhulme Trust Early Career Fellowship at Edinburgh Law School in the UK. Her current research agenda explores the role of affect in the everyday practice of international humanitarian law by frontline actors, and the pedagogical life of international law. Rebecca is a Canadian lawyer with a Ph.D. in Law from the London School of Economics. Funded by the Trudeau Foundation and the Social Science and Humanities Research Council of Canada, her Ph.D. explored the way in which international humanitarian actors enact the idea of distinction and their civilian identity in South Sudan and at civil-military trainings. Rebecca’s monograph based on this doctoral work, The Humanitarian Civilian, was published by Oxford University Press in early 2021. Kathryn D. Temple, J.D., Ph.D. is a Professor of Law and Humanities, former Chair of the Department of English, and founding Director of the Master’s degree in the Engaged & Public Humanities at Georgetown University where she has taught since 1994. Her books and essays focus on the relationship between emotions and legal institutions. The recipient of NEH, ACLS, Mellon and ARC fellowships, she has published two books, Scandal Nation (2002) and Loving Justice: Legal Emotions in William Blackstone’s England (2019), and essays in venues such as Eighteenth-Century Fiction,  The Eighteenth-Century: Theory and Interpretation and Law, Culture and the Humanities.  Steven Tudor is a Senior Lecturer in the Law School at La Trobe University, Australia. His research interests mostly concern the philosophical aspects of criminal law. His publications include Compassion and Remorse: Acknowledging the Suffering Other (2001), Remorse: Psychological and Jurisprudential Perspectives (2010) (co-authored with Michael Proeve), and various articles in academic journals. He is a co-editor of Remorse and Criminal Justice: Multi-Disciplinary Perspectives (Routledge, forthcoming).  Richard Weisman is Professor Emeritus in the Law and Society Program in the Department of Social Science at York University in Toronto, Canada. He has written extensively on the role of remorse in law and its impact on sentencing, wrongful conviction, capital punishment, and restorative justice among other topics. His major work on the subject is Showing Remorse: Law and the Social Control of Emotion, Routledge, 2014. He is a co-editor of Remorse and Criminal Justice: Multi-Disciplinary Perspectives (Routledge, forthcoming).  Robin West is the Frederick Haas Professor of Law and Philosophy at Georgetown University Law Center and Faculty Director of Georgetown’s SJD and Fellows programs.  She is the author most recently of Reconstructing Civil Rights (2019), from Cambridge Press, “Consent, Legitimation and Dysphoria” (2019) Modern Law Review and co-editor, with Cynthia Bowman, of the Research Handbook on Feminist Jurisprudence, from Edward Elgar Publishing.   Åsa Wettergren is a Professor in Sociology at the University of Gothenburg, Sweden. Her disciplinary expertise is in the Sociology of emotions, a theoretical perspective that she applies

Contributors  xv to the fields of the law, social movements, and migration. Her two current research projects are about professional emotions and the new Swedish rape legislation, and about collective emotional reconstruction in the post-apocalyptic climate movement. She co-authored the book  Professional Emotions in Court: A Sociological Perspective (Routledge 2018) and is co-chief editor of the new journal Emotions and Society, published by Bristol University Press. Catherine Wheatley is a proud graduate of Indiana University Maurer School of Law and is a law clerk for the Honorable Geoffrey G. Slaughter of the Indiana Supreme Court.  She has a Master of Arts from Georgetown University in international law and government where she studied human rights abuses in Africa and Latin America. Her research interests include the intersections of law, society, and politics. Prior to law school, she worked in several nonprofits, including the American Red Cross. In her free time, she enjoys reading fiction and spending time with her husband and young daughter.  Nicole Mansfield Wright is Associate Professor of English at the University of Colorado, Boulder. She examines how literature and media operate as vectors for ideas about the law and shape debates over rights, science, sexual consent, and more. Her research interests include eighteenth- and nineteenth-century British and American literature; theory and development of the novel; and race in literature. Her monograph, Defending Privilege: Rights, Status, and Legal Peril, was published in 2020 by the Johns Hopkins University Press. Her work has appeared in Eighteenth-Century Studies, Eighteenth-Century Fiction, The Eighteenth Century: Theory and Interpretation, Toronto Quarterly, and The Chronicle of Higher Education. She earned her Ph.D. from Yale University and completed a postdoctoral fellowship at the University of Chicago.

Acknowledgements

The editors, Susan Bandes, Jody Lyneé Madeira, Kathryn Temple, and Emily Kidd White, would like to thank one another for this joyful collaboration. This project has been a testament to the principle that kindness and mutual affection can go hand in hand with a deep commitment to rigorous and innovative work. For the same reasons, we would like to thank our authors, whose creativity and incisive analysis were accompanied by an immense generosity of spirit.  Much gratitude is also owed to Akari Hatanaka, Amanda Turnbull, and Anne Victoria West for their excellent research assistance.

xvi

Introduction Susan A. Bandes, Jody Lyneé Madeira, Kathryn D. Temple and Emily Kidd White

The role of emotion in law has long been shrouded in mystery. The legal system is built on assumptions about human behavior, including assumptions about emotion. Thus, unavoidably, understanding emotion is an essential part of building a fairer, more effective system. Yet the emergence and growth of Law and Emotion as a field of study has been slowed by the belief that merely by acknowledging emotion, scholars and jurists would undermine the rule of law. It has been further hampered by the suspicion that emotions are too ephemeral or subjective to be understood in any systematic way. For too long, the result has been a strange, unproductive stasis: a legal system buffeted by emotional influences it refuses to investigate—or even to name. In the past two decades, as fields like philosophy, psychology, neuroscience, sociology, history, anthropology and the humanities discovered (or rediscovered) the importance of reckoning with emotion, legal scholars at last began to develop a more realistic and sophisticated understanding of emotion’s complex role. Even so, we are still in the early stages of this exciting interdisciplinary project. The goal of this volume is threefold: to introduce the general reader to the burgeoning field of Law and Emotion; to bring together voices from a dazzling array of disciplines on a broad range of topics; and to move the conversation forward while identifying important areas for further study. When the transformative volume The Passions of Law was published in 1999, the legal system tended to regard emotion, rather simplistically, as a force that warped and degraded judgment. Even critical law and society scholarship at the time tended to embrace the assumption that law as an institution, a goal, or a set of practices should work to insulate itself from emotion’s influence.1 The Passions of Law exposed the cracks in this foundational premise. It revealed that emotions are an integral part of law and legal processes, and an inextricable component of reasoned judgment. Whether one sought to embrace or elude emotion, it was always there, an inevitable element of the human condition. As Susan Bandes noted in her introduction, the essays in the volume told “a far more unruly, complex, and emotional story about the place of emotions in the law”2 than the conventional wisdom allowed. The Passions of Law was timely because it challenged us not only to discuss the role that emotions play in the law, but also to interrogate individual emotions, their contours, and their interplay. The Passions of Law announced the birth of Law and Emotion as a field, and the past two decades have witnessed its flourishing, as this volume reflects.3 Law and Emotion scholarship See Kathryn Abrams and Hila Keren’s seminal article, “Who’s Afraid of Law and the Emotions?,” Minnesota Law Review 94, no. 6 (2010): 1997–2074, reproduced in an edited version in this volume, for a powerful account of the legal academy’s resistance to the study of emotion. 2 Susan A. Bandes ed., “Introduction,” The Passions of Law (New York: New York University Press, 1999), 1. 3 Terry A. Maroney, “A Field Evolves: Introduction to the Special Section on Law and Emotion,” Emotion Review 8, no. 1 (2016): 3–7. 1

1

2  Research handbook on law and emotion addresses how emotions fill varied roles across a panoply of legal actors, institutional contexts, and legal doctrines. This Research Handbook aims to survey this landscape, providing a snapshot of its richness, depth, complexity, and diversity. It draws from a transnational and interdisciplinary range of perspectives to probe its central questions. One contribution of the volume is the vast survey of methods, theories, and techniques it offers for the examination of emotions in legal study. It is abundantly clear that emotion can be methodically studied, but it is crucial to identify the benefits and limits of the methods available. Each author in this volume was asked to speak specifically to the question of methodology, enabling threads of conversation across the chapters. The volume also brings together for the first time three significant and highly influential field-mapping works,4 alongside a broad array of new research offering in-depth examinations of emotions in the theory and practice of private law, public law, international law, and criminal law. Doctrinally, the law and emotion inquiry has moved beyond an early concentration on criminal law to include a broad array of doctrinal legal areas, including bankruptcy, evidence, contract, property, international, and family law—all showcased in this volume. The volume also explores the wide range of emotions that influence law, including anger, remorse, loyalty, empathy, compassion, moral outrage, disgust, and respect for dignity. In addition, it helps move the conversation about legal decision-making beyond its habitual focus on juries. It widens the lens to include other legal actors, such as judges, lawyers, legal educators, and legislators,5 and less traditional sites of decision-making, such as international tribunals.6 Law and Emotion is an inherently interdisciplinary puzzle. Psychological research has revealed the importance of studying emotions on a more granular and contextual level. Emotions may lead us astray, but they also play a crucial role in sense-making and decision-making.7 Political scientists have explored the role of emotion in the creation

4 Abrams and Keren, “Who’s Afraid,”; Susan A. Bandes, “Empathy, Narrative, and Victim Impact Statements,” University of Chicago Law Review 63, no. 2 (1996): 361-412; Terry A. Maroney, “Law and Emotion: A Proposed Taxonomy of an Emerging Field,” Law & Human Behaviour 30, no. 2 (2006): 119–42. 5 See Jody Madeira and Catherine Wheatley, “Soft Targets: Emotions in the Passage of ‘Stand Your Ground’ Legislation” (this volume). 6 See Susanne Karstedt, “Between Micro and Macro Justice: Emotions in Transitional Justice” (this volume); Rebecca Sutton, “The Humanitarian Actor as Ex-Girlfriend: Sight Lines in Humanitarian-Military Encounters” (this volume); Emily Kidd White, “Images of Reach, Range, and Recognition: Studying Eotions in Transnational and International Law” (this volume). 7 See e.g. Brian H. Bornstein and Richard L. Weiner, eds., Emotions and the Law: Psychological Perspectives (New York: Springer, 2010); John Bronsteen, Christopher Buccafusco and Jonathan S Masur, “Hedonic Adaptation and the Settlement of Civil Lawsuits,” Columbia Law Review 108, no. 6 (2008): 1516–49; “Symposium: Law, Psychology, and the Emotions,” Chicago-Kent Law Review 74, no. 4 (2002): 1423–624; Neal Feigenson, Jaihyun Park and Peter Salovey, “The Role of Emotions in Comparative Negligence Judgments,” Journal of Applied Social Psychology 31, no. 3 (2001): 576–603; Norman J. Finkel, W. Gerrod Parrott, Emotions and Culpability: How the Law is at Odds with Psychology, Jurors, and Itself (Washington DC: American Psychological Association, 2006); Chris Guthrie, “Carhart, Constitutional Rights and the Psychology of Regret,” Southern California Law Review 81, no. 5 (2008): 877–903; Cynthia Lee, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (New York: New York University Press, 2003); Jody Lynee Madeira, “Lashing Reason to the Mast: Understanding Judicial Constraints on Emotion in Personal Injury Litigation,” U.C. Davis Law Review 40, no. 1 (2006): 137–93; Carol Sanger, “Decisional Dignity: Teen Abortion, Bypass Hearings, and the Misuse of Law,” Columbia Journal of Gender & Law 18 (2009): 409–99.

Introduction  3 and sustenance of norms of democratic governance, and in the dynamics of legal reform.8 Historians have detailed how particular emotions, shaped by time, politics, and place, have played fundamental roles in law’s past, which intertwine with its present.9 Sociologists have studied how emotions arise in the social world, and how they function in negotiating social interaction and identity.10 Anthropologists have explored emotions’ cross-cultural contours, evolving new theories of emotion from fieldwork.11 Literary theorists provide insight into both how legal texts embody emotion and how the passions animating law are represented in literature.12 Legal philosophers have mined older philosophical traditions to think about the appropriate role in the legal system of emotions like guilt, justice, mercy, remorse, dignity, and fairness.13 Scholars have built community and crossed disciplinary boundaries by using prior

See e.g. Sharon Krause, Civil Passions: Moral Sentiment and Democratic Deliberation (Princeton, NJ: Princeton University Press, 2008); George E. Marcus, The Sentimental Citizen: Emotion in Democratic Politics (University Park: Pennsylvania State University Press, 2002); James E. Fleming, ed., Passions and Emotions (New York: New York University Press, 2013); Deborah Gould, “Rock the Boat, Don’t Rock the Boat Baby, Ambivalence and the Emergence of Anti-AIDS Activism,” in Passionate Politics: Emotions and Social Movements, ed. Jeff Goodwin, James M. Jasper and Francesca Polleta (Chicago: University of Chicago Press, 2001). 9 See e.g. Rob Boddice, The History of Emotions (Manchester: Manchester University Press, 2018); Susan Broomhall, ed., Early Modern Emotions: An Introduction (New York: Routledge, 2017); Thomas Dixon, “‘Emotion’: History of a Keyword in Crisis,” Emotion Review 4, no. 4 (2012): 338–44; Susan J. Matt, Peter N. Stearns, eds., Doing Emotions History (Springfield, Ill.: University of Illinois Press, 2014); Jan Plamper, The History of Emotions: An Introduction (New York: Oxford University Press, 2017); William M. Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge: Cambridge University Press, 2001); Barbara Rosenwein and Riccardo Cristiani, What Is the History of Emotions? (Cam­bridge: Polity Press, 2018); Monique Scheer, “Are Emotions a Kind of Practice (And Is That What Makes Them Have History)? A Bourdieuian Approach to Understanding Emotion,” History and Theory 51, no. 2 (May 2012): 193–220. 10 See e.g. Stina Bergman Blix and Asa Wettergren, “A Sociological Perspective on Emotions in the Judiciary,” 8 Emotion Review 8, no. 1 (2016): 32–7; Mary Lay Schuster and Amy Propen, “Degrees of Emotion: Judicial Responses to Victim Impact Statements,” Journal of Law, Culture and Humanities 6, no. 1 (2010): 75–194; Susan A. Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 72 Law and Contemporary Problems 72, no. 2 (2009): 1–26. 11 See e.g. Catherine Lutz and Geoffrey M. White, “The Anthropology of Emotions,” Annual Review of Anthropology 15 (1986). 12 See, e.g. Nancy Johnson, ed., Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848 (Lewisburg, PA: Bucknell University Press, 2015); Kathryn Temple, Loving Justice: Legal Emotions in William Blackstone’s England (New York: New York University Press, 2019). 13 See e.g. John Deigh, Emotions, Values, and the Law (Oxford: Oxford University Press, 2008); Maksymilian Del Mar, “Imagining by Feeling: A Case for Compassion in Legal Reasoning,” International Journal of Law in Context 13, no. 2 (June 2017): 143–57; Amalia Amaya and Maksymilian Del Mar, eds, Virtue, Emotion, and Imagination in Law and Legal Reasoning (Chicago: Hart Publishing, 2020); Robert C. Solomon, The Passions: Emotions and the Meaning of Life (Indianapolis: Hackett Pub. Co, 1993); John Gardner, “The Logic of Excuses and the Rationality of Emotions,” Journal of Value Inquiry 43, no. 3 (2009): 315–38; Amy Coplan and Peter Goldie, eds., Empathy: Philosophical and Psychological Perspectives (Oxford ; New York: Oxford University Press, 2011); Martha Craven Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton, N.J.: Princeton University Press, 2004); Martha Craven Nussbaum, Political Emotions: Why Love Matters for Justice (Cambridge: Belknap Press, 2015); Jeffrie G. Murphy, Punishment and the Moral Emotions: Essays in Law, Morality, and Religion (Oxford: Oxford University Press, 2012); Fleming, Passions; Benjamin Zipursky, “DeShaney and the Jurisprudence of Compassion. (Case Note),” New York University Law Review 65, no. 4 (1990): 1147. 8

4  Research handbook on law and emotion work to tunnel deeper into law and emotion subject matter and build richer understandings of these complex topics. Like every work on emotion theory, this volume must confront the reasonable question: What is meant by emotion, exactly? There is a robust debate about whether a consensus definition is important.14 One overarching theme of this volume is that context matters. Across disciplines, it is unhelpful—and indeed misleading—to treat “emotion” as a monolithic, unchanging entity. A better approach is to state one’s working definition of “emotion,” or of the particular emotions under discussion, with the recognition that all such definitions are provisional and contested.15 And when evaluating the role of emotion in the legal system, it is also crucial to identify the purpose of the inquiry. It is unhelpful to discuss the value of remorse, for example, as an abstract matter. Genuine remorse may be valuable in intimate relationships. Whether it should play a similar role in the legal system depends on a host of factors, including normative questions like the purposes of punishment, and practical questions like the capacity of the legal system to evaluate genuine emotion. In important respects, Law and Emotion is less interested in what emotion is than in how the law deploys the category. Law is an academic discipline, but one that studies a set of practices, and these practices have consequences for life, liberty and property. Most often, the legal system uses the category “emotion” as a mechanism for registering disapproval—as a synonym for prejudice, irrelevance, or lack of intellectual rigor—and therefore as a way to exclude evidence, discredit witnesses, and otherwise impose legal consequences. Consequences also flow from assumptions about emotion that are never explicitly defined, for example jurors’ on-the-fly, under the radar understanding of “remorse,”16 or the legal system’s creation of the quasi-psychological notion of “closure.”17 The “emotional” label is still frequently applied to individuals with traditionally marginalized status—women, people of color, and individuals lacking social, economic, educational or political capital. Moreover, a burgeoning distrust of experts and their expertise has made more room for a resilient body of “folk-knowledge, portraying emotions as quick, hot, irrational bursts of feeling”18—an understanding that patently runs counter to scholarly consensus. One important goal of our field is to reveal and interrogate these often-invisible choices. To that end, our volume begins with Terry Maroney’s invaluable expose of the “emotional commonsense” that pervades the legal system. This folk knowledge shapes preconceptions about what ought to be felt and expressed, and even what counts as emotional (and therefore, See, e.g., Jerome Kagan, What is Emotion? History, Measures, and Meanings (New Haven: Yale University Press, 2007). 15 For example, Bandes and Blumenthal posit that “emotions” are a set of evaluative and motivational processes, distributed throughout the brain, that assist us in appraising and reacting to stimuli and that are formed, interpreted, and communicated in social and cultural context. They influence the way we 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. Susan A. Bandes and Jeremy A. Blumenthal, “Emotion and the Law,” The Annual Review of Law and Social Science, 8 (2012): 163–4. 16 See Steven Tudor, Michael Proeve, Richard Weisman and Kate Rossmanith, “Remorse: Multi-Disciplinary Perspectives on How Law Makes Use of a Moral Emotion” (this volume). 17 See Susan A. Bandes, “Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion” (this volume). 18 Bandes and Blumenthal, “Emotion and the Law,” 162. 14

Introduction  5 in the eyes of the law, irrelevant and prejudicial). It argues that these unexamined rules often lack support and privilege the powerful. The future of law and emotions scholarship is expansive and multi-disciplinary. Part I of the Handbook, “Foundations,” highlights several disciplinary approaches, beginning with Maroney’s chapter, which draws from the field of psychology. Maria Gendron’s chapter on neuroscience reviews the neuroscientific evidence that increasingly points to general brain circuitry that is shared across emotional and non-emotional states, challenging classic distinctions between reason and emotion. It also adds a fascinating dimension to the “emotional commonsense” debate. Even as her work identifies the gap between scientific evidence and common understanding of emotion and reason, it also finds emerging evidence that commonsense understandings help shape the way emotions unfold. Robin West’s chapter draws on the methods and tools of legal philosophy to examine the role of sentiments within the liberal legal order, making vivid use of examples from the field of law and literature to illustrate the emotional elements of the liberal conception of the rule of law. Turning the tide on the unsentimental conception of law so commonly forwarded within legal philosophy, West advances the idea that a well-functioning liberal legal order is itself a necessary condition for the flourishing of the moral sentiments. Finally, Gillian Calder’s chapter examines the role of emotions in legal education, with a focus on presenting painful facts in the classroom. Calder draws on several challenging cases in Canadian constitutional law to work through a series of pedagogical questions concerning the role of affect and emotions in teaching students about the law, legal ethics, and a humane professionalism. Part II turns to the examination of particular emotions in the legal system. It begins with Carlton Patrick’s account of the past three decades of disgust and the law, with a focus on the debates over the value of disgust as a moral arbiter. Reviewing many of the empirical findings of the behavioral sciences as well as the normative scholarship of legal scholars and other social scientists, the chapter provides an eagle’s eye view of the links among disgust, morality, and jurisprudence and is essential reading for any scholar interested in this highly contested area. Jeffrie Murphy seeks to rehabilitate retribution as a justification for punishment, arguing that the rejection of retribution is premised on a misunderstanding—retribution is based not on anger or desire for vengeance but on respect for human dignity. Drawing mainly on the writings of Kant, Murphy has over the years defended a retributive outlook on punishment because it is based on the respect that is owed to the dignity of free and autonomous rational beings—a respect that involves holding people responsible for what they do, praising and rewarding those who do right, and blaming and punishing those who do wrong. In recent years, he has withdrawn some of his enthusiasm for retribution because of an increasing awareness that human autonomy is often limited by factors beyond the actor's control and that punishment is sometimes driven by vindictive passions and only a pretense of caring about human dignity. He still believes, however, that retribution, when properly understood, remains a vital part of the story about the justification of punishment and should be taken much more seriously than it is by most of its critics. In her chapter, Susan Bandes explores how institutions shape emotions and emotional expectations, rather than simply reflecting them. Specifically, she studies the meteoric rise of the concept of closure in the criminal justice system, arguing that criminal justice actors have played a powerful role in shaping and creating emotional expectations that align with and advance deeply punitive strands in penology. Reviewing all the available studies on closure, she concludes that despite its tremendous influence, the concept is based on unexamined and unsupported assumptions about the role the criminal justice system can play

6  Research handbook on law and emotion in healing. Amia Srinivasan takes on the philosophical argument that anger is a corrupting or counterproductive influence on justice. Srinivasan digs deeply into the politics and structure of the emotion to mount a defense of anger, arguing that victims of oppression can feel anger aptly and productively. This powerful chapter introduces a form of injustice, namely affective injustice, which requires oppressed groups to dismiss anger for prudential reasons, even where that anger represents a form of right-seeing, and where that dismissal comes with a heavy psychic burden. Against a long philosophical tradition of stoic (and stoic-like) dismissals of anger from thinking involving the public sphere, Srinivasan revises and revives anger as a vital form of political recognition and communication, and as a source of moral and political knowledge. Finally Steven Tudor, Michale Proeve, Richard Weisman and Kate Rossmanith, the pre-eminent contemporary scholars of remorse, explore the ways in which law engages with remorse as a moral emotion. Drawing from various disciplinary perspectives, including philosophy, psychology, anthropology, and sociology, they question whether each disciplinary account must remain discrete or whether the range of approaches can be integrated into a truly interdisciplinary approach. Part III shifts the focus to legal actors, and also begins to introduce the emerging literature on how emotion cultures vary. It begins with a chapter by Asa Wettergren and Stina Bergman Blix, who propose a theoretical framework for the comparative study of emotion norms among different Western legal systems. Their framework focuses on how professional norms of appropriate emotion are embedded in emotional regimes, and how the social and cultural norms of these regimes are shaped, communicated, and implicitly enforced. Lisa Flower’s chapter draws on a similar framework, analyzing the difficult role of defense attorneys. Defense attorneys routinely encounter gruesome evidence, and must negotiate the moral suspicion that others direct towards them and their clients. Flower recounts how defense lawyers attempt to represent their clients by managing their own emotions and the emotions of their clients, judges, and others, in order to maintain propriety, demonstrate loyalty, and guide expectations. She bases her analysis on interviews with Swedish defense attorneys, in the process revealing some fascinating differences among regional or national emotion cultures. Sharyn Roach Anleu, Jennifer Elek and Kathy Mack’s chapter, like the two preceding it, explores strategies for decoding emotion norms, particularly the norm of judicial dispassion, and for managing emotions in light of these implicit norms. It describes how the inherent emotional labor present within judging contrasts with the conventional understanding of dispassionate justice in the context of two qualitative research projects that document how judicial officers experience, describe, use, and manage emotion in their judging. These interviews illuminate the boundaries of acceptable judicial emotional experience, as participants explore how they manage their own emotions and those of court participants, and use emotion work to accomplish judicial tasks. Part IV focuses on how emotions inform, reflect, and shape legal doctrines. June Carbone and Naomi Cahn trace the evolution of family relationships from a hierarchical, duty-based framework to more flexible egalitarian relationships founded on respect and trust. These changes have also enabled the gradual destigmatization of nonmarital relationships and contributed to the contemporary complexities of co-parenting. The authors conclude that, despite the significant changes in family law in recent decades, its “all-or-nothing” approach wreaks injustice upon modern family ties and emotions. Pamela Foohey’s chapter outlines an underexplored topic: what roles emotions play in commercial credit laws, including bankruptcy. Foohey explores how the emotions of assuming and paying back debt are different for business

Introduction  7 leaders than for consumers with household debt, linking these characterizations to conventional understandings of who can respectably incur debt, and how. As she demonstrates, these disparate emotional regimes help pave an easier path for businesses than households, leading to emotional encumbrances and stigma for consumers. Heather Conway and John Stannard examine the emotional dynamics of property law, arguing that property speaks to complex relational ties and social interactions. Ownership rights are not always absolute and unqualified, and the law does not always protect the rights of owners above all else. Drawing on these ideas, the chapter argues that people’s perceptions of property and what it means to them are not necessarily replicated in property law theory and doctrine—and that this conceptual disconnect is most apparent when we look at emotional attachments to specific types of property in different scenarios. Emma Jones takes a similar approach to contract law, whose implicit and sometimes explicit premise is that emotion is either irrelevant to or in tension with the formation of contracts. The author argues that emotion is on the contrary integral to contractual transactions and should be explicitly acknowledged and explored. And finally Lorana Bartels and Anthony Hopkins turn to criminal law, with a particular focus on what they identify as the punitive paradigm that reigns in Australia. They argue that this paradigm is driven by fear and a turning away from those we imprison, which propel the citizenry toward increased imprisonment. The authors advocate for a policy informed instead by compassion—a turning toward rather than away; an acceptance of those subject to punishment as fellow human beings. Part V examines the emotional dynamics of legal decision-making from several disciplinary perspectives. The first two chapters are grounded in psychology. Hannah J. Phalen, Jessica Salerno and Janice Nadler emphasize the importance of taking a granular approach to the study of emotions, and apply this approach to the study of the impact of emotional evidence (for example gruesome photos) on jury decision-making. They consider the question from a number of perspectives, including jurors’ reactions to the evidence and the impact of their reactions on their verdicts, the effects of individual differences in juror emotionality on juror reactions, and the impact of various legal actors’ emotional expressions on juror reactions. Neal Feigenson also explores the emotional effects of visual evidence, advancing a model of how emotions can influence legal judgment, and using this model to structure a survey of the effect of visual evidence on the emotions of decision-makers. Lee Marsons draws on the field of neuroscience to further break down the well-entrenched binary distinction between reasoning and emotion. Finding a deep integration among emotion, cognition, motivation, and reasoning, Marsons is principally concerned with developing a linguistic methodology for examining judicial displays of emotions in legal judgments. Jennifer Kilty draws on narrative theory and feminist critique to unearth the implicit emotional assumptions in a high profile Canadian case. Kilty relates how June Callwood’s depiction of the Charles Ssenyonga case is an artifact of the moralized AIDS panic and criminalization of HIV nondisclosure. Ssenyonga’s character stands at the intersection of three narratives—racialized, deception, and victim narratives—that construct him as an HIV sexual predator in problematic ways redolent of colonial tropes of race, class, gender, and sexuality. Part VI turns to issues of history and context, examining how legal emotions have been constructed differently in different times and places. Emilia Musumeci regales the reader with an account of the debate on the crime of passion in late nineteenth-century Italy. In describing the debates among nineteenth-century Italian criminologists over the relationship between crimes of passion and free will, Musumeci provides a window into late Enlightenment approaches to

8  Research handbook on law and emotion criminology, to intent, and, inevitably to gender relations around issues of jealousy and love. The chapter concludes by positioning the work of these nineteenth-century Italian criminologists in the context of emotions relevant to law, on the one hand, and the new neuroscience of culpability on the other. Amy Milka and David Lemmings explore the “lawyerization” of the English criminal trial during the eighteenth century, and the ways it encouraged litigants to bring emotion to the courtroom in order to manipulate judges, witnesses, and juries. Such emotional manipulation in part replaced religious emphasis on divine punishment with the new feeling rules of the rising middle classes. The chapter explores the importance of emotions in this transitional period, whether invested in the belief in divine providence, or skillfully interrogated and performed by a lawyer through gesture, action, and eloquence. Nicole Mansfield Wright further expands our understanding of appropriate historical sources for scholarship in the history of law and emotions, examining the use of slang as a window into the historical persistence of fear and resentment toward legal authority. To pursue her study of affective responses to law enforcement and governmental authority, Wright draws on unique, non-traditional sources—ranging from the so-called “canting dictionaries” of the 1600s and 1700s, to the notorious UrbanDictionary.com of the 2000s—to glean perspectives on opposition to legal authority in Britain and America. To gauge the perspectives of disenfranchised groups, scholars must look beyond canonical literature and official records, and probe deeply into the non-canonical repositories that reflect the emotions of the disenfranchised. Simon Stern’s contribution suggests an intriguing departure from the common methodology of examining the explicit display of strongly marked negative emotions in the courtroom. Shifting the focus, this chapter examines William Fulbeck’s A Direction or Preparation to the Study of the Law (1600), the first common-law text to focus primarily on legal methods, rather than on a particular field of law. Through a careful examination of this work Stern reveals the emotions Fulbeck seeks to elicit from law students, and suggests, by way of example, how we might seek out other contexts besides concrete legal disputes for studying the history of legal affect. Finally, Kathryn Temple’s chapter examines the value of emotions to understanding law’s fundamental aims and purposes, drawing on Giorgio Agamben and Duncan Kennedy to examine the role emotions play in creating just societies. The internalization of just precepts that guide our behaviors is not simply a matter of following the law but instead involves an emotional attachment to law that overrides feelings of coercion and alienation. Through contrasting Agamben’s representation of the Franciscan monks’ response to law with Blackstone’s depiction of the English legal system, Temple demonstrates both the limitations and promise of law as a “form of life.” Part VII widens the lens, moving from traditional venues like the jury room or the courtroom to other sites of decision-making, including legislatures and international tribunals. In “Soft Targets,” Jody Madeira and Catherine Wheatley use “Stand Your Ground” legislation as a case study in the role of emotion in the legislative process. The authors examine how anecdotes, statistics, and doctrinal legal arguments played diverse and largely competing roles in the passage of an Indiana state bill that proposed to expand civil protections for individuals who use deadly force against others and then allege self-defense. As they recount, supporters strategically used a powerful personal anecdote to create a particular empathic emotional regime that overcame representative information, including statistics and technical accounts, to persuade others that the victim or the victim’s family should bear the emotional and financial burdens of a wrongful death suit.

Introduction  9 The remaining three chapters of this Part focus on the role of emotion in international laws and tribunals. Susanne Karstedt examines the emotional dynamics and outcomes of truth commissions and other transitional justice arenas, arguing that gains in societal healing and reconciliation come at the expense of victims’ and survivors’ own emotional well-being. Rebecca Sutton’s chapter examines in subtle detail the affective and perceptual judgments of legal actors working in the field of international humanitarian law, and the impact of these affective and perceptional judgments on both the application and possibilities for this body of law. The chapter examines the on-the-ground feelings of hostility and detachment that legal concepts and distinctions can generate in the emotional lives of humanitarian actors. And finally, drawing on analytical philosophical methods, Emily Kidd White maps out a series of images regarding the reach and range of emotions within the analytical philosophical literature to see what questions they might press on the theories and practices of international law, and on the authority of international law. Kidd White advocates studying the emotions that appear integral, epiphenomenal, or even disruptive to the human practices constituting international law. She argues that this focus can assist in understanding how existing legal practices either support or fall short of the principles and norms of application they profess. In Part VIII, the final section, we present three of the field’s early, foundational articles (two of them in shortened form).19 The first is “Empathy, Narrative, and Victim Impact Statements,” an influential 1996 article by Susan Bandes that was, in large part, an appreciation of the emerging scholarship on law and emotion. However, the piece also argued that the early scholarship tended to treat emotions as monolithic, unambiguous entities, and needed to more effectively contend with the complex, unruly field of emotion theory. While it acknowledged that the scholarly focus on benign emotions such as empathy, compassion, and caring had been crucial in challenging the marginalization of these emotional modes in the legal context, it cautioned against relying on the categories of “positive” and “negative” emotions, or “soft” and “hard” emotions, going forward. This article argued that whether a particular emotion ought to be encouraged or discouraged by the legal system depends on the context and the values we seek to advance. Second is Terry Maroney’s invaluable and widely used taxonomy of Law and Emotion scholarship, published in 2006. Maroney set out, first, to articulate some parameters for the field—she asked “what counts as law and emotion scholarship?” She then suggested a typology to help guide both readers and researchers seeking to navigate the field. Her goal was partially descriptive—to delineate the varying approaches taken by existing work—and partially normative—to encourage future scholars to better articulate their assumptions, approaches, and methodologies. She advised that “any given study within the law-and-emotion rubric will have its primary grounding in at least one of these approaches, but should strive to attend to each. Thus, it should identify which emotion(s) it takes as its focus; distinguish between those emotions and implicated emotion-driven phenomena; explore relevant and competing theories of those emotions’ origin, purpose, or functioning; limit itself to a particular type of legal doctrine or legal determination; expose any underlying theories of law; and make clear which legal actors are implicated.” The final classic article is Kathryn Abrams’ and Hila Keren’s powerful “Who’s Afraid of Law and Emotion?” In 2010, Abrams and Keren perceived that Law and Emotion scholarship had reached a critical moment. It had become a “varied and dynamic body of work, mobilizing diverse disciplinary understandings to analyze the range of emotions that implicate law and

The Maroney article, less lengthy than the other two, is presented in its entirety.

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10  Research handbook on law and emotion legal decisionmaking.” They questioned why mainstream academics, despite their embrace of law and behavioral economics and law and neuroscience, treated law and emotion with ambivalence, and posited one explanation: law and emotion: is more epistemologically challenging 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 cornerstones of mainstream legal thought. It draws on humanistic disciplines in addition to knowledge from the sciences and the social sciences…And it is more plural in its normative aspirations: it does not aim simply to correct legal subjects’ decision-making in favor of rationality—the primary normative impetus in behavioral law and economics scholarship, but to modify legal doctrine to acknowledge and encompass affective response, or use law to channel, moderate, or foster the emotions. From these features, mainstream scholars may have inferred that law and emotions analysis is more distant from recognizable modes of legal thought, less suited to recognizable forms of legal normativity, and therefore has less pragmatic value. They may prefer to view law as an arena that answers to the standards of rationality, drawing on analyses such as behavioral law and economics to respond 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.

CONCLUSION As this collection demonstrates, research on law and emotions has become a thriving field in recent years; the site of vigorous and varied investigations into how emotions influence and are influenced by legal contexts. This scholarship is richly interdisciplinary, melding contributions from psychology, history, sociology, literature, critical theory, neuroscience, and other fields. One of its most important contributions lies in how it undermines our received notions about emotions and prompts us to reexamine them. When we ask whether closure is an emotion, for instance, we challenge what has become a juridical norm in the absence of careful consideration or study. Investigations into different ways of expressing remorse similarly challenge us to examine our own and the legal system’s normative and naturalized ideas about emotional expression. Future research could fruitfully examine the roles that emotions play vis-à-vis the myriad other factors that shape legal outcomes. Also sorely needed are comparative studies addressing the role of emotions across legal contexts and systems both within and across national borders. Important investigations will uncover how emotion can best be “guided, channeled, and educated” to promote best practices and pursue just and equitable outcomes.20 Finally, as the body of law and emotion research continues to accumulate, it becomes a crucial task to document how these conclusions can be best applied to protect and advance justice, equity, and human rights. As those dedicated to pursuing law and emotion inquiries know, these are difficult and discomfiting challenges that demand an intense sensitivity to context and nuance, a deep commitment to reflectiveness, a scholarly ethic of service, the courage to challenge convention, and a creative commitment to pursuing change. But these are the very factors that have drawn so many to interrogate the interrelationship of law and emotion, and that will continue to make these areas of study so vital and salient. Bandes and Blumenthal, “Emotion and the Law,” 171.

20

Introduction  11

REFERENCES Abrams, Kathryn and Hila Keren. “Who’s Afraid of Law and the Emotions?” Minnesota Law Review 94, no. 6 (2010): 1997–2074. Amaya, Amalia and Maksymilian Del Mar, eds. Virtue, Emotion, and Imagination in Law and Legal Reasoning. Chicago: Hart Publishing, 2020. Bandes, Susan A. “Empathy, Narrative, and Victim Impact Statements.” University of Chicago Law Review 63, no. 2 (1996): 361–412. Bandes, Susan A. ed. The Passions of Law. New York: New York University Press, 1999. Bandes, Susan A. “Victims, ‘Closure,’ and the Sociology of Emotion.” 72 Law and Contemporary Problems 72, no. 2 (2009): 1–26. Bandes, Susan A. and Jeremy A. Blumenthal. “Emotion and the Law.” The Annual Review of Law and Social Science, 8 (2012): 161–81. Blix, Stina Bergman and Asa Wettergren. “A Sociological Perspective on Emotions in the Judiciary.” 8 Emotion Review 8, no. 1 (2016): 32–37. Boddice, Rob. The History of Emotions. Manchester: Manchester University Press, 2018. Bornstein, Brian H. and Richard L. Weiner, eds. Emotions and the Law: Psychological Perspectives. New York: Springer, 2010. Bronsteen, John, Christopher Buccafusco and Jonathan S Masur. “Hedonic Adaptation and the Settlement of Civil Lawsuits.” Columbia Law Review 108, no. 6 (2008): 1516–49. Broomhall, Susan, ed. Early Modern Emotions: An Introduction. New York: Routledge, 2017. Coplan, Amy and Peter Goldie, eds. Empathy: Philosophical and Psychological Perspectives. Oxford; New York: Oxford University Press, 2011. Deigh, John. Emotions, Values, and the Law. Oxford: Oxford University Press, 2008. Del Mar, Maksymilian. “Imagining by Feeling: A Case for Compassion in Legal Reasoning.” International Journal of Law in Context 13, no. 2 (June 2017): 143–57, doi:​10​.1017/​S1744552317000088. Dixon, Thomas. “‘Emotion’: History of a Keyword in Crisis.” Emotion Review 4, no. 4 (2012): 338–44. Feigenson, Neal, Jaihyun Park and Peter Salovey. “The Role of Emotions in Comparative Negligence Judgments.” Journal of Applied Social Psychology 31, no. 3 (2001): 576–603. Finkel, Norman J. and W. Gerrod Parrott. Emotions and Culpability: How the Law is at Odds with Psychology, Jurors, and Itself. Washington DC: American Psychological Association, 2006. Fleming, James E., ed., Passions and Emotions. New York: New York University Press, 2013. Gardner, John. “The Logic of Excuses and the Rationality of Emotions.” Journal of Value Inquiry 43, no. 3 (2009): 315–38. Gould, Deborah. “Rock the Boat, Don’t Rock the Boat Baby, Ambivalence and the Emergence of Anti-AIDS Activism.” In Passionate Politics: Emotions and Social Movements, edited by Jeff Goodwin, James M. Jasper and Francesca Polleta. Chicago: University of Chicago Press, 2001. Guthrie, Chris. “Carhart, Constitutional Rights and the Psychology of Regret.” Southern California Law Review 81, no. 5 (2008): 877–903. Johnson, Nancy, ed., Impassioned Jurisprudence: Law, Literature, and Emotion, 1760–1848. Lewisburg, PA: Bucknell University Press, 2015. Kagan, James. What is Emotion? History, Measures, and Meanings. New Haven: Yale University Press, 2007. Krause, Sharon. Civil Passions: Moral Sentiment and Democratic Deliberation. Princeton, NJ: Princeton University Press, 2008. Lee, Cynthia. Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom. New York: New York University Press, 2003. Lutz, Catherine and Geoffrey M. White, “The Anthropology of Emotions,” Annual Review of Anthropology 15 (1986). Madeira, Jody Lynee. “Lashing Reason to the Mast: Understanding Judicial Constraints on Emotion in Personal Injury Litigation.” U.C. Davis Law Review 40, no. 1 (2006): 137–93. Marcus, George E. The Sentimental Citizen: Emotion in Democratic Politics. University Park: Pennsylvania State University Press, 2002. Maroney, Terry A. “A Field Evolves: Introduction to the Special Section on Law and Emotion.” Emotion Review 8, no. 1 (2016): 3–7.

12  Research handbook on law and emotion Maroney, Terry A. “Law and Emotion: A Proposed Taxonomy of an Emerging Field.” Law & Human Behaviour 30, no 2. (2006): 119–42. Matt, Susan J. and Peter N. Stearns, eds. Doing Emotions History. Springfield, Ill.: University of Illinois Press, 2014. Murphy, Jeffrie G. Punishment and the Moral Emotions: Essays in Law, Morality, and Religion. Oxford: Oxford University Press, 2012. Nussbaum, Martha Craven. Hiding from Humanity: Disgust, Shame, and the Law. Princeton, N.J: Princeton University Press, 2004. Nussbaum, Martha Craven. Political Emotions: Why Love Matters for Justice. Cambridge: Belknap Press, 2015. Plamper, Jan. The History of Emotions: An Introduction. New York: Oxford University Press, 2017. Reddy, William M. The Navigation of Feeling: A Framework for the History of Emotions Cambridge: Cambridge University Press, 2001. Rosenwein Barbara and Riccardo Cristiani. What Is the History of Emotions? Cam­bridge: Polity Press, 2018. Sanger, Carol. “Decisional Dignity: Teen Abortion, Bypass Hearings, and the Misuse of Law.” Columbia Journal of Gender & Law 18 (2009): 409–99. Scheer, Monique. “Are Emotions a Kind of Practice (And Is That What Makes Them Have History)? A Bourdieuian Approach to Understanding Emotion.” History and Theory 51, no. 2 (May 2012): 193–220. Schuster, Mary Lay and Amy Propen. “Degrees of Emotion: Judicial Responses to Victim Impact Statements.” Journal of Law, Culture and Humanities 6, no. 1 (2010): 75–194. Solomon, Robert C. The Passions: Emotions and the Meaning of Life. Indianapolis: Hackett Pub. Co, 1993. “Symposium: Law, Psychology, and the Emotions.” Chicago-Kent Law Review 74, no. 4 (2002): 1423–624. Temple, Kathryn, Loving Justice: Legal Emotions in William Blackstone’s England. New York: New York University Press, 2019. Zipursky, Benjamin. “DeShaney and the Jurisprudence of Compassion. (Case Note).” New York University Law Review 65, no. 4 (1990): 1101–47.

PART I FOUNDATIONS

Psychology

1. Lay conceptions of emotion in law Terry A. Maroney

Perhaps the most common lay perception of emotion in law is that the former has no place in the latter. As many other contributions to this volume no doubt will explain, traditional legal scripts posit that reason and emotion are different beasts entirely: they belong to separate spheres of human existence; the sphere of law admits only of reason; and vigilant policing is required to keep emotion from creeping in where it does not belong.1 Those other contributions no doubt also will go on to explain the myriad reasons why such scripts are deeply flawed. One of those reasons is that the proper resolution of many legal questions relies on perception and assessment of the presence, content, function, and impact of emotional states. For example, we sometimes decline to admit relevant evidence because we fear that the emotions it will provoke may unnecessarily traumatize and distract jurors; we consider anger and jealousy in determining whether to treat a killing as manslaughter; we determine the legality of government conduct by asking whether it is sufficiently shocking; we measure levels of emotional distress in setting tort damages. When faced with questions to which emotional phenomena are critical, legal decision makers tend to rely on their own, implicitly held concepts of those phenomena. Such “emotional common sense” is what one thinks she simply knows about emotions, based on personal experience, socialization, and other forms of casual empiricism. Like other forms of common sense, it is a form of unreflective knowledge, cultivated in the laboratory of life and experienced by the holder as simple truth.2 To no small degree, emotional common sense is unavoidable. A great many legal judgments are based on common sense judgments about the world3—indeed, common sense is among the most frequently cited authorities for legal argument.4 What is distinctive about emotional common sense is that many people, legal decision makers included, are likely to believe that folk wisdom is the only sort of wisdom to be had about emotions. Legal decision makers may apply their own concepts of physics when imagining how a car accident likely occurred, but 1 Terry A. Maroney, “Law and Emotion: A Proposed Taxonomy of an Emerging Field,” Law and Human Behavior 30, no. 2 (2006): 119–42. 2 Terry A. Maroney, “Emotional Common Sense as Constitutional Law,” Vanderbilt Law Review 62, no. 3 (2009): 851–916, accessed May 23, 2019, https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​ vanlr62​&​i​=​855. 3 Richard E. Redding, “How Common-Sense Psychology Can Inform Law and Psycholegal Research,” University of Chicago Law School Roundtable 5, no. 1 (1998): 107-42, accessed May 23, 2019, https://​chicagounbound​.uchicago​.edu/​roundtable/​vol5/​iss1/​6; Richard H. Thompson, “Common Sense and Fact-Finding: Cultural Reason in Judicial Decisions,” Legal Studies Forum 19, no. 2 (1995): 119–38, accessed May 23, 2019, https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​lstf19​&​i​=​129; David E. Van Zandt, “Common sense Reasoning, Social Change, and the Law,” Northwestern University Law Review 81, no. 4 (1987): 894-940, accessed May 23, 2019, https://​heinonline​.org/​HOL/​P​?h​=​hein​ .journals/​illlr81​&​i​=​904. 4 Ronald J. Allen, “Common Sense, Rationality, and the Legal Process,” Cardozo Law Review 22 (2001): 1417-31, accessed May 23, 2019, https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​cdozo22​&​i​=​ 1441.

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16  Research handbook on law and emotion they almost certainly are aware that the movement of objects through space is the subject of an area of scientific inquiry; further, they often will realize that their knowledge is inadequate to answer complex questions. The same cannot be assumed about emotion-relevant questions, which may seem uniquely suited to lay assessment.5 As Descartes wrote, because “every one has experience of the passions within himself, there is no necessity to borrow one’s observations from elsewhere in order to discover their nature.”6 Emotion–relevant legal questions, then, often fall into an epistemological blank space. This is an unacceptable state of affairs. It is unacceptable, first, because it destabilizes law: when the bases upon which law is made are idiosyncratic, so too is the law itself. This state of affairs also is unacceptable because, in many instances, stable bases for emotional assessment exist. Finally, where no such bases exist, emotional assessment should be openly acknowledged as an expression of one’s beliefs and values, not passed off as simple truth. The 2006 U.S Supreme Court case Carey v. Musladin7 nicely demonstrates the costs of relying so heavily on lay concepts of emotion. The Court sought to determine the permissibility of allowing family members of the deceased to wear buttons showing his face while attending the murder trial of the man accused of killing him. At oral argument, several Justices opined that a typical juror would see the buttons as an innocuous sign of “normal grief,” and that they therefore were permissible; one believed they communicated simply that the deceased was loved and missed, and on that basis were permissible; another saw the buttons’ legality hinging on whether the family was doing what people “naturally do” when grieving, as opposed to “going out of their way to do something that people in mourning do not normally do.” Amicus parties were of no help, as they saw the buttons as conveying directly opposing messages, both of which they characterized as “obvious” and “commonsensical.”8 The Court appeared to have no concept of how it should resolve the competing claims as to the buttons’ emotional meaning and impact; nor did it appear to have any principled mechanism for discerning the legal relevance of such meaning and impact. Finding itself radically unmoored, the Court punted. This area of the law remains without coherent guidance. The same is true of particularly emotionally saturated types of victim impact evidence, such as victim tribute videos.9 Indeed, a number of lower courts continue to complain about this lack of guidance, which renders this area of law hopelessly idiosyncratic.10 The many areas of law that depend on emotional assessment should be understood as an epistemologically rich space, not a blank one. Invocations of emotional common sense belong in that space but they should not wholly occupy it, as they sometimes are accurate, some5 Gerald L. Clore, and Karen Gasper, “Feeling Is Believing: Some Affective Influences on Belief,” in Emotions and Beliefs: How Feelings Influence Thoughts, eds. Nico H. Frijda, Anthony S.R. Manstead, and Sacha Bem (Cambridge: Cambridge University Press, 2000), 10-44. 6 Cheshire Calhoun, and Robert C. Solomon, eds., “René Descartes: From The Passions of the Soul,” in What Is an Emotion? Classic Readings in Philosophical Psychology (New York: Oxford University Press, 1984), 55. 7 Carey v. Musladin, 549 U.S. 70, 72–73 (2006). 8 Brief of the National Ass’n of Criminal Defense Lawyers at 9, as Amicus Curiae Supporting Respondent, Carey v. Musladin, 549 U.S. 70 (2006) (No. 05-785); Brief of the New Jersey Crime Victims’ Law Center at 3, 11, as Amicus Curiae Supporting Petitioner, Carey v. Musladin, 549 U.S. 70 (2006) (No. 05-785). 9 Kelly v. California, 129 S. Ct. 564, 564 (2008). 10 Storey v. Roper, 603 F.3d 507, 529 (8th Cir. 2010); Anker v. Wesley, 789 F. Supp. 2d 487, 501 (D. Del. 2011).

Lay conceptions of emotion in law  17 times are not, and always reflect one’s worldview.11 This brief chapter uses decisions of the United States Supreme Court to illustrate these points, not because that is the most important court—far from it—but rather because the Court has never displayed any sustained inclination to regard emotions with anything other than a lay perspective. It therefore regularly provides illustrative, high-profile instances from which to learn.

THE INTERMITTENT ACCURACY OF LAY CONCEPTS OF EMOTION IN LAW Sometimes common sense and the weight of reliable external data will concur, a “delightfully harmonious situation.”12 Lay concepts of emotion are empirical, though casually so, in that they are based on human observation and experience, accumulated and passed on over time. Thus, emotional common sense will embody certain truths. For example, the common notion that emotions are involuntary, quick, and can temporarily displace other mental operations is generally true with regard to a small set of evolutionarily basic emotions, such as fear.13 It also is largely true that—as most people believe—feelings of fear both reflect and communicate vital information about danger.14 Therefore, emotional common sense sometimes ought to be respected as a useful synthesis of collective observation about the domain with which humans are most familiar: our everyday emotional lives. To the extent that it imports into law such stable insights, its use is either innocuous or positive. Certainly to the extent that the legal system deliberately assigns certain decision making to lay participants, such as jurors, lay conclusions about emotional phenomena should be presumptively proper to the extent that they are proper as to other sorts of phenomena. Laypersons are not experts in physics either, but they are perfectly good judges of how ordinary objects tend to move through space in ordinary conditions, such as those they encounter in their daily lives. The Supreme Court’s decision in Cohen v. California (1971) provides an example of an instance in which the Justices’ emotional common sense was both well-founded and unlikely to have been meaningfully shifted by additional, external sources of knowledge.15 Cohen was charged with disorderly conduct after wearing a jacket bearing the words “Fuck the Draft” in protest of the Vietnam War. The Court recognized that the government could not penalize his expression of opposition to the war. In deciding that the government further could not penalize the vulgar way in which he expressed that opposition, it relied heavily on its belief that particular words convey not only ideas, “but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.”16 The Constitution, the Cohen Court decided, protects the “emotive function” of speech as much as the literal words

Maroney, “Emotional Common Sense.” Paul E. Meehl, “Law and the Fireside Inductions: Some Reflections of a Clinical Psychologist,” Journal of Social Issues 27, no. 4 (1971): 95, https://​doi​.org/​10​.1111/​j​.1540​-4560​.1971​.tb00679​.x. 13 Joseph E. LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (New York: Simon & Schuster, 1996). 14 Arne Öhman, “Fear,” in Oxford Companion to Emotion and the Affective Sciences, eds. Klaus R. Scherer and David Sander (New York: Oxford University Press, 2009), 182–3. 15 Cohen v. California, 403 U.S. 15 (1971). 16 Cohen v. California, 403 U.S. at 26. 11 12

18  Research handbook on law and emotion themselves. The word “fuck” necessarily conveyed that emotional message and could not be regulated “without effectively repressing Cohen’s ability to express himself.” It is notable that the Cohen majority simply invoked its own views about the relationship between emotion and speech, reflecting an implicit judgment that some words and language patterns are more emotionally salient than others, emotional speech conveys information, and emotional speech conveys different information than does less emotionally salient speech. As it turns out, these ideas are generally quite true, supported by the organized research literature as well as by the Justices’ casual empiricism.17 Further, the determination by the Cohen Court sits at a high level of abstraction (do particular words convey emotion?); is embedded in an ordinary setting (seeing a person wearing a jacket on the street); directly implicates the generalized experience of the community (do people understand that the word “fuck” signals emotional intensity?); and is easy to plug into a pre-existing legal rubric (if the particular mode of expression is directly informational, it cannot be criminalized). These parameters provide guidance as to the situations in which lay assessment of emotion is most likely to be unobjectionable, even salutary, in law. These parameters, however, must remain tight. Often a judgment that appears amenable to lay assessment actually is not, and legal decision makers are likely to misjudge the number of cases that fit into the Cohen category. Consider the case of Safford v. Redding (2009), which declared unconstitutional the strip search of a young teenage girl by school officials searching for evidence of unauthorized possession of prescription strength Advil.18 A key issue in that case was the level of humiliation, shame, and emotional distress a girl in Redding’s position would feel during such a search. At first glance this appears to be at the Cohen level of simplicity; every adult judge or juror has been a child, and presumably has had direct experience dealing with school officials. Though they likely have not had this precise experience, they should be able to imagine how they would have felt if they had. The empathic leap, however, represents a problem. During oral argument, it became clear that one of the male Justices was having trouble imagining why this search (which involved the girl momentarily exposing her breasts to adults) could be traumatic; instead, he brought to bear his own perspective of having been a boy in locker rooms with other boys.19 He was promptly schooled by a female Justice—Ruth Bader Ginsburg— who, speaking from her more particular experience with having been a teenage girl, expressed a strong view that of course it was traumatic.20 Margaret M. Bradley, and Peter J. Lang, “Affective Norms for English Words (ANEW): Instruction Manual and Affective Ratings,” Technical Report C-1 (Gainesville, 1999), accessed May 23, 2019, http://​citeseerx​.ist​.psu​.edu/​viewdoc/​download​?doi​=​10​.1​.1​.306​.3881​&​rep​=​rep1​&​type​=​pdf; Zoltán Kövecses, “Introduction: Language and Emotion Concepts,” in Everyday Conceptions of Emotion: An Introduction to the Psychology, Anthropology and Linguistics of Emotion, James A. Russell, José-Miguel Fernández-Dols, Anthony S.R. Manstead, and J.C. Wellenkamp, eds. (New York City: Springer, 1995), 3–15; Tom Johnstone and Klaus R. Scherer, “Vocal Communication of Emotion,” in Handbook of Emotions (2d ed.), Michael Lewis and Jeannette M. Haviland-Jones, eds. (New York: Guilford Press, 2004), 220–35. 18 Safford Unified School District v. Redding, 557 U.S. 364 (2009). 19 Susan Bandes, Empathetic Judging and the Rule of Law,” Cardozo Law Review De Novo (2009): 133-148. 20 Adam Liptak, “Supreme Court Says Child’s Rights Violated by Strip Search,” New York Times, June 25, 2009, accessed May 23, 2019, https://​archive​.nytimes​.com/​www​.nytimes​.com/​2009/​06/​26/​us/​ politics/​26scotus​.html. 17

Lay conceptions of emotion in law  19 Justice Ginsburg’s perspective won the day. One can imagine, though, that if there were no women in positions of decisional power this case might have been decided otherwise. Emotional experiences are not universal, but rather are grounded in and reflective of variables such as culture, age, gender, race, and power status.21 Particularly because legal decision makers seldom, if ever, perfectly reflect the diversity of any given community, importing their lay assessments into law poses a significant danger. Those decision makers may project themselves into a scenario, imagine how they think they would feel, and assume that dissimilar others would feel the same. Not only may they be wrong in imagining their own affective states, they may be even more wrong in imagining those of others.22 Folk wisdom, already on shaky ground, is even shakier when those invoking it are not even part of the affected “folk.” Finally, sometimes emotional common sense is simply incorrect, not just as to certain other people but as to all people. For example, the U.S. Supreme Court’s decision upholding the criminalization of a particular abortion procedure in Gonzalez v. Carhart23—more on that case in a moment—reflects a number of lay psychological assumptions about regret that fundamentally miss the mark. The Carhart majority failed to take account of regret aversion (that is, the reality that people commonly factor their desire to avoid later regrets into their decision making), overestimation (in doing so, people tend to inflate the imagined regret’s intensity and duration), dampening (if we do experience regret, we tend to deploy psychological tools to manage it), and learning (our regrets can strengthen future decision making). It “got regret wrong,” resting a highly disputed decision on a deeply misguided foundation.24 On a broader level, this category encompasses the many ways in which legal doctrine incorporates the supposition that emotion and reason are oppositional forces and that emotion by its nature distorts and displaces the legal reasoning on which the rule of law depends. No doubt the other entries in this volume will thoroughly catalogue those instances. One need look no further than the words of Thomas Hobbes in Leviathan, in which he declared that a good judge is one who is free of all hatred, fear, love, and compassion,25 while in fact good judges need a high level of awareness of and facility with their emotions in order to perform critical aspects of their jobs.26 Similarly, courts in the United States frequently instruct jurors to set 21 Kathryn J. Lively, “The Sociology of Emotion,” in Handbook of Emotions (4th ed.), Lisa Feldman Barrett, Michael Lewis, and Jeannette M. Haviland-Jones, eds. (New York: Guilford Press, 2018), 66-81; Leslie R. Brody, Judith A. Hall, and Lynissa R. Stokes, “Gender and Emotion: Theory, Findings, and Context,” in Barrett et al., Handbook of Emotions, 369-92; Batja Mesquita, Jozefien De Leersnyder, and Michael Boiger, “The Cultural Psychology of Emotions,” in Barrett et al., Handbook of Emotions, 393–411; Amy S. Wharton, “The Sociology of Emotional Labor,” Annual Review of Sociology 35 (2009): 147–65, accessed May 23, 2019, https://​doi​.org/​10​.1146/​annurev​-soc​-070308​-115944. 22 Jeremy A. Blumenthal, “Law and the Emotions: The Problems of Affective Forecasting.” Indiana Law Journal 80 (2005): 155-238. 23 Gonzales v. Carhart, 550 U.S. 124 (2007). 24 Chris Guthrie, “Carhart, Constitutional Rights, and the Psychology of Regret,” Southern California Law Review 81, no. 5 (2008): 882, accessed May 23, 2019, https://​souther​ncaliforni​alawreview​.com/​wp​ -content/​uploads/​2018/​01/​81​_877​.pdf. 25 Thomas Hobbes, Leviathan (Cambridge University Press, 1904). 26 Terry A. Maroney, “The Persistent Cultural Script of Judicial Dispassion,” University of California Law Review 99, no. 2 (2011): 629–82, accessed May 23, 2019, https://​doi​.org/​10​.15779/​ Z38K98M; Terry A. Maroney, “Emotional Regulation and Judicial Behavior,” University of California Law Review 99, no. 6 (2011): 1485–556, accessed May 23, 2019, https://​doi​.org/​10​.15779/​Z38XQ3J; Sharyn Roach Anleu, and Kathy Mack, “Magistrates’ Everyday Work and Emotional Labour,” Journal of Law and Society 32, no. 4 (2005): 590–614; Sharyn Roach Anleu, and Kathy Mack, Performing

20  Research handbook on law and emotion their emotions aside when reaching their decisions, instructions that rest on the supposition that “passions” are by their nature untethered to relevant evidentiary or moral considerations and therefore will lead them astray.27 These suppositions are deeply wrong on multiple levels: they ignore the facts that emotions are tethered to information, that moral judgments necessarily implicate the emotions, and that resolution of important issues may require that the jurors consult their emotions (for instance, to determine whether a defendant’s behavior was especially shocking and cruel).28 Thus, lay beliefs about and assessments of emotion sometimes are perfectly appropriate, though the parameters within which that is true are limited. Sometimes those lay beliefs and assessments may be true for the decision maker but not for others, in a way that will not be obvious to the decision maker him or herself. Sometimes such views are against the weight of empirical evidence, though they may be in line with widespread belief.

LAY CONCEPTS OF EMOTION IN LAW REFLECT ONE’S WORLDVIEW Accuracy is only one rubric by which to measure the propriety of emotional common sense in law. Not all emotional common sense can be characterized as “correct” or not. In a great many instances, there are “competing correct” versions of reality at play. In these cases, the question is not so much whether a legal decision maker has made a “right” or “wrong” assessment, but rather the extent to which the assessment may be both instrumental and value-laden. First, legal decision makers are likely to interpret relevant emotional phenomena in a manner that comports with their desired normative ends. In Weeks v. Angelone,29 the Justices differed sharply in their interpretation of tears that had been shed by members of a capital sentencing jury when announcing their verdict of death. The legal issue was whether the jury instruction improperly had suggested that those jurors had a duty, rather than an option, to impose death upon proof of a statutory aggravator. Justice Stevens interpreted the jurors’ tears as evidence that they believed they had a duty, did not want to comply with that duty, and were crying out of frustration. Chief Justice Rehnquist, in contrast, thought it just as plausible “that jurors were in tears because they had just been through an exhausting, soul-searching process” ending in their voluntary decision to impose the death penalty. Here we see two different common-sense views about the triggers for, function of, and information conveyed by crying. In the first, crying is something people do when trapped in an intolerable situation. In the second, crying is something people do when exhausted and drained. Both propositions are plausible and well supported in the academic literature,30 and both appear commonsensical. In different Judicial Authority in the Lower Courts (London, UK: Palgrave Macmillan, 2017); Stina Bergman Blix, and Åsa Wettergren, Professional Emotions in Court: A Sociological Perspective (London, UK: Routledge, 2018). 27 California v. Brown, 479 U.S. 538 (1987); Saffle v. Parks, 494 U.S. 484 (1990). 28 Terry A. Maroney, “Emotional Common Sense.” 29 Weeks v. Angelone, 528 U.S. 225 (2000). 30 Ad Vingerhoets, and Lauren Bylsma, “Crying as a Multifaceted Health Psychology Conceptualisation: Crying as Coping, Risk Factor, and Symptom,” The European Health Psychologist 9 (2007): 68–74, accessed May 23, 2019, https://​ www​ .researchgate​ .net/​ profile/​ Lauren​ _Bylsma/​ publication/​230794262​_Crying​_as​_a​_multifaceted​_health​_psychology​_conceptualisation​_crying​

Lay conceptions of emotion in law  21 circumstances, either Justice would regard the other’s assertion is eminently obvious. Which interpretation seems obvious in a given instance has to do with the prior assessment as to the attributes of that instance. Is this case one in which the death penalty was appropriate, or is it not? What position does the Justice see himself as occupying: the juror who wants to spare the defendant’s life, or the one who does not? In such a situation, assertions of emotional common sense are best understood as indicators of a person’s underlying normative assessments, based on her worldview. Further evidence of this phenomenon pervades a long line of cases involving the legality of vociferous antiabortion protests outside of medical clinics. In these cases, Justices often reveal their worldview by displaying a strong empathic connection with one side.31 The empathic divisions lie along two general axes: the presumptive emotional impact of protest on abortion providers and patients, and the presumptive emotional motivation and communicative dynamic of the protester.32 Some Justices easily imagine that a woman seeking an abortion will experience fear and anxiety when confronted by an antiabortion protester, whom they assume will display both physical and verbal aggression. Other Justices instead imagine such a protester speaking in a quiet, compassionate voice, quietly approaching a woman seeking an abortion and gently moving her heart. These Justices are not construing different situations, mind you; they are differentially construing the emotional dynamics and content of the same situation. The manner in which they do so is driven by whom they relate to and how they think the world works. To be sure, this phenomenon is not limited to emotion generally or to empathy specifically; it is a close cousin of the “cultural cognition” documented by Kahan and his collaborators.33 People often filter evidence through their worldview, and are more willing to accept evidence when it conforms to their commitments and to challenge it when it does not.34 But it is important to note just how thoroughly these troublesome phenomena instantiate when the thing being judged is emotion. Emotional common sense is so relatively invisible, so likely to be regarded by so many as “just so,” that it is particularly unlikely to be interrogated. Especially when legal decision makers are members of elites or otherwise culturally powerful subgroups, invocation of emotional common sense may silently privilege their views.

_as​_coping​_risk​_factor​_and​_symptom/​links/​0fcf​d50479cf7a098e000000​.pdf; Daniel M.T. Fessler, and Cristina M. Moya, “Crying (Evolutionary Perspectives),” in Oxford Companion to Emotion and the Affective Sciences, Klaus Scherer and David Sander, eds, (New York: Oxford University Press, 2009) 105–6. 31 Terry A. Maroney, “Emotional Common Sense”; Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, and Jeffrey J. Rachlinski, “‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction,” Stanford Law Review 64, no. 4 (2012): 851–906, accessed May 23, 2019, http://​www​.stanfordlawreview​.org/​wp​-content/​uploads/​sites/​3/​2012/​05/​Kahan​-64​-Stan​-L​-Rev​-851​.pdf. 32 Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994); Hill v. Colorado, 530 U.S. 703 (1997). 33 Dan M. Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases,” University of Pennsylvania Law Review 158, no. 3 (2010): 729–813, accessed May 23, 2019, https://​scholarship​.law​.upenn​.edu/​cgi/​viewcontent​.cgi​?article​=​1137​&​context​=​ penn​_law​_review. 34 Dan M. Kahan, David A. Hoffman, and Donald Braman, “Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism,” Harvard Law Review 122, no. 3 (2009): 837–906, accessed May 23, 2019, http://​harvardlawreview​.org/​wp​-content/​uploads/​2009/​04/​ kahan​_hoffman​_braman​.pdf.

22  Research handbook on law and emotion Finally, we return to Gonzales v. Carhart,35 in which the Court upheld the federal Partial-Birth Abortion Ban Act of 2003. As an initial matter, it is worth noting that this case presented the same danger noted in Safford v. Redding,36 but with a different outcome. As Justice Ginsburg points out in her Carhart dissent, the only people to whom the majority’s lay emotional judgments could apply are women, and every member of the majority was a man. At an even deeper level, Carhart vividly manifests the way in which emotional common sense often conflates the “is” with the “ought,” or elides the difference between the two, reflecting a seemingly “natural morality” that reveals underlying belief structures and value judgments.37 Justice Kennedy’s majority opinion is chock-full of lay assertions about love, regret, grief, and sorrow. He wrote that “[r]espect for human life finds an ultimate expression in the bond of love the mother has for her child,” and that while the Court found “no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained” and that “[s]evere depression and loss of esteem can follow.”38 Kennedy continued: It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

Justice Kennedy’s views on these complicated emotional phenomena are proudly folk-psychological, claimed to be so obvious as to require no data outside of what appears to him to be self-evident. The notion that such observations can and should drive critical legal determinations is, apparently, even more self-evident, as it receives no mention at all. At the heart of Kennedy’s assessment are his assumptions about post-abortion regret. Regret is a painful feeling, reflecting a person’s negative self-evaluation based on voluntary action now judged to be an avoidable mistake, characterized by thoughts of opportunities lost, “kicking oneself,” and desire to undo the decision if one could.39 Despite Kennedy’s claims to the contrary, as Justice Ginsburg was quick to point out in her dissent, an enormous scientific literature examines post-abortion regret. The weight of that evidence indicates that while some women do regret abortion, just as many people regret many difficult life decisions, that regret seldom causes serious psychological damage; more, many women never regret the abortion at all, though they may regret the circumstances that made it appear necessary. Further, no data indicate that instances of psychologically-damaging regret are more common with this particular abortion procedure. Rather than engage with that scientific literature, Justice Kennedy relies on what he feels to be true—and on an amicus brief compiling first-person accounts from women who have come to regret their abortions. Those accounts are no doubt sincere, but they do not purport to examine regret among a representative sample of post-abortive women (let alone women who have had the specific procedure). Further, the women sharing their stories

Gonzales v. Carhart, 550 U.S. 124 (2007). Safford Unified School District v. Redding, 557 U.S. 364 (2009). 37 Van Zandt, “Common Sense Reasoning,” 916. 38 Gonzales v. Carhart, 550 U.S. 124, 159 (2007). 39 Guthrie, “Carhart, Constitutional Rights, and the Psychology of Regret”; Marcel Zeelenberg, “Regret,” in Oxford Companion to Emotion and the Affective Sciences, Klaus R. Scherer and David Sander, eds (New York: Oxford University Press, 2009), 336. 35 36

Lay conceptions of emotion in law  23 generally regret their abortions because of a very specific belief structure, the one also adopted by Operation Outcry, the amicus party: they have come to believe that they were “mothers,” that their fetuses were “children,” and therefore that they have committed “murder.” That, in a nutshell, is what Carhart boils down to. Justice Kennedy shares that belief structure, and fills in the emotional experiences that he believes should correspond to it. When he valorizes the “bond of love the mother has for her child,” he is not so much stating a fact—that all mothers love their children—as declaring a value: all mothers should love their children. When he attaches that value to the relationship between a pregnant woman and fetus, he is declaring that the former is a “mother” and the latter is a “child,” and therefore the same emotional script should apply. When he says that women will regret abortion, he is declaring that women should regret abortion. Finally, when he goes on to say that women particularly will regret a “partial–birth abortion” because it is (in his view) gruesome, he is declaring that women should find the procedure disgusting and, therefore, intolerable. In short, Justice Kennedy’s logic runs as follows: a woman who aborts destroys the profound bond of love she had, and would have continued to have, with her child; once she realizes this, she will see that her choice to abort was an avoidable mistake; she accordingly will suffer regret; that regret will be even more acute if she realizes the gruesome manner in which she chose to kill her child; and crippling regret is so likely to damage so many women— because most women are normal, decent human beings who will feel this way once they see the truth—as to justify banning the procedure altogether, to save them from this inevitable emotional harm. This expression of emotional common sense positively bristles with culturally specific, morally contested judgments—the very judgments on which the Constitution is meant to remain agnostic, according to Roe and its progeny—and forces a false consensus on them. The Carhart Court has taken sides while pretending to be stating nothing more than common sense about basic emotional reality among decent, right-thinking people.

LAY CONCEPTS OF EMOTION IN LAW SHOULD BE INTERROGATED Emotional common sense, as this brief discussion has shown, is a highly complex phenomenon dressed up as a simple one. It represents one way in which legal decision makers may pass contentious judgments of value on by passing them off as uncontestable matters of fact. But emotional common sense is of uneven epistemological value. It is prone to instrumental use. It influences how legal decision makers perceive relevant facts and law, and provides a fig leaf under which to obscure contested views of social justice and the good life. It is largely invisible to its holder, but absurd to one whose common sense lies elsewhere. Emotional common sense may be cautiously embraced—or at least tolerated—where the legal determination involves extremely basic emotions as manifested in everyday settings, for in that instance emotional common sense may be so likely to be accurate as to be an acceptable source. The (limited) embrace should be largely withheld, though, where the legal decision maker is asked to evaluate complex emotions, particularly those of other people. In these situations, the inaccuracy, instrumentalism, and parochialism to which all common sense is vulnerable are most likely to be at play. Legal decision makers are likely to overestimate vastly

24  Research handbook on law and emotion the instances in which their lay assessment is sufficient, and to fail to notice the extent to which their assessments embody contestable value judgments and overlook diverse perspectives. The robust field of law and emotion, so well represented in this volume, seeks largely to educate scholars and legal decision makers about appropriately complex perspectives on the emotional questions that permeate law. Over time, lay assessment of emotion should become progressively more confined to those legal questions to which it is most appropriate. However, this is not a foregone conclusion. We will get there only by consistently and rigorously identifying and interrogating emotional common sense and law. All of us in the legal community, both scholars and decision makers, must take a more catholic view toward the sources of information about emotions, and a more humble view toward the universality of our own.

REFERENCES Allen, Ronald J. “Common Sense, Rationality, and the Legal Process.” Cardozo Law Review 22 (2001): 1417–31. https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​cdozo22​&​i​=​1441. Bandes, Susan A. “Empathetic Judging and the Rule of Law.” Cardozo Law Review De Novo (2009): 133–48. Bergman Blix, Stina, and Åsa Wettergren. Professional Emotions in Court: A Sociological Perspective. London: Routledge, 2018. Blumenthal, Jeremy A. “Law and the Emotions: The Problems of Affective Forecasting.” Indiana Law Journal 80 (2005): 155–238. Bradley, Margaret M., and Peter J. Lang. “Affective Norms for English Words (ANEW): Instruction Manual and Affective Ratings.” Technical Report C-1. Gainesville, 1999. http://​citeseerx​.ist​.psu​.edu/​ viewdoc/​download​?doi​=​10​.1​.1​.306​.3881​&​rep​=​rep1​&​type​=​pdf. Brody, Leslie R., Judith A. Hall, and Lynissa R. Stokes. “Gender and Emotion: Theory, Findings, and Context.” In Handbook of Emotions (4th ed.), Lisa Feldman Barrett, Michael Lewis, and Jeannette M. Haviland-Jones, eds, 369–92. New York: Guilford Press, 2018. Calhoun, Cheshire, and Robert C. Solomon, eds. “René Descartes: From The Passions of the Soul.” In What Is an Emotion? Classic Readings in Philosophical Psychology, 55–70. New York: Oxford University Press, 1984. Clore, Gerald L., and Karen Gasper. “Feeling Is Believing: Some Affective Influences on Belief.” In Emotions and Beliefs: How Feelings Influence Thoughts, Nico H. Frijda, Anthony S.R. Manstead, and Sacha Bem, eds, 10–44. Cambridge: Cambridge University Press, 2000. Fessler, Daniel M.T., and Cristina M. Moya. “Crying (Evolutionary Perspectives).” In Oxford Companion to Emotion and the Affective Sciences, Klaus Scherer and David Sander, eds, 105–6. New York: Oxford University Press, 2009. Guthrie, Chris. “Carhart, Constitutional Rights, and the Psychology of Regret.” Southern California Law Review 81, no. 5 (2008): 877–904. https://​souther​ncaliforni​alawreview​.com/​wp​-content/​uploads/​ 2018/​01/​81​_877​.pdf. Hobbes, Thomas. Leviathan. Cambridge University Press, 1904. Johnstone, Tom, and Klaus R. Scherer. “Vocal Communication of Emotion.” In Handbook of Emotions (2d ed.), Michael Lewis and Jeannette M. Haviland-Jones, eds, New York: Guilford Press, 2004. Kahan, Dan M. “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases.” University of Pennsylvania Law Review 158, no. 3 (2010): 729–813. https://​scholarship​.law​ .upenn​.edu/​cgi/​viewcontent​.cgi​?article​=​1137​&​context​=​penn​_law​_review. Kahan, Dan M., David A. Hoffman, and Donald Braman. “Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” Harvard Law Review 122, no. 3 (2009): 837–906. http://​harvardlawreview​.org/​wp​-content/​uploads/​2009/​04/​kahan​_hoffman​_braman​.pdf. Kahan, Dan M., David A. Hoffman, Donald Braman, Danieli Evans, and Jeffrey J. Rachlinski. “‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction.” Stanford Law Review

Lay conceptions of emotion in law  25 64, no. 4 (2012): 851–906. http://​www​.stanfordlawreview​.org/​wp​-content/​uploads/​sites/​3/​2012/​05/​ Kahan​-64​-Stan​-L​-Rev​-851​.pdf. Kövecses, Zoltán. “Introduction: Language and Emotion Concepts.” In Everyday Conceptions of Emotion: An Introduction to the Psychology, Anthropology and Linguistics of Emotion, James A. Russell, José-Miguel Fernández-Dols, Anthony S.R. Manstead, and J.C. Wellenkamp, eds, 3–15. New York: Springer, 1995. LeDoux, Joseph E. The Emotional Brain: The Mysterious Underpinnings of Emotional Life. New York: Simon & Schuster, 1996. Liptak, Adam. “Supreme Court Says Child’s Rights Violated by Strip Search.” New York Times (New York, NY), June 25, 2009. https://​archive​.nytimes​.com/​www​.nytimes​.com/​2009/​06/​26/​us/​politics/​ 26scotus​.html. Lively, Kathryn J. “The Sociology of Emotion.” In Handbook of Emotions (4th ed.), Lisa Feldman Barrett, Michael Lewis, and Jeannette M. Haviland-Jones, eds, 66–81. New York: Guilford Press, 2018. Maroney, Terry A. “Law and Emotion: A Proposed Taxonomy of an Emerging Field.” Law and Human Behavior 30, no. 2 (2006): 119–42. Maroney, Terry A. “Emotional Common Sense as Constitutional Law.” Vanderbilt Law Review 62, no. 3 (2009): 851–916. https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​vanlr62​&​i​=​855. Maroney, Terry A. “Emotional Regulation and Judicial Behavior.” University of California Law Review 99, no. 6 (2011): 1485–556. https://​doi​.org/​10​.15779/​Z38XQ3J. Maroney, Terry A. “The Persistent Cultural Script of Judicial Dispassion.” University of California Law Review 99, no. 2 (2011): 629–82. https://​doi​.org/​10​.15779/​Z38K98M. Meehl, Paul E. “Law and the Fireside Inductions: Some Reflections of a Clinical Psychologist.” Journal of Social Issues 27, no. 4 (1971): 65–100. https://​doi​.org/​10​.1111/​j​.1540​-4560​.1971​.tb00679​.x. Mesquita, Batja, Jozefien De Leersnyder, and Michael Boiger. “The Cultural Psychology of Emotions.” In Handbook of Emotions (4th ed.), Lisa Feldman Barrett, Michael Lewis, and Jeannette M. Haviland-Jones, eds, 393–411. New York: Guilford Press, 2018. Öhman, Arne. “Fear.” In Oxford Companion to Emotion and the Affective Sciences, Klaus R. Scherer and David Sander, eds, 182–83. New York: Oxford University Press, 2009. Redding, Richard E. “How Common-Sense Psychology Can Inform Law and Psycholegal Research.” University of Chicago Law School Roundtable 5, no. 1 (1998): 107–42. https://​chicagounbound​ .uchicago​.edu/​roundtable/​vol5/​iss1/​6. Roach Anleu, Sharyn, and Kathy Mack. “Magistrates’ Everyday Work and Emotional Labour.” Journal of Law and Society 32, no. 4 (2005): 590–614. https://​doi​.org/​10​.1111/​j​.1467​-6478​.2005​.00339​.x. Roach Anleu, Sharyn, and Kathy Mack. Performing Judicial Authority in the Lower Courts. London, UK: Palgrave Macmillan, 2017. Thompson, Richard H. “Common Sense and Fact-Finding: Cultural Reason in Judicial Decisions.” Legal Studies Forum 19, no. 2 (1995): 119–37. https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​lstf19​&​i​=​129. Van Zandt, David E. “Common sense Reasoning, Social Change, and the Law.” Northwestern University Law Review 81, no. 4 (1987): 894–940. https://​heinonline​.org/​HOL/​P​?h​=​hein​.journals/​illlr81​&​i​=​904. Vingerhoets, Ad, and Lauren Bylsma. “Crying as a Multifaceted Health Psychology Conceptualisation: Crying as Coping, Risk Factor, and Symptom.” The European Health Psychologist 9 (2007): 68–74. Wharton, Amy S. “The Sociology of Emotional Labor.” Annual Review of Sociology 35 (2009): 147–65. https://​doi​.org/​10​.1146/​annurev​-soc​-070308​-115944. Zeelenberg, Marcel. “Regret.” In Oxford Companion to Emotion and the Affective Sciences, edited by Klaus R. Scherer and David Sander, 336. New York: Oxford University Press, 2009.

Neuroscience

2. The evolving neuroscience of emotion: challenges and opportunities for integration with the law Maria Gendron

When is someone to blame for their misbehavior? Can we tell when someone else is authentically feeling an emotion like remorse? Should judges be dispassionate? These questions, and others like them, illuminate the intrinsic role for emotion in conceptions of human behavior and agency that permeate legal systems. Research and scholarship at this intersection are making progress toward identifying and describing the myriad ways that emotions are woven into the law and its practice. But a major challenge to further integrating the science of emotion into legal scholarship is the complex and rapidly changing landscape of emotions research itself. Within just the last 30 years of research the science of emotion has evolved considerably. By some accounts this area of research is undergoing a paradigmatic shift.1 Here, I review emerging evidence on the physiological and behavioral bases of emotions. In doing so, I aim to shed light on disconnects between the scientific evidence and lay thinking about the nature of emotions. This will not simply be an exercise of pointing out the limits of lay people’s intuitions about the mind and brain, however. These same lay (mis)conceptions are deeply embedded in the legal system, in ideals like judicial dispassion2 and the heat of passion doctrine.3 Further, emerging evidence suggests that lay (intuitive) theories about how emotions work can actually impact how these phenomena unfold. Actors within the legal system are likely no exception to these effects. I will close by suggesting that a deeper interdisciplinary integration between the scientific study of emotion and legal scholarship will define not only new challenges but also opportunities for both fields.

PSYCHOLOGICAL AND NEUROSCIENTIFIC APPROACHES TO EMOTION Scientists in psychology and neuroscience have been grappling with the nature of emotion since the outset of these disciplines. It is the fundamental questions, such as “What is an 1 Lisa Feldman Barrett, How Emotions Are Made: The Secret Life of the Brain (Boston: Houghton Mifflin Harcourt, 2017); Joseph E. LeDoux, “Semantics, Surplus Meaning, and the Science of Fear,” Trends in Cognitive Sciences 21, no. 5 (2017): 303–6; Matthew D. Lieberman, “Boo! The Consciousness Problem in Emotion,” Cognition and Emotion 33, no. 1 (2019): 1–7. 2 Terry A. Maroney, “The Persistent Cultural Script of Judicial Dispassion,” California Law Review 99, no. 2 (2011): 629–81. 3 Dan M. Kahan and Martha C. Nussbaum, “Two Conceptions of Emotion in Criminal Law,” Columbia Law Review 96, no. 2 (1996): 269–374.

27

28  Research handbook on law and emotion emotion?” and “How can we measure emotion?”, which have been most vigorously debated and intensively studied. Scholars have put forward a variety of proposals across the decades to answer these questions.4 Here, the focus will be restricted to two primary approaches to the study of emotion, which we will refer to as the classical and constructionist approaches. The Classical Approach Theoretical models that are referred to as “classical” or “natural kind” accounts of emotion are perhaps the most visible and widely held (at least historically) in psychology5 and affective neuroscience.6 Classical approaches propose that emotions are caused by specific biological mechanisms that evolved – i.e., the assumption that emotions have a causal essence.7 In neuroscience, these ideas have driven efforts to find the brain regions that are consistently involved in specific emotional states and to map the pathways that lead to certain behavioral outcomes that are assumed to be characteristic of emotions (e.g., freezing or aggressing). A second proposal of the classical account is that emotions have sets of necessary and sufficient features.8 That is, emotions are categorically distinct, with each having a characteristic facial expression, pattern of bodily activity (in the autonomic nervous system) and distinct feelings. For example, fear is proposed to occur in response to a threatening stimulus (the cause), and it produces a cascading bodily response, including elevated heart rate and blood pressure as well as a characteristic gasping and wide-eyed facial expression. The fear reaction will then involve a tendency to freeze or flee and to be risk averse, and will be associated with distinct feelings (phenomenology). In psychology, researchers have focused on testing these ideas by examining how perceivers read facial expressions and whether certain emotions have clear associations with bodily change, behaviors and perceptions. Finally, core to the classical view is the more fundamental assumption that emotions are distinct from cognition. Because emotions are proposed to have specialized mechanisms, these should be separable from systems that support other “cognitive” processes. As a result, when individuals are said to be “emotional”, it can also be said that they are no longer governed by rationality. Cognitive systems have a role to play in emotional events, but they are assumed to play an external, regulatory role.9 That is, emotions are reined in by cognition mechanisms.

Lisa Feldman Barrett and Ajay B. Satpute, “Historical Pitfalls and New Directions in the Neuroscience of Emotion,” Neuroscience Letters 693 (2019): 9–18; Maria Gendron and Lisa Feldman Barrett, “Reconstructing the Past: A Century of Ideas About Emotion in Psychology,” Emotion Review 1, no. 4 (October 2009): 316–39. 5 Paul Ekman, “What Scientists Who Study Emotion Agree About,” Perspectives on Psychological Science 11, no.1 (2016): 31–4. 6 Barrett and Satpute, “Historical Pitfalls and New Directions.” 7 For discussion, see Lisa Feldman Barrett, “Categories and Their Role in the Science of Emotion,” Psychological Inquiry 28, no. 1 (2017): 20–26; Klaus R. Scherer, “Emotions are Emergent Processes: They Require a Dynamic Computational Architecture,” Philosophical Transactions of the Royal Society of London. Series B, Biological Sciences 364 (December 2009): 3459–74; Jessica L. Tracy and Daniel Randles, “Four Models of Basic Emotions: A Review of Ekman and Cordaro, Izard, Levenson, and Panksepp and Watt,” Emotion Review 3, no. 4 (2011): 397–405. 8 Agnes Moors, “Integration of Two Skeptical Emotion Theories: Dimensional Appraisal Theory and Russell's Psychological Construction Theory,” Psychological Inquiry 28, no.1 (2017): 1–19. 9 James J. Gross, “The Emerging Field of Emotion Regulation: An Integrative Review,” Review of General Psychology 2, no.3 (1998): 271–99. 4

The evolving neuroscience of emotion  29 Scientific evidence for the classical account Overall, research in affective neuroscience and psychology has yet to bear out the core proposals of the classical account. Both proposals, that emotions have causal biological essences and that emotions have sets of necessary and sufficient features, are unsupported by the current weight of evidence. After over 100 years searching10 for the signatures for emotions in the body and brain, the discipline has yet to recover a set of specific measures that can objectively distinguish one emotion from another. The gold standard of emotion measurement remains self-report – i.e., asking someone how they are feeling. Neural activity in emotion: Is there evidence for causal essences? The story of fear and the amygdala is characteristic of the difficulties involved in identifying a biological basis for emotions. Early work in human neuroimaging research was inspired by the considerable progress made mapping the brain regions that support an animal’s ability to respond to and learn about threats. This research revealed that circuits in the amygdala supported these capacities. Research into the human experience of fear sought to extend these findings. Researchers predicted that the human experience of fear was caused by the activation of the amygdala. With the advent of neuroimaging technology researchers were finally able to examine the human brain in action and to put these ideas to the test. The early evidence was highly compelling. For example, when participants in the scanner were exposed to pictures of people making wide-eyed gasping faces, amygdala activity was often observed (compared to when people would view neutral faces). Yet as researchers continued to expand the types of emotions and stimuli that participants were exposed to, the simple amygdala-fear story became much more complex. Not only did the evidence suggest that the amygdala is not consistently engaged by fear stimuli (the amygdala “lights up” in only about 30 percent of experiments where fear is studied),11 but the amygdala is also routinely involved in processing happy, sad, and even neutral content when it is being encountered for the first time (novelty).12 These findings revealed that the amygdala is far from the dedicated causal mechanism for the emotion of fear. Instead, the amygdala is responsive across a broad range of contexts that are salient for the perceiver. The proposed associations between other emotions and specific brain circuitry similarly failed to yield consistent support. When hundreds of studies investigating the neural basis of emotion were formally summarized (with meta-analysis), the results showed that many of the same areas are active across different types of emotions like happiness, sadness and fear.13 In a given study, some differences can be observed between different types of emotion experience. For example, researchers have more recently described complex patterns of brain activity across the cortex that can be discovered using more advanced methods (harnessing

10 Kristen A. Lindquist et al., “The Hundred-Year Emotion War: Are Emotions Natural Kinds or Psychological Constructions? Comment on Lench, Flores, and Bench,” Psychological Bulletin 139, no. 1 (2013): 255–63. 11 Kristen A. Lindquist et al., “The Brain Basis of Emotion: A Meta-Analytic Review,” The Behavioral and Brain Sciences 35 (2012): 121–43. 12 For review, see Lisa Feldman Barrett, Maria Gendron, and Yang-Ming Huang, “Do Discrete Emotions Exist?,” Philosophical Psychology 22, no. 4 (2009): 427–37. 13 Lindquist et al., “The Brain Basis of Emotion.”

30  Research handbook on law and emotion machine learning).14 Yet, from one study to the next, the patterns that have been discovered are not the same. This variation suggests that these approaches harness similarities in how the brain responds to particular sets of inputs, but do not reveal systems that produce all occurrences of a given emotion like fear. The current state of affairs in affective neuroscience undermines the classical proposal that there are distinct causal essences in the brain for each emotion. Strikingly, many of the identified regions involved across emotions are traditionally assigned purely “cognitive” functions, like semantic (meaning) processing.15 This finding also calls into question the more fundamental assumption that cognition and emotion are separable in the brain. In some part, the failure to find distinguishable signatures or circuits in the brain for distinct emotions may be due to the limitations inherent in human neuroimaging methods, including the early stages of research using more advanced machine learning methods. Few findings in the human functional neuroimaging literature are replicable across studies.16 Some researchers see promise in pressing forward with efforts to find distinct causal essences for emotions in the brain. In this chapter, we will consider the implications of an alternative path forward, which builds on recent discoveries of brain systems (intrinsic networks in the brain) that transcend traditional fault lines like emotion and cognition. First, however, we will turn our attention to tests of the classical assumption that emotions have necessary and sufficient features. Bodily and behavioral change in emotion: Is there evidence for necessary and specific features? While the search for causal essences in the brain has yet to yield positive support for the classical account, some researchers view the evidence on the bodily and behavioral consistency in emotion as supportive of the classical account. In part, this optimism may be due to a confusion of evidence for high consensus in lay conceptions about how emotions work (people often agree about what emotions look like, feel like, etc.) with the actual objective measurement of these systems. The findings from objective measurement of the bodily changes that occur in emotion share clear parallels with the brain findings. When bodily changes (based on measures of the sympathetic and parasympathetic branches of the autonomic nervous system) in emotion were formally summarized (with meta-analysis), there were no patterns of change that were specific to a given emotion like anger.17 In a given study, researchers may see differences from one emotion to the next based on the patterning of changes in the body. For example, in anger an individual’s heart may beat faster and blood pressure may elevate, their heart may increase its output (cardiac output) and their palms may sweat (skin conductance response). In contrast, in disgust, an individual’s heart rate, blood pressure and cardiac output may remain within a neutral range, but they may have an increase in skin conductance. Yet these same patterns will not hold up in a different experiment when these same emotions are See, e.g., Philip A. Kragel and Kevin S. LaBar, “Decoding the Nature of Emotion in the Brain,” Trends in Cognitive Sciences 20, no. 6 (June 2016): 444–55. 15 Kristen A. Lindquist, Ajay B. Satpute, and Maria Gendron, “Does Language Do More Than Communicate Emotion?” Current Directions in Psychological Science 24, no. 2 (2015): 99–108. 16 Maxwell Elliott et al., “Poor Test-Retest Reliability of Task-fMRI: New Empirical Evidence and A Meta-Analysis,” bioRxiv, (2019): 1-31. 17 Erika H. Siegel et al., “Emotion Fingerprints or Emotion Populations? A Meta-Analytic Investigation of Autonomic Features of Emotion Categories,” Psychological Bulletin 144, no. 4 (2018): 343–93. 14

The evolving neuroscience of emotion  31 examined. That is, there is enormous variation in what your body does during instances of the same emotion. This finding indicates that an emotion cannot be “diagnosed” from the changes that occur in the body. Another claim from a classical approach is that emotions may compel us to act in specific ways (e.g., aggressing in anger) or to judge the world in a specific way (e.g., viewing others as blameworthy in anger). Again, there is scant evidence that this is consistently the case.18 Studies that have tested the impact of induced emotion on behavioral or judgment outcomes only yield a significant effect in 22 percent of tests. This does not even account for the fact that the effects that are significant may not be highly specific for that emotion. Indeed, in summarizing their findings, the researchers noted, “Far more behavioral responses exist than do emotions, which should behoove researchers to understand how specific situation–emotion pairings produce certain behavioral responses.”19 Finally, even the most widely held assumption about emotions, that they are universally expressed and perceived from specific facial expressions (e.g., people universally gasp and widen their eyes when afraid) is not strongly supported.20 For example, individuals from small-scale societies, for whom visual access to western cultural media is limited, do not perceive western facial portrayals of emotion in line with the expected emotions.21 Instead, there are a variety of meanings that these faces take on. In Melanesia, the wide-eyed and gasping fear face is judged as angry—not fearful as in the cultural west.22 Further, in studies that measure movements of the face during emotional episodes, it is rare that the expected expressions occur.23 The evidence shows that, for example, sometimes people do scowl when they are angry. But more frequently people do not scowl when angry. (And there are many occasions on which people make a scowl and they do not feel angry at all.) Taken together these findings undermine the claim that emotions are clearly evidenced in our facial expressions and the corresponding idea that we can accurately “read” what other people feel based on their non-verbal behavior alone. The Constructionist Approach Constructionist approaches to emotion propose that emotions emerge from general mechanisms, rather than specialized systems for emotions. Emotions are proposed to be built from (constructed from) more basic mechanisms that support a range of mental activity, only some of which we would refer to as “emotion”. For example, in the Theory of Constructed 18 C. Nathan Dewall et al., “How Often Does Currently Felt Emotion Predict Social Behavior and Judgment? A Meta-Analytic Test of Two Theories,” Emotion Review 8, no. 2 (April 2016): 136–43. 19 Dewall et al., “How Often Does Currently Felt Emotion Predict Social Behavior and Judgment?” 20 Lisa Feldman Barrett et al., “Emotional Expressions Reconsidered: Challenges to Inferring Emotion in Human Facial Movements,” Psychological Science in the Public Interest 20, no. 1 (2019): 1–68. 21 Maria Gendron, Carlos Crivelli, and Lisa Feldman Barrett, “Universality Reconsidered: Diversity in Meaning Making About Facial Expressions,” Current Directions in Psychological Science 27, no. 4 (2018): 211–19. 22 Carlos Crivelli et al., “The Fear Gasping Face as a Threat Display in a Melanesian Society,” Proceedings of the National Academy of Sciences 113, no. 44 (November 2016): 12403–7. 23 Juan I. Durán, Rainer Reisenzein, and José-Miguel Fernndez-Dols, “Coherence Between Emotions and Facial Expressions,” in The Science of Facial Expression, ed. José-Miguel Fernandez-Dols and James A. Russell (New York: Oxford University Press, 2017), 107–29.

32  Research handbook on law and emotion Emotion,24 it is proposed that people use conceptual knowledge about emotions to make sense of incoming sensory input from the body (what are termed interoceptive inputs25). When individuals are not drawing on emotion knowledge, input from the body is typically experienced as only broad feelings of pleasure/displeasure with some degree of activation.26 These affective feelings become “emotions” when individuals use their conceptual knowledge to make sense of their current state. They do this by processing the features of the current emotional event (e.g., loss, novelty or threat) to determine what situations in the past are similar to the present one. This in turn can provide the individual with a directive for action: What did the individual do in a prior situation like this one? The constructionist account puts forward three additional critical proposals. First, emotion concepts are proposed to develop based on an individual’s personal history and cultural context.27 Emotion concept learning starts in infancy, as caregivers use emotion words to label emotional events and episodes.28 Emotion concepts develop further in childhood as caregivers describe, explain, and model how to experience and express emotional feelings. As a result, the “endpoint” of this learning is not predicted to be uniform, even within a cultural group. Some individuals may end up with robust and flexible emotion concept knowledge that they can use with high precision, whereas other individuals may end up with impoverished and inflexible emotion concepts that they use with low precision. This individual difference, termed emotional granularity, is predicted to impact how emotions actually unfold, an idea we will return to in our discussion of lay concepts for emotions. A second critical proposal is that drawing on concepts to make sense of experience does not need to be a deliberate, slow process to which people have direct conscious access. Individuals draw on stored knowledge continually to anticipate what they are going to encounter in their environments and to prepare for action. This general idea is captured by the “predictive brain” framework on which constructionist approaches to emotion draw. This framework proposes that it is metabolically inefficient to constantly be reacting to unexpected things in our environment. Instead, a more efficient system would anticipate the body’s upcoming needs and prepare for them in advance. As a result, much of the time we draw on our concepts, including those for emotions, in a fluid and unconscious manner to make sense of our experiences by predicting what is going to happen next and what we should do about it. Of course, in some cases, emotions can be deliberately “cultivated.” Many of us will recognize the utility of working ourselves up into an angry state in order to more effectively engage in confrontation. But this experience of agency over our experiences—the sense that you are in control and

Lisa Feldman Barrett, “The Theory of Constructed Emotion: An Active Inference Account of Interoception and Categorization,” Social Cognitive and Affective Neuroscience 12, no. 1 (2017): 1–23. 25 Hugo D. Critchley et al., “Neural Systems Supporting Interoceptive Awareness,” Nature Neuroscience 7 (2004): 189–95. 26 James A. Russell and Lisa Feldman Barrett, “Core Affect, Prototypical Emotional Episodes, and Other Things Called Emotion: Dissecting the Elephant,” Journal of Personality and Social Psychology 76, no. 5 (1999): 805–19. 27 Barrett, How Emotions Are Made; Maria Gendron, Batja Mesquita, and Lisa Feldman Barrett, “The Brain as a Cultural Artifact: Concepts, Actions and Experiences Within the Human Affective Niche,” in Culture, Mind, and Brain, ed. Lawrence Kirmayer, Shinobu Kitayama, Robert Lemelson, and Carol Worthman (Cambridge: Cambridge University Press, forthcoming). 28 Shir Atzil and Maria Gendron, “Bio-Behavioral Synchrony Promotes the Development of Conceptualized Emotions,” Current Opinion in Psychology 17 (Supplement C 2017): 162–9. 24

The evolving neuroscience of emotion  33 deliberatively choosing your actions—is often illusory29 and does not necessarily reflect the extent to which you are engaging control circuitry in the brain. These ideas challenge longstanding assumptions about the boundary between intentional and unintentional behavior. Finally, emotion perception, like emotion experience, is proposed to be a constructed process. Individuals draw on their own accrued knowledge about emotion (sometime learned via direct experience and sometimes indirectly learned) to infer the states of others. Just as a perceiver draws on accrued knowledge to experience emotions, they also do so to perceive them in other people. As a consequence, individuals are likely never fully “accurate” at emotion perception; this would imply that there is a fixed state that they could gain access to and represent. Instead, a constructionist perspective proposes that people’s perceptions are better described as more or less synchronized with the dynamically changing states of others.30 Scientific evidence for the constructionist account The constructionist view of emotions was developed in response to the wide variation observed across instances of emotion (as summarized in the prior section on classical accounts). The existing body of evidence is broadly unsupportive of the proposals that emotions have sets of necessary and sufficient features and distinct causal essences in the brain. This leaves an opening for alternative accounts of the nature of emotion. Constructionist models are technically not new. They have been around in some form for just as long as classical accounts in psychology.31 Yet these approaches are gaining momentum and direct experimental tests of this model are starting to be conducted. Some of this momentum arose in light of dramatic shifts in the cognitive and affective neurosciences, which can be viewed as paving the way for constructionist accounts by providing a parsimonious account of mind-brain correspondence.32 Recent research on the brain basis of emotional experience suggests that the basic mechanisms that are proposed to produce emotion, emotion concept knowledge, and sensory inputs from the body (interoceptive inputs that can be experienced as affective feelings), arise from activity in large-scale brain networks.33 Large-scale networks are comprised of regions that are highly distributed across the brain (they are not necessarily close in space) but tend to co-activate (when activity in one region of a network goes up, activity in the other networks also increases).34 Importantly, these large-scale networks are thought to perform basic functions that work together to produce mental phenomena like emotions.

Daniel M. Wegner and Thalia Wheatley, “Apparent Mental Causation: Sources of the Experience of Will,” American Psychologist 54, no.7 (1999): 480–92. 30 Gendron, Maria and Lisa Feldman Barrett, “Emotion Perception as Conceptual Synchrony,” Emotion Review 10, no. 2 (2018): 101–10. 31 Gendron and Barrett, “Reconstructing the Past.” 32 Barrett, “The Theory of Constructed Emotion.” 33 Lisa Feldman Barrett and Ajay B. Satpute, “Large-Scale Brain Networks in Affective and Social Neuroscience: Towards an Integrative Functional Architecture of the Brain,” Current Opinion in Neurobiology 23, no. 3 (June 2013): 361–72; Kristen A. Lindquist and Lisa Feldman Barrett, “A Functional Architecture of the Human Brain: Emerging Insights from the Science of Emotion,” Trends in Cognitive Sciences 16, no.11 (2012): 533–40. 34 B.T. Thomas Yeo et al., “The Organization of the Human Cerebral Cortex Estimated by Intrinsic Functional Connectivity,” Journal of Neurophysiology 106, no. 3 (2011): 1125–65. 29

34  Research handbook on law and emotion Two networks in particular are critical for emotions. First, the default mode network (DMN)35 and the salience network (SN),36 are robustly active across emotional episodes. These two networks comprise much of the shared circuitry that was discovered in formal summaries (meta-analysis) of the existing neuroimaging literature on emotion37 and these networks have been observed across multiple varieties of emotional experience.38 The DMN supports the use of stored knowledge (concepts),39 including across emotional states,40 but not exclusively.41 This network can be described as constructing mental models from different points of view and different temporal vantage points. You engage the DMN when you think about your past or your future or when you are immersed in and making meaning of the present moment. You engage the default mode network when you think about other minds too. Because this network is so pervasive, it was initially termed the default mode network. One way to view the relentless and incredibly costly operation of this brain system is that it does something fundamental for us. A unifying account of the DMN’s function is to use past experience to explain the sensory input of the present moment and to predict upcoming sensory input (the future). The SN, in contrast, supports the processing of sensory inputs from the body (interoceptions), including during emotional states,42 but not exclusively. The processing of inputs from the body can serve as a signal of salience that helps the individual to determine what it should attend to and what it can safely ignore. That is, this set of brain regions helps us to track what we should care about based on the impact that it has for our body. This is a quick and efficient orienting system that helps to allocate resources. One of these resources is the costly DMN 35 Randy L. Buckner, “The Serendipitous Discovery of the Brain's Default Network,” NeuroImage 62 (2012): 1137–45. 36 William W. Seeley et al., “Dissociable Intrinsic Connectivity Networks for Salience Processing and Executive Control,” The Journal of Neuroscience: The Official Journal of the Society for Neuroscience 27, no. 9 (February 2007): 2349–56. 37 Lindquist et al., “The Brain Basis of Emotion.” 38 Christine D. Wilson-Mendenhall, Lisa Feldman Barrett, and Lawrence W. Barsalou, “Neural Evidence That Human Emotions Share Core Affective Properties,” Psychological Science 24, no. 6 (2013): 947–56; Christine D. Wilson-Mendenhall, Lisa Feldman Barrett, and Lawrence W. Barsalou, “Variety in Emotional Life: Within-Category Typicality of Emotional Experiences is Associated with Neural Activity in Large-Scale Brain Networks,” Social Cognitive and Affective Neuroscience 10, no. 1 (2015): 62–71. 39 Jeffrey R. Binder et al., “Conceptual Processing During the Conscious Resting State: A Functional MRI Study,” Journal of Cognitive Neuroscience 11, no.1 (1999): 80–93. 40 Suzanne Oosterwijk et al., “The Neural Representation of Typical and Atypical Experiences of Negative Images: Comparing Fear, Disgust and Morbid Fascination,” Social Cognitive and Affective Neuroscience 11, no. 1 (July 2015): 11–22; Wilson-Mendenhall, Barrett, and Barsalou, “Neural Evidence That Human Emotions Share Core Affective Properties.” 41 Suzanne Oosterwijk et al., “States of Mind: Emotions, Body Feelings, and Thoughts Share Distributed Neural Networks,” NeuroImage 62, No. 3 (2012): 2110–28. 42 Lisa Feldman Barrett and Willam K. Simmons, “Interoceptive Predictions in the Brain,” Nature Reviews Neuroscience 16, no. 7 (May 2015): 1–11; Lisa Feldman Barrett, Karen S. Quigley, and Paul Hamilton, “An Active Inference Theory of Allostasis and Interoception in Depression,” Philosophical Transactions of the Royal Society of London Series B 371 (2016); Ian R. Kleckner et al., “Evidence for a Large-Scale Brain System Supporting Allostasis and Interoception In Humans,” Nature Human Behaviour 1, no. 5 (2017); Christine D. Wilson-Mendenhall et al., “Primary Interoceptive Cortex Activity During Simulated Experiences of the Body,” Journal of Cognitive Neuroscience 31, no. 2 (2019): 221–35.

The evolving neuroscience of emotion  35 system (metabolically speaking), which then helps the individual form a useful mental model in that situation to guide action selection and perception. All of this can be considered in the service of the brain’s core task: to keep the body regulated both in the moment, and in the long run (what is termed allostasis).43 Emotions are one example of a mental state that results from the interaction of the DMN and SN. Emotions often involve significant changes to the body (even though bodily changes do not map on neatly to specific categories of experience). But the engagement of the SN, and the changes in the body that it tracks, are by no means specific to emotion. Both of these networks are involved in emotional and non-emotional states alike, undermining the traditional cognition–emotion divide that has been assumed to be embedded in the architecture of the brain.44 From a constructionist viewpoint, then, what makes something an “emotion” is that an individual is drawing on culturally learned knowledge about emotion(s) to guide action, perception and thought. Several experimental studies provide evidence in support of this premise. For example, experimenters asked research participants to think about a specific type of emotion (fear, anger) or no emotion at all. Some of these participants had been induced to feel negative and highly activated (by listening to unpleasant and rousing music), whereas others listened to music that induced a neutral state. Critically, it was only those individuals who both felt negative/high arousal affect (as opposed to neutral) and had knowledge about fear activated (compared to anger or no emotion concept) that were more risk averse on a subsequent task.45 This is striking because risk aversion is a behavioral profile that was previously shown to selectively increase in the context of fear (but not anger). Manipulating the two systems, for affect and concepts, can produce the same effects as directly inducing the emotion. Similar findings have been documented for emotion perception.46 Having increased access to a specific emotion concept makes it more likely that you will perceive another person in line with that emotion. Whereas disrupted access to that knowledge (produced experimentally or as the result of organic brain changes) makes it less likely that individuals will perceive that emotion. These findings reveal that concept knowledge is contributing to how perceptions of other people’s states are constructed.

CONTRASTING COMMON SENSE WITH EMOTION SCIENCE One productive way to think about the implications of this evolving landscape of emotion science on the law is to take stock of how the average person thinks about the nature of emotion. Understanding gaps between the folk psychological model for emotion and the scientific literature is fruitful because much of the law is based on common-sense notions about the mind and brain. Further, most of the individuals who are acting within the legal system 43 Barrett, How Emotions Are Made; Barrett, “The Theory of Constructed Emotion”; Kleckner et al., “Evidence for a Large-Scale Brain System Supporting Allostasis and Interoception.” 44 For a recent discussion, see Katie Hoemann and Lisa Feldman Barrett, “Concepts Dissolve Artificial Boundaries in the Study of Emotion and Cognition, Uniting Body, Brain, and Mind,” Cognition and Emotion 33, no.1 (2019): 67–76. 45 Kristen A. Lindquist and Lisa Feldman Barrett, “Constructing Emotion: The Experience of Fear as a Conceptual Act,” Psychological Science 19, no.9 (2008): 898–903. 46 For review, see Lindquist et al., “Does Language Do More Than Communicate Emotion?”

36  Research handbook on law and emotion (jurors, lawyers, judges, legislators and so on) may be relying on these lay conceptions, particularly because of the authority that a legal doctrine confers (consistent with the concept of biolooping).

LAY THEORIES OF EMOTION Lay theories are common understandings about how the world works—and can include how people understand the functioning of the human mind/brain. These theories can be organized as sets of causal relations,47 such as “anger causes aggression”. Predominant lay theories of emotion in the cultural west are largely consistent with the classical model of emotions. While some of the research that is reviewed below was not initially framed as revealing lay theories of emotion, the evidence is nonetheless relevant. First, lay individuals appear to have highly specific representations of the bodily changes associated with emotions. When people are asked to create “body maps” and locate where they would feel different emotions on a schematic figure, consensus patterns for emotions can be recovered.48 For example, people in a western cultural context tend to agree that the emotion of fear is localized primarily in the upper torso, centered on the chest. Similarly, people have internal, mental representations of what emotions look like on the human face. These representations can be recovered using data-driven perception experiments49 as well as by asking individuals to portray how they would move their face in emotions/emotional circumstances.50 Both of these methods yield strong consensus within a society as well as some variation across societies. Of course, the high agreement in emotion perception studies in the psychology literature mirrors these findings.51 These findings suggest that, regardless of whether people’s bodies or faces actually change in these prescribed ways (so far, the objective evidence is scant), people believe that they do. Second, people also hold broad beliefs about the nature of emotions. For example, when individuals in the cultural west are asked about the nature of emotion, they support the idea that emotions have distinct causal mechanisms, consistent with the classical account assumption.52 They also somewhat support the idea that instances of a given emotion are similar to one another, but acknowledge that there is variation from one instance of an emotion to the next. People tend to diverge, however, in their beliefs about how fixed and uncontrollable versus

Gregory L. Murphy and Douglas L. Medin, “The Role of Theories in Conceptual Coherence,” Psychological Review 92, no. 3 (1985): 289–316. 48 Lauri Nummenmaa et al., “Bodily Maps of Emotions,” Proceedings of the National Academy of Sciences 111, no. 2 (2013): 646–51. 49 In the social psychophysics tradition, see Rachael E. Jack and Philippe G. Schyns, “Toward a Social Psychophysics of Face Communication,” Annual Review of Psychology 68 (2017): 269–97. 50 Daniel T. Cordaro et al., “Universals and Cultural Variations in 22 Emotional Expressions Across Five Cultures,” Emotion 18, no.1 (2018): 75–93. 51 Barrett et al., “Emotional Expressions Reconsidered.” 52 Kristen A. Lindquist et al., “Do People Essentialize Emotions? Individual Differences in Emotion Essentialism and Emotional Experience,” Emotion 13, no. 4 (2013): 629–44. 47

The evolving neuroscience of emotion  37 malleable emotions are.53 These two ways of thinking about emotions can be referred to as entity versus incremental theories, respectively.

BELIEVING MAKES IT SO: THE CONSEQUENCES OF LAY THEORIES Lay theories are not inert knowledge structures that individuals hold. From a constructionist perspective, as aspects of an individual’s concept knowledge about emotion, lay theories should impact how emotions are perceived and how they are experienced. Further, the idea that lay theories impact the inferences that individuals make is consistent with the broader literature on this topic.54 While this literature, like that testing constructionist models of emotion, is relatively young, there are already a number of compelling findings. In contrast to the modest effect that felt emotion has on an individual’s behavior and judgments, expecting to feel a given emotion has a large effect on these outcomes.55 This suggests that it is beliefs about the consequences of emotions that more consistently impact how individuals respond, rather than something intrinsic to the emotion state. Variations across people in lay theories of emotion also appear to impact how they unfold. For example, individuals who believe that emotions are fixed (entity theorists) are less likely to report effectively updating their emotions by modifying how they conceptualize the event (what is typically referred to as cognitive reappraisal in the emotion regulation framework).56 This means that individuals who believe emotions are fixed end up experiencing them that way. Similarly, lay theory appears to explain the ways that individuals integrate information to make judgments about others’ emotions.57 That is, perceivers weigh information about the relationship between a situation and the behavior of the person in a highly predictable manner that can be modeled. More direct evidence for the power of lay theory in emotion comes from experimental work. For example, manipulating the expectancies that individuals have about their emotions appears to shape how those emotions impact performance.58 When individuals are led to believe that anger will be beneficial, they end up making more money in the context of a negotiation and being more effective killers in the context of a videogame. Together, these findings imply that belief about emotion exerts a powerful influence on how emotions actually impact our experiences and judgments.

Maya Tamir et al., “Implicit Theories of Emotion: Affective and Social Outcomes Across a Major Life Transition,” Journal of Personality and Social Psychology 92, no. 4 (2007): 731–44. 54 Rebecca Saxe and Sean D. Houlihan, “Formalizing Emotion Concepts Within a Bayesian Model of Theory of Mind,” Current Opinion in Psychology 17 (2017): 15–21. 55 Dewall et al., “How Often Does Currently Felt Emotion Predict Social Behavior and Judgment?” 56 Tamir et al., “Implicit Theories of Emotion.” 57 Desmond C. Ong, Jamil Zaki, and Noah D. Goodman, “Computational Models of Emotion Inference in Theory of Mind: A Review and Roadmap,” Topics in Cognitive Science 11, no.2 (2019): 338–57. 58 Maya Tamir and Yochanan E. Bigman, “Expectations Influence How Emotions Shape Behavior,” Emotion 18, no. 1 (2018): 15–25. 53

38  Research handbook on law and emotion

EMOTION SCIENCE, LAY THEORIES AND THE LAW It is beyond the scope of this chapter to provide an exhaustive account of lay assumptions about emotion that are embedded in the law and where those depart from the current scientific evidence. Further, many key criminal law assumptions that reflect a classical account have already been identified and carefully dissected.59 Instead, we will consider here only a few key implications. A first example is the ideal of judicial dispassion.60 This ideal assumes that the nature of emotion is disruptive and irrational. Yet the evidence on the brain systems involved in emotion undermines this fundamental assumption that cognition and emotion are separable. Instead, the same circuitry that is involved in feeling emotions is also core to a range of abilities that are critical to judicial responsibility. For example, without engaging the salience network, a judge would struggle to determine the relevance of information as it is being presented. And without engaging the default mode network, the judge would be unable to construct mental simulations, though doing so is core to the ability to understand how events unfold. Beyond these less obviously emotional operations of these networks, there is also a growing body of evidence suggesting that affect and emotions are core to how individuals engage in wise reasoning61 and decision making.62 These findings suggest that the ideal of judicial dispassion may actually handicap a judge, not help them. A second example is the role that perceptions of remorse play in the criminal justice system, including in sentencing, the granting of parole and so on.63 When an individual is perceived to be remorseful, they are more likely to be granted leniency. But there are no objective markers that can be used to determine whether an individual is “truly” experiencing remorse. Instead, perceivers rely on multiple, complex cues using their own accrued experience and cultural knowledge to make this determination. While this may often be a reasonable approach in the low-stakes contexts of everyday life, it is potentially catastrophic in the legal context. For example, if an individual’s cultural model for how an emotion should be expressed does not fit with the expectations of others, an expression may be misperceived. Similarly, there is nothing barring an otherwise unrepentant individual from effectively feigning a remorseful response. These concerns highlight how relying on judgments of remorse in the legal context is always an imprecise and inferential process, and perhaps not one on which legal outcomes should be based. A third and final example of this critical juncture between law, lay theory and emotion science is the heat-of-passion defense.64 This defense is steeped in the classical view assumption that an emotion triggers a specific response (e.g., anger triggers aggression). Yet, as we Kahan and Nussbaum, “Two Conceptions of Emotion in Criminal Law.” Maroney, “Judicial Dispassion.” 61 Igor Grossmann, Harison Oakes, and Henri C. Santos, “Wise Reasoning Benefits From Emodiversity, Irrespective of Emotional Intensity,” Journal of Experimental Psychology: General 148, no. 5 (May 2019): 805–23. 62 Antonio R. Damasio, Descartes' Error: Emotion, Reason and the Human Brain (New York: Avon, 1994); Jennifer S. Lerner et al., “Emotion and Decision Making,” Annual Review of Psychology 66 (2015): 799–823. 63 Susan A. Bandes, “Remorse and Criminal Justice,” Emotion Review 8, no. 1 (2015): 14–19. 64 Barrett, How Emotions Are Made; Kahan and Nussbaum, “Two Conceptions of Emotion in Criminal Law.” 59 60

The evolving neuroscience of emotion  39 have discussed, this relationship is not scientifically justified. There is no specialized brain circuit for anger that causes a person to aggress. Aggression may be associated with some instances of anger, and is part of a cultural script for anger, but is by no means obligatory. The heat-of-passion defense is further steeped in lay entity theory. For the emotion of anger to be mitigating, it must also be something that the individual is unable to exert control over. Recall when people believe they cannot control their emotions (when they are lay entity theorists), they do not engage in efforts to conceptualize their emotions differently and modify their current trajectory. As a result, emotions may actually unfold in a manner that actually feels less controllable. Interestingly, the cultural authority of the heat-of-passion defense may serve to maintain and even promote entity theory beliefs about emotions and their consequences for emotions.65 These effects may be particularly robust when individuals are in a legal context, where these ideas may become more salient.

LOOKING AHEAD While the present chapter presents a beginning sketch, much more effort must be dedicated to identifying the myriad implications of the evolving science of emotion for the law. It is likely that there are other, as yet uncharted, aspects of legal doctrine that reflect outdated scientific conceptions of emotion. Not only should these misconceptions be identified, but a deeper integration might also begin to provide alternative proposals for how emotions should be more effectively accounted for in legal doctrine. Importantly, the concrete challenges that the legal discipline is grappling with may also point to important questions about which more basic science research is needed. If met, these mutual challenges will also provide interesting new opportunities for the integration of basic science in psychology and neuroscience into the law.

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65 Consistent with the concept of biolooping, in which ideas about how biological systems work can change how those physiological processes unfold, see Ian Hacking, The Social Construction of What? (Cambridge: Harvard University Press, 1999); Rebecca Seligman, “Mind, Body, Brain, and the Conditions of Meaning,” Ethos 46, no. 3 (2018): 397–417.

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The evolving neuroscience of emotion  41 Hacking, Ian. The Social Construction of What? Cambridge: Harvard University Press, 1999. Hoemann, Katie and Lisa Feldman Barrett. “Concepts Dissolve Artificial Boundaries in the Study of Emotion and Cognition, Uniting Body, Brain, and Mind.” Cognition and Emotion 33, no.1 (2019): 67–76. doi: 10.1080/02699931.2018.1535428. Jack, Rachael E. and Philippe G. Schyns. “Toward a Social Psychophysics of Face Communication.” Annual Review of Psychology 68 (2017): 269–97. https://​doi​.org/​10​.1146/​annurev​-psych​-010416​ -044242. Kahan, Dan M. and Martha C. Nussbaum. “Two Conceptions of Emotion in Criminal Law.” Columbia Law Review 96, no. 2 (1996): 269–374. Kleckner, Ian R., Jiahe Zhang, Alexandra Touroutoglou, Lorena Chanes, Chenjie Xia, W. Kyle Simmons, Karen S. Quigley, et al. “Evidence for a Large-Scale Brain System Supporting Allostasis and Interoception in Humans.” Nature Human Behaviour 1, no. 5 (2017). doi:​10​.1038/​s41562​-017​ -0069. Kragel, Philip A. and Kevin S. LaBar. “Decoding the Nature of Emotion in the Brain.” Trends in Cognitive Sciences 20, no. 6 (June 2016): 444–55. doi:​10​.1016/​j​.tics​.2016​.03​.011. LeDoux, Joseph E. “Semantics, Surplus Meaning, and the Science of Fear.” Trends in Cognitive Sciences 21, no. 5 (2017): 303–6. doi:​10​.1016/​j​.tics​.2017​.02​.004. Lerner, Jennifer S., Ye Li, Piercarlo Valdesolo, and Karim Kassam. “Emotion and Decision Making.” Annual Review of Psychology 66 (2015): 799–823. https://​doi​.org/​10​.1146/​annurev​-psych​-010213​ -115043. Lieberman, Matthew D. “Boo! The Consciousness Problem in Emotion.” Cognition and Emotion 33, no. 1 (2019): 1–7. doi:​10​.1080/​02699931​.2018​.1515726. Lindquist, Kristen A. and Lisa Feldman Barrett. “Constructing Emotion: The Experience of Fear as a Conceptual Act.” Psychological Science 19, no. 9 (2008): 898–903. doi: 10.1111/j.1467-9280.2 008.02174.x. Lindquist, Kristen A. and Lisa Feldman Barrett. “A Functional Architecture of the Human Brain: Emerging Insights from the Science of Emotion.” Trends in Cognitive Sciences 16, no. 11 (2012): 533–40. doi:​10​.1016/​j​.tics​.2012​.09​.005. Lindquist, Kristen A., Maria Gendron, Suzanne Oosterwijk, and Lisa Feldman Barrett. “Do People Essentialize Emotions? Individual Differences in Emotion Essentialism and Emotional Experience.” Emotion 13, no. 4 (2013): 629–44. doi: 10.1037/a0032283. Lindquist, Kristen A., Ajay B. Satpute, and Maria Gendron. “Does Language Do More Than Communicate Emotion?” Current Directions in Psychological Science 24, no. 2 (2015): 99–108. DOI: 10.1177/0963721414553440. Lindquist, Kristen A., Erika H. Siegel, Karen S. Quigley, and Lisa Feldman Barrett. “The Hundred-Year Emotion War: Are Emotions Natural Kinds or Psychological Constructions? Comment on Lench, Flores, and Bench.” Psychological Bulletin 139, no. 1 (2013): 255–63. doi: 10.1037/a0029038. Lindquist, Kristen A., Tor D. Wager, Hedy Kober, Eliz Bliss-Moreau, and Lisa Feldman Barrett. “The Brain Basis of Emotion: A Meta-Analytic Review.” The Behavioral and Brain Sciences 35 (2012): 121–43. doi:​10​.1017/​S0140525X11000446. Maroney, Terry A. “The Persistent Cultural Script of Judicial Dispassion.” California Law Review 99, no. 2 (2011): 629–81. doi:​10​.15779/​Z38K98M. Moors, Agnes. “Integration of Two Skeptical Emotion Theories: Dimensional Appraisal Theory and Russell's Psychological Construction Theory.” Psychological Inquiry 28, no.1 (2017): 1–19. http://​dx​ .doi​.org/​10​.1080/​1047840X​.2017​.1235900. Murphy, Gregory L. and Douglas L. Medin. “The Role of Theories in Conceptual Coherence.” Psychological Review 92, no. 3 (1985): 289–316. http://​dx​.doi​.org/​10​.1037/​0033​-295X​.92​.3​.289. Nummenmaa, Lauri, Enrico Glerean, Riitta Hari, and Jari Hietanen. “Bodily Maps of Emotions.” Proceedings of the National Academy of Sciences 111, no. 2 (2013): 646–51. DOI:​10​.1073/​pnas​ .1321664111. Ong, Desmond C., Jamil Zaki, and Noah D. Goodman. “Computational Models of Emotion Inference in Theory of Mind: A Review and Roadmap.” Topics in Cognitive Science 11, no.2 (2019): 338–57. doi: 10.1111/tops.12371. Oosterwijk, Suzanne, Kristen A. Lindquist, Morenikeji Adebayo, and Lisa Feldman Barrett. “The Neural Representation of Typical and Atypical Experiences of Negative Images: Comparing Fear, Disgust

42  Research handbook on law and emotion and Morbid Fascination.” Social Cognitive and Affective Neuroscience 11, no. 1 (July 2015): 11–22. doi: 10.1093/scan/nsv088. Oosterwijk, Suzanne, Kristen A. Lindquist, Eric C. Anderson, Rebecca J. Dautoff, Yoshiya Moriguchi, and Lisa Feldman Barrett. “States of Mind: Emotions, Body Feelings, and Thoughts Share Distributed Neural Networks.” NeuroImage 62, No. 3 (2012): 2110–28. doi: 10.1016/j.neuroimage.2012.05.079. Russell, James A. and Lisa Feldman Barrett. “Core Affect, Prototypical Emotional Episodes, and Other Things Called Emotion: Dissecting the Elephant.” Journal of Personality and Social Psychology 76, No. 5 (1999): 805–19. DOI: 10.1037//0022-3514.76.5.805. Saxe, Rebecca and Sean D. Houlihan. “Formalizing Emotion Concepts Within a Bayesian Model of Theory of Mind.” Current Opinion in Psychology 17 (2017): 15–21. doi: 10.1016/j.copsyc.2017.04.019. Scherer, Klaus R. “Emotions are Emergent Processes: They Require a Dynamic Computational Architecture.” Philosophical transactions of the Royal Society of London. Series B, Biological sciences 364 (December 2009): 3459–74. doi:​10​.1098/​rstb​.2009​.0141. Seeley, William W., Vinod Menon, Alan F. Schatzberg, Jennifer Keller, Gary H. Glover, Heather Kenna, Allan L. Reiss. et al. “Dissociable Intrinsic Connectivity Networks for Salience Processing and Executive Control.” The Journal of Meuroscience 27, no. 9 (February 2007): 2349–56. doi:​10​.1523/​ JNEUROSCI​.5587​-06​.2007. Seligman, Rebecca. “Mind, Body, Brain, and the Conditions of Meaning.” Ethos 46, no. 3 (2018): 397–417. https://​doi​.org/​10​.1111/​etho​.12207. Siegel, Erika H., Molly K. Sands, Wim Van den Noortgate, Paul Condon, Yale Chang, Jennifer Dy, Karen S. Quigley, et al. “Emotion Fingerprints or Emotion Populations? A Meta-Analytic Investigation of Autonomic Features of Emotion Categories.” Psychological Bulletin 144, no. 4 (2018): 343–93. doi: 10.1037/bul0000128. Tamir, Maya and Yochanan E. Bigman. “Expectations Influence How Emotions Shape Behavior.” Emotion 18, no. 1 (2018): 15–25. doi: 10.1037/emo0000351. Tamir, Maya, Oliver P. John, Sanjay Srivastava, and James J. Gross. “Implicit Theories of Emotion: Affective and Social Outcomes Across a Major Life Transition.” Journal of Personality and Social Psychology 92, no. 4 (2007): 731–44. doi:​10​.1037/​0022​-3514​.92​.4​.731. Tracy, Jessica L. and Daniel Randles. “Four Models of Basic Emotions: A Review of Ekman and Cordaro, Izard, Levenson, and Panksepp and Watt.” Emotion Review 3, no. 4 (2011): 397–405. https://​ doi​.org/​10​.1177/​1754073911410747. Wegner, Daniel M. and Thalia Wheatley. “Apparent Mental Causation: Sources of the Experience of Will.” American Psychologist 54, no.7 (1999): 480–92. DOI: 10.1037//0003-066x.54.7.480. Wilson-Mendenhall, Christine D., Lisa Feldman Barrett, and Lawrence W. Barsalou. “Neural Evidence that Human Emotions Share Core Affective Properties.” Psychological Science 24, no. 6 (2013): 947–56. doi: 10.1177/0956797612464242. Wilson-Mendenhall, Christine D., Lisa Feldman Barrett, and Lawrence W. Barsalou. “Variety in Emotinal Life: Within-Category Typicality of Emotional Experiences is Associated With Neural Activity in Large-Scale Brain Networks.” Social Cognitive and Affective Neuroscience 10, no. 1 (2015): 62–71. doi:​10​.1093/​scan/​nsu037. Wilson-Mendenhall, Christine D., Alexa Henriques, Lawrence W. Barsalou, and Lisa Feldman Barrett “Primary Interoceptive Cortex Activity During Simulated Experiences of the Body.” Journal of Cognitive Neuroscience 31, no. 2 (2019): 221–35. doi: 10.1162/jocn_a_01346. Yeo, B. T. Thomas, Fenna M. Krienen, Jorge Sepulcre, Mert R. Sabuncu, Daniel Lashkari, Marisa O. Hollinshead, Joshua L. Roffman, et al. “The Organization of the Human Cerebral Cortex Estimated by Intrinsic Functional Connectivity.” Journal of Neurophysiology 106, no. 3 (2011): 1125–65. doi:​ 10​.1152/​jn​.00338​.2011.

Philosophy

3. Law’s sentiments Robin West

What is the relation of law, in liberal legal societies such as our own, to what Adam Smith called our “moral sentiments,” by which he meant, our capacity for empathic knowledge of the subjective lives of others, and our sympathetic inclination to take on their subjective suffering as our own?1 Does our law, and the legal culture it fosters, depend foundationally upon the existence of those moral sentiments, or does it rest, rather, on nothing but our self-regarding instincts, intuitions, and ambitions? And relatedly, does law nullify or dullen moral sentiments, or does it protect or nurture them? One view of the relation of law and sentiments – one answer or set of answers to those questions – and which I believe is now the dominant view, is that law in liberal legal regimes not only has no need for moral sentiments, but further, that our liberal legalism creates us, or recreates us, as basically unsentimental subjects: un-empathic regarding the inner lives of others and unsympathetic to their suffering. So, according to a central claim of one once-influential strand of the critical legal studies movement, made most pointedly or poignantly by Law Professor Peter Gabel in a near-iconic essay from the early 1980s,2 and recently in his new book, The Desire for Mutual Recognition,3 the law that grounds contemporary liberal legalism actively alienates us from our moral sentiments: its formalism blunts or kills communitarian feeling, its lean toward objectivity erases subjective and intersubjective life, its individualistic assumptions deny our connections to each other and push each of us to deny them likewise. This antithesis between law and moral sentiment, Gabel makes clear, is monstrous. Others, however, applaud the same antithesis. Thus, according to any number of legal economists, perhaps paradigmatically the young Richard Posner, private law in liberal legal regimes is both premised upon and generative of self-regarding utilitarian individual motivations that have no connection with and no need for Smith-ean moral sentiments.4 Posner applauded this disconnect or was unbothered by it, while Gabel despairs, but they shared basically the same descriptive claim: law in liberal legal systems neither requires nor is required by the moral sentiments. Moral sentiment doesn’t ground legalism – self-interest does – and those sentiments don’t themselves require the presence of law. Law has various purposes, ambitions, and effects but the nurturance of moral sentiments is not one of them.

Adam Smith, The Theory of Moral Sentiments (Indianapolis: Liberty Fund, 1984). Peter Gabel, “A Critique of Rights: The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves,” Texas Law Review 62, no. 8 (May 1984): 1563–601. 3 Peter Gabel, The Desire for Mutual Recognition: Social Movements and the Dissolution of the False Self (London: Routledge, 2018). 4 Richard A. Posner, “Utilitarianism, Economics, and Social Theory,” in The Economics of Justice, (Cambridge: Harvard University Press, 1981), 48–87. Posner’s conception is buttressed by Holmes’s classic depiction of the “bad man” who cares for nothing but himself as the subject of law’s authority, and central to its definition. Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 110, no. 5 (March 1997): 991–1009. 1 2

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Law’s sentiments  45 This highly unsentimental conception of the relation of law to sentiment in liberal legal regimes – what I will call in short the “unsentimental conception” – which was, again, held explicitly by fairly broad swaths of both the critical legal studies and the law and economics movements of the 1980s and 90s did not, however, begin, or end, with either of these late twentieth century academic movements. Rather, the unsentimental conception has dominated American liberal legal discourse at least from the time of the legal realists to the current day. It is particularly pervasive in private law. Contract law, for example, according to devotees of the unsentimental conception from Holmes to Richard Epstein and Randy Barnett, ensures the well-greased fluidity of our bargain economy’s mechanisms of productivity and consumption, by incentivizing rational creatures who would otherwise be stuck in the mire of prisoner’s dilemmas, to fulfill those processes.5 It doesn’t do so by encouraging us to keep our promises, whether out of a regard for moral principle or out of an empathic regard for the needs of our co-contractors to our performance, or out of a communitarian sense of joint purpose engendered as well as recorded by the contract itself. That would be ridiculously sentimental. Rather, contract law achieves its efficient ends by imposing upon us penalties for breach that are more burdensome than the costs of performing. Tort law likewise, on the unsentimental conception, promotes the ends of industry and individuals by minimizing accident costs, and it does so through the construction of a series of incentives that prompt corporate and individual behavior that conforms to standards themselves designed to increase the joint wealth and efficiency of our shared enterprises.6 It doesn’t do so by encouraging us more simply to take good care of each other, its moralistic language that seemingly suggests as much notwithstanding. Rather, it defines a legal “duty of care” in a way that is entirely distinct from any conceivable understanding of a moral duty of care: to “care” in tort law, is to engage in potentially accident-causing activities only so long as those activities are more profitable than their expected accident costs.7 To take a third and more encompassing example from private law, also with roots in legal realism: tort and contract law both rely and should rely on “objective” rather than “subjective” indicia of duty, care, intent, benefit, damage, injury, promise and so on to prompt contractual and non-contractual behavior that does its bidding, and have done so since Holmes chided us into this cleansing of law’s moral language, at the beginning of the last century. Consequently, and in line with Holmes’s admonitions, neither tort nor contract law touch, nor need they touch, nor should they touch, our subjective moral attitudes, or our felt responsibilities, or our sense of obligations to strangers, or our felt inclinations to treat those with whom we contract or those whom we may by chance encounter, fairly, or kindly, or charitably, in the slightest. Those bodies of law in other words, neither rest on nor expand nor impact nor engage our moral sentiments, or the moral imperatives that might sensibly be thought to follow from those sentiments. And, nor should they. There is surprisingly widespread consensus on all of this. Private law in liberal legal regimes, say its critics, operates toward the ends of capital, not equality or liberty, and if they’re right, then its complete and

Richard Epstein, “Unconscionability: A Critical Reappraisal,” Journal of Law & Economics 18, no. 2 (October 1975): 293–316; Randy E. Barnett, “Contract Is Not Promise; Contract is Consent,” in Philosophical Foundations of Contract Law, ed. Gregory Klass, George Letsas, and Prince Saprai (Oxford: Oxford University Press, 2014), 42–57. 6 Holmes, “The Path of the Law,” 999–1000; Richard A. Posner, “Tort Law,” in Economic Analysis of Law (8th ed.) (New York: Aspen Publishers, 2011), 213–72. 7 Holmes, “The Path of the Law,” 993. 5

46  Research handbook on law and emotion professed lack of concern for the moral attitudes with which we approach civil life is the least of its failings. Its enthusiasts largely concur that this avoidance of interplay with our interior sentiments is central to private law’s basic function: private law, in liberal legal regimes, motivates our consumption and production, and otherwise leaves our subjective lives of sentiment and sympathy untouched. Criminal law too, on the unsentimental conception, basically scares us into submission, creating subjects who for the most part obey state commands. It doesn’t concern itself with subjective understandings or subjective desires to live peaceably and cooperatively. Rather, it limits its reach – its sanctions and its rewards – to the objective lives of its subjects. Public law scholars as well, and across the political spectrum, disown the need or the existence of any generative connection between even the grand communitarian clauses of the Bill of Rights and our moral sentiments: while constitutional law famously protects the private sphere, within which moral sentiments might mature, constitutional law itself is neither premised upon the existence of those sentiments, nor generative of them. So while law, on the “unsentimental conception,” may from time to time enlarge our sympathetic engagement with each it does so only incidentally. It never does so intentionally, much less essentially, or by design. So, liberal legalism, on this highly regarded and one-century-and-counting-long academic understanding, either actively destroys, or ignores, or has no need for, or constitutionally insulates, private moral sentiments. Law’s subjects from the realists’ era to our own, we might say, are profoundly unsentimental creatures; they’re Holmes’ proverbial bad men. To whatever degree we are a product of the liberal legal system that subjects us to its rule, we are to that degree unsentimental. We may harbor various moral sentiments, but those sentiments are not engaged, protected or produced by law. The subjects of twentieth and twenty-first century law are just not sentimental creatures. The unsentimental conception also plays a dominant role in literature, both canonical and popular, that directly concerns legal themes, and in two ways. First, and as has long been noticed by any number of participants in the law and literature movement, the western literaryjurisprudential canon is replete with legal characters who are decidedly lacking in moral sentiments, and are so, furthermore, precisely because of their legal identities. Aeschelus’s Athena, recall, from The Oresteia, paradigmatically loved law, men, and masculinity, and abhorred sentiment, which she found feminine and unworthy, in equal measure. Sophocles’ Creon from Antigone and Shakespeare’s Shylock from Merchant of Venice shared both Athenean inclinations. Melville’s Captain Vere in Billy Budd Sailor explicitly professed both his allegiance to law and his distaste for moral sentiment, which he too found feminine and unworthy, in the same sentence.8 Dickens’ Gradgrind from Hard Times likewise loved law and hated sentiment in equal measure. Twain’s Pudd’nhead Wilson loved law and legalism and, again, harbored a distaste for sentimentalism, a combination which disastrously produced a Twainian hero who ended up quite literally sending an escaped slave down the river. Moving into the late nine

8

From Vere’s speech to the drumhead court, arguing for Budd’s conviction: But the exceptional in the matter moves the hearts within you. Even so too is mine moved. But let not warm hearts betray heads that should be cool. Ashore in a criminal case will an upright judge allow himself off the bench to be waylaid by some tender kinswoman of the accused seeking to touch him with her tearful plea? Well the heart here denotes the feminine in man is as that piteous woman, and hard tho’ it be, she must here be ruled out.” (emphasis added).Herman Melville, Billy Budd (Hazleton, Pennsylvania: The Electronic Classics Series), 68. https://​mseffie​.com/​ assignments/​billy​_budd/​Billy​%20Budd​%20Text​.pdf, accessed January 5, 2021.

Law’s sentiments  47 teenth, twentieth and twenty-first century literary canon, and the time period roughly called liberal legalist by our contemporary legal historians, we again encounter scores – more likely hundreds – of un- or anti-sentimental legal actors, most times, today, unambiguous villains or fools rather than ambiguous Vere-like heros, but all of them besotted by law and abhorrent of sentiment. Recall Kafka’s nineteenth century legal bureaucrats, Camus’s and Kunstler’s legal tormentors from our mid-twentieth century canon, John Barth’s absurdist litigators from the 1960s, LA law’s or The Good Wife’s ruthlessly competent lawyers from the late twentieth and early twenty-first century popular era. There are of course some counter-examples. It’s worth noting, though, that even the clearest counter-example of an outstanding literary lawyer who is also endowed with rich moral sentiments – Harper Lee’s Atticus Finch, from To Kill a Mockingbird – achieved his noblest as well as most sentimental moments when he had the courage to act in accord with his moral sentiments and against legal convention, his legal role, and even the dictates of law: first when he protected his client outside the courtroom from a lynch mob, a protection that was facilitated not by force of law, and not by anything he did in his role as his client’s lawyer, but rather, by his daughter Scout’s empathic and sympathetic engagement with one of the would-be lynchers, who happened to be the father of her classmate, and then secondly, at the end of the novel, when he ignored the law in order to protect his neighbor, who had just saved his son’s life, against any risks of exposure that might have come from an unwelcome investigation and legal process into the events of that calamitous evening in Maycomb. But, let’s leave poor old bruised and battered Atticus out of it for now. My point is simply that the first way canonical narrative literature has entrenched the unsentimental conception of law over the course of liberal legalism’s reign is through the depiction of scores of either villainous or heroic legal actors, lawyers, judges and sovereigns, all of whom love law and disparage moral sentiment, and all of whom recognize the antithetical relation of moral sentiment with legal command. There is, though, a second way narrative literature underscores or promulgates the unsentimental conception of law which is less direct, but there’s if anything more of it. Narrative literature presents us not only with unsentimental legal actors – whether heroes or villains – but also with a large cast of characters who do enjoy rich morally sentimental subjective lives, but who do so while living outside law. Those rich moral sentiments, in fact, as these plots unfold, clearly depend upon their escape from law’s clutches. Thus, we find in the literary canon not only scores of un- or anti-sentimental lawyers and judges, but also scores of highly moral sentimental characters who are so precisely because they live outside of law. So, we find in narrative literature scores of morally sentimental outlaws untouched by the dictates of criminal law, dropouts in alternative spontaneous communities unfazed by the formalizing strictures of contract law and the obligations it imposes, lovers who enjoy lawless romances, outside the confines of a coercive family law of marriage, divorce, prenuptial agreements and child support payments, and, of course, many, many children – untouched, Rousseau-styled, by the legal mine and thine, and who build fantastic lives for themselves, sometimes imagined, sometimes real, in the territories, or in natural woodlands outside their homes and neighborhoods, or in imaginary castles built in their parents’ living rooms from sheets and chairs. Just recall Twain’s iconic depiction of moral sentiment and the absence of law on Huck and Finn’s raft, or the sweet and lawless worlds created by Robert Louis Stevenson’s poetry, or the outlaws in Hollywood’s Butch Cassidy and the Sundance Kid bicycling nonsensically to the tune of Raindrops Keep Falling on my Head, or the beatniks in Kerouac’s On the Road, or the strikebreakers in Ken Kesey’s Sometimes a Great Notion or the vilification of law and

48  Research handbook on law and emotion rationality both in the same author’s One Flew Over the Cuckoo’s Nest or Wolfe’s depiction of Ken Kesey and Mountain Girl and all the rest of the Merry Pranksters in the Electric Koolaid Acid Test, or Widerburg’s lovers in Elvira Madigan or Brooke Shields’ depiction of a teenaged mother in The Blue Lagoon. Across all their differences, these works all depict subjects who have escaped or been ejected from law’s empire, and who live instead in morally sentimental but lawless worlds. Law, in this literature, is a threat – seemingly the greatest threat – to our moral and loving inner lives. In each of them, law opposes, or kills, moral sentiment. If you want friendship, empathy, love, sympathy, or community, according to Huck Finn, Butch Cassidy, the Sundance Kid, Ken Kesey, Robert Louis Stevenson’s gentle children, Mountain Girl, Elvira Madigan and Brooke Shields don’t go to Law’s Empire, to use Dworkin’s evocative phrase. If you crave law’s empire, on the other hand, don’t look to empathize or sympathize with others, or seek community. The realms are mutually exclusive. Thus, the unsentimental conception of law. Against this tide in both jurisprudence and literature, I want to offer the counter-suggestion that a well-functioning, healthy, and liberal system of law is an absolutely necessary condition of our moral sentiments – the feelings of empathy and sympathy that are essential for equality, community, and intimacy – and is therefore one of law’s unheralded virtues. That is, I want to offer an account of the moral sentiments that are generated by law itself, and in fact require law for their flowering. Moral sentiments, contrary to the teachings of both the legal realists in our jurisprudence and the anti-legalist narratives in our canonical literature referenced above, are, partly, dependent upon law, they won’t exist without it. When that’s not so – when law ceases to produce moral sentiment, and when moral sentiment can only flourish outside law’s domain – it’s because both law and sentiment have become sick, and need tending. Furthermore, I want to use narrative fiction to help bolster the point. Thus, I hope to make the counter-intuitive point that law is a precondition of decent moral sentiment, and the counter-canonical point that at least some of our literature points us toward this conclusion, although it is rarely read or understood as such. The rest of this chapter consists of two parts. In the first, I make a jurisprudential objection to the unsentimental conception: what the unsentimental conception of liberal legalism misses about the essential nature of law. In the second and major part I will suggest the existence of a body of literature that suggests that it is oftentimes the absence of law’s protection, rather than the presence of malignant or overbearing law, that stunts moral sentiments. This is a body of work not much studied or taught within the field of “law and literature,” which for obvious reasons has tended to look at literature that centers on legal heroes and villains, and the operation of law in those stories. That movement in other words has focused on law’s presence and its impact of law’s subjects. I want to focus attention instead on a few pieces of literature in which law is absent – not because the characters have chosen to absent themselves, Elvira Madigan-like, but rather, because the law has failed or refused to extend its protection to their lives. In these stories, I want to suggest, we can find some depictions of the impact of the protection of law on sentiment by looking at the lives of those who are not granted law’s protections. Their lives are not only nasty, brutish and short, they are also unsentimental, and all the worse for it. In my conclusion I’ll try to state affirmatively and without the literary crutch the nature of the connection between liberal legalism and healthy moral sentiment.

Law’s sentiments  49

LAW’S COERCION, LAW’S PROTECTION Jurisprudentially, enthusiasts of the unsentimental conception of law implicitly – although in the case of Holmes and Posner, quite explicitly – embrace a classically legal-positivist understanding of law: law is a series of commands, aimed at assuring compliance. Law is fundamentally coercive. Law is what emanates from the power of the sword. That’s plenty unsentimental, and it is also, I think, plenty-enough true. Legal commands are most assuredly not one bit sentimental – Cover was right about that – and they insure compliance through the unsentimental methods of penalties, fines, orders, damage remedies, attachments, executions, stays of execution, and the like.9 The unsentimental conception then proceeds, however, from this positivist premise to the inference that because law is coercive, law’s empire, again to use Dworkin’s phrase – the liberal legal world of norms, statutes, case law, constitutions and so forth – does not, and perhaps cannot, engender, trigger, meaningfully engage, or rest upon our Smith-ean moral sentiments in any even remotely positive way. They might of course impact our moral sentiments in a negative way: totalitarian regimes, for example, terrorize their subjects into submission, and terror does not easily live side by side with sympathetic sentiments. But even well-functioning liberal legal orders, according to proponents of the unsentimental conception, do not fundamentally engage our moral-sentimental lives. Rather, while they unquestionably create incentives to which our outer selves duly and predictably respond, our inner lives – including our emotional and moral sentiments – are untouched by it. Law, after all, is essentially coercive, in liberal no less than authoritarian regimes. And coercion does not well abide moral sentiment. The problem with this quick inference from law’s coercive essence to its anti-sentimentality is simply that the positivist definition of law – law coerces – while true, is not a complete account of either the essence or purpose of law, at least of law in liberal legal regimes. What the unsentimental conception of law misses is that law not only coerces, but it also protects, and what it protects us against, fundamentally, is the violence and exploitation of others. In a well-functioning liberal legal system, furthermore, it does so essentially; that law protects us against the potential violence of others is as much a definitional aspect of law in liberal states, as that law coerces. It is, for instance, explicitly referenced in the Equal Protection Clause of the 14th Amendment: “No State shall… deny to any person within its jurisdiction the equal protection of the laws.”10 That clause commands the states to protect, as well as to protect equally, although the command directed toward states to protect is generally overlooked by constitutionalists, perhaps because of the blinding effect of the clarion call to equality in that understandably beloved clause. That law must protect us might be the forgotten mandate of the Equal Protection Clause,11 and the forgotten point of our beleaguered civil rights movements likewise.12 More generally, though, we overlook the centrality of law’s protective purpose, when we focus on law’s coercive core. But we shouldn’t. Central to law’s mission, point,

Robert Cover, “Violence and the Word,” Yale Law Journal 95, no. 8 (July 1986): 1601–30. U.S. Constitution, Amendment XIV, Section 1. 11 Steven J. Heyman, “The First Duty of Government: Protection, Liberty and the Fourteenth Amendment,” Duke Law Journal 41, no. 3 (December 1991): 507–71. 12 Robin L. West, Reconstructing Civil Rights (Cambridge: Cambridge University Press, forthcoming).

9

10

50  Research handbook on law and emotion and raison d’être, in liberal societies, is that it protect us against a particular set of evils: Law protects us, is meant to protect us, is designed to protect us, promises to protect us, from the deprivations of private violence and exploitation, even as it does so through coercion. It does much else besides – but it minimally must do that. Let me bring this full circle to moral sentiments. When law coerces, it can terrify. But when law protects us, it creates space for the development of moral sentiments and in a number of ways. The protection of law against private violence or exploitation, for example, conveys full ownership to each of us of our own body, which in turn, is the condition for healthy self-regard, moral integrity and healthy moral connections with others. Those who live outside the protection of law might be free of law’s coerciveness, but they also lack the benefit of that protection. And because of that they are less likely to possess the capacities for integrity, love, empathy, sympathy and community. Therefore, and contrary to the unsentimental conception, the equal protection of law promised explicitly by the Fourteenth Amendment and implicitly by the Rule of Law, creates subjects who can enjoy a subjective life of self-awareness and self-ownership and self-regard, and consequently a life of connection, love and empathic regard for others – a subjective life enriched by moral sentiments, community and an appreciation of self all. Integrity and moral connectivity is inconsistent, then, not only with pernicious or intrusive or discriminatory law, but also, with law’s absence – by which I mean both the lack of law altogether, or the presence of a law that fails to protect or protect equally. Law is clearly not a sufficient condition for the development of moral sentiment – we also need loving and decent parents and a healthy planet and meaningful work. But the protection of law, and the ownership and sense of ownership of one’s body that it can generate, is absolutely a necessary condition to the generation of moral sentiment. This is not an aspect of law’s virtue that is often emphasized, or even noted, by law’s enthusiasts, who tend to overwhelmingly focus on either individual liberty, substantive equality, or the maximization of utility, all measured through external indicia, of legalism’s value. And it is an aspect of law’s virtue that is flatly denied by liberal legalism’s critics, whether those coming from a literary sensibility or elsewhere, where first the unmasking and then the critique of law’s coerciveness rather than praise for the protection it provides is the order of the day. But it is important that we understand the value of the protection of law, and the value of the flowering of sentiments, both moral and otherwise, that the equal protection of law facilitates. It is not the only aspect, but it is decidedly one aspect of law’s virtue that is threatened by our current anti-legalist politics: threatened, that is, by calls for deregulation, for sovereign pluralism and for rule by referenda, by attacks on the necessity of civil rights and their protections, and in general by the rise of a charismatic politics unbeholden to law, and uncommitted to the protections law can bestow, as well as increasingly unconstrained by its mandates.

NARRATIVE DEPICTIONS OF LAW’S ABSENCE As suggested above, the legal-literary canon is replete with depictions of the stunting impact of pernicious, intrusive, or formalistic law on the human spirit. That canon, I believe, has become the bread and butter of law and literature course syllabi. Less recognized, or at least less taught, is the existence of a canon of narrative literature that portrays the terrorizing impact of law’s absence on the human spirit, and particularly on moral sentiments. There

Law’s sentiments  51 are two exceptions: Beloved,13 and Jury of her Peers,14 both much taught and studied. First, think of Toni Morrison’s character Sethe and her doomed daughter Beloved, both of whom are subjected to the violence of slaveholders in slave states and slave catchers in purportedly free ones. Beloved dies as a consequence, killed by her mother’s protective hand, while Sethe herself suffers moral as well as physical wounds. In her own words, Sethe’s problem is that she doesn’t own herself – she doesn’t own her body, or her face, or her arms, or her legs, or her back. How, then, can she possibly connect? As the novel progresses, and as the country progresses, and as Sethe struggles toward self-ownership, she also struggles toward meaningful, pleasing and moral human connections, with her lover, her mother, her live daughter, the ghost of her dead daughter, and her community. Think as well of the isolated farmwife in Susan Glaspell’s short story from the 1920s, A Jury of Her Peers, who is suspected of killing her abusive husband, and then effectively “acquitted” by her female neighbors’ conspiracy to hide incriminating evidence against her, while her house is being searched by legal authorities. Minnie Foster loses a great deal by virtue of the patriarchal violence she suffers: first her voice, then her musicality, then her friends, and finally her companionate pet. What she also loses, however, over the course of an adult life lived in a violent marriage outside the protective umbrella of law, is sentimentality, moral and otherwise: pleasure, intimacy, friendship, and community. She has this in common with Sethe; their sentiments of sympathy and pleasure both are undermined by the overwhelming violence they endure at the hands of masters. But note: it was not just violent husbands and slave catchers, but also the lack of the protection of law against those husbands, slaveholders and slave catchers, that killed the moral sentiments in both of these women’s lives. As a slave, Sethe was denied the protection of the law against murder, assault, rape, and forced labor exacted on her by her owners, and even while and where she was “free,” she was denied the protection of law against the kidnapping of herself and her children by slave catchers, courtesy of the Fugitive Slave Act. As a wife in a patriarchal marriage, Minnie Foster was denied the protection of law against assault and rape by her husband, who by virtue of marital rape exemptions and rules of thumb had license to engage in both. The death of sentiment in both books, in both women’s lives, happened, so to speak, not in the shadow of the law, but in the shadow of the absence of law’s protection. More contemporary works that wittingly or unwittingly portray law’s absence – denials of the protections of law – and the impact of that denial on sentiment are less totalizing, and hence more ambiguous, than the denials of equal protection which characterized slavery or patriarchy. So we don’t tend to think of them, or teach them, when we teach about law’s depiction in literature. The rest of this chapter takes up three contemporary works that are notable exemplars of the same dynamic: the film version of Patrick Shanley’s script Doubt: A Parable, from 2004,15 Kazuo Ishiguro’s novel The Remains of the Day, from 198916 and George Pelecanos’ 2004 short story, String Music.17 In all three, the authors depict subjects notably lacking in

Toni Morrison, Beloved: A Novel (New York: Knopf, 1987). Susan Glaspell, “A Jury of Her Peers,” in Her American: A Jury of Her Peers and Other Stories, eds, Patricia Bryan and Martha Carpentier (Iowa City: University of Iowa Press, 2010), 81–102. 15 Doubt: A Parable (Film), directed by John Patrick Shanley (Los Angeles: Miramax Films, 2018). 16 Kazuo Ishiguro, The Remains of the Day: A Novel (New York: Knopf, 1989). 17 George P. Pelecanos, “String Music,” in Martini Shot: A Novella and Stories (New York: Little, Brown and Company, 2015), 5–-81. 13 14

52  Research handbook on law and emotion sentiment, and in all three, that unsentimentality is portrayed as occurring in the shadow of law’s absence. I want to draw a connection between those facts. I’ll start with Doubt. In Doubt, as you may recall if you saw the film or the play, Sister Aloysius, a Catholic nun serving as an assistant principal in a Catholic school in the Bronx in the early 1960s, comes to suspect the head Priest at the school – Father Flynn – of sexually abusing one of their students – a 12- or 13-year-old scholarship student who is also the school’s first and sole African American attendee. The suspected abuse and the aftermath are the subject of the entirety of the play. The accused priest is appealingly modern, post-Vatican II, and sympathetically drawn: he encourages and seemingly enjoys secular Christmas songs and ball point pens, he engages in spontaneous laughter and fun, he delivers his masses in English, he projects as well as defends a loving and non-punitive as well as casual approach to both his pedagogy and his coaching, and he ministers to the whole person in every student, who, he repeatedly stresses, are, after all, children. He is, in effect, moral sentimentality personified. Sister Aloysius, who comes to suspect that he is also sexually abusing students amidst all of this loving playfulness, is a traditionalist: she is harsh, a stern disciplinarian, humorless, shows not the slightest affection for the children or the younger nuns under her leadership, and she lives in a state of perpetual rage over the post-Vatican II reforms that have overturned her life and school. She also has an antipathy for the popular and humanist Father that is deep, unattractive, and seemingly irrational. She is repelled by the moral sentimentality that he embodies and which she so strikingly lacks. She hates his guts. So, once she suspects him of sexually abusing one of the students, she proceeds to prosecute her own vendetta against him, on the basis of very little evidence but very strong suspicions. She doesn’t, though, have any clear way to do that. The problem is that there is almost no law, substantive or procedural, and what little law there is, is not on her side in 1964. And, she correctly intuits that no one in the Church hierarchy will be responsive to her charges. There will be no investigation. In the shadow of law’s absence, then, Sister Aloysius ultimately uses dishonest subterfuge to entrap the Father into a confession: she sets out to convince him with trumped-up evidence that she can effectuate his removal from the priesthood, and that he should therefore resign voluntarily. Ultimately, she succeeds – he does leave the school – but only to be re-assigned to another school and effectively promoted, an outcome we now know was quite typical of actual priests accused of very real sexual abuse in the 40s, 50s and 60s. In the last scene of the film, Sister Aloysius confesses to Sister James – a younger nun who has sought to befriend both Sister Aloysius and Father Flynn – that she is plagued by doubts herself, although she doesn’t specify exactly what it is she doubts. Aloysius’ behavior throughout, at least on the surface, is distasteful, unappealing, unethical and utterly unsympathetic, particularly perhaps to lawyers and law students in the audience. It is an entirely extra-legal process by which Aloysius pursues her vengeful persecution of the Father: the evidence is concocted, there are no collaborating witnesses, there are no lawyers and there is no law. There is no procedural fairness. There is also though no state condemnation of the underlying suspected behavior, no recognition by the outside community of the wrongfulness of child abuse, no sanctioned attempt to get to the truth of the matter, and no venue for the resolution of anyone’s doubts, either Sister Aloysius’s, Sister James’s, or the audience’s. Nevertheless, despite Aloysius’s rigidity, her rage, her lack of “objectivity,” and her roughshod and cavalier attitudes toward any due process that may be owed the man she suspects, and ultimately despite even her own expressions of doubt regarding her initial suspicions, most viewers come to the conclusion – albeit with varying degrees of certainty – that Aloysius was – all things considered – right to suspect the priest’s sexual abuse of the child.

Law’s sentiments  53 Whether she was right, though, beyond “all reasonable doubt,” is itself in doubt, as the title of the play and film suggests. That, I take it is a fair enough summation of the play’s and the film’s dominant text, and perhaps of the author’s intent likewise. But there’s a subtext to all this, and perhaps several subtexts, which might well not have been intended. One way to put it is to revert back to the title: There is, in fact, much else to doubt, about this entire chain of events, well beyond the priest’s factual guilt, as the Father’s first mass – which was on the subject of doubt – suggests. For example, both of the two Sisters at various points in the film doubt not only the Father’s guilt, but also their faith in God, the Church, the Church hierarchy, the Father’s wisdom, their own virtue, and the honesty of each other and of their superiors. The abused child’s mother, furthermore, doubts that any harm that might have been done to her child by virtue of the Father’s sexual abuse was so great as to outweigh the manifest benefits her boy is garnering by attending the school: a diploma that could aid his entry into a prestigious high school, the affection of a man that may offset the humiliation and worse he suffers at the hands of his own father who is offended by the boy’s apparent homosexuality, and the protection of the priest who is abusing him from some of his peers’ scorn and harassment. The mother doubts, then, that Sister Aloysius should proceed with her “prosecution” of Father Flynn on her boy’s behalf. She doesn’t think it’s worth it. Although he of course never puts this into words, Father Flynn seemingly doubts that his possible sexual advances toward the children are a harm at all, or distinguishable from his emotional love for them: he argues that he, and not the Sister, truly loves the children, with the subtle insinuation that physical love, including sexual, is a legitimate part of an ecumenical regard for the wholeness of the human. All of this doubt – doubt toward the seriousness of the harm, doubt that sexual abuse is a harm at all, doubt regarding the Church’s moral authority – plants at least a seed of doubt not only over whether the Father is guilty of what the Sister suspects, but also over whether the alleged sexual abuse by this priest of this child, even assuming it occurred, is really all that bad. I want to draw attention to one final subtext. We might also come to doubt – although this may well be beyond the author’s intention – the grounds of all of this doubt. How, exactly, did we all come to doubt the seriousness of the sexual abuse of children by priests? How did we come to a sex positivity so thorough-going as to encompass the sexual exploitation of minors? Might the Church’s steadfast refusal to confront the sex abuse in its ranks over the last half century or longer have played a role in the seeding of that doubt? Nevertheless, and however broadly we cast the net of what this movie is urging us to doubt – the Father’s factual guilt, the seriousness of the harm, or our doubts with respect to all of that doubt – the play Doubt is, unambiguously, all about doubt. But it is also, just as much, all about moral sentiment. And, on first blush, the depiction of the two – moral sentiment and lawlessness – tracks the first and dominant relation I outlined above: law drives out moral sentiment. In this quite unhealthy as well as lawless church-school, healthy emotional and moral sentiments are strongly correlated with doubt, and the lack of healthy emotional and moral sentiments are equally correlated with unwarranted certainty. The priest and his companions, who confess openly and happily to their various doubts, particularly regarding the Church’s moral authority and the authority of tradition, are quite literally besotted with sentiment: they drink fine wine, they laugh freely, they tell risqué stories, and they are openly affectionate with each other and with both the children and the sisters under their tutelage. They are literate, companionate, and communal. They exude moral and emotional warmth, and they allow the latter to guide the former. The Sisters, by contrast, whose sole aim in life sometimes seems

54  Research handbook on law and emotion to be to expunge all doubt, live austerely, drink water or milk rather than wine with their dinner, engage in almost no conversation, are utterly humorless, and enjoy almost no warmth whatsoever, either with each other, with the children, or with the Fathers. Sister James must struggle to receive permission even to visit her ill brother. Sister Aloysius professes the most unsentimental pedagogy imaginable, refusing to tolerate any conceivable softness toward the school children in her charge. Her moral sentiments are utterly compromised: as she herself admits, she engages in the sorts of wrongs (manufacturing evidence) which take her further from God, and she refuses to even discuss any case for sympathy toward the father she suspects. Expressing cold certainty until the penultimate scene, she exudes, professes, and lives in an equally cold unsentimental world. It crumbles at the end, when she dissolves into tears in the younger Sister’s arms, finally accepting human touch and sympathy, while confessing to her own unspecified doubts. The pre-Vatican II Church, authoritarianism, formalism, and particularly certainty all come off quite badly in all this. The pre-Vatican II Church, after all, represented by Aloysius, was the professor of certainty, of un- and anti-sentimental pedagogy, of excessive austerity, of rules, formalism, and above all, perhaps, rigid opposition to Freud’s pleasure principle. The easy lesson to draw from this script, then, is that certainty, along with an insistence on authority, formalism, and its doctrinaire allegiance to rules, kills sentiment, both emotional and moral. The liberal church, anti-authoritarianism, free love and a humanized Catholicism fare much better. They acknowledge and permit sentiment. They facilitate it. They foster not just good feeling, they foster feelings. None of this, though, is entirely straightforward – there is, after all, quite possibly, sexual abuse mixed in with the sentiment, the feelings, the kindness, the love, the liberalism, and the relaxing of rule and doctrine. How do we resolve these tensions between our responses to the doctrinaire, authoritarian, anti-sentimental, unfeeling Sister who may be right to suspect the Father, who is liberal, kind, and sentimental, of sexual abuse? One possibility that was suggested by Shanley himself in an interview during the play’s initial run is that the audience’s doubts about what transpired at the school should dominate what he called the play’s “Second Act”: the conversations and argument after the curtain falls among audience members. The doubt he apparently hoped to instill, however, was somewhat selective: not doubts, so much, about the value of sentiment, liberalization, antiauthoritarianism, or post-Vatican reforms – those are seemingly the script’s lodestar. Rather, the doubt he hoped to instill in the audience, and lauded, concern primarily doubts about the facticity of what is suspected, and quite possibly, if a dose of sexual abuse is the price of liberal reforms, doubt as well about the seriousness of any harm that abuse might inflict. This is all pretty unsettling – but it is also not a complete description of what transpired at that school. There is another dimension to the interactions between these characters, either wittingly or unwittingly suggested by Shanley’s script but then pretty vividly portrayed by characters. The anti-sentimentality that Sister Aloysius exhibited, professed, and inhabited in that school was not only the function of her attitudes of undue certainty, and her unambiguous embrace of unforgiving Catholic and religious norms. It was also a function of the absence of any secular law in her life, both as an administrator and instructor at this school, and as a Sister in a religious hierarchy. Her anti-sentimentality, in other words, lived, and grew, in the shadow of law’s absence. There was no protection of law, equal or otherwise, in this church-school. The law failed to protect both this child and many others like him against sexual assault, and it failed to protect Sister Aloysius against retaliation for basically blowing the whistle. The Catholic Church still today in substantial part is exempted through various immunities from

Law’s sentiments  55 secular, legal control. (It can still, for example, hire and fire religious leaders without regard to legalistic anti-discrimination norms.) At the time Doubt is set, however, the Church, we now know, quite actively shielded priests from responsibility for their criminal sexual assaults.18 The sexual abuse in Doubt, Aloysius’s attempt to address it, and Father Flynn’s avoidance of responsibility for it, all occurred, to repeat my twist on the metaphor, not in the shadow of law, but in the shadow of law’s absence. First, the alleged sexual abuse itself was criminal, but immunities shrouded it. The boy had no effective legal entitlement to the law’s protection against sexual abuse by his priest or to civil recourse for the damage he sustained by virtue of the abuse. The investigation and persecution undertaken by Sister Aloysius likewise was unethical and coldly unforgiving, but she too, like the victim, had no secular authority to which to turn. The Church and whatever oppressions it visited upon practitioners was insulated entirely from legal process. Nor was there any process within the Church that was accessible to her, through which she could process her suspicions. And, she enjoyed no legal protection against whatever retaliation might be coming her way for taking the actions she contemplated. No “whistleblower” statute would ensure that no adverse effects would be visited upon her, should she articulate her suspicions. So, she manufactured evidence to smoke him out. Was this so terrible? What would you have done? Might law’s absence, and not only the Church’s oppressive presence, be partly to blame for the appalling lack of moral and aesthetic sentiment, specifically in Sister Aloysius’s character but also and much more broadly at this school? The child sustained his sexual injuries in silence, as children are wont to do, and we can’t know the seriousness of the harms he sustained as a consequence. But that silence itself, we now know, is itself a harm, and it is a harm that touches the sentiments: it stunts emotional development, to be silenced in the face of assault, and it stunts moral development, to have one’s physical and emotional integrity so undermined. For Sister Aloysius, the effects of the law’s absence were also profound. Aloysius had no felt recourse to secular law, so nowhere to take her suspicions. She could not share the burden of her suspicions with either legal or religious authorities. As a woman in a subsidiary role in the Catholic Church, her worries or beliefs or possible charges were of no consequence. That inconsequentiality diminished her sense of her own importance and agency, and of course her integrity. Her choice was between obtaining evidence fraudulently or permitting a suspected child abuser to remain in a position of authority. She was faced with unpalatable odds from a position of profound subordination. Her powerlessness – itself a product of the law’s absence – generated her tragic choice, and it was that choice, as was made clear in the final scene, that generated her anguish. The argument will now proceed by looking much more quickly at Pelecanos’ String Music, and then Ishiguro’s Remains of the Day. I’ll start with String Music, a short story written by George Pelecanos, who is best known for his work on The Wire,19 and which is now collected in his recent collection of short stories titled Martini Shot.20 As is true of the characters in The Wire, many of Pelecanos’ characters in the stories collected in Martini Shot live in violent communities, and they seek to find meaning and value in the interstices, so to speak, of that violence, usually by reference to their sentimental ties to others: their girlfriends, their aging fathers, their younger siblings, their children. But in String Music, more vividly than in the Cf. Spotlight, directed by Tom McCarthy (Los Angeles: Open Road Films: 2015). The Wire, written by David Simon et al. (New York City: HBO, June 2, 2002–March 9, 2008). 20 Pelecanos, Martini Shot. 18 19

56  Research handbook on law and emotion other stories, what Pelecanos shows is that what violence deadens, above all, is sentiment. In the last scene, Tonio, who very much wants to live, disorientedly contemplates what he knows are likely to be his last minutes, while dribbling a ball on a basketball court in a pickup game, while his killer circles the block in a black Maxima van. Antonio is trapped on that asphalt court; he knows he has no exit. He will very likely die when the game ends, violently and imminently, in an act of senseless retribution. So what does he do? He shortens his expectations, sour-grapes style. He focuses on his next shot, his next block, his next pass, his dribble. There is, in those last moments, only basketball. There’s no upcoming SAT test, no babysitting obligations, no plans to make. There is no future. And, there is no sentiment – Tonio’s life in this scene becomes “nasty,” to recall Hobbes’s description of life without law. For Tonio, there is no prospect for attachment, no commitment to thine or mine, no community, no intimacy, no friendship, no pleasure, no sense of self or purpose, no “vision of the good life,” when that van is circling and death is imminent. It’s a gripping depiction of a sickeningly unsentimental way to live in the moment. As in Doubt, in this story of deadened sentiments and shortened life spans, law is striking for its absence. There is no capable police force providing Antonio with the equal protection of law. There is a police presence – an honorable and caring cop – but not so capable as to be truly protective. Tonio is trapped, not just by the Van, and the violence it represents, but also by the lack of competent legal protection against it. The absence of the protection of law, and not just the lethal violence against which legal protection is constitutionally owed, kills Tonio’s capacity for sentiment. Finally, and most briefly, The Remains of the Day.21 This modern classic from the 1990s centers on the interior life of a butler who serves a British aristocrat in London during the 1920s to 1930s – an employer who eventually is revealed to the butler and reader both as a Nazi sympathizer, and possibly a Nazi collaborator. The butler remains loyal to him throughout, willfully blind to his employer’s increasingly obvious and noxious political sympathies. The butler’s loyalty is embedded within an ethic of professionalism that is all consuming (and which, as any number of commentators have suggested, bears a more than passing resemblance to legal professionalism) and which a good bit of the novel, and the butler, explore: the butler relies on stories, common law style, to help his readers better understand the demands of that ethic, as he and his colleagues debate the meaning of professionalism, and what it means to be a “good” butler. The loyalty the butler shows his employer, and the professionalism which requires it, the reader is led to realize, come with a price: it has almost thoroughly numbed Mr. Stevens’ emotional life. He has no love in his life and very little capacity for it. He is loyal to his own father, but unable to express affection or to treat him decently as he lay dying, because of his conflicting loyalty to his employer. He cannot express or even properly understand his own affection for the housekeeper in the household, and as a consequence he loses what could have been a sustaining and intimate bond. His moral sentiments fare no better. He doesn’t shy away from presenting himself on multiple occasions as someone he is not, a gentleman on an excursion through the countryside, rather than the employee of one. He cannot see, much less call out, the wrongness of firing two young Jewish maids solely for the offense of being Jewish, nor can he sympathize with the housekeeper’s moral anguish when he, at his employer’s insistence, does so. Most consequential, he cannot see, much less respond

Ishiguro, The Remains of the Day.

21

Law’s sentiments  57 to, his employer’s political loyalties, his anti-Semitism, or his micro-cruelties, some of which are directed at him. So professionalism comes off badly in this story of the English butler, just as the Church comes off badly in Doubt, and community comes off badly in String Music. Here again, though, it is not simply the veneer of professionalism that is oppressive, or that takes such a toll on the butler’s sentiments. It is also the shadow of law’s absence. There is no law regulating this employment relation between butler and master – the relationship which throughout the book is the subject of the butler’s ruminations. There was of course no civil rights regime forbidding the firing of the maids for being Jewish. But there was also no employment law requiring fair terms or standards, or limiting the employer’s powers to whimsically hire and fire the butler himself. In its stead – in the shadow of law’s absence – there was a professional code for butlers, and a cluster of shared norms defining something called “professionalism.” But there was no contractual relation between them that was regulated even by contract law, much less by civil rights. There was instead a power relation, regulated by nothing but norms of civility and a code of professionalism – in effect the gilded glove covering the subordinating effects of law’s absence from the field. One casualty of the cruel arrangement in this story – one casualty of law’s absence and of the ethic of “professionalism” that displaced it – was the butler’s moral sense. Loyalty and affection for his employer come to exhaust the butler’s moral reasoning. Sentiments that might have splintered that loyalty would be risky, or dangerous, whether they be the pull of romantic or erotic attachment, or the pull of the qualms of conscience, or the pull of the allure of community. But again, note: the butler’s undying loyalty and his otherwise stunted moral sense was owing not just to the oppressive presence of professionalism, but also to the absence of law: he had no recourse to a regulatory regime that might have couched his employment, no legal protection against his own abuse, and no sense that law would protect those under him from his abusive relation toward them. By virtue of law’s absence – and not just professionalism – he was driven to that totalizing loyalty, which in turn incapacitated him from love, from an honest conversation with a community of equals, and from a responsible and moral regard for the maids that worked under him on his staff. He lacked moral as well as emotional sentiments, in short, and the absence of law, no less than the oppressive presence of professionalism, was responsible. To summarize: In Doubt, it is religious political authority, not so much religious norms, that oppress: it is embodied religious authorities that permit and then shield sexual abuse, that incapacitate and disempower while exploiting women, that provide little or no process for the expression of dissent, suspicion, or concern among various church functionaries, such as school administrators, and that people a regime that is anti-democratic and unequal from bottom to top. In String Music, it is the political authority of a violent community that does all of this: the political authority of gangs that incapacitate, provide no avenue for dissent, and exercise full social control. In Remains of the Day, it is the employer’s political authority and the “professionalism” that encode it: the fully embodied employer incapacitates, and provides no avenue for dissent, suspicion or concern, for those who have moral misgivings. In all three of these nondemocratic and political realms – the domain of religious authority, of gang life, and of professionalism – sentiment, both moral and emotional, takes a hit, and it is the peculiar capacity of narrative fiction to reveal that truth. In Doubt, the religious underlings in these churches and church-schools – children and women – have stunted emotional and moral lives; in String Music, the hollowed-out interiority of those ruled by violence is exposed, and the bar-

58  Research handbook on law and emotion renness of the employees’ inner lives in Remains of the Day – the butler, the housekeeper, and the lower-level maids all – are painfully depicted on every page: they either numb themselves to their moral and emotional lives, as did the butler, or they get out, if they yearn for lives of sentimental richness, as did the housekeeper, or they get expelled and get killed, as did, most likely, the Jewish maids who were “let go.” And, in all three narratives, these regimes and the authorities that created them act as miniaturized sovereign states: religious authorities in schools, gang leaders in violent neighborhoods, and employers in homes and factories exercise power, and it is by virtue of the exercise of that power that the lives of those subordinated to them are bereft of sentiment. It is not, however, only the presence of an oppressive regime – religion, community violence, or employment – that kills sentiment. Private sovereigns emerge, exist and thrive in the shadow of law’s absence. Religious authority – not only over belief or practice, but also over bodies and lives and communities – is insulated by a broadly shared sense of their immunity from challenge. The violent authority of unchecked gangs – not gang culture but the political authority of violent gangs over the bodies and lives and communities they terrorize – is given reign by the absence of competent law enforcement that protects rather than targets neighborhoods. An employer’s political authority – not over the work itself, but over the bodies, lives and futures of employees – is facilitated by a hiring at will regime that removes law and legal regulation from the outer structures as well as the inner lives of those impacted.

CONCLUSIONS: LAW’S PRESENCE, LAW’S SENTIMENTS These are all grim portrayals of life outside of the protection of law. They expose the deadening of moral sentiment in lives lived in the shadow of law’s absence, as well as the self-evident lack of equality. As such, they collectively counter the more familiar flood of narrative depictions of the rich sentimentality of life outside law: the familiar strain of popular fiction that constructs characters whose moral and sentimental lives are only sparked through being set apart from the constraints and censorial compulsions of legal authorities. The drumbeat of those narratives drowns out an equally important narrative canon that conveys a very different moral: outside the protection of law, the narrative arc of life is Hobbesian. Minnie Foster, who lacked not just a jury of her peers but also the protection of law against domestic violence, Sethe and Beloved, who lack the protection of law against the assaults, rapes, murders, and kidnapping of slave holders and slave catchers, Sister Aloysius, who lacked not just recourse within the Church to voice her suspicions, but also the protection of law against retaliation for doing so, Father Flynn’s student, who lacked the protection of law against the sexual abuse itself, the butlers, housekeepers, maids and cooks in The Remains of The Day, all of whom lacked the law’s protections against their employer’s mercurial will, and Tonio, in String Music, who lacked the law’s protection against a violent community, all bear witness. These characters lived in lawless regimes of enslavement, patriarchy, violence, employment, professionalism and religious piety, and they were governed by authorities who were in turn insulated and protected by law’s absence: by legal immunities, norms of privacy, rules of thumb, police indifference. For some, their lives were shortened. But for all, their moral sentiments were near-annihilated. Where law’s absence was totalizing and behind us – slavery, violently patriarchal marriages – we can now see this clearly. Where the absence of law is less total and still present – in the form of immunities given to churches for various crimes and breaches,

Law’s sentiments  59 or an “at will” regime in employment, or underfunded or badly motivated police forces in violent neighborhoods – that relation is much harder to see. Narrative fiction can help, at least if we can first shake off the habits of the dominant narrative – a narrative that vilifies law and sentimentalizes law’s absence. Law creates conditions for equality, in part, by regulating private regimes, and the way it does so is by protecting us against the abuses of the stronger parties within them. “Equal protection of the law” means at its core that we should be protected by law equally against the otherwise despotic powers of employers or fathers or husbands or priests or slave catchers to threaten us with their lethal firings, beatings, assaults and kidnappings. With law, employment at will can be constrained by norms of fair dealing, gang violence by decent policing, and “religious authority” limited to the sphere of belief and practice requisite for spiritual life to thrive, leaving practitioners no less than other citizens to enjoy protection against abuse and exploitation. With law, some measure of equality within these separate spheres is at least conceivable. With law, we are protected against private sovereign power that is sometimes of course benign, or loving, but sometimes oppressive, and on occasion lethal. It should not be surprising, if this is right, that the protection of law is a condition of moral sentiments. When law protects us, there is more room not only for equality but also for a fully moral human life, enriched by passion, attachment, intimacy, and community. We should not let romantic accounts of life on rafts, in territories, and on imagined desert islands, or of believers in separatist religious communities, or noble laborers in romanticized conceptions of honorable “professions” in service to benign and loving employers, blind us to that, any more than we should have in the past allowed romanticized conceptions of happy slaves or contented housewives seduce us into false beliefs about slavery and patriarchy. If we value the attachments of intimacy and community that excite and enlarge our capacity for empathy, we should resist the allure of legal “immunities,” and “cultural defenses,” and deregulatory movements, and we should resist the allure of narratives that romanticize life within those de-legalized realms. Equality is inconsistent with legal immunities – with law’s absence. But so likewise are the moral and emotional sentiments that both color and structure our inner lives, from which our outer actions originate, and in which our aspirations and ambitions and moral foundations, as well as those of our children, take root.

REFERENCES Barnett, Randy E. “Contract Is Not Promise; Contract is Consent.” In Philosophical Foundations of Contract Law, edited by Gregory Klass, George Letsas and Prince Saprai, 42–57. Oxford: Oxford University Press, 2014. Cover, Robert M. “Violence and the Word.” Yale Law Journal 95, no. 8 (July 1986): 1601–30. Doubt: A Parable. Directed by John Patrick Shanley. Los Angeles: Miramax Films, 2018. Epstein, Richard A. “Unconscionability: A Critical Reappraisal.” Journal of Law & Economics 18, no. 2 (October 1975): 293–316. Gabel, Peter. The Desire for Mutual Recognition: Social Movements and the Dissolution of the False Self. London: Routledge, 2018. Gabel, Peter. “A Critique of Rights: The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves.” Texas Law Review 62, no. 8 (May 1984): 1563–601. Glaspell, Susan. “A Jury of Her Peers.” In Her American: A Jury of Her Peers and Other Stories, edited by Patricia Bryan and Martha Carpentier, 81–102. Iowa City: University of Iowa Press, 2010.

60  Research handbook on law and emotion Heyman, Steven J. “The First Duty of Government: Protection, Liberty and the Fourteenth Amendment.” Duke Law Journal 41, no. 3 (December 1991): 507–71. Holmes, Oliver Wendell. “The Path of the Law.” Harvard Law Review 110, no. 5 (March 1997): 991–1009. Ishiguro, Kazuo. The Remains of the Day: A Novel. New York: Knopf, 1989. Melville, Herman. Billy Budd (Hazleton, Pennsylvania: The Electronic Classics Series), 68. https://​ mseffie​.com/​assignments/​billy​_budd/​Billy​%20Budd​%20Text​.pdf. Morrison, Toni. Beloved: A Novel. New York: Knopf, 1987. Pelecanos, George P. Martini Shot: A Novella and Short Stories. New York: Little, Brown and Company, 2015. Posner, Richard A. “Utilitarianism, Economics, and Social Theory.” In The Economics of Justice, 48–87. Cambridge: Harvard University Press, 1981. Posner, Richard A. “Tort Law.” In Economic Analysis of Law (8th ed.), 213–272. New York: Aspen Publishers, 2011. Smith, Adam. The Theory of Moral Sentiments. Indianapolis: Liberty Fund, 1984. Spotlight. Directed by Tom McCarthy. Los Angeles: Open Road Films: 2015. U.S. Const. amend. XIV. The Wire. Created by David Simon. Written by David Simon, Ed Burns, David Mills, Richard Price, Dennis Lehane, George Pelecanos, William F-Zorzi and Chris Collins. New York City: HBO, June 2, 2002–March 9, 2008. West, Robin L. Reconstructing Civil Rights. Cambridge: Cambridge University Press (forthcoming).

Pedagogy

4. “Whose body is this?”1 on the role of emotion in teaching and learning law Gillian Calder2

Soon I will be unable to walk, I will be unable to breathe without a respirator. … Whose body is this? Who owns my life? … Why it is illegal for someone to assist me to do something that is legal is a paradox I will never understand. But more to the point it is a paradox which forces me to suffer greatly, both mentally and physically. (Sue Rodriguez, “Who Owns My Life?” CBC Archives)3 …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. (Susan Bandes and Jeremy Blumenthal)4

THE BACKSTORY: “BECAUSE [IT] IS GOING TO HAVE EFFECT”5 For the first 12 years that I taught constitutional law, I always ended the introduction to section 7 of the Charter of Rights and Freedoms6—the right to life, liberty and security of the person (and the right not to be deprived thereof except in accordance with the principles of fundamental justice)—with a story-telling. For that class, every year, the students were asked to read the

Sue Rodriguez, “Who Owns My Life?,” (CBC Digital Archives, November 1992), last accessed August 7, 2019: http://​www​.cbc​.ca/​archives/​entry/​who​-owns​-my​-life. 2 This chapter was presented as a paper at a workshop organized by Jocelyn Downie and held at the Lord Nelson Hotel in Halifax, April 14–15, 2015. I am grateful to the Health Law Institute and Schulich School of Law for financial support to attend the workshop in person, and to the participants for invaluable critique on the ideas that underlie this chapter. Special thanks to Emily Kidd White, Patricia Cochran, Rebecca Johnson, Susan Bandes, Andrew Newcombe, Matthew Palmer, and Rebecca Gill for critical reflection and shared resources, to Kristen Lewis and Nico Bernardi for brave research assistance and to the students in Constitutional Law 2014–2015 for their trust. This chapter is dedicated to Joe Arvay, QC. 3 Rodriguez, “Who Owns My Life.” Sue Rodriguez was a fixture on the national news in Canada in late 1992 through her death in 1994. 4 Susan A. Bandes and Jeremy A. Blumenthal, “Emotion and the Law,” Annual Review of Law and Social Science 8 (2012): 175. 5 Liberal MP Don Boudria said: When people can’t attend a meeting they send a brief. Why is it not a brief this time, it’s a video, because the video in the particular case is going to have effect, because it is a person that’s dying and that’s very dramatic. And the person’s that’s bringing it to us want us to see just that he wants to advance the cause by the effect that it can portray. … The kind of legislation that she or that those acting on her behalf say that she wants will not be passed so long as I am a legislator because it is wrong. Rodriguez, “Who Owns My Life?,” at 1:55. 6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, is Schedule B to the Canada Act 1982 (UK), 1982, c 11 (hereinafter the Charter). 1

62

”Whose body is this?” on the role of emotion in teaching and learning law  63 Supreme Court of Canada’s 1993 decision in Rodriguez v. British Columbia;7 the renowned judgment that upheld the Criminal Code of Canada prohibition against doctor-assisted suicide as constitutional. And every year I would end the class by saying, sometimes with a slightly shaky voice: This case is the hardest case for me to teach, not on the law but on the facts, because my dad died of ALS. And when he was first diagnosed, in August 1999, the only person that I knew who had ALS was Sue Rodriguez, and I learned about her in a book.

I did this at the end of the class on the constitutionality of medical assistance in dying, but before our substantive discussion of the law, for two reasons. First, I assumed that to do it elsewhere would potentially shut down conversation, particularly by students who for reasons of faith, or otherwise, might want to articulate their strong views on the sanctity of life. Second, I was concerned that if students did express their views in class, and then later came to learn that this issue somehow touched my life, they might feel awkward or manipulated. Ultimately, both reasons flowed from my own perceptions about what was (in)appropriate with respect to how much of myself I revealed to my students, and on top of that, how willing I was to appear vulnerable, or emotional. I did not want to have them learn about medical assistance in dying in the disembodied8 way I did.9 In teaching Rodriguez, it was important to me that I conveyed the realities of a life with ALS, its lack of treatment or cure, its short life expectancy, the awfulness of the trajectory of the illness and degeneration; to be accountable and to make visible the significance of this particular disease to the question posed. But to do so was personally hard. So, I chose to let someone else tell the facts; after briefly setting up section 7, I showed a selection of news clips archived at the CBC’s website, where Sue Rodriguez tells her story in her own way.10 Then I opened up a discussion of some of the troubling, and often confusing issues in the case, so that we all were on the same page with the kinds of questions underlying what the Court does in Rodriguez.11 With that introduction and its impact, we then moved on to talk about “the law.”

Rodriguez v. British Columbia, [1993] 3 SCR 519. This is the judgment of the Supreme Court of Canada (“SCC”) that decided that the prohibitions in the Criminal Code of Canada, s. 241(b), against doctor-assisted suicide were constitutional. 8 I engage with theories of embodiment below, infra notes 104–109. The argument here is that learning about ALS and medical assistance in dying, solely by reading about it, feels now like an impoverished pedagogy. 9 For a discussion of role-modeling emotion in the teaching of law, see Ann Juergens, “Practicing What We Teach: The Importance of Emotion and Community Connection in Law Work and Law Teaching,” Clinical Law Review 11 (2005). 10 “Sue Rodriguez and the Right-To-Die Debate,” CBC Digital Archives, last accessed August 7, 2019: http://​www​.cbc​.ca/​archives/​categories/​politics/​rights​-freedoms/​sue​-rodriguez​-and​-the​-right​-to​-die​ -debate/​topic​-sue​-rodriguez​-and​-the​-right​-to​-die​-debate​.html. I usually show Who Owns My Life 4:50, BC Court Refuses Rodriquez’s Plea 3:45, The Final Legal Word 7:04, and Rodriguez Chooses Suicide 2:55. My thanks to Anna Trbovich and Patrick Hamilton, two students in the first year Constitutional Law course I taught at the University of New Brunswick, Faculty of Law 2001–2002, who gave me the DVD of those clips before that first class. 11 These are questions such as: what is the difference between physician-assisted death and euthanasia? What is the difference between passive and active forms of treatment? How are people living with disabilities constructed in this decision and through law? 7

64  Research handbook on law and emotion Over time, this approach to teaching section 7 and medical assistance in dying troubled me. It triggered questions for me about the role of emotion in teaching and learning law; what levels of self-exposure help to ground legal teaching in experience? And what degree of self-erasure is necessary to make space for emotion?

ROADMAP Students come through the doors at law school, bright, engaged and passionate, and yet for the most part they don’t leave that way.12 We greet them with a framework of depersonalizing analysis that centres cold, clear, critical reasoning13 rather than teaching them to “think like the lawyers we would like them to become” with awareness of the role of their emotions in making the ‘right’ decisions.14 Though we have come a long way from Langdell and the case method, “classical legal education” 15 is still a world of competencies16 and learning outcomes,17 of advocates trying to move us to two years from three years,18 and to increase law practice programs.19 Emotion in legal education is for the most part invisible.20 The prevailing pedagogy

Angela P. Harris and Marjorie M. Shultz, “A(nother) Critique of Pure Reason: Toward Civic Virtue in Legal Education,” Stanford Law Review 45 (1993): 1779; Caroline Maughan, “Why Study Emotion?,” in Affect and Legal Education: Emotion in Learning and Teaching the Law, eds, Paul Maharg and Caroline Maughan (Surrey: Ashgate, 2011), 21. 13 Harris and Shultz, “A(nother) Critique of Pure Reason,” 1773; Paul Maharg and Caroline Maughan, “Introduction,” in Affect and Legal Education, eds, Maharg and Maughan, 2. 14 Alan M. Lerner, “From Socrates to Damasio, from Langdell to Kandel: The Role of Emotion in Modern Legal Education,” in Affect and Legal Education, eds, Maharg and Maughan, 72. 15 Although there is considerable attention to legal education at the moment, most law school curricula are virtually unchanged from 19th century models: a standard first year curriculum, and lectures with exams being the primary mode of content delivery and evaluation. 16 The Canadian legal academy has been transformed in recent years by the work of the Federation of Law Societies of Canada and their initiative to adopt a new national competency profile as a standard for admission to the legal profession in Canada. A description of this initiative can be found here: “Federation Council Approves New National Competency Profile,” Federation News, October 21, 2012, last accessed August 7, 2019: http://​flsc​.ca/​federation​-council​-approves​-new​-national​-competency​ -profile/​. 17 The University of Victoria, like other institutions, has moved to institutionalizing learning outcomes for graduates, in an attempt to describe the knowledge or skills students should acquire by the end of a particular assignment, class, course, or program, and help students understand why that knowledge and those skills will be useful to them. Although the University of Victoria Law School has yet to articulate their learning outcomes, the general University guidelines have been published. See “University of Victoria Learning Outcomes,” University of Victoria, 2014, last accessed August 7, 2019: http://​web​ .uvic​.ca/​calendar2014​-09/​CAL/​TUofV/​. 18 The idea of moving from the standard three-year law degree to a two-year program has gained some popular current of late. See e.g., Barnum, Matt. “The Two Year Law Degree: A Great Idea That Will Never Come to Be.” Atlantic, Nov 12, 2013, last accessed August 7, 2019: http://​www​.theatlantic​ .com/​education/​archive/​2013/​11/​the​-two​-year​-law​-degree​-a​-great​-idea​-that​-will​-never​-come​-to​-be/​ 281341/​. 19 The new Bora Laskin Law School at Lakehead University has designed a curriculum that incorporates practice preparation in its three-year degree. Bora Laskin Faculty of Law, “The Curriculum,” last accessed August 7, 2019: https://​www​.lakeheadu​.ca/​programs/​departments/​law/​curriculum. 20 Maharg and Maughan, “Introduction,” 1. 12

”Whose body is this?” on the role of emotion in teaching and learning law  65 in Canadian law schools devalues emotion, the body, the subjective, the personal, the artistic in contrast with reason, the mind, the objective, and the neutral.21 And yet, the question that the legal actors in both Rodriguez and in the Court’s 2015 re-engagement with medical assistance in dying (Carter v. Canada22) were challenged to answer was about the impact on a human being of not being able to control the timing of their death in the face of intolerable suffering: a decision that is emotional, subjective, personal and deeply embodied. That said, it is not my aim, in the pages that follow, to argue that we need to be bringing a more emotional response to law, but rather to suggest that we need to see that emotions are “pervasive influences on human behaviour, and therefore essential for a full understanding of legal behavior and institutions.”23 To do so, I want to step back from the courtroom and ask how emotion could inform what we do in the classroom; in my view, a classroom without emotion is a boring, dangerous and gendered space.24 I will argue that an approach to legal education that sees emotion as integral to legal reasoning will create better lawyers; people who will approach the kind of questions asked in the Carter litigation with the humane professionalism they have been trained to employ. Carter and Rodriguez share a virtually identical factual situation—a woman with ALS seeking to end her life with assistance at the time of her choosing—and yet, the SCC came to completely opposite conclusions as to the constitutionality of s. 241(b) of the Criminal Code. There is much to be said on how they did that, with attention to the law on stare decisis,25 the change in our understanding of sections 7, 15 and 1,26 the Court’s deference to the trial judge’s findings of social, legislative and adjudicative facts,27 and how other jurisdictions now approach these very difficult end-of-life decisions. But another way to make sense of the reversal in outcome is the sea-change in how we understand the role of emotion in legal prac-

Harris and Shultz, “A(nother) Critique of Pure Reason,” 1775. Carter v. Canada, 2015 SCC 5. This decision of a unanimous Court came to the opposite conclusion from Rodriguez and giving the government of Canada one year to address the unconstitutionality of its provisions on physician-assisted death. 23 For the most part, I embrace Susan Bandes’ definition of emotion and law: 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 identify and assess the implicit and explicit assumptions about emotion that animate legal reasoning, legal norms, legal doctrine, the behavior of legal actors, and the structure of legal institutions. Susan A. Bandes, “Law and Emotion,” in International Encyclopedia of the Social and Behavioral Sciences (2d ed.), ed. James D. Wright (Oxford: Elsevier, 2015), 462. Thanks to Susan Bandes for sharing her author’s copy. 24 Harris and Shultz, “A(nother) Critique of Pure Reason,” 1781. 25 My thoughts on this issue were influenced by the work of Debra Parkes, presented at the April 2015 Halifax workshop. 26 Many guest speakers in my Constitutional Law class reinforced the significance of the decisions of Bedford and Carter on s. 7 in the 2014–2015 year including Katrina Pacey, Kerry Forth, Kyle Kirkup, Kasari Govender, Elin Sigurdson, Alison Latimer and Joe Arvay, QC. 27 For the significance of the judgments in Bedford and Carter on the question of evidence see Alan N. Young, “Proving a Violation: Rhetoric, Research and Remedy,” Supreme Court Law Review (2d ed.) 67 (2014) and Michelle Bloodworth, “A Fact is a Fact is a Fact: Stare Decisis and the Distinction between Adjudicative and Social Facts in Bedford and Carter,” National Justice of Constitutional Law 32 (2014): 193. 21 22

66  Research handbook on law and emotion tice and decision-making.28 The advocacy choice of the appellants in Carter, namely to put the “blood and excrement” of their witness on full display, enabled the Court to speak in one voice and give credence to the effect of the law on Gloria Taylor, Lee Carter, Hollis Johnson and many others, in a way that was not possible when the confluence of forces and factors could not effect change for Sue Rodriguez.29 My aim in this chapter is the following: first, spend some time with the theory underlying law and emotions scholarship, with an eye to teasing out what this evocative body of literature offers to those of us working with law students; second, situate that literature in the story of the journey from Rodriguez to Carter where law and emotion was, or should have been, engaged; and finally, focus my attention on the law school classroom. I will argue that by paying attention to affect in legal education we will graduate people more attuned to their responsibilities as humane professionals. There is extraordinary power, privilege and responsibility that rests on the shoulders of students completing legal education in Canada today.30 Drawing inspiration from the law and emotions scholarship, legal educators can offer more opportunities for students to deepen what it means to “think like a lawyer” and do law better as a result.31

EMOTION PERVADES THE LAW32 Abandonment of the rules produces monsters; so does neglect of persons.33

For all of us who have thought about, or engaged with, feminist legal theories, critical legal studies, critical race theories, queer theories, Indigenous laws, or other approaches skeptical of the metanarrative, it is abundantly apparent that this mainstream notion of law “greatly overstates both the demarcation between reason and emotion, [but also] the possibility of keeping reasoning processes free of emotional variables.”34 The conventional story is that “emotion has

28 My thoughts on this question were affected by Joanna Erdman’s presentation at the April 2015 Halifax workshop. See also Carol Sanger, “The Role and Reality of Emotions in Law,” William and Mary Journal of Women and the Law 8, no. 1 (2001): 109. 29 This discussion of strategy came from Alison Latimer and Joseph Arvay, QC. Monday, February 25, 2015 in a guest lecture at University of Victoria Law School. 30 See, e.g., “Educating Lawyers,” in Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), 168, last accessed August 7, 2019: http://​www​.trc​.ca/​assets/​pdf/​Honouring​_the​_Truth​_Reconciling​_for​_the​_Future​_July​ _23​_2015​.pdf. 31 On the University of Victoria Faculty of Law Juris Doctor degree the diploma says, “with all the rights, privileges, duties and responsibilities of this degree.” In the words of graduating student Rebecca Gill, “this language isn’t just about obtaining some benefit from schooling, but also suggests a deeper purpose … rather than thinking of education where students are vessels to be filled, education is an avenue for change – I remember remarking with classmates how it was great that this wording was on the degree but also questioning whether or not the responsibility or duty aspects were something that we had the opportunity to fully engage with in law school.” Conversation between the author and Rebecca Gill (June 21, 2015). 32 Susan Bandes, “Introduction,” in The Passions of Law, ed. Susan Bandes (New York: New York University Press, 2001), 1–2. 33 Lynne N. Henderson “Legality and Empathy,” Michigan Law Review 85, no. 7 (1987): 1574. 34 Bandes, “Introduction,” at 7. See also Renata Grossi, “Understanding Law and Emotion,” Emotion Review 7, no. 1 (2015): 56.

”Whose body is this?” on the role of emotion in teaching and learning law  67 a certain, narrowly defined place in law” that is assigned to those without legal training.35 And, for the most part, we model our teaching to match the premise that “that laws can be applied mechanically, inexorably, without human fallibility” free from the parameters of “unrestrained emotion.”36 Law and emotions scholarship, however, gives us a means through which to challenge this notion and highlight that emotion in concert with cognition leads to a truer perception and ultimately to better, more accurate, more just decisions.37 The work in this area is diverse: on disgust, vengeance, remorse, anger, love, bitterness, unease, fear, resentment, cowardice, forgiveness, hate, shame, mercy, desire and more.38 Emotion, as employed in this body of literature39 provides guidance to individuals and decision-makers for learning both the social and the legal rules at play in any given situation.40 According to Abrams and Keren, however, “legal thought requires an understanding of emotions not simply as defects of rationality, but also as a distinctive mode of apprehending and navigating the world around us.” I argue it also demands hope. Thus, cases like the claim of the litigants in Carter, are exactly the questions of law where emotion is most significant, and its intersection with reason offers a unique insight that should be most carefully considered. When legal actors face problems with both legal and non-legal dimensions—like how to negotiate the impact of the Criminal Code on terminally ill people who seek assistance to end their lives—they need tools beyond the merely rational.41 But advocates will not be able to come to satisfying conclusions if they are not trained to address questions of how liberty, democracy, dignity, and equality discount emotion. Kathryn Abrams argues that failing to acknowledge the role of emotion in popular constitutionalism throughout North America carries the risk of “having a court system, and a body of doctrine, that is isolated from and unaccountable to the people who live under it.”42 The following three insights from law and emotions scholarship allow us to better understand law as a vehicle for society’s collective response to what would otherwise be set aside as “moral” issues. Interpretive Aid First, emotion is a mechanism for interpretation. People who work in the cognitive sciences assert that emotion helps sort, assess, highlight and prioritize information.43 Law’s actors use emotion to “screen, categorize and interpret information; influence our evaluations of the

Bandes, “Introduction,” 1–2. Harris and Shultz, “A(nother) Critique of Pure Reason,” 1778. 37 Terry A. Maroney, “Law and Emotion: A Proposed Taxonomy of an Emerging Field,” Law and Human Behavior 30 (2006): 122. 38 See discussion of original sources in Bandes, “Introduction,” 2. 39 Bandes, “Law and Emotion,” 461. 40 Brian H. Bornstein and Richard L. Weiner, “Emotion and the Law: A Field Whose Time has Come,” in Emotions and the Law: Psychological Perspectives, eds, Brian H. Bornstein and Richard L. Weiner (New York: Springer, 2010), 4. 41 Kathryn Abrams and Hila Keren, “Who’s Afraid of Law and the Emotions?” Minnesota Law Review 94 (2010): 2074. 42 Kathryn Abrams, “Exploring the Affective Constitution,” Case Western Reserve Law Review 59 (2008): 596. 43 Bandes and Blumenthal, “Emotion and the Law,” 166. 35 36

68  Research handbook on law and emotion intentions or credibility of others; and help us decide what is important or valuable.”44 As Abrams and Keren argue, emotion can be the means through which unnoticed assumptions are illuminated, or how we direct attention to norms, commitments and inherent values that are otherwise ignored.45 While legal doctrine often rests on “unexamined or demonstrably faulty assumptions about emotion and its effects on human behaviour,”46 emotions actually enrich decision-making processes because “they direct attention to particular dimensions of a case or shape decision-makers’ ability to understand the perspective of, or the stakes of a decision for, a particular party.”47 Thus, if we seek to train legal advocates to see themselves as problem-solvers, then it is essential to enable them to draw on the emotional as well as the rational. Emotion and Reason as Inseparable Second, the dichotomy of reason and emotion is no longer tenable. So while there are still many working within the law who would want law to “steer clear of emotions altogether and to insist that sound legal principles be enunciations of pure reason and nothing more”,48 the “separation of reason and emotion, and the elevation of reason over emotion, is both artificial and detrimental to the quality of legal thought in the classroom.”49 As Martha Minow and Elizabeth Spelman write, “there are no human subjects in sentences describing the dialogue between reason and passion.”50 So, to return to the notion of “thinking like a lawyer”, emotion will inevitably and rightly be part of the human response.51 Indeed, looking at the decision in Carter in light of Rodriguez by thinking about how lawyers are trained demonstrates that we must rethink what it means to reason. The lawyers in Carter made the decision to adduce ample evidence about the concrete, physical and emotional impacts of this law on a diversity of people living with unbearable suffering.52 The stories were thick, numerous and resonating with the reality of a range of disabilities and illnesses. Both to show, with attention to bodies, the injustice of the current law and what the new law needed to include. I would argue that to train students to be willing to put, with care and respect, the full factual matrix before courts and legislators, as the lawyers for the appellant in Carter did, we have to aim at least in part, to replace the dominant pedagogy with one that sees reason and emotion not as mutually exclusive, but as complements in the search for truth.53

Bandes and Blumenthal, “Emotion and the Law,” 165. Abrams and Keren, “Who’s Afraid of Law and the Emotions?” 2000, 2004. 46 Bandes and Blumenthal, “Emotion and the Law,” 174. 47 Abrams and Keren, “Who’s Afraid of Law and the Emotions?” 2004. 48 Hilliard Aronovitch, “The Role of Emotions in the Rule of Law,” University of Toronto Law Journal 57 (2007): 783. 49 Harris and Shultz, “A(nother) Critique of Pure Reason,” 1805. 50 Martha L. Minow and Elizabeth V. Spelman, “Passion for Justice,” Cardozo Law Review 10, no. 3 (1988): 37. This article is a response to the speech given by Justice Brennan on the career of Justice Cardozo and the questions of how passion and reason align in judgment, William J. Brennan, Jr., “Reason, Passion and the Progress of the Law,” Cardozo Law Review 10, no. 3 (1988) . 51 Minow and Spelman, “Passion for Justice,” 39. 52 For a discussion of the evidence in Carter, see, e.g., Alison Latimer, “Constitutional Conversations,” Supreme Court Law Review (2d ed.) 22 (2019): 235–6. 53 Harris and Shultz, “A(nother) Critique of Pure Reason,” 1786. 44 45

”Whose body is this?” on the role of emotion in teaching and learning law  69 Humane Professionalism Third, engagement with emotion can serve to temper the sterile, detached voice of “traditional” legal analysis, making it both more humane and more accessible.54 As Abrams and Keren argue, “law and emotions scholarship is not simply a challenge to legal rationality, but an appreciation of the vital role of the emotions in human life and in the life of the law.”55 A decision like Carter, for example also has profound implications for people living with disabilities in Canada today, and how their lives are lived and valued. Where, as here, the decision is something as critical as how to negotiate the end of life in the face of an intolerable, irremediable illness given the machinations of the Criminal Code, it becomes essential that everyone involved in the process of a legal action are not employing only one dimension of cognition; affect, reason, empathy, morality are all at play. Things become a bit tricky, of course, with the assumption that lawyers can do this work despite not being admitted into law schools (generally speaking) on the basis of their capacities as full human beings, and not being trained, while at law school, to think with or use their emotions.56 Again, without seeing the value of emotion to rationality little can change. But law school teaching can. As stated by Julian Webb, “law school should be a place that encourages genuinely moral thought and the capacity for moral action that underpins a humane professionalism.”57 I argue that teaching students to use the law to improve people’s affective lives will, in the process, also “make law more human.”58

SITUATING EMOTION FROM RODRIGUEZ TO CARTER: “WHAT I FEAR IS A DEATH THAT NEGATES, AS OPPOSED TO CONCLUDES, MY LIFE.”59 [In Canada,] people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.60

The first paragraph of the SCC’s judgment in Carter tells it all; the choices Gloria Taylor and Kay Carter faced were cruel choices; not the kind of choices that make sense in this particular free and democratic society.61 The groundwork was laid at trial,62 and one reading of the judg My thanks to Matt Palmer for helping me to clarify this argument. Abrams and Keren, “Who’s Afraid of Law and the Emotions,” 2073. 56 Maroney, “A Proposed Taxonomy of an Emerging Field,” 121. In Canada, generally speaking, students are admitted to law school on the basis of their undergraduate grade point averages and their scores on the Law School Admission Test (the “LSAT”) a standardized test. While capturing some predictors of the likelihood of success at law school, these criteria are not a full measure of emotional maturity. 57 Julian Webb, “The Body in (E)motion: Thinking Through Embodiment in Legal Education,” in Affect and Legal Education, eds. Maharg and Maughan, 224. 58 Abrams and Keren, “Who’s Afraid of Law and the Emotions,” 2000. 59 Gloria Taylor, Carter, para. 12. 60 Carter, para. 1. 61 Carter, para 1. 62 Justice Lynn Smith laid the groundwork for the SCC extensively and thoroughly at trial. See Carter v. Canada, 2012 BCSC 886, summarized at paras 1–21. 54 55

70  Research handbook on law and emotion ment at the SCC level is that it is primarily a judgment of “we agree” and it is unnecessary to decide further. But it is also a decision where both the key women whose stories rest at the heart of the judgment died before the judgment was rendered, so for whom there will be no meaningful outcome. And yet, the Court goes on to treat their stories with dignity, to stand up in the face of stare decisis and a view of principles of fundamental justice that is profoundly shifted.63 The Court gives a courageous, unprecedented, and emotional judgment that reverses the law. The story of Sue Rodriguez was equally compelling. Her suffering and her individuality had considerable effect on the Canadian public in the early 1990s,64 and on many of the advocates and judges she met along the way.65 But in the end, though evidence in her case was her story and the story of her doctor, it didn’t outweigh that the protection of the vulnerable was of greater importance. Ultimately, the majority said that “human life must be respected and that we must be careful not to undermine the institutions that protect it.”66 Ultimately, I argue, it wasn’t until the evidence adduced before the B.C. Supreme Court in Carter, the choices made by the parties to ensure that the palpable story of what it means to live with unbearable suffering was part of the record, that we begin to see what practicing law with emotion might mean. Still, the judgment in Carter does not go far enough to pay due attention to affect. Where courage is called for, and where the story demands, the judgment is eloquent, messy and achingly human.67 But where the law is clear and settled, the Court falls back on the rhetoric of reason, on precedent, on trope.68 The less contested the analysis becomes, the less affect-riddled is the language of the judgment. And there is silence on the question of what intolerable suffering means, and in particular, what it means to people who live with disabilities.69 The judgment represents a profound shift —justice is found not solely on reason alone—and yet there is still a long way to go.

The groundwork for Carter was put in place by the profound judgment of the Supreme Court of Canada in Bedford. Jennifer Koshan’s read of Bedford has influenced my thoughts. Jennifer Kosha, “Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision,” ABlawg.ca (University of Calgary Faculty of Law, December 24, 2013), last accessed August 7, 2019: http://​ablawg​ .ca/​2013/​12/​24/​teaching​-bedford​-reflections​-on​-the​-supreme​-courts​-most​-recent​-charter​-decision/​. Jurisprudence on s. 15 and s. 1 has also evolved greatly since Andrews v. The Law Society of British Columbia, [1989] 1 SCR 143 and R. v. Oakes, [1986] 1 SCR 103. 64 Sue Rodriguez became a national figure through the way her story was told on the nightly news during the time her case travelled through the courts. 65 Resources developed by the Ontario Justice Education Network contain interviews with Justices Cory and Iacobucci of the SCC who sat on the Rodriguez case, discussing the role that human dignity played in their work as judges deciding that case. See “Judicial Interpretation of Section 15,” (Ontario Justice Education Network, 2015) last accessed August 7, 2019: http://​ojen​.ca/​wp​-content/​uploads/​4​.​ -Judicial​-Interpretation​-of​-Section​-15​.pdf. 66 Rodriguez. 67 This is most apparent in their articulation of the background. Carter at paras 5–18. 68 Examples of this, I would argue are the s. 1 analysis, Carter at paras 94–123 and the remedy, Carter at paras 128–132. 69 Although widely acclaimed as a profound and timely change in the law, the judgment was criticized by critical disability scholars primarily for the message it sends to people living with disabilities that their lives are less valued or less worthy. Although there is dissension on the issue in disability communities, a strong articulation of the argument can be found in the press release of the Council of Canadians with Disabilities. Council of Canadians with Disabilities, “Commentary on SCC Assisted 63

”Whose body is this?” on the role of emotion in teaching and learning law  71 But judges can only work with what is put before them. Thus, my critique is not of the judges whose decisions I might fault, nor of the lawyers, some who chose to tell the story of Gloria Taylor and Kay Carter in embodied ways, and some who did not, but of legal educators. We as legal educators need to understand ourselves, the role of affect, and to teach our students that empathetic narrative can and should be an influential part of legal discourse.70 So, let me turn finally to the role that affect should play in legal education.

AFFECT IN LEGAL EDUCATION: THE BODY IN (E)MOTION71 If we want our law students to make the most of their cognitive powers, we need to help them understand the power of their emotional minds.72

When strong emotions are considered inappropriate, participants in an intellectual exchange may miss the places where they need to think more deeply.73 Because emotion is a key site of investigation,74 “the key to breaking the traditional alienation between law and emotions is to be found in deepening the familiarity of legal actors with emotions.”75 To do so, we need to return to the classroom and challenge the ways that affect is being taken into account in the learning process. How could law be experienced differently if those who work with it are trained to think with emotion, with moral intuition and with imagination?76 Looking at the role that affect should play in legal education helps answer that question.77 The following four points articulate what the key goals of (somatic) legal education could/should be. First, teaching with emotion should enable the students to see differently. As Zenon Bańkowski, Maksymilian Del Mar and Paul Maharg write in arguing for a shift in legal education through resources that move beyond text: an exclusive focus [on textual resources] can be restrictive in that it can result in law students and legal professionals never acquiring the skill of coming to see and recognize the ethical complexity of any given situation; it puts at risk their ability to overcome the limitation of the categories with which they are working … Coping with this limit requires the exercise of the (ethical) imagination.78

Suicide Judgment in Carter v. Canada – Key Concerns,” (February 6, 2015), last accessed August 7, 2019: http://​www​.ccdonline​.ca/​en/​humanrights/​endoflife/​media​-release​-key​-concerns​-6Feb2015. 70 Henderson, “Legality and Empathy,” 1650. 71 Webb, “The Body in Emotion,” 211. 72 Maharg and Maughan, “Introduction,” 8. 73 Harris and Shultz, “A(nother) Critique of Pure Reason,” 1773, 1774. 74 Shari Stenberg, “Teaching and (Re)learning the Rhetoric of Emotion,” Pedagogy 11, no. 2 (2011): 349. 75 Abrams and Keren, “Who’s Afraid of Law and the Emotions,” 2048. 76 Doni Gewirtzman, “Our Founding Feelings: Commitment and Imagination in Constitutional Culture,” University of Richmond Law Review 43 (2009): 641. 77 For an important discussion of how the concept of “affect” is used in legal discourses see Ruth Buchanan and Rebecca Johnson, “Strange Encounters: Exploring Law and Film in the Affective Register,” in Studies in Law, Politics and Society (Studies in Law, Politics and Society, Volume 46), ed. Austin Sarat (Bingley: Emerald Group Publishing Limited, 2008); Rebecca Johnson, “Living Deadwood: Imagination, Affect, and the Persistence of the Past,” Suffolk University Law Review 42 (2009): 809. 78 The Arts and the Legal Academy: Beyond Text in Legal Education, (London: Ashgate, 2013), 2.

72  Research handbook on law and emotion Idealized, Aristotelian justice embodies reason, wisdom and compassion. Allowing emotion into the law school classroom offers the potential for “insights and transformations that arise from new ways of perceiving and knowing, infusing rationality with emotion gives meaning and value to logical analysis.”79 Second, understanding affective responses can support stronger problem-solving skills. In a lawyer’s toolkit, analysis is critical, but so are: planning, communicating, information-gathering, counseling, negotiation, conflict resolution, mediation, assessing the emotion of others, advocacy in dispute resolution, selling a jury, framing a storyline, etc.80 And yet, rather than developing skills that will enable students to work with the diversity of issues that arise in a legal problem, law school often focuses on evaluating the ability of students to identify issues. A different kind of pedagogy is necessary in order to get students to see the connections between what they are learning, to recognize the interconnections to other areas of law, to see a problem for its messiness, to enable them to see that both emotion and cognition significantly impact human decision-making, especially decisions where social and moral questions abide.81 Thirdly, learning that generates or amplifies an affective response is more likely to engender deep-learning.82 Without engaging more of their senses in learning, students are likely only to learn explicitly and on the surface.83 Reasoning depends on emotion, and the kind of deep understanding necessary for conflict resolution is more likely to come about in an approach to pedagogy that engages the students in humane ways.84 We have to train our students to entertain possibilities that we ourselves had not considered. And we must be willing to push our methodological boundaries to get there. And fourthly, engaging with the complex relationship between emotions and law can help foster and maintain the students’ passion throughout law school. As Graham Ferris and Rebecca Huxley-Binns argue, what we care about determines both what we do and how we feel about it.85 By integrating diverse pedagogies that encourage students to engage with each other and the legal materials on an affective level, we can help nurture and sustain the passion that brought them to law in the first place. As Julian Webb notes, “it is fostering and maintaining that connection to another human being [that is] essential if we are to enable students to understand that law schools are not just places to play with rules.”86 By ensuring that legal education isn’t just about what we know, but also how we feel about what we know, we can help our students stay passionate about the field throughout their law school journey.87

Harris and Shultz, “A(nother) Critique of Pure Reason,” 1788. Alan M. Lerner, “From Socrates to Damasio,” 162. 81 For a critical reflection on problem-based learning: Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts,” Journal of Professional Legal Education 16, no. 2 (1998) and Shirley Lung, “The Problem Method: No Simple Solution,” Williamette Law Review 24, no. 4 (2009) with thanks to Ruthann Robson. See also Maughan, “Why Study Emotion?,” 29. 82 Webb, “The Body in Emotion,” 223. 83 Alan M. Lerner, “From Socrates to Damasio,” 165. 84 Webb, “The Body in Emotion,” 214. 85 Graham Ferris and Rebecca Huxley-Binns, “What Students Care About and Why We Should Care,” in Affect and Legal Education, eds, Maharg and Maughan, 208. 86 Webb, “The Body in Emotion,” 223. 87 My thanks to Matt Palmer for his insights on this argument. 79 80

”Whose body is this?” on the role of emotion in teaching and learning law  73

STRATEGIES FOR CHANGE IN PEDAGOGY To this point, I have argued that teaching affect would benefit our future legal advocates, and through them law itself. To get here I have set out some insights as to why teaching medical assistance in dying with emotion is beneficial and by showing where affect has or should have played a role in the journey from Rodriguez to Carter. In particular, looking at how the context that surrounded the litigants and their stories, was before all levels of court. I now conclude, by re-articulating the goals of legal education to consider how affect would benefit our students, and by providing three strategies for how to make the pedagogical shift to a somatic legal education. Creativity and Imagination The reality of law in Canada today is that difficult decisions about end-of-life care are made in many different locations. At kitchen tables, at bedsides, in legislative drafting rooms but also, whether the public accepts it or not, in courthouses. As educators, then, we need to remember that law students are on the path to much power in our society, and that only law students become judges.88 For the most part, however, we do not do a good job at law school developing the capacity of students for empathy, creativity and imagination. These skills, I argue, are all capacities that are critical for the exploration of legal concepts. And, in this context to help judges, decision-makers and legislators truly understand the significance of end of life decision-making for people with intolerable pain.89 Maksymilian Del Mar argues we need to use a varied array of pedagogies, in order to encourage students to engage their senses through art and literature and push them to create imaginative works.90 Some of the most amazing learning I have seen happen in the classroom was when students were given the opportunity to turn to the literary, the dramatic, to creative arts and other means of problem-based learning.91 In using a play-reading to teach law, for example, students reflected that “by empathizing through imagined experience, [we came to understand] the law’s real effect on real human lives.”92 Indeed, it is this type of creativity that gets us from Rodriguez to Carter. In a famous essay on reason, passion and the progress of law in the work of American Supreme Court Justice Cardozo, Justice William J. Brennan, Jr. writes that a healthy and vital rationality requires attention to human experience, emotion and passion.93 Decision-making inevitably requires assessing dignity and fairness, a process that cannot be done on reason

88 I am grateful to David Gill for this insight, albeit in the context of a challenge to the admissions policy at Trinity Western University Law School. 89 Maharg and Maughan, “Introduction,” 5. 90 Maksymilian Del Mar, “Legal Understanding and the Affective Imagination,” in Affect and Legal Education, eds, Maharg and Maughan, 189. 91 I have published on two different experiences with using a play-reading as pedagogy in a law school seminar. See: Gillian Calder “The Cultural and Economic Injustices of Marriage Discrimination: A Review of Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave Macmillan, 2013),” Canadian Journal of Family Law 28 (2013) and Gillian Calder “Guantanamo: Using a Play-Reading to Teach Law,” Canadian Theatre Review 142 (2010). 92 Calder, “Guantanamo,” 47. 93 Justice William J. Brennan, Jr., “Reason, Passion and the Progress of the Law,” 5, 9.

74  Research handbook on law and emotion alone. Our obligation to students includes creating opportunities to train their ethical imaginations which will, in turn, enable them to draw more on their complex experiences and capacities, to see affect as critical to imagination.94 We also have an obligation to use teaching methods that are more responsive to the great variety of ways in which our students learn. Abstract, rational, unadulterated thought is not the way most people make sense of their world.95 Thus, teaching with emotion isn’t just about pedagogy, it is also about enabling students to have access to all the skills that they will need to be creative problem-solvers, whatever role they go on to play with their legal education. But as Julian Webb asserts, “if legal education is to be transformative, it needs to be about the imaginative creation of possible worlds of law and justice.”96 By creating more spaces for creativity and imagination in our classrooms, we can better expose students to the affective aspects of legal issues and model how to bring together the senses, emotion and the intellect in more creative and empathic legal analysis.97 Embodiment A second way to achieve these novel goals is to embrace learning as an embodied process. We tend to assume that the world can be explained absent the body and yet, there is, in fact, no law that is not inscribed on bodies.98 Medical assistance in dying is about bodies, for example, but we rarely ask our students to put their bodies into learning law.99 As Webb argues, “a focus on the embodied person can expose the ways in which law is partial and unequal in its treatment of those who do not fit its mythic, ideal type of the rational able bodied male” and in the process move students “from simply knowing about the law in an intellectual way to actively caring about what they are learning and its consequences.”100 Of course, the notion of the body in law is complicated by the challenges of embodiment, and the lived diversity of people’s bodies. In family law, the only way I have ever been able to teach domestic violence in a way that meaningfully engages with the lived realities of violence as written onto the bodies of women, is to use forum theatre: to ask a group of students to enact a scripted text, and then to ask the remainder of the class as bystanders, to attempt to disrupt their discomfort and the violence enacted before them by interrupting the play and changing the story.101 As Webb concludes, taking emotion seriously “obliges us to address far more concretely the role of the body as a critical site of and context for learning; or … to acknowledge that learning law is an actively embodied process.”102 Using a diversity of sources can create more

Maharg and Maughan, “Introduction,” 5. Caroline Maughan, “Why Study Emotion?” 28. 96 Webb, “The Body in Emotion,” 224. 97 Del Mar, “Legal Understanding and the Affective Imagination,” 191. 98 Webb, “The Body in Emotion,” 220. 99 Gillian Calder, “Performance, Pedagogy and Law: Theatre of the Oppressed in the Law School Classroom,” in The Moral Imagination and the Legal Life, eds, Zenon Bańkowski and Maksymilian Del Mar (Surrey: Ashgate, 2013), 217. 100 Webb, “The Body in Emotion,” 222. 101 For an account of how forum theatre has been used in the law school classroom see Calder, “Performance, Pedagogy and Law.” 102 Webb, “The Body in Emotion,” 214. 94 95

”Whose body is this?” on the role of emotion in teaching and learning law  75 opportunities for experiential education, risk-taking and deep-learning. Simultaneously, it can make learning law more meaningful, more engaging, more humane, and even more fun.103 Diversity and Inclusion Once we attend to affect and to the body, the third strategy is to confront the vast multiplicity of humanity that they bring to light.104 With different bodies also come different experiences of emotion.105 There is no normative affective response in any context. If the faculties and student bodies of law schools were diverse and inclusive, then every judge would have had long experience in exercising judgment, through the process of trying to persuade in imagination and in actual dialogue people from a variety of backgrounds and experience.106 Therefore, as teachers charged with generating the lawyers of tomorrow “we must learn to welcome not only the disruption of our concepts, but the reconfiguration of the norms of discourse in journals, classrooms and faculty meetings that come with full diversity.”107 I argue that by teaching students to reason using explicit engagement with emotion, we are also working to make visible the inherent diversity that exists in law. We owe this to our students and to ourselves.

CONCLUSION: TRAINING CREATIVE, IMAGINATIVE PROBLEM-SOLVERS In the 2014–2015 academic year, I made a pedagogical shift to focus on enabling deep-learning, providing opportunities for students to embed their learning in myriad ways with a complicated moral, ethical, political, economic, social and multi-legal problem.108 As a result, the classroom transformed into a more flexible and open space where students could engage with and be part of the conversation that ensued when the new decision in Carter v. Canada was rendered by the Court.109 My students had worked all year with the “problem of prostitution;” beginning in September with the Canada v Bedford decision,110 the landmark 2013 decision of the Supreme Court of Canada striking down three provisions of the Criminal Code of Canada

Webb, “The Body in Emotion,” 228. Jennifer Nedelsky, “Embodied Diversity and the Challenges to Law,” McGill Law Journal 42 (1997): 95. 105 Thanks to Matt Palmer for challenge on this issue. 106 Nedelsky, “Embodied Diversity and the Challenges to Law,” 107. 107 Nedelsky, “Embodied Diversity and the Challenges to Law,” 98. 108 Two articles that have been influential on my thought are: Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts,” and Shirley Lung, “The Problem Method: No Simple Solution.” 109 Constitutional Law is a first year, full-year course at University of Victoria Law. In 2014–2015, the methodology of the course was shifted to centre the “problem of prostitution.” The course gave the 54 students an opportunity to learn the key principles of Canadian constitutional law through the lens of this challenging, complex and interdisciplinary issue. A new SCC decision on prostitution, Canada v. Bedford, 2013 SCC 72 and a legislated response from the federal government, Bill C-36 provided the context for studying the jurisdictional, colonial, and rights-based dimensions of constitutional law, as well as the means through which to alter the evaluation to one that centred collaboration, creativity, and problem-solving. 110 Canada v. Bedford, Bill C-36. 103 104

76  Research handbook on law and emotion that violated the constitutional rights of sex workers to security of the person. So, even before they were introduced to the Charter, the principles of law set out in Bedford—the ones that laid the ground for Carter—were familiar to them. But there had also been guest speakers, small group and full class exercises; there had been movement exercises, graphic novels, Lego, rap111 and story-telling.112 They had been pushed to think about whether the sex trade was work or crime, and to make their arguments using the medium that best fitted, whatever that medium might be.113 The result of these non-conventional learning disruptions was that students had a very different affective response to the methods used to teach physician-assisted dying.114 When Alison Latimer and Joe Arvay, QC counsel for the appellants in Carter came to talk about the judgment to our class, I have never been in a more attentive or electric classroom. And further, when the room went dark and Sue Rodriguez appeared before them on the large screen, they were ready to listen with more than just their auditory senses. More importantly, they were moved to put what they learned into action. Through this shift, I was also able to do something in teaching section 7 that I had not intended: to model the role that emotion plays in what it means to “think like a lawyer”115 way beyond the story of my dad. To ignore or denigrate emotional and value laden considerations in legal education does our students and the clients and communities they will serve as lawyers, a disservice.116 When teaching the Constitution, for example, we must acknowledge that society’s values are embedded in its written and unwritten principles and that the decisions there are the result of justices who draw on their emotion and experience as well as their intellect in reaching their conclusions.117 If we accomplish an approach to teaching law that weaves emotion and reason throughout, decisions like Carter will be the norm, not the exception, and they will happen not just in the grand courtroom of the SCC, but wherever people are called upon to engage with law and law’s power. And they will not alienate, or leave without remedy, those who need the support of the law the most.

One of the students in my Constitutional Law class performed his final exam at the annual “Skit Night.” The performance can be found here: last accessed August 7, 2019: https://​www​.youtube​.com/​ watch​?v​=​89c5anzW6ME​&​list​=​PLKr​JJAoXPJpAo​265BuqPU9X​2VfZ966SRg​&​index​=​11​&​t​=​0s. 112 Maksymilian Del Mar makes a compelling argument for this kind of pedagogy, although with little reference to evaluation, “Legal Understanding and the Affective Imagination,” 189–91. 113 Harris and Shultz argue that “the ideal of acknowledging and examining emotions in the classroom may be hard to achieve until a certain level of safety and trust has already been established” Harris and Shultz, “A(nother) Critique of Pure Reason,” 1803. That was my experience. 114 We were very fortunate to have counsel for the appellants in Carter come to our class to talk about their conduct of the case. Given the engagement the students had with the story of Bedford, they were deeply moved by the many layered evidentiary and legal strategy put in place to affect the judgment. And they were also positioned to respond to the critiques that the lawyers carried of the judgment, even given the huge positive result. 115 Popular awareness of this phrase is mostly credited to the 1973 20th Century Fox film The Paper Chase. For a discussion of the origins of “thinking like a lawyer” see: Larry O. Natt Gantt, II, “Deconstructing Thinking Like a Lawyer: Analyzing the Cognitive Components of the Analytical Mind,” Campbell Law Review 29 (2007). 116 Alan M. Lerner, “From Socrates to Damasio,” 152. 117 Alan M. Lerner, “From Socrates to Damasio,” 158. 111

”Whose body is this?” on the role of emotion in teaching and learning law  77

REFERENCES Abrams, Kathryn and Hila Keren. “Who’s Afraid of Law and the Emotions?” Minnesota Law Review 94 (2010): 1997–2074. Abrams, Kathryn. “Exploring the Affective Constitution.” Case Western Reserve Law Review 59 (2008): 571–96. Aronovitch, Hilliard. “The Role of Emotions in the Rule of Law.” University of Toronto Law Journal 57 (2007): 781–94. Bandes, Susan. “Introduction.” In The Passions of Law, edited by Susan Bandes, 1–15. New York: New York University Press, 2001. Bandes, Susan A. “Law and Emotion.” In International Encyclopedia of the Social and Behavioral Sciences, Second Edition, edited by James D. Wright, 461–7. Oxford: Elsevier, 2015. Bandes, Susan A. and Jeremy A. Blumenthal. “Emotion and the Law.” Annual Review of Law and Social Science 8 (2012): 161–81. Bańkowski, Zenon, Maksymilian Del Mar and Paul Maharg, eds. The Arts and the Legal Academy: Beyond Text in Legal Education. London: Ashgate, 2013. Barnum, Matt. “The Two Year Law Degree: A Great Idea That Will Never Come to Be.” http://​www​ .theatlantic​.com/​education/​archive/​2013/​11/​the​-two​-year​-law​-degree​-a​-great​-idea​-that​-will​-never​ -come​-to​-be/​281341/​. Bloodworth, Michelle. “A Fact is a Fact is a Fact: Stare Decisis and the Distinction between Adjudicative and Social Facts in Bedford and Carter.” National Justice of Constitutional Law 32 (2014): 193–211. Bora Laskin Faculty of Law. Accessed August 7, 2019. https://​ www​ .lakeheadu​ .ca/​ academics/​ departments/​law/​ipc. Bornstein, Brian H. and Richard L. Weiner, “Emotion and the Law: A Field Whose Time has Come.” In Emotions and the Law: Psychological Perspectives, edited by Brian H. Bornstein and Richard L. Weiner, 1–12. New York: Springer, 2010. Brennan, Jr., William J. “Reason, Passion and the Progress of the Law.” Cardozo Law. Review 10, no. 3 (1988): 3–23. Buchanan, Ruth and Rebecca Johnson. “Strange Encounters: Exploring Law and Film in the Affective Register.” In Studies in Law, Politics and Society (Studies in Law, Politics and Society, Volume 46), edited by Austin Sarat, 33–60. Bingley: Emerald Group Publishing Ltd, 2008. Calder, Gillian “The Cultural and Economic Injustices of Marriage Discrimination: A Review of Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave Macmillan, 2013).” Canadian Journal of Family Law 28 (2013): 113–34. Calder, Gillian. “Guantanamo: Using a Play-Reading to Teach Law.” Canadian Theatre Review 142 (2010): 44–9. Calder, Gillian. “Performance, Pedagogy and Law: Theatre of the Oppressed in the Law School Classroom.” In The Moral Imagination and the Legal Life, edited by Zenon Bańkowski and Maksymilian Del Mar, 215–54. Surrey: Ashgate, 2013. Canada v Bedford, 2013 SCC 72. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Carter v. Canada, 2012 BCSC 886. Carter v. Canada, 2015 SCC 5. Council of Canadians with Disabilities. “Commentary on SCC Assisted Suicide Judgment in Carter v. Canada – Key Concerns.” http://​www​.ccdonline​.ca/​en/​humanrights/​endoflife/​media​-release​-key​ -concerns​-6Feb2015. Criminal Code of Canada, s. 241(b). Del Mar, Maksymilian. “Legal Understanding and the Affective Imagination.” in Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Paul Maharg and Caroline Maughan (Surrey: Ashgate, 2011), 177–94 at 189. Federation of Law Societies of Canada. “Federation Council Approves New Competency Profile.” http://​ flsc​.ca/​federation​-council​-approves​-new​-national​-competency​-profile/​.

78  Research handbook on law and emotion Ferris, Graham and Rebecca Huxley-Binns. “What Students Care About and Why We Should Care.” In Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Paul Maharg and Caroline Maughan, 195–210. Surrey: Ashgate, 2011. Gewirtzman, Doni. “Our Founding Feelings: Commitment and Imagination in Constitutional Culture.” University of Richmond Law Review 43 (2009): 623–83. Grossi, Renata. “Understanding Law and Emotion.” Emotion Review 7, no. 1 (2015): 55–60. Harris, Angela P. and Marjorie M. Shultz. “A(nother) Critique of Pure Reason: Toward Civic Virtue in Legal Education.” Stanford Law Review 45 (1993): 1773–805. Henderson, Lynne N. “Legality and Empathy.” Michigan Law Review 85, no. 7 (1987): 1574–653. Johnson, Rebecca. “Living Deadwood: Imagination, Affect, and the Persistence of the Past.” Suffolk University Law Review 42 (2009): 809–28. Juergens, Ann. “Practicing What we Teach: The Importance of Emotion and Community Connection in Law Work and Law Teaching.” Clinical Law Review 11 (2005): 901–12. Koshan, Jennifer. “Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision. http://​ablawg​.ca/​2013/​12/​24/​teaching​-bedford​-reflections​-on​-the​-supreme​-courts​-most​ -recent​-charter​-decision/​. Latimer, Alison. “Constitutional Conversations.” Supreme Court Law Review (2d) 22 (2019): 231–48. Lerner, Alan M. “From Socrates to Damasio, from Langdell to Kandel: The Role of Emotion in Modern Legal Education.” In Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Paul Maharg and Caroline Maughan, 151–76. Surrey: Ashgate, 2011. Lung, Shirley. “The Problem Method: No Simple Solution,” Williamette Law Review 24, no. 4 (2009): 723–66. Macfarlane, Julie and John Manwaring. “Using Problem-Based Learning to Teach First Year Contracts.” Journal of Professional Legal Education 16, no. 2 (1998): 271–98. Maharg, Paul and Caroline Maughan. “Introduction.” In Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Paul Maharg and Caroline Maughan, 1–8. Surrey: Ashgate, 2011. Maroney, Terry A. “Law and Emotion: A Proposed Taxonomy of an Emerging Field.” Law and Human Behavior 30 (2006): 119–42. Maughan, Caroline. “Why Study Emotion?” In Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Paul Maharg and Caroline Maughan, 11–44. Surrey: Ashgate, 2011. Minow, Martha L. and Elizabeth V. Spelman. “Passion for Justice.” Cardozo Law Review 10, no. 3 (1988): 37–76. Natt Gantt, II, Larry O. “Deconstructing Thinking Like a Lawyer: Analyzing the Cognitive Components of the Analytical Mind.” Campbell Law Review 29 (2007): 413–82. Nedelsky, Jennifer. “Embodied Diversity and the Challenges to Law.” McGill Law Journal 42 (1997): 91–117. Rodriguez v. British Columbia, [1993] 3 SCR 519. Rodriguez, Sue. “Who Owns My Life?,” November 1992, from the CBC Digital Archives. http://​www​ .cbc​.ca/​archives/​entry/​who​-owns​-my​-life. Sanger, Carol. “The Role and Reality of Emotions in Law.” Wiliam and Mary Journal of Women and the Law 8, no. 1 (2001): 107–13. Stenberg, Shari. “Teaching and (Re)learning the Rhetoric of Emotion,” Pedagogy 11, no. 2 (2011): 349–69. Truth and Reconciliation Commission of Canada. “Honouring the Truth, Reconciling for the Future.” http://​www​.trc​.ca/​assets/​pdf/​Honouring​_the​_Truth​_Reconciling​_for​_the​_Future​_July​_23​_2015​.pdf. University of Victoria. “University of Victoria Learning Outcomes.” http://​web​.uvic​.ca/​calendar2014​ -09/​CAL/​TUofV/​. Webb, Julian. “The Body in (E)motion: Thinking Through Embodiment in Legal Education.” In Affect and Legal Education: Emotion in Learning and Teaching the Law, edited by Paul Maharg and Caroline Maughan, 211–34. Surrey: Ashgate, 2011. White, Ian. “Federalism Rap.” https://​www​.youtube​.com/​watch​?v​=​89c5anzW6ME​&​list​=​PLKr​ JJAoXPJpAo​265BuqPU9X​2VfZ966SRg​&​index​=​11​&​t​=​0s. Young, Alan N. “Proving a Violation: Rhetoric, Research and Remedy.” Supreme Court Law Review (2d) 67 (2014): 617–51.

PART II EMOTIONS

5. When souls shudder: A brief history of disgust and the law Carlton Patrick

If it weren’t for the fact that William Ian Miller happened to be a law professor, the modern debate about disgust and the law may never have happened. Or, at least, it may never have reached the level of prominence that it has occupied for the past 30 years. Miller, a law professor at the University of Michigan, is a prolific author of scholarly books. Some of them are directly related to the law, others tangentially related, and some not at all. The Anatomy of Disgust, which he published in 1997, falls into the latter category. The Anatomy of Disgust was an erudite meditation on disgust, but its focus was not particular to legal affairs. In fact, Anatomy was more a sociological or anthropological study than anything else. And had Miller been a professor of sociology or anthropology, the inquiry may have ended there. But because Miller was a law professor, his book drew the attention of his colleagues, and when the prominent legal scholars Dan Kahan and Martha Nussbaum wrote reviews of Anatomy, they took Miller’s account and used it to interrogate the role that disgust ought—or ought not—play in legal affairs. In Anatomy, Miller endorsed the “proper moral work” that disgust could do.1 He characterized it as a powerful moral force that could be harnessed for good, if only we could limit the scope of objects that we direct our disgust towards by “recourse to other norms we accept.”2 In other words, Miller thought that disgust, an emotion that we might typically think of as a warning bell for disease or spoiled food, could be used as a type of coordination device—a tool for collectively condemning behavior. In The Anatomy of Disgust in Criminal Law, Kahan argued that Miller’s account of disgust was useful for the law, calling disgust “indispensable” and endorsing the use of disgust in shaming punishments and in death penalty determinations of “horribly vile” murders.3 Nussbaum, on the other hand, demurred. In her review (titled Foul Play) she noted that appeals to disgust were often at the heart of oppressive movements, and questioned Miller’s choice to omit any discussion of “disgust’s political and legal irrationality.”4 On one side, Kahan was advocating for the law to embrace disgust, both as a guidepost for evaluating behavior, and as a tool for carrying out the norm-enforcing role of the law. On the other side, Nussbaum was suspicious, and saw danger in allowing disgust to serve such an instrumental role. Their reviews turned out to be germinal. By taking these divergent positions about the proper role of disgust in the law, Kahan and Nussbaum were planting flags on oppo-

William I. Miller, The Anatomy of Disgust (Cambridge: Harvard University Press, 1997), 202. Miller, The Anatomy of Disgust, 202. 3 Dan M. Kahan, “The Anatomy of Disgust in Criminal Law,” Michigan Law Review 96, no. 6 (1998): 1621. 4 Martha C. Nussbaum, “Foul Play,” The New Republic, November 17, 1997, 36. 1 2

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When souls shudder: A brief history of disgust and the law  81 site sides of a debate that would come to span disciplines and engage scholars from across the academy for years to come. More than three decades later, we’re all still arguing. *** One of the enduring research questions of the behavioral sciences revolves around the relationship between emotions and moral judgments. The question, which has been taken up by psychologists, biologists, neuroscientists, sociologists, and anthropologists, is often framed as some variation of: how do emotions influence judgments of right and wrong? Several scholars argue that moral judgments are often produced by emotions, for example anger or sympathy causing an individual to treat harmful transgressions as “wrong.”5 Others argue that while emotions and moral judgments often co-occur, there is little evidence that emotions directly cause moral judgments.6 And there are yet other points of view, such as those who claim that moral judgments may not be caused by emotions, but they often rely on emotions as spotlights in selecting candidates for moral norms.7 One of the enduring debates in legal philosophy concerns the role that moral judgments ought or ought not to play in lawmaking. Here, legal scholars, political scientists, and moral philosophers ask and attempt to answer questions such as: should we be able to legislate morality? Or, is it permissible to base laws on nothing more than moral judgments alone? This debate is fundamental to jurisprudence and is, at its core, about the type and level of justification required to restrict the freedom of others. To capture it in a nutshell, we can simply look to the majority and dissenting opinions in Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down a Texas law prohibiting same-sex sodomy. Scalia, dissenting, argued that “Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behaviors are ‘immoral and unacceptable’ constitutes a rational basis for regulation.”8 Kennedy (quoting Stevens’s dissent in Bowers) answered that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”9 At the intersection of these two lines of investigation—the research surrounding emotions and moral judgments, and the debate surrounding the legislation of morality—sits an even more specific question. And though it is indeed specific, it has far-reaching consequences on human affairs. That question is: to the extent that human emotions generate moral judgments, how should the law deal with them? Should we embrace the intuitive sense of right and wrong that often emanates, rapidly and automatically, from our feelings? Or should the law seek to separate emotionally-driven moral intuitions from more reasoned value judgments?

5 Fiery Cushman, “Action, Outcome, and Value: A Dual-System Framework for Morality,” Personality and Social Psychology Review 17, no. 3 (2013); Joshua D. Greene “The Secret Joke of Kant’s Soul,” Moral Psychology 3 (2008); Shaun Nichols Sentimental Rules: On the Natural Foundations of Moral Judgment (New York: Oxford University Press, 2004). 6 William H.B. McAuliffe, “Do Emotions Play an Essential Role in Moral Judgments?” Thinking & Reasoning 25, no. 2 (2018). 7 Debra Lieberman and Carlton Patrick, Objection: Disgust, Morality, and the Law (New York: Oxford University Press, 2018). 8 Lawrence v. Texas, 539 U.S. 558, 589 (2003). 9 Lawrence, 539 U.S. at 577.

82  Research handbook on law and emotion And here, at this busy, congested intersection, at the center of this swirling vortex of academic debate, with all of these different scholars and disciplines each weighing in with their own bit of descriptive data or normative argument, looming over this convergence of all of these separate lines of inquiry, lives disgust. Of all the emotions, it is disgust that looms largest in this debate, and it looms so large because of the myriad ways it appears to be entangled with moral judgments. Some studies, for example, suggest that humans come equipped with a faculty for “moral disgust” whereby disgust is activated by a wide range of moral violations. This, for example, would be the purported mechanism at work when we claim to be “disgusted” by the betrayal of a friend or “repulsed” by the size of a CEO bonus. Other studies suggest that being in a disgusted state can amplify moral judgments, causing subjects who have been exposed to a noxious smell or seated at a dirty desk to rate many behaviors (e.g., homosexuality) as more morally wrong.10 Another line of research suggests that individuals who are more disgust sensitive—that is, more likely to feel disgust across a range of phenomena, like seeing maggots on meat or seeing a man with his intestines exposed—are likewise more likely to espouse conservative (both morally and politically) viewpoints.11 And still another line of research suggests that the causal arrow goes in the other direction: it isn’t that we are necessarily disgusted by all immoral acts, but instead that we tend to deem the things that disgust us as being immoral.12 It is this last variation that is most important for the law. Disgust, more than any other emotion, has a special capability for facilitating a descriptive-to-normative swerve: for taking certain objects or behaviors that we evolved to detest and not only warning us to avoid them, but also spotlighting them as foci for moral condemnation. Across cultures and over historical time, certain laws, customs, and societal norms have followed a pattern of moral reasoning along the lines of: what is gross to me is wrong for you. Food taboos, obscenity and speech restrictions, nuisance and zoning laws, and regulations that limit the marital and sexual practices of others are frequently propelled by deep-seated instincts of disgust and revulsion. And these instincts, when either widely shared or held by groups in power, have often been sufficient to justify and maintain the laws that rely on them. Consider, for example, incest. Anthropologists call incest “the universal taboo.”13 Norms and rules against incest have been, and are, a pervasive feature of both traditional and modern societies, and prohibitions against incest have been a constant of legal codes across cultures and over time. Today, incest (either through marriage or sexual contact) is prohibited in some capacity in every state of the United States and in most countries of the world, just as it was in the earliest extant legal codes of the Ancient Near East (e.g., the Code of Hammurabi, the Hittite laws, the Assyrian code), the earliest extant legal codes of the Ancient Far East (e.g., the T’ang Code, the Laws of Manu), the laws of Classical, Middle-Age, Renaissance, and 10 Yoel Inbar, David A. Pizarro, and Paul Bloom, “Disgusting Smells Cause Decreased Liking of Gay Men,” Emotion 12, no. 1 (2012); Simone Schnall et al., “Disgust as Embodied Moral Judgment,” Personality and Social Psychology Bulletin 34, no. 8 (2008). 11 Corrine J. Brenner and Yoel Inbar, “Disgust Sensitivity Predicts Political Ideology and Policy Attitudes in the Netherlands,” European Journal of Social Psychology 45, no. 1 (2015). 12 Lieberman and Patrick, Objection; Joshua M. Tybur, Debra Lieberman and Vlad Griskevicius, “Microbes, Mating, and Morality: Individual Differences in Three Functional Domains of Disgust,” Journal of Personality and Social Psychology 97, no. 1 (2009). 13 Abraham Rosman, Paula G. Rubel, and Maxine Weisgrau, The Tapestry of Culture: An Introduction to Cultural Anthropology (Lanham: Rowman Altamira, 2009).

When souls shudder: A brief history of disgust and the law  83 Enlightenment Europe, and by all of the major Abrahamic religious texts.14 Not coincidentally, humans are also, across cultures, extremely incest-averse. Research demonstrates both strong, first-person aversions to participating in incestuous acts,15 as well as robust moral objections to incestuous acts by third parties.16 It will hopefully be uncontroversial to assert, without empirical support, that few other activities engender the levels of disgust that incest has the power to do. The usual rationales for laws against incest often focus on the increased health risks associated with children of incestuous relationships. The general reasoning is along the lines of: society ought to prohibit incest because close relatives who have sex have a higher risk of passing on deleterious recessive alleles to their offspring. Their children are more likely to have a genetic defect. But psychological research suggests that there may also be an alternative catalyst behind these laws. In a series of now-famous studies conducted by Jonathan Haidt, participants were given a vignette of a brother and sister who decided to have sex, but the hypothetical was written in such a way that all of the usual objections to incest had been pre-empted.17 “Julie” and “Mark” decided to have sex while away on vacation together, and though they enjoyed it, they decided never to do it again and to keep it as a special secret between them. More importantly, Julie was on birth control and Mark used a condom, so there was no chance of any pregnancy. After reading the vignette, the participants were then asked by the researchers whether they thought what Julie and Mark had done was OK. The typical response was an immediate “no.” When asked to justify their decision, participants would then first attempt the usual objections: “they might regret it” or “if she gets pregnant, the baby is likely to have genetic defects.” After being reminded that all of those objections were nullified by the hypothetical, participants would resign themselves to the position: I just know it’s wrong, even though I can’t explain why. This type of reasoning is not unique to incest. When members of societies with strong food taboos are asked to explain why they consider those foods taboo, they commonly reply, first, “because it is forbidden” and then, if pressed, they point to some feature of the food that they find off-putting, such as, in the case of pork, the feeding habits of swine. As the anthropologists Dan Fessler and Carlos Navarrete note, “it appears that informants’ initial explanations

Eric Berkowitz, Sex and Punishment: Four Thousand Years of Judging Desire (Berkeley: Counterpoint, 2013); James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987); Trevor Bryce, Life and Society in the Hittite World (Oxford: Oxford University Press, 2004); George Bühler (Trans.) The Laws of Manu (Oxford: Clarendon Press, 1886); Wallace Johnson, The T’ang Code Volume I, General Principles (Princeton: Princeton University Press, 1979); Carlton Patrick and Debra Lieberman, “How Disgust Becomes Law,” in The Moral Psychology of Disgust, ed. Nina Strohminger and Victor Kumar (Lanham: Rowman and Littlefield, 2018); John Sassoon, Ancient Laws and Modern Problems: The Balance Between Justice and a Legal System (Chicago: Intellect Ltd., 2005). 15 Joshua M. Tybur, Debra Lieberman and Vlad Griskevicius, “Microbes, Mating, and Morality. 16 Jonathan Haidt, “The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” Psychological Review 108, no. 4 (2001); Debra Lieberman, John Tooby and Leda Cosmides, “Does Morality Have a Biological Basis? An Empirical Test of the Factors Governing Moral Sentiments Relating to Incest,” Proceedings of the Royal Society of London B: Biological Sciences 270, no. 1517 (2003). 17 Jonathan Haidt, Fredrik Bjorklund, and Scott Murphy, “Moral Dumbfounding: When Intuition Finds No Reason,” (Unpublished Manuscript, University of Virginia, 2000); Haidt, “Emotional Dog.” 14

84  Research handbook on law and emotion as to why some animal is not eaten is often simply ‘It’s disgusting!’”18 Humans object to many disgust-inducing practices—such as cannibalism, necrophilia, and eating the family pet—even when the activity occurs absent any ostensible harm to either the people engaging in the act or those around them. And, ultimately, these objections often appear to boil down to nothing more than gut-level revulsions and intuitions of wrongness. Behavioral scientists may disagree about exactly how or why disgust and morality intertwine in all the ways that they do, but the assertion that this particular phenomenon exists appears to be a relatively uncontroversial take. There are no strong objections, at least that I am aware of, that the gross-to-wrong pathway exists. Instead, the question for those of us thinking about disgust and the law is: what do we do with it? Do we embrace those intuitions, or do we attempt to cast them aside and use a more logical form of reasoning? *** The same year Miller published Anatomy, a second article was published that helped push the debate about disgust and the law into the national consciousness. In its June 2, 1997 issue, The New Republic published an article by Leon Kass, a bioethicist who would later serve as the chairman of George W. Bush’s Present’s Council on Bioethics. The article was titled The Wisdom of Repugnance, and in it Kass argued that disgust should serve as a guiding light in the decision to outlaw the cloning of human beings. To Kass, disgust was an intuitive moral compass, to be heeded rather than tamed. “Repugnance,” Kass claimed, “is the emotional expression of deep wisdom, beyond reason’s power to fully articulate it.”19 Unlike the more measured views of Miller and Kahan, who thought that our collective revulsions should be balanced against the other norms and guiding principals of the legal system, Kass saw no need. To him, disgust was the guiding principle, the “only voice left that speaks up to defend the central core of our humanity.”20 Miller and Kahan envisioned a type of duel-process evaluation of disgust, where we first recognize the deep-seated instinct, and then feed it through a more rational process, sorting the different objects of our disgust into categories of “proper” and “improper” targets. For Kass, the question of proper versus improper was settled by disgust – if it disgusted us, it was a proper target: “we intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear.”21 The idea that disgust should be a central guiding principal in lawmaking is not novel to Kass, he just happened to be the most prominent advocate for that position at a time when the debate was catching fire. Almost forty years before The Wisdom of Repugnance, the jurist Lord Devlin advanced very similar claims in his 1959 Maccabean Lecture in Jurisprudence at the British Academy (later reprinted in Devlin’s book: The Enforcement of Morals). The backdrop for the lecture was the publication of the Report of the Wolfenden Committee on Homosexual Offences and Prostitution in England, which recommended that homosexual behavior between consenting adults should no longer be a criminal offense. While several prominent legal

18 Daniel M.T. Fessler and Carlos D. Navarrete, “Meat is Good to Taboo: Dietary Proscriptions as a Product of the Interaction of Psychological Mechanisms and Social Processes,” Journal of Cognition and Culture 3, no. 1 (2003): 18–19. 19 Leon R. Kass, “The Wisdom of Repugnance,” The New Republic, June 2, 1997, 20. 20 Kass, “Wisdom of Repugnance,” 20. 21 Kass, “Wisdom of Repugnance,” 20.

When souls shudder: A brief history of disgust and the law  85 philosophers (including H.L.A. Hart and Ronald Dworkin) endorsed the report’s principles, Devlin opposed them. In making his case, Devlin argued that the presence of disgust “is a good indication that the bounds of toleration are being reached…[n]o society can do without intolerance, indignation, and disgust; they are the forces behind the moral law.”22 The views of Devlin and Kass have also long been echoed by judges and legislators. Sometimes lawmakers use communal disgust as a justification for prohibiting certain actions, as has often been the case with laws prohibiting homosexual relations. And, when lawmakers do this, the justifications are often presented as self-evident: well of course the behavior should be illegal—why shouldn’t it, when it disgusts all of us so much? The names of the statutes are usually evidence enough, where crimes pertaining to “indecent” or “unnatural” sexual behavior carry labels such as sodomy, crimes against nature, crimes against morality, or the detestable and abominable crime against nature, committed with mankind or beast.23 For years, in several states, it was enough to simply charge a defendant with the “crime against nature” without identifying the particular details of the act: “the crime being too well-known and too disgusting to require other definition or further details or description.”24 Making the point plain, lower courts have referred to sodomy as “moral filthiness and iniquity”25 and even Justice Burger, in his concurrence in Bowers, couldn’t help citing William Blackstone’s description of sodomy as “an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature,’ and ‘a crime not fit to be named.’”26 Though sodomy definitions have varied over time and still do vary across jurisdictions, they have generally included any of a number of nonprocreative sex acts, with homosexual sex serving as a cornerstone of the prohibition.27 The presumption that disgust is a moral compass for identifying condemnable behavior is also often hard-coded into law by making it an element of a legal standard. For example, in many states, murders that are considered “vile” or “heinous” are often punished more harshly than their non-vile counterparts, sometimes in such a way that it renders the defendant eligible for the death penalty.28 In England, possession of “extreme pornographic images” is considered an offense under Section 63 of the Criminal Justice and Immigration Act. How do we know whether an image is extreme? Among other things, the image must be “grossly offensive, disgusting or otherwise of an obscene character.”29 Obscenity law in the United States is not dissimilar. If we are presumed to “know it when we see it,” then we are also presumed to rely on disgust in making that determination. Several U.S. Supreme Court decisions have cited definitions of obscene that include disgust. In Manual Enterprises, Inc. v. Day, the Court noted that the definition of obscenity in Webster’s Dictionary was “[o]ffensive to taste; foul; loathsome; disgusting.”30 In the landmark decision in Miller v. California, the case in which the Supreme Court established the legal definition for obscenity that by and large remains the law of the land, the Court similarly goes into a lengthy 24 25 26 27 28 29 30 22 23

Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965), 17. Boyington v. State, 45 Ala. App. 176 (1969); State v. McAllister, 67 Or. 480 (1913). Horn v. State, 49 Ala. App. 489 (1973). State v. Start, 65 Or. 178, 180 (1913). Bowers v. Hardwick, 478 U.S. 186, 197 (1986) (Burger, J., concurring). Lieberman and Patrick, Objection. See, e.g., Arizona Revised Statutes § 13-751(A)(6). Criminal Justice and Immigration Act Section 63(5A)(b). Manual Enterprises, Inc. v. Day, 370 U.S. 478, 484 fn. 4 (1962).

86  Research handbook on law and emotion footnote discussion of the etymology of the word obscene, observing that it is derived from the Latin obscaenus, ob (to) plus casenum (filth). In attempting to delineate pornography from obscenity, they also cite several dictionary definitions of obscene that include the phrases “disgusting to the senses” and “[o]ffensive to the senses, or to taste or refinement, disgusting, repulsive, filthy, foul, abominable, loathsome.”31 The Miller Court had no problem admitting that the things that disgust us and the things that would constitute obscenity under the First Amendment would overlap considerably. After Miller, several lower courts were even more explicit in their suggestion that not only did disgust overlap with obscenity, but in fact it was the criterion that we should be looking for in order to determine whether the Miller test had been met. In evaluating whether “The Housewife’s Handbook on Selective Promiscuity” rose to the level of obscenity, the U.S. District Court for the Eastern District of Pennsylvania declared that the descriptions in the Handbook “left nothing to the imagination” and in the process “offend, degrade and sicken anyone however healthy his mind was before exposure to the material.”32 The court called the work “a gross shock to the mind and chore to read” before concluding that “[p]ruriency and disgust coalesce here creating a perfect example of hardcore pornography.”33 The U.S. Court of Appeals for the Fourth Circuit was even more direct in their guidance: “[t]he effect upon less susceptible persons must be put in the balance…[a]s the offensiveness requirement in the Miller test is more than minimally met, however, the greater the number of people who would react to the material with revulsion and disgust.”34 *** Not long after Kahan and Nussbaum’s initial reviews, they weighed in on this question again, expanding and clarifying their positions via a pair of essays in the book The Passions of Law. For his part, Kahan doubled down. Attempts to banish disgust from the law, Kahan argued, risked making the law “morally blind.”35 In his view, it would be a mistake to accept the guidance of disgust uncritically, but it would also be a mistake to dismiss it completely. And dismissing it completely is precisely what Nussbaum argued for in her essay, Secret Sewers of Vice. Having ostensibly thought much about Miller and Kahan’s views, Nussbaum shifted her position. No longer just suspicious of disgust, Nussbaum had become outright hostile. To her, the law would “do well to cast disgust onto the garbage heap where it would like to cast so many of us.”36 In fact, Nussbaum was so inspired that she went on to write several books about disgust and the law, including Hiding from Humanity: Disgust, Shame, and the Law and From Disgust to Humanity: Sexual Orientation and Constitutional Law. She used them to mount an offense against incorporating disgust into the law and advocated for replacing disgust with other emotions such as indignation or outrage. For Nussbaum, it isn’t the fact that disgust is an emotion

Miller v. California, 413 U.S. 15, 20 fn. 2 (1973). United States v. Ginzburg, 224 F. Supp. 129, 136 (E.D. Pa. 1963). 33 Ginzburg, 224 F. Supp. At 136. (E.D. Pa. 1963). 34 United States v. Guglielmi, 819 F.2d 451, 455 (4th Cir. 1987). 35 Dan M. Kahan, “The Progressive Appropriation of Disgust,” in The Passions of Law, ed. Susan Bandes (New York: New York University Press, 1999), 65. 36 Martha C. Nussbaum, “Secret Sewers of Vice,” in The Passions of Law, ed. Susan Bandes (New York: New York University Press, 1999), 22. 31 32

When souls shudder: A brief history of disgust and the law  87 that is problematic, it’s that disgust is an untrustworthy emotion. She based her views largely on the psychological model of disgust put forth by Paul Rozin, Jonathan Haidt, and Clark McCauley, which frames disgust as a mechanism that steers us clear of contamination from anything that “reminds us that we are animals.”37 As a result, Nussbaum proffered that disgust was “more than likely to be hooked up with various forms of shady social practice, in which the discomfort people feel over the fact of having an animal body is projected outwards onto vulnerable people and groups.”38 More than any other scholar, Nussbaum brought this oppressive aspect of disgust into relief and helped to highlight the way it can be used as a weapon to demonize and dehumanize other groups. Her most quoted line is that “throughout history, certain disgust properties – sliminess, bad smell, stickiness, decay, foulness – have repeatedly and monotonously been associated with, indeed projected onto … Jews, women, homosexuals, untouchables, lower-class people.”39 Because humans have a tendency to equate gross with wrong, this means that disgust is often weaponized and—as Nussbaum’s quote illustrates—used to demonize other people and groups. Just as storytellers adorn their villains with repulsive traits, those looking to rouse negative sentiment towards an outside group frequently paint those groups with descriptions that rouse disgust. And though Nussbaum’s list emphasizes groups that have been conspicuously targeted, it could easily be expanded to include all sorts of other groups. According to the classicist K.J. Dover, nearly all the politicians in ancient Athens were accused of being “ugly, diseased, prostituted perverts, the sons of whores by foreigners who bribed their way into citizenship.”40 Modern political discourse has barely evolved, if at all. In his presidential campaign, Donald Trump evoked disgust so often—calling Hillary Clinton’s bathroom break during a debate “too disgusting” to talk about; acting repulsed by primary opponent Marco Rubio’s sweat; suggesting that Fox news host Megyn Kelly’s questioning of him was tied to “blood coming out of her whatever”—that The New York Times, The New Republic, Rolling Stone, and CNN all ran pieces highlighting it. The same brand of insults is often hurled at felons, vagrants, and even fans of rival sports teams. In theory, the technique can be used to deepen negative attitudes towards any outside group. As Paul Blooms notes, “Such rhetoric shows up in the speech of white supremacists—but also when the rest of us talk about white supremacists.”41 Empirical research corroborates these observations and substantiates the powerful moral sway that disgust can engender. Mock jury studies, for example, have demonstrated that people are more likely to assign guilt when the crime is described using gruesome injury. In one study, led by David Bright and Jane Goodman-Delahunty, two groups of mock jurors were given factually identical descriptions of crimes, though in one condition the crime was described in sterile terms, while in the other the language was more colorful: the victim was “brutally tortured” and her face “obliterated beyond recognition.”42 Jurors who were exposed Paul Rozin, Jonathan Haidt, and Clark McCauley, “Disgust,” in Handbook of Emotions, eds, Michael Lewis and Jeannette M. Haviland (New York: Guildford Press, 1993). 38 Nussbaum, “Secret Sewers,” 22. 39 Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (New York: Cambridge University Press, 2003), 347. 40 Kenneth J. Dover, Aristophanic Comedy (Berkeley: University of California Press, 1972), 34. 41 Paul Bloom, “Beastly,” The New Yorker, November 27, 2017, 74. 42 David A. Bright and Jane Goodman-Delahunty, “The Influence of Gruesome Verbal Evidence on Mock Juror Verdicts,” Psychiatry, Psychology and Law 11, no. 1 (2004). 37

88  Research handbook on law and emotion to the gruesome language were more prone to the convict the defendant. In a similar study led by Eduardo Vasquez—again with two groups of mock jurors, and again with one set of sterile descriptions and one set of grisly descriptions—mock jurors meted out significantly harsher punishments when words like slunk, savage, and splattered where used instead of their sterile alternatives (stole, sustained, painted).43 Researchers have found similar results with respect to the impact of gruesome photographs. There are numerous individual studies, but the overall phenomenon suggested by the literature is this: the more disgusting the evidence (be it verbal or visual), irrespective of factual content, the worse the offender fares. When the evidence evokes disgust, jurors are more likely to ascribe guilt, they need less evidence to do so, and they are more certain that their decisions are correct.44 In fact, in one study researchers were able to actually track the trajectory from gross to wrong: gruesome photographs produced increased levels of disgust, increased levels of disgust correlated with increased levels of moral outrage, and as jurors’ moral outrage increased, so did their confidence in choosing a guilty verdict.45 *** In 2018, I joined the debate with my book Objection: Disgust, Morality, and the Law, which I coauthored with the psychologist Debra Lieberman. Why weigh in now, when so much has already been written? To begin with, we felt like much of the legal work on disgust was proceeding without seriously considering what psychologists and other behavioral scientists had to say. Though this doesn’t necessarily doom the enterprise, we thought a more in-depth understanding of the structure and function of disgust could help to inform the normative debate about its inclusion in law. Second, much of the groundbreaking behavioral work on disgust, particularly on the evolution of disgust, has been written only in the past ten to fifteen years. This meant that even those scholars, like Nussbaum, who were incorporating the findings of psychology in their work at the times they were written were basing their views on an incomplete model of the emotion. In Objection, we drew on that recent store of psychological research to sketch an outline of disgust’s cognitive mechanics and evolutionary origins. In our view, the most current literature suggests that disgust originally evolved as a way to keep pathogens, toxins, and other harmful substances from entering our bodies. Then, as happens often in evolution, this mechanism was recruited for a secondary task—to discourage sexual behavior that might result in fitness-negative (or, at least, suboptimal) reproductive outcomes. In other words, disgust functions not just to steer us clear of potential germs, but also to prevent us (by way of grossing us out) from having sex with individuals unable to produce healthy, viable offspring. This would include kin, the very young, the very old, the sick, members of other species, and for many people, members of the same sex. If you imagine having sex with your father, or

43 Eduardo A. Vasquez et al., “The Animal in You: Animalistic Descriptions of a Violent Crime Increase Punishment of Perpetrator,” Aggressive Behavior 40, no. 4 (2014). 44 David A. Bright and Jane Goodman-Delahunty, “Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making,” Law and Human Behavior 30, no. 2 (2016); Kevin S. Douglas, David R. Lyon, and James R.P. Ogloff, “The Impact of Graphic Photographic Evidence on Mock Jurors’ Decisions in a Murder Trial: Probative or Prejudicial?” Law and Human Behavior 21, no. 5 (1997). 45 Jessica M. Salerno and Liana C. Peter-Hagene, “The Interactive Effect of Anger and Disgust on Moral Outrage and Judgments,” Psychological Science 24, no. 10 (2013).

When souls shudder: A brief history of disgust and the law  89 a baby, or a horse, it is disgust that you feel—not fear or anxiety or any of the other aversive emotions that help guide our behavior. And what about moral disgust? We argue that once the original mechanisms (pathogen/ toxin disgust and sexual disgust) were in place, they were then “available” to be used in the service of the various norm-generators, norm-enforcers, and alliance-recruiting devices of our moral psychology. In short, the psychological processes that generate moral judgments often rely on disgust to identify behaviors worthy of condemnation—sometimes to avoid harm (it was wrong for you to have shat in my living room), but sometimes to identify individuals and groups that—by virtue of their disgust-inducing behavior—might be easier to exploit and marginalize, regardless of whether their behavior causes any harm (these sodomites are disgusting, we will not tolerate such moral depravity). After outlining the structure and function of disgust, we then made an argument for its exclusion from legal affairs. For starters, we argued that because disgust evolved in a much different milieu, and because it was continuously repurposed for other uses, it carried certain bugs and vestigial features of prior uses. (Think, for example, of how people will not eat fudge that looks like feces, despite the fact that it poses no harm.) We also argued that the evolutionary logic of disgust was simply too ingrained to be superseded by the more rational reasoning that we usually value in legal decision making. Think, for example, of how we hold fast to our disgust and moral condemnation of Julie and Mark, the incestuous siblings who cause no harm, even when we can’t offer up a good explanation as to why. But the main thrust of our argument was that, even if disgust carried none of these bugs, there was still no a priori reason to privilege it in the legal process. To us, there is a need to separate biology from philosophy, and to try to disentangle the intuitive moral judgments conjured by disgust from the philosophy of lawmaking – from the process of deciding what state of affairs would be socially desirable and then organizing the law in such a way as to effect that state of affairs. We claimed that: If there is a “deep wisdom” to be found in repugnance, as Kass proposes, it is a wisdom that benefits our genes, not us as individuals. Natural selection is an incredible engineer … but [it] is also amoral and apolitical. Disgust is designed to help propagate the genes that code for it—it cares not one lick for individual or societal welfare to the extent that individual and societal welfare do not aid in accomplishing this goal. …When we defer to disgust on decisions of right or wrong, good or bad, we are ceding the privilege of dictating our affairs to a cosmic accident, a process that happened to arise and happened to outperform available alternatives in helping the units that code for it to survive and reproduce in the particular conditions of a particular time period on this planet—that’s all.46

In making this claim, we were joining Kass, Kahan, and Nussbaum in the fray, and in the process establishing a new normative position. By our count then, there were (and, by my count now, are) four views of the role disgust should play in the law: deep support, qualified support, qualified opposition, and deep opposition. The deep support position is that of Kass and Devlin, and it reflects the view that there is normative value in the intuitive, deep-seated nature of disgust. It is precisely because it is ancient, universal, and subconscious that it contains “deep wisdom” and should be used as a guidepost.

Lieberman and Patrick, Objection, 195.

46

90  Research handbook on law and emotion The qualified support is the position of Miller and Kahan, who think disgust is valuable but not something that should be followed blindly. They do not share Kass’s reverence for disgust’s origins. They are more pragmatic, and laud disgust as useful, but recognize a need to “properly direct” disgust via reference to other criteria. The qualified opposition position is that of Nussbaum. The name is a bit misleading, because there is nothing qualified about Nussbaum’s opposition to disgust in the law. Instead, what is qualified is the nature of her opposition. Nussbaum has no qualms with the subconscious, intuitive origins of disgust, and in fact endorses the use of other emotions (such as indignation), but instead opposes disgust based on its design features. To Nussbaum, emotions can be reliable tools for lawmaking, it just so happens that this emotion isn’t one of the reliable ones. My coauthor and I are deep oppositionists. To us, it isn’t just that disgust happens to be an unreliable emotion—which we readily agree that it is. But more than that, there is no reason to give deep-seated intuitions like disgust a priori preference in lawmaking in the first place. It might happen that our emotions often coincide with and in fact further the societal interests of the legal system, but that does not mean we should be privileging them from the jump. To do so would mean both violating Hume’s Law (assuming an ought from an is) and committing the Naturalistic Fallacy (assuming that what is natural is per se good and unnatural per se bad). As we wrote: “When we blindly defer to our gut-level revulsions, we commit both of these fallacies, assuming that simply because evolution has endowed us with an instinctual aversion to a particular object or behavior, that this aversion is therefore sacrosanct, and is automatically worth canonizing in our system of laws.”47 These four positions outline the major “camps” of the disgust and law debate, and the ten publications outlined above provide the main stem of the literature. But there are also many tributaries. Many scholars from outside of the law have also weighed in, for example. The epidemiologist Valerie Curtis, for one, is a qualified supporter, urging us to listen to “some kinds of disgust and not others” and embracing the disgust we feel towards certain acts—such as cheating, violence, and exploitation.48 Without that disgust, she argues, we would be “unable to function as a social species.”49 The philosopher Paul Johnson similarly endorses a qualified role for disgust in the moral evaluation of pornography, calling such a framework “imperfect but appropriate.”50 The philosophers Daniel Kelly and Nicolae Morar are more like Nussbaum, more in the qualified opposition camp, and view disgust as a dehumanizing tool that is not fit to do any “moral or social work whatsoever.”51 Their argument is based on the fact that disgust’s peculiar evolutionary history has endowed disgust with numerous “bugs” and “glitches” that render it unreliable. They also have a very cogent rebuttal to the qualified supporters who seek to properly direct disgust via an outside criterion, which is that “when push comes to shove, it is always an independent criterion like the reference point provided by the ‘proper orientation’

Lieberman and Patrick, Objection, 193. Valerie Curtis, Don’t Look, Don’t Touch: The Science Behind Revulsion (Oxford: Oxford University Press, 2013), 117. 49 Curtis, Don’t Look, Don’t Touch, 117. 50 Paul Johnson, “Law, Morality and Disgust: The Regulation of ‘Extreme Pornography’ in England and Wales,” Social & Legal Studies 19, no. 2 (2010): 147. 51 Daniel Kelly and Nicolae Morar, “Against the Yuck Factor: On the Ideal Role of Disgust in Society,” Utilitas 26 no. 2 (2014): 153. 47 48

When souls shudder: A brief history of disgust and the law  91 that is calling the shots, and doing the real justification work, rather than the feelings of disgust themselves.”52 I’m missing many important contributions, I’m sure. In Objection, we noted that “in 2012, a New York Times commentator wrote that disgust was “having its moment” in the academic spotlight, and yet since that article was written more than one hundred additional articles about disgust and morality have been published in scholarly journals.”53 That was over a six-year span, and much of that work influenced our thinking, just as the work of Rozin and Haidt influenced Nussbaum’s thinking a decade earlier. In the next six years, we will doubtless know more, and perhaps the next generation of scholars doing normative work will have even more refined views about what the law should do with this visceral and persuasive emotion.

REFERENCES Berkowitz, Eric. Sex and Punishment: Four Thousand Years of Judging Desire. Berkeley: Counterpoint, 2013. Bloom, Paul. “Beastly.” The New Yorker, November 27, 2017. Bowers v. Hardwick, 478 U.S. 186 (1986). Boyington v. State, 45 Ala. App. 176 (1969). Brenner, Corinne J., and Yoel Inbar. “Disgust Sensitivity Predicts Political Ideology and Policy Attitudes in the Netherlands.” European Journal of Social Psychology 45, no. 1 (2015): 27–38. Bright, David A., and Jane Goodman-Delahunty. “The Influence of Gruesome Verbal Evidence on Mock Juror Verdicts.” Psychiatry, Psychology and Law 11, no. 1 (2004): 154–66. Bright, David A., and Jane Goodman-Delahunty. “Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making.” Law and Human Behavior 30, no. 2 (2006): 183–202. Brundage, James A. Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago Press, 1987. Bryce, Trevor. Life and Society in the Hittite World. Oxford: Oxford University Press, 2004. Bühler, George (Trans.). The Laws of Manu. Oxford: Clarendon Press, 1886. Curtis. Valerie. Don’t Look, Don’t Touch: The Science Behind Revulsion. Oxford: Oxford University Press, 2013. Cushman, Fiery. “Action, Outcome, and Value: A Dual-System Framework for Morality.” Personality and Social Psychology Review 17, no. 3 (2013): 273–292. Devlin, Patrick. The Enforcement of Morals. Oxford: Oxford University Press, 1965. Douglas, Kevin S., David R. Lyon, and James R. P. Ogloff. “The Impact of Graphic Photographic Evidence on Mock Jurors’ Decisions in a Murder Trial: Probative or Prejudicial?” Law and Human Behavior 21, no. 5 (1997): 485–501. Dover, Kenneth J. Aristophanic Comedy. Berkeley: University of California Press, 1972. Fessler, Daniel M.T., and Carlos David Navarrete. “Meat is Good to Taboo: Dietary Proscriptions as a Product of the Interaction of Psychological Mechanisms and Social Processes.” Journal of Cognition and Culture 3, no. 1 (2003): 1–40. Greene, Joshua D. “The Secret Joke of Kant’s Soul.” Moral Psychology 3 (2008): 35–79. Haidt, Jonathan. The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgment. Psychological Review 108, no. 4 (2001): 814. Haidt, Jonathan, Fredrik Bjorklund, and Scott Murphy. “Moral Dumbfounding: When Intuition Finds No Reason.” Unpublished Manuscript, University of Virginia (2003). Horn v. State, 49 Ala. App. 489 (1973).

Kelly and Morar, “Against the Yuck Factor,” 174. Lieberman and Patrick, Objection, 3.

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92  Research handbook on law and emotion Inbar, Yoel, David A. Pizarro, and Paul Bloom. “Disgusting Smells Cause Decreased Liking of Gay Men.” Emotion 12, no. 1 (2012): 23. Johnson, Paul. 2010. “Law, Morality and Disgust: The Regulation of ‘Extreme Pornography’ in England and Wales.” Social & Legal Studies 19, no. 2 (2010): 147–63. Johnson, Wallace. The T’ang Code Volume I, General Principles. Princeton: Princeton University Press, 1979. Kahan, Dan M. “The Anatomy of Disgust in Criminal Law.” Michigan Law Review 96 (1998): 1621–57. Kahan, Dan M. “The Progressive Appropriation of Disgust.” In The Passions of Law, edited by Susan Bandes, 63–79. New York: New York University Press, 1998. Kass, Leon R. “The Wisdom of Repugnance.” The New Republic, June 2, 1997. Kelly, Daniel, and Nicolae Morar. “Against the Yuck Factor: On the Ideal Role of Disgust in Society.” Utilitas 26, no. 2 (2014): 153–77. Lawrence v. Texas, 539 U.S. 558 (2003). Lieberman, Debra, and Carlton Patrick. Objection: Disgust, Morality, and the Law. Oxford University Press, 2018. Lieberman, Debra, John Tooby and Leda Cosmides. “Does Morality Have a Biological Basis? An Empirical Test of the Factors Governing Moral Sentiments Relating to Incest.” Proceedings of the Royal Society of London B: Biological Sciences 270, no. 1517 (2003): 819–26. Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962). McAuliffe, William H. B. “Do Emotions Play an Essential Role in Moral Judgments?” Thinking & Reasoning 2 (2018): 207–30. Miller, William I. The Anatomy of Disgust. Cambridge: Harvard University Press, 1997. Miller v. California, 413 U.S. 15 (1973). Nichols, Shaun. Sentimental Rules: On the Natural Foundations of Moral Judgment. New York: Oxford University Press, 2004. Nussbaum, Martha C. “Foul Play: Review of William Ian Miller, The Anatomy of Disgust.” The New Republic, November 17, 1997, 22–8. Nussbaum, Martha C. “Secret Sewers of Vice.” In The Passions of Law, edited by Susan Bandes, 17–62. New York: New York University Press, 1999. Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. New York: Cambridge University Press, 2003. Patrick, Carlton. “Evocative Advocates and Stirring Statesmen: Law, Politics, and the Weaponization of Disgust.” Evolutionary Studies of Imaginary Culture 2 no. 2 (2018): 34–45. Patrick, Carlton, and Debra Lieberman. “How Disgust Becomes Law.” In The Moral Psychology of Disgust, edited by Nina Strohminger and Victor Kumar, 121–38. Lanham: Rowman and Littlefield, 2018. Rosman, Abraham, Paula G. Rubel, and Maxine Weisgrau. The Tapestry of Culture: An Introduction to Cultural Anthropology. Lanham: Rowman Altamira, 2009. Rozin, Paul, Jonathan Haidt, and Clark McCauley. “Disgust.” In Handbook of Emotions, edited by Michael Lewis and Jeannette M. Haviland, 575-594. New York: Guildford Press, 1993. Salerno, Jessica M., and Liana C. Peter-Hagene. “The Interactive Effect of Anger and Disgust on Moral Outrage and Judgments.” Psychological Science 24, no. 10 (2013): 2069–78. Sassoon, John. Ancient Laws and Modern Problems: The Balance Between Justice and a Legal System. Chicago: Intellect Ltd, 2005. Schnall, Simone, Jonathan Haidt, Gerald L. Clore, and Alexander H. Jordan. “Disgust as Embodied Moral Judgment.” Personality and Social Psychology Bulletin 34, no. 8 (2008): 1096–109. State v. McAllister, 67 Or. 480 (1913). State v. Start, 65 Or. 178 (1913). Tybur, Joshua M., Debra Lieberman and Vlad Griskevicius. “Microbes, Mating, and Morality: Individual Differences in Three Functional Domains of Disgust.” Journal of Personality and Social Psychology 97, no. 1 (2009): 103. Tybur, Joshua M., Debra Lieberman, Robert Kurzban, and Peter DeScioli. “Disgust: Evolved Function and Structure.” Psychological Review 120, no. 1 (2013): 65. United States v. Ginzburg, 224 F. Supp. 129 (E.D. Pa. 1963). United States v. Guglielmi, 819 F.2d 451 (4th Cir. 1987).

When souls shudder: A brief history of disgust and the law  93 Vasquez, Eduardo A., Steve Loughnan, Ellis Luise, Gootjes-Dreesbach, and Ulrich Weger. “The Animal in You: Animalistic Descriptions of a Violent Crime Increase Punishment of Perpetrator.” Aggressive Behavior 40, no. 4 (2014): 337–44.

6. Retribution: Not anger but respect for dignity Jeffrie G. Murphy

Mourn no more, children. Those to whom The night of earth gives benediction Should not be mourned. Retribution comes. Sophocles, Oedipus at Colonus

PHILOSOPHICAL RETRIBUTIVISM It is now almost universally agreed among informed and thoughtful people that there is something deeply wrong with America’s so-called system of “criminal justice.” Too many social problems—including problems such as the “war on drugs” for which the system is mal-adapted—are dealt with through criminal punishment. Many of those incarcerated serve terms of excessive length in prisons that are rampant with cruelty—rule by gangs and rape being the order of the day—or are subjected to such soul-destroying treatment as long-term solitary confinement. Such conditions are likely to render inmates worse people when they come out than they were when they went in. This is of concern, not just to those who might be dismissed as bleeding heart soft-on-crime sentimentalists, but also to those whose credentials as hard-headed realists cannot be doubted. Consider, for example, these comments from Judge Richard Posner, dissenting in the prison conditions case of Johnson v. Phelan: There are different ways to look upon the inmates of prisons and jails in the United States....One is to look upon them as members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect. I do not myself consider [them] in this light.We should have a realistic conception of the composition of the prison and jail population before deciding that they are scum entitled to nothing better than what a vengeful populace and a resource-starved penal system chooses to give them. We must not exaggerate the distinction between “us,” the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration.1

What is the cause of the deplorable state of the American penal system and what can be done about it? A variety of distinguished scholars of criminal law—Martha Nussbaum and Carol Steiker, for example—have suggested that the villain is easy to identify: retribution as the value now dominating the system.2 Get rid of that value (and the vengeful and angry emotions that drive it) and replace it with something else—mercy or even love perhaps—and the system will be on the road to recovery. Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1993) (Posner, C.J., dissenting). Martha C. Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (New York: Oxford University Press, 2016); Carol S. Steiker, “Murphy on Mercy: A Prudential Reconsideration,” Criminal Justice Ethics 27, no. 2 (September 2010): 45–54. 1 2

94

Retribution: Not anger but respect for dignity  95 I believe that this diagnosis and suggestion for a cure rest upon a misunderstanding of the concept of retribution. One is tempted to adopt this misunderstanding, alas, because the forces of darkness—those willing to support cruelty and perhaps wanting even more of it—have often co-opted the term “retribution” for their own vile uses. We will find them using the concept of desert—a core concept of genuine retributive thinking—in totally perverted ways. Talk to them about the serious problem of prison rape, for example, and (as Judge Posner fears) they will simply say—as one of my law students recently said—that prisoners (even those young people in prisons for non-violent drug offenses) are just getting what they deserve. My view is that what the system needs is more retribution, not less, and that one of the main things wrong with the present system is a significant compromise of that value properly understood. We need, in short, to reclaim retribution in its original and proper sense. What is its original and proper sense? If we go all the way back to ancient Greece, the word generally translated as “retribution” is nemesis. Although these days nemesis is often used (as is the word “retribution”) to mean “imposing harsh punishment,” the actual meaning of both words is “dispensing what is due or deserved.” So when contemporary philosophers of criminal law such as Michael Moore claim to be retributivists, they are claiming that the central concept in the justification of punishment should be desert—that punishment should be imposed on criminals because they deserve it and not simply because of, for example, a utilitarian notion of future crime control. Understood in this way retributive values can just as easily be used to condemn some punishments as too severe as they can be used to condemn some others as not severe enough. The claim that retribution represents a special fondness for harsh punishment is simply false. It should also be recognized here that when the retributivist views punishments as justified suffering, the meaning of “suffering” at play here is not “pain.” It is rather suffering in the sense of enduring. (Think here of such phrases as “he does not suffer fools gladly.”) To suffer punishment is to endure having at least a portion of one’s life taken out of the voluntary control of one’s will. This will not necessarily involve pain as physical agony, and indeed punishments such as torture that involve physical agony will be condemned by the retributivists since they involve reducing a human being to a screaming and defecating animal and are thus incompatible with respecting the humanity or dignity of the person being punished. Finally, it is important to realize that the common claim that retribution is really the same as revenge or vengeance is simply false. Vengeance is punishment inflicted to whatever degree will satisfy victims or the urges of what Judge Posner called “a vengeful populace.” This will, of course, often involve inflicting a level of punishment far in excess of what wrongdoers actually deserve as a matter of justice or, if certain victims are committed to the values of love and forgiveness, punishments far less than the wrongdoers actually deserve as a matter of justice. The introduction above of the concept of justice leads naturally to the background moral view that might be used to justify preferring a backward-looking desert model of punishment over a purely future oriented utilitarian crime control model. A good place to start here will be with the Enlightenment philosopher Immanuel Kant. Although Kant’s overall justification of punishment is less than fully clear and consistent, a strong thread that runs through it is retributive—using a concept of retribution that draws heavily on the concepts of humanity and dignity and the requirement of justice that human beings must always be treated in ways that respect these values. He sees the importance of emotions or passions in the justification of punishment, but he finds the relevant emotions to be not anger or vindictiveness but rather a passionate respect for human dignity and the demands for justice generated by that dignity.

96  Research handbook on law and emotion Since this is not an essay in Kant scholarship, I will in what follows briefly lay out what I regard as an essentially Kantian (if not literally in all ways Kant’s) view of punishment and its retributive foundation.3 The Kantian view of the basic dignity of human beings lies in the fact that humans are (except for such obvious exceptions as severe mental illness) to be regarded as free and autonomous rational beings who can be trusted with the freedom to manage their own lives and who can legitimately be held responsible for what they do. They should be praised for acting rightly and condemned (and sometimes legitimately punished) for doing wrong. A Kantian on punishment could thus welcome Hegel’s claim that we as human beings have the right to be punished—a right to be treated as responsible agents and not condescendingly insulted by the claim that we are such victims of our genes and social circumstances that we are really defective or diseased individuals more in need of therapy than punishment.4 (This will be true of some people, of course, but the Kantian will not accept this as the default position.) To say that a person deserves punishment is, when one considers the condescending therapeutic alternative, to pay that person a kind of compliment. The idea of human dignity is the basis of Kant’s famous categorical imperative—a fundamental principle of morality that, in one of its forms, claims that human beings must never be treated as means only but must always be respected as ends in themselves. This would rule out the punishment of the innocent or punishment of those who for other reasons (a valid excuse or justification for example) do not deserve to be punished no matter how much future crime control might be accomplished by this punishment. It would also rule out punishing offenders in excess of what they can reasonably be thought of as deserving simply to obtain some hoped for good future consequence. “You are being punished, whether you really deserve it or not, as a means to the future social good of crime control.” How could a person of conscience look a criminal in the eye and say that? A person of conscience could, I think, look a criminal in the eye if one could truly say “You are being punished because, given your culpable wrongdoing, you brought it on yourself and deserve it.” Some will, of course, argue that so many criminals are from groups so oppressed by poverty or racism that there is a sense in which their crime is society’s fault—not theirs—and that therefore they did not bring their criminality on themselves or deserve punishment for it. Put in such a simplistic form, the claim is in my view insulting to poor people and members of racial minorities—most of whom manage, in spite of the obstacles they have faced, to live exemplary moral lives of which they can legitimately be proud. To the degree that there is some truth in the claim—and there is indeed some truth—I believe that the best way to formulate that claim is within the framework of a retributive outlook on punishment. These true claims do not, in my view, cry out for the application of some value such as mercy or love or compassion (as suggested by Nussbaum and Steiker) but rather serve as the basis for an I have discussed Kant’s views on punishment in detail in a prior article. See Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review 87, no. 3 (April 1987): 509–32. These views have been expanded and modified in a subsequent book chapter. See Jeffrie G. Murphy, “Humility as a Moral Virtue,” Handbook of Humility, ed. Everett L. Worthington Jr., Don E. Davis, and Joshua N. Hook (New York: Routledge: 2017), 19–32. For an extended discussion of retribution see Jeffrie G. Murphy, “Last Words on Retribution,” The Routledge Handbook of Criminal Justice Ethics, ed. Jonathan Jacobs and Jonathan Jackson (New York: Routledge, 2017), 28–41. 4 G. W. F. Hegel, Elements of the Philosophy of Right, trans. Allen W. Wood and H.B. Nisbet (Cambridge: Cambridge University Press, 1991), 123. 3

Retribution: Not anger but respect for dignity  97 argument that the relevant individuals do not, on retributive grounds, deserve punishments of a certain kind or level and that it would be unjust for them to receive such punishments. One of the important things to realize about desert and justice is that they are obligatory— they impose specific and clear non-optional duties. Mercy, on the other hand, is generally regarded as a free gift—an act of grace that is good to perform but not a matter of justice or duty since nobody has a right to it. (“The quality of mercy is not [con]strained” as Shakespeare’s Portia in The Merchant of Venice has it.) Christians of course regard love as a duty, but former Archbishop of Canterbury William Temple has some useful counsel about the social and legal role of that duty: “It is axiomatic that love should be the dominant Christian impulse and that justice is the primary form of love in social organization.”5 If, as psychologists are increasingly claiming, long-term solitary confinement is soul destroying—destroying the very core of a person’s character and sense of self, then mercy is not the value that will form the basis of a powerful condemnation of this practice, for this would make the condemnation a kind of generosity—a non-obligatory way of being nice. Surely it must be said that the condemnation is more than this: a binding duty of justice, a duty to respect the rights that all persons (including criminals) have as human beings possessed of human dignity. Kant put the point this way: “Punishment must be freed from any mistreatment that could make the humanity of the person suffering it abominable.”6 The philosopher of language J. L. Austin placed a very high premium on clarity. A critic of his once said that clarity is not enough, and Austin replied that there will be plenty of time to go into that after we have achieved clarity on something. There surely is more to love and compassion than justice, but perhaps there will be plenty of time to go into that after we have managed to achieve a level of justice far in excess of what can now be found in our present system of criminal punishment.

TWO LIMITS AND CAUTIONS ON RETRIBUTION It would, I think, be a great mistake to say that the sole purpose of criminal punishment is retribution—making people suffer for doing evil and being culpable for that evil. If we adopted such a broad view of the goal of punishment we would need to punish people for things that are really not the business of the liberal state and would compromise important liberal values. Consider, for example, betrayals of intimacy. I happen to regard the betrayal of a friend or spouse, in selfish pursuit of one’s own personal interests, as a very grave evil and I will be happy if those who commit such evil wind up being miserable. I would not, however, want such people to be subject to criminal punishment since I do not think that attempting to regulate private intimacy is a legitimate goal of the liberal state. It would, if attempted, involve intrusions into personal privacy that would be quite unacceptable. Think of this in social contract terms. Would rational people, in seeking to form a society, adopt the highly intrusive and costly mechanism of criminal punishment simply to achieve the moral result that evil people suffer in proper proportion to their iniquity? Surely not. Such 5 Quoted in Lord Denning, The Influence of Religion on Law (Alberta, Canada: Canadian Institute for Law, Theology, and Public Policy, 1997). 6 Immanuel Kant, The Metaphysics of Morals, ed. and trans. Mary Gregor (Cambridge: Cambridge University Press, 1991), 142.

98  Research handbook on law and emotion people will very likely adopt such a system and its associated costs (in liberty and treasure) for Hobbesian reasons—namely the fear of being a victim and the desire to remain secure in the enjoyment of their rights and liberties rather than have them threatened or undermined by those who would wrongfully subject them to attack. If morally decent they will want the coercive apparatus of the state, even when pursuing the laudable goal of crime control, to be constrained by a commitment to the kind of retributive desert values that I outlined in the earlier part of this essay, but aiming at such values as the sole purpose of criminal law will not seem a rational option for them. Also, as I have argued in several of the essays in my book Punishment and the Moral Emotions—Essays in Law, Morality, and Religion,7 there are important cautions in the writings of those who condemn retribution and advocate its replacement by such values as love, mercy, and forgiveness. Replacement, as I have argued earlier, is unwise and rests on a misunderstanding of retribution, but these writers have seen an important danger in a retributive approach—namely, that it will tempt some people (all of us perhaps) to become self-righteously censorious and so enthusiastic in our desire to give people their just deserts that we are tempted to punish too many things and punish with excessive severity—thereby compromising the very values for which retributivists stand. Retributivists are no more immune to the temptations of human depravity than are those who advocate punishment on other grounds, and so it is well to keep in mind Nietzsche’s wise counsel: “Mistrust those in whom the urge to punish is strong…Those who set out to do battle against monsters must take care that they do not become monsters.”8 Even Kant was able to see the dangers of being consumed by a corrupt version of his own brand of retributivism and counseled against this corruption in his Doctrine of Virtue: “No punishment may be inflicted out of hatred. Hence men have a duty to cultivate a conciliatory spirit, but this must not be confused with placid toleration of injuries.”9 So those who recommend that love, mercy, and forgiveness play a role in our thinking about criminal punishment are, in my view, best interpreted as providing not an alternative to retribution but rather an important caution about its dangers. I think that the values of forgiveness and mercy can play even more than a cautionary role, however. If we think of mercy and forgiveness not as acts we perform or benefits we bestow but rather as dispositions of character (virtues), we can see them as making us better retributivists than we would be without them—more likely to focus on genuine desert. If it is indeed very common for people to start with an initial bias against those charged with crime, then it is also likely they will err on the side of excessive harshness. But if they bring to the table a character disposed to mercy and forgiveness (having what Kant called a “conciliatory spirit”) they will not start with such biases but will be more inclined to focus on the punishment that is truly deserved rather than what would appeal to one with a harsh and unforgiving character.

7 Jeffrie G. Murphy, Punishment and the Moral Emotions—Essays in Law, Morality, and Religion (New York: Oxford University Press, 2012). 8 Friedrich Nietzsche, Beyond Good and Evil: Prelude to a Philosophy of the Future, trans Marion Faber (Oxford: Oxford University Press, 1998), 168. 9 Immanuel Kant, The Doctrine of Virtue, trans Mary Gregor (New York: Harper Torchbooks, 1964), 460–61.

Retribution: Not anger but respect for dignity  99

SOME PRACTICAL IMPLICATIONS Suppose that retribution, correctly understood, started to play a significant role in penal reform. What might some of these reforms be? I have already suggested retributivist grounds for opposing the soul-destroying results of long-term solitary confinement. Here are a few more suggestions: (1)

There Should be Significant Limitations of the Current Practice of Avoiding Trials Through Plea Bargaining

Although plea bargaining has legitimate functions, it too often involves frightening a defendant (who may have limited education and poor legal representation) into pleading guilty to something he did not do by persuading him that if he goes to trial he will almost certainly be convicted of something even worse (that he also did not do) with a longer sentence. When prosecutors are able to stack multiple (and often overlapping) charges against a defendant, he is in effect terrorized into pleading guilty to avoid the risk of trial. This kind of assembly line justice may be economically efficient but ignores the kind of individuation that is required by respect for the dignity of persons. Surely the defendant deserves better. (2)

The Crime itself will be Defined with Retributive Desert Playing a Significant Role—e.g., Mens Rea will be Required for all Crimes (No Strict Liability) even if this Undermines Utility to Some Degree

This will require significant reform in defining the crime of statutory rape and will require the abolition of extreme forms of the felony murder rule. (3)

The Grading of Criminal Offenses will be a Function of Retributive Desert— the Higher the Grade the Heavier the Punishment

Given the influence of the Model Penal Code, this condition is widely satisfied already but there are still some areas that would benefit from more thought. Consider, for example, the grading of homicide offenses—premeditated deliberate intentional killing often graded as the most severe. However, as Samuel Pillsbury has suggested, this ranking may be mistaken for retributive reasons. If the goal is to give a wrongdoer the punishment that he deserves, then does the mercy killer deserve being thought of as the worst of the worst simply because his killing is intentional, deliberate, and premeditated? Is he worse than those who are guilty of what is called in some jurisdictions “depraved heart murder”—a killing that results from a recklessness so extreme that it reveals a wanton indifference to the value of human life? As things now stand, the premeditated killer will be convicted of first degree (perhaps capital) murder and the depraved heart killer of second degree murder. My own retributive instincts tell me that this ranking is wrong.10

10 For an expansion of this line of thought, see Samuel Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter (New York: New York University Press, 1998).

100  Research handbook on law and emotion (4)

After Conviction, Considerations of Desert will Play a Significant Role in Clemency or Parole—at which Time such States of Character as Remorse or its Absence may be Regarded as Relevant

As a general matter (there are some exceptions) the truly remorseful and reformed criminal strikes me as deserving a shorter prison term than the criminal who remains hardened, hateful, and unrepentant. The dangers of faking are always significant, of course, and so it would be reasonable to suggest that these considerations play a greater role in clemency than in sentencing. One can generally have a more reliable assessment of the sincerity of claimed repentance when one has over time had an opportunity to observe the criminal while in prison than one does at the time of trial. (5)

Prison Conditions will be Considered a Part of Punishment and 8th Amendment Constraints against Cruel and Unusual Punishments will Meaningfully and Significantly Apply to them

Except in one kind of case (a case in which prison officials are reckless with respect to prevention) the United State Supreme Court has been unwilling to extend the 8th Amendment ban on cruel and unusual punishments to such things as a failure to prevent rape, failure to control abuse from prison gangs, or putting a stop to those long periods of solitary confinement that are destructive of an inmate’s very personality. The general court doctrine has been that these are not punishments but are rather prison conditions—a piece of pure formalism if ever there was one. When sending people to prison we are now in effect often simply throwing them into the state of nature and have forgotten the wisdom of the old maxim that we send people to prison as punishment not for punishment. There may be considerable deterrence value in leaving things as they are since any normal person will surely be terrorized by the fear of being thrown into an environment of rape and abuse. But does any human being deserve such callous and inhumane treatment—a form of treatment that shows no consideration at all for what dignity as a human being demands?

CONCLUSION I have in this chapter attempted to make a case that retribution, properly understood, should guide much of our thinking about the reforms needed in our criminal justice system. It should not be all that guides our thinking, of course, but it deserves to reclaim a place at the table where such reforms are being discussed—a place it has long been denied because of misunderstanding and even misrepresentation of what retribution is and because the language of retribution has often been co-opted by the forces of darkness.

REFERENCES Denning, Alfred Thompson. The Influence of Religion on Law. Alberta, Canada: Canadian Institute for Law, Theology, and Public Policy 3, 1997. Hegel, Georg Wilhelm Friedrich. Elements of the Philosophy of Right. Translated by Allen W. Wood and H. B. Nisbet. Cambridge: Cambridge University Press, 1991.

Retribution: Not anger but respect for dignity  101 Kant, Immanuel. The Metaphysics of Morals. Edited and translated by Mary Gregor. Cambridge: Cambridge University Press, 1991. Kant, Immanuel. The Doctrine of Virtue. Translated by Mary Gregor. New York: Harper Torchbooks, 1964. Murphy, Jeffrie G. Punishment and the Moral Emotions. New York: Oxford University Press, 2012. Murphy, Jeffrie G. “Humility as a Moral Virtue.” In Handbook of Humility, edited by Everett L. Worthington, 19–32. London: Routledge, 2017. Murphy, Jeffrie G. “Last Words on Retribution.” In The Routledge Handbook of Criminal Justice Ethics, edited by Jonathan Jacobs and Jonathan Jackson, 28–41. London: Routledge, 2017. Murphy, Jeffrie G. “Does Kant Have a Theory of Punishment?” Columbia Law Review 87, no. 3 (April, 1987): 509–32. Nietzsche, Friedrich. Beyond Good and Evil. Translated by Marion Faber. Oxford: Oxford University Press, 1998. Nussbaum, Martha. Anger and Forgiveness: Resentment, Generosity, Justice. New York: Oxford University Press, 2016. Pillsbury, Samuel. Judging Evil: Rethinking the Law of Murder and Manslaughter. New York: New York University Press, 1998. Steiker, Carol. “Murphy on Mercy: A Prudential Reconsideration.” Criminal Justice Ethics 27, no. 2 (September 2010): 45–54.

7. Closure in the criminal courtroom: The birth and strange career of an emotion Susan A. Bandes1

INTRODUCTION In 2017, the state of Arkansas planned to execute eight people by lethal injection during an 11-day period. The reason for this expedited pace was the looming shortage of one of the drugs in the lethal injection “three drug cocktail.”2 Although challenges to the legality of the sentences and executions were unresolved, the state argued that the executions should nevertheless proceed because “the friends and family of those killed or injured…have waited decades to receive some closure for their pain.”3 When the Arkansas Supreme Court stayed two of the executions, the dissenting judge also invoked closure, protesting that staying the executions was a denial of justice for relatives of the victims, who “are entitled to closure and finality of the law.”4 Closure is an evolving and amorphously defined term of recent vintage. Yet over the last 30 years, the notion that the criminal justice system can help provide closure for victims and their families has gained remarkable traction, both in popular discourse and in the legal arena. Closure is offered—often successfully—as an argument to impose death sentences,5 trim procedural protections,6 permit victim impact statements,7 deny appeals and clemency petitions,8 speed up executions, televise executions, and grant the bereaved access to the execution chamber.9 More broadly, it has transformed the debate about the legitimacy of

Thanks to Scott E. Sundby, Kathryn Temple, Pavel Vasilyev, and the faculty of Brooklyn Law School for insightful comments, and to Pat Gudridge for encouraging me to revisit the topic. 2 The drug in question was the sedative midazolam. Additional issues were raised about the other drugs in the lethal injection cocktail. See, e.g., Mark Berman, “Arkansas Execution Called Off After Supreme Court Denies Challenge,” Washington Post, April 18, 2017, https://​www​.washingtonpost​.com/​ news/​post​-nation/​wp/​2017/​04/​17/​arkansas​-fights​-to​-carry​-out​-unprecedented​-wave​-of​-executions/​?utm​ _term​=​.03f39fed43e9 (last accessed February 25, 2021). 3 Santhanam, Laura, “Does the Death Penalty bring Closure to a Victim’s Family?” PBS, April 25, 2017, https://​www​.pbs​.org/​newshour/​nation/​death​-penalty​-bring​-closure​-victims​-family. 4 Dissent of Associate Justice Shawn A. Womack, quoted in Berman, “Arkansas Execution Called Off.” 5 See, e.g., Susan A. Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” Law and Contemporary Problems 72 (2009): 3, n. 8. 6 See, e.g., Stephanie Mencimer, “Florida Passes Law to Speed Up Executions,” Mother Jones, April 30, 2013. https://​www​.motherjones​.com/​crime​-justice/​2013/​04/​florida​-passes​-law​-speed​-executions/​. See also Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 3 n. 8. 7 Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 3 n. 8. 8 George Ryan, “Text of Illinois Gov. Ryan’s Letter to Victims’ Families,” Wall Street Journal, January 11, 2003, https://​www​.wsj​.com/​articles/​S​B104232443​1295098984. 9 Nancy Berns, “Contesting the Victim Card: Closure Discourse and Emotion in Death Penalty Rhetoric,” The Sociological Quarterly 50, No. 3 (2009): 383. 1

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Closure in the criminal courtroom: The birth and strange career of an emotion  103 the capital system—recasting the imposition of the death penalty from a retributive act to an act of compassion for bereaved families.10 Closure is a puzzle. Its parameters are fuzzy, its dynamics are murky, and its origins seem to have more to do with law and politics than with psychology. There is an argument to be made that closure is not an emotion at all, but rather a set of legal aspirations for the conduct of criminal proceedings.11 Yet it has become framed as an emotion, or an emotional expectation. Ironically, in the legal context the category “emotional” generally connotes something prejudicial or irrelevant—a category to be avoided. But in the case of closure, the appeal to the emotions of the bereaved gives “closure” a kind of halo effect, protecting it from criticism.12 Ultimately, however it is categorized or defined, closure has become an emotional expectation for many in the criminal justice system. It has become a prime example of the power of the criminal justice system to shape emotional expectations. And it has had significant practical effects on the shape of the system, particularly in capital cases. In short, closure needs to be reckoned with. The notion of “closure” is a recent addition to the criminal justice system. The use of the term in the legal arena apparently first arose in conjunction with the U.S. death penalty and dates back to 1989,13 a time when the victims’ rights movement was gaining recognition and influence. Once it was introduced, the concept of closure had a meteoric rise. In the year 2001, closure made its first appearance in an influential opinion poll about capital punishment, and by that time 60 percent of those polled agreed with the contention that the death penalty is fair because it gives closure to the families of murder victims.14 In a few short years, the role of capital punishment in obtaining closure for the families of murder victims had become an article of faith for the media, victim support groups, and even the legal system.15 This incursion of therapeutic language and goals into the criminal justice system has had significant real-world consequences, including consequences for the liberty and life of those accused of crime and for the well-being of victims and their families. Nevertheless, the precise meaning of “closure” has remained elusive.

Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 10. For example, Attorney General William Barr in 1991 supported the death penalty to deter and punish the most heinous murders. Today, Barr, in announcing that federal executions will move forward, says we owe it to victims and their families. Katie Benner, “U.S. to Resume Capital Punishment for Federal Inmates on Death Row,” New York Times, July 25, 2019, https://​www​.nytimes​.com/​2019/​07/​25/​us/​politics/​federal​-executions​-death​ -penalty​.html, (last accessed February 25, 2021). 11 Jody Madeira notes that closure has a wide variety of dimensions: it is “a procedural goal to give family members finality, an entitlement for victims’ families to a timely trial and punishment, and a therapeutic aspiration ensuring the inclusion of victims’ perspectives.” Jody L. Madeira, “Capital Punishment, Closure, and Media,” The Oxford Research Encyclopedia, Criminology and Criminal Justice (2016). 12 See Thomas J. Mowen and Ryan D. Schroeder, “Not in My Name: An Investigation of Victims’ Family Clemency Movements and Court Appointed Closure,” Western Criminology Review 12, no.1 (2011): 68. 13 Frank E. Zimring, The Contradictions of American Capital Punishment (Oxford: Oxford University Press, 2003), 60. 14 Zimring, The Contradictions of American Capital Punishment, 60. 15 Zimring, The Contradictions of American Capital Punishment, 60. See also Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 2–3. 10

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DEFINITIONAL ISSUES AND THEIR INSTITUTIONAL CONSEQUENCES Emotion terms are notoriously hard to define. In fact, it is increasingly clear that emotions can have no fixed, unchangeable definitions, because emotions are not fixed, unchanging entities with measurable characteristics. As the neuroscientist Lisa Feldman Barrett has been instrumental in demonstrating,16 emotion terms—fear, anger, happiness—“describe a whole host of complex processes in the brain and the body that aren’t necessarily related.”17 We may aggregate these processes and give them a name, but it’s crucial to be mindful of the provisional and limited purposes the categories serve. “Language use, context, culture, or individual differences in prior experience will produce variation in whether emotions are experienced, which emotions are experienced, and how they are experienced.”18 Other strands of emotion theory, such as those arising from sociology,19 anthropology,20 and history,21 have underscored the same crucial insight: emotions arise in the social world, influenced by implicit, culturally and historically rooted rules and norms22 about what we ought to feel and how we ought to express it. Thus, the fact that closure is an imprecise, amorphous, historically and culturally bound concept does not make it unique or rare. Yet closure raises a number of fascinating questions. Closure has evolved and taken root so rapidly that much of its complex and recursive interaction with institutions like the media and the criminal justice system has occurred in plain sight. It is arguable that closure began as a set of political and law reform goals rather than a description of an emotional state.23 The legal embrace of closure occurred with little if any attention to existing literatures on healing after trauma. But in the ensuing decades, with the weight of the criminal justice establishment and other institutions behind it, closure has acquired a patina of authority. It has evolved into an emotion that many expect to feel—an emotional expectation based on explicit and implicit promises and widely shared assumptions. Some victims and survivors continue to reject the notion of closure, some come to feel closure (as they define it), and some experience strong negative emotions when they fail to attain it.

See Lisa Feldman Barrett, How Emotions Are Made: The Secret Life of the Brain (Boston: Houghton Mifflin Harcourt, 2017). 17 Julie Beck, “Hard Feelings: Science’s Struggle to Define Emotions,” The Atlantic, February 24, 2015, https://​www​.theatlantic​.com/​health/​archive/​2015/​02/​hard​-feelings​-sciences​-struggle​-to​-define​ -emotions/​385711/​, (last accessed February 25, 2021). 18 Lisa Feldman Barrett, Batja Mesquita Ochsner, Kevin N. Ochsner, and James J. Gross, “The Experience of Emotion,” Annual Review of Psychology 58 (2007). 19 See e.g., Arlie Hochschild, The Managed Heart: The Commercialization of Human Feeling (Berkeley and Los Angeles: University of California Press, 1983). 20 See e.g., Catherine A. Lutz and Lila Abu-Lughod, “Emotion, Discourse, and the Politics of Everyday Life,” in Language and the Politics of Emotion, eds, Catherine A. Lutz and Lila Abu-Lughod (Cambridge: Cambridge University Press, 1990), 5. 21 See, e.g., Jan Plamper, The History of Emotions: An Introduction (Oxford: Oxford University Press, 2017); Rob Boddice, The History of Emotions. (Manchester: Manchester University Press, 2018). 22 Hochschild, “The Managed Heart.” 23 See Vik Kanwar, “Capital Punishment as ‘Closure’: The Limits of a Victim-Centered Jurisprudence,” New York University Review of Law and Social Change 27, no. 3 (2002); Berns, “Contesting the Victim Card,” 384. 16

Closure in the criminal courtroom: The birth and strange career of an emotion  105 The rapid embrace of closure has had significant legal consequences. Closure has served as a powerful argument in favor of victim impact statements, closed-circuit viewing of executions, limitations on appellate review, expedited execution schedules, and the death penalty itself. Thus, the uncertain and amorphous definitional status of closure is of immediate practical importance. To determine whether closure is something the criminal justice system can and should facilitate, it is essential to be more precise about what it requires. A decade ago, I argued that “closure” is an umbrella term for a host of loosely related concepts. Since that time, more information has been gathered about what closure means to survivors, enabling an even richer account of the multiple meanings of the term. Nevertheless, as one scholar observed, “there is no agreement about what it is, how it should be defined, or even whether or not it exists. Or, if it exists, how it can be achieved.”24 One notable aspect of closure discourse is that so much of it centers on capital cases. For example, as I will discuss below, the empirical studies of closure are uniformly focused on capital punishment. This singular focus is problematic for several reasons. First, the concept of closure has migrated to other types of cases as well—for example, rape and sexual assault cases. Second, many of the innovations that have been adopted in order to facilitate closure are available to victims of crimes other than capital murder—for example victim impact statements. Yet capital murder, non-capital murder, rape, and other crimes each raise some unique issues, and the recognition of these distinctions should be part of the debate. Most obviously, in capital cases execution is held out as the ultimate step to closure, yet this resolution is not an option for most murder victims’ families or for victims of other crimes. In addition, at the risk of stating the obvious, closure in murder cases involves family members, not the victims themselves. Thus, when the concept of closure is used to argue for innovations like victim impact statements that are available in non-capital cases, some important differences in dynamics arise—notably that the victim herself delivers the statement. Some of the most positive accounts of the healing results of victim impact statements have arisen in rape and sexual assault cases in which judges found the right words in response to victims’ harrowing stories.25 In the main, this chapter focuses on murder cases, and specifically on capital cases, but it will address other types of cases on occasion in order to flag some of these differences and their implications. In murder cases, at the most pragmatic level, closure might refer to the ability to find “answers to the terrible questions a murder may leave open—for example the circumstances of the murder or the identity of the killer.”26 The desire to find the facts accords with the most traditional and central roles of the criminal justice system. But it might also point toward less traditional modes like restorative justice conferences or victim-offender mediation, in which survivors have the opportunity to discuss aspects of the crime directly with the offender.27 Berns, “Contesting the Victim Card,” 383. Susan A. Bandes, “Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice,” in The Expression of Emotion: Philosophical, Psychological and Legal Perspectives, ed. Catherine Abell and Joel Smith (Cambridge: Cambridge University Press, 2016), 274 (citing Karen Miller, “Purposing and Repurposing Harms: The Victim Impact Statement and Sexual Assault,” Qualitative Health Research 23 (2013): 145). 26 Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 2, n.5. 27 Bandes, “Share Your Grief But Not Your Anger,” 283. See also Erin Ann O’Hara and Maria Mayo Robbins, “Using Criminal Punishment to Serve both Victim and Social Needs,” Law and Contemporary Problems 72 (2009). 24 25

106  Research handbook on law and emotion Closure is also sometimes described as a kind of catharsis; a purging of emotions. In this meaning, the struggle to attain closure might be aided by speaking of the loss, for example by delivering a victim impact statement. As I’ve discussed extensively elsewhere, this goal raises a number of thorny questions, both legal and psychological, including: does it require public speech, or just the chance to speak of the loss? Does it require an opportunity to speak frankly and sincerely, acknowledging complexity? Does it require speech during a formal legal proceeding? If so, must it occur prior to the sentencing decision (i.e., must it afford the opportunity to influence sentencing?) Does it require an opportunity to address the defendant directly, and if so, does it require a certain set of responses from the defendant? Each of these variants has practical significance. If closure requires the opportunity to speak in a courtroom during a formal sentencing proceeding,28 then the victim’s or survivors’ need to speak will need to be balanced against other legal values, including the length of the trial, the possible redundancy of the testimony, and the prejudicial effect of the testimony. In addition, survivors may find, as I will discuss below, that their emotions are not welcomed in all their complexity. Sometimes complexity competes with other courtroom agendas.29 Moreover, closure may require more than simply the opportunity to speak—it would be surprising if it did not depend, at least in part, on the reaction to the speech.30 The speaker, who has just imparted intimate and wrenching information in a public setting, may expect or hope that her statement will lead to a certain reaction in the courtroom, or to a particular sentence—and feel let down or disrespected when the desired outcome is not forthcoming. The speaker may also be affected by the facial expression and body language of jurors or the judge, or by the verbal response from the judge—if any. In the proceedings arising from the guilty pleas of Michigan State gymnastics coach Larry Nassar for the sexual abuse of numerous young female gymnasts, Judge Rosemary Aquilina heard the statements of 156 young women. She responded to these statements with words of support and encouragement for the victim—and even with her own tears. This sort of response, though it seemed indisputably helpful to these victims, is unusual, is not one judges are generally trained to provide, and in this case raised a number of questions about the judge’s impartiality.31 The speaker may

28 Victim impact statements are considered part of sentencing. Judges and juries are meant to regard them as information to be considered when determining sentence. For critiques of this notion, see Susan A. Bandes, “Empathy, Narrative, and Victim Impact Statements,” The University of Chicago Law Review 63, no. 2 (1996). For a discussion of the shifting rationales for victim impact statements see Bandes, “Share Your Grief But Not Your Anger.” In the Larry Nassar case, Judge Aquilina offered to conduct an additional hearing to ensure that all victims had a chance to be heard in a courtroom, though this hearing would have been entirely ancillary to the judge’s sentencing function. 29 Bandes, “Share Your Grief But Not Your Anger.” 30 As noted above, one troubling aspect of the “closure” framework in law is its lack of reference to existing literatures on healing from trauma. For example, the PTSD literature focuses on a number of features of the trauma victim’s experience in determining the best approach to healing, including the effects of third parties’ appraisals and reactions. See, e.g., Anke Ehlers and David M. Clark, “A Cognitive Model of Posttraumatic Stress Disorder,” Behavior Research and Therapy 38, no. 4 (2000): 322. Yet the goal of closure in the courtroom was adopted with no attention to the effects of the reactions of judges and other third parties. 31 See Jill Lepore, “Sirens in the Night,” The New Yorker, May 21, 2018, https://​www​.newyorker​ .com/​podcast/​comment/​sirens​-in​-the​-night (last accessed February 25, 2021). (Judge Acquilina was also unusually forceful in her condemnation of the defendant).

Closure in the criminal courtroom: The birth and strange career of an emotion  107 also hope for a certain reaction from the defendant—for example empathy or even remorse. In a restorative justice context, the parties are generally screened and educated before the encounter. No such safeguards exist in the U.S. capital courtroom. The survivor may face an unrepentant or even hostile defendant. Finally, “closure [has] come to stand for the constellation of feelings—peace, relief, a sense of justice, the ability to move on—that comes with finality.”32 It is this category that leads to the most difficult definitional questions. The term closure has a ring of finality to it, but survivors as a rule emphatically reject the notion that a legal proceeding or a legal outcome can heal the grief of loss—or that closing the book on loss entirely is even possible or desirable.33 A recent entry in the Oxford English Dictionary defines closure as “a sense of personal resolution; a feeling that an emotionally difficult experience has been conclusively settled or accepted,” but few who have lost family members to violence would accept closure in this sense as an attainable goal. Yet “closure” has decidedly entered the vocabulary of survivors. The term has become pervasive enough—or the expectation of closure powerful enough—that survivors often measure whether they have achieved closure, rather than question whether closure is a genuine state or an appropriate goal. For example: “this execution will not bring Richard back nor will it give me the closure I am looking for.”34 Or survivors may define closure in a way that both claims it is achieved and rejects its more common meaning. For example, one son stated of his murdered mother: “We’ll never recover from this. This brings some closure, but it does not bring back my mom.”35 Another stated: “It will be some closure, but I don’t think you would ever really get over it.”36 Others define closure as the silencing of the voice of the condemned37—the relief of not having to worry about seeing his face or hearing his voice again.38 As Madeira reports, a number of those who lost family members in the Oklahoma City bombing spoke of a need to execute Timothy McVeigh in part in order to silence him and remove his role as a looming, involuntary presence in their lives. As Kanwar points out, one fascinating aspect of the verdict in the case of Matthew Shepard’s murder is that Judy and Dennis Shepard, Matthew’s parents, did not seek the death penalty, believing they could achieve the goals of punishment more Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion,” 2. As one family member quoted by Robert Jay Lifton said: “Don’t use that word with me. I hate that word. I don’t know who made that word up. There is no closure. So many people don’t seem to understand that. There is no closure.” Cited in Berns, “Contesting the Victim Card,” 396. See also Madeira, “Capital Punishment, Closure, and Media,” 6 (“[The families who lost loved ones in the Oklahoma City bombing] almost unanimously denied that closure existed, lamenting the impossibility or finality of ‘getting over it’ and speaking instead of the possibility of adjusting or ‘moving on’”). 34 Corey Daniel Burton and Richard Tewksbury. “How Families of Murder Victims Feel Following the Execution of Their Loved One’s Murderer: A Content Analysis of Newspaper Reports of Executions from 2006–2011,” Journal of Qualitative Criminal Justice and Criminology 1, no. 1 (April 2013): 62. 35 Mowen and Schroeder, “Not In My Name,” 77. 36 Berns, “Contesting the Victim Card,” 389. 37 In non-capital cases in which parole is possible, the fear of release raises its own set of concerns. For an account of efforts by bereaved families to open release hearings to the public and adopt other reforms designed to keep families informed and safe, see the account of the group Parents of Murdered Children in Eric Schlosser, “A Grief Like No Other,” The Atlantic, September 1, 1997, https://​www​ .theatlantic​.com/​magazine/​archive/​1997/​09/​a​-grief​-like​-no​-other/​376944/​ (last accessed February 25, 2021). 38 See, e.g., Kanwar, “Capital Punishment as ‘Closure,’” 221. See also Madeira, “Capital Punishment, Closure, and Media,” 6. 32 33

108  Research handbook on law and emotion effectively without it. One such goal was a gag order prohibiting the defendant from speaking publicly—thereby achieving the goal of silencing him. Family members sometimes equate closure with the ability of their murdered family member to rest in peace (“My family can finally gain closure…and my sister can finally rest in peace.”)39 Some link closure explicitly to legal justice, for example: “We are glad justice has finally been done, and we can close this chapter,”40 and “23 years is a long time and this needed to happen. Justice is served today.”41 In expressions of this nature it is often difficult to disentangle the relief at the death of the defendant from the relief that the lengthy proceedings had finally come to a halt.42 Capital cases take far longer to resolve than non-capital cases, and often command the spotlight in ways that are intensely painful for the bereaved families.43 Indeed both the parents of Matthew Shepard44 and the Richard family (victims of the Boston Marathon bombing),45 explicitly rejected the death penalty in part because it would lead to such lengthy, heart-wrenching legal proceedings—proceedings in which the accused would take center stage. The Richards explained that a capital case could take years of appeals and prolong reliving the most painful day of their lives. In their open letter to the Attorney General’s Office, they stated, “As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours…The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.”46 Given the increasing centrality of closure in the argument for capital punishment, it becomes crucial to distinguish whether capital punishment helps promote closure, or adds to survivors’ pain, thus itself heightening the need for legal finality.

THE SOCIOLOGY OF EMOTION As sociologist Arlie Hochschild wisely warned, there are a number of misconceptions that interfere with the ability to study and understand emotion. The notion that emotions are private and internal is one such misconception. The notion that emotions are fixed and unchanging

Mowen and Schroeder, “Not In My Name,” 77. Burton and Tewksbury, “How Families of Murder Victims Feel,” 62. 41 Burton and Tewksbury, “How Families of Murder Victims Feel,” 62. See also Samuel R. Gross and Daniel J. Matheson, “What They Say at the End: Capital Victims’ Families and the Press,” Cornell Law Review 88, no.2 (2003): 492 (ending the painful process can become a major goal for families and sometimes the only realizable goal of the execution). 42 Burton and Tewksbury, “How Families of Murder Victims Feel,” 68. 43 The New Jersey Death Penalty Study Commission found that the non-finality of capital appeals hurts victims, drains resources and creates a false sense of justice. A New Mexico inquest commission found that death penalty cases keep opening wounds, focus attention on the defendants’ fate rather than honoring the victims’ memory, and add to families’ psychological burdens, increasing stress, feelings of powerlessness and internal moral struggle. Mowen and Schroeder, “Not In My Name,” 69. 44 Susan A. Bandes, “When Victims Seek Closure: Forgiveness, Vengeance, and the Role of Government,” Fordham Urban Law Journal 27, no. 5 (2000): 1600. 45 Bandes, “Share Your Grief But Not Your Anger,” 280. 46 Katherine Q. Seelye, “Parents of Youngest Boston Marathon Victim Oppose Death Penalty for Tsarnaev,” New York Times, April 17, 2015, https://​www​.nytimes​.com/​2015/​04/​18/​us/​martin​-richard​ -boston​-marathon​-bombing​.html. 39 40

Closure in the criminal courtroom: The birth and strange career of an emotion  109 objects is another. The sociology of emotion, in tandem with contributions from historians, anthropologists, and others, conceptualizes emotions not merely as internal feelings but as practices. These practices are instantiated largely through implicit knowledge; an “unconscious sense of what correct behavior in a given situation would be.”47 Yet as historian Pavel Vasilyev emphasizes in his discussion of the development of Soviet emotional regimes, these practices are neither unchanging nor predictable—they include the possibility for both resistance and change.48 Closure discourse vividly illustrates the dynamics of creating, enforcing and subverting emotional expectations in the social world. It permits us to view a speeded-up version of a common phenomenon—the feedback loop between emotions and institutions. Although the conventional wisdom, in its most naïve form, holds that emotion should be thoroughly cordoned off from the legal system, the literature on the philosophy of punishment sometimes takes another tack: arguing that punishment must reflect and permit expression of certain emotions that have “deep roots in the law”—retributive anger, for example.49 This claim tends to be both descriptive and normative: it holds that people have long held these feelings, that their deep roots give the feelings normative legitimacy, and that the legal system must provide some sort of avenue for their expression (albeit an avenue that tames and domesticates the feelings). But even to the extent the criminal justice system ought to reflect and implement certain emotions, there is another part to the feedback loop: the system’s role in modeling and shaping priorities. Legal institutions play a sizable role in guiding public reactions to crime and public expectations about what punishment ought to follow from crime: When respected institutions send the insistent message that only the death penalty can truly express appropriate condemnation for the most heinous crimes, and that only the death penalty can honor the worth of the victims of these crimes, that message has consequences…Once the death penalty is advertised as a sign of the highest respect for the victim, a prosecutor’s failure to bring capital charges, a jury’s failure to sentence the defendant to death, or the system’s failure to execute the defendant, are branded as signs of disrespect for the victim and inadequate moral condemnation.50

The path of closure discourse illustrates the tight ongoing symbiosis that can occur between emotions and institutions. The closure argument has functioned to expand the emotional domain of pro-death penalty rhetoric.51 It has (at least ostensibly)52 shifted the focus of capital punishment from the defendant to the emotional needs of the bereaved families, offering death penalty supporters the chance to frame their role as one of granting healing and closure to Pavel Vasilyev, “Revolutionary Conscience, Remorse and Resentment: Emotions and Early Soviet Criminal Law, 1917–1922.” Historical Research 90, no. 247 (2017): 126. 48 Vasilyev, “Revolutionary Conscience, Remorse and Resentment,” 126. 49 Douglas A. Berman and Stephanos Bibas, “Engaging Capital Emotions,” Northwestern University Law Review Colloquy 102 (2008): 360. See also Susan A. Bandes, “Child Rape, Moral Outrage, and the Death Penalty,” Northwestern University Law Review Colloquy 103 (2008) (responding to Berman and Bibas). 50 Bandes, “Child Rape, Moral Outrage, and the Death Penalty.”, id at no. 22. See also Scott E. Sundby, “War and Peace in the Jury Room: How Capital Juries Reach Unanimity,” Hastings Law Journal 62 (2010): 143–44 (recounting the ways in which juries sought to reassure victims’ family members that they valued the victim’s life even when they did not return a death sentence). 51 Kanwar, “Capital Punishment as ‘Closure’; Berns, “Contesting the Victim Card”; Bandes, “Victims, ‘Closure,’ and the Sociology of Emotion.” 52 When the needs of the families diverge from the prosecutor’s decisions on punishment, this shift may prove illusory. 47

110  Research handbook on law and emotion victims’ families rather than indulging in retributive anger.53 Closure discourse has worked to help shape feeling rules around the death penalty. These rules communicate that the legal system ought to help family members attain closure, and that after an execution, victims’ families ought to be relieved and feel a sense of closure.54 As with all feeling and display rules, violation of these rules carries consequences. Families may feel marginalized or shunned if they don’t accede to the dominant emotional narrative. For example, one parent of a Columbine victim recounted feeling little closure when his child’s murderer died, yet noted that he felt enormous pressure to acknowledge feeling closure. He said: “I have observed some in this community who want very much to hear no more about Columbine and to hear us say we’re finding closure.”55 One important question is how people implicated in these feeling rules negotiate the rules, negotiate competing claims about how they should feel, and set their own feelings rules when necessary.56 As Bern notes, “participants in death penalty cases need to follow feeling rules to gain the assistance of other actors in the legal process.”57 The consequences may be explicitly legal as well as emotional. One such consequence is that family members who do not accept the death penalty may be denied the opportunity to give victim impact statements,58 or may find their voices otherwise marginalized. For example, the Richard family, who suffered the death of a son and the grievous injury of several family members in the Boston Marathon bombing, felt that the death penalty would interfere with rather than aid with their healing process. Yet the prosecutor urged the jury to return a death sentence to help them achieve closure. The jury never saw the letter the Richards wrote to the Massachusetts attorney general urging a life sentence instead.

CURRENT RESEARCH AND METHODOLOGIES The rise of closure raises some core philosophical and jurisprudential questions about the role of the victim in the criminal justice system, many of which have empirical components. Until recently, the state (or the prosecutor’s office) was assumed to represent the victims and their families as part of its representation of the community as a whole.59 Victims have secured some important protections that have improved their treatment in criminal courts. But it remains to be seen what role the criminal justice system is willing to (or ought to) accord victims when their agendas diverge from the state’s agenda. Thus, one set of questions involves the extent to which closure truly is a victims’ rights goal, as opposed to a prosecutorial agenda that welcomes victims only when they are on board. A related and even more elusive question is this: in what ways does closure represent the genuine desires of victims and survivors, as opposed to an expectation that has been thrust upon them? More specifically, what is it that victims and survivors need, to what extent can the criminal justice system (as opposed to some other Kanwar, “Capital Punishment as ‘Closure.’” Berns, “Contesting the Victim Card,” 391. 55 Berns, “Contesting the Victim Card,” 396. 56 Berns, “Contesting the Victim Card,” 399. 57 Berns, “Contesting the Victim Card,” 401. 58 James R. Acker and David R. Karp, eds., Wounds That Do Not Bind: Victim-Based Perspectives on the Death Penalty (Durham: Carolina Academic Press, 2006): 253. 59 Bandes, “Empathy, Narrative, and Victim Impact Statements.” 53 54

Closure in the criminal courtroom: The birth and strange career of an emotion  111 institution) meet these needs, and what changes are necessary to enable the criminal justice system to provide them without doing undue harm to competing values like the constitutional rights of defendants? These questions are particularly pressing in a traditional adversary system like the U.S. criminal justice system, which has not given sufficient thought to what formal roles victims should play and what effect expanding the victims’ role will have on the structure of the system as a whole. They are more pressing still because the U.S. system has so readily embraced closure and implemented changes based on assumptions about closure. Yet there is very little empirical work on the topic. Madeira noted that when she began researching closure in the early 2000s, she found scant articles on the topic, and none including information from survivors. The situation has improved only marginally in the nearly two decades since. A prominent early work on closure was Frank Zimring’s chapter charting the birth of the concept. Zimring searched media references and concluded that the term “closure” began appearing in conjunction with references to the death penalty in 1989, and that the references grew exponentially in the ensuing years.60 It would be a dauting task to disentangle the media’s “bullhorn role in broadcasting the association between capital punishment and closure”61 from the ways in which that role is embraced and amplified by the legal system, and from the grassroots aims of victim advocacy groups (though it is important to emphasize that there are prominent victim advocacy groups whose members do not support the death penalty and who object to the monolithic portrayal of murder victims’ families).62 These relationships operate in a complex feedback loop. Fortunately, the empirical literature tends to acknowledge these difficulties and attempts to tease out distinctions where possible.

CONTENT ANALYSIS OF NEWS ACCOUNTS Several of the existing empirical studies focus on the attitudes of families as reflected in media coverage of capital trials or executions. For example, Mowen and Schroeder analyzed the content of nationwide newspaper reports on capital trials from 1992–2009 in order to “assess patterns of victim resistance to the death penalty over time, the reasons given for support or resistance… and the scope and primacy of the news coverage of the capital case.”63 Their final sample consisted of 119 newspaper articles written on death-eligible court cases—articles that included statements by, or on behalf of, victims’ families regarding their views on the death penalty. As they acknowledged, the small size of the sample was a function of the fact that most cases are not covered, that news organizations tend to cover only cases they regard as high profile or interesting, and that most coverage simply fails to mention the victims’ families’ positions at all.64 Their research revealed “a significant rise in co-victim [i.e., survivor] opposition to the execution of their specific offenders and a corresponding low percentage…

Zimring, The Contradictions of American Capital Punishment. Madeira, “Capital Punishment, Closure, and Media,” 2. 62 See e.g., Robert Renny Cushing and Susannah Sheffer, Dignity Denied: The Experience of Murder Victims’ Family Members Who Oppose the Death Penalty (Cambridge: Murder Victims’ Families for Reconciliation, 2002). 63 Mowen and Schroeder, “Not In My Name,” 65. 64 Mowen and Schroeder, “Not In My Name,” 71. 60 61

112  Research handbook on law and emotion of co-victim beliefs that the death penalty brings closure.”65 They also identified a disconnect between what families in fact support and what the court system claims families support. They found that court systems continue to rely on the families’ claimed support for capital punishment as a vehicle for closure even as the families themselves increasingly reject capital punishment.66 But as the authors noted, it was difficult to draw definitive conclusions, both because coverage was skewed in favor of high profile cases, and because “the true nature of public opinion is hard to separate from the nature of media outlets because they work reciprocally.”67 Gross and Matheson and, more recently, Burton and Tewksbury, focused on coverage of executions. Gross and Matheson studied coverage of 138 executions that occurred in 2001–2002. They found a range of reactions. In 49 of the executions, family members “expressed a clear desire for their ordeal to be over.”68 Some spoke concretely about the fact that the defendant was no longer a threat.69 More often, families stated “their desire for a conclusion in abstract… terms;” 11 family members used the term “closure,” and in another eight cases the stories used the term but not in direct quotes. “Some claim that the execution has provided ‘closure’; others express confidence that it will come eventually, or that the execution is one step along the path; and some say that ‘closure’ is impossible.”70 Some claimed that the execution gave them some measure of peace but did not use the word closure. Many referred to the execution as the end of a painful chapter, though not one that relieved the pain and grief of the loss.71 More recently, Burton and Tewksbury drew on family member statements in newspaper articles reporting on 138 executions spanning the years 2006–2011. As they describe it, “whereas Gross and Matheson…used the actual execution…as their unit of analysis, our study examined the family members as the unit of analysis” and thus focuses on the experiences of individuals.72 This focus coupled with the six-year time span allowed them to examine how the family members’ remarks “were influenced by the passage of time.”73 They found that the most common reaction to the execution was a feeling that it represented justice, followed by the sentiment that execution represents healing, closure, or a step toward either. About a third of the subjects expressed feelings of closure or hope for closure. The third most common reaction was that the execution did not contribute to healing or closure. For those who cited closure, it was typically expressed in terms of the end of the process rather than in terms of healing.74 Many referred to the length of time between the crime and the execution, and relief that the process was finally at an end.75 Both Gross and Matheson and Burton and Tewksbury noted the limitations of relying on news accounts, acknowledging that those who speak to the press are probably not a representative sample of all family members,76 and that the press

67 68 69 70 71 72 73 74 75 76 65 66

Mowen and Schroeder, “Not In My Name,” 72. Mowen and Schroeder, “Not In My Name,” 72. Mowen and Schroeder, “Not In My Name,” 77. Gross and Matheson, “What They Say at the End,” 490. Gross and Matheson, “What They Say at the End,” 490. Gross and Matheson, “What They Say at the End,” 491. Gross and Matheson, “What They Say at the End,” 492. Burton and Tewksbury, “How Families of Murder Victims Feel,” 54. Burton and Tewksbury, “How Families of Murder Victims Feel,” 54. Burton and Tewksbury, “How Families of Murder Victims Feel,” 61. Burton and Tewksbury, “How Families of Murder Victims Feel,” 65. Gross and Matheson, “What They Say at the End,” 486–7.

Closure in the criminal courtroom: The birth and strange career of an emotion  113 itself may filter and frame their stories through a pro-capital punishment lens.77 Tellingly, Burton and Tewksbury also note that their study had difficulty distinguishing between family members who experienced closure because of the execution and those who experienced relief that the capital proceedings had finally reached an end.78

CONTENT ANALYSIS OF A BROADER RANGE OF DOCUMENTS RELATED TO THE DEATH PENALTY DEBATE Sociologist Nancy Berns examined closure discourse, and particularly the ways in which death penalty advocates have shifted the framework of debate via “emotion- domain expansion.” She argues that “the cultural narrative of closure has been particularly useful for death penalty advocates because it allows them to broaden their emotion claims for why the death penalty is necessary.”79 She notes that abolitionists have countered these claims, but have also embraced the concept of closure “to frame their own claims such as advocating restorative justice, forgiveness, and life without parole as routes to closure.”80 To examine these uses of closure discourse, she engages in a qualitative analysis of a variety of documents, including “newspaper and popular magazine articles, web sites, social science and law journal articles, court cases, and books.”81 As she describes, death penalty advocates have used closure to shape feeling rules and expectations, including the expectation that victims’ families will be relieved and have a sense of closure after an execution; the assumption that “the pain felt when a loved one is murdered is so great that only the same suffering on the part of the offender will bring healing; and the rule that supporting the death penalty is the proper way to show support and sympathy for the victims’ families.”82 Her work suggests that these feeling rules have become institutionalized. The legal system increasingly offers opportunities for victims and survivors to seek closure (e.g., victim impact statements and statutes protecting the right to view executions). Participants in death penalty cases often feel intense pressure to conform to these rules, not only to avoid being treated as outliers, but in order to “gain the assistance of other actors in the legal process.”83 But on a more basic level, bereaved families long for relief from suffering. Whatever its history, closure—or the inability to achieve the promised closure—is now part of the emotional landscape of the criminal justice system.

Burton and Tewksbury, “How Families of Murder Victims Feel,” 68. Burton and Tewksbury, “How Families of Murder Victims Feel,” 68. 79 Berns, “Contesting the Victim Card,” 383. 80 Berns, “Contesting the Victim Card,” 384. 81 Berns, “Contesting the Victim Card,” 387. 82 Berns, “Contesting the Victim Card,” 391. 83 For example, survivors who do not support the death penalty continue to run into roadblocks when they seek to give victim impact testimony. See generally Acker and Karp, eds., Wounds That Do Not Bind. 77 78

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INTERVIEWS WITH THE FAMILIES OF MURDER VICTIMS AND OTHER SURVIVORS Two important contributions to the closure literature consist of direct interviews with murder survivors. The first is a study by Armour and Umbreit which compares the well-being of homicide victims’ family members in two states—one with the death penalty and one without. The second is Madeira’s book-length exploration of the effects of the Oklahoma City bombing on a group of family members and other survivors over time. 84 Armour and Umbreit used in-person interviews with a randomly selected sample of survivors85 from four time periods in order to measure the longitudinal impact of the sentence, drawing on survivors from Texas—a death penalty state—and Minnesota—a non-capital state. As they note, “conventional wisdom presumes the harshest punishment available will provide survivors with the utmost in justice, vindication, and satisfaction.”86 A crucial question arises: to what extent are these claimed benefits of punishment tied to the death penalty itself, and to what extent are they tied to the imposition of the ultimate penalty, even if that penalty is not death? As the authors note, the study had limitations and could only begin to explore these questions. One such limitation was that Minnesota had just recently adopted the sentencing option of life without parole (LWOP). Nevertheless, the study makes an enormously helpful first effort at isolating and examining various penal goals and how they can be achieved. The study concluded that the most important condition for survivors’ well-being is a sense of control over their lives. Respectful interactions and communication with prosecutors, the defense team, and members of the defendant’s family can also contribute greatly to well-being.87 The study also concluded that the received social expectation that survivors will experience closure plays a major role in the process, and rarely a beneficial one. Because of the length of the appeals process, survivors in Texas were particularly hard hit by the disjunction between what they were told they would feel and what they did feel. These survivors were often in limbo for 10–16 years after sentencing: not knowing if…the case would move forward…in their lifetimes. The impact of having achieved the ultimate sanction while living under threat of losing it, coupled with a sustained and undeviating lack of resolution, clearly undermines any control that survivors might have initially attained through the guilty verdict.88

See also Scott Vollum and Jacqueline Buffington-Vollum, “An Examination of Social-Psychological Factors and Support for the Death Penalty: Attribution, Moral Disengagement, and the Value-Expressive Function of Attitudes,” American Journal of Criminal Justice 35, no.1 (2010); Marilyn Peterson Armour and Mark S. Umbreit, “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison,” Marquette Law Review 96, no. 1 (2012); Jody L. Madeira, Killing McVeigh, The Death Penalty and the Myth of Closure (New York: New York University Press, 2012). 85 In this chapter I use the term “survivors” to refer to family members and others bereaved by murder. 86 Marilyn Peterson Armour and Mark S. Umbreit, “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison,” Marquette Law Review 96, no. 1 (2012): 84. 87 Armour and Umbreit, “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors,” 85. 88 Armour and Umbreit, “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors,” 87. 84

Closure in the criminal courtroom: The birth and strange career of an emotion  115 In Minnesota, however, survivors were not sure what to think about the newly adopted LWOP verdict. Many “wished for the death penalty believing that the murderer’s death would be more satisfying than LWOP.” The authors posit that in the absence of a developed and collectively held social expectation about what LWOP was supposed to provide survivors, there remained a void that was often filled by the belief that the death penalty is the “ultimate and preferred outcome.”89 The authors conclude that “survivor well-being is associated with a perceived sense of control, not the lofty or political ideal of closure,” which they describe as both ill-defined and insulting to survivors themselves. They suggest that “closure be reconfigured to convey a regained sense of control…a sense-making process…rather than a destination.”90 Madeira reaches a similar conclusion. Her study followed a group of 33 victims and family members of victims of the Oklahoma City bombing over a seven-year period.91 In these interviews she was able to explore the ways in which the victims’ and survivors’ evolving emotions were affected by institutions, including the legal system and the media that intensively covered the McVeigh trial and execution. Her participants revealed that to the extent closure was a meaningful concept to them, they did not conceive of it as a destination or as a state that could be conferred upon them by outside events or institutions. They firmly rejected the idea of closure as an end point or a cure. They saw it as neither a pure inward exercise of grief recovery nor a pure outward exercise of seeking vengeance.92 They viewed it instead as: an interactive process by which [they could construct] meaningful narratives of the bombing and its impact upon their lives, and how they have moved on, dealt with, adjusted to, or healed from this culturally traumatic event. [Closure is] a balancing act that demands “remembering the victim, representing the victim, channeling emotion into effective outlets, following legal proceedings, insisting on recognition, and moderating outward displays of anger and other emotions. 93

She concludes, much as Armour and Umbreit do, that it is not the role of institutions to heal victims, but “that victims can heal themselves, if only institutions can provide them with footholds to do so.”94

DIRECTIONS FOR FURTHER RESEARCH The question of where “closure” research should go from here is extraordinarily fraught and complicated. It is fair to say that there is a dearth of research on the topic, even in the death penalty context, and even less information in non-capital contexts. The research discussed above points in some promising directions. In particular, it is important to conduct more in-depth interviews with murder victims’ families, and to follow those subjects over time. It is important to expand the scope of the project to include victims of other crimes. It is also impor Armour and Umbreit, “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors,” 87–8. 90 Armour and Umbreit, “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors,” 95. 91 Jody L. Madeira, Killing McVeigh: The Death Penalty and the Myth of Closure (New York: New York University Press, 2012). 92 Madeira, Killing McVeigh, 48. 93 Madeira, Killing McVeigh, 38. 94 Madeira, Killing McVeigh, 60. 89

116  Research handbook on law and emotion tant to persist in the daunting task of attempting to identify the needs of victims and survivors as distinct from the goals of prosecutors and other legal actors, and from the role of media and public opinion. To be clear, these strands of the closure phenomenon cannot be cleanly disentangled, but it is essential to continue to delve more deeply into these overlapping, mutually reinforcing, and competing parts of the closure puzzle. As important as this work is, the very attempt to articulate a research agenda sheds light on the queasy and questionable nature of the task. In essence, closure burst on the scene less as a description of an emotional state or therapeutic aim than as part of a political agenda. Significant changes to the criminal justice system have been implemented in order to achieve this goal. These changes have implicated the grief and well-being of victims and survivors, and not always in salutary ways. As I have argued elsewhere, too often it has seemed that the emotions of murder victims’ families have been evoked only when they advanced other institutional goals.95 And yet “closure” has shaped much of the conversation about the needs of victims and survivors—in the media, in the courts, and elsewhere. As the research discussed above illustrates, the term itself is a moving target, and in order to study it, researchers often find themselves redefining or reframing it. This research has been welcome and essential, but it also raises the question of whether the investigation of “closure” as a discrete phenomenon should drive research agendas. A better approach would be to ask more directly: what do victims and survivors need in order to move forward? To what extent are these needs best met by the criminal justice system, rather than (or in conjunction with) other institutions? And to the extent the criminal justice system does appear to be in a position to effectuate these needs, what changes to that system are reasonable and appropriate? This latter question has another part to it—one that must also be front and center. Specifically: how would the proposed reforms affect the other legitimate goals of the criminal justice system, including the defendant’s right to a fair trial and the overall legitimacy and effectiveness of the system? Many changes have been implemented in the name of closure, including victim impact statements, truncated appeals processes, expedited executions, and the very notion of capital punishment as a therapeutic punishment. Each of these changes has consequences for the legitimacy and fairness of the criminal justice system. Closure, with its unearned patina of compassion and psychological pedigree, has for too long escaped rigorous scrutiny.

REFERENCES Acker, James R. and David R. Karp, eds. Wounds That Do Not Bind: Victim-Based Perspectives on the Death Penalty. Durham: Carolina Academic Press, 2006. Armour, Marilyn Peterson and Mark S. Umbreit. “Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison.” Marquette Law Review 96, no. 1 (2012): 1–131. Bandes, Susan A. “Empathy, Narrative, and Victim Impact Statements.” The University of Chicago Law Review 63, no. 2 (1996): 361–412. Bandes, Susan A. “Victim Standing.” Utah Law Review (1999): 331–48. Bandes, Susan A. “When Victims Seek Closure: Forgiveness, Vengeance, and the Role of Government.” Fordham Urban Law Journal 27, no. 5 (2000): 1599–606.

See, e.g., Susan A. Bandes, “Victim Standing,” Utah Law Review (1999).

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Closure in the criminal courtroom: The birth and strange career of an emotion  117 Bandes, Susan A. “Child Rape, Moral Outrage, and the Death Penalty.” Northwestern University Law Review Colloquy 103 (2008): 17–28. Bandes, Susan A. “Victims, ‘Closure,’ and the Sociology of Emotion.” Law and Contemporary Problems 72 (2009): 1–26. Bandes, Susan A. “Share Your Grief But Not Your Anger: Victims and the Expression of Emotion in Criminal Justice.” In The Expression of Emotion: Philosophical, Psychological and Legal Perspectives, edited by Catherine Abell and Joel Smith, 263–86. Cambridge: Cambridge University Press, 2016. Barrett, Lisa Feldman, Batja Mesquita Ochsner, Kevin N. Ochsner, and James J. Gross. “The Experience of Emotion.” Annual Review of Psychology 58 (2007): 372–403. Barrett, Lisa Feldman. How Emotions Are Made: The Secret Life of the Brain. Boston: Houghton Mifflin Harcourt, 2017. Beck, Julie. “Hard Feelings: Science’s Struggle to Define Emotions.” The Atlantic, February 24, 2015, https://​www​.theatlantic​.com/​health/​archive/​2015/​02/​hard​-feelings​-sciences​-struggle​-to​-define​ -emotions/​385711/​. Benner, Katie. “U.S. to Resume Capital Punishment for Federal Inmates on Death Row.” New York Times, July 25, 2019. https://​www​.nytimes​.com/​2019/​07/​25/​us/​politics/​federal​-executions​-death​ -penalty​.html. Berman, Douglas A. and Stephanos Bibas. “Engaging Capital Emotions.” Northwestern University Law Review Colloquy 102 (2008): 355–64. Berman, Mark. “Arkansas Execution Called Off After Supreme Court Denies Challenge.” Washington Post, April 18, 2017. https://​www​.washingtonpost​.com/​news/​post​-nation/​wp/​2017/​04/​17/​arkansas​ -fights​-to​-carry​-out​-unprecedented​-wave​-of​-executions/​?utm​_term​=​.03f39fed43e9. Berns, Nancy. “Contesting the Victim Card: Closure Discourse and Emotion in Death Penalty Rhetoric.” The Sociological Quarterly 50, No. 3 (2009): 383–406. Boddice, Rob. The History of Emotions. Manchester: Manchester University Press, 2018. Burton, Corey Daniel and Richard Tewksbury. “How Families of Murder Victims Feel Following the Execution of Their Loved One’s Murderer: A Content Analysis of Newspaper Reports of Executions from 2006–2011.” Journal of Qualitative Criminal Justice and Criminology 1, no. 1 (April 2013). Cushing, Robert Renny and Susannah Sheffer. Dignity Denied: The Experience of Murder Victims’ Family Members Who Oppose the Death Penalty. Cambridge: Murder Victims’ Families for Reconciliation, 2002. Ehlers, Anke and David M. Clark. “A Cognitive Model of Posttraumatic Stress Disorder.” Behavior Research and Therapy 38, no. 4 (2000): 319–45. Gross, Samuel R. and Daniel J. Matheson. “What They Say at the End: Capital Victims’ Families and the Press.” Cornell Law Review 88, no.2 (2003): 486–516. Hochschild, Arlie. The Managed Heart: The Commercialization of Human Feeling. Berkeley: University of California Press, 1983. Kanwar, Vik. “Capital Punishment as ‘Closure’: The Limits of a Victim-Centered Jurisprudence.” New York University Review of Law and Social Change 27, no. 3 (2002): 215–56. Lepore, Jill. “Sirens in the Night.” The New Yorker, May 21, 2018. https://​www​.newyorker​.com/​podcast/​ comment/​sirens​-in​-the​-night. Lutz, Catherine A. and Lila Abu-Lughod. “Emotion, Discourse, and the Politics of Everyday Life.” In Language and the Politics of Emotion, edited by Catherine A. Lutz and Lila Abu-Lughod. Cambridge: Cambridge University Press, 1990. Madeira, Jody L. “Capital Punishment, Closure, and Media.” The Oxford Research Encyclopedia, Criminology and Criminal Justice (2016). Madeira, Jody L. Killing McVeigh: The Death Penalty and the Myth of Closure. New York: New York University Press, 2012. Mencimer, Stephanie. “Florida Passes Law to Speed Up Executions.” Mother Jones, April 30, 2013. https://​www​.motherjones​.com/​crime​-justice/​2013/​04/​florida​-passes​-law​-speed​-executions/​. Miller, Karen. “Purposing and Repurposing Harms: The Victim Impact Statement and Sexual Assault,” Qualitative Health Research 23 (2013): 145.

118  Research handbook on law and emotion Mowen, Thomas J. and Ryan D. Schroeder. “Not In My Name: An Investigation of Victims’ Family Clemency Movements and Court Appointed Closure.” Western Criminology Review 12, no.1 (2011): 65–81. O’Hara, Erin Ann and Maria Mayo Robbins. “Using Criminal Punishment to Serve both Victim and Social Needs.” Law and Contemporary Problems 72 (2009): 199–217. Plamper, Jan. The History of Emotions: An Introduction. Oxford: Oxford University Press, 2017. Ryan, George. “Text of Illinois Gov. Ryan’s Letter to Victims’ Families.” Wall Street Journal, January 11, 2003. https://​www​.wsj​.com/​articles/​S​B104232443​1295098984. Santhanam, Laura. “Does The Death Penalty Bring Closure to A Victim’s Family?” PBS, April 25, 2017. https://​www​.pbs​.org/​newshour/​nation/​death​-penalty​-bring​-closure​-victims​-family. Schlosser, Eric. “A Grief Like No Other.” The Atlantic, September 1, 1997. https://​www​.theatlantic​.com/​ magazine/​archive/​1997/​09/​a​-grief​-like​-no​-other/​376944/​. Seelye, Katherine Q. “Parents of Youngest Boston Marathon Victim Oppose Death Penalty for Tsarnaev.” New York Times, April 17, 2015. https://​www​.nytimes​.com/​2015/​04/​18/​us/​martin​-richard​ -boston​-marathon​-bombing​.html. Sundby, Scott E. “War and Peace in the Jury Room: How Capital Juries Reach Unanimity.” Hastings Law Journal 62 (2010): 103–54. Vasilyev, Pavel. “Revolutionary Conscience, Remorse and Resentment: Emotions and Early Soviet Criminal Law, 1917–1922.” Historical Research 90, no. 247 (2017): 117–33. Vollum, Scott and Jacqueline Buffington-Vollum. “An Examination of Social-Psychological Factors and Support for the Death Penalty: Attribution, Moral Disengagement, and the Value-Expressive Function of Attitudes.” American Journal of Criminal Justice 35, no.1 (2010): 15–36. Zimring, Frank E. The Contradictions of American Capital Punishment. Oxford: Oxford University Press, 2003.

8. The aptness of anger1 Amia Srinivasan

1. In 1965, the Cambridge Union held a debate between James Baldwin and William F. Buckley Jr. on the motion ‘The American dream has been achieved at the expense of the American Negro.’ Baldwin’s essay The Fire Next Time had been published two years earlier; Buckley had been editor-in-chief of the conservative magazine National Review, which he founded, for the past decade. Both men were at the height of their fame, the most important public intellectuals, respectively, in the American civil rights movement and the American conservative movement. Baldwin took the floor first, and began in a quiet, recalcitrant tone: ‘I find myself not for the first time in the position of a kind of Jeremiah.’ He was to deliver bad news, but as history rather than prophecy:2 I am stating very seriously, and this is not an overstatement: that I picked the cotton, and I carried to market, and I built the railroads, under someone else’s whip, for nothing . . . for nothing. The southern oligarchy which has until today so much power in Washington . . . was created by my labour and my sweat, and the violation of my women and the murder of my children. This, in the land of the free and the home of the brave. And no one can challenge that statement. It is a matter of historical record.

Buckley responded not with disagreement, but a pragmatic challenge: What in fact shall we do about it? What shall we in America try to do ... to eliminate those psychic humiliations which I join Mr. Baldwin in believing are the very worst aspects of this discrimination? ... I agree with you that we have a dastardly situation, but I’m asking you not to make politics as the crow flies . . . [Negroes] have done a great deal to focus on the fact of white discrimination against Negroes. They have done a great deal to agitate a moral concern. But where in fact do they go now?

Politics ‘as the crow flies’ is a politics that insists on what should have been rather than what is, a politics that refuses to turn its gaze from past atrocity. It is also a politics, as Baldwin made clear, of anger. In its place Buckley exhorts a pragmatic politics, a politics that turns its gaze from the failures of the past in order to achieve the next-best outcome in the future. Whatever its ugly history, Buckley went on to argue, the American dream was now the best hope for the American Negro. Where better to improve his lot than in the United States, the ‘most mobile society in the world?’ What other dream to which to aspire than the American one? A bitter insistence on past injustice would only result in self-destruction. Negroes must avoid ‘the kind of cynicism, the kind of despair, the kind of iconoclasm’ represented by Baldwin. For in

1 This is a shortened version of a paper originally published in 2018. See Amia Srinivasan, ‘The Aptness of Anger,’ The Journal of Political Philosophy 26, no. 2 (2018): 123–44. 2 All quotations from The Riverbends Channel (2012), https://​ www​ .youtube​ .com/​ channel/​ UCGm5Oqp5rAbaC​-BoVPaPKnQ.

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120  Research handbook on law and emotion the end, Negro anger would be met, Buckley warned, with white violence: ‘If it does finally come to a confrontation, a radical confrontation . . . then we will fight the issue, not only in the Cambridge Union, but we will fight it ... on beaches and on hills and on mountains and on landing grounds.’ Tolerance might be extended to Negroes, but not to their anger. Fiery prophecy must give way to cool pragmatism. Buckley’s insistence that black anger is wrong because counterproductive for black people themselves places him in a long intellectual tradition. Seneca called anger ‘the most hideous and frenzied of all emotions’, and condemned it for being as liable to harm the raging subject as the object of his anger.3 The early Christian theologian John Cassian counselled that we ‘ought never . . . be angry at all, whether for good or bad reasons’, for anger threatens to darken the ‘main light of our heart’ with ‘shadows.’4 More recently, Glen Pettigrove has argued that anger should be avoided for its tendency to contaminate our capacity for epistemic rationality, while Martha Nussbaum has argued that anger is wrong even in circumstances of political injustice because of its tendency to alienate would-be allies, aggravate conflict, and ultimately undermine the pursuit of just outcomes.5 This ‘counterproductivity critique’ of anger also takes a concrete, politicised form, as in the debate between Baldwin and Buckley. Martin Luther King wrote of Malcolm X that in ‘articulating the despair of the Negro without offering any positive, creative alternative’ he has ‘done himself and our people a great disservice’ for ‘[f]iery, demagogic oratory in the black ghettos can reap nothing but grief.’6 The American journalist Jonathan Chait defended President Obama’s reluctance to get publicly angry about white racism on the grounds that Obama was employing the ‘sensible practice’ of encouraging black people to ‘concentrate on the things they can control’ rather than ‘lash[ing] out.’7 The riots in Ferguson, Missouri in response to the grand jury’s failure to indict an officer for murdering an unarmed black teenager prompted calls for reasonableness and calm from many liberal sympathisers. Writing on Israel’s 2014 Operation Protective Edge, in which Israel killed approximately 1500 civilians in the blockaded Gaza Strip, New York Times columnist Nicholas Kristof exhorted Palestinians to abandon the anger that ‘has accomplished nothing but increasing the misery of the Palestinian people’; if only Palestinians would adopt the model of Gandhi, Kristof argued, the result would ‘reverberate around the world and Palestinians would achieve statehood and freedom.’8 Women have long been told that feminist progress would be swifter if only they would be less shrill 3 Lucius Annaeus Seneca, ‘On Anger,’ In Moral Essays, Vol. 1, trans. John W. Basore (London: Heinemann, 1928), I.1. 4 John Cassian, The Twelve Books of John Cassian on the Institutes of the Coenpbia and the Remedies for the Eight Principle Faults. A Select Library of Nicene and Post-Nicene Fathers of the Christian Church, Second Series, Vol. II, trans. Edward C.S. Gibson (New York: Rivingtons, 1894), 8:12. 5 Glen Pettigrove, ‘Meekness and “Moral” Anger,’ Ethics 122, no. 2 (January 2012): 341–70; Martha Nussbaum, Anger and Forgiveness (Oxford: Oxford University Press, 2016). 6 Martin Luther King, The Autobiography of Martin Luther King, ed. Clayborne Carson (New York: Warner Books, 1998), 265–9. 7 Jonathan Chait, ‘Barack Obama, Ta-Nehisi Caotes, Poverty, and Culture,’ New York Magazine (March 19, 2014), http://​nymag​.com/​intelligencer/​2014/​03/​obama​-ta​-nehisi​-coates​-poverty​-and​-culture​ .html. 8 Nicholas Kristof, ‘Who’s Right and Wrong in the Middle East,’ The New York Times (July 19, 2014), https://​www​.nytimes​.com/​2014/​07/​20/​opinion/​sunday/​nicholas​-kristof​-whos​-right​-and​-wrong​-in​ -the​-middle​-east​.html.

The aptness of anger  121 about it. LGBT activists are reminded that progress takes time, and that stridency gets in the way. The counterproductivity of one’s anger is often seen as a dispositive reason not to get angry, whatever the circumstances. Often such counsel is issued in a spirit, as with Buckley, of at least putative sympathy for the victims of injustice. The counterproductivity critique has its opposing twin in a political tradition, one rooted in Black and feminist thought, that challenges the presupposition that anger is at best a weapon for self-harm. Thus Audre Lorde writes that ‘Every woman has a well-stocked arsenal of anger potentially useful against those oppressions…which brought that anger into being.’9 For Lorde, women’s anger is not only a source of energy that can directly serve political ends, but also a source of clarification, a means by which women can come to better see their oppression. Several feminist philosophers, including Marilyn Frye, Uma Narayan, Alison Jaggar and Lisa Tessman, have followed Lorde in underscoring the productivity of anger.10 This counter-tradition is welcome in no small part because it reminds us that the counterproductivity critique often turns on suspect empirical assumptions. It is historically naïve, after all, to think that white America would have been willing to embrace King’s vision of a unified, post-racial nation, if not for the threat of Malcolm X’s angry defiance. It is similarly naïve to think anger contains no salutary psychic possibilities for someone whose self-conception has been shaped by degradation and hatred. That said, this debate between critics and defenders of anger’s productivity tends to obscure something significant about anger. There is more to anger, normatively speaking, than its effects. For any instance of counterproductive anger we might still ask: is it the fitting response to the way the world is? Is the anger, however unproductive, nonetheless apt?11

2. There is a striking difference between how anger is discussed in political contexts and how we talk about anger in more mundane situations. In ordinary conversation, we can and do talk about whether anger, independent of its effects, is the apt response to how things are; whether how things are provides one reason to be angry; whether one’s anger is a fitting response to how things are. We talk as if anger exists within the space of intrinsic reasons, as opposed to merely instrumental reasons. Suppose you are my friend, and I ask you what reason you Audre Lorde, ‘The Uses of Anger: Women Responding to Racism,’ in Sister Outsider (Trumansburg, NY: Crossing Press, 1981), 124–33. 10 Marilyn Frye, The Politics of Reality: Essays in Feminist Theory (Trumansburg, NY: Crossing Press, 1983); Uma Narayan, ‘Working Together Across Differences: Some Considerations on Emotions and Political Practice,’ Hypatia 3, no. 2 (1988): 31–47; Allison Jaggar, ‘Love and Knowledge: Emotion in Feminist Epistemology,’ Inquiry 32, no. 2 (1989): 151–76; Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles (New York: Oxford University Press, 2005). For further defences of anger, see also Lucas Swaine, ‘Blameless, Constructive, and Political Anger,’ Journal for the Theory of Social Behaviour 26, no. 3 (September 1996): 257–74; Mario Wenning, ‘The Return of Rage,’ Parrhesia 8 (2009): 89–99. 11 For other discussions of anger’s aptness, see Macalster Bell, ‘Anger, Virtue, and Oppression,’ in Feminist Ethics and Social and Political Philosophy: Theorizing the Non-Ideal, ed. Lisa Tessman (London: Springer, 2009), 165–83; Agnes Callard, ‘The Reason to Be Angry Forever,’ in The Moral Psychology of Anger, eds, Owen Flanagan and Myisha Cherry (Lanham: Rowman and Littlefield, 2017), 123–37. 9

122  Research handbook on law and emotion have for being angry with me. You respond: ‘because you were late again!’ I say, ‘Well, you shouldn’t be. I told you I was going to be late.’ The subject of our conversation is whether your anger about my lateness really is fitting, whether my lateness constitutes a genuine intrinsic reason for your anger. In ordinary conversation, we can and do mark a distinction between intrinsic and instrumental reasons for getting angry. If you are someone who takes pleasure in getting angry, I might say to you ‘I know it makes you feel good to get angry, but you really have no reason to be.’ Here I contrast your instrumental reason for getting angry—it gives you pleasure—and your (lack of) intrinsic reason for getting angry. It is also striking that in ordinary, everyday situations, a shift of focus from intrinsic to instrumental justification for anger often comes across as a non sequitur (at best) and morally obtuse (at worst). If an unfaithful lover says in response to your anger: ‘you shouldn’t get angry because it’s just going to make me cheat more’, you have just been given additional reason for anger. For two wrongs have now been done: first, the initial betrayal of your trust, and second, the subsequent refusal to treat your anger at that betrayal as existing within the space of intrinsic reasons. The proponents of the counterproductivity critique run the risk of this second sort of wrong. It is a wrong that has something in common—in structure, if not intent—with the most straightforwardly oppressive ways of speaking about anger. The misogynist dismisses a woman’s anger by calling her shrill or strident; the racist dismisses the black person’s anger by calling him a thug or an animal. These are not mere insults. These are rhetorical strategies that shift the explanatory context for the subject’s anger from the space of reasons to the space of causes. The misogynist or racist explains away the woman’s or black person’s anger as a product of inferior character, treating the question ‘why is this person angry?’ as a request for a causal explanation rather than a justificatory one. And so the bigot says: she is only angry because she’s a shrill bitch; he’s only angry because he’s a thug. Thus the bigot obscures the possibility that the woman or black person’s anger is apt. Intentionally or not, the counterproductivity critic achieves a similar effect. When is anger apt? Consider the difference between anger and another negative emotion: disappointment. What makes anger intelligible as anger, and distinct from mere disappointment, is that anger presents its object as involving a moral violation: not just a violation of how one wishes things were, but a violation of how things ought to be. When I say that I am disappointed that you betrayed me, I imply that I wish you hadn’t; when I say, by contrast, that I’m angry that you betrayed me, I imply that you shouldn’t have. (This isn’t to say that if I’m angry that you betrayed me, I must believe that you ought not have betrayed me; I am concerned here with the normative evaluation expressed by my emotion, which might well come apart from my normative beliefs about the situation.)12 Since anger presents its object as involving a moral violation, one’s anger that p is apt only if p constitutes a genuine moral violation. If I am angry that you didn’t come to the party but your not coming to the party constitutes no moral violation, then my anger is hardly fitting.

12 Thus I am denying cognitivism about anger, the view that anger is, or at least partially composed of, a judgment. One can think that anger is an evaluative attitude without thinking that anger is a judgment. See, e.g., Julien Deonna and Fabrice Teroni, The Emotions: A Philosophical Introduction (London: Routledge, 2012).

The aptness of anger  123 What of the common claim—made for example by Nussbaum13—that anger necessarily involves a desire to make the offending party suffer? Nussbaum inherits this claim from antiquity; both Aristotle and the Stoics seem to have agreed that anger constitutively involved a desire for revenge. In turn Nussbaum uses this claim to support the conclusion that anger is never apt, for either, she argues, it involves the false belief that revenge will undo the original harm, or the morally suspect desire to ‘downrank’ the offender. Perhaps this was true of the ancients. But is it true for us? Myles Burnyeat argues that the erosion of the honour code under the influence of Christianity has made common a form of anger that involves no desire for revenge—a possibility unthinkable, he says, to the ancients.14 Indeed one might think that anger without the desire for revenge is something many of us know well. Suppose my friend betrays me, and I am angry with her. I might want revenge. But might I not want the friend to recognise the pain she has caused me? It might be that this sort of recognition itself involves suffering. If so then, in a sense, I want my friend to suffer. But I don’t want her to suffer willy-nilly; my anger hardly calls out for her to break her leg, or fall ill. Rather I want her to experience that suffering that comes precisely from taking part in my own. This desire for recognition is not the same as a desire for revenge. As such, the most compelling argument for the wholesale condemnation of anger—that it constitutively involves a revenge-drive—can, I think, be left aside.

3. Whether anger is an apt or fitting response to the world does not turn on the consequences, good or bad, of that anger. Apt anger can be counterproductive, making the angry person worse off, and indeed exacerbating the very situation at which she is angry. Plausibly, this is especially true for victims of systematic injustice, whose apt anger at their oppression may well invite further violence. If so, victims of injustice sometimes face a conflict between getting aptly angry at injustice, and bettering (or at least not worsening) their situations. Just what sort of conflict is this? Prudence recommends against counterproductive anger.15 But there might well be more counting against counterproductive anger than mere prudence. Insofar as one has a moral duty to care for oneself—a duty of which many are understandably sceptical—then there might be moral reason not to get counterproductively angry. And insofar as one’s getting angry would lead to the harming of others—e.g., by inviting violence not just against oneself but also members of one’s family or community—then, again, one might have moral reason not to get angry. Thus apt counterproductive anger is not merely prudentially irrational, but in at least some cases potentially morally objectionable. Martha Nussbaum, Anger and Forgiveness. Nussbaum recognises a category of anger that does not involve the revenge impulse, which she calls ‘transition-anger’. But in her view, transition-anger is very rare. 14 Myles Burnyeat, ‘Anger and Revenge,’ Howison Lectures in Philosophy (September 25, 1996), https://​gradlectures​.berkeley​.edu/​lecture/​freedom​-anger​-tranquility​-an​-archaeology​-of​-feeling/​. 15 I’m not assuming that counterproductive anger doesn’t have any positive psychic pay-off for agents—that there is no pleasure, for example, to be taken in anger. I’m imagining cases in which anger, whatever its positive pay-off, anger the agent all-things-considered worse off than she would otherwise be. 13

124  Research handbook on law and emotion What, meanwhile, speaks in favour of apt counterproductive anger? What sort of value does an apt response have? I want to suggest that getting angry is a means of appreciating the injustice of the world, and is valuable in much the same way as our capacity for aesthetic appreciation.16 Just as appreciating the beauty of something has a value distinct from knowing that something is beautiful, there might well be a value to appreciating the injustice of the world through one’s apt anger—a value that is distinct from that of simply knowing that the world is unjust. Imagine a person who does everything by the ethical book—forming all the correct moral beliefs and acting in accordance with all her moral duties—but who is left entirely cold by injustice, feeling nothing in response to those moral wrongs of which she is aware. I don’t want to say that such a person has done anything wrong. But I do think it is natural to say that there is something missing in her; indeed, that it would be better, ceteris paribus, if she were capable of feeling anger towards the injustice she knows to exist. Of course, the sceptic about apt anger’s intrinsic value would argue that all that really matters is how an agent responds in action, not affect, to injustice; anger, the sceptic says, is at best instrumentally valuable for its role in getting us to act as we should. Since our hypothetical person acts impeccably without the aid of apt affect, she lacks nothing. Notice that a similar argument can be run against the intrinsic value of apt aesthetic responses: our capacity to appreciate the beautiful is only instrumentally valuable for its role in getting us to act as we should (that is, respecting what is aesthetically valuable). I think such scepticism should be rejected as simply that: a scepticism that can be broadly expanded to include anything that we intuit of intrinsic value, including epistemic goods like truth, justification, and knowledge. The sceptic is wrong to say that all we really do care about is correct action, and not apt affect—and he offers us no compelling reason to think that this is all we should care about. That said, apt anger is not perfectly analogous to aesthetic appreciation: to get aptly angry is not merely to appreciate the disvalue of an unjust situation. Anger is also a form of communication, a way of calling for the shared negative appreciation of others. Anger does not always succeed in this call. Sometimes our anger calls for public recognition but is met with dismissal or retrenchment. And sometimes it might well be that our best chance of doing good in the world is to rid ourselves of anger: to stop appreciating the world’s awfulness in order to be able to do something about it. Perhaps, all things considered, this is sometimes a sacrifice worth making. But my point is that it is a sacrifice, one that lies at the heart of the conflict represented by apt counterproductive anger. In such cases, victims of injustice must choose between making the world as it should be, and appreciating the world as it is. This conflict is not merely psychically painful; it is a genuine normative conflict, a conflict involving competing and significant goods. This first-personal conflict faced by the victim of systematic injustice has a second-personal counterpart. As I’ve said, counterproductivity critics often position themselves as well-meaning sympathisers. They are concerned, they say, with the interests of those treated unjustly. But there is something morally insensitive in their rallying cry: ‘don’t get angry, it only makes things worse!’ It suggests that the moral violation is not so bad, just a practical problem to be solved, rather than a wrongdoing to which its victim must bear witness. It suggests that the primary locus of responsibility for fixing the problem lies with the victim rather than the perpetrator. Indeed it risks obscuring the fact that this advice is good advice only because of unjust and contingent social arrangements in which the critic himself is often complicit.17 The Thanks to Stephen Darwall for the suggestion of the term ‘appreciation’. To the extent that anger’s counterproductivity is determined by anger’s deleterious effects on epistemic rationality, then the counterproductivity of anger does indeed seem to be (given human psy16 17

The aptness of anger  125 advice not to get angry can be defended as merely prudential counsel. But that defence fails to understand how the insistence on people’s pragmatic interests can itself be oppressive, an obfuscation of the fundamental injustice at work. And yet, there is also something morally troubling about the opposing rallying cry: ‘nurse your anger!’ In this we might hear a lack of care for the suffering agent herself; we might detect a threat that she will be instrumentalised for a political cause. Neither of these slogans is morally right on its own, and yet both contain some truth. We want to say both at once, and yet that will be to offer practically incoherent advice. As experienced by the sympathetic bystander, this second-personal conflict does not carry with it the psychic sting of the first-personal conflict. But imagine its subject to be the parent of a child who is facing an occasion for apt counterproductive anger—say the parent of a young black girl who is regularly sexually harassed at school.18 How does the parent advise her child? Here the conflict is raised acutely, with all the sting (perhaps more) of the first-personal conflict. I have suggested that occasions for apt counterproductive anger present victims of injustice with substantive and psychically costly normative conflicts. I want to draw out two lessons from this. First, those who argue that one ought not to get angry whenever it would be counterproductive to do so face an argumentative burden. They must explain why it is that in cases where one’s anger would be counterproductive yet apt, prudential considerations must overwhelm aptness considerations.19 It is not obvious, in these kinds of cases, that the normative demands to better one’s unjust situation trump the normative demands to appreciate the badness of one’s situation. We are due an account of why, in such cases, counterproductivity considerations trump all else. Without such an account, one might well be suspicious that the counterproductivity critique—as is the case of Buckley’s response to Baldwin—is more often an attempt at social control than a manifestation of genuine concern. The second lesson is this. During a radio interview in 1961, James Baldwin was asked to elaborate on comments he had made in a review of the poems of Langston Hughes. He said: [T]o be a Negro in this country and to be relatively conscious is to be in a rage almost all the time ... [T]he first problem is how to control that rage so that it won’t destroy you ... You have to decide that you can’t spend the rest of your life cursing out everybody that gets in your way. As a writer, you have to decide that what is really important is not that the people you write about are Negroes, but that they are people, and that the suffering of any person is really universal. If you can reach this level, if you can create a person and make other people feel what this person feels, then it seems to me that you’ve gone much further, not only artistically, but socially ... I talked about Langston not being the first poet to find these responsibilities all but irreconcilable. And he won’t be the last, because it demands a great deal of stepping out of a social situation in order to deal with.20

chology) fixed. But I take it that a large part of what makes anger counterproductive (when it is counterproductive) are the contingent ways that we respond to the anger of oppressed people. 18 For a detailed discussion of the disproportionate amount of sexual harassment (and gendered violence more generally) that targets black girls in American schools, see Sonja Tonnesen, ‘Hit It and Quit It: Responses to Black Girls’ Victimization in School,’ Berkeley Journal of Gender, Law & Justice 28 (2013): 1–29. 19 There is a straightforward case to be made from the perspective of the counterproductivity critic if getting aptly but counterproductively angry would violate a categorical moral duty either to oneself or another. But if there are simply moral and prudential reasons not to get angry, and ‘aptness’ reasons to get angry, I take it that this burden must still be met. 20 James Baldwin et al., ‘The Negro’s Role in American Culture,’ interview by WBAI-FM New York, January 10, 1961, audio, https://​www​.p​acificarad​ioarchives​.org/​ recording/bb3297.

126  Research handbook on law and emotion For Baldwin, both he and Hughes best served the world ‘not only artistically, but socially’ through the sort of writing that transcended raw anger in order to achieve a hard-won universality. On Baldwin’s view, not only art but justice demanded the setting aside of their justified daily rage. In this way he accepted the empirical presupposition at the heart of Buckley’s counterproductivity critique—that black anger didn’t best serve the interests of black people. But unlike many counterproductivity critics, Baldwin knew all too well that this generated a profound conflict for black Americans. Indeed Baldwin here is speaking, I want to suggest, of two kinds of injustice. First is the daily oppression of being a black person in the US— impoverishment, ghettoisation, threat of physical attack, political and social marginalisation, psychic degradation. These are the things that cause a ‘relatively conscious’ black American to be in a rage ‘almost all the time.’ And second is what I want to call affective injustice:21 the injustice of having to negotiate between one’s apt emotional response to the injustice of one’s situation and one’s desire to better one’s situation—a conflict of responsibilities that are ‘all but irreconcilable.’22 Affective injustice, I take Baldwin to be suggesting, partly constitutes the injustice of the black American situation. Affective injustice is a second-order injustice that is parasitic on first-order injustice, a sort of psychic tax that is often levied on victims of oppression. But it is not only a psychic tax. Like more familiar kinds of injustice, the wrongness of affective injustice does not lie primarily in the fact that it makes its victims feel bad. Its wrongness lies rather in the fact that it forces people, through no fault of their own, into profoundly difficult normative conflicts—an invidious choice between improving one’s lot and justified rage. That said, first-order injustice need not be accompanied by affective injustice. It is possible that getting aptly angry about some first-order injustice would actually improve one’s situation. But that is likelier to be true for someone whose anger is not seen as sufficient reason to dismiss her from the public sphere—likelier, that is, for the sort of person who is not already stereotyped as rageful, violent, or shrill. If this is right—if affective injustice is a genuine phenomenon, one that disproportionately affects those who are already disproportionately affected by more familiar forms of injustice—then our political arrangements are festering with much unrecognised 21 In the kind of cases I am primarily interested in, anger is counterproductive because of contingent, unjust social arrangements—namely, because the anger of victims of systematic injustice is treated as sufficient reason to further ignore, marginalise, or oppress them. But anger might be counterproductive not because of any underlying injustice. For example, it might be counterproductive for a victim of racism to get angry because doing so would make his blood pressure rise precipitously. I am inclined to count this sort of case as also a case of affective injustice. For I want to say: not only is this man a victim of racism, he also faces an invidious choice between getting justifiably angry at this racism and keeping himself, quite literally, alive. That said, I am open to the thought that the category of affective injustice should be narrowed, such that affective injustice only arises when one’s apt emotional response to injustice would be counterproductive as a result of an underlying injustice in how one’s emotional responses are treated—most obviously, through negative prejudicial stereotypes. I am grateful to an anonymous referee for The Journal of Political Philosophy for raising this issue. 22 I mean affective injustice to be a genus of which occasions for apt counterproductive anger represent one species. One could also suffer affective injustice by being presented with an occasion for apt but counterproductive sadness, hopelessness, despair, etc. (perhaps where the counterproductivity of those affective attitudes is the product of an underlying injustice). The notion of affective injustice bears many similarities to Miranda Fricker’s (2007) notion of epistemic injustice, the injustice that occurs when one is epistemically harmed (e.g., by being deprived of hermeneutical resources for understanding one’s oppressed position, or being treated as an unreliable testifier) as a result of underlying social injustices (i.e., negative prejudicial stereotypes).

The aptness of anger  127 injustice. More simply, things are even worse than we generally take them to be. This is the ugly truth that those who would dismiss anger on the grounds of its counterproductivity obscure, inadvertently or purposefully.

4. What should we do when the demands of affective appreciation conflict with the demands of prudence? There is a standard philosopher’s way of hearing that question, and a standard philosopher’s way of answering it. We hear it as a question about what, in general, agents facing these conflicts ought to do, and we answer it by saying: these agents ought to do what they have all-things-considered reason to do, or what they practically ought to do, and so on. There are of course philosophers who resist the idea that there is a fact of the matter about what we have ‘all-things-considered reason’ to do, or the idea that there is some normatively supreme ‘practical’ ought that resolves such conflicts. Such resistance is often motivated by phenomenological considerations: these conflicts just feel too hard, too irresolvable, for there to be such an easy way through. Indeed, talk of what we have ‘all-things-considered reason to do’ perhaps risks making the choice between apt anger and self- preservation sound no more fraught than the choice between going to the theatre or to the cinema; some might think it sits badly with Baldwin’s observation that such conflicts involve responsibilities that are ‘all but irreconcilable’. I do not wish to take a stand on this question. Either way, we are left wanting to know what those who actually face such situations ought to do. This is the pressing political question. Heard as a request for political guidance, and not just a theoretical question about the metaphysics of normativity, it is hard to know how to respond—except to say that agents should be guided by both a concern for appreciating the world as it is, and making the world as it ought to be. But that is merely a pleasant way of re-describing a vexing problem. Let me suggest a different way of thinking about what we might do about such conflicts. The conflicts I have described are of the kind that particularly interested Hegel—that is, conflicts that are the result of our contingent social and political arrangements. For Hegel, the political utility of tragic spectatorship lies in tragedy’s ability to dramatise the conflicts to which such contingencies give rise; the canonical case is that of Antigone’s conflict between her filial and civic duties. Tragedy calls on us to achieve reconciliation: the re-arrangement of our political circumstances so that such conflicts no longer arise, or at least do not arise quite so often. In a Hegelian spirit, we can ask: what would need to change for there no longer to be occasions for apt counterproductive anger? Given what I’ve said about the relationship between such occasions and first-order injustice, two options present themselves. First, we could make it the case that there were no longer any occasions for apt anger—in other words, that there were no injustices. Such a moral utopia would certainly offer a resolution to affective injustice, but it is not a resolution that offers much hope in the actual context of our thoroughly non-ideal politics. Alternatively, we could push the other lever at hand: not anger’s aptness, but anger’s counterproductivity. What would it take, we might ask, to lessen the counterproductivity of anger? Seneca wrote that anger is ‘closed to reason’, that the mind ‘if it plunges into anger . . . has no power to check its impetus; its very weight and the downward tendency of vice needs

128  Research handbook on law and emotion must hurry it on, and drive it to the bottom’.23 Anger is presumed to be the enemy of reason, threatening to corrupt and degrade it. Insofar as we cleave to the liberal aspiration for a rational politics, it seems that an angry person must be unsuitable for political community. It is little wonder, then, that defenders of anger tend to be suspicious of the liberal enchantment with the idea of a rational politics. If a rational politics has no room for anger, then it has no room for one of the few weapons available to the oppressed. Thus the invocation of ‘rationality’ (like the invocation of ‘civility’) becomes an invocation of the status quo. Insofar as a rational politics has no place for anger, I am tempted to think: so much the worse for rational politics. But we should query the premise. If anger is rationally evaluable—if it is something we do for reasons, good and bad—then it has at least a prima facie place in a rational politics. Opponents of anger, like the Stoics or Pettigrove, might respond that even if anger is evaluable in terms of reasons, its downstream effects on epistemic rationality are so grave that it should be, in the final analysis, excluded from politics.24 But this is an open, and indeed largely empirical question. As I have already mentioned, many philosophers argue that anger can be a source of moral and political knowledge. If so, then the knowledge delivered by anger must be weighed against its negative epistemic effects. Moreover, if apt anger is itself a cognitive good, like true belief or knowledge—not a mere feeling, but (when apt) an appreciation of the facts— then, whatever its negative effects on rationality, its intrinsic value must also be totted up against them.25 It also remains an open normative question whether we are ever obliged to sacrifice one cognitive good in the interest of acquiring others: whether we are obliged, for example, to sacrifice an instance of apt anger for an increased ability to evaluate the evidence neutrally. For it is not at all clear that we are obliged to maximise the value of our total cognitive economies.26 Like the claim that the one should always be sacrificed for the many, epistemic consequentialism has a whiff of repugnance about it, a seeming failure to register the non-fungible value of certain goods. For my part, I find it not implausible that apt anger is such a good: that it is an intrinsically worthwhile thing not only to know but also to feel the ugly facts that structure our political reality. If so, then a rational politics would not be a politics without anger, and anger would not constitute sufficient grounds for dismissing someone from the public sphere. I said above that, while true enough, it is not particularly helpful to say that we can alleviate affective injustice by removing first-order injustices. But perhaps it’s not any more helpful to suggest, as I just have, that we should make anger less counterproductive by dissolving the false dichotomy between anger and reason. Presumably this dichotomy is sustained not because of a philosophical mistake, but because it is useful for the preservation of the status quo. Since it is oppressed people who have greatest reason to be angry, excluding anger from

Seneca, ‘On Anger,’ III.1. Pettigrove describes several psychological studies that suggest ‘that “moral” anger can have an adverse effect on an agent’s judgement across a wide range of morally relevant domains. Not only is the person who is angry about something at work more likely to come home and kick the cat, but, these studies suggest, he or she is more likely to believe the cat deserves it. So even if “moral” anger has the epistemic merits that advocates have claimed on its behalf, these are accompanied by enough epistemic liabilities to temper whatever enthusiasm we might have felt for it.’ Glen Pettigrove, ‘Meekness and “Moral” Anger,’ 364. 25 In this anger need not be different from other cognitive goods, like belief. 26 For discussions of maximising and consequentialist views of the cognitive sphere, see Berker 2013a and 2013b. 23 24

The aptness of anger  129 the public sphere is an efficient rationalisation for excluding those who most threaten the reigning social order. There is a philosophical mistake here (or so I have suggested), one that philosophers have no doubt helped to keep in place, and that perhaps philosophers can help to remedy. But the real mistake is an ethical one — except that ‘mistake’ makes it sound like a mere accident. What I really mean to say is that we think and talk about political anger in the way we do because it serves those whom anger most stands to threaten, and that this is no mistake at all. ‘Rage’ is the first word of Western literature, and in the Western tradition, it is the spectre of the raging Achilles that has haunted the debate about anger’s normative status. The Aristotelian defenders of anger thought that a man who failed to get angry at slights was slavish; such a man would never be an adequate fighter, for anger is, in Cicero’s ironic phrase the ‘whetstone of courage.’27 If there were no anger, there would be no Achilles: no men to risk their lives, defend honour, and punish wrongdoing. The Stoics, anticipating a modern settlement in which legitimate violence is consolidated in the hands of the state rather than the hands of individual men, saw anger as destabilising and destructive. What was needed was reason without affect; the Stoical ideal was not a vengeful Achilles, but a cool-headed judge. But for the Aristotelians and Stoics alike, the question ‘ought one ever get angry?’ was implicitly understood to be about the powerful: free, wealthy men, with the capacity for unchecked violence. The question was whether such men should make themselves into a new kind of man, with the power of a civic ruler rather than a tribal warrior, but powerful nonetheless. It was simply taken for granted that women and slaves had no business getting angry; the debate about anger was never about them. Christianity told the same men that they should be neither judge nor warrior, but instead forgiving and meek. Here women and slaves might have been the model, but they were only models; it was through a free choice to wilfully transfigure oneself into a submissive lamb that Christianity offered its deepest power. A recognition of anger’s aptness might seem to threaten a return to the petulant and vengeful Achilles, a backwards slide into a form of life in which justice is not the business of the state, but the personal lot of each man. We tell ourselves that we have set anger aside, that we no longer have any need of it. Invoking the spectre of the raging Achilles, we condemn anger. But in so doing we neglect, as we have always neglected, those who were never allowed to be angry, the slaves and women who have the power of neither the state nor the sword.

REFERENCES Baldwin, James, Emile Capoya, Alfred Kazin, Lorraine Hansberry, and Langston Hughes. ‘The Negro’s Role in American Culture.’ Interview by WBAI-FM New York, January 10, 1961, audio, https://​www​ .p​acificarad​ioarchives​.org/​ recording/bb3297. Partially reprinted in Negro Digest XI (March 1962): 80–98. Bell, Macalster. ‘Anger, Virtue and Oppression.’ In Feminist Ethics and Social and Political Philosophy: Theorizing the Non-Ideal, edited by Lisa Tessmand, 58–77. London: Springer, 2009. Berker, Selim. ‘The Rejection of Epistemic Consequentialism.’ Philosophical Issues 23 (2013): 363–87. Berker, Selim. ‘Epistemic Teleology and the Separateness of Propositions.’ Philosophical Review 122 (2013): 337–93.

27 Marcus Tullius Cicero, Cicero on the Emotions: Tusculan Disputations 3 and 4, trans. and ed. Margaret Graver (Chicago: University of Chicago Press, 2002).

130  Research handbook on law and emotion Burnyeat, Myles. ‘Anger and Revenge.’ Howison Lecture in Philosophy (Berkeley: September, 25, 1996). http://​gradlectures​.berkeley​.edu/​ lecture/freedom-anger-tranquility-an-archaeology-of-feeling/. Burnyeat, Myles. ‘Excuses for Madness.’ London Review of Books 24 (2002): 3–6. Callard, Agnes. ‘The Reason to be Angry Forever.’ In The Moral Psychology of Anger, edited by Owen Flanagan and Myisha Cherry, 123–37. Lanham: Rowman and Littlefield, 2017. Cassian, John. 1894. The Twelve Books of John Cassian on the Institutes of the Coenpbia and the Remedies for the Eight Principle Faults. A Select Library of Nicene and Post-Nicene Fathers of the Christian Church, Second Series, Vol. II. Translated by Edward C.S. Gibson. New York: Rivingtons, 1894), 8:12. Chait, Jonathan. ‘Barack Obama, Ta-Nehisi Coates, Poverty, and Culture.’ New York Magazine, March 19, 2014. Cicero, Marcus Tullius. 2002. Cicero on the Emotions: Tusculan Disputations 3 and 4. Translated and edited by Margaret Graver. Chicago: University of Chicago Press, 2002. Deonna, Julien and Fabrice Teroni. The Emotions: A Philosophical Introduction. London: Routledge, 2012. Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press, 2007. Frye, Marilyn. The Politics of Reality: Essays in Feminist Theory. Trumansburg, NY: Crossing Press, 1983. Jaggar, Alison. ‘Love and Knowledge: Emotion in Feminist Epistemology.’ Inquiry 32, no. 2 (1989): 151–76. King, Martin Luther. The Autobiography of Martin Luther King. Edited by Clayborne Carson. New York: Warner Books, 1998. Kristof, Nicholas. ‘Who’s Right and Wrong in the Middle East?’ New York Times, July 19, 2014. Lorde, Audre. ‘The Uses of Anger: Women Responding to Racism.’ In Sister Outsider. Trumansburg, NY: Crossing Press, 1984. Narayan, Uma. ‘Working Together Across Differences: Some Considerations on Emotions and Political Practice.’ Hypatia, 3 (1988), 31–47. Nussbaum, Martha. Anger and Forgiveness. Oxford: Oxford University Press, 2016. Pettigrove, Glen. ‘Meekness and ‘Moral’ Anger.’ Ethics 122 (2012): 341-70. Seneca, Lucius Annaeus. 1928. ‘On Anger.’ In Moral Essays, Vol. 1, translated by John W. Basore, 106-355. London: Heinemann, 1928. Swaine, Lucas A. ‘Blameless, Constructive, and Political Anger.’ Journal for the Theory of Social Behaviour, 26 (1996), 257–74. Tessman, Lisa. Burdened Virtues: Virtue Ethics for Liberatory Struggles. New York: Oxford University Press, 2005. The Riverbends Channel. ‘James Baldwin Debates William F. Buckley (1965/2012).’ https://​www​ .youtube​.com/​watch​?v5oFeoS41xe7w​&​list5PLcz​nUga3a2T9i​4pxI3MdX7U​0SjueOMOXU. Tonnesen, Sonja C. ‘‘Hit It and Quit It’: Responses to Black Girls’ Victimization in School.’ Berkeley Journal of Gender, Law & Justice 28 (2013), 1–29. Wenning, Mario. ‘The Return of Rage.’ Parrhesia 8 (2009): 89–99.

9. Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion Steven Tudor, Michael Proeve, Richard Weisman and Kate Rossmanith

INTRODUCTION To suffer remorse is to suffer the deep, disturbing, and sometimes life-changing recognition that one has done a serious wrong to another person. Remorse has important moral significance in signalling that the wrongdoer acknowledges their wrong and has begun their return to the moral community from which their wrongdoing had alienated them. Much of our understanding of remorse is mediated and configured by the specifics of our time and place. Indeed, some cultures may not even recognise ‘remorse’ as a discrete category. Nonetheless, it is reasonable to assume that most human beings experience feelings analogous to it. Remorse has a rich and complex meaning as a moral emotion in our ordinary, non-legal lives. It also plays a very significant role in legal systems — especially criminal justice systems — in many jurisdictions around the world.1 Genuine remorse can be a significant mitigating factor in sentencing and in parole board decisions. Convincing displays of remorse can even save a murderer from the death penalty. In contrast, a perceived absence of remorse can have a significant negative effect for offenders. Thus, while what is at play in law is recognisably the same moral emotion of remorse, the legal context subjects the expression of remorse to a distinct set of demands, expectations, hopes, and fears. In this chapter we explore, from various disciplinary perspectives (including philosophy, psychology, anthropology and sociology), the ways in which the law — especially the criminal law — engages with and makes use of remorse as a moral emotion. We will focus on four core themes: the meaning of remorse; proving remorse in legal settings; outcomes for remorseful and unremorseful offenders; and the role of remorse in the construction and regulation of the moral community. Our aim is to identify some key issues within those themes, summarise recent work on those issues, and pose questions for future research. We take a multi-disciplinary approach to the topic of remorse and the law. What does this mean? Remorse can be studied from various disciplinary perspectives, and those different disciplines will naturally make different kinds of contributions to our overall understanding of remorse. For example, a philosophical approach to the study of remorse seeks to clarify and justify our ways of thinking about remorse and assesses how we should, ethically, deal with remorse and its absence in practice. A psychological approach focuses on exploring the nature or effects of remorse, or testing assertions about these matters, at a personal or interpersonal level. Meanwhile, sociological and anthropological approaches examine remorse

1 Michael Proeve and Steven Tudor, Remorse: Psychological and Jurisprudential Perspectives (Farnham, U.K.: Ashgate, 2010), 115.

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132  Research handbook on law and emotion within specific legal and moral contexts, often turning to field research (interviews, participant observation) and discourse analysis to understand how remorse is attributed and validated by the different stakeholders in the justice system as well as how it contributes to the working of the system as a whole. These various disciplinary contributions each throw light on different aspects of remorse and the law. Are these different disciplinary accounts to remain as discrete items or can they be integrated, so that the multi-disciplinary approach evolves into a more inter-disciplinary approach? We, the authors of this chapter, have certainly sought to bring our different academic disciplines into dialogue with each other, and from that dialogue a more integrated account can develop. However, we have sought to do this only in a pragmatic, rather than programmatic, way. That is, we have not followed a theoretical plan to unify our disciplines, but have simply explored matters of mutual interest in an open way. These are still early days in the multi-disciplinary study of remorse and the law, and it is our hope that future work in the area will indeed bring more insights from a variety of perspectives into dialogue.

THE MEANING OF REMORSE How is Remorse to be Defined? The challenges of understanding remorse in legal settings start with the very meaning of the term. There seems to be no settled or standard definition followed in any legal system. This is perhaps not surprising, as remorse is undoubtedly a complex phenomenon and it can be expected that different people will focus on different aspects of it. What are those different aspects of remorse? Starting with a philosophical approach, it seems fair to say that remorse is an emotional experience that involves a complex of understanding, feeling and desire that persists over time. The understanding is that I am responsible for wronging and harming another person, though the wrongfulness of my action can be variously understood. The feeling of remorse is a kind of anxiety and distress, a biting, gnawing pain; indeed, the etymology of remorse is ‘re-mordere’ (to bite back). If you feel remorse, you normally also desire to somehow make things better, to repair the damage done, to restore relationships damaged by one’s wrongdoing, to be forgiven and to redeem yourself.2 Strictly speaking, a person could be perceived as experiencing remorse without having yet acted upon those desires. However, if a person has the opportunity to so act and does not do so, we begin to question whether they really had the emotion in the first place or merely some false semblance of it. A quantitative psychological study provides support for the relevance of actions for our judgments about remorsefulness. In the study, perceived remorsefulness in pre-sentence reports was associated with less severe sentencing in relation to alcohol-related offences. However, when there was an extensive prior history of alcohol use, perceived remorse was instead associated with more severe sentencing. The author speculated that remorsefulness accompanied by a history of many prior offences may be seen as insincere.3

Proeve and Tudor, Remorse, 33–48. W. Andrew Harrell, ‘The Effects of Alcohol Use and Offender Remorsefulness on Sentencing Decisions,’ Journal of Applied Social Psychology 11, no. 1 (1981): 83–91. 2 3

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  133 How Does Remorse Differ from Guilt and Shame? We can also expand our philosophical picture of remorse by distinguishing it from the neighbouring emotions of shame and guilt — though it must be acknowledged that neat compartmentalisation of emotions is almost always controversial. Shame is often felt as a result of one’s conduct, but has a particular focus on a negative evaluation of the whole self or fear of assuming an unwanted identity. That negative evaluation can proceed from one’s own self-assessment or from the perceived judgment of oneself by others. Commonly, shame results in withdrawal from others, or anger towards others. It differs from remorse by its particular preoccupation with the self and one’s place in the community rather than focusing on what was actually done. Guilt, as an emotion, is less readily distinguished from remorse. It can be understood as the way one feels when one believes one has transgressed an authoritative norm, especially a norm concerning our treatment of others, though the focus is often more on the sense of one’s transgression rather than the harm suffered by the victim. Although a degree of evaluation or questioning of oneself typically occurs, guilt does not involve the global negative judgment of self which is characteristic of shame; it is more deed-specific. Guilt can also arise merely from having transgressive thoughts and intentions, whereas remorse will usually be focused on an actual deed. In this way, guilt seems to be more focused on the self than is remorse. Like remorse, guilt also stimulates atonement and reparation, in contrast with shame’s withdrawal. Psychologists have studied the nature of remorse and related emotions by analysing the content of emotional experiences or ratings of those experiences. Such studies have shown that regret can be distinguished from shame and guilt, as it includes appraisals of making mistakes and concern for harm to self rather than to others,4 and that shame and guilt are distinct, with assuming responsibility and desire for reparation being features of guilt, and negative self-evaluation and desire to withdraw being features of shame.5 The few studies which included remorse experiences have shown few distinct features of remorse, but greater differences between remorse and shame compared to remorse versus guilt or regret, with shame featuring greater self-consciousness, negative self-evaluation and withdrawal than remorse.6 Studies of emotion experiences, from the perspective of someone experiencing those emotions, may not best represent the way remorse is evaluated during sentencing. Judges and jurors have the perspective of observers of expressed remorse, albeit observers who make consequential decisions. Therefore, psychological studies in which observers evaluate remorse are likely to be more relevant to the work of judges and jurors than studies of remorse experiences and may yield different perspectives regarding the evaluation of remorse in the legal system. For example, participants with or without criminal justice experience, who were presented 4 Ira J. Roseman, Cynthia Wiest, and Tamara S. Swartz, ‘Phenomenology, Behaviors, and Goals Differentiate Discrete Emotions,’ Journal of Personality and Social Psychology 67, no. 2 (1994): 206–21; Marcel Zeelenberg and Seger M. Breugelmans, ‘The Role of Interpersonal Harm in Distinguishing Regret From Guilt,’ Emotion 8, no. 5 (2008): 589–96. 5 Janice Lindsay-Hartz, ‘Contrasting Experiences of Shame and Guilt,’ American Behavioral Scientist, 27, no. 6 (July 1984): 689–704; Frank Wicker, Glen Payne, and Randall Morgan, ‘Participant Descriptions of Guilt and Shame,’ Motivation and Emotion 7, no. 1 (1983): 25–39. 6 Joel R. Davitz, The Language of Emotion. (New York: Academic Press, 1969), 62–83; Michael Proeve, ‘Remorse: Its Description and its Interpersonal Effects’ (PhD diss., University of South Australia, 2001), 86–115.

134  Research handbook on law and emotion with vignettes of a remorseful or an ashamed offender, based on features of remorse and shame experiences respectively, judged both vignettes more positively than one in which no emotion was expressed. They also did not distinguish between remorse and shame,7 suggesting that remorse and shame may be judged similarly by observers. Should the Law Define Remorse More Precisely? There would seem to be no very precise legal definition of remorse. Many judges, even when taking remorse very seriously, do not spend much time defining it precisely. For example, in an interview study, one judge said: ‘Remorse is vague. It is ephemeral almost.’8 For many judges, remorse begins its life as an internal state that then must find external expression. But, again, there is no precise definition of what that internal state is or what its external expression must look like. This can often mean that subtle distinctions between shame, guilt and remorse are elided. However, one distinction that is often at the forefront of judicial concern is whether the offender is feeling sorry for the wrong they have done to their victim or merely feeling sorry for themselves or, slightly less egocentrically, for what they have done to their family or friends by their offending.9 If different judges have different understandings of remorse and its absence, then this raises the question whether the law here is prone to inconsistency and, hence, unfairness. A more precisely defined legal concept of remorse could promote consistency and clearer standards as to what evidence of remorse is to be accepted. Such a definition could be provided in statute or by an authoritative decision by an appellate court. But these both seem remote prospects — and risky ones if the legally binding definition is inadequate. A law reform expert has gone so far as to suggest that the definition of remorse in the law is indeed vague, but that it is in everyone’s interest to keep it vague.10 Keeping it undefined allows the courts to assess what remorse might be, and might look like, on a case-by-case basis. However, a vague definition can make it more difficult to establish a link between the court’s finding of remorse and the likelihood of reoffending. It can also mean that offenders lack advance notice of what is expected of them and that reviewing courts lack a clear common standard to apply.

PROVING REMORSE One of the most frequently raised questions about remorse in legal contexts is: how can a judge or jury know that an offender is genuinely remorseful? There is a common anxiety or distrust about the supposed ease of faking remorse and the uncertainty of any finding of remorse by judges or juries.

Michael Proeve and Kevin Howells, ‘Effects of Remorse and Shame and Criminal Justice Experience on Judgments About a Sex Offender,’ Psychology, Crime, and Law 12, no. 2 (April 2006): 145–61. 8 Kate Rossmanith, Steven Tudor, and Michael Proeve, ‘Courtroom Contrition: How Do Judges Know?’ Griffith Law Review 27, no. 3 (2018): 367. 9 Rossmanith, Tudor, and Proeve, ‘Courtroom Contrition,’ 371–3. 10 Anonymous respondent, Interview with Kate Rossmanith, October 1, 2010. 7

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  135 What Counts as Evidence of Remorse? What evidence of remorse is used or accepted in legal settings? Evidence of remorse can be grouped roughly into three categories: demeanours that express or indicate remorse (such as a downcast and deferential demeanour in court); verbal expressions of remorse (such as an apology); and actions expressing or motivated by remorse. The latter can be further divided into co-operative, reparative, reformative and self-punitive actions.11 Co-operative acts can include voluntary, unprompted confessions. For example, if the police have no leads regarding a case, and one day the perpetrator walks into a police station and confesses, then that might later be considered by the sentencing court to be strong evidence of remorse. Reparative acts can include an apology letter to a victim or financial reparation. Reformative acts cover such things as completing an anger management course or substance abuse programme or simply getting a job and changing one’s socialising habits. Self-punitive acts, which are not necessarily positive, can include self-harming or withdrawing from social life. The most powerful or persuasive evidence of remorse for judges and juries tends to be evidence that most clearly demonstrates the offender’s admission of their responsibility, their visible suffering, and their personal transformation.12 In other words, what judges and jurors most want to see is clear evidence that the offender owns what they did, that they are already suffering for it before the law intervenes, and that they are already distancing themselves from their former selves by positively changing themselves. The witnesses who provide this evidence include the offenders themselves, lay witnesses (e.g., an offender’s parent or friend), and expert witnesses (e.g., psychologists). Offenders’ own behaviour in court (i.e., without giving formal evidence) also often serves as direct evidence of their remorse. The offender’s own body becomes a kind of exhibit, and the judge or jurors then serve as direct lay witnesses of that evidence. There are two particular issues arising from the above that we shall explore here: the problem of courtroom demeanour, and the question of whether remorse should be considered only later in the criminal justice process, such as at parole hearings. Is Courtroom Demeanour a Good Indicator of Remorse? A key theme in remorse in the criminal justice sphere is how remorse is performed in the courtroom by the offender through his/her own bodily demeanour. It is clear that the courtroom is a kind of theatre and the part of ‘the remorseful offender’ is one that many accused feel a great pressure to perform. Often the performance in the courtroom is the only way a person can try to demonstrate their remorse. The use of the term ‘performance’ here is not meant to suggest that a person’s enactment is contrived — although sometimes it may be — but to stress the embodied nature of remorse expressions.13 As Weisman has written: ‘While an apology may refer

Proeve and Tudor, Remorse, 95–8. Richard Weisman, Showing Remorse: Law and the Social Control of Emotion (Farnham, UK: Ashgate, 2014), 28–45. 13 Kate Rossmanith, Small Wrongs: How We Really Say Sorry in Love, Life and Law (Melbourne & London: Hardie Grant Books, 2018), 7–8; Irene Van Oorschot, Peter Mascini, and Don Weenink ‘Remorse in Context(s): A Qualitative Exploration of the Negotiation of Remorse and its Consequences,’ Social and Legal Studies 26, no. 3 (June 2017): 359–77. 11 12

136  Research handbook on law and emotion to the anguish and pain that the offender feels at having broken the norms of community, an expression of remorse shows or demonstrates this pain by making the suffering visible.’14 This is confirmed by a defence lawyer’s observation that, ‘[y]ou can see if someone’s remorseful or not. [The evidence comes from] a person’s demeanour in court. Various things. The judge or magistrate will see it. Remorse is not a passive thing.’15 Do judges actually make their own assessment of offender remorse based on what they see in the courtroom? Some researchers have used an ethnographic research approach to explore this question.16 With its emphasis on fieldwork observation and in-depth interviews, an ethnographic method can help us to understand the daily practice of judicial work, and how decisions about apparent remorse or remorselessness are made. Van Oorschot and colleagues17 recognise, for instance, how an offender’s performance of remorse must somehow strike a fine balance between potentially competing legal and moral narrative demands.18 On the one hand, judges acknowledge that demeanour is often a very unreliable indicator of emotional states, especially when the emotion is a complex one such as remorse. ‘People are skillful liars, and people look shifty and shy for all sorts of reasons,’ explained one judge.19 This points to the problem of cultural difference, for example, where offenders comport themselves in ways ‘un-readable’ to judges.20 Another judge has said: ‘You get a witness in the witness box who appears to be really upset. You get off the bench; who knows how they’re acting? It is difficult to access people’s credibility through body language.’21 Performing well in a courtroom may have little connection to how the offender really views their offending once they are outside the courtroom, away from the eyes of the law. On the other hand, judges acknowledge the role of demeanour in remorse assessment. There seems to be an implicit acceptance by many judges that, when it comes to assessing the genuineness of a person’s remorse, they can indeed read external signs for internal feeling. ‘It is important to gauge someone face-to-face because there are visual clues,’ as one judge has said.22 Judges also speak of ‘sensing’ a person’s remorse; of people’s remorse that ‘cries out’ and that is ‘spectacularly evident’; and of people’s remorse that the judges themselves can feel from across the courtroom.23 The law of evidence and procedure has long respected the 14 Richard Weisman, ‘Showing Remorse: Reflections on the Gap between Expression and Attribution in Cases of Wrongful Conviction,’ Canadian Journal of Criminology and Criminal Justice 46, no. 2 (January 2004): 125. 15 Kate Rossmanith, ‘Getting into the Box: Risky Enactments of Remorse in the Courtroom,’ About Performance 12 (2014): 16. 16 Rossmanith, ‘Getting into the Box,’ 7; Kate Rossmanith, ‘Affect and the Judicial Assessment of Offenders: Feeling and Judging Remorse,’ Body and Society 21, no. 2 (June 2015): 167; Rossmanith, Small Wrongs, 19–21; Van Oorschot, Mascini, and Weenink, ‘Remorse in Context(s),’ 357–377; Louise Victoria Johansen, ‘“Impressed” by Feelings: How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms,’ Social and Legal Studies 28, no. 2 (April 2019): 250–69. 17 Van Oorschot, Mascini, and Weenink, ‘Remorse in Context(s),’ 364–367. 18 Maggie Hall and Kate Rossmanith, ‘Imposed Stories: Prisoner Self-Narratives in the Criminal Justice System in New South Wales, Australia,’ International Journal for Crime, Justice and Social Democracy 5, no. 1 (2016): 38–51. 19 Rossmanith, ‘Affect and Judicial Assessment,’ 179. 20 Ward, Bryan H., ‘Sentencing Without Remorse,’ Loyola University Chicago Law Journal 38, no. 1 (Fall 2006):145 – 147; Rossmanith, Small Wrongs, 141–4. 21 Rossmanith, ‘Affect and Judicial Assessment,’ 179. 22 Rossmanith, ‘Affect and Judicial Assessment,’ 180. 23 Rossmanith, ‘Affect and Judicial Assessment,’ 181–5; Rossmanith, Small Wrongs, 78–9.

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  137 capacity of the fact-finder (whether trial judge or jury) to assess a witness’s credibility on the basis, at least in part, of the witness’s demeanour. Appellate courts are reluctant to overturn such assessments where the appeal judges do not have the advantage of assessing the witness’s demeanour in court for themselves.24 Should Decisions on Remorse Wait until Parole Hearings? Should doubts about proving remorse at sentencing hearings support a policy of only allowing evidence of remorse to be considered later in the criminal justice process, such as at parole hearings, once offenders have had a chance to prove their remorse over time through their concrete successes in self-transformation? This solution does seem preferable in theory. However, parole boards (at least as they are currently constituted) are not necessarily well equipped to deal with such issues. They often process dozens of cases in one sitting and do not have the time to consider detailed evidence of behavioural change and claims of moral insight. Researchers conducting empirical fieldwork have recognised that parole processes are ill-suited to expressions of remorse.25 In New South Wales, Australia, for example, the State Parole Authority makes 10,000 decisions per year regarding inmates’ parole. During each three-hour private meeting of the parole board, 70 matters are decided upon. Board members spend an average of three minutes discussing, and deciding upon, each matter. Occasionally public hearings take place where the inmate ‘appears’ in court from prison via the audio-visual technology, which makes it difficult for communication to occur.26 English parole processes fare no better: parole hearings are formal and tightly controlled, with inmates given little room to express remorse even if they want to.27 In US capital cases and in jurisdictions with no parole for certain offences, the absence of parole makes prison rehabilitation irrelevant, though in cases of executive clemency death row rehabilitation could become pertinent. Is it all too Dubious? Is the attempt to identify genuine remorse (whether at trial, sentencing or parole) simply too uncertain to provide a sound basis for good decision-making? If so, should remorse be put in the ‘too hard basket’ and treated as irrelevant to criminal justice? From a certain theoretical standpoint, such a policy makes sense, but it would seem unlikely that judges and juries will in fact stop being deeply interested in whether or not an offender is remorseful.28 Remorse is

Kathryn Lee Leader, ‘Trials, Truth-Telling and the Performing Body’ (PhD diss., University of Sydney, 2008): 199. 25 Nicola Padfield, Alison Liebling, and Helen Arnold, ‘An Exploration of Decision-Making at Discretionary Lifer Panels,’ Research Study No. 213 (Home Office, London, 2000): 49 –52; Rossmanith, Small Wrongs, 118–45. 26 Rossmanith, Small Wrongs, 139–45; Carolyn McKay, The Pixelated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix (Oxford and New York: Routledge, 2018). 27 Nicola Padfield, ‘Parole Board Oral Hearings 2016–2017 – Exploring the Barriers to Release: Stage Two of an Exploratory Study;’ (Faculty of Law Research Paper, University of Cambridge, 2017); cf., for research concerning remorse and the prisoner experience, Maggie Hall, The Lived Sentence: Rethinking Sentencing, Risk and Rehabilitation (Switzerland: Palgrave, 2017). 28 Susan Bandes, ‘Remorse and Demeanour in the Courtroom: Cognitive Science and the Evaluation of Contrition,’ in The Integrity of Criminal Process: From Theory into Practice, eds, Jill Hunter, Paul 24

138  Research handbook on law and emotion a sign of the possibility of redemption, a deep theme in many legal systems, and one which is unlikely to be abandoned soon. If so, the challenge is to better understand how and why the law engages with remorse, and then to improve that engagement in light of that understanding.29

OUTCOMES FOR REMORSEFUL AND UNREMORSEFUL OFFENDERS Why Should Remorse Mitigate Punishment? When faced with a remorseful person in our ordinary lives, we will often acknowledge their remorse by tempering our reproach of them. Such mitigation finds its counterpart in the very common legal principle that genuine remorse warrants a reduction in the penalty imposed or a decision to release a prisoner on parole.30 Is such a principle justified? One rationale for treating remorse as a mitigating factor is that the presence of remorse indicates that certain key punitive goals are already met in the remorseful offender. Such an offender, it is thought, will need little or no deterrence, for example. Also, the remorseful offender is already well on the path toward rehabilitation and reform. On this view, remorse makes at least some portion of a sentence redundant. A less utilitarian approach sees mitigation of sentence as a form of communicative recognition of an offender’s remorse. We soften our censure of a remorseful person in informal, personal contexts, in recognition that they have already, in their remorse, recognised their wrongdoing and have returned to the same moral universe as ours through that recognition. Similarly, in the view of some, the law should also provide a like recognition of offender remorse through tempering the harshness of the sentence.31 But are either of these approaches sound? Concerning the first rationale, it would appear to rest on an empirical claim that the remorseful offender is indeed less likely to commit further offences than the unremorseful offender alike in all other relevant respects. But is that true? There has been some research into this issue, but the results are not as clear cut as one might have expected. Previous studies in which offenders who were credited with showing remorse were compared with offenders who were not so credited show little evidence of a relationship between remorse and reduced recidivism.32 However, studies in which the emotions of shame or guilt were examined in relation to recidivism have yielded more interesting results. Guilt in young offenders was associated

Roberts, Simon N. M. Young, and David Dixon (Oxford and Portland, Oregon: Hart Publishing, 2016), 309–26. 29 Susan Bandes, ‘Remorse and Criminal Justice.’ Emotion Review 8, no. 1 (January 2016a): 14–19. 30 Proeve and Tudor, Remorse, 115–6. 31 Proeve and Tudor, Remorse, 126–30; Hannah Maslen, Remorse, Penal Theory and Sentencing (Oxford & Portland, Oregon: Hart Publishing, 2015), chap. 5. 32 Kenneth A. Romanowski, ‘Crime and Confession: An Analysis of the Relationship between Contrition, Sentence Severity and Recidivism’ (PhD diss., University of Michigan, 1988); Michael Proeve, David I. Smith, and Diane Mead Niblo, ‘Mitigation Without Definition: Remorse in the Criminal Justice System.’ Australian and New Zealand Journal of Criminology 32, no. 1 (April 1999): 23; Ralph Serin, Ralph, Diane C. Mailloux, and Steve Hucker, ‘The Utility of Clinical and Actuarial Risk Assessments for Offenders in Pre-Release Psychiatric Decision-Making’ (Research Branch, Correctional Service of Canada, December, 2000).

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  139 with lower recidivism, while shame was associated with higher recidivism, or was unrelated to recidivism.33 In addition, a tendency to experience guilt in jail inmates was associated with less recidivism, whereas a tendency to experience shame was associated with higher recidivism, when shame led to externalizing blame.34 Therefore, it may be desirable when considering an offender’s potential for recidivism to look more deeply into their reactions to offending and to inquire whether they feel more guilt or more shame. With regard to the second rationale for treating remorse as a mitigating factor, it may well be right that in personal relationships we soften our reproach of a remorseful person. But, it may be countered, that should not carry over into the formal, public sphere of the law. The judge’s responsibility, as a public office holder, is to the community and to the victim, as well as to the offender, and, on this view, it is not their role to show the kind of personal merciful acknowledgement of remorse that belongs to the private sphere.35 Whether all or even many judges would conceive their role so starkly is another matter. Are There Other Ways for the Law to Acknowledge Offender Remorse? Perhaps there are options for the legal recognition of offender remorse other than a reduction of sentence severity. Remorse may well be valued by the criminal justice system, but it need not be the case that the only way to register that valuing is by way of a reduction in sentence severity. For example, a judge in sentencing an offender could verbally acknowledge and welcome an offender’s proven remorse. The offender’s remorse could be especially noted in the court record and a formal statement of acknowledgement made to the offender by the court. In addition, or alternatively, a remorseful offender could be given a particular opportunity to make a ‘statement of contrition’ to the court. This opportunity need not be part of the plea in mitigation prior to sentencing but instead could take place after sentencing. Remorse can also be a key part of a restorative justice conference with victims and other affected parties.36 A restorative justice conference can be a very effective forum for expression and acknowledgment of remorse but need have no bearing on the sentence outcome. Conferencing can be entirely separate from — or supplemental to — the main criminal justice process and can provide the more personal, informal context in which emotions of anger, compassion and remorse can be given freer rein. It is possible, then, to envisage a humane, decent criminal justice system which did not reduce sentence severity for remorse and yet was in fact much more concerned with acknowledging remorse with greater sensitivity than current sentencing practices allow. Criminal justice processes might be more explicitly dedicated to eliciting remorse, as opposed to the

Daniela Hosser, Michael Windzio, and Werner Greve, ‘Guilt and Shame as Predictors of Recidivism: A Longitudinal Study with Young Prisoners,’ Criminal Justice and Behavior 35, no. 1 (January 2008): 138–52; Andrew Spice, ‘Remorse, Psychopathology, Psychopathic Characteristics, and Recidivism among Adolescent Offenders’ (PhD diss., Simon Fraser University, 2013), 101–104. 34 June Tangney, Jeffrey Stuewig, and Andres Martinez, ‘Two Faces of Shame: The Roles of Shame and Guilt in Predicting Recidivism,’ Psychological Science 25, no. 3 (March 2014): 799–805. 35 Jeffrie G. Murphy. ‘Remorse, Apology and Mercy.’ Ohio State Journal of Criminal Law 4 (2007): 423–53. 36 Proeve and Tudor, Remorse, 187–8, 195–8. 33

140  Research handbook on law and emotion retributive approach of simply making the offender regret their actions on self-interested grounds. Should an Unremorseful Offender be Punished More Harshly? Should the offender who is not remorseful be punished more harshly on that basis alone? The problem here is that there can be various reasons why such a person does not experience remorse, and some of those reasons may be aggravating while others are not. This would make it unsafe to adopt a general policy of treating an absence of remorse as an aggravating factor.37 Where an offender’s remorselessness indicates some deeper attribute of the offender (such as psychopathy) which in turn indicates an increased likelihood of future re-offending, then aggravation of sentence seems more plausible. However, in such cases it is not the absence of remorse that is aggravating but the underlying dangerousness. The absence of remorse is simply of evidential value in determining the presence of that dangerousness.

REMORSE AND THE MORAL COMMUNITY We now widen our lens to examine remorse from a sociological perspective. While expressions of remorse and their evaluation by courts and parole boards play an increasingly significant role in sentencing across a growing number of national jurisdictions, as noted above, there is another dimension to the public performance of remorse in courtrooms, commissions, and tribunals that is equally important. This dimension is most visible when the public at large becomes involved in judicial proceedings through participation on juries or through the publicity accorded to trials that capture the attention of a community or even a nation. It is at these junctures that the presence or absence or sufficiency or insufficiency of expressions of remorse have their maximum impact, as revealed by the intense reactions of the public to wrongdoers who are unable or unwilling to attune their feelings to the expectations of the community. For those who have committed the most grievous crimes, it is often the ascription of remorse or its lack even more than their transgression that commands the attention of the public. It was Timothy McVeigh’s silence at his execution for the bombing of the Murrah Federal Building in Oklahoma City in 1995 that resulted in 168 deaths, even more than his death or his crime, which became the focal point of public discussion. Typical among the headlines were ‘McVeigh Shows No Remorse,’ or ‘Death of a Terrorist: Last Rites Renew Issue of Remorse’ or ‘Without Remorse McVeigh Put to Death.’38 Whether or not a wrongdoer expresses remorse forms that part of the crime narrative that is most easily translated into popular discourse. A search through major newspapers in common law jurisdictions using Factiva or Lexis-Nexis will display hundreds of news items each day reporting on crimes before the court and the remorsefulness of the offender or its absence.

Proeve and Tudor, Remorse, 139–54. Kevin Fagan, ‘McVeigh Shows No Remorse,’ San Francisco Chronicle, June 11, 2001, A1; Dan Herbeck and Lou Michel, ‘Death of a Terrorist, Last Rites Renew Issue of Remorse,’ Buffalo News, June 12, 2001; Lois Romano, ‘Without Remorse McVeigh Put to Death,’ Virginia Pilot and the Ledger-Star, June 11, 2001, A11. 37 38

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  141 This public engagement with how remorse is performed is illuminated in the valuable work of Nicholas Tavuchis, when he introduces the concept of the moral community.39 Tavuchis’s important insight was to recognize that there is an inextricable moral component to rituals of inclusion such as the showing of remorse or the offering of apology that cannot be reduced to their instrumental functions as forms of social or remedial exchange or as predictors of future behavior. It is through these rituals that members define, negotiate, and transform what Tavuchis refers to as the moral community — or those agreed upon informal or formal rules, the violation of which obliges members to offer an apology or to feel and express remorse. Through participation in these rituals, the wrongdoer establishes that they are a member of the moral community – that is, the community that expects a show of remorse or an apology after one has engaged in a transgression. As illustrated in the public reaction to McVeigh’s silence, unwillingness or inability to conform to the expectations attached to remorse leaves the transgressor open to the charge of betrayal of community at what is perceived as the core of their character. Law plays a critical role in the creation, maintenance, and transformation of these moral communities simply by coupling the finding of guilt with the expectation that the guilty should show remorse for their transgression and by making public its standards for deciding when a show of remorse is credible. The moral indignation contained in judgments in which a wrongdoer fails to live up to these expectations combined with the public outrage expressed in the media communicate how someone who is a member of the moral community should react and thereby help distinguish between those wrongdoers who are redeemable and those who are not. The abundant literature on the conduct of capital trials in the United States testifies to the centrality of remorse in deciding between life without parole and death. Nothing rivets the attention of a jury more than the claim of a prosecutor that someone who has committed a brutal or heinous crime feels no remorse for the devastation wrought upon the victims.40 The chief prosecutor in the trial of McVeigh did not neglect to add this significant detail in his address to the jury during the penalty phase of the trial — ‘Not a single witness testified at any other time that Timothy McVeigh ever had a tear in his eye except when he was concerned about his own welfare, except when he was concerned and worried about his own death.’41 Showing remorse when the moral community expects remorse rehabilitates the wrongdoer as someone worthy of mercy. Not showing remorse, especially in crimes of great intensity, establishes the wrongdoer as not belonging to the moral community and hence someone whose suffering does not matter and to whom we do not owe mercy.42 So central is the performance of remorse under these circumstances that the Supreme Court of the United States has identified the incapacity to give a credible demonstration of remorse as one of the grounds for exempting

Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford: Stanford University Press, 1991), 7. 40 Mark Costanzo and Julie Peterson, ‘Attorney Persuasion in the Capital Penalty Phase: A Content Analysis of Closing Arguments,’ Journal of Social Issues, 50, no. 2 (July 1994): 125–47; Paul Colomy and Scott Phillips, ‘Irremedial Work and Act-Person Merger: Constructing Irredeemable Selves in Death Penalty Trials,’ Sociological Forum 33, no. 3 (September 2018):783–804; Scott Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty (New York: Palgrave Macmillan, 2005), 33. 41 ‘Transcription of Prosecutor’s Address to Jury in Trial of Timothy McVeigh,’ 312609 (D. Col. Trans., 1997), 40. Westlaw. 42 William Gamson, ‘Hiroshima, the Holocaust, and the Politics of Exclusion,’ American Sociological Review 60, no. 1 (February 1995): 1–20. 39

142  Research handbook on law and emotion whole categories of defendants for eligibility for the death penalty. As stipulated in Atkins v. Virginia, those defendants who are developmentally delayed ‘are typically poor witnesses and their demeanor may create an unwarranted impression of lack of remorse for their crimes.’43 But the involvement of law in the moral regulation of the community goes far beyond such moments of extremity. The more serious the crime, the greater the scrutiny attached to whether the wrongdoer’s expression of remorse is authentic or strategic — whether it is a true expression of feelings or an artifice designed to achieve a lesser punishment. If a mere guilty plea is sufficient to satisfy expectations for offenses deemed minor — misdemeanours or summary offences in the official parlance of the US and Canada, respectively — those who commit crimes of greater intensity will be subjected to more contestation over the authenticity of their remorse and hence expected to offer fuller proof of their redemption whether through greater efforts at personal transformation, or fuller demonstrations of empathy, or clearly unequivocal avowals of responsibility.44 Through this moral economy, the court signals the weight to be attached to different transgressions all the way to those offences for which the expectations are so exacting that no expression will be sufficient. Through such gradations, the court establishes what Tavuchis refers to as ‘thresholds’ of acceptability or limits that distinguish among those acts for which minimal expressions of remorse are expected, those acts which require greater corroboration that the wrongdoer feels remorse, and those acts which are perceived as so heinous that no quantum of remorse can restore the wrongdoer to membership in the moral community.45 For the most part, especially where there is a consensus between the court and the community, the pressure that moral communities place on their members passes unnoticed. So fraught and so powerful are the reactions to those, whose refusal or inability to show remorse is the antithesis of what members define as a normal reaction, that the work of the moral community in achieving this alignment of feelings appears as natural rather than as socially constituted. It is only when communities or individuals are in transition between different and conflicting moral communities that the prescriptions and prohibitions against the expression of remorse become explicit. These conditions have been met in the later part of the twentieth and the early twenty-first centuries with the radical shifts in political formation and moral architecture that have taken place in transitional societies, in which the undoing of one moral community and its replacement by another plays a central role in the transformation. Here, in the context of truth commissions and international tribunals established to prosecute war criminals, we find individuals who played central roles in committing violent acts that were viewed as acts of patriotism in the earlier regime but have been redefined as atrocities in the succeeding regime. For men such as Colonel Eugene de Kock, who was the head of operations at Vlakplaas (a secret organization dedicated to the protection of apartheid by means of covert assassinations and other extra-legal activities) or Navy Captain Adolfo Scilingo, who served the military regime in Argentina by committing acts of violence against political prisoners, showing remorse for one’s prior activities is a performance that comes with grave personal risk. Will the moral community to which they belonged view their expressions of remorse as acts of betrayal

Atkins v. Virginia, 122 S. Ct. 2242, 2252 (2002); cf. Scott Sundby, ‘The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unravelling,’ William and Mary Bill of Rights Journal 23, no. 2 (2014): 487–528. 44 Weisman, Showing Remorse, 43. 45 Tavuchis, Mea Culpa, 21. 43

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  143 and will the moral community to which they aspire view their performances as credible? De Kock’s admission of responsibility and self-condemnation for his role in Vlakplaas would earn him the implacable hatred of his former colleagues. After his testimony at the Truth and Reconciliation Commission in South Africa in 1999, he would comment that that his former enemies were now his only friends.46 Scilingo, who would admit to throwing prisoners from airplanes during the Trial of the Generals broadcast on Argentine television in 1985, would be viewed as a coward and a traitor by his former confederates and later, in 1997, kidnapped by unidentified assailants who warned him that he would die if he continued to speak out against the authoritarian regime.47 At stake in the decisions of courts and tribunals is always the question of which moral community will be affirmed — the community that applauds an act or the community that condemns the act. Apart from their role in sentencing, the decisions of a court or parole board are choices between rival moral communities. It is this foundational work of deciding when remorse is expected and how it must be communicated in order to be credible that is the other work that law performs in relation to the moral emotions.

REFERENCES Atkins v. Virginia, 122 S. Ct. 2242 (2002). Bandes, Susan. ‘Remorse and Criminal Justice.’ Emotion Review 8, no. 1 (January 2016a): 14–19. https://​doi​.org/​10​.1177/​1754073915601222. Bandes, Susan. ‘Remorse and Demeanour in the Courtroom: Cognitive Science and the Evaluation of Contrition.’ In The Integrity of Criminal Process: From Theory Into Practice, edited by Jill Hunter, Paul Roberts, Simon N. M. Young, David Dixon, 309–26. Oxford & Portland, Oregon: Hart Publishing, 2016b. Colomy, Paul, and Scott Phillips. ‘Irremedial Work and Act-Person Merger: Constructing Irredeemable Selves in Death Penalty Trials.’ Sociological Forum 33, no. 3 (September 2018): 783–804. https://​doi​ .org/​ 10.1111/socf.12443. Costanzo, Mark, and Julie Peterson. ‘Attorney Persuasion in the Capital Penalty Phase: A Content Analysis of Closing Arguments.’ Journal of Social Issues 50, no. 2 (July 1994): 125–47. https://​doi​ .org/​ 10.1111/j.1540-4560.1994.tb02413.x. Davitz, Joel R. The Language of Emotion. New York: Academic Press, 1969. Fagan, Kevin. ‘McVeigh Shows No Remorse.’ San Francisco Chronicle, June 11, 2001. Gamson, William. ‘Hiroshima, the Holocaust, and the Politics of Exclusion.’ American Sociological Review 60, no. 1 (February 1995): 1–20. https://​doi​.org/​10.2307/2096342. Gobodo-Madikizela, Pumla. A Human Being Died That Night: A South African Story of Forgiveness. New York: Houghton-Mifflin, 2003. Hall, Maggie. The Lived Sentence: Rethinking Sentencing, Risk and Rehabilitation. Switzerland: Palgrave, 2017. Hall, Maggie, and Kate Rossmanith. ‘Imposed Stories: Prisoner Self-Narratives in the Criminal Justice System in New South Wales, Australia.’ International Journal for Crime, Justice and Social Democracy 5, no. 1 (2016): 38–51. https://​doi​.org/​10​.5204/​ijcjsd​.v5i1​.284.

46 Weisman, Showing Remorse, 126; Pumla Gobodo-Madikizela, A Human Being Died That Night: A South African Story of Forgiveness (New York: Houghton-Mifflin, 2003), 136. 47 Leigh A. Payne, Unsettling Accounts: Neither Truth Nor Reconciliation in Confessions of State Violence (Durham: Duke University Press, 2008), 54–55.

144  Research handbook on law and emotion Harrell, W. Andrew. ‘The Effects of Alcohol Use and Offender Remorsefulness on Sentencing Decisions.’ Journal of Applied Social Psychology 11, no. 1 (1981): 83–91. https://​doi​.org/​10​.1111/​j​ .1559​-1816​.1981​.tb00824​.x. Herbeck, Dan, and Lou Michel. ‘Death of a Terrorist, Last Rites Renew Issue of Remorse.’ Buffalo News, June 12, 2001. Hosser, Daniela, Michael Windzio, and Werner Greve. ‘Guilt and Shame as Predictors of Recidivism: A Longitudinal Study with Young Prisoners.’ Criminal Justice and Behavior, 35, no. 1 (January 2008): 138–52. https://​doi​.org/​ 10.1177/0093854807309224. Johansen, Louise Victoria. ‘”Impressed” by Feelings: How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms.’ Social and Legal Studies 28, no. 2 (April 2019): 250–69. https://​ doi​.org/​ 10.1177/0964663918764004. Leader, Kathryn Lee. ‘Trials, Truth-Telling and the Performing Body.’ PhD diss., University of Sydney, 2008. Lindsay-Hartz, Janice. ‘Contrasting Experiences of Shame and Guilt.’ American Behavioral Scientist 27, no. 6 (July 1984): 689–704. https://​doi​.org/​10.1177/000276484027006003. Maslen, Hannah. Remorse, Penal Theory and Sentencing. Oxford & Portland, Oregon: Hart Publishing, 2015. McKay, Carolyn. The Pixelated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix. Oxford and New York: Routledge, 2018. Murphy, Jeffrie G. ‘Remorse, Apology and Mercy.’ Ohio State Journal of Criminal Law 4 (2007): 423–453. Padfield, Nicola. ‘Parole Board Oral Hearings 2016–2017 — Exploring the Barriers to Release: Stage Two of an Exploratory Study.’ Cambridge: Faculty of Law Research Paper, University of Cambridge, 2017. Padfield, Nicola, Alison Liebling, and Helen Arnold. ‘An Exploration of Decision-Making at Discretionary Lifer Panels.’ Research Study No. 213, Home Office, London, 2000. Payne, Leigh A. Unsettling Accounts: Neither Truth Nor Reconciliation in Confessions of State Violence. Durham: Duke University Press, 2008. Proeve, Michael. ‘Remorse: Its Description and its Interpersonal Effects.’ PhD diss., University of South Australia, 2001. Proeve, Michael, David I. Smith, and Diane Mead Niblo. ‘Mitigation Without Definition: Remorse in the Criminal Justice System.’ Australian and New Zealand Journal of Criminology 32, no. 1 (April 1999): 16–26. https://​doi​.org/​10​.1177/​000486589903200103. Proeve, Michael, and Kevin Howells. ‘Effects of Remorse and Shame and Criminal Justice Experience on Judgments About a Sex Offender.’ Psychology, Crime, and Law 12, no. 2 (April 2006): 145–61. https://​doi​.org/​ 10.1080/10683160512331316271. Proeve, Michael, and Steven Tudor. Remorse: Psychological and Jurisprudential Perspectives. Farnham, U.K.: Ashgate, 2010. Romano, Lois. ‘Without Remorse, McVeigh Put to Death.’ Virginia Pilot and Star Ledger, June 11, 2001. Romanowski, Kenneth A. ‘Crime and Confession: An Analysis of the Relationship between Contrition, Sentence Severity and Recidivism.’ PhD diss., University of Michigan, 1988. Roseman, Ira J., Cynthia Wiest, and Tamara S. Swartz. ‘Phenomenology, Behaviors, and Goals Differentiate Discrete Emotions.’ Journal of Personality and Social Psychology 67, no. 2 (1994): 206–21. https://​doi​.org/​ 10.1037/0022-3514.67.2.206. Rossmanith, Kate. ‘Getting into the Box: Risky Enactments of Remorse in the Courtroom.’ About Performance 12 (2014): 7–26. Rossmanith, Kate. ‘Affect and the Judicial Assessment of Offenders: Feeling and Judging Remorse.’ Body and Society 21, no. 2 (June 2015): 167–93. https://​doi​.org/​10​.1177/​1357034X14558073. Rossmanith, Kate. Small Wrongs: How We Really Say Sorry in Love, Life and Law. Melbourne and London: Hardie Grant Books, 2018. Rossmanith, Kate, Steven Tudor, and Michael Proeve, ‘Courtroom Contrition: How Do Judges Know?’ Griffith Law Review 27, no. 3 (2018): 366–84. https://​doi​.org/​10​.1080/​10383441​.2018​.1557588. Serin, Ralph, Diane C. Mailloux, and Steve Hucker. ‘The Utility of Clinical and Actuarial Risk Assessments for Offenders in Pre-Release Psychiatric Decision-Making.’ Ottawa: Research Branch, Correctional Service of Canada, December, 2000. Spice, Andrew. ‘Remorse, Psychopathology, Psychopathic Characteristics, and Recidivism among Adolescent Offenders.’ PhD diss., Simon Fraser University, 2013.

Remorse: Multi-disciplinary perspectives on how law makes use of a moral emotion  145 Sundby, Scott. A Life and Death Decision: A Jury Weighs the Death Penalty. New York: Palgrave Macmillan, 2005. Sundby, Scott. ‘The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unravelling.’ William and Mary Bill of Rights Journal, 23, no. 2 (2014): 487–528. Tangney, June, Jeffrey Stuewig, and Andres Martinez. ‘Two Faces of Shame: The Roles of Shame and Guilt in Predicting Recidivism.’ Psychological Science 25, no. 3 (March 2014): 799–805. https://​doi​ .org/​ 10.1177/095679761350879. Tavuchis, Nicolas. Mea Culpa: A Sociology of Apology and Reconciliation. Stanford, CA: Stanford University Press, 1991. Transcription of Prosecutor’s Address to Jury in Trial of Timothy McVeigh. 312609 (D. Col. Trans., 1997). Westlaw. Van Oorschot Irene, Peter Mascini, and Don Weenink. ‘Remorse in Context(s): A Qualitative Exploration of the Negotiation of Remorse and its Consequences.’ Social and Legal Studies 26, no. 3 (June 2017): 359–77. https://​doi​.org/​10​.1177/​0964663916679039. Ward, Bryan H. ‘Sentencing Without Remorse.’ Loyola University Chicago Law Journal 38, no. 1 (Fall 2006): 131–67. Weisman, Richard. ‘Showing Remorse: Reflections on the Gap between Expression and Attribution in Cases of Wrongful Conviction.’ Canadian Journal of Criminology and Criminal Justice 46, no. 2 (January 2004): 121–38. https://​doi​.org/​10​.3138/​cjccj​.46​.2​.121. Weisman, Richard. ‘Being and Doing: The Judicial Use of Remorse to Construct Character and Community.’ Social and Legal Studies 18, no. 1 (March 2009): 47–69. https://​ doi​ .org/​ 10.1177/0964663908100333. Weisman, Richard. Showing Remorse: Law and the Social Control of Emotion. Farnham, UK: Ashgate, 2014. Wicker, Frank, Glen Payne, and Randall Morgan. ‘Participant Descriptions of Guilt and Shame.’ Motivation and Emotion 7, no. 1 (1983): 25–39. https://​doi​.org/​10​.1007/​BF00992963. Zeelenberg, Marcel, and Seger M. Breugelmans. ‘The Role of Interpersonal Harm in Distinguishing Regret from Guilt.’ Emotion 8, no. 5 (2008): 589–96. https://​doi​.org/​10​.1037/​a0012894.

PART III LEGAL ACTORS

10. Comparing culturally embedded frames of judicial dispassion Åsa Wettergren and Stina Bergman Blix1

If you had been a competent prosecutor, which you are not, you would have hedged against the possibility that maybe the judge would disagree with you . . . on the law. . . If these drug dealers are walking free, it is because you did not hedge against that possibility. Don’t lay it at my doorstep. . . .[I]f they are walking out of here it is because you people were not competent enough to put in an extra charge in your indictment.2 The prosecutor proceeds with the interrogation of the accused in a happy-go-lucky tone of voice. The accused is mocking her but she pretends not to notice and continues to ask questions that are leading and provocative, making the accused all worked up and defensive. The judge is not taking any notes and sits looking from the accused to the prosecutor and back again. The prosecutor asks a series of questions to which the accused simply answers no: ‘Did you see anybody hit him as he stood up? Did you see anybody hit him when he sat down?’ The judge turns abruptly to look at the prosecutor, then puts her hand on her mouth and keeps looking at the prosecutor. (Author’s Observation, drug offence, Monika, Judge, 45+)

INTRODUCTION The above vignettes illustrate two different ways of expressing judicial anger; the first is an admittedly extreme case retrieved from Terry Maroney’s work on angry American judges, and the second is an observation excerpt from our research project, Emotions in Court, studying the emotions and emotion management of Swedish judges and prosecutors. The first excerpt features Judge Sprizzo’s outburst after he was forced to acquit the defendants in a large drug dealing case due to sloppy prosecutorial work.3 In the second excerpt one of us shadowed Judge Monika during a drug trial and had learned during lunch that she was upset at the prosecutor for asking flawed and leading questions and failing to work the accused in a manner that would make him collaborative. Like Judge Sprizzo, Judge Monika was angry because her ability to do her work depended on the prosecutor’s ability to do hers.4 These excerpts are from two different legal systems (common law and civil law), as well as from two different national cultures (American and Swedish). Yet, they are similar in terms of how the law and legal actors’ roles are constructed and institutionalized, and in each of

1 This research has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme awarded to Bergman Blix (grant agreement No 757625). Both authors have contributed equally to this work. 2 U.S. District Court Judge John Sprizzo in 1989 scolding prosecutors for having handled a drug case badly. See Terry A Maroney, ‘Angry Judges,’ Vanderbilt Law Review 65, no. 5 (2012): 1232. 3 Maroney, ‘Angry Judges,’ 1232. 4 Stina Bergman Blix and Åsa Wettergren, ‘The Emotional Interaction of Judicial Objectivity,’ Oñati Socio-Legal Series 9, no. 5 (2019): 726–46.

147

148  Research handbook on law and emotion the excerpts, these shared structural elements determine the relationship between judge and prosecutor as interdependent but asymmetrical, giving rise to situations where the judge will feel frustrated and angry at the prosecutor. The judge, although the more powerful party, is restricted from interfering with the prosecutor’s work for reasons of impartiality. If the prosecutor’s work is deficient, the judge can do nothing. In both excerpts, these judges find their powers obstructed by deficient prosecutors, and react with anger – an emotional response to power challenges and obstacles.5 Frustration and anger, in this case, are emotions embedded in a particular composition of power, status and professional interdependencies between the judge and the prosecutor in a Western legal system, which transcends both the differences between the legal systems of common law and civil law and the cultural differences between nations. The difference between these two judges, situated in different national cultures and different legal systems, lies in how anger is expressed – a difference, we argue, that stems from different national/cultural emotional regimes. In the American common law system, the judge’s anger can be both articulated (verbally) and visibly displayed without violating norms about judicial dispassion. In the Swedish civil law system a judge’s anger during the trial is only detected, to the trained eye, in very subtle gestures such as putting down the pen and jerky movements. Only after the trial is over, and the judge has withdrawn ‘backstage,’ does she release her anger. The aim of this chapter is to begin to scrutinize these differences in emotional expressions, outlining a theoretical framework for the comparative study of emotions in Western legal systems as being embedded in national emotional regimes. An emotional regime is defined by historian William Reddy6 as ‘a set of normative emotions and the official rituals, practices, and emotives that express and inculcate them’. In our usage it means that an emotional regime is a system of feeling and display rules; norms about which emotions are appropriate and how they should be expressed in various social contexts.7 In this chapter, we distinguish the national/cultural emotional regime – the emotion norm system pertinent to a defined cultural sphere, usually a nation – from the Western legal emotional regime – the general emotion norm system of the Western legal sphere. Furthermore, as will be explained below, we differ between these two emotional regimes (the one of national culture and the one of Western legal systems) and what we have termed ‘the emotive-cognitive judicial frame.’8 The emotive-cognitive judicial frame conceptualises the micro-social and everyday legal practice of orienting an array of situated feeling and display rules. There is hardly any previous research looking at the criss-crossings of different emotional regimes and their enactment in concrete legal practice, but there is a body of research highlighting the concept of ‘legal culture’ and its relation to a country’s broader social culture.9

Theodore D Kemper, Status, Power and Ritual Interaction - A Relational Reading of Durkheim, Goffman and Collins (Surrey, U.K.: Ashgate Publishing Limited, 2011). 6 William Reddy, The Navigation of Feeling - a Framework for the History of Emotions (Cambridge: Cambridge University Press, 2001), 129. 7 Arlie Russell Hochschild, The Managed Heart – Commercialization of Human Feeling (Los Angeles: University of California Press, 1983). 8 Stina Bergman Blix and Åsa Wettergren, Professional Emotions in Court: A Sociological Perspective (London: Routledge, 2018). 9 See, e.g., David Nelken, ‘Using the Concept of Legal Culture,’ Australian Journal of Legal Philosophy 29 (2004); Lawrence Friedman, ‘The Concept of Legal Culture: A Reply,’ in Comparing Legal Cultures, ed. David Nelken (Dartmouth: Dartmouth Publishing, 1997), 33–40. 5

Comparing culturally embedded frames of judicial dispassion  149 Saguy and Stuart10 suggest that the extant literature’s approaches to this topic can be categorized in a tripartite typology: (1) culture as an independent variable (shaping law); (2) law as an independent variable (shaping cultural perceptions), and; (3) law as culture, turning the focus from the legal institutions and actors to how the mundane, everyday interactions of people in their homes, communities, and workplaces ‘actively make law’11 by defining common legal practices and understandings. The third approach emphasizes what seems to be a generic understanding of legal culture, i.e., how a country’s populace makes sense of and uses their legal institutions, including ascribing legitimacy to them. Friedman,12 however, distinguishes this external legal culture from an internal legal culture within the legal profession itself, which pertains to legal professionals’ meaning making, values, etc. In our view, the relationship between law and culture is dialectic; law shapes cultural norms and values and is simultaneously shaped and affected by them. Law and legal institutions are culturally embedded and dialectically interact with their societal surroundings. Our focus in this article is on legal institutions and legal actors, and how internal legal culture (in our terminology, ‘the emotive-cognitive judicial frame’) is embedded in the larger context of a socio-culturally specific national emotional regime. We also argue that the emotive-cognitive judicial frame is not only part of the national emotional regime but contains key universal rules for emotions and emotional displays derived from the regime of judicial dispassion13 shared with all the legal systems in the West. The emotive-cognitive judicial frame thus does not conceptualize merely ‘internal’ culture as a profession-specific variant of ‘external’ (national) culture, but also proposes that essential parts of the internal (profession-specific) culture are ‘universal’ (Western legal) and transcend national culture. In practical terms, when we study specific emotive-cognitive judicial frames, we should be able to tease out the norms of emotion and emotion management that pertain to the Western emotional regime of judicial dispassion from those that pertain to local/national emotional regimes. In this chapter, we will first review the relationship between rationality and emotion and its implications for the legal system, as well as the growing research field of emotions in law. Thereafter, we summarize the theories of and previous research into the socio-cultural variations of emotional regimes, followed by a basic theoretical toolkit for comparative studies of emotive-cognitive judicial frames that we have developed based on our own research. We then offer some concrete methods, based on our own and others’ research, for studying emotive-cognitive judicial frames across national cultures.

EMOTION, RATIONALITY, AND THE REGIME OF JUDICIAL DISPASSION The traditional perspective on the relationship between emotion and rationality positions the two as opposed to one another. The rise of modern Western thinking is largely built upon the

10 Abigail C. Saguy and Forrest Stuart, ‘Culture and Law: Beyond a Paradigm of Cause and Effect,’ The ANNALS of the American Academy of Political and Social Science, 619 (2008): 149–64. 11 Saguy and Stuart, ‘Culture and Law,’ 158. 12 Friedman, ‘The Concept of Legal Culture: A Reply.’ 13 Terry A Maroney, ‘The Persistent Cultural Script of Judicial Dispassion,’ California Law Review 99, no. 2 (2011): 629-81.

150  Research handbook on law and emotion emotion-rationality distinction.14 Man (sic!) was seen as the only species who could tame his nature, his body, and his emotions in the service of reason; ‘emotion’ implicated what was female, natural, of the body and private, and reason implicated what was male, civilized, of the mind, and public. The metaphor of ‘Mother Nature’ illustrates this masculine image of the new scientific attitude.15 The association of emotions as ‘things’ that can inflict harm and thus need to be controlled turns emotions into threats to ‘the proper functioning of the Western ideal of a rational person.’16 The modernist dichotomy of reason and emotion permeates Western legal systems because these were constructed at the same time as other modern institutions such as science and democratic government.17 For the law to perform justice objectively and equally for all citizens – a process essential for the production of public trust and compliance with the rule of law – emotions and emotional attachments must be ‘put aside’.18 As Maroney states, ‘[l]aw . . . was thought to be a bulwark against popular emotion. The judge came to be seen as the primary figure guarding this realm of rationality, by taming the emotions of litigants, ignoring the emotions of the public, and divesting herself of her own’.19 The bifurcation of rationality and emotion seems to be fundamental to legal professionals’ perceptions of how they interpret and apply the law and exercise their power over people. In many ways, law’s sine qua non seems to be a lack of emotion; the ‘regime of judicial dispassion’20 is inherent to ‘legal ideology’.21 In most Western countries, the strict separation of rationality and emotion has been challenged over the past four to five decades. Rationality and emotion are argued to be mutually supportive22 or even intertwined,23 and that their relationship follows different logics in different cultural contexts. The relation between emotion and rationality can be more or less reflected, it can be managed by different techniques, and specific situations or interactions can be considered more or less rational or emotional both across cultures and across time.24 Barbalet25 emphasizes the necessity of emotions for instrumental rationality, which he argues requires commitment and a sense of what is and is not relevant material and information for the task. To concentrate, one needs to feel basic security and trust in the future, and to be caught up in the action, one needs to feel ‘a sense of sufficiency’, being absorbed by the task while

Michel Foucault, L’ordre Du Discours (Paris: Gallimard, 1971); Margret C. Jacob, The Cultural Meaning of the Scientific Revolution (New York: Alfred A. Knopf, 1988); Georg Henrik von Wright, Vetenskapen Och Förnuftet (Stockholm: Bonnier, 1986). 15 Von Wright, Vetenskapen Och Förnuftet, 65. 16 Zoltán Kövecses, Metaphor and Emotion: Language, Culture, and Body in Human Feeling (Cambridge: Cambridge University Press, 2000), 48. 17 Kövecses, Metaphor and Emotion, 48. 18 See also Hans Heinrich Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: Routledge, [1948] 1998). 19 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion,’ 635. 20 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion,’ 635. 21 Bettina Lange, ‘The Emotional Dimension in Legal Regulation,’ Journal of Law and Society 29, no. 1 (2002): 204. 22 Antonio R Damasio, Descarte’s Error (New York: G.P. Putnam, 1994). 23 Jack Barbalet, Emotion, Social Theory, and Social Structure—A Macrosociological Approach (Cambridge: Cambridge University Press, 1998). 24 Eva Illouz and Shoshannah Finkelman, ‘An Odd and Inseparable Couple: Emotion and Rationality in Partner Selection,’ Theory and Society 38, no. 4 (2009). 25 Barbalet, Emotion, Social Theory, and Social Structure, 60. 14

Comparing culturally embedded frames of judicial dispassion  151 avoiding distractions. Guiding and facilitating emotions promote focus, such as pride and satisfaction in one’s skills; in the case of legal professionals, these are the skills of legal encoding and juridical knowledge. We may also add interest and curiosity in the task, aesthetic pleasure in the beauty of logics and consistency. Barbalet suggests that distaste orients the determination of whether information is relevant or irrelevant; in the case of legal professionals, we have also seen distaste expressed as ‘irritation’.26 Considering that current broader social and scientific trends criticize or even abandon the conventional view of rationality and emotion as opposed phenomena, it is hardly surprising that the ‘script of judicial dispassion’ has also been challenged.27 Today, emotions in court is a rapidly expanding research field with enough findings to date to securely prove that legal systems are not devoid of emotion, and that emotion play a decisive role for rational action in terms of professional legal behaviour.28 Indeed, the gap between the prevailing discourse of dispassion and the actual emotionality of everyday practice, or the tenacity of legal ideology, makes the courts a particularly interesting case for the study of emotion and rationality as intertwined.29 Previous research, primarily in the common law system, has investigated various ways that emotions are active in courts, demonstrating the expressions, usage, and effect of discrete judicial emotions,30 the use of conscious and unconscious emotion management,31 and the emotional treatment of litigants and plaintiffs.32 Research has particularly investigated the multiple roles and potential pitfalls of empathy in legal professional work.33

Bergman Blix, and Wettergren, Professional Emotions in Court. See, e.g., Susan A Bandes, ed., The Passions of Law (New York: New York University Press, 1999). 28 Terry A Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field,’ Law and Human Behavior 30, no. 2 (2006); Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’; Terry A Maroney and James J Gross, ‘The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective,’ Emotion Review 6, no. 2 (2014); Richard A Posner, How Judges Think (Harvard: Harvard University Press, 2010); Sharyn Roach Anleu and Kathy Mack, ‘Magistrates’ Everyday Work and Emotional Labour,’ Journal of Law and Society 32, no. 4 (2005); Kathy Mack and Sharyn Roach Anleu, ‘Performing Impartiality: Judicial Demeanor and Legitimacy,’ Law and Social Inquiry 35, no. 1 (2010); Susan A Bandes and Jeremy A Blumenthal, ‘Emotion and the Law,’ Annual Review of Law and Social Science 8 (2012). 29 Bergman Blix and Wettergren, Professional Emotions in Court: A Sociological Perspective. 30 Mack and Roach Anleu, ‘Performing Impartiality’; James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses (Boston: Northeastern University Press, 1999). 31 Jennifer A Scarduzio, ‘Maintaining Order through Deviance? The Emotional Deviance, Power, and Professional Work of Municipal Court Judges,’ Management Communication Quarterly 25, no. 2 (2011); Roach Anleu and Mack, ‘Magistrates’ Everyday Work and Emotional Labour’; Penny Darbyshire, Sitting in Judgment: The Working Lives of Judges (Oxford: Hart Publishing Ltd., 2011); Martine Herzog-Evans, French Reentry Courts and Rehabilitation: Mister Jourdain of Desistance (Paris: Editions L’Harmattan, 2014). 32 Darbyshire, Sitting in Judgment; Roach Anleu and Mack, ‘Magistrates’ Everyday Work and Emotional Labour.’ 33 Susan A Bandes, ‘Empathy, Narrative, and Victim Impact Statements,’ The University of Chicago Law Review 63, no. 2 (1996); Tracey Booth, ‘‘Cooling out’ Victims of Crime: Managing Victim Participation in the Sentencing Process in a Superior Sentencing Court,’ Australian & New Zealand Journal of Criminology 45, no. 2 (2012); Nigel G. Fielding, ‘Lay People in Court: The Experience of Defendants, Eyewitnesses and Victims,’ The British Journal of Sociology 64, no. 2 (2013); Mary Lay Schuster and Amy Propen, ‘Degrees of Emotion: Judicial Responses to Victim Impact Statements,’ Law, 26 27

152  Research handbook on law and emotion Nevertheless, previous research to a large extent maintains an ambivalence as to whether rationality and emotion are separate phenomena; emotion is often not considered or integrated as part and parcel of professional legal work, but is seen as occasionally supportive of it. In contrast, we, like the discussion above, assert that emotion and rationality are intertwined and inseparable. To cut across the cultural bifurcation of emotion and reason, however, we have discovered the need to develop a conceptual toolkit to help with the interrogation, observation and analysis of simultaneous emotive and cognitive actions and interactions. Before developing this toolkit, we will first discuss how national/cultural as well as the general Western legal emotional regimes influence local emotive-cognitive judicial frames, and how the legal sphere’s configuration of the emotional/rational conceptualization can be traced to structural conditions and tensions in the broader society.

THE SOCIO-CULTURAL VARIATIONS OF NATIONAL EMOTIONAL REGIMES Historical analyses have shown that different epochs and cultures form different ‘systems of feelings’,34 which have been analysed in terms of ‘emotional regimes’,35 ‘emotionologies’,36 or ‘emotional communities’.37 The notion of ‘system’ depicts what groups of people ‘define and assess as valuable or harmful to them; the evaluation that [people] make about others’ emotions; the nature of the affective bonds between people that they recognize; and the modes of emotional expression that they expect, encourage, tolerate and deplore’.38 Different systems can vary in the relationships between private/professional emotions, formality/informality, and expectations on self-regulation.39 Wouters, for example, compares the British emotion habitus, where maintained social hierarchies and a high degree of social tact keep emotions of violence and sexuality in particular banned from public life, to the American informal habitus, with its less distinct barriers between private and public life.40 The example of the American judge’s open expression of anger at the beginning of this chapter illustrates the indistinct barriers between formal and informal performances in the American emotional regime, while the Swedish judge presumably has a larger variation between her expressions of anger in her professional (formal) versus her private (informal) life.

Culture and the Humanities 6, no. 1 (2010); Åsa Wettergren and Stina Bergman Blix, ‘Empathy and Objectivity in the Legal Process: The Case of Swedish Prosecutors,’ Journal of Scandinavian Studies in Criminology and Crime Prevention 17, no. 1 (2016). 34 Barbara H Rosenwein, ‘Worrying About Emotions in History,’ The American Historical Review 107, no. 3 (2002). 35 Reddy, The Navigation of Feeling. 36 Peter N Stearns and Carol Z Stearns, ‘Emotionology: Clarifying the History of Emotions and Emotional Standards,’ The American Historical Review 90, no. 4 (1985). 37 Rosenwein, ‘Worrying About Emotions in History.’ 38 Rosenwein, ‘Worrying About Emotions in History,’ 842. 39 Cas Wouters, Informalization: Manners and Emotions since 1890 (London: Sage, 2007); Reddy, The Navigation of Feeling; Peter N. Stearns, American Cool - Constructing a Twentieth-Century Emotional Style (New York: New York University Press, 1994). 40 Wouters, Informalization, 134-35.

Comparing culturally embedded frames of judicial dispassion  153 Modern social-psychological research focusing cross-cultural differences on emotions have found that feeling and display rules and their social function vary across (and within) cultures.41 So far cross-cultural studies predominantly study differences between individualist Western and collectivist Eastern cultures,42 focusing on how emotions are differently experienced, expressed, and valued depending on differences in the construction of identity.43 Because we focus on cross-cultural comparisons within the modern Western emotional regime, we argue these differences pertain to expression, rather than function. The emotional regime of Western countries, particularly the legal regime, share an individualistic culture and an ideal of judicial dispassion.44 National as well as general Western emotional regimes influence local court/judicial emotional regimes. Historical research on specific legal emotional regimes have shown that the legal sphere’s configuration of the emotion/rational conceptualization can be traced to structural conditions and tensions in the broader society. This means that the binary emotion/ rationality conceptualization has not been static over time. For example, the formation of a new Russian legal system after the 1917 revolution emphasized the role of emotion in judicial decision-making as a breach with the former, emotionally distant ‘bourgeois’ system. While this change pertained to the national Russian system, it could be traced to the emergence of a ‘free law movement’ in Germany.45 Nevertheless, as argued in the introduction, the combination of broader Western rational features, such as male, civilization, mind and public, are also observed in these historical legal emotional regimes. Sandra Schnädebach’s study on the shifting meaning of the concept of Rechtsgefühl (feeling of justice) in late 19th and early 20th century Germany shows that threats to the status position of the male bourgeois judiciary went hand-in-hand with a growing professionalization of the judge position. The formerly innate capacity of Rechtsgefühl changed into a judicial capacity that demanded training and advanced emotion management.46 Contemporary research linking legal emotional regimes to national regimes are lacking, but, for example, Bergman Blix and Wettergren have shown how the extreme subtleness of emotional expression in Swedish courts should be interpreted in light of Sweden’s status as a high-trust society with a tradition of public consensus.47

41 Batja Mesquita and Nico H. Frijda, ‘Cultural Variations in Emotions: A Review,’ Psychological Bulletin 112, no. 2 (1992). 42 Batja Mesquita, ‘Emotions in Collectivist and Individualist Contexts,’ Journal of Personality and Social Psychology 80, no. 1 (2001); Michael Eid and Ed Diener, ‘Norms for Experiencing Emotions in Different Cultures: Inter-and Intranational Differences,’ Journal of Personality and Social Psychology 81, no. 5 (2001). 43 Shinobu Kitayama, Batja Mesquita, and Mayumi Karasawa, ‘Cultural Affordances and Emotional Experience: Socially Engaging and Disengaging Emotions in Japan and the United States,’ Journal of Personality and Social Psychology 91, no. 5 (2006). 44 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion.’ 45 Pavel Vasilyev, ‘Beyond Dispassion: Emotions and Judicial Decision-Making in Modern Europe,’ Rechtsgeschichte-Legal History 25 (2017). 46 Sandra Schnädelbach, ‘The Jurist as Manager of Emotions. German Debates on Rechtsgefühl in the Late 19th and Early 20th Century as Sites of Negotiating the Juristic Treatment of Emotions,’ InterDisciplines 6, no. 2 (2015). 47 Bergman Blix and Wettergren, Professional Emotions in Court, 27.

154  Research handbook on law and emotion The notion of emotional regimes has been criticized for being too static and not allowing for differences in the emotional experience and expression across and within social spaces.48 In our own research on the Swedish courts, we regarded ‘judicial emotional regime’ as an overarching concept,49 echoing Maroney’s notion of a ‘script of judicial dispassion’.50 Our empirical analysis revealed a need to emphasize both that emotion and cognition were inseparable, and that court interaction demanded a more fluid conception of how feeling rules shift between social spaces and situations, allowing for a multiplicity of habituated behaviours. We developed the notion of ‘emotive-cognitive judicial frame’ – a restricted behavioural script for law professionals51 – to allow us to better conceptualize the embodied character of situated feeling norms and the ways these norms are embedded in larger structures, i.e., regimes.

A THEORETICAL TOOLKIT FOR THE ANALYSIS OF EMOTIONS IN COURT The notion of the emotive-cognitive judicial frame proposes that feeling rules and other social norms or constraints are not merely cognitive but also emotional. Indeed, the fact that these norms are emotional is crucial for their effectiveness – people would not care about norms if they did not feel them.52 Merging the emotive and cognitive thus emphasizes that the habituation of a frame’s social constraints is a simultaneous process of learning to feel and learning to think in particular ways. Habituation53 is the embodiment of emotional expressions, achieved through socialization, training, and repetition over time. Frames become habituated and settled to the extent that people begin to take a frame – a certain way of understanding and responding to a situation – for granted;54 their emotion management and adjustment to situated emotion norms becomes backgrounded. Frames are situational. People walk in and out of frames during their everyday life. The morning stress of breakfast and seeing children off to school has a different emotive-cognitive logic than the workday; a judge can, for example, experience and express anger differently in the two different frames. Like Rosenwein’s concept of ‘emotional communities’, frames allow actors to ‘move . . . continually from one such community to another—from tavern to law courts, say—adjusting their emotional displays and their judgments of weal and woe’.55 We use the concept of ‘frame’ rather than ‘community’ because

Benno Gammerl, Jan Simon Hutta, and Monique Scheer, ‘Feeling Differently: Approaches and Their Politics,’ Emotion, Space and Society 25, no. 1 (2017). 49 Stina Bergman Blix and Åsa Wettergren, ‘A Sociological Perspective on Emotions in the Judiciary,’ Emotion Review 8, no. 1 (2016). 50 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion.’ 51 Bergman Blix and Wettergren, Professional Emotions in Court, 22. 52 Randall Collins, ‘Theoretical Continuities in Goffman’s Work,’ in Erving Goffman - Exploring the Interaction Order, ed. Paul Drew and Anthony Wootton (Cambridge: Polity Press, 1988), 41–63. 53 Stina Bergman Blix, ‘Professional Emotion Management as a Rehearsal Process,’ Professions and Professionalism 5, no. 2 (2015). 54 Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (Boston: Northeastern Univ. Press, [1974] 1986). 55 Rosenwein, ‘Worrying About Emotions in History,’ 842. 48

Comparing culturally embedded frames of judicial dispassion  155 Goffman56 conceived this concept as inherently fluid and not static in relation to the subject, even when it is habituated and embodied.57 Situational frames, such as the emotive-cognitive judicial frame, are distinct from but conditioned by the more general emotional regime of the broader societal culture in which they are embedded. This means that examples such as a judge’s anger, in both her private and professional capacities, is aligned with these broader societal cultural conventions or behavioural norms. The concept of emotional regime thus refers to the dominant societal discourse and knowledge about the role of emotions and the set of feeling and display rules and emotion words available through that discourse.58 Undoing the bifurcation of emotion and rationality crucially allows us to consider the emotionality of actions and dispositions that are not conventionally seen as emotional. This is first and foremost achieved by the concept of ‘background emotion’, which derives from Barbalet’s theorizing on emotions of rationality.59 Backgrounded emotions ‘function by giving attention to external but not internal objects of emotional apprehension’.60 According to Barbalet, backgrounded emotions are calm and quiet, of low visibility to others, and just below the feeling subject’s consciousness. In our usage, background emotions need not always be conducive to the action at hand; they can also be distracting and call for a change of action. As long as this focus shift is of a non-dramatic, routine character, it can be managed in the background.61 Thus, emotion management can be backgrounded too. For example, a judge may act on her background emotion of worry, stemming from the emotive-cognitive assessment that a victim is extremely nervous, and manage her own worry and the victim’s nervousness by seeking eye contact with the victim’s counsel to ensure that the counsel will calm the victim. None of the legal participants in this action would register this event as (emotional).62 In contrast to background emotions, ‘foreground emotions’, make an emoting subject aware of her own feelings. In Barbalet’s63 terms, foreground emotion calls attention to both external and internal objects of action, and probably also to whether and how the experienced emotion needs to be managed, given the emotion norms of the situational frame. The subject is aware of the emotion and feels that it obstructs concentration on the task at hand, as when a judge is overwhelmed by sadness and is about to cry during a hearing. However, we can also imagine that actors can consciously summon an emotion conducive to a specific action. For example, a judge can summon anger to enhance her authoritarian display when reprimanding a misbehaving person in court, while keeping within the emotion norms of the frame. The emotion being consciously conveyed is in the foreground, but is not a distraction since it is conducive to the action at hand. An interesting case consists of emotions that are backgrounded to the subject but foregrounded to others. In our research, this was exemplified by some judges who consistently Goffman, Frame Analysis. Bergman Blix, ‘Professional Emotion Management as a Rehearsal Process.’ 58 Reddy, The Navigation of Feeling - a Framework for the History of Emotions, 129. 59 See, e.g., Jack Barbalet, ‘Emotions Beyond Regulation: Backgrounded Emotions in Science and Trust,’ Emotion Review 3, no. 1 (2011): 36–43. 60 Barbalet, ‘Emotions Beyond Regulation,’ 39. 61 Åsa Wettergren, ‘Emotive-Cognitive Rationality, Background Emotions and Emotion Work,’ in Emotions in Late Modernity, eds, Roger Patulny, et al. (London: Routledge, 2019). 62 See Bergman Blix and Wettergren, Professional Emotions in Court: A Sociological Perspective. 63 Barbalet, ‘Emotions Beyond Regulation.’ 56 57

156  Research handbook on law and emotion denied feeling any emotions, and who rejected the idea that emotion would be of any use to legal practice. But their work-related emotions were highly visible in our observation notes. A judge would beam with pride when talking about rewarding experiences as a judge, steam with frustration when encountering obnoxious journalists, radiate irritation at the cocky defence lawyer, or bounce with excitement at the interesting murder case that was just allotted to him. Yet, he would be entirely unaware of his emotional displays. In a Swedish context, these backgrounded (to the emoting subject) yet highly visible (to others) emotions are almost exclusively a male phenomenon. These backgrounded/foregrounded emotions suggest a rather fascinating tentative conclusion: specific constellations of power, status, gender, and frames enable some actors to ignore or even transgress situated emotion norms and yet be recognized as ‘rational’ (as opposed to ‘sentimental’ and ‘irrational’) actors. This conclusion points to an additional explanation of why emotive-cognitive judicial frames in other Western countries, such as Italy, allow much more leeway in judges’ emotional expressions than in Sweden, and yet the regime of judicial dispassion remains a valid prerequisite for the objectivity and rationality of the courts. A possible understanding may be that judges’ power, privilege and masculinity allow them to act more emotional and still be deemed rational. This observation will of course depend on the national emotional regimes in which the emotive-cognitive frame is embedded; if the national emotional regime allows for lavish emotional expressivity, individuals in privileged social positions may display even more of it. The unconsciously expressive judges in the Swedish context are few and stand out due to the very subtlety of the Swedish emotional regime that shapes the local emotive-cognitive judicial frame. The emotive-cognitive judicial frame is a concept, we argue, that is applicable to legal systems in all national contexts. It differs from the Western judicial emotional regime in that it combines the ideals and emotion norms of this regime, notably the ideal of dispassion, and the emotion norms of the ‘local’ national emotional regime, which determines how much leeway is permitted for emotion norms of dispassion. In Sweden, the extreme cultural subtlety of the national emotional regime interacts with the Western regime of judicial dispassion to create an emotive-cognitive emotional regime that is devoid of visible emotions. Background emotion and background emotion management are crucial concepts in the study of emotions at work in social spaces characterized as unemotional. These background emotions are often the calm and quiet emotions that inform, orient and support rational action and unnoticed background emotion work, allowing actors to deal with actual or potential emotive-cognitive attention shifts before these shifts surface as distracting foreground emotions. Background and foreground emotions do not connote any specific, discrete emotions; they are not classificatory categories. The concepts allow us to differentiate between what people actually experience as an emotional state, on the one hand, and human beings’ constant emotionality (even when an individual is unaware of any feelings) on the other. Background emotions conducive to rational and professional action – as opposed to foreground emotions that disturb focus – also provide a convenient way to talk and reflect about emotion in and of ‘non-emotional’ spaces. The distinction between background and foreground emotions is applicable to all legal systems, but the visibility of background emotions will vary according to both the national emotional regime and the ways that power and status is distributed within it. This brings us to the important concepts of power and status, which are also universally applicable and which direct our attention to social structures, the distribution of resources (power) and recognition (status) in a society. It is fairly safe to say that the legal professions are high status professions in all Western societies, and that judges are especially invested with

Comparing culturally embedded frames of judicial dispassion  157 vast executive power as part of their profession. Power and status add ‘group charisma’64 to the emotive-cognitive judicial frame, i.e., the collective pride and satisfaction of belonging to a powerful and ‘uniquely valuable’ social group.65 Group belonging and the emotional energy of interacting with group members,66 for instance in court proceedings, are strong motivators for habituating and reproducing core group values and beliefs, such as legal practice as unemotional.67

POWER AND STATUS Power and status relations are both sources and outcomes of emotions, and they seem to work in similar ways across national emotional regimes, at least in democratic Western countries.68 For instance, if I accord another person status this will likely prompt that person to like me, particularly if the other is my subordinate (social as well as my subordinate at work). If the other is my superior, the status-giving is likely conditioned by various feeling rules governing emotional exchanges between social unequals.69 Kemper70 defines the relationship between status and power as voluntary versus non-voluntary compliance; if the powerful person is also accorded high status, then subordinates are likely to comply voluntarily. In our data, we have seen how legal actors, particularly prosecutors use status-giving to achieve voluntary compliance from police. This strategy may be wholly calculative and inauthentic, but it is still more efficient than using a prosecutors’ formal power to command the police. For instance, prosecutors are aware of the fact that the police are more likely to secure and provide good evidence if they are encouraged to suggest the next step in an investigation, rather than being submitted to the prosecutor spurting out directives.71 There are instances when judges are not given the status they need or want to perform in court and use power to get their way, raising their voices to show power or holding someone in contempt of court. These uses of power may, however, undermine one’s status – people will have to obey, but will resent the use of force.72 It follows that the use of power inherently contains efforts to gain legitimacy; if power is legitimately obtained, then it becomes authority. Kemper defines authority as ‘a status grant to some to enable them to use power under certain defined circumstances against those who grant them the right to do so’.73 In democratic societies, the law is constantly seeking the populations’ legitimacy and trust, with the goal of exercising authority rather than force. In Western courtrooms utilizing the regime of judicial Norbert Elias and John L. Scotson, The Established and the Outsiders (London: SAGE, 1994). Bergman Blix and Wettergren, Professional Emotions in Court, 56. 66 Randall Collins, Interaction Ritual Chains (Princeton: Princeton University Press, 2004). 67 See Bergman Blix and Wettergren, ‘The Emotional Interaction of Judicial Objectivity.’ 68 Theodore Kemper, ‘Toward a Sociology of Emotions: Some Problems and Some Solutions,’ The American Sociologist 13, no. 1 (1978). 69 Candace Clark, Misery and Company: Sympathy in Everyday Life. (Chicago: University of Chicago Press, 1997). 70 Kemper, Status, Power and Ritual Interaction. 71 Bergman Blix and Wettergren, Professional Emotions in Court; Wettergren and Bergman Blix, ‘Empathy and Objectivity in the Legal Process.’ 72 Andrew Abbott, ‘Status and Status Strain in the Professions,’ American Journal of Sociology 86, no. 4 (1981). 73 Kemper, Status, Power and Ritual Interaction, 22. 64 65

158  Research handbook on law and emotion dispassion, legal professionals subordinate to the judge therefore engage in ‘ritual deference’74 towards the judge, which the judge expects. This ritual deference is a way of ‘doing’ the authority of justice. The patterns of emotions that evolve when this rule of ritual subordination is breached are likely to be similar across countries, even if the magnitude and display of court interactions differ. According to Kemper, ‘status seeking is a perpetual aspect of relational interaction’.75 If this is true for legal professionals’ interactions, it means that the emotions observed in inter-professional interactions are indications of the status relations between legal professionals, and vice versa; knowing the status relations, one may roughly predict what emotions may be at stake. Both giving and receiving status are commonly associated with satisfaction, and receiving status gives rise to pride76 and self-confidence, or what Collins77 simply labels emotional energy. Status, power, and emotions are structurally associated with one another across time and space, and therefore a status and power theory of emotions can be used as a blueprint to compare professional emotions in court across different countries. The introductory vignettes of this chapter are one example of this. This technique can be used to analyse other emotional processes besides those between legal professionals, such as the emotional processes affecting lay people and common audiences at trials and emotional processes related to the legal system’s broader social legitimacy.

METHODOLOGICAL APPLICATIONS AND AGENDA FOR FUTURE RESEARCH As we have argued in this chapter, the modern Western perceptual dichotomy between reason and emotion and its embodiment in Western jurisprudence is likely present in all Western countries. However, social phenomena are contextually structured, and we also expect local variations due to the unique characteristics of national/cultural emotional regimes. In this last section, we will focus on methodological applications for empirical comparative research of legal emotional regimes. There are several ways to detect differences and similarities in emotion norms or ‘feeling rules’78 across emotional regimes, focusing on both discursive and interactional elements. Discursive clues can be found by problematizing emotion terms (e.g., tracking whether a specific term actually signifies an emotion) and, if so, what that emotion (or ‘emotive’79) implies, its relative importance, if it is seen as active or passive, and if it is associated with specific bodily or gestural changes.80 Another discursive clue is silence, or lack of references to emo-

Thomas J. Scheff, Microsociology. Discourse, Emotion, and Social Structure (Chicago: The University of Chicago Press, 1990). 75 Kemper, Status, Power and Ritual Interaction, 17. 76 Kemper, Status, Power and Ritual Interaction, 19. 77 Collins, Interaction Ritual Chains. 78 Hochschild, The Managed Heart. 79 Reddy, The Navigation of Feeling. 80 Barbara H Rosenwein, ‘Problems and Methods in the History of Emotions,’ Passions in Context 2010, no. 1 (2010); Monique Scheer, ‘Are Emotions a Kind of Practice (and Is That What Makes Them 74

Comparing culturally embedded frames of judicial dispassion  159 tions in specific spheres of life, such as informal/formal and private/public spheres.81 A third discursive clue is the use of metaphors and ironies. Kövecses suggests that the cross-cultural use of the metaphor of anger as a hot fluid in a container (the body) points to a universal experience of anger.82 In comparative legal studies, these discursive clues can be used when comparing documents, such as written verdicts, across different national contexts, and for comparing the relationship between discursive clues and different forms of emotional expressions. How are emotives or silences used in public hearings, confidential group deliberations, and so on across national systems? Moving to the interactional elements, Stearns’ analyses of ‘emotionology’ is interesting when focusing on modern Western cultures, since it implies the tracing of emotional standards across time.83 Stearn builds on Norbert Elias’ analyses of the civilizing process, using etiquette books and manuals to trace how social and economic changes impact expectations of emotional interaction. This research is similar to sociological research showing that the contemporary instrumental use of emotions is linked to support of capitalism and the market.84 For legal comparisons, situating emotional standards in court within larger societal structural systems can explain differences as well as similarities in emotional expressivity. For example, international institutional changes, such as the triumph of the New Public Management model85 in most Western countries, can be linked to increased standardization of emotional expressions across countries, while unique national emotional regime characteristics, such as the high-trust society of Sweden versus the low-trust society of the U.S., can explain differences in emotional expressivity between countries. Having described its utility and components, we will now discuss more specifically how our conceptual toolkit can be put to use in future research by identifying three analytical features which allow for nuanced and multifaceted comparisons of the role of emotions across legal and national systems: rituals, roles, and norms. Comparing Rituals The court process can be analysed as a comprehensive ritual ‘achieving, training, articulating, and modulating emotions’.86 Procedural rules and regulations govern the setup of each step in the legal process; public hearings take place in specifically designed rooms, where every

Have a History)? A Bourdieuan Approach to Understanding Emotions,’ History and Theory 51, no. 2 (2012). 81 Rosenwein, ‘Problems and Methods in the History of Emotions’; Wouters, Informalization. 82 Kövecses, Metaphor and Emotion, 35. 83 Stearns, American Cool, 3. 84 Hochschild, The Managed Heart; Arlie Russell Hochschild, The Commercialization of Intimate Life – Notes from Home and Work (Berkeley: University of California Press, 2003). See also Stjepan G. Mestrovic, Postemotional Society (London: Sage, 1997). 85 New Public Management is a neoliberal model for governing public sector organizations inspired by private business, which was initialized in the 1980s. Its various implementations in many Western countries has led to a focus on financial control and ‘value for money’ by identifying organizational goals and measuring the fulfilment of these goals; a ‘customer-perspective’ on the citizens using the services of public sector organizations; and striving for a market-like structure of the public sector by introducing ‘competition’ between private and public sector organizations (deregulating public services such as health care and education) (see Management Study Guide, ‘New Public Management Model,’ https://​ www​.​management​studyguide​.com/​new​-public​-management​.htm, last accessed 9 January 2021. 86 Scheer, ‘Are Emotions a Kind of Practice,’ 210.

160  Research handbook on law and emotion role has its designated place. These ritual discursive and architectural premises are interesting to compare in themselves as components to control disturbing emotions. Furthermore, the confined spaces and elaborate manuscripts within legal contexts frame the ‘case bound interaction chains’;87 hearings unfold in the same sequence every time. The method of shadowing is particularly useful here; following professional actors in and out of these interaction rituals can expose the unfolding of foreground emotional processes, such as the excerpt at the start of this chapter with Judge Monika’s building up anger. Shadowing legal professional actors in different cultural (national) contexts makes it possible to situate emotional motivations and expressions in the emotion norms of a wider cultural context, and examine the relationship of these particular emotion norms to specific judicial tasks in different judicial frames that all share the universal ideal of judicial dispassion. In particular, attending to these rituals through shadowing is essential for uncovering backgrounded emotional processes that are difficult to reflect on in formal interviews and are largely invisible in written documents. For example, can we find the same bundles or sequences of background emotions across different national/ legal rituals, or are there different emotional patterns? Comparing Roles Comparing rituals focuses on interactional patterns, while comparing roles focuses on motivations and expressions at the group level. In our previous research, we have compared the roles of judges and prosecutors to identify how these roles construct objectivity depending on differences in goals, organization, and structural position.88 Comparing roles thus puts greater focus on which organizational and institutional features identify group experiences. For example, in some countries (e.g., Sweden) hearings are temporally continuous, while in others (e.g., Italy) most hearings are interspersed over long sequences in time. How do these temporal dimensions influence build-ups and attenuations of emotions for different legal professionals? Comparing Norms The fluid conceptualization of frames (discussed earlier) allows for comparing how frames can be ‘played’,89 for example focusing on breaks in frame maintenance such as humorous incidents90 or occasions when legal professionals signal one thing with emotional expressions but emphasize the opposite verbally.91 Emotional norms also come to the fore when interacting frames clash.92 In court hearings, this can happen when the emotive-cognitive judicial frame

Collins, Interaction Ritual Chains. Bergman Blix and Wettergren, Professional Emotions in Court. 89 Erving Goffman, Encounters: Two Studies in the Sociology of Interaction (Indianapolis: The Bobbs-Merrill Company, Inc., 1961). 90 Stina Bergman Blix and Åsa Wettergren, ‘Humour in the Swedish Court: Managing Emotions, Status and Power,’ in Judges, Judging and Humour, eds, Jessica Milner Davis and Sharyn Roach Anleu (London: Palgrave Macmillan, 2018); Sharyn Roach Anleu, Kathy Mack, and Jordan Tutton, ‘Judicial Humour in the Australian Courtroom,’ Melbourne University Law Review 38, no. 2 (2014). 91 Lisa Flower, ‘Doing Loyalty: Defense Lawyers’ Subtle Dramas in the Courtroom,’ Journal of Contemporary Ethnography 47, no. 2 (2018); Bergman Blix and Wettergren, ‘The Emotional Interaction of Judicial Objectivity.’ 92 Goffman, Frame Analysis. 87 88

Comparing culturally embedded frames of judicial dispassion  161 meets the emotive-cognitive frames of laymen (victims, defendants and witnesses) coming to court who do not know, or do not agree with, the judicial frame’s emotion norms. Importantly, comparing transitions between situational frames – backstage preparations, front-stage presentations, and backstage ventilations93 – facilitates detecting the relative importance of boundaries between formal/informal and private/professional behaviour. How are the transitions between frames achieved, and are the boundaries between them relaxed or strict? The conceptual toolkit and methodological considerations discussed in this chapter all point towards the use of qualitative methods. We base this argument on the fact that qualitative data can be analytically generalized by identifying ‘context-bound typicalities’,94 that is patterns in the data that generate ideal-typologies and theoretical concepts. In this chapter we have argued, implicitly, that under all conditions similar to those of our Swedish legal system study, similar patterns can be expected, and thereby the concepts suggested in our toolkit can be fruitfully transferred from our study to the next. We do not exclude the use of quantitative methods in the long run, but the field of emotions in law in general, and comparisons between countries in particular, is still largely uncharted ground. Qualitative methods are the best fit for investigating new previously unstudied social phenomena or probing into new issues unfamiliar to the social world. It would not make sense, for instance, to survey people about background emotions and professional emotions when they are generally socialized to consider only foreground emotions as proper ‘emotions’ and to categorize these as belonging to the private, not the public and professional, sphere. Obviously, the more data we get on local and universal patterns of professional emotions in court, the easier it will be to construct adequate survey questions that will capture the range and extent of emotional processes in court and across national cultures, allowing for statistical generalizations and correlations at the macro level. This may be necessary in order to truly tease out the general from the particular in the comparative study of emotions in law, perhaps especially if we venture outside the Western world.

REFERENCES Abbott, Andrew. ‘Status and Status Strain in the Professions.’ American Journal of Sociology 86, no. 4 (1981): 819–35. Bandes, Susan A. ‘Empathy, Narrative, and Victim Impact Statements.’ The University of Chicago Law Review 63, no. 2 (1996): 361–412. Bandes, Susan A., ed. The Passions of Law. New York: New York University Press, 1999. Bandes, Susan A. and Jeremy A Blumenthal. ‘Emotion and the Law.’ Annual Review of Law and Social Science 8 (2012): 161–81. Barbalet, Jack. Emotion, Social Theory, and Social Structure – a Macrosociological Approach. Cambridge: Cambridge University Press, 1998. Barbalet, Jack. ‘Emotions Beyond Regulation: Backgrounded Emotions in Science and Trust.’ Emotion Review 3, no. 1 (January 1, 2011 2011): 36–43. Bergman Blix, Stina. ‘Professional Emotion Management as a Rehearsal Process.’ Professions and Professionalism 5, no. 2 (2015): 1–15. Bergman Blix, Stina and Åsa Wettergren. ‘The Emotional Interaction of Judicial Objectivity.’ Oñati Socio-Legal Series 9, no. 5 (2019).

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162  Research handbook on law and emotion Bergman Blix, Stina and Åsa Wettergren. ‘Humour in the Swedish Court: Managing Emotions, Status and Power.’ In Judges, Judging and Humour, edited by Jessica Milner Davis and Sharyn Roach Anleu, 179–209. London: Palgrave Macmillan, 2018. Bergman Blix, Stina and Åsa Wettergren. Professional Emotions in Court: A Sociological Perspective. London: Routledge, 2018. Bergman Blix, Stina and Åsa Wettergren. ‘A Sociological Perspective on Emotions in the Judiciary.’ Emotion Review 8, no. 1 (2016): 32–7. Booth, Tracey. ‘“Cooling out” Victims of Crime: Managing Victim Participation in the Sentencing Process in a Superior Sentencing Court.’ Australian & New Zealand Journal of Criminology 45, no. 2 (2012): 214–30. Clark, Candace. Misery and Company. Sympathy in Everyday Life. Chicago: University of Chicago Press, 1997. Collins, Randall. Interaction Ritual Chains. Princeton: Princeton University Press, 2004. Collins, Randall. ‘Theoretical Continuities in Goffman’s Work.’ In Erving Goffman – Exploring the Interaction Order, edited by Paul Drew and Anthony Wootton. Cambridge: Polity Press, 1988. Damasio, Antonio R. Descarte’s Error. New York: G.P. Putnam, 1994. Darbyshire, Penny. Sitting in Judgment: The Working Lives of Judges. Oxford: Hart Publishing Ltd, 2011. Eid, Michael and Ed Diener. ‘Norms for Experiencing Emotions in Different Cultures: Inter-and Intranational Differences.’ Journal of Personality and Social Psychology 81, no. 5 (2001): 869–85. Elias, Norbert and John L. Scotson. The Established and the Outsiders. London: Sage, 1994. Fielding, Nigel G. ‘Lay People in Court: The Experience of Defendants, Eyewitnesses and Victims.’ The British Journal of Sociology 64, no. 2 (2013): 287–307. Flower, Lisa. ‘Doing Loyalty: Defense Lawyers’ Subtle Dramas in the Courtroom.’ Journal of Contemporary Ethnography 47, no. 2 (2018): 226–54. Foucault, Michel. L’ordre Du Discours. Paris: Gallimard, 1971. Friedman, Lawrence. ‘The Concept of Legal Culture: A Reply.’ In Comparing Legal Culture, edited by David Nelkin (Dartmouth:​Dartmouth Publishing, 1997). Gammerl, Benno, Jan Simon Hutta, and Monique Scheer. ‘Feeling Differently: Approaches and Their Politics.’ Emotion, Space and Society 25, no. 1 (2017): 87–94. Gerth, Hans Heinrich and C. Wright Mills, eds. From Max Weber: Essays in Sociology. New York: Routledge, [1948] 1998. Goffman, Erving. Encounters: Two Studies in the Sociology of Interaction. Indianapolis: The Bobbs-Merrill Company, Inc., 1961. Goffman, Erving. Frame Analysis: An Essay on the Organization of Experience. Boston: Northeastern Univ. Press, [1974] 1986. Halkier, Bente. ‘Methodological Practicalities in Analytical Generalization.’ Qualitative Inquiry 17, no. 9 (2011): 787–97. Herzog-Evans, Martine. French Reentry Courts and Rehabilitation: Mister Jourdain of Desistance. Editions L’Harmattan, 2014. Hochschild, Arlie Russell. The Commercialization of Intimate Life – Notes from Home and Work. Berkeley: University of California Press, 2003. Hochschild, Arlie Russell. The Managed Heart – Commercialization of Human Feeling. Los Angeles: University of California Press, 1983. Illouz, Eva and Shoshannah Finkelman. ‘An Odd and Inseparable Couple: Emotion and Rationality in Partner Selection.’ Theory and Society 38, no. 4 (2009): 401–22. Jacob, Margret C. The Cultural Meaning of the Scientific Revolution. New York: Alfred A. Knopf, 1988. Kemper, Theodore. ‘Toward a Sociology of Emotions: Some Problems and Some Solutions.’ The American Sociologist 13, no. 1 (1978): 30–41. Kemper, Theodore D. Status, Power and Ritual Interaction – A Relational Reading of Durkheim, Goffman and Collins. Surrey, U.K.: Ashgate Publishing Limited, 2011. Kitayama, Shinobu, Batja Mesquita, and Mayumi Karasawa. ‘Cultural Affordances and Emotional Experience: Socially Engaging and Disengaging Emotions in Japan and the United States.’ Journal of Personality and Social Psychology 91, no. 5 (2006): 890–903. Kövecses, Zoltán. Metaphor and Emotion: Language, Culture, and Body in Human Feeling. Cambridge: Cambridge University Press, 2000.

Comparing culturally embedded frames of judicial dispassion  163 Lange, Bettina. ‘The Emotional Dimension in Legal Regulation.’ Journal of Law and Society 29, no. 1 (2002): 197–225. Mack, Kathy and Sharyn Roach Anleu. ‘Performing Impartiality: Judicial Demeanor and Legitimacy.’ Law and Social Inquiry 35, no. 1 (Win 2010): 137–73. Management Study Guide. ‘New Public Management Model.’ https://​www​.​management​studyguide​ .com/​new​-public​-management​.htm, last accessed 9 January 2021. Maroney, Terry A. ‘Angry Judges.’ Vanderbilt Law Review 65, no. 5 (2012): 1207–86. Maroney, Terry A. ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field.’ Law and Human Behavior 30, no. 2 (2006): 119–42. Maroney, Terry A. ‘The Persistent Cultural Script of Judicial Dispassion.’ California Law Review 99, no. 2 (2011): 629–81. Maroney, Terry A. and James J Gross. ‘The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective.’ Emotion Review 6, no. 2 (2014): 142–51. Mesquita, Batja. ‘Emotions in Collectivist and Individualist Contexts.’ Journal of Personality and Social Psychology 80, no. 1 (2001): 68–74. Mesquita, Batja and Nico H. Frijda. ‘Cultural Variations in Emotions: A Review.’ Psychological Bulletin 112, no. 2 (1992): 179–204. Mestrovic, Stjepan G. Postemotional Society. London: SAGE, 1997. Nelken, David. ‘Using the Concept of Legal Culture.’ Australian Journal of Legal Philosophy 29 (2004): 1–26. Posner, Richard A. How Judges Think. Harvard: Harvard University Press, 2010. Ptacek, James. Battered Women in the Courtroom: The Power of Judicial Responses. Boston: Northeastern University Press, 1999. Reddy, William. The Navigation of Feeling - A Framework for the History of Emotions. Cambridge: Cambridge University Press, 2001. Roach Anleu, Sharyn and Kathy Mack. ‘Magistrates’ Everyday Work and Emotional Labour.’ Journal of Law and Society 32, no. 4 (2005): 590–614. Roach Anleu, Sharyn, Kathy Mack, and Jordan Tutton. ‘Judicial Humour in the Australian Courtroom.’ Melbourne University Law Review 38, no. 2 (2014). Rosenwein, Barbara H. ‘Problems and Methods in the History of Emotions.’ Passions in Context 2010, no. 1 (2010): 1–32. Rosenwein, Barbara H. ‘Worrying About Emotions in History.’ The American Historical Review 107, no. 3 (2002): 821–45. Saguy, Abigail C. and Forrest Stuart. ‘Culture and Law: Beyond a Paradigm of Cause and Effect.’ The ANNALS of the American Academy of Political and Social Science, no. 619 (2008): 149–63. Scarduzio, Jennifer A. ‘Maintaining Order Through Deviance? The Emotional Deviance, Power, and Professional Work of Municipal Court Judges.’ Management Communication Quarterly 25, no. 2 (2011): 283–310. Scheer, Monique. ‘Are Emotions a Kind of Practice (and Is That What Makes Them Have a History)? A Bourdieuan Approach to Understanding Emotions.’ History and Theory 51 (2012): 193–220. Scheff, Thomas J. Microsociology. Discourse, Emotion, and Social Structure. Chicago: The University of Chicago Press, 1990. Schnädelbach, Sandra. ‘The Jurist as Manager of Emotions. German Debates on Rechtsgefühl in the Late 19th and Early 20th Century as Sites of Negotiating the Juristic Treatment of Emotions.’ InterDisciplines 6, no. 2 (2015): 47–73. Schuster, Mary Lay and Amy Propen. ‘Degrees of Emotion: Judicial Responses to Victim Impact Statements.’ Law, Culture and the Humanities 6, no. 1 (2010): 75–104. Stearns, Peter N. and Carol Z. Stearns. ‘Emotionology: Clarifying the History of Emotions and Emotional Standards.’ The American Historical Review 90, no. 4 (1985): 813–36. Stearns, Peter N. American Cool - Constructing a Twentieth-Century Emotional Style. New York: New York University Press, 1994. Vasilyev, Pavel. ‘Beyond Dispassion: Emotions and Judicial Decision-Making in Modern Europe.’ Rechtsgeschichte-Legal History 25 (2017): 277–85.

164  Research handbook on law and emotion Wettergren, Åsa. ‘Emotive-Cognitive Rationality, Background Emotions and Emotion Work.’ In Emotions in Late Modernity, edited by Roger Patulny, Alberto Bellocchi, Rebecca Olson, Sukhmani Khorana, Jordan McKenzie, and Michelle Peterie. London: Routledge, 2019. Wettergren, Åsa and Stina Bergman Blix. ‘Empathy and Objectivity in the Legal Process: The Case of Swedish Prosecutors.’ Journal of Scandinavian Studies in Criminology and Crime Prevention 17, no. 1 (2016): 19–35. von Wright, Georg Henrik. Vetenskapen Och Förnuftet. Stockholm: Bonnier, 1986. Wouters, Cas. Informalization: Manners and Emotions since 1890. London: Sage, 2007.

11. The loyal defence lawyer Lisa Flower

The role of defence lawyer has particular emotional demands that are not as prevalent for other legal professionals such as prosecutors or judges. Defence lawyers may represent clients accused of heinous crimes—defending the indefensible—leading them to face moral suspicion. Their work may require close contact with clients who are in distress and despair (unless they practice in jurisdictions where paralegals or solicitors perform this intermediary work).1 It can include looking at upsetting or gruesome images. All of these emotionally-charged situations should nevertheless be dealt with in a professional manner, ensuring the conveyance of loyalty to one’s client whilst maintaining loyalty to one’s role in the legal system. In this chapter I explore how defence lawyers’ performance of loyalty is central to their work, particularly the emotional performance of loyalty. One of the biggest challenges is that lawyers’ performances must remain emotionally appropriate within what I refer to as the “emotional regime of law”—an overarching framework that guides emotional performances and upholds the illusionary division between rationality and emotionality. Professionalism requires complying with emotional norms. This chapter presents some of the findings from my research on defence lawyers in Sweden, drawing on ethnographic fieldnotes from observations of over 50 criminal trials and interviews with defence lawyers. I find a criminal trial to be an inherently emotional and interactional accomplishment with the reproduction of defence lawyers’ loyalty to their clients a crucial component. The Swedish context is particularly interesting as it calls for subtle drama with understated performances. This chapter begins with a brief overview of previous studies on the emotions of defence lawyers before presenting the role of loyalty for lawyers in Sweden and showing how defence lawyers can be seen to do a kind of dirty work. I then discuss how loyalty can be sociologically studied, using the performance of disloyalty to depict this. Specific emotions such as dislike, disappointment, disgust, anger, happiness and pride are then considered before the chapter concludes with a closing argument.

STUDIES ON LAWYERS, EMOTIONS AND LOYALTY Previous research on defence lawyers has explored their emotions from various angles. For instance, Harris2 shows that barristers in England manage their emotions in different ways, depending on the Goffmanian3 stage on which the performance is played out. Their “emotion

1 Lloyd C. Harris, “The Emotional Labour of Barristers: An Exploration of Emotional Labour by Status Professionals,” Journal of Management Studies 39 (2002); Kathryn J. Lively, “Client Contact and Emotional Labor: Upsetting the Balance and Evening the Field,” Work and Occupations 29, no. 5 (2002). 2 Harris, “The Emotional Labour of Barristers.” 3 Erving Goffman, The Presentation of Self in Everyday Life (Harmondsworth: Penguin Books Ltd, 1959).

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166  Research handbook on law and emotion work,” as described by Hochschild4—feigning an emotion by “surface acting”, or bringing forth the appropriate emotion by “deep acting”—was linked to whether the performance was frontstage—in the courtroom—or backstage, in law offices, waiting rooms or courthouse corridors.5 In the U.S., Pierce6 shows the ways in which defence lawyers attempt to convey a certain impression to juries, which she presents in terms of aggressive lawyering and strategic friendliness. Bandes7 also focuses on defence lawyers, exploring “how, in an emotional sense” defence lawyers defend clients and the emotional toll placed on them. Studies from England have also described the emotional displays lawyers must use to develop trust and show empathy.8 This research also discusses defence lawyers’ vulnerability—a controversial claim that others in the criminal justice system besides defendants and plaintiffs—those traditionally seen to be vulnerable—face risks and difficulties.9 In this view, criminal legal aid lawyers’ vulnerability stems from austerity, forcing them to compromise their standards due to financial restraints—which in turn leads to an increased vulnerability for defendants.10 What all of these studies have in common, yet do not mention, is that the conveyance of loyalty is integral to these performances. Furthermore, these studies illustrate how legal actors must ensure that their performances remain appropriate to the “emotional regime of law”.11 This regime is an overarching framework structuring emotional appropriateness which is aimed at stifling the role of emotions in law and ensuring the law’s smooth, consistent, and rational execution.12 Effective legal performances call for dexterity in managing one’s professional role and with ensuring that clients and other legal professionals uphold their roles, particularly in conveying appropriate impressions and doing so in an emotionally adequate manner. The defence lawyer’s role is all the more complex as the criminal trial is a place of predictable unpredictability: clients may change their versions of events when a prosecutor questions them, expert witnesses may change their testimony, or a witness may say something surprising. Defence lawyers are consequently expected to retain a façade of stone-faced calm in such moments of crisis, conveying an impression of control and composure in a demanding situation.

Arlie R. Hochschild, The Managed Heart: The Commercialization of Human Feeling (2nd ed). (Berkeley: University of California Press, 1983). 5 Vincent R. Waldron, “Relational Experiences and Emotion at Work,” in Emotion in Organizations, ed. Stephen Fineman (London: Sage Publications, 2000), 64-82. 6 Jennifer. L. Pierce, Gender Trials (Berkeley: University of California Press, 1995). 7 Susan Bandes, “Loyalty to One’s Convictions: The Prosecutor and Tunnel Vision,” Howard Law Journal 49, no. 2 (2006): 3. 8 Chalen Westaby and Emma Jones, “Empathy: An Essential Element of Legal Practice or ‘Never the Twain Shall Meet’?,” International Journal of the Legal Profession 25, no. 1 (2017): 107–24. 9 Roxanna Dehaghani and Daniel Newman, “‘We’re Vulnerable Too”: An (Alternative) Analysis of Vulnerability within English Criminal Legal Aid,” Oñati Socio-Legal Series 7, no. 6 (2017). 10 Dehaghani and Newman, “We’re Vulnerable Too.” 11 Lisa Flower, Interactional Justice: The Role of Emotions in the Performance of Loyalty (Abingdon: Routledge, 2019). 12 Terry A. Maroney, “Angry Judges,” Vanderbilt Law Review 65, no. 5 (2012). 4

The loyal defence lawyer  167

THE ROLE OF LOYALTY Loyalty is the foremost principal for lawyers in Sweden13 and in the U.S.14 In Sweden, this duty of loyalty must nevertheless remain within certain constraints, set by law and good lawyering praxis.15 Loyalty is thus limited by legal and ethical guidelines: the lawyer cannot break the law or act unethically even if it is in the client’s best interests, however loyalty is still the principle that guides the defence lawyer’s role.16 My research on defence lawyers in Sweden shows that their loyalty talk upholds this principle. In my interviews, lawyers talk about loyalty as the client’s “absolute right,” “the most important thing – the foundation for everything” and, “the first thing that is impressed upon law students”. Loyalty means “working based on the client’s best—no other interests should be considered”. However, lawyers should have “professional loyalty,” not “personal loyalty”. This professional loyalty is a contractual loyalty, binding the defence lawyer to the client. This leads to additional questions: how is loyalty accomplished, and how is it performed in the courtroom. Relatedly, how do we know when we are seeing defence lawyers perform loyalty?

THE DIRTY WORK OF LOYALTY In 2017, Rakhmat Akilov drove a truck through a pedestrianized shopping district in Stockholm, the capital city of Sweden, killing five and wounding many more in a terrorist attack. Akilov’s lawyer, Johan Eriksson, who was well-experienced in representing stigmatized defendants such as murderers, rapists and pedophiles, said in a newspaper interview that never before had he faced such criticism nor been the target of so many threats and moral questioning as after he took Akilov’s case.17 Eriksson stated that others believed that he supported terrorism—a moral suspicion that defence lawyers may face, not only in Sweden but also, for instance in the U.S.18 It is not only high-profile defence lawyers that face such moral suspicion. Many of the criminal defence lawyers I interviewed in my study in Sweden also talk about experiences similar to Eriksson’s. For instance, several have faced the inevitable how-can-you-defend-a-rapist question at social gatherings. This question implies they are defending not a suspect, but the crime of rape itself; as Sandra—a defence lawyer I interviewed—remarked, “almost like I think that rape is good, that I put an ‘equals sign’ between them”. Other lawyers confessed they tried to avoid revealing what they do for a living, as their job title can “trigger” these common criticisms as Linda, another of the lawyers I interviewed tells me. Relatedly, as Flower, Interactional Justice; Lars Heuman, God Advokatsed: Rättsbildning Och Disciplinsnämndens Motiveringar (Stockholm: Jure AB, 2013). 14 American Bar Association, “Criminal Justice Standards for the Defense Function,” in Part 1 Standard 4-1.3, ed. American Bar Association (2016). 15 Board of the Swedish Bar Association, Code of Professional Conduct for Members of the Swedish Bar Association, ed. Swedish Bar Association (Stockholm: Swedish Bar Association, 2008); Claes Borgström, Advokaten I Brottmålsprocessen (Stockholm: Norstedts Juridik AB, 2011); Heuman, God Advokatsed. 16 Jori Munukka, Kontraktuell Lojalitetsplikt (Stockholm: Jure, 2007). 17 TT, “Akilovs Advokat: ‘Ifrågasatt Som Aldrig Förr’,” Aftonbladet (February 12, 2018). 18 Bandes, “Loyalty to One’s Convictions,” Flower, “Loyalty Work.” 13

168  Research handbook on law and emotion a researcher who examines defence lawyers’ emotions, I have often heard the remark, “do defence lawyers have feelings?” Defence lawyers’ work may therefore be seen as a kind of “dirty work,”19 defined as performing a role that goes against our conceptions of what is moral and thus causing disgust. Dirty work provides a glimpse of an underlying “moral division of labor”20 within law, because prosecutors and judges are not tainted in this manner. Sandra noted that she often felt that her professional role was questioned, but that her friends who are judges have not faced such doubt. In some situations, she has even noticed “an almost hostile attitude – that defense lawyers are just a pain – that they ruin the police’s work”. This perception of defence lawyers as difficult also finds support in police research.21 Perry, another defence lawyer I interviewed, revealed that, even though people may respect his profession, they have a preconception that defence lawyers “earn a lot of money and are dishonest”. This opinion may be found not only amongst the general public, but even amongst other legal professionals such as prosecutors.22 A typical example is that defence lawyers representing members of criminal gangs are often faced with suspicion, however a study on criminal defence lawyers in the U.S. reveals that cases of misconduct occur more commonly amongst lawyers specializing in civil law rather than criminal law.23 This is because the defence lawyer’s unique position, combining respectability and reliability with the legal and financial knowledge to launder money, makes them attractive to members of organized crime groups, and the object of suspicion.24 Defence lawyers thus also feel as if they are expected to explain their role in the criminal justice process. To do so, they use their position in the legal system to explain, justify, create meaning and make sense of their work—that is, they give “accounts”.25 These accounts legit19 Robert M. Emerson and Melvin Pollner, “Dirty Work Designations: Their Features and Consequences in Psychiatric Setting,” Social Problems 23, no. 3 (1975); Linda Haller, “Dirty Linen: The Public Shaming of Lawyers,” International Journal of the Legal Profession 10, no. 3 (2003); Everett C. Hughes, “Good People and Dirty Work,” Social Problems 10, no. 1 (1962); Everett C. Huges, Men and Their Work (London: Collier-Macmillan Limited, 1958); Cyrus Tata, “A Sense of Justice: The Role of Pre-Sentence Reports in the Production (and Disruption) of Guilt and Guilty Pleas,” Punishment & Society 12, no. 3 (2010). 20 Hughes, Men and Their Work, 71. 21 Mikael Björk, “Känslokontroll I Kritiska Situationer: Mikrosociologiska Perspektiv På Modernt Polisarbete,” in Social Kontroll - Övervakning, Disciplinering Och Självreglering, ed. Bengt Larsson and Oskar Engdahl (Malmö: Liber, 2011). 22 Nina Törnqvist, “Att Göra Rätt: En Studie Om Professionell Respektabilitet, Emotioner Och Narrativa Linjer Bland Relationsvåldsspecialiserade Åklagare” (Doctoral Dissertation in Criminology, Stockholm University, 2017). 23 Hans Nelen and Francien Lankhorst, “Facilitating Organized Crime: The Role of Lawyers and Notaries,” in Organized Crime: Culture, Markets and Policies, ed. D. Siegel and D. Nelen (New York: Springer-Verlag, 2008), 130. 24 Nelen and Lankhorst, “Facilitating Organized Crime,” 130. 25 Carolyn D. Baker, “Ethnomethodological Analyses of Interviews,” eds, Jaber F. Gurbium and James A. Holstein, Handbook of Interview Research: Context and Method (Thousand Oaks: SAGE Publications, 2002), 777–95; Charles J. Ogletree, “Beyond Justifications: Seeking Motivations to Sustain Public Defenders,” Harvard Law Review 106, no. 6 (1993); Jens Rennstam and David Wästerfors, Från Stoff Till Studie: Om Analysarbete I Kvalitativ Forskning, Greppbar Metod (Lund: Studentlitteratur, 2015); Marvin B. Scott and Stanford M. Lyman, The Revolt of the Students (Columbus, Ohio: Charles E. Merrill Publishing Company, 1970); Marvin B. Scott and Stanford M. Lyman, “Accounts,” American Sociological Review 33, no. 1 (1968).

The loyal defence lawyer  169 imize their role in the criminal justice process and revolve around the principle of loyalty and fidelity to legal principles—such as the right to representation. One defence lawyer told me that “every individual who is suspected of a crime deserves to have their case heard—they deserve a fair trial and they have the right to a defense”. Another described how, although he might have to represent a client accused of murdering their child, that client “should not be exposed to a harder punishment than necessary. There is a legal system: a judge, a prosecutor, a lawyer, and a suspect. The accused should be able to be represented by the law”. Other lawyers paint themselves in the role of David, battling against Goliath. For instance, Daniel stated: “defense lawyers have a very important role to play, and, even if this sounds pretentious, it can often be the case that we are the only ones who actually stand up for the small – the individual”. Similarly, Lo found her work as a defence lawyer interesting because she felt she can “make a difference for someone who needs help”. These defence lawyers present themselves as being motivated by justice, which drives them to fulfil their role obligations and provides an explanatory framework for their dirty work.26 They draw on their position in the juridical system to manage the skepticism they face and give meaning to the dirty work they perform. This role is based on loyally and competently representing the client. A distinction is therefore made between the individual accused of the crime and the crime itself; while the crime is irrelevant, the accused is central. As Akilov’s defence lawyer, Johan Eriksson says, “I represent people who are suspected of rape, of abusing children, murder. I don’t sympathize with criminal acts.”27 This division is the first step in lawyers’ performance of loyalty; it protects the defence lawyer from taking both a moral stand and an emotional stance towards the crime. Performing loyalty is also a way that lawyers can integrate the dirty work into their legal roles, so that it becomes instead a badge of prestige.28 While defence lawyers may represent individuals accused of heinous crimes, they perform a key role in ensuring justice for all. Defence lawyers thus not only explain and give meaning to their legal role but also more specifically for the associated emotional performances and experiences. I have termed this latter form of accounting “emotional accounts”.29 While an accused rapist might awaken feelings of disgust or dislike in individuals outside of their role as defence lawyer, when they are in that role such feelings are irrelevant. Emotional accounts are thus used to justify the absence of otherwise expected emotions. This, in turn, facilitates loyalty to the client.

SEEING LOYALTY It is therefore the legal professional’s position that determines her appropriate orientation to legal work (i.e., “loyal” lawyer, “objective” prosecutor or “impartial” judge) which, in turn, guides the legal practitioner’s symbolic representations in courtroom interactions. Sandra describes the contrast in these orientations, stating that, as a defence lawyer, she has “no duty

26 David Schweingruber and Nancy Berns, “Shaping the Selves of Young Salespeople through Emotion Management,” Journal of Contemporary Ethnography 34, no. 6 (2005). 27 Flower, Interactional Justice. 28 Hughes, Men and Their Work, 52. 29 Cf. Katarina Jacobsson, “‘We Can’t Just Do It Any Which Way’ – Objectivity Work among Swedish Prosecutors,” Qualitative Sociology Review 4, no. 1 (2008). Scott and Lyman, “Accounts.”

170  Research handbook on law and emotion or obligation to be objective,” in contrast to a prosecutor. These symbolic representations in turn shape the practitioner’s actual performance whilst simultaneously reproducing the emotional boundaries—the “emotional regime of the criminal trial”.30 So how can we observe these principle performances? In a sociological study of loyalty, we can use an interactionist starting point, the central premise of which is that we act on the basis of how we define a situation and how we interpret others’ actions and meanings , which are communicated via symbols.31 We do this by taking the other’s perspective, and we begin from the premise that another person perceives us, and has formed an opinion of us. We therefore view and conduct ourselves based upon how we believe others perceive us. It is through a process of socialization and shared interactions that shared meanings arise, producing expectations regarding how we are supposed to interact with each other, and making us aware of the shared meanings attached to symbols.32 In order to see how loyalty is conveyed, it is necessary to reveal the shared meanings so as to make sense of what we experience.33 By conducting ethnographic observations of over 50 criminal trials, I have been able to see patterns of interaction emerging, and watch underlying meanings being conveyed. These patterns are the rules of interaction, normally invisible, which are exposed when they deviate from the norm, what one would expect to happen. Deviant interactions show what has been systematically excluded.34 Loyalty is therefore displayed when we encounter the deviant interaction—the performance of disloyalty. This, then, reveals the underlying professional expectations for the appropriate performance of loyalty.

DISLOYALTY Defence lawyers endeavour to perform and sustain their professional role. However, situations may arise when the defence lawyer deviates from her role and exposes unmanaged or inappropriate emotions, conveying the “wrong” impression.35 In short, the lawyer looks disloyal. When the lawyers I interviewed talked about their ability to stay in role, all presented themselves as accomplished performers, able to stay in their role throughout the performance, even when faced with the unexpected. This performance often uses the strategy of stoneface— sitting with a neutral expression, without outwardly reacting to surprises or disappointments. 30 William M. Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge: Cambridge University Press, 2001); Flower, Interactional Justice. 31 Herbert Blumer, Symbolic Interactionism (Englewoods Cliff, NJ: Prentice-Hall, 1959); Charles H. Cooley, Human Nature and the Social Order (New York: Scribner, 1922); Erving Goffman, The Presentation of Self in Everyday Life (Edinburgh: University of Edinburgh Social Science Research Centre, 1956); Herbert Mead, Mind, Self, and Society from the Standpoint of a Social Behaviorist (Chicago: Chicago University Press, 1934). 32 Peter Berger and Thomas Luckmann, The Social Construction of Reality (London: The Penguin Press, 1966); Susie Scott, Negotiating Identity: Symbolic Interactionist Approaches to Social Identity (Cambridge: Polity Press, 2015). 33 Randall Collins, “Micromethods as a Basis for Macrosociology,” Journal of Contemporary Ethnography 12, no. 1 (1983); Robert. M. Emerson, Rachel. I. Fretz, and Linda. L. Shaw, Writing Ethnographic Fieldnotes (2 ed.) (Chicago: The University of Chicago Press, 2011). 34 Paul M. Strong, “Minor Courtesies and Macro Structures,” in Erving Goffman: Exploring the Interaction Order, eds, P. Drew and A. Wooton (Cambridge: Polity, 1988), 236. 35 Goffman, The Presentation of Self in Everyday Life, 33.

The loyal defence lawyer  171 However, my observations of trials showed that moments of disloyalty occur. For instance, a disloyalty display could take the form of a large blink when a client inadvertently confesses to a crime, or when evidence is presented that is particularly damaging for the defence. Disloyalty might also be seen when a lawyer places her arm as a barrier between herself and a client, or shifts her chair away. Such glimpses of disloyalty may be over in a second, a literal “blink-and-you-miss-it” occurrence, but they nevertheless may communicate a weakness in the defence team’s case or a chink in the unity between client and lawyer. The importance of conveying a loyal impression was paramount for all of the lawyers I interviewed; indeed, all were keen to know if they unknowingly gave off such signals, thus showing their awareness of such minor gestures and the importance they placed on them. In light of the above discussion, one’s role in the juridical system outlines which emotions are permitted and how they may be shown. So, what are the emotions behind the performance of loyalty?

DISLIKE, DISAPPOINTMENT, DISGUST AND ANGER Defence lawyers make an interesting subject of empirical study due to their role in relation to their clients, defendants who may be unfamiliar with a criminal trial and not know what is expected.36 Furthermore, defendants are free to change their version of events during a trial. These tensions place emotional and dramaturgical demands on the defence lawyer while she is interacting with her client that peak during a trial. Inappropriate emotions should therefore be managed “in the moment”. Additionally, defence lawyers have greater direct contact with clients than prosecutors or judges. Defence lawyers are “people persons,” as Lo tells me: “You have to think that it is fun to meet people (. . .) all different kinds of people (. . .) and be humble about other people’s life situations.” Charles also remarked on the importance of interpersonal skills; he told me that he can just as easily converse with professors as with drug addicts or clients with mental health problems. This service-like role therefore places higher demands on defence lawyers’ emotional performances compared to other legal professionals.37 According to the Swedish Bar Association,38 a lawyer’s personal feelings towards a client should not influence one’s performance, irrespective of what these feelings might be. One of the lawyers I interviewed, Siri, describes this succinctly: “you want to do your best even if you think the person is a real asshole”. Disliking a client is presented by lawyers as something that does not hinder or inhibit their work however it constitutes another demand on their emotional performances as such a professionally-inappropriate emotion should not be displayed. Siri goes on to describe her fear of deviating from her professional role performance if she has a client whom she dislikes. Such fears lead to an increased awareness, and increased management, of inappropriate emotions.39 We can also see that, for Siri, professionalism entails the

Jessica Jacobson, Gillian Hunter, and Amy Kirby, Inside Crown Court: Personal Experiences and Questions of Legitimacy (Bristol: Policy Press, 2016). 37 Cf. Hochschild, The Managed Heart. 38 Board of the Swedish Bar Association, Code of Professional Conduct. 39 Cooley, Human Nature and the Social Order; Lisa Flower, “The (Un)Emotional Law Student,” International Journal of Work Organisation and Emotion 6, no. 3 (2014); Thomas J. Scheff, “Shame and the Social Bond: A Sociological Theory,” Sociological Theory 18, no. 1 (2000). 36

172  Research handbook on law and emotion separation of her everyday emotions of dislike from her role-based professional emotions. She is thus upholding law’s emotional regime, which sustains an illusionary dichotomy between rationality and professionalism on the one side, and emotionality on the other. Maintaining this successful separation leads to feelings of pride in her performance. However, whilst dislike for a client is presented as an inappropriate emotion in need of management, liking a client can be an accepted source of motivation. Another defence lawyer I interviewed, Andrew, told me that, whilst he always fulfils his professional responsibilities irrespective of how he feels about a client, he might be inclined to do a little bit extra for a client that he likes. Disliking a client is therefore presented as something that does not hinder or inhibit the defence attorney’s professional role; however, liking a client is a legitimate motivator of performance.40 Disappointment is another emotion in need of management. As the overwhelming majority of Swedish criminal trials lead to a conviction, defence lawyers must find strategies to work in a role filled with “losses”.41 This is achieved by redefining “what a win means”,42 in the words of Judy Clark, a defence attorney who has spent her career working with the “worst of the worse,” including serving as lead defence lawyer for Dzhokhar Tsarnaev, one of the Boston marathon bombers. Defence lawyers thus present winning in terms of providing the best possible defence for a client, and achieving a suitable outcome. Winning does not mean acquittal; it means that one’s client receives an acceptable punishment. Disgust is another inappropriate everyday emotion that defence lawyers must engage with and transform into a professional tool. Disgust is the end result of a cognitive process whereby a person first engages with an object of emotion, for example, a defence lawyer viewing child pornography images her client is accused of possessing, and appraising it as being morally offensive. She should then reappraise the object, either by changing how it is perceived— viewing the perpetrator as a victim of sexual abuse, how it is evaluated—as evidence rather than child pornographic images, or according to the goal—focusing on finding the evidential aspects of the images.43 When representing the client in court, disgust for the images themselves may be displayed, however disgust for the client could be considered inappropriate. This ties back to defence lawyers defending the individual, not the crime. The professionalisation of everyday emotions can therefore entail transforming inappropriate emotions into professionally appropriate tools. It entails engagement and transformation, not suffocation or suppression, as defence lawyers tend to present their emotions.44 The emotional regime in which law attempts to quiet emotions’ role is illustrated by defence lawyers’ assertions that they “switch off” rather than engage with these feelings. This process

40 Cf. Michael Lipsky, Street Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 1980). 41 Elisabeth Nordén, “Utvecklingen Av Personuppklarade Misstankar Och Bifallna Åtal 2004-2014,” in Kortanalys (Stockholm: Brottsförebyggande rådet, 2015). 42 Patrick Radden Keefe, “The Worst of the Worst,” The New Yorker, September 14, 2015. 43 Terry A. Maroney and James T. Gross, “The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective,” Emotion Review 6, no. 2 (2014); Terry A. Maroney, “Emotional Regulation and Judicial Behavior,” California Law Review 99, no. 6 (2011): 1508. 44 Harris, “The Emotional Labour of Barristers: An Exploration of Emotional Labour by Status Professionals”; cf. Susan Bandes and Jessica M. Salerno, “Emotion, Proof and Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact Statements,” Arizona State Law Journal 46, no. 4 (2014).

The loyal defence lawyer  173 of transformation can be seen in my interview with Peter, an experienced defence lawyer who revealed that, when he reads investigation reports, he focuses on the evidence and looks for clues, such as determining that a party abuses alcohol from the number of bruises. Peter and others present the “switching off” transformation as cognitively changing the difficult subject matter to a banal legal task: finding evidence that supports or opposes one’s case. Defence lawyers thus learn to redefine viewing gruesome evidence through a legal lens.45 Looking at explicit or unpleasant images thus becomes normalised—just another part of one’s job. Another defence lawyer, Andrew, likens this to the normalisation process that pathologists use; he stated that he looks at gruesome images “clinically”. Here again, defence lawyers use emotional accounts to explain their (lack of) expected emotions, and how they use the law as an emotion management strategy. This is akin to the way that medical students use science as an emotion management strategy by defining contact with dead bodies and intimate patient examinations as part of scientific medicine.46 The defence lawyers whom I interviewed did not use the same strategies as medical students, who may act “as if” a body was no longer a body but rather a less troublesome object such as a cat or a toaster.47 For defence lawyers, the body remains a body, but it is transformed into evidence through a process whereby the lawyer makes discomfort with anatomical issues personally insignificant yet legally important.48 The underlying emotion rule, therefore, is that disgust is an inappropriate everyday emotion that should be managed.49 Managing disgust also has a tactical dimension. Learning to manage one’s own emotions while clinically searching for gruesome evidentiary details is a vital “trick of the trade”, whereby lawyers learn to look at images professionally so that they can prevent shocking images being shown in the courtroom and negatively influencing judges. Swedish defence lawyers also talk about anger as an inappropriate emotion. Anger should be avoided or handled with care, perhaps because lawyers who display anger risk being viewed as too personally involved with a client, or as having lost self-control.50 Anger is constructed

Terry A. Maroney, “The Persistent Cultural Script of Judicial Dispassion,” California Law Review 99 (2011); Terry A. Maroney, “Emotional Regulation and Judicial Behavior,” California Law Review no. 6; Allen C. Smith and Sherryl Kleinman, “Managing Emotions in Medical School: Student's Contacts with the Living and the Dead,” Social Psychology Quarterly 52, no. 1 (1989). 46 Spencer E. Cahill, “Emotional Capital and Professional Socialization: The Case of Mortuary Science Students (and Me).” Social Psychology Quarterly 62, no. 2 (1999). 47 Smith and S Kleinman, “Managing Emotions”; Hochschild, The Managed Heart. 48 Harald I. Lief and Renee C. Fox, "Training for 'Detached Concern' in Medical Students," ed. Harold I. Lief, Victor F. Lief, and Nina R. Lief, The Psychological Basis of Medical Practice (London: Harper & Row, 1963), 12-35. 49 Smith and Kleinman, “Managing Emotions.” 50 Neal Feigenson, “Jurors' Emotions and Judgements of Legal Responsibility and Blame: What Does the Experimental Research Tell Us?,” Emotion Review 8, no. 1 (2016); Paul M. Litvak et al., “Fuel in the Fire: How Anger Impacts Judgement and Decision-Making,” in International Handbook of Anger: Constituent and Concomitant Biological, Psychological, and Social Processes, eds, Michael Potegal, Gerhard Stemmler, and Charles Spielburger (New York: Springer, 2010); Jennifer S. Lerner and Larissa Z. Tiedens, “Portrait of the Angry Decision Maker: How Appraisal Tendencies Shape Anger's Influence on Cognition,” Journal of Behavioral Decision Making 19, no. 2 (2006); Jennifer S. Lerner, Julie H. Goldberg, and Philip E. Tetlock, “Sober Second Thought: The Effects of Accountability, Anger, and Authoritarianism on Attributions of Responsibility,” Personality and Social Psychology Bulletin 24, no. 6 (1998). 45

174  Research handbook on law and emotion not only as an everyday “unbecoming emotion”,51 but one that is incompatible with rational or normative action. In line with this, my study finds that, rather than presenting themselves as angry, defence lawyers talk about becoming indignant, annoyed, or worked-up. These are acceptable acts of anger which are sparked by injustice that follows from a rule violation (such as when a prosecutor is perceived to be non-objective, or a witness is suspected of perjury) but are not instances where the defence lawyer becomes personally affronted.52 Good lawyers in Sweden don’t get angry; they get annoyed. American “Rambo lawyers”53 who enact anger and perform aggressively are thus regarded as a deviation; in Sweden, angry displays should be subtle and in line with the courtroom’s emotional expectations.54 The Swedish “Rambo” performance is softer, more akin to the Disney cartoon character Bambi, but hiding beneath the soft surface is a hard, aggressive Rambo, a film character known for aggression, strength, and determination, making for a “Rambo-Bambi” performance. Swedish defence lawyers’ emotional displays are therefore adjusted to the toned-down, subtle emotional regime of law. I suggest that the difference between the American “Rambo” lawyer55 and the Swedish Rambo-Bambi is a difference in display rules. Both are dramatic, aggressive performances, and both adhere to the locale’s “societal emotional regime”.56

HAPPINESS AND PRIDE We have seen that there are several inappropriate emotions that defence lawyers feel that they must manage to accomplish their role. The work of defence lawyers can be divided between that done frontstage—in the courtroom—and that conducted backstage—in the confines of the law offices and courthouse waiting areas. Whilst the frontstage is shaped by strict expectations regarding one’s professional role performance, the backstage constitutes spaces where performances can be prepared and where problems or frustrations may be ventilated.57 It is also a place where inappropriate emotions may be shown more freely, serving as an “emotional refuge”58 that offers a reprieve from the stricter emotional demands of the frontstage. One of the lawyers I interviewed, Vera, tells me that an intern at her law firm compared the law offices to a “playground” because everyone laughed and joked so much. Vera described the 51 James Averill, “Emotions Unbecoming and Becoming,” in The Nature of Emotion: Fundamental Questions, eds, Paul Ekman and Richard J. Davidson (New York: Oxford University Press, 1994), 265. 52 Cf. Helena Flam, “Emotional ‘Man’: Ii. Corporate Actors as Emotion-Motivated Emotion Managers,” International Sociology 5, no. 2 (1990): 232. 53 Pierce, Gender Trials. 54 Dawn Archer, “Cross-Examining Lawyers, Facework and the Adversarial Courtroom,” Journal of Pragmatics 43, no. 1 (2011); Dawn Archer, “Facework and Im/Politeness across Legal Contexts: An Introduction,” Journal of Politeness Research 7, no. 1 (2011); Paul Rock, The Social World of an English Crown Court (Oxford: Oxford University Press, 1993); Thomas Scheffer, Kati Hannken-Illjes, and Alexander Kosin, Criminal Defence and Procedure: Comparative Ethnographies in the United Kingdom, Germany and the United States (New York: Palgrave Macmillan, 2010). 55 Pierce, Gender Trials. 56 Stina Bergman Blix and Åsa Wettergren, “A Sociological Perspective on Emotions in the Judiciary,” Emotion Review 8, no. 1 (2015): 3. 57 Goffman, The Presentation of Self in Everyday Life. 58 Reddy, The Navigation of Feeling, 128–9.

The loyal defence lawyer  175 importance of creating a relaxed and fun atmosphere at work because they “work with tough things every day and therefore it’s incredibly important to have fun at the office”. The need for an emotional refuge stems not only from the strict emotional rules that govern courtroom behaviour, but also because of the gruelling nature of defence lawyers’ work. Another lawyer described the job as “working with other people’s shit, or society’s, or whatever you want to call it”.59 This support, or “communities of coping”60 as presented by the lawyers I spoke to, differs from that in U.S. studies, which links the need for emotional comfort with one’s position in the occupational hierarchy, for instance paralegals’ frustrations stem from litigators who are higher up the hierarchy.61 In contrast, Swedish defence lawyers need to draw support in colleagues after close client contact.62 Law offices can thus constitute a safe haven, where rules governing frontstage performances are relaxed and different emotions are permitted. It is here that potentially disruptive emotions can be encapsulated and segregated from one’s ongoing professional role, enabling one to continue emotionally-demanding work.63 It is also in the backstage safety of the law offices that other inappropriate emotions can be displayed. For instance, successfully questioning a witness or plaintiff may lead the defence lawyer to feel pride, a feeling which arises when we accomplish a goal we have set out to achieve. However, lawyers cannot display pride in the courtroom, since displays like fist-pumping are clearly inappropriate and unprofessional, and should be confined to backstage venues. Although this example may seem obvious, it nevertheless points to the multitude of emotions defence lawyers must manage, and to the array of unwritten emotion rules that one must follow as a defence lawyer.

CLOSING ARGUMENT This chapter has shown that defence lawyering demands interactional dexterity as well as emotional aptitude, enabling practitioners to manage inappropriate emotions. Lawyers invoke the guiding principle of loyalty to symbolize their role and courtroom performances, in much the same way as other legal professionals invoke claims of objectivity.64

Candace Clark, “Sympathy Biography and Sympathy Margin,” American Journal of Sociology 93, no. 2 (1987); Stephen Fineman, “Emotion and Organizing,” in The Sage Handbook of Organization Studies, eds, Stewart R. Clegg, Cynthia Hardy, Thomas B. Lawrence, and Walter R. Nord (London: SAGE Publications, 2006), 675–700. 60 Marek Korczynski, “Communities of Coping: Collective Emotional Labour in Service Work.” Organization 10, no. 1 (2003): 55–79. 61 Lively, “Client Contact and Emotional Labor.” 62 Cf. Kathryn J. Lively, “Reciprocal Emotion Management: Working Together to Maintain Stratification in Private Law Firms,” Work and Occupations 27, no. 1 (2000). 63 Sara Ahmed, The Cultural Politics of Emotion (New York: Routledge, 2004); Blake E. Ashforth and Ronald H. Humphrey, “Emotion in the Workplace: A Reappraisal,” Human Relations 48, no. 2 (1995); Kathy Mack and Sharyn Roach Anleu, “Performing Impartiality: Judicial Demeanor and Legitimacy,” Law & Social Inquiry 35, no. 1 (2010). 64 Jacobsson, ““We Can't Just Do It Any Which Way.” Moa Bladini, I Objektivitetens Sken: En Kritisk Granskning Av Objektivitetsideal, Objektivitetsanspråk Och Legitimeringsstrategier I Diskurser Om Dömande I Brottmål (Göteborg: Makadam, 2013); Linda J. Rogers and Edna Erez, “The Contextuality of Objectivity in Sentencing among Legal Professionals in South Australia,” International 59

176  Research handbook on law and emotion I conclude that the role of defence lawyer entails emotional and interactional challenges. Defence lawyers comprise a professional group that may face moral suspicion, distressed clients, unforeseeable situations, disturbing evidence, and emotional plaintiffs—all of which should be managed in a proper and appropriate manner, suitable to the overarching regime. This framework explains why and how lawyers attempt to shield legal performances from emotional influences by rationalizing and subduing emotions and adhering to the rules of interaction to assist the smooth flow of justice. Performances are also tailored to the stage on which they are performed. Defence lawyers perform their formal, explicitly outlined legal responsibilities by negotiating informal, implicit professional and social expectations, whilst simultaneously ensuring that performances remain appropriate to the emotionally rigid and interactionally strict courtroom emotional regime.

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The loyal defence lawyer  177 Borgström, Claes. Advokaten I Brottmålsprocessen. Stockholm: Norstedts Juridik AB, 2011. Cahill, Spencer E. “Emotional Capital and Professional Socialization: The Case of Mortuary Science Students (and Me).” Social Psychology Quarterly 62, no. 2 (1999): 101–16. Clark, Candace. “Sympathy Biography and Sympathy Margin.” American Journal of Sociology 93, no. 2 (1987): 290–321. Collins, Randall. “Micromethods as a Basis for Macrosociology.” Journal of Contemporary Ethnography 12, no. 1 (1983): 184–202. Cooley, Charles H. Human Nature and the Social Order. New York: Scribner, 1922. Dehaghani, Roxanna, and Daniel Newman. “‘We’re Vulnerable Too’: An (Alternative) Analysis of Vulnerability within English Criminal Legal Aid.” Oñati Socio-Legal Series 7, no. 6 (2017): 1199–228. Emerson, Robert M., and Melvin Pollner. “Dirty Work Designations: Their Features and Consequences in a Psychiatric Setting.” Social Problems 23, no. 3 (1975): 243–54. Emerson, Robert. M., Rachel. I. Fretz, and Linda. L. Shaw. Writing Ethnographic Fieldnotes (2d ed.). Chicago: The University of Chicago Press, 2011. Feigenson, Neal. “Jurors’ Emotions and Judgements of Legal Responsibility and Blame: What Does the Experimental Research Tell Us?” Emotion Review 8, no. 1 (2016): 26–31. Fineman, Stephen. “Emotion and Organizing.” In The Sage Handbook of Organization Studies, edited by Stewart R. Clegg, Cynthia Hardy, Thomas B. Lawrence, and Walter R. Nord, 675–700. London: Sage Publications, 2006. Flam, Helena. “Emotional ‘Man’: II. Corporate Actors as Emotion-Motivated Emotion Managers.” International Sociology 5, no. 2 (1990): 225–34. Flower, Lisa. Interactional Justice: The Role of Emotions in the Performance of Loyalty. Abingdon: Routledge, 2019. Flower, Lisa. “Loyalty Work: Emotional Interactions of Defence Lawyers in Swedish Courtrooms.” Lund University, 2018. Flower, Lisa. “The (Un)Emotional Law Student.” International Journal of Work Organisation and Emotion 6, no. 3 (2014): 295-309. Goffman, Erving. The Presentation of Self in Everyday Life. Edinburgh: University of Edinburgh Social Science Research Centre, 1956. Goffman, Erving. The Presentation of Self in Everyday Life. Harmondsworth: Penguin Books Ltd, 1959. Haller, Linda. “Dirty Linen: The Public Shaming of Lawyers.” International Journal of the Legal Profession 10, no. 3 (2003): 281–313. Harris, Lloyd C. “The Emotional Labour of Barristers: An Exploration of Emotional Labour by Status Professionals.” Journal of Management Studies 39 (2002): 553–84. Heuman, Lars. God Advokatsed: Rättsbildning Och Disciplinsnämndens Motiveringar. Stockholm: Jure AB, 2013. Hochschild, Arlie R. The Managed Heart: The Commercialization of Human Feeling (2d ed.). Berkeley: University of California Press, 1983. Hughes, Everett C. Men and Their Work. London: Collier-Macmillan Ltd, 1958. Hughes, Everett. C. “Good People and Dirty Work.” Social Problems 10, no. 1 (1962): 3–11. Jacobson, Jessica, Gillian Hunter, and Amy Kirby. Inside Crown Court: Personal Experiences and Questions of Legitimacy. Bristol: Policy Press, 2016. Jacobsson, Katarina. “‘We Can’t Just Do It Any Which Way’”--Objectivity Work Among Swedish Prosecutors.” Qualitative Sociology Review 4, no. 1 (2008): 46–68. Keefe, Patrick Radden. “The Worst of the Worst.” The New Yorker, September 14, 2015. Korczynski, Marek. “Communities of Coping: Collective Emotional Labour in Service Work.” Organization 10, no. 1 (2003): 55–79. Lerner, Jennifer S., Julie H. Goldberg, and Philip E. Tetlock. “Sober Second Thought: The Effects of Accountability, Anger, and Authoritarianism on Attributions of Responsibility.” Personality and Social Psychology Bulletin 24, no. 6 (1998): 563–74. Lerner, Jennifer S., and Larissa Z. Tiedens. “Portrait of the Angry Decision Maker: How Appraisal Tendencies Shape Anger’s Influence on Cognition.” Journal of Behavioral Decision Making 19, no. 2 (2006): 115–37.

178  Research handbook on law and emotion Lief, Harald I., and Renee C. Fox. “Training for ‘Detached Concern’ in Medical Students.” In The Psychological Basis of Medical Practice, edited by Harold I. Lief, Victor F. Lief, and Nina R. Lief. London: Harper & Row, 1963. Lipsky, Michael. Street Level Bureaucracy: Dilemmas of the Individual in Public Services. New York: Russell Sage Foundation, 1980. Litvak, Paul M., Jennifer S. Lerner, Larissa Z. Tiedens, and Katherine Shonk. “Fuel in the Fire: How Anger Impacts Judgement and Decision-Making.” In International Handbook of Anger: Constituent and Concomitant Biological, Psychological, and Social Processes, edited by Michael Potegal, Gerhard Stemmler, and Charles Spielburger, 287–310. New York: Springer, 2010. Lively, Kathryn J. “Client Contact and Emotional Labor: Upsetting the Balance and Evening the Field.” Work and Occupations 29, no. 5 (2002): 198–225. Lively, Kathryn J. “Reciprocal Emotion Management: Working Together to Maintain Stratification in Private Law Firms.” Work and Occupations 27, no. 1 (2000): 32–63. Mack, Kathy, and Sharyn Roach Anleu. “Performing Impartiality: Judicial Demeanor and Legitimacy.” Law & Social Inquiry 35, no. 1 (2010): 137–73. Maroney, Terry A. “The Persistent Cultural Script of Judicial Dispassion.” California Law Review 99 (2011): 629–81. Maroney, Terry A. “Angry Judges.” Vanderbilt Law Review 65, no. 5 (2012): 1207–86. Maroney, Terry A. “Emotional Regulation and Judicial Behavior.” California Law Review 99, no. 6 (2011): 1485–555. Maroney, Terry A., and James T. Gross. “The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective.” Emotion Review 6, no. 2 (2014): 142–51. Mead, Herbert. Mind, Self, and Society from the Standpoint of a Social Behaviorist. Chicago: Chicago University Press, 1934. Munukka, Jori. Kontraktuell Lojalitetsplikt. Stockholm: Jure, 2007. Nelen, Hans, and Francien Lankhorst. “Facilitating Organized Crime: The Role of Lawyers and Notaries.” In Organized Crime: Culture, Markets and Policies, edited by Dina Siegel and Hans Nelen. New York: Springer-Verlag, 2008. Nordén, Elisabeth. “Utvecklingen Av Personuppklarade Misstankar Och Bifallna Åtal 2004-2014.” In Kortanalys. Stockholm: Brottsförebyggande rådet, 2015. Ogletree, Charles J. “Beyond Justifications: Seeking Motivations to Sustain Public Defenders.” Harvard Law Review 106, no. 6 (1993): 1239–94. Pierce, Jennifer. L. Gender Trials. Berkeley: University of California Press, 1995. Reddy, William M. The Navigation of Feeling: A Framework for the History of Emotions. Cambridge: Cambridge University Press, 2001. Rennstam, Jens, and David Wästerfors. Från Stoff Till Studie: Om Analysarbete I Kvalitativ Forskning. Greppbar Metod. Lund: Studentlitteratur, 2015. Rock, Paul. The Social World of an English Crown Court. Oxford: Oxford University Press, 1993. Rogers, Linda J., and Edna Erez. “The Contextuality of Objectivity in Sentencing among Legal Professionals in South Australia.” International Journal of the Sociology of Law 27 (1999): 267–86. Scheff, Thomas J. “Shame and the Social Bond: A Sociological Theory.” Sociological Theory 18, no. 1 (2000): 84–99. Scheffer, Thomas, Kati Hannken-Illjes, and Alexander Kosin. Criminal Defence and Procedure: Comparative Ethnographies in the United Kingdom, Germany and the United States. New York: Palgrave Macmillan, 2010. Schweingruber, David, and Nancy Berns. “Shaping the Selves of Young Salespeople through Emotion Management.” Journal of Contemporary Ethnography 34, no. 6 (2005): 679–706. Scott, Marvin B., and Stanford M. Lyman. The Revolt of the Students. Columbus, Ohio: Charles E. Merrill Publishing Company, 1970. Scott, Marvin B., and Stanförd M. Lyman. “Accounts.” American Sociological Review 33, no. 1 (1968): 46–62. Scott, Susie. Negotiating Identity: Symbolic Interactionist Approaches to Social Identity. Cambridge: Polity Press, 2015. Smith, Allen C., and Sherryl Kleinman. “Managing Emotions in Medical School: Students' Contacts with the Living and the Dead.” Social Psychology Quarterly 52, no. 1 (1989): 56–69.

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12. Researching judicial emotion and emotion management Sharyn Roach Anleu, Jennifer K. Elek and Kathy Mack1

INTRODUCTION The conventional image of the judge requires detached, dispassionate, impersonal and rational legal decision making. This image is descriptive, normative and aspirational and excludes emotion as (potentially) jeopardizing impartiality, the foundational judicial value. Yet, growing empirical research points to the embeddedness of emotion in judicial work.2 Judicial officers must manage their own emotions in line with this model of emotionless judging. They also may attempt to manage the emotions of various court participants as part of maintaining courtroom decorum and efficiency. Moreover, judicial officers can deploy emotions as strategies to achieve judicial outcomes and maintain the conventional image of the judge. Two research projects—one in Australia, the other in the United States—document the ways judicial officers experience, describe, use and manage emotion as part of their judicial work. The Australian research, Changing Judicial Performance: Emotion and Legitimacy, draws, in part, on in-depth interviews with judicial officers to identify their experiences and perceptions about emotions that emerge in their everyday activities, especially in court. These Sharyn Roach Anleu and Kathy Mack appreciate funding, financial and other support from the Australian Research Council, Flinders University, the Australasian Institute of Judicial Administration, the Association of Australian Magistrates, and many courts and their judicial officers. We are grateful to several research and administrative assistants over the course of the Judicial Research Project (https://​ sites​.flinders​.edu​.au/​judi​cialresear​chproject/​), and most recently to Rhiannon Davies, Colleen deLaine, Jordan Tutton and Rae Wood. All phases of this research involving human subjects have been approved by the Flinders University Social and Behavioural Research Ethics Committee. The Judicial Excellence project, the U.S. project on which the findings described in this chapter are based, was supported with funding from the State Justice Institute and the National Center for State Courts (NCSC). The original project was made possible thanks to the generosity of numerous dedicated judges, administrators, educators, and researchers who contributed their time and thoughtful input. Jennifer Elek especially thanks the Administrative Office of the Courts in the partner state for their support of the collaborative endeavor and members of the state Project Committee for their guidance throughout the Judicial Excellence project. 2 See Stina Bergman Blix and Åsa Wettergren, Professional Emotions in Court: A Sociological Perspective (Routledge, 2018); Sharyn Roach Anleu, Stina Bergman Blix, and Kathy Mack, “Researching Emotion in Courts and the Judiciary: A Tale of Two Projects,” Emotion Review 7, no. 2 (2015): 145–50; Sharyn Roach Anleu, Stina Bergman Blix, Kathy Mack, and Åsa Wettergren, “Observing Judicial Work and Emotions: Using Two Researchers,” Qualitative Research 16, no. 4 (2016): 375–91; Sharyn Roach Anleu and Kathy Mack, “Magistrates’ Everyday Work and Emotional Labour,” Journal of Law and Society 32, no. 4 (2005): 590–614; Stina Bergman Blix, Kathy Mack, Terry Maroney, and Sharyn Roach Anleu, Special Issue: Judging, Emotion and Emotion Work, Oñati Socio-Legal Series 9, no. 5 (2019); Jennifer A. Scarduzio, “Maintaining Order through Deviance? The Emotional Deviance, Power, and Professional Work of Municipal Court Judges,” Management Communication Quarterly 25, no. 2 (2011): 285–310. 1

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Researching judicial emotion and emotion management  181 judicial officers also offer normative statements about the place and role of emotion in their judicial practices. The Judicial Excellence project in the U.S. is based on input from over 100 judicial officers participating in confidential in-depth interviews, focus groups, expert advisory panels and surveys. It identifies emotion management as a valuable skill in judicial practice. The rich interview data from two studies in different countries enables investigation of judicial emotion performance, revealing the informal norms, implicit feeling rules and boundaries of appropriate or acceptable judicial emotional experience and display as described and constituted by judicial officers themselves. This chapter first examines judicial officers’ experiences of emotion and emotion work as revealed by the two studies, considering the interactional and relational dimensions of emotion from the standpoint of the judicial officer. Both studies illustrate how the conventional judicial role influences but does not entirely define judicial officers’ reflexive monitoring of the emotions they experience, manage and display. Their emotion management strategies include recognizing, not denying, a place for emotion, but this does not displace their commitment to the logical reason of law. Then, as both studies rely on interviews as a research strategy, the chapter considers the efficacy of interviews as a method for examining judicial emotion.

CHANGING JUDICIAL PERFORMANCE: EMOTION AND LEGITIMACY The Australian study aimed to investigate social change and Australia’s courts, one aspect of which sought information on judicial officers’ experiences and perceptions of changes in the judiciary and the courts as a professional workplace. It included face-to-face interviews with 38 judicial officers throughout Australia. These interviews covered four broad issues: (i) courts and social change; (ii) approaches to judicial work/office; (iii) work/family intersections; and (iv) career background and demographic characteristics. The interviews took place between August 2012 and December 2013, ranging in length from 25 minutes to 1 hour and 33 minutes. The interviewees came from all levels of court in every state and territory, in metropolitan (n=31) and regional/suburban locations (n=7) but did not include the federal courts.3 Of the interviewees 17 were magistrates (ten women; seven men); the others were judges (nine women; 12 men). Interviews were semi-structured with open-ended questions, allowing interviewees to discuss a full range of issues from their own perspective and in their own words, based on their experiences and knowledge.4 Before the

3 Both Australia and the United States are common law, adversarial legal systems with courts at state and federal levels, although there are significant differences in appointment processes between the two countries and among the different U.S. jurisdictions. In general, in Australia the terms “magistrate” and “judge” distinguish judicial officers who preside in the first instance or lower state and territory courts (magistrates) from those who preside in the higher state and territory courts or commonwealth/ federal courts (judges). Magistrates and judges are legally qualified, paid judicial officers, typically full-time with security of tenure. 4 See Norman K. Denzin and Yvonna S. Lincoln, eds. The SAGE Handbook of Qualitative Research (5th ed.) (Thousand Oaks, California: SAGE Publications, 2018); Petya Fitzpatrick and Rebecca E. Olson, “A Rough Road Map to Reflexivity in Qualitative Research into Emotions,” Emotion Review 7, no. 1 (2015): 49–54; Jaber F. Gubrium, James A. Holstein, Amir B. Marvasti, and Karyn D. McKinney, The SAGE Handbook of Interview Research: The Complexity of the Craft (2nd ed.) (Thousand Oaks,

182  Research handbook on law and emotion interview began, each interviewee signed a consent form confirming she or he understood that “[w]hile the information gained in this study will be published as explained, [she or he] will not be identified and nor will [her or his] court, and individual information will remain confidential.” All but two of the interviews were audio-recorded with the interviewee’s permission. All interviewees consented to the interviewer/researcher taking notes during the interview. After each interview, handwritten notes taken during or after the interview, including observations about the court building or location of the interview, were more fully written up. Interviews that were audio-recorded have been fully transcribed within the Judicial Research Project to maximize accuracy and confidentiality. The computer software package NVivo was used to organize, analyze and examine relationships in this rich text-based, non-numerical data. As the aim was to conduct the interviews in a conversational manner, rather than a structured question and answer process, there was ample scope for probing responses and seeking further information.5 The information from judicial officers in the interviews includes their: (i) personal perceptions and experiences of their in-court work; (ii) observations and perceptions of other participants in court; and (iii) experiences, observations and perceptions outside the courtroom, in chambers, in the courthouse and information about the court as an organization. Discussion about emotion emerged in various ways during the interviews. For example, one question asks: How important are interpersonal skills in your everyday work, and which ones? Responses to this question included some discussion of emotion. Depending on the interviewee’s immediate response, suggested probes including empathy, compassion, management of emotions, were offered that more directly focused on emotion-related qualities. These probes were not used in every interview, as some interviewees talked about these facets of their work without anything further from the interviewer. In response to other questions during the interview, judicial officers described their own feelings and others’ apparent emotions or display of emotion. For example, one topic for discussion was judicial officers’ understanding of impartiality, and how they would describe it in layperson’s terms. Reflecting on this foundational value, several judicial officers referred to emotion and emotion work (see discussion below).

THE JUDICIAL EXCELLENCE PROJECT The U.S. study explored judicial perceptions of judicial excellence. The objective was to construct a framework for judicial excellence, based on judicial input, that could be used as an

California: SAGE Publications, 2012); Mary Holmes, “Researching Emotional Reflexivity,” Emotion Review 9, no. 1 (2015): 61–6; Jennifer Mason, Qualitative Researching (3rd ed.) (London: SAGE Publications, 2018); Anssi Peräkylä and Johanna Ruusuvuori, “Analyzing Talk and Text,” in The SAGE Handbook of Qualitative Research, eds., Norman K. Denzin and Yvonna S. Lincoln (Thousand Oaks, California: SAGE Publications, 2018), 669–90; David Silverman, Interpreting Qualitative Data (5th ed.) (London: SAGE Publications, 2015). 5 Silverman, Interpreting Qualitative Data.

Researching judicial emotion and emotion management  183 educational resource for state court judges.6 Thus, the project had a very specific purpose: to provide guidance for a judicial audience. Researchers conducted face-to-face interviews, four focus groups, and a follow-up survey with 103 judicial officers throughout a Midwestern state to produce a project final report.7 In the interview phase of the project, discussions addressed the types of knowledge, skills, abilities, and other characteristics judges associate with judicial excellence, as well as peer-recommended strategies to support professional growth in those areas. Confidential, individual interviews of approximately one hour’s duration were conducted in February and April 2016 during the biannual state judicial education conference. The interviewees represented 20 of 24 circuits across the state and the full spectrum of metropolitan, suburban, and rural courts. Of the 81 interviewed judges, 52 are male and 29 are female, most are white and had at the time of the interview an average of 12.2 years of experience on the bench in the state (ranging from three to 32 years). Three National Center for State Courts interviewing teams, each comprising one interviewer and one note-taker, conducted the interviews. Note-takers were trained to record similar information that they entered directly into a template, noting any gaps where they were unable to keep up with the pace of the judge’s comments. The interviewer also took handwritten notes. If the interviewee granted permission (which all did), the interview was audio-recorded. Careful debriefing between the interviewer and note-taker immediately followed each interview session. Where gaps existed in notes taken, the relevant section of the recording was transcribed. Judges consented to these confidential interviews with the understanding that individual comments and identities would not be disclosed and interview data would be destroyed following the conclusion of the project. As with the Australian study, interviews were semi-structured with open-ended questions. They were conversational in nature, with opportunities for probing responses for clarity. Interviewers first asked about the judge’s current assignment and experience on the bench, followed by questions about current duties and responsibilities. These questions generated contextual information about the nature of judicial work and professional experience while also serving as a helpful “warm up” exercise to establish rapport between the interviewer and interviewee. The remainder of the interview focused on the judicial officer’s perceptions of important judicial skills and training. Questions were broad so as to allow judicial officers to identify in their own terms the types of characteristics they viewed as important to judicial excellence. Interviewers also sought detailed descriptions of specific events to illustrate the individual knowledge, skills, abilities, and other characteristics that support judicial excellence. For example, judges were asked to walk interviewers through a time when they felt they handled a difficult or challenging situation especially well (e.g., describing who was involved,

6 In the U.S. study, “judge” and “judicial officer” refer to circuit court and associate judges (i.e., those presiding in the first instance or lower courts) in the partner state. Both are legally qualified, full-time, salaried positions. Circuit court judges in this state are selected via partisan election (followed by nonpartisan retention elections) to six-year terms. Associate judges are appointed (and reappointed) to four-year terms by circuit court judges, but unlike circuit court judges cannot preside over felony cases. For more on methods, see Jennifer K. Elek, David B. Rottman, Shelley Spacek Miller, and Lydia Hamblin, “Appendix A,” in Elements of Judicial Excellence: A Framework to Support the Professional Development of State Trial Court Judges – Project Final Report (Williamsburg, Virginia: National Center for State Courts, 2017). 7 Elek et al., Elements of Judicial Excellence.

184  Research handbook on law and emotion what the judge was thinking, what the judge said and did, what the outcome of the situation was) and reflect upon the skills they used to navigate the situation effectively. Each of the two research designs was nested in other data collection.8 Findings from earlier surveys of judicial officers and court observations shaped the kinds of questions asked of the Australian judicial officers. This research design was sequential and part of a long-term research project on Australian courts and their judicial officers.9 In the U.S. study, the interview phase was followed by four focus groups in which 22 judges provided feedback and advice on the specific themes that emerged in the interviews, and then by an electronic survey on the proposed Elements of Judicial Excellence framework. Expert advisory input was incorporated throughout the project. Thus, each component of this study is tightly inter-connected, making the research process iterative and organic, and so building trust and confidence in the value of the resulting report for judges and the judiciary.

JUDGING AND EMOTION: RESEARCH FINDINGS Both studies reveal details about the emotions experienced and displayed by judicial officers, as well as their perceptions of the emotions of participants in court. They also indicate judicial officers’ understanding of the sometimes implicit norms which govern judicial emotions. Changing Judicial Performance: Emotion and Legitimacy Judicial officers sometimes described their experiences of emotions as responses to specific questions about interpersonal skills or the nature of the job. They identified situations of dense emotion in court, including their emotional reactions to evidence, litigants, and emotion arising from interaction with legal counsel. Emotion management strategies included: patience, self-talk or visualization of the conventional judicial role which eschews emotion, and displacing the display of emotion (e.g., waiting to leave the bench before outwardly expressing particular feelings). One magistrate highlighted the embedded nature of compassion and empathy in everyday work as normal: I think that anyone who says you’ve got to rule out compassion and you’ve got to rule out empathy is probably not being very honest. … [describes an emotionally dense situation in court] I think you have to allow that, those feelings of compassion, emotion, I think you have to allow them to come through you, umm, you know a little bit like letting the silt settle, I think you have to allow them to come through you because that’s very normal and then when you are, time to write your sentence or decide upon your sentence then you can move them to one side. I don’t think you can start by saying I take out of it compassion/empathy. I don’t think that’s the right process. I think you have to let that all come through you and filter it and then find yourself at the right point where you’re ready to deal with it. (I 31, magistrate) 10

Mario Luis Small, “How to Conduct a Mixed Methods Study: Recent Trends in a Rapidly Growing Literature,” Annual Review of Sociology 37 (2011): 57–86. 9 Sharyn Roach Anleu and Kathy Mack, Performing Judicial Authority in the Lower Courts (London: Palgrave Macmillan, 2017). 10 The interviews are labelled by the code “I ##,” in which “I” indicates this is interview data and “##” refers to an individual interviewee. Quotes taken from the interviews are used verbatim, only deleting identifying and potentially identifying material, and retaining qualities of natural, “everyday speech” 8

Researching judicial emotion and emotion management  185 This judicial officer suggested an image of emotions as internal states and emphasized the importance of consciously experiencing emotion and patience to “allow them to come through.” She then implied a concreteness to “those feelings” that enables them to be identified and then “move them to one side.” This process, she pointed out, creates the emotion-free space for decision making, to “decide upon your sentence.” Discussion about other aspects of judicial work, such as understandings of impartiality, also elicited responses regarding perceptions and experiences of emotion. For example, when asked to describe impartiality in laypersons’ terms, one judicial officer explained: [Y]ou know you are to put out of your mind, when dealing with the case before you, any personal prejudices or beliefs or sympathies or hostilities you may have of a preconceived nature but just to decide the case on the factors and on the evidence as presented to you. (I 01, judge)

This judicial officer similarly proposed the movability of emotions that can be “put out of your mind,” highlighting a conception of emotion as personal rather than relational or interactional. Judicial officers described experiencing specific emotions vis-à-vis some participants in court, especially barristers or legal counsel: I don’t really mind counsel being rude and inappropriate towards me, I don’t, it doesn’t fuss me unduly, but it does fuss me, increasingly I find, when counsel are bullying witnesses. I mean it’s frustrating hearing it, silly and ill-prepared arguments, that’s frustrating, leave aside witnesses. It’s frustrating people not doing their job properly and people charging, umm clients. (I 23, judge)

This comment implied several dimensions of emotion. First, the judicial officer described being aware of counsel being rude towards him, and manages the rudeness by ignoring it, not being bothered by it or perhaps justifying it in terms of the lawyer’s personality or just part and parcel of the role of the judicial officer. This strategy does not escalate emotion in the courtroom, though this emotion management did not appear to entail much effort. Yet, he added, “it does fuss me” seeing counsel “bullying witnesses.” There seem to be two components to this feeling of frustration: observing witnesses getting upset because of the behavior he assessed as “bullying,” and his assessment that some barristers are unprepared and yet charge fees inconsistent with the quality of their work, perhaps evoking a feeling of injustice or embarrassment in the judge. The interviews revealed considerable reflexivity among judicial officers, and awareness of their own emotion experiences and those of others. Even though judicial officers framed emotion as their personal experience or feeling, their descriptions of the context in which these emotions emerged highlight the interactional and relational nature of emotion and judging. Their judicial work can also require reminding others to maintain the emotional regime of the courtroom which may include identifying behavior as transgressing the implicit feeling rules.11 In accomplishing these tasks, the judicial officer may consciously use emotion or emotion such as unfinished sentences, repeated phrases and filler words like “umm,” to maintain the narrative quality of the interviews. 11 See also Bridgette Toy-Cronin, “From Litigator to Researcher: The Burdens and Benefits of Moving between the Profession and the Academy,” International Journal of the Legal Profession 24, no. 3 (2016): 341–58; Bridgette Toy-Cronin, “Leaving Emotion Out: Litigants’ in Person and Judges’ Understanding and Responding to the Role of Emotion in New Zealand Civil Courts,” Oñati Socio-Legal Series 9, no. 5 (2019): 684–701.

186  Research handbook on law and emotion display as a positive resource or strategy. The focus on putting emotions aside, before turning to reasoned (rational) decision making based on the facts and the law, requires internal human processes such as self-awareness or self-talk. These are forms of emotion management.12 Judicial officers anticipate and consciously think about emotion and the relationship between emotion and the formal requirements of the judicial role. In so doing, they actively constitute boundaries between the judge and other, especially lay, participants. To conform to the judicial role, judges must put emotion aside in performing their judicial tasks and display the expected judicial demeanor. Formal codes of ethics or guides for judicial conduct specify appropriate judicial behavior and demeanor, yet they are necessarily general and abstract and do not refer explicitly to emotion work. For example, the Guide to Judicial Conduct13 emphasizes patience, courtesy, dignity and decorum, implicitly anticipating judicial officers’ management of their own emotions and those of others, especially in court. Achieving decorum can involve being patient or courteous which, as several interviewees indicate, entails emotion work to manage feelings of frustration, disgust, annoyance or anger. Judicial officers might display courtesy, patience, dignity, and decorum strategically to generate desired emotions, either in themselves or in others in the courtroom. They might even use impatience strategically, for example to ensure legal counsel move things along. This may amount to surface acting, where the external display or evocation of emotion does not match the emotion the judicial officer really feels.14 Thus judicial officers must deal with “emotions while they are engaged in the process of legitimizing their expertise,” which may mean disavowing or minimizing emotion display.15 Invoking impartiality appears to function as a feeling rule (what judicial officers “ought” to feel) and as a practice guide (what judicial officers “ought” to do). First, as a feeling rule, the accomplishment of impartiality may require emotion work to maintain the emotionless internal state associated with impartiality. This may entail deep acting on the part of the judicial officer to regulate or suppress their own subjective feelings.16 In this sense, the script of judicial dispassion17 “is emotionally sustained”.18 Second, as a practice guide, impartiality

Arlie Russell Hochschild, “Emotion Work, Feeling Rules and Social Structure,” American Journal of Sociology 85, no. 3 (1979): 551–75. 13 The Council of Chief Justices of Australia and New Zealand, Guide to Judicial Conduct (Third Edition) (Australasian Institute of Judicial Administration, 2017), https://​aija​.org​.au/​publications​ -introduction/​guidelines/​guide​-to​-judicial​-conduct/​, last accessed 13 January 2021. 14 Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feeling (Berkeley, California: University of California Press, 1983). 15 Jochem Kleres, “Emotional Expertise: Emotions and the Expert Interview,” in Methods of Exploring Emotions, eds., Helena Flam and Jochem Kleres (London: Routledge, 2015), 90–100. 16 Hoschschild, The Managed Heart; Sharyn Roach Anleu and Kathy Mack, “Impartiality and Emotion in Everyday Judicial Practice,” in Emotions in Late Modernity, eds., Roger Patulny, Sukhmani Khorana, Rebecca Olson, Alberto Bellocchi, Jordan McKenzie and Michelle Peterie (London: Routledge, 2019), 253–66. 17 Terry A. Maroney, “Emotional Regulation and Judicial Behavior,” California Law Review 99, no. 6 (2011): 1485–555; Terry A. Maroney, “The Persistent Cultural Script of Judicial Dispassion,” California Law Review 99, no. 2 (2011): 629–82. 18 Åsa Wettergren and Stina Bergman Blix, “Empathy and Objectivity in the Legal Procedure: The Case of Swedish Prosecutors,” Journal of Scandinavian Studies in Criminology and Crime Prevention 17, no. 1 (2015): 19–35, 31. 12

Researching judicial emotion and emotion management  187 requires the presentation of an appropriate demeanor or emotion display.19 Achieving this can entail emotion work. Judicial Excellence Project In this study, judicial officers described the importance of so-called “soft skills” such as interpersonal and emotion management skills when discussing judicial excellence and the ability to perform judicial work most effectively. These are also areas in which some participants noted significant variation in skill among their peers. Three broad themes regarding emotion emerged from the research. The first two focus on emotion primarily as an event-specific factor: emotion as a perceived impediment to judicial work and the role of emotion as a tool in facilitating good court outcomes. The third refers to the cumulative effects of emotion on work-related wellbeing (e.g., job satisfaction, engagement, burnout). At times, judges framed emotion as an impediment to judicial work, implying a goal of neutralizing emotion and the need for emotion self-management.20 Participants referred to failures to manage or the mismanagement of emotion, through improper demeanor or in decision making, that jeopardize perceived and actual impartiality. Judges described various situations in which “their patience was tested or they lost their temper in court”.21 Good judges, for example, should be aware of the emotions they are experiencing and how those emotions may be expressed in ways that affect public perceptions of the judge (e.g., judicial demeanor or temperament) and court. Good judges should be able to anticipate how they may feel or react in certain situations. Doing so allows them to establish a plan to effectively manage anticipated emotions. Judges commented extensively on the importance of emotion management skills in maintaining impartiality and the perception of impartiality in the courtroom. Some expressed the belief that judges who lack self-control in this regard would also be more likely to lose control of the courtroom.22

The perception of emotion as an impediment and the corresponding goal of neutralizing emotion also arose in discussions about a judge’s ability to manage the emotional behavior of other courtroom actors: [J]udges often manage the behavior of others (including emotional reactions in court). They defined judicial excellence as being able to anticipate, prevent or defuse others’ emotional outbursts, and enforce the behavioral expectations of the court (i.e., maintain decorum, promote honesty, and discourage decep­tion or manipulation).23

To help manage emotion, judges suggested self-management practices like diaphragmatic breathing, meditation, or “counting to ten” techniques. Other strategies included docket management practices such as issuing decorum orders to set expectations for behavior in court, Kathy Mack and Sharyn Roach Anleu, “Performing Impartiality: Judicial Demeanor and Legitimacy,” Law & Social Inquiry 35, no. 1 (2010): 137–73; Jordan Tutton, Kathy Mack, and Sharyn Roach Anleu, “Judicial Demeanor: Oral Argument in the High Court of Australia,” Justice System Journal 39, no. 3 (2018): 273–99. 20 Jennifer K. Elek, “Judicial Perspectives on Emotion, Emotion Management, and Judicial Excellence in the USA,” Oñati Socio-Legal Series 9, no. 5 (2019): 865–79. 21 Elek et al., Elements of Judicial Excellence, B-21. 22 Elek et al., Elements of Judicial Excellence, B-19. 23 Elek et al., Elements of Judicial Excellence, B-26. 19

188  Research handbook on law and emotion scheduling certain types of cases to be heard first or last to minimize opportunity for disruption from possible emotional outbursts, and taking recesses when needed to allow time to regain self-composure or as part of a behavior management strategy with other courtroom actors. A second way in which emotion arose in discussions with judicial officers in this study addressed the utility of emotion in effective interpersonal communication. Judges described the value of building rapport with courtroom actors, establishing an atmosphere of mutual respect, and motivating defendant compliance with the court and court-ordered interventions. For example, judges “especially emphasized the importance of social awareness, behavioral manage­ment skills, and two-way communication skills”.24 They see such interaction and communication as essential for parties’ perceptions of procedural justice and experiences of fair treatment in the courtroom.25 Regarding social awareness, the report explains: A good judge was described as displaying a heightened social awareness or sensitivity to others’ emotions and needs in the moment. … Judges with heightened social awareness are aware of the interpersonal dynamics of a given social situ­ation or setting, understand the influence of social and cultural norms on behavior, and can anticipate others’ emotional responses to events. Respected judges valued the curiosity and interpersonal skills necessary to seek out and develop a more complete understanding of the case. Judges indicated that social awareness helped them make use of available infor­mation (including verbal and nonverbal cues) to inform analysis and decision-making …. They observed that this facilitated a more nuanced grasp of the issues in a case and the possible long-term effects of a given situation.26

Participating judges explained that the appropriateness and utility of emotional expression on the part of the judge can differ depending on the judicial assignment or docket type. In particular: Problem-solving court judges … may need to express more emotion to build rapport with and motivate clients … than judges on traditional assignments. With respect to jury trials, several judges commented on the importance of a judge who “isn’t seen”—that is, a judge who presides over the court process, but is not the focus of the jury’s attention. Jury trial judges felt they should always strive to portray objectivity and refrain from expressing or otherwise communicating opinions or beliefs that may be detected by the jury.27

Judges suggested several strategies or techniques to help their peers achieve key attitudinal and behavioral outcomes with the public and other court users. For example, some judges recommended learning motivational interviewing and active listening techniques to better engage courtroom actors in the process and to show respect for others’ stories. Judges also specified model behaviors based on procedural fairness principles, such as making eye contact with the speaker and using appropriate facial expressions and gestures as others speak, and asking follow-up questions or summarizing what was heard to demonstrate attentiveness and ensure understanding. Another suggested strategy is to specifically “… acknowledge [litigants’] emotions in explanations of decisions.”28 Elek et al., Elements of Judicial Excellence, B-26. Steve Leben and Alan Tomkins, eds. Court Review 44, nos. 1 and 2 (2008), http://​aja​.ncsc​.dni​.us/​ courtrv/​cr44​-1/​CR44​-1​-2​.pdf. 26 Elek et al., Elements of Judicial Excellence, B-26. 27 Elek et al., Elements of Judicial Excellence, B-20. 28 Elek et al., Elements of Judicial Excellence, B-28. 24 25

Researching judicial emotion and emotion management  189 A third way judges participating in this study addressed emotion in interviews and focus groups is as a reaction to and influence on one’s relationship with judicial work. Judges recognized chronic effects of emotion on their level of functioning on the job and on judicial retention. For example, matters related to job dissatisfaction, stress, disengagement, and burnout were raised in discussions about specific challenges, such as the consequences of judicial decisions in others’ lives and the social isolation inherent in the position. The consequentiality of the work can, for example, lead to chronic self-doubt, which can have deleterious effects on judicial performance. Judges may be equipped with fewer social support resources; they describe the career transition from bar to bench as one which significantly changes relationship boundaries with former colleagues, as prescribed by the state.29 This creates an abrupt experience of social isolation that may be more acutely experienced by judges on traveling assignments or working in small, rural jurisdictions with few judicial colleagues. Judges recommended several strategies to help their peers cope with or combat social isolation. Suggestions included increasing involvement in project-oriented court improvement activities, participating regularly in professional events and social activities with judicial colleagues, and focusing efforts on building a healthy support network of family and friends outside of the profession. Finally, participating judges discussed not only negative emotional experiences in judicial work, but also components of the job that afford meaning, purpose and satisfaction. They value peers who contribute to a positive and supportive court environment through self-initiated personal and professional growth activities and organizational citizenship behaviors,30 such as teaching, mentoring, community outreach, and participation in or leadership of court improvement or reform initiatives.31 To fuel and sustain careers and avoid complacency or burnout over the years, judges emphasized the importance of actively cultivating engagement through discretionary activities such as these.

INTERVIEWS AS A METHOD TO INVESTIGATE JUDICIAL EMOTION A perennial question in empirical research on emotion is how to identify and collect reliable, valid data on emotion and emotion work. Scheer poses the question: “How do we know when a source is talking about an emotion?”32 A related, but very different, question is: “How do we know what they feel?”33 Often interviews are adopted as the most appropriate strategy to

29 State of Illinois Judicial Inquiry Board, Code of Judicial Conduct, Illinois Court Rules, Rule 61: Canon 1 and Rule 63: Canon 3, https://​www2​.illinois​.gov/​sites/​jib/​Pages/​Code​.aspx, last accessed 13 January 2021. 30 Nathan P. Podsakoff, Brian D. Blume, Steven W. Whiting, and Philip M. Podsakoff, “Individualand Organizational-Level Consequences of Organizational Citizenship Behaviors: A Meta-Analysis,” Journal of Applied Psychology 94, no. 1 (2009): 122–41. 31 Elek et al., Elements of Judicial Excellence, B-4. 32 Monique Scheer, “Are Emotions a Kind of Practice (and Is That What Makes Them Have a History)? A Bourdieuan Approach to Understanding Emotion?” History and Theory 51, no. 2 (2012): 193–220, 218. 33 Åsa Wettergren, “How Do We Know What They Feel?” in Methods of Exploring Emotions, eds. Helena Flam and Jochem Kleres (London: Routledge, 2015), 115–24, 115.

190  Research handbook on law and emotion gain insight into study participants’ experiences of emotion and perceptions of emotion work, allowing scope for reflexivity and opportunities for probing emotion and emotion work.34 In the Australian study the interviews were a discrete component, informed by, but separate from, earlier surveys and court observations undertaken by the Judicial Research Project. In contrast, the U.S. research interviews were intimately connected to the other phases of data collection; the resulting report and framework being a compilation and iterative refinement of data from interviews, focus groups, surveys plus input and feedback from advisory groups of judges and other stakeholders. The experience of these two studies with different research designs provides a foundation on which to consider the efficacy of interviewing as a way of examining judicial emotion. As interviews are a very personal form of data collection for interviewer and interviewee, access to judicial officers and their trust were essential for completing the two research projects.35 Some socio-legal researchers consider the judiciary as “a ‘hard-to-reach’ group” due to obstacles presented by gatekeepers36 the judiciary’s “high status and professional remoteness”37 and their concerns about confidentiality of responses.38 In the Australian study, the chief investigators and the Judicial Research Project were already known to many judicial officers across Australia. They had conducted surveys of the judiciary previously, undertaken court observations, presented papers at judicial conferences and published articles in judicial/court newsletters and journals. Perhaps reflecting this familiarity and trust, nearly every judicial officer approached to be interviewed agreed to participate, and some went to some trouble to be available. Trust was also important in the U.S. research. The lead investigator had a long history of engagement with the judiciary providing research and technical assistance support. The institutional reputation of the National Center for State Courts also contributed to this trust, as did the role of the state partner in the research. As a research tool, interviews are diverse.39 Some interviews are highly formal, with a structured question and answer approach where the interviewer’s aim is to obtain perceptual or factual information from the interviewee. Questions flow from one direction (interviewer to interviewee) and responses from the other (interviewee to interviewer). Other types of interview are more fluid, conversational, without a clear beginning or end, and may be embedded in an ethnographic study. No matter where on the spectrum an interview falls, it is now widely

Paul Atkinson and David Silverman, “Kundera’s Immortality: The Interview Society and the Invention of the Self,” Qualitative Inquiry 13, no. 3 (1997): 304–25; Holmes, “Researching Emotional Reflexivity,” 61–6. 35 Roach Anleu, Bergman Blix, and Mack, “Researching Emotion in Courts and the Judiciary,” 145–50. 36 Dave Cowan, Sarah Blandy, Emma Hitchings, Caroline Hunter, and Judy Nixon, “District Judges and Possession Proceedings,” Journal of Law and Society 33, no. 4 (2006): 547–71, 548. See also Esther Nir, “Approaching the Bench: Accessing Elites on the Judiciary for Qualitative Interviews,” International Journal of Social Research Methodology 21, no. 1 (2018): 77–89; Toy-Cronin, “From Litigator to Researcher,” 341–58. 37 Shirley A. Dobbin et al., “Surveying Difficult Populations: Lessons Learned from a National Survey of State Trial Court Judges,” Justice System Journal 22, no. 3 (2001): 287–314, 287. 38 Caroline Hunter, Judy Nixon, and Sarah Blandy, “Researching the Judiciary: Exploring the Invisible in Judicial Decision Making,” Journal of Law and Society 35, no. 1 (2008): 76–90. 39 Kathryn Roulston, “Considering Quality in Qualitative Interviewing,” Qualitative Research 10, no. 2 (2010): 199–228; David Silverman, “How Was It for You? The Interview Society and the Irresistible Rise of the (Poorly Analyzed) Interview,” Qualitative Research 17, no. 2 (2017): 144–58. 34

Researching judicial emotion and emotion management  191 accepted that the interview is a co-production, an encounter between the interviewee and the interviewer. The nature of the interaction, context and setting all affect the kinds of information generated and its interpretation. In the interview as encounter, interviewees provide accounts, even justifications, of their actions and approaches, and meaning “is strategically assembled in the interview process.”40 The interview is an opportunity for the interviewee (the judicial officer) to construct and present a particular (judicial) identity, yet this is not accomplished in in a vacuum. Judicial officers have various professional and personal resources from which to assemble their judicial self in the interview, a self that may be different to the judicial self-presented in court. In the Australian interviews, judicial officers sometimes described or even delimited their judicial experiences by relying on other identities, for example, describing their home and family life/selves as separate (or not) from their judicial role/self.41 Both studies draw on judicial officers’ accounts describing how they felt in particular moments, their assessment of those feelings as appropriate or inappropriate and what they did to manage those feelings, and how they use “what they perceive to be their internal states” to accomplish daily tasks.42 However, the researcher cannot always gauge the alignment between what the interviewee reports, such as descriptions of past situations or events, and what he/she actually did or felt, or how the interviewee would behave or feel in the future. Nonetheless, if the aim of the research interview is to gain insight into the way interviewees describe their approach to their work, and how interviewees interpret their own actions, then this question of alignment is less relevant. Nonetheless, it requires a clear answer to the question, “what sort of data are we trying to retrieve through interviews?”43 While interview methodology can enable a far-reaching flow of consciousness, some interviewees are more forthcoming or reflexive than others. Some judicial officers may regard broad questions about emotions difficult to answer. It might be difficult for the interviewer (researcher) to discern whether judicial officers are reluctant to talk about emotions or whether they lack the tools to do so, given that the judicial framework is primarily cognitive and behavioral. Judicial work is valorized as thinking and reasoning, not feeling. The narrative potential of interviews can unearth emotions, including those that interviewees are reluctant or limited in their capacity to talk about.44 Like all data-collection techniques, interviews are necessarily limited. They are conducted in an artificial situation; an interactional encounter created solely for the purposes of the interview. Most of the Australian interviews were conducted in the judicial officers’ chambers (as for other locations, one took place in a hotel room, another in a university foyer, and a third in the court library). In chambers, there was variation in where the interviewer sat, either in front of the usually large desk across from the judicial officer, or on lounge chairs away from the

James A. Holstein and Jaber F. Gubrium, “Narrative Practice and the Active Interview,” in Qualitative Research, ed., David Silverman (Thousand Oaks, California: SAGE Publications, 2016), 67–82. See also Atkinson and Silverman, “Kundera’s Immortality,” 304–25; Lois Presser, “Violent Offenders, Moral Selves: Constructing Identities and Accounts in the Research Interview,” Social Problems 51, no. 1 (2004): 82–101. 41 Sharyn Roach Anleu and Kathy Mack, “Managing Work and Family in the Australian Judiciary: Metaphors and Strategies,” Flinders Law Journal 18, no. 2 (2016): 213–40. 42 Mariana Craciun, “Emotions and Knowledge in Expert Work: A Comparison of Two Psychotherapies,” American Journal of Sociology 123, no. 4 (2018): 959–1003, 973. 43 Silverman, “How Was It for You?” 144. 44 Kleres, “Emotional Expertise”. 40

192  Research handbook on law and emotion desk. Interviews are not an entirely discrete and distinct data collection tool. Even though the face-to-face interview is the main technique for gathering data, other observational information inevitably seeps through, which have been called “incidental ethnographic encounters.”45 The interviews entail participant observation when the interviewer notices things before the interview, for example where she was kept waiting, and for how long. During the interview, other aspects of the judicial officer are observable. Despite standard furniture—large desk, bookshelves full of law reports, papers on tables, comfortable chairs—each judicial officer’s chambers differ, giving hints about art tastes, whether she or he is a collector of something, and display of what appear to be family photographs, or sporting paraphernalia. In the Australian study, if the judicial officer was interrupted by a phone call or the entry of an associate or other judge, the interview recorder was turned off, but usually the interviewer stayed in the room during these interactions. In contrast, the U.S. interviews were conducted in standardized settings during the state judicial education conference held at a large metropolitan hotel. Interviews occurred in designated, nondescript meeting rooms and were organized so that the interviewee was not kept waiting. Judges therefore were not in the natural setting of their chambers, nor were they likely to be interrupted by phone calls, email and others entering the room, or the need to return to court briefly. Moreover, as judges were attending a professional development program, issues of education and skills needed for everyday work—the focus of the Judicial Excellence project—were paramount. Four interviewers of different ages and genders conducted the U.S. interviews, though it is unknowable what impact that may have had on the interactive nature of the interview process. All the interviews in the Australian study were conducted by the same person (the first author); in some cases, interviewee and interviewer previously had met professionally, for example at judicial conferences. In both studies the interviewer asked permission to audio record and to take notes during the interview, and consent was given. Not one interviewee inquired into what these field notes would contain and whether they would differ from the talk being audio-recorded. Sometimes at the end of the interview, when the tape recorder was turned off, judicial officers continued talking and the interviewer made brief notes of these comments. In the Australian study, the transcribed interviews were the main source of data, with additional checking of the audio-recording. Interviewer notes were occasionally relied on when analyzing the interview data.46 Pinsky describes a similar situation: “I recorded field notes to keep alongside transcripts of interview accounts, I found no instructions for how to integrate those notes into my analysis from either the literature on interviewing or ethics board procedures, both of which conceive of the interview transcript as the only unit of data.”47 In the U.S. study, a trained note-taker keyed notes directly into a computer during the interview. These were the main data sources from the project’s interview phase. The audio-recording was used only as back-up where the notes had gaps. The interview audio-recordings were not fully transcribed.

45 Dina Pinsky, “The Sustained Snapshot: Incidental Ethnographic Encounters in Qualitative Interview Studies,” Qualitative Research 15, no. 3 (2015): 281–295, 283. 46 Mack, Roach Anleu, and Tutton, “The Judiciary and the Public”. 47 Pinsky, “The Sustained Snapshot,” 282.

Researching judicial emotion and emotion management  193 Data analysis involves transforming interview material into text. This entails many decisions, practical and ethical. Sometimes the transcription process involves guessing where to insert punctuation, which can change meaning, especially in a long narrative, where the interviewee may intend sentence breaks or not (this is very difficult to know). In the Australian study, the researchers consciously decided not to correct or change what might in written text be ungrammatical, or illogical. In the U.S. study, as direct quotes were not used, only summaries drawn from interviews, focus groups and surveys, this issue was not as significant.

CONCLUSION Judicial officers must anticipate, decipher, interpret and manage their own emotion experiences and display and that of others, especially in the courtroom. As this and other research shows, emotion is more than an aspect of judicial work; it can be intrinsic to it, as captured in the concept of “the emotive-cognitive judicial frame” proposed by Bergman Blix and Wettergren.48 Interview data enables identification of many facets of judging and emotion: the emotions judicial officers experience in everyday judicial work, the emotion work judicial officers undertake in managing their own and others’ emotions, and the norms governing everyday judicial work in different court contexts. The two studies illustrate very different ways that interview research into the judiciary can be conducted. The use of interviews within an overall research design can vary considerably, as can the mode of recording, location, and questions asked, all shaped by project goals and research questions. Interviews can build on previous research findings, seeking more in-depth information via open-ended questions as in the Australian study, or, as in the U.S. study, be tied closely with other methods, such as focus groups and surveys. Both research projects demonstrate the importance, for judicial interview research, of access, trust and rapport which can take time to build. Both studies illustrate how the conventional judicial role, which disavows emotion, influences but does not entirely determine judicial officers’ reflexive monitoring of the emotions they experience. Judicial emotion management strategies often entail recognizing a place for some emotion, anchored by a commitment to impartiality, understood as dispassion and detachment. Through the descriptions of their experiences and conduct across the U.S. and Australian research projects, and the interviews undertaken as part of each, judicial officers articulate their conceptions of the judicial role and its boundaries. Through these judicial attitudes and practices, judicial officers reproduce and potentially transform the boundaries between the emotions they experience and/or display and their performance as judge, intertwining emotion and the judicial role.

Bergman Blix and Wettergren, Professional Emotions in Court, 185.

48

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REFERENCES Atkinson, Paul and David Silverman. “Kundera’s Immortality: The Interview Society and the Invention of the Self.” Qualitative Inquiry 13, no. 3 (1997): 304–25. Bergman Blix, Stina and Åsa Wettergren. Professional Emotions in Court: A Sociological Perspective. London: Routledge, 2018. Cowan, Dave, Sarah Blandy, Emma Hitchings, Caroline Hunter, and Judy Nixon. “District Judges and Possession Proceedings.” Journal of Law and Society 33, no. 4 (2006): 547–71. Council of Chief Justices of Australia and New Zealand. Guide to Judicial Conduct (3rd ed.). Melbourne: Australasian Institute of Judicial Administration, 2017. Craciun, Mariana. “Emotions and Knowledge in Expert Work: A Comparison of Two Psychotherapies.” American Journal of Sociology 123, no. 4 (2018): 959–1003. Denzin, Norman K. and Yvonna S. Lincoln, eds. The SAGE Handbook of Qualitative Research (5th ed.). Thousand Oaks, California: CA: SAGE Publications, 2018. Dobbin, Shirley A., Sophia I. Gatowski, Gerald P. Ginsburg, Mara L. Merlino, Veronica Dahir, and James T. Richardson. “Surveying Difficult Populations: Lessons Learned from a National Survey of State Trial Court Judges.” Justice System Journal 22, no. 3 (2001): 287–314. Elek, Jennifer K., David B. Rottman, Shelley Spacek Miller, and Lydia Hamblin. Elements of Judicial Excellence: A Framework to Support the Professional Development of State Trial Court Judges – Project Final Report. Williamsburg, Virginia: National Center for State Courts, 2017. Elek, Jennifer K. “Judicial Perspectives on Emotion, Emotion Management, and Judicial Excellence in the USA.” Oñati Socio-Legal Series 9, no. 5 (2019): 865–79. Fitzpatrick, Petya and Rebecca E. Olson. “A Rough Road Map to Reflexivity in Qualitative Research into Emotions.” Emotion Review 7, no. 1 (2015): 49–54. Gubrium, Jaber F., James A. Holstein, Amir B. Marvasti, and Karyn D. McKinney. The SAGE Handbook of Interview Research: The Complexity of the Craft (2d ed.). Thousand Oaks, California: SAGE Publications, 2012. Hochschild, Arlie Russell. “Emotion Work, Feeling Rules and Social Structure.” American Journal of Sociology 85, no. 3 (1979): 551–75. Hochschild, Arlie Russell. The Managed Heart: Commercialization of Human Feeling. Berkeley, California: University of California Press, 1983. Holmes, Mary. “Researching Emotional Reflexivity.” Emotion Review 9, no. 1 (2015): 61–6. Holstein, James A. and Jaber F. Gubrium. “Narrative Practice and the Active Interview.” In Qualitative Research, edited by David Silverman, 67–82. Thousand Oaks, California: SAGE Publications, 2016. Hunter, Caroline, Judy Nixon, and Sarah Blandy. “Researching the Judiciary: Exploring the Invisible in Judicial Decision Making.” Journal of Law and Society 35, no. 1 (2008): 76–90. Illinois Judicial Inquiry Board. Code of Judicial Conduct, Illinois Court Rules, https://​www2​.illinois​ .gov/​sites/​jib/​Pages/​Code​.aspx. Kleres, Jochem. “Emotional Expertise: Emotions and the Expert Interview.” In Methods of Exploring Emotions, edited by Helena Flam and Jochem Kleres, 90–100. London: Routledge, 2015. Leben, Steve and Alan Tomkins, eds. Court Review 44, nos. 1 & 2 (2008). http://​aja​.ncsc​.dni​.us/​courtrv/​ cr44​-1/​CR44​-1​-2​.pdf. Mack, Kathy and Sharyn Roach Anleu. “Performing Impartiality: Judicial Demeanor and Legitimacy.” Law & Social Inquiry 35, no. 1 (2010): 137–73. Maroney, Terry A. “Emotional Regulation and Judicial Behavior.” California Law Review 99, no. 6 (2011): 1485–555. Maroney, Terry A. “The Persistent Cultural Script of Judicial Dispassion.” California Law Review 99, no. 2 (2011): 629–82. Mason, Jennifer. Qualitative Researching (3rd ed.). London: SAGE Publications, 2018. Nir, Esther. “Approaching the Bench: Accessing Elites on the Judiciary for Qualitative Interviews.” International Journal of Social Research Methodology 21, no. 1 (2018): 77–89. Peräkylä, Anssi and Johanna Ruusuvuori. “Analyzing Talk and Text.” In The SAGE Handbook of Qualitative Research, edited by Norman K. Denzin and Yvonna S. Lincoln, 669–90. Thousand Oaks, California: SAGE Publications, 2018.

Researching judicial emotion and emotion management  195 Pinsky, Dina. “The Sustained Snapshot: Incidental Ethnographic Encounters in Qualitative Interview Studies.” Qualitative Research 15, no. 3 (2015): 281–95. Podsakoff, Nathan P., Brian D. Blume, Steven W. Whiting, and Philip M. Podsakoff. “Individual- and Organizational-Level Consequences of Organizational Citizenship Behaviors: A Meta-Analysis.” Journal of Applied Psychology 94, no. 1 (2009): 122–41. Presser, Lois. “Violent Offenders, Moral Selves: Constructing Identities and Accounts in the Research Interview.” Social Problems 51, no. 1 (2004): 82–101. Roach Anleu, Sharyn and Kathy Mack. “Magistrates’ Everyday Work and Emotional Labour.” Journal of Law and Society 32, no. 4 (2005): 590–614. Roach Anleu, Sharyn, Stina Bergman Blix, and Kathy Mack. “Researching Emotion in Courts and the Judiciary: A Tale of Two Projects.” Emotion Review 7, no. 2 (2015): 145–50. Roach Anleu, Sharyn and Kathy Mack. “Managing Work and Family in the Australian Judiciary: Metaphors and Strategies.” Flinders Law Journal 18, no. 2 (2016): 213–40. Roach Anleu, Sharyn, Stina Bergman Blix, Kathy Mack, and Åsa Wettergren. “Observing Judicial Work and Emotions: Using Two Researchers.” Qualitative Research 16, no. 4 (2016): 375–91. Roach Anleu, Sharyn and Kathy Mack. Performing Judicial Authority in the Lower Courts. London: Palgrave Macmillan, 2017. Roach Anleu, Sharyn and Kathy Mack. “Impartiality and Emotion in Everyday Judicial Practice.” In Emotions in Late Modernity, eds. Roger Patulny, Sukhmani Khorana, Rebecca Olson, Alberto Bellocchi, Jordan McKenzie, and Michelle Peterie, 253–66. London: Routledge, 2019. Roach Anleu, Sharyn, Kathy Mack, Stina Bergman Blix, and Terry Maroney, eds. Oñati Socio-Legal Series Special Issue on Judging, Emotion and Emotion Work 9, no. 5 (2019). Roulston, Kathryn. “Considering Quality in Qualitative Interviewing.” Qualitative Research 10, no. 2 (2010): 199–228. Scarduzio, Jennifer A. “Maintaining Order through Deviance? The Emotional Deviance, Power, and Professional Work of Municipal Court Judges.” Management Communication Quarterly 25, no. 2 (2011): 285–310. Scheer, Monique. “Are Emotions a Kind of Practice (and Is That What Makes Them Have a History)? A Bourdieuan Approach to Understanding Emotion?” History and Theory 51, no. 2 (2012): 193–220. Silverman, David. Interpreting Qualitative Data (5th ed.). London: SAGE Publications, 2015. Silverman, David. “How Was It for You? The Interview Society and the Irresistible Rise of the (Poorly Analyzed) Interview.” Qualitative Research 17, no. 2 (2017): 144–58. Small, Mario Luis. “How to Conduct a Mixed Methods Study: Recent Trends in a Rapidly Growing Literature.” Annual Review of Sociology 37 (2011): 57–86. Toy-Cronin, Bridgette. “From Litigator to Researcher: The Burdens and Benefits of Moving between the Profession and the Academy.” International Journal of the Legal Profession 24, no. 3 (2016): 341–58. Toy-Cronin, Bridgette. “Leaving Emotion Out: Litigants’ in Person and Judges’ Understanding and Responding to the Role of Emotion in New Zealand Civil Courts.” Oñati Socio-Legal Series 9, no. 5 (2019): 684–701. Tutton, Jordan, Kathy Mack, and Sharyn Roach Anleu. “Judicial Demeanor: Oral Argument in the High Court of Australia.” Justice System Journal 39, no. 3 (2018): 273–99. Wettergren, Åsa. “How Do We Know What They Feel?” In Methods of Exploring Emotions, edited by Helena Flam and Jochem Kleres, 115–24. London: Routledge, 2015. Wettergren, Åsa and Stina Bergman Blix. “Empathy and Objectivity in the Legal Procedure: The Case of Swedish Prosecutors.” Journal of Scandinavian Studies in Criminology and Crime Prevention 17, no. 1 (2015): 19–35.

PART IV LEGAL DOCTRINES

13. Family law and emotion June Carbone and Naomi Cahn

The emotions underlying intimate relationships have been the subject of endless fascination and speculation. They are the subject of poetry and neuroscience, tabloids and dense scholarly treatises. Yet, their relationship to family law varies over time, place and culture, and the relationship has often been a contested one.1 The controversy is less about the issue of whether emotions underlie the legal regulation of the family – of course, they do! – than about the question of which emotions are the “important” ones. Many societies, and a number of modern critics, insist that “love,” however it is defined, is simply too flimsy a reed on which to anchor anything so substantial as the family. Instead, they maintain that the important emotions are those that underlie duty, obligation, commitment, and respect. Others argue that duty, obligation, commitment and respect become meaningful within the family only when they are rooted in love. We maintain in this chapter that a proper understanding of the nature of the emotions underlying family law requires acknowledging that emotions are not simple functions of the autonomic nervous system that produce inevitable heart flutters whenever our one and only true love enters the room. Instead, emotions – all emotions – have a cognitive as well as a physiological component that shapes our understandings of reactions that we “feel.” Within the family, the cognitive element informs our efforts to recognize, act on, and maintain feelings of love. And family law helps to create shared understandings that shape behavior and align emotions tied to sexual attraction with the legal obligations that follow from intimate relationships. This cognitive element changes over time – remaking our legal and ethical understandings of marriage, nonmarital relationships and parenthood. In this chapter, we review the ways that the cognitive understanding of duty, obligation, commitment and respect has changed over time, and the way that it corresponds – or fails to correspond – to feelings of love. We argue that we are now in the midst of a fundamental transformation of the family ideal, from relationships rooted in hierarchical and intrinsically gendered roles to egalitarian relationships rooted in mutual respect, flexibility and trust. As the ideal necessary to nurture feelings of love – and workable family relationships – changes, so too does the legal regulation of marriage, the willingness to acknowledge outlets for sexual expression outside of marriage, and determinations of parental standing, obligation and rights. In examining these developments, this chapter first explores how marriage, as a legal and societal construct, has shifted from a hierarchical emphasis on duty to a more egalitarian emphasis on trust, and how the shift in the sources of duty and commitment correspond to changes in the understanding of the physiological components of love and the legal consequences of marriage and divorce.

See e.g., Clare Huntington, “Postmarital Family Law: A Legal Structure for Nonmarital Families,” Stanford Law Review 67 (2015): 167–240; Susan Bandes and Jeremy Blumenthal, “Emotion and the Law,” Annual Review of Law and Social Science 8 (2012): 161. 1

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198  Research handbook on law and emotion Second, we explore corresponding changes in nonmarriage. As the marital ideal has shifted away from notions of duty rooted in men’s obligation to take responsibility for the consequences of pregnancy, marriage has become optional, with increasing legal recognition of nonmarital family relationships. Nonmarital relations are no longer stigmatized; the Supreme Court and most state legislatures have decriminalized them, and many states recognize the ability of unmarried couples to enter into enforceable contracts. Nonmarriage nonetheless comprises a much less uniform set of relationships than marriage, and the emotions associated with it thus vary considerably not only from emotions associated with marriage but also from one nonmarital relationship to another. Yet, the quest to secure greater legal recognition of nonmarriage often fails to acknowledge how varied the emotions that underlie these relationships are. Historically, reluctance to marry was associated with fear of a commitment to one person at the expense of the opportunity to enter into relationships with others, or a selfish fear of the commitment to provide for others from one’s own resources. Today, the fear of commitment may be broader, and may also include fear of the loss of control over children, the behavior of the other partner, or financial obligations that may threaten the family’s solvency. This means that many, if not most, nonmarital relationships involve contingent rather than committed relationships Third, we consider the emotions associated with parenthood. When adults enter into co-parenting in circumstances where they do not trust each other – or simply do not know each other terribly well – they have reasons to be wary. If they are in love with each other, but do not believe that the relationship will last or can work to their children’s benefit, they may experience a conflict between their concern for the children and their ability to manage the relationship. The same factors that draw a line between committed and contingent adult relationships also influence the emotions that underlie parenting partnerships. We conclude that, while the law of marriage and divorce has changed in tandem with the emotions that correspond to modern marital obligations, the same has not been true for nonmarital relationships. Family law takes an all-or-nothing approach to the legal recognition of family statuses that does not fully accord with the contingent nature of modern family ties and emotions.

LOVE, MARRIAGE, DUTY AND TRUST Many scholars lament the decline in marriage, and criticize the identification of marriage with self-fulfillment.2 They decry an increasing societal emphasis on personal happiness, and argue that it reduces marriage to a vehicle for satisfying individual adult needs for intimacy and satisfaction.3 These scholars derisively refer to the changes as “soul mate marriage” or the “Love Family.” 4 In doing so, they appear to assume that society has reduced the emotions associated with marriage to sexual attraction, but no longer duty or commitment. We disagree. For a summary and critique of such views, see Naomi Cahn, “Alone Together: Law and the Meanings of Marriage by Milton C. Regan, Jr.,” Michigan Law Review 98, n. 6 (2000): 1769–70. 3 David Popenoe and Barbara D. Whitehead, The State of Our Unions: The Social Health of Marriage in America (Piscataway, NJ: National Marriage Project, Rutgers, 1999): 4–6. 4 Popenoe and Whitehead, The State of Our Unions, 4-6. See also Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage?: Man and Woman: A Defense (New York: Encounter Books, 2012), 7. 2

Family law and emotion  199 In this section, we first chart the emotions associated with “love” as a many-splendored thing; second, discuss the changing nature of duty, obligation and commitment; and third, argue that the modern foundation for marriage has become reciprocity and trust. The Emotions that Mediate Intimate Relationships: Sexual Desire, Romantic Love, and Attachment Modern neuroscience has charted how we experience the emotions long associated with intimate partnerships. Central to these emotions is “love,” although researchers debate whether “love” can properly be termed a basic emotion at all.5 Psychologists think of emotions as having two components: physiological arousal and the cognitive labeling of this arousal. In this sense, emotion categories do not necessarily have a fixed cross-cultural definition, “but are rather sociocultural constructions, and even artifacts.”6 Moreover, even within a particular culture, love is not a single type of experience. Scholars, for example, have historically described six types of love that combine different types of arousal with different motivations. These scholars use Latin and Greek words to describe eros, or romantic love; ludus, game-playing love or flirting; storge, or friendship love; pragma, or pragmatic love based on shared interests; mania, or dependent, obsessive love associated with jealousy; and agape, or unconditional, selfless love.7 These categories arguably overlap at a physiological level. The experience of arousal associated with eros and mania may involve the same neurotransmitters, for example, but the cognitive meaning attributed to the experience of each differs substantially; indeed, a principal difference may involve the cognitive ability to control and channel the physiological responses. And agape can involve feelings similar to those involved in both eros and storge. The state of arousal or feelings of physical attraction may thus have different meanings depending on whether they are associated with friendship, flirtation, or commitment. This section will therefore start with an examination of the three principal biological systems that mediate the experience of the emotions associated with love before turning to the cultural constructions of intimate relationships. The first principal biological system involves sexual desire or lust. Researchers find that the levels of testosterone and estrogen in the body may affect not only whether a person desires sex, but what type of partner they find attractive.8 While psychologists disagree about whether sexual desire itself should be considered to be an emotion or an urge, more like hunger or thirst,9 sexual desire is probably like all other emotions: it involves “cognition (you have some

Lubomir Lamy, “Beyond Emotion: Love as an Encounter of Myth and Drive,” Emotion Review 8, no. 2 (2016): 97–110. See also Neel Burton, “What Are Basic Emotions?” Psychology Today, January 7, 2016, https://​www​.psychologytoday​.com/​us/​blog/​hide​-and​-seek/​201601/​what​-are​-basic​-emotions. 6 Lamy, “Beyond Emotion,” 99. 7 Steve Duck, “Attachment and Emotion,” in Human Relationships (London: Sage Publications, 2007), 59, https://​uk​.sagepub​.com/​sites/​default/​files/​upm​-binaries/​12708​_02​_Duck​_Ch​_02​.pdf. 8 Higher levels of testosterone tend to affect both men and women’s sex drives, though not necessarily in identical ways. In addition, estrogen levels fluctuate during a woman’s menstrual cycle also affecting the experience of sexual attraction. See Katherine Wu, “Love, Actually: The Science Behind Lust, Attraction, and Companionship,” Harvard University Science in the News Blog, February 14, 2017, http://​sitn​.hms​.harvard​.edu/​flash/​2017/​love​-actually​-science​-behind​-lust​-attraction​-companionship/​. 9 Aaron Ben-Zeév, “Is Sexual Desire an Emotion?” Psychology Today, November 28, 2008, https://​ www​.psychologytoday​.com/​us/​blog/​in​-the​-name​-love/​200811/​is​-sexual​-desire​-emotion. 5

200  Research handbook on law and emotion information about the desired person), evaluation (you evaluate him positively), motivation (you want to do something with him), and feeling (there are feelings of enjoyment, pleasure, stimulation).”10 Feelings of desire are typically brief. They ebb when sated, but can be recreated.11 And such feelings may reinforce other emotions. The experience of sexual desire for one’s partner, together with regular sexual activity, tends to reinforce feelings of attachment and to increase relationship longevity. The second principal biological system involves romantic love, which tends to be associated with dopamine, norepinephrine, and serotonin.12 This type of love has been compared to “addiction to another human being.”13 Dopamine influences the reward center in the brain, and MRI studies show that love activates the same brain regions as cocaine addiction or binging on sweets.14 Feelings of attraction to another human being can produce intense yearning, obsession, jealously or misery when apart.15 And the emotional highs that often accompany such feelings appear “to turn off regions in our brain that regulate critical thinking, self-awareness, and rational behavior, including parts of the prefrontal cortex.”16 Love may makes us “dumb” – if not blind.17 The intensity of the dopamine-influenced emotions are what many associate in a positive way with “true love” or in a more negative sense with “soul mate marriage.” The problem with these feelings is that they do not necessarily last. Psychologist Dorothy Tennov estimates that romantic love lasts an average of a year and a half to three years.18 Other scientists find that, once a couple starts to see each other regularly, passion subsides in two to three years. A major focus of marriage, therefore, has been how to manage the spouses’ obligations to each other once romance begins to fade. As relationship intensity wanes, the emotions associated with attachment or bonding may become more critical to the survival of the relationship. Vasopressin and oxytocin mediate these emotions,19 which are associated with feelings of warmth, empathy, altruism and trust.20 Oxytocin, produced by the hypothalamus, is released in large quantities not just during sex, but also during breastfeeding and childbirth.21 It is thus involved in the feelings of closeness that follow sexual activity,22 and promotes the bonding with newborns necessary for their survival. In long-term relationships, the presence of these neurotransmitters may be associated with

Ben-Zeév, “Is Sexual Desire an Emotion?” Ben-Zeév, “Is Sexual Desire an Emotion?” 12 Wu, “Love, Actually.” 13 Ben-Zeév, “Is Sexual Desire an Emotion?” 14 Ben-Zeév, “Is Sexual Desire an Emotion?” 15 Ben-Zeév, “Is Sexual Desire an Emotion?” 16 Ben-Zeév, “Is Sexual Desire an Emotion?” 17 Ben-Zeév, “Is Sexual Desire an Emotion?” See also Lamy, “Beyond Emotion,” 99. 18 Dorothy Tennov, Love and Limerance: The Experience of Being in Love (Lanham, MD: Scarborogh House, 1999), 142. 19 See June Carbone and Naomi Cahn, “The Biological Basis of Commitment: Does One Size Fit All?” Women’s Rights Law Reporter 25 (2004): 238. 20 Markus MacGill, “What Is the Link Between Love and Oxytocin?” Medical News Today, September 4, 2017, https://​www​.medicalnewstoday​.com/​articles/​275795​.php. 21 Carbone and Cahn, “The Biological Basis of Commitment.” 22 It may also facilitate reproduction in other ways. See MacGill “What Is the Link Between Love and Oxytocin?” 10 11

Family law and emotion  201 feelings of comfort and contentment, security or anxiety reduction, and attention to the other person’s moods and habit.23 These three systems may operate together, reinforcing the intensity of a particular relationship, or they can operate separately. It is entirely possible, for example, to experience in the same moment sexual desire for person A, romantic love for person B, and longstanding feelings of affection and attachment to person C.24 The experience of “falling in love,” on the other hand, may combine sexual desire for a person, intense dopamine-fueled obsession with that person, and deepening feelings of attachment and companionship.25 These physiological reactions do not by themselves define emotions.26 Instead, societal understandings about the appropriate places for love, and the legal and cultural ordering of intimate relationships, shape the experience of the emotions associated with sexual attraction and connect them to feelings of happiness, longing, guilt, shame and duty. These understandings have changed dramatically over time, changing the nature of the relationship between love and commitment as a legal, moral and emotional construct. The Emotions that Mediate Institutionalized Relationships: Duty, Fidelity, and Commitment The critics who identify current intimate relationships with “self-fulfillment” have a point; modern notions of commitment have changed from dictates imposed by family patriarchs, God’s laws, or government edicts to obligations freely undertaken by the couple. The shift from mandates to mutual consent between equal adults has been centuries in making. Indeed, James Q. Wilson attributes the change to “the long slow emancipation of women,” and traces its start to the recognition of individualism that began in the Enlightenment.27 Over these centuries, the relationships between the emotions thought necessary to successful marriages and the emotions underlying sexual attraction have changed substantially. Before the Enlightenment, arranged marriages were the northwestern European norm. The critical emotions underlying these marriages were duty and obedience. The parents who arranged the marriages thought it a plus if the partners liked each other, but loyalty and sexual fidelity constituted the foundation of marriage.28 And the monks of the period, who agreed that the only legitimate locus for sexuality was within marriage for purposes of procreation, still debated whether even then it was permissible to enjoy it.29

Duck, “Attachment and Emotion.” See, e.g., Lisa M. Diamond, and Janna A. Dickenson. “The Neuroimaging of Love and Desire: Review and Further Directions,” Clinical Neuropsychiatry: Journal of Treatment Evaluation 9, no. 1 (2012): 39–46. (distinguishing between sexual arousal and romantic love); Helen Fisher. “Lust Attraction and Attachment in Mammalian Reproduction.” Human Nature 9, no. 1 (1998): 23–52; Lamy, “Beyond Emotion” (observing that sexual desire and romantic love may overlap). 25 See Ben-Zeév, “Is Sexual Desire an Emotion?” The author also notes that women are more likely to see sexual desire and romantic love as linked than men. 26 Duck, “Attachment and Emotion.” 27 James Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families (New York: Harper Paperback, 2002). 28 Duck, “Attachment and Emotion.” 29 Sean E. Brotherson. “From Partners to Parents: Couples and the Transition to Parenthood.” International Journal of Childbirth Education 22, no. 2 (2007): 7–12. 23 24

202  Research handbook on law and emotion The law of this time period was Ecclesiastical law, and it sought to reinforce religious teachings about sin and sexuality (along with the authority of the Church). Accordingly, while these societies denied the importance of the physiological drives underlying sexual attraction to marriage, they acknowledged their role in other circumstances. The tradition of courtly love, for example, exalted the love of a knight for his lady as an ideal beyond reach. This type of love, called “caritas,” celebrated the knight’s ability to discipline the dopamine-influenced longing for the unattainable as a form of virtue.30 At the same time, these societies outlawed the physical expression of sexuality outside of marriage, including same-sex relationships that had previously been tolerated.31 The result reinforced the association between sexual expression, sin and shame, thus strengthening religious teachings that linked societal order with the assumption of prescribed roles, and the primacy of Ecclesiastical law over private conduct.32 The move away from this system occurred, as Wilson recognized, over the course of the eighteenth century with the shift from arranged unions to companionate marriages based on mutual consent. Martin Luther had laid the foundation for the change by insisting that legal recognition of marriage should follow from the spouses’ commitment to each other rather than from the religious rites that sanctified the union. As the notion of mutual consent took hold, sexual attraction and romantic love became a more important component in the selection of a mate. The more difficult issue involved the question of divorce. If the consent of partners was critical to the new marital ideal, should not the lack of the spouses’ continuing consent, on the basis of the waning of sexual attraction, provide a basis for divorce? The answer lay in remade notions of duty. Sexual relations, after all, carried with them the inevitable risk of pregnancy and women’s vulnerability because of it. The duty underlying entry into a legal marriage therefore became one on the part of each spouse to give each other permanently and unconditionally to the other. Immanuel Kant concluded that, once a relationship progressed to the point of creating vulnerability and dependence, a mutual commitment to preserve the relationship became morally compelled. “These duties include not committing breaches of trust, actively promoting the ends of the other, and cultivating the emotions needed to preserve the relationship.”33 (emphasis added) Over the course of the eighteenth and then the nineteenth centuries, this remade system of marriage gradually provided greater recognition for wives’ independent legal existence, marginally more protection from domestic violence, and greater (if still limited) opportunity for divorce.34 The relationship between husband and wife also changed, from one between superior and subordinate to the illusory equality of the nineteenth century between spouses who operated in complementary spheres. 30 A Guide to the Study of Literature: A Companion Text for Core Studies 6, Landmarks of Literature academic​ [electronic resource] (English Department, Brooklyn College, New York: 2009), http://​ .brooklyn​.cuny​.edu/​english/​melani/​cs6/​guide​.html. 31 William N. Eskridge, Jr. and Darren R. Spedale, Gay Marriage: For Better or For Worse? What We’ve Learned From the Evidence (New York: Oxford University Press, 2006). 32 See, e.g., Ed Rubin, Soul, Self and Society: The New Morality and the Modern State (New York: Oxford University Press, 2015). England passed its first civil sodomy in states in 1533, An Acte for the punishment of the vice of Buggerie (25 Hen. 8 c. 6), during the reign of Henry VII, having previously left the matter to the Ecclesiastical courts. 33 Josefine C. Nauckhoff, “The Role of the Emotions in the Moral Life According to Immanuel Kant,” Publicly Accessible Penn Dissertations, (1994): 1–305, https://​repository​.upenn​.edu/​cgi/​viewcontent​.cgi​ ?article​=​3928​&​context​=​edissertations. 34 Nancy F. Cott, The Bonds of Womanhood: “Women’s Sphere” in New England, 1780–1835 (New Haven, Yale University Press, 1977).

Family law and emotion  203 Marital obligation thus became tied to mutual consent, even as the marital union remained gendered and permanent, and designed to address what was seen as the inevitable dependence that accompanied sexual unions. The Emotions that Mediate Modern Relationships: Equal Respect, Interdependence, and Trust Once spousal selection became associated with romantic love, and divorce became permissible, the issue underlying commitment became how to cultivate the emotions necessary to make modern relationships last. In the twenty-first century, this has required taking into account women’s increased economic independence and the shift in marriage from a relationship premised on hierarchy and obedience to one based on equality and shared decision-making power.35 The changes in the nature of intimate relationships start with a remaking of the marital ideal. While older notions of marriage rested on the intrinsic vulnerability that came from pregnancy, today, reliable contraception and the legalization of abortion allow women to control reproduction, thereby undercutting the legal effort to restrict sex to marriage. Perhaps as critically, men and women’s roles have changed within relationships. At one time, men had nearly exclusive access to the resources necessary to support a family; today, women have dramatically greater, if not yet equal, access to these same resources.36 Even in relationships in which one partner makes substantially more than the other, the family may depend on two incomes to make a go of it.37 And with two incomes, each spouse acquires greater independence and an enhanced ability to leave unhappy unions. The legal treatment of marriage has changed in accordance with these developments. Divorce reform made it easier for either spouse to end unhappy unions, eliminating much of the stigma once associated with fault-based divorce.38 Where wage-earning spouses once enjoyed unilateral control over their individual earnings, the law in most states today gives both spouses joint decision-making authority over marital assets and, if the union ends, an equal division of property and joint authority over the children.39 The result has changed marriage from an institution that fostered dependency to an interdependent union that requires greater cooperation and coordination between the spouses.40 35 Obergefell v. Hodges, 576 U.S. ___ (2015); Daniel L. Carlson, Amanda Miller, Sharon Sassler, and Sarah Hanson, “The Gendered Division of Housework and Couples’ Sexual Relationships: A Re-Examination,” Journal of Marriage and Family 78, no. 4 (2016): 975–95. 36 Indeed, for college graduates, the gendered wage gap has grown since 1990. See Naomi Cahn, June Carbone, and Nancy Levit, “Gender and the Tournament: Reinventing Antidiscrimination Law in an Age of Inequality,” Texas Law Review 96, n. 3 (2018): 425–86. 37 See, e.g., Paul Amato, Alan Booth, David R. Johnson, and Stacy J. Rodgers, Alone Together: How Marriage in America Is Changing (Cambridge: Harvard University Press, 2007); Alissa Quart, Squeezed, (New York: Ecco Press, 2018). 38 A finding of adultery, for example, could stigmatize a woman and justify denying her the support she needed to survive after a divorce along with any contact with her children. 39 See, e.g., Orr v. Orr, 440 U.S. 268 (1979) (striking down an Alabama alimony statute that allowed for such awards only to women). 40 See, e.g., June Carbone and Naomi Cahn, “Whither/Wither Alimony?” Texas Law Review 93, no. 1 (2015): 925–52 (reviewing Cynthia Lee Starnes, The Marriage Buyout: The Troubled Trajectory of U.S. Alimony Law (2014)); Douglas NeJaime, “Windsor’s Right to Marry,” Yale Law Journal Online

204  Research handbook on law and emotion The trajectory of intimate relationships has changed in accordance with these developments. For college graduates, it has contributed to family formation at substantially later ages.41 This means that by the time well-educated Americans are ready to make family commitments, they are mature adults, often with two independent sources of income.42 They enter into relationships expecting both partners to contribute to the family as needed, and both to invest heavily in the relationship with the children. This makes mutual respect, role flexibility, and trust central to relationship stability. The ability to divorce without fault makes it easier to walk away from marriage, and this creates new forms of vulnerability. In the older system, men who invested heavily in their children might be emotionally devastated if the wife chose to divorce and controlled access to the children thereafter. Today’s custody system seeks to encourage two-parent involvement before and after a break-up, and thus rewards men (regardless of their actual emotional investment in their relationship with their children), while curtailing what had been mothers’ frequently unilateral decision-making authority. In addition, although no-fault legal reforms treat spousal investments in the accumulation of assets over the course of a marriage as presumptively equal, they impose fewer responsibilities once a marriage ends. As a result, dependent spouses who quit their own jobs to take on family responsibilities become more vulnerable at divorce. These changes alter the nature of marital commitments. The much longer period from the beginning of sexual activity to family formation separates the different emotions involved in intimate unions from the nature of the commitments partners make to each other. A young adult may experience sexual desire for a series of partners without romantic love or commitment. Couples may also fall in love, move in together, begin to bond, and still make no lasting commitments as the excitement of romantic love builds and then wanes.43 Instead, the willingness to make a longer-term commitment – one that includes a determination to support the emotions that further a long-lasting relationship – tends to involve both love and more pragmatic concerns. Among those concerns is the capacity for partnership. Both men and women today prefer egalitarian relationships, and express reluctance to commit to a partner that they believe they will have to support.44 Since 1960, the percentage of men and women who say that income is an important factor in selecting a spouse has increased, particularly dramatically for men.45 Two incomes give couples greater security and flexibility in meeting family needs and contributes to spouses’ mutual respect for each other. 123 (2013): 244 (stating that marriage is now associated with “adult romantic affiliation, emotional and economic interdependence”). 41 Francesco C. Billari and Aart. C. Liefbroer. “Why Still Marry? The Role of Feelings in the Persistence of Marriage as an Institution.” The British Journal of Sociology 67, no. 3 (2016): 516–40.  42 June Carbone and Naomi Cahn, “Nonmarriage,” Maryland Law Review 76, no. 1 (2016): 55–121, at 91 (marriage has “become a union for the financially stable and mature.”) 43 See, e.g., Simmons v. Samulewicz, 304 P.3d 648 (Haw. Ct. App. 2013) (describing a relationship that grows apart as the partners’ respective financial circumstances change). 44 Kathleen Gerson, The Unfinished Revolution: Coming of Age in a New Era of Gender, Work, and Family 11 (Oxford: Oxford University Press, 2010) (four-fifths of women and two-thirds of men surveyed indicate that they want egalitarian relationships), Gerson, The Unfinished Revolution, 72 (even self-reliant women are reluctant to shoulder the entire economic burden on their own). 45 David M. Buss, Todd K. Shakelford, Lee A. Kirkpatrick, and Randy J. Larsen, “A Half Century of Mate Preferences: The Cultural Evolution of Values,” Journal of Marriage and Family 63, no. 2 (May 2001): 491.

Family law and emotion  205 For the partners involved, managing a relationship premised on equality involves different emotions from managing one based on hierarchy or power.46 John Gottman, the “dean of relationship researchers,” explains that equal power in a relationship is important to its longevity.47 In contrast, the exercise of disproportionate power in a relationship changes brain function. The more powerful party, who may experience a dopamine rush from the exercise of power, is likely to become more impulsive and less sensitive to the needs and emotions of the weaker party, and the weaker party may respond with greater attention to perceived threats, resentment, and more anxiety and depression.48 Both respond with emotional disengagement from each other, weakening the companionate bonds of the relationship. Maintaining equal respect, a sense of fairness in the allocation of relationship responsibilities, and an ability to engage with each other is thus an important component of relationships that can be expected to last in an era of no-fault divorce.49 These practical realities affect willingness to marry. Young couples who expect to be better off in the future – or who are simply uncertain about their own and their partner’s prospects – may defer commitment until they have achieved at least a measure of financial security.50 This leads intimate partners, even those who may have fallen in love and moved in together, to express reluctance about stronger commitments, and this reluctance may vary with class and gender. Family law, in its move towards shared custody and equitable distribution of marital property upon divorce, increasing intestacy shares for surviving spouses, and civil and criminal prohibitions against domestic violence, recognizes the changed emotions underlying marriage. It also changes the reasons for choosing not to marry.

NONMARRIAGE AND EMOTION: CONTINGENT RELATIONSHIPS AND THE LACK OF TRUST The law continues to reinforce shared understandings among spouses. Non-marital relationships, however, range from ones that are essentially equivalent to marriage to ones that are temporary arrangements of convenience. These different types of relationships may involve different emotions. Some nonmarital relationships are equivalent to marriage; they just involve couples who cannot marry, hesitate to do so because of a potential loss of benefits, or choose not to marry because they do not believe in the institution.51 Other nonmarital relationships are matters of convenience. An intimate couple, with no lasting commitment to each

46 Hara Estroff Marano, “Love and Power,” Psychology Today, January 24, 2018, https://​www​ .psychologytoday​.com/​us/​articles/​201401/​love​-and​-power, accessed January 13, 2021. 47 Marano, “Love and Power.” 48 Marano, “Love and Power.” 49 Marano, “Love and Power.” 50 See, e.g., Linda Burton and Belinda M. Tucker, “Romantic Unions in an Era of Uncertainty: A Post-Moynihan Perspective on African American Women and Marriage,” Annals of the American Academy of Political and Social Science 621, no. 1 (2009): 132–48. 51 See, e.g., Erez Aloni, “Deprivative Recognition,” UCLA Law Review 61 (2014): 1285 (discussing “the potential financial benefits of nonrecognition”); Kaiponanea T. Matsumura, “A Right Not to Marry,” Fordham Law Review 84, no. 4 (2016): 1515 (explaining that people may not marry because of “legal consequence and personal beliefs”).

206  Research handbook on law and emotion other, may choose to live together to reduce expenses without necessarily feeling love or any type of commitment.52 In between, a large number of cohabitants choose not to marry because they do not believe that they can achieve the circumstances that make interdependence, mutual respect, and trust realistic. These couples may not even necessarily agree on what they want or expect from their relationship. Cohabitants differ not only from married couples but from each other in ways that reflect both the lack of institutionalized understandings about their relationships and gender differences in how they approach them. Many critics describe these couples as “drifting” into relationships, without bright lines demarcating committed from more contingent relationships.53 The partners may also have good reasons to limit their emotional investment in the relationship. In managing contingent relationships, men are more likely to distinguish physical attraction from emotional involvement. Both men and women, however, believe that marriage is about the combination of the two, and husbands and wives are equally likely to say that they are in love with each other. Among cohabitants, however, males are significantly less likely than cohabiting females to report that they “love . . . [their] partner a lot” or to view the relationship as a committed one.54 Women remain more reluctant to separate sexual desire from emotional engagement. Empirical research shows that cohabiting couples differ by gender and class in how they evaluate the prospects for a relationship based on mutual respect. Among cohabitants in their 20s who have completed at least some college, for example, 68 percent of women but only 46 percent of the men expect to marry their current partner.55 Better-educated men are more likely to report concerns about relationships limiting their future opportunities, and to fear that a commitment to their current partner may hold them back.56 These men (and some women) may separate their current interest in sex from what they see as true romantic love or the kind of unconditional commitment they hope to extend to someone else in the future. Women may also be wary of commitment, but are more likely to express concerns about a partner who may take them down. Low-income women, in particular, report concern about a commitment to a financially unreliable man;57 these women fear that such commitments may threaten the resources on which they depend to take care of themselves and their children.58 Indeed, women generally are more likely than men to report that they will not marry a partner 52 Sharon Sassler and Amanda J. Miller, “Waiting to Be Asked: Gender, Power, and Relationship Progression Among Cohabiting Couples,” Journal of Family Issues 32, no. 4 (2011): 491. 53 Sawhill, Isabel V., Generation Unbound: Drifting into Sex and Parenthood Without Marriage (Washington D.C.: Brookings Institute Press, 2013). 54 Michael S. Pollard and Kathleen M. Harris, “Cohabitation and Marriage Intensity: Consolidation, Intimacy, and Commitment,” RAND Labor and Population 13, Working Paper No. WR-1001 (2013), http://​ssrn​.com/​abstract​=​2284457. 55 Kay Hymowitz, Jason S. Carroll, W. Bradford Wilcox, and Kelleen Kaye, Knot Yet: The Benefits and Costs of Delayed Marriage in America (Charlottesville: National Marriage Project, 2013): 28. 56 Gerson, The Unfinished Revolution: Coming of Age in a New Era of Gender, Work, and Family, 172. 57 Amanda J. Miller and Sharon Sassler, “The Construction of Gender Among Working-Class Cohabiting Couples,” Qualitative Sociology 35, no.4 (2012): 443 (indicating that women who were the primary wage-earners were more reluctant to marry). 58 Cynthia G. Bowman, “Social Science and Legal Policy: The Case of Heterosexual Cohabitation,” Cornell Journal of Law and Family Studies 9 (2007): 11.

Family law and emotion  207 who cannot hold a steady job.59 Studies of cohabitants in between the ages of 18 and 29 show that, among those who have not graduated from high school, the gendered responses are the opposite of those with some college, with fewer women than men saying that they expect to marry their current partner.60 Contingent relationships therefore differ systematically from committed ones in ways that reflect their prospects for permanency, and for nurturing the emotions associated with love and attachment.

PARENTS AND CHILDREN: RECONFIGURING THE EMOTIONAL TRIANGLE Less stable adult relationships have also wrought transformations in the emotional relationships between parents and children. Historically, fatherhood has been described as a “package deal,” in which a father’s contact with the child was legally and practically contingent on his relationship with the mother.61 The principal way of establishing paternity was through the marital presumption, and a father who did not marry the mother forfeited his right to a relationship with the child. Today, a higher percentage of parents decide to parent apart, in a variety of relationships that may include not only two parents who are present at the time of the child’s birth, but include a changing mix of adults who may engage in parenting over the course of the child’s minority. Parent-like relationships nonetheless continue to have “deep and lasting impacts on the physical, emotional and cognitive development of a child.”62 The emotional ideal is two – or more – adults who support each other in their engagement with the child, and who model the ability to resolve conflicts amicably.63 The challenge is determining what happens when the parents cannot cooperate sufficiently to work things out on their own. Intense parental conflict harms children; yet, children are better off if parents engaged in low-level conflict stay together. Changing household composition, frequent moves, and school transfers – all of which tend to follow break-ups – affect children’s feelings of security, stability and emotional attachment.

59 Wendy Wang and Kim Parker, “Record Share of Americans Have Never Married” (Washington D.C.: Pew Research Center, September 24, 2014), http://​www​.pewsocialtrends​.org/​2014/​09/​24/​record​ -share​-of​-americans​-have​-never​-married/​, accessed January 13, 2021. 60 Hymowitz, Knot Yet. See also Amanda J. Miller, Sharon Sassler, and Dela Kusi-Appouh, “The Specter of Divorce: Views From Working- and Middle-Class Cohabitors,” Family Relations 60, no. 5 (2011): 613 (observing that “[w]orking-class cohabitors—particularly the women—were more than twice as likely to express concerns regarding how hard marriage was to exit than were middle-class respondents, emphasizing the legal and financial challenges of unraveling a marriage”). 61 Laura Tach, Ronald Mincy, and Kathyrn Edin. “Parenting as a ‘Package Deal’: Relationships, Fertility, and Nonresident Father Involvement Among Unmarried Parents.” Demography 47, no. 1 (2010): 181–204. 62 Aming’a Robert Maina and Kisilu Kitainge, “A Review of the Effects of Mother-Father Relationship on Academic Performance of Students.” Arts and Social Sciences Journal 9, no. 2 (2018): 339. 63 Anne McMunn, Peter Martin, Yvonne Kelly, and Amanda Sacker, “Fathers’ Involvement: Correlates and Consequences for Child Socioemotional Behavior in the United Kingdom,” Journal of Family Issues 38, no. 8 (2017): 1109–131 (generally finding advantages from father involvement, but indicating that mother’s involvement matter more for reading scores).

208  Research handbook on law and emotion Managing parental relationships in the context of a shifting variety of relationships is therefore challenging, and the patterns governing children’s lives follow the shifts in adult relationships. College graduates typically form families later in life, and have planned children within committed relationships. Divorce rates in these families have declined since the early 90s, and the time both parents spend with their children has increased.64 The flexibility and trust that tends to underlie today’s committed relationships also tend to support stable relationships with children. Poorer and unmarried women’s pregnancies are more likely to be unplanned.65 Couples often respond to pregnancy by moving in together and trying to make it as a family.66 In these circumstances, the partners may not know each other terribly well, and do not necessarily have shared role expectations about their relationship.67 While marriage is an institution based on a permanent and unqualified commitment to the other partner, unmarried couples report less commitment to the other person, and attribute less emotional intensity to the relationship,68 perhaps for good reason. Domestic violence is the single most common reason poor women give for breaking up with the fathers of their children,69 and a new study of young women in Flint, Michigan found that violent relationships are more likely to result in unplanned pregnancy.70 The presence of domestic violence in the family, even if the violence is not aimed at the children, may have lifelong negative consequences on their emotional development and their propensity to commit violence as adults. Other concerns arise from the contingent nature of the relationships. Edin and Kefalas found that tensions over unfaithfulness constituted the second most common reason poor women gave for ending relationships with the fathers of their children. In circumstances where mothers doubt the longevity of their relationships, they may be less likely to encourage the development of the father’s attachment to the child for understandable reasons.71 And mothers become more likely to cut off contact with the fathers if they have entered into new relationships themselves.72

64 Greg J. Duncan and Richard Murnane, Whither Opportunity? Rising Inequality, Schools, and Children's Life Chances (New York: Russell Sage Foundation, 2011). 65 See Guttmacher Institute, Unplanned Pregnancy in the United States (New York: Guttmacher Institute, 2019), https://​www​.guttmacher​.org/​fact​-sheet/​unintended​-pregnancy​-united​-states. 66 Heather Rackin and Christina M. Gibson-Davis, “The Role of Pre- and Postconception Relationships for First-Time Parents,” Journal of Marriage and Family 74, no. 3 (2012): 527 (documenting cohabitation as response to, rather than a cause of, pregnancy). 67 Rackin and Gibson-Davis, “The Role of Pre- and Post-Conception” (documenting cohabitation as response to, rather than a cause of, pregnancy); see also Edin, Kathryn and Timothy J. Nelson, Doing the Best I Can: Fatherhood in the Inner City (Los Angeles: University of California Press, 2013): 89 (explaining that in poor communities parents often do not know each other very well at the time a woman becomes pregnant). 68 Pollard, “Cohabitation and Marriage Intensity: Consolidation, Intimacy, and Commitment,” 14. 69 Edin, Doing the Best I Can: Fatherhood in the Inner City. 70 Jennifer Barber, Yasamin Kusunoki, Heather Gatny, and Robert Melendez, “The Relationship Context of Young Pregnancies,” Journal of Law and Inequality 35, no. 2 (2017): 175–97. 71 See Huntington, “Postmarital Family Law” (favoring greater emphasis on shared custody for unmarried couples). 72 Katharine K. Baker, “Bargaining or Biology? The History and Future of Paternity Law and Parental Status,” Cornell Journal of Law and Public Policy 14, no. 1 (Fall 2014): 37.

Family law and emotion  209 Finally, the presence of children exacerbates couples’ financial tensions, and some parents may feel that commitment to a partner threatens the resources they have for the children. This is particularly true because while working class Americans tend to have more traditional roles expectations that middle-class Americans, working-class men have more difficulty meeting breadwinner expectations. Among families with dual earners, the wife earns more than the husband in 70 percent of marriages in the bottom quintile of families in comparison with 34 percent of wives in families with incomes in the top 20 percent.73 Difficulty in dealing with day-to-day expenses compounds relationship tensions as debt has risen and savings are low, with 40 percent of all Americans having less than $400 on hand to deal with unexpected expenses. This can mean difficulty paying speeding tickets, auto repairs, or medical expenses. Yet, the lack of a car or missed days of work can result in loss of a job. Given the unstable nature of these relationships, the social and emotional meaning of fatherhood has also changed. Custody law grants mothers and fathers equal rights even where one parent has assumed the primary responsibility for the child, and the two parents do not have a close or cooperative relationship. The allocation of rights therefore conflicts with the parents’ respective emotional investments in their children. This is a story of divergence between actual emotions and the law’s assumption that both parents have – or should have – equal emotional ties to their children. Mothers, who by virtue of pregnancy and childbirth, establish the initial emotional bond with the child, are more likely to encourage development of strong bonds with a second parent (who may or may not have a biological connection to the child) if they trust the person, and expect their emotional and material contributions to the child to continue.74 Biological fathers are also more likely to establish paternal relationships if they have an ongoing relationship with the mother at the time of the birth.75 Yet it is becoming easier for fathers to establish paternity and gain custodial responsibilities, regardless of their emotional contributions. And some states are moving toward recognizing additional adults as legal parents, complicating the allocation of custodial time in ways that may, but more likely will not, correspond to the child’s existing emotional bonds with adults.76 In addition, continuing the parental relationships requires managing each of the parent’s new relationships. Community norms assist in this process by signaling how to maintain appropriate relationships. African-American fathers, for example, are more likely to remain involved with their children than white fathers after the intimate relationship with the mother ends.77 Part of the reason is that community norms that encourage biological fathers to forge Sarah J. Glynn, The New Breadwinners: 2010 Update (Washington D.C.: Center for American Progress, 2012), https://​www​.americanprogress​.org/​issues/​labor/​report/​2012/​04/​16/​11377/​the​-new​ -breadwinners​-2010​-update/​, last accessed January 13, 2021. 74 See Nancy E. Dowd, Redefining Fatherhood (New York: New York University Press, 2000). Sociologists have found that the mothers valued fathers’ contributions not by the amount of financial support, but by non-economic factors, such as role modeling. See, e.g., Maureen R. Waller, “Viewing Low-Income Fathers’ Ties to Families Through a Cultural Lens: Insights for Research and Policy,” Annals of American Academy of Politics and Social Sciences 629, no. 1 (2010): 109. 75 See Ronald Mincy, Irwin Garfinkel, and Lenna Nepomnyaschy, “In-Hospital Paternity Establishment and Father Involvement in Fragile Families,” Journal of Marriage and Family 67 (2005): 615. 76 June Carbone and Naomi Cahn, “Parents, Babies, and More Parents,” Chicago-Kent Law Review 92, no. 1 (2017): 9–53. 77 Marcia J. Carlson, Sara S. McLanahan, and Jeanne Brooks-Gunn, “Coparenting and Nonresident Fathers' Involvement with Young Children After a Nonmarital Birth.” Demography 45, n. 2 (2008): 73

210  Research handbook on law and emotion ties with their children that do not depend on the father’s relationship with the mother. Shared community expectations about the biological father’s involvement may help to defuse the new partner’s jealousy.78 In most communities, the mother assumes the primary parental role in nonmarital relationships. Scholars have criticized these arrangements as “gatekeeping” that excludes men who could be effective fathers from their children’s lives.79 Yet, mothers routinely do develop the primary emotional attachment to children, and determine whether a second parent will be included in the child’s life. Marital ideals, enforced through custody determinations, emphasize a mutual obligation to encourage both spouses’ bonds with the children born into the union. Unmarried relationships sometimes involve similar expectations, but commonly involve circumstances where a commitment to a second parent may threaten a child’s well-being because of violence, instability or financial stress. The fact that most parents wish to bond with their children and will do so if given the chance does not resolve the question of how to manage the triangular relationships that come from parenting apart.

CONCLUSION Both married and unmarried relationships are more likely to last if they are based on love, respect and trust. This raises the question of whether the legal institution of marriage itself makes a difference in these relationships. Certainly, one of the differences between married and unmarried couples is that married couples have made a decision to commit to each other, and unmarried typically have not, often for the reasons suggested in this chapter. Accordingly, the selection effects between those who marry and those who do not swamp any effect that marriage itself is likely to cause. Same-sex couples nonetheless provide interesting insight into the issue. One study comparing married heterosexual couples with same-sex couples who were married or in marriage-like relationships found no statistical differences between the two.80 Marriage appeared to make a difference in the longevity of these relationships, but did not produce differences between same-sex couples in committed relationships who could not marry and those who could.81 Another study examining couples whose civil unions were recognized in Vermont found that, for many, “the civil union was more important than they had expected. They described increased legitimacy, security, stability, and commitment, and viewed the union as a legal barrier to breaking up.”82 Part of the benefit came from public recognition for couples who had previously experienced stigma and ostracism. Some of the benefits, however, also came

461–88; Calvina Z. Ellerbe, Jerrett B. Jones, and Marcia J. Carlson, “Nonresident Fathers’ Involvement After a Nonmarital Birth: Exploring Differences by Race/Ethnicity.” Bendheim-Thoman Center for Research on Child Wellbeing, Working Paper WP14-07-FF (2014). 78 Duck, “Attachment and Emotion.” 79 Huntington, “Postmarital Family Law.” 80 Michael J. Rosenfled, “Couple Longevity in the Era of Same-Sex Marriage in the U.S.,” Journal of Marriage and Family 76, (2014): 905–918, https://​web​.stanford​.edu/​~mrosenfe/​Rosenfeld​_Couple​ _Longevity​_Forthcoming​_JMF​.pdf, accessed January 13, 2021. 81 Rosenfled, “Couple Longevity.” 82 Esther D. Rothblum, Kimberly F. Balsam, and Sondra E. Solomon, “The Longest ‘Legal’ U.S. Same-Sex Couples Reflect on Their Relationships,” Journal of Social Issues 67, no. 2 (2011): 302–15.

Family law and emotion  211 from the legal commitment the couples had made to each other, a commitment that provided greater certainty and security.83 Others thought the legal recognition did not make that much difference, particularly where their families did not recognize it or where the couple had made a commitment to each other much earlier that they considered more meaningful.84 These changes in the sources of duty and commitment reflect the centuries-long shift from fixed roles – gendered and otherwise – to greater individualism. They do not reflect a “soulmate” conception of marriage that requires staying together only so long as it feels good. Instead, it is the emotional nature of obligation that has changed. Relationships no longer require an obligation to perform a societally defined role or set of obligations. Instead, the emotions underlying relationships now reflect the commitment the partners make to each other. To be meaningful and enduring, these obligations must embody equal respect and trust; formal recognition of the relationship, the possession of an official license, and a public ceremony before family and friends reinforce the serious nature of the undertaking. Couples who do not believe that their relationships can live up to such principles may be understandably wary of commitment. The important divide has therefore become not so much between married and unmarried relationships but between those relationships founded on unqualified commitment versus those based on more contingent obligations. The presence of children further heightens that divide. In an era when either partner can dissolve a relationship at will, open ended commitment requires the conviction that the other party is a worthy life partners. Discussions of the relationship between emotions and family law founders because of the failure to acknowledge the distinction – and different emotions – between committed and contingent relationships. Family law has sought to promote equality between men and women, without acknowledging the importance of equal respect to fair outcomes and that this respect is lacking in many nonmarital (and some marital) relationships. And it has tried to impose a new obligation – one to encourage the inclusion of the other biological parent in the child’s life – without considering the practical problems that separate couples in contingent rather than committed relationships. As a result, while family law has been remade to reflect the emotions remaking marriage, it has a long way to go before the law and emotions that underlie unmarried relationships can be brought back into sync. Those who would impose legal marriage or legal parenthood on all intimate partners are missing the fact that nonmarriage is a rational response guiding physiological systems, not irrational emotions. Promoting relationships based on equal respect is at odds with equal treatment of all relationships and all parents.

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83 Rothblum, Balsam, and Solomon, “The Longest ‘Legal’ U.S. Same-Sex Couples Reflect on Their Relationships,” at 307. One couple explained that “Having a civil union has been good for us. Relationships can be hard at times and having at least one formal barrier helps make you think about splitting up.” 84 Rothblum, Balsam, and Solomon, “The Longest ‘Legal’ U.S. Same-Sex Couples Reflect on Their Relationships,” at 309–10.

212  Research handbook on law and emotion Amato, Paul, Alan Booth, David R. Johnson, and Stacy J. Rodgers. Alone Together: How Marriage in America Is Changing. Cambridge: Harvard University Press, 2007. Aming’a, Robert M. and Kisilu Kitainge. “A Review of the Effects of Mother-Father Relationship on Academic Performance of Students.” Arts and Social Sciences Journal 9, no. 2 (2018): 338–42. Baker, Katharine K. “Bargaining or Biology? The History and Future of Paternity Law and Parental Status.” Cornell Journal of Law and Public Policy 14, no. 1 (Fall 2014): 1–69. Bandes, Susan and Jeremy Blumenthal. “Emotion and the Law.” Annual Review of Law and Social Science 8, (2012): 161–83. Barber, Jennifer, Yasamin Kusunoki, Heather Gatny, and Robert Melendez. “The Relationship Context of Young Pregnancies.” Journal of Law and Inequality 35, no. 2 (2017): 175–97. Ben-Zeév, Aaron. “Is Sexual Desire an Emotion?” Psychology Today, November 28, 2008. https://​www​ .psychologytoday​.com/​us/​blog/​in​-the​-name​-love/​200811/​is​-sexual​-desire​-emotion. Billari, Francesco. C. and Aart. C. Liefbroer. “Why Still Marry? The Role of Feelings in the Persistence of Marriage as an Institution.” The British Journal of Sociology 67, no. 3 (2016): 516–40. Bowman, Cynthia G. “Social Science and Legal Policy: The Case of Heterosexual Cohabitation.” Cornell Journal of Law and Family Studies 9 (2007): 1–51. Brotherson, Sean E. “From Partners to Parents: Couples and the Transition to Parenthood.” International Journal of Childbirth Education 22, no. 2 (2007): 7–12. Burton, Linda and Belinda M. Tucker. “Romantic Unions in an Era of Uncertainty: A Post-Moynihan Perspective on African American Women and Marriage.” Annals of the American Academy of Political and Social Science 621, no. 1 (2009): 132–48. www​ Burton, Neel. “What Are Basic Emotions?” Psychology Today, January 7, 2016. https://​ .psychologytoday​.com/​us/​blog/​hide​-and​-seek/​201601/​what​-are​-basic​-emotions. Buss, David M., Todd K. Shakelford, Lee A. Kirkpatrick, and Randy J. Larsen. “A Half Century of Mate Preferences: The Cultural Evolution of Values.” Journal of Marriage and Family 63, no. 2 (May 2001): 491–503. Cahn, Naomi. “Alone Together: Law and the Meanings of Marriage by Milton C. Regan, Jr.” Michigan Law Review 98, no. 6 (2000): 1766–96. Cahn, Naomi, June Carbone, and Nancy Levit. “Gender and the Tournament: Reinventing Antidiscrimination Law in an Age of Inequality.” Texas Law Review 96, no. 3 (2018): 425–486. Carbone, June. From Partners to Parents: The Second Revolution in Family Law. New York: Columbia University Press, 2000. Carbone, June and Naomi Cahn.  “The Biological Basis of Commitment: Does One Size Fit All?” Women’s Rights Law Reporter 25 (2004): 223–58. Carbone, June and Naomi Cahn, “Nonmarriage,” Maryland Law Review 76, no. 1 (2016): 55–121. Carbone, June and Naomi Cahn. “Parents, Babies, and More Parents.” Chicago-Kent Law Review 92, no. 1 (2017): 9–53. Carbone, June and Naomi Cahn. “Whither/Wither Alimony?” Texas Law Review 93, no. 1 (2015): 925–52. Carlson, Daniel L., Amanda Miller, Sharon Sassler, and Sarah Hanson. “The Gendered Division of Housework and Couples’ Sexual Relationships: A Re-Examination.” Journal of Marriage and Family 78, no. 4 (2016): 975–95. Carlson, Marcia J., Sara S. McLanahan, and Jeanne Brooks-Gunn. “Coparenting and Nonresident Fathers' Involvement with Young Children After a Nonmarital Birth.” Demography 45, no. 2 (2008): 461–88. Cott, Nancy F. The Bonds of Womanhood: “Women’s Sphere” in New England, 1780–1835. New Haven, Yale University Press, 1977. Diamond, Lisa M., and Janna A. Dickenson. “The Neuroimaging of Love and Desire: Review and Further Directions.” Clinical Neuropsychiatry: Journal of Treatment Evaluation 9, no. 1 (2012): 39–46. Dowd, Nancy E. Redefining Fatherhood. New York: NYU Press. 2000. Duck, Steven. “Attachment and Emotion,” in Human Relationships (4th ed.), 40–71. London: Sage Publications, 2007. Duncan, Greg J. and Richard Murnane. Whither Opportunity? Rising Inequality, Schools, and Children's Life Chances. New York: Russell Sage Foundation, 2011.

Family law and emotion  213 Edin, Kathryn and Timothy J. Nelson. Doing the Best I Can: Fatherhood in the Inner City. Los Angeles: University of California Press, 2013. Ellerbe, Calvina Z., Jerrett B. Jones, and Marcia J. Carlson. “Nonresident Fathers’ Involvement After a Nonmarital Birth: Exploring Differences by Race/Ethnicity.” Bendheim-Thoman Center for Research on Child Wellbeing, Working Paper WP14-07-FF (2014). Eskridge, William N. Jr. and Darren R. Spedale, Gay Marriage: For Better or For Worse? What We’ve Learned From the Evidence (New York: Oxford University Press, 2006). The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment New York: The Free Press, 2001. Fisher, Helen. “Lust Attraction and Attachment in Mammalian Reproduction.” Human Nature 9, no. 1 (1998): 23–52. Gerson, Kathleen. The Unfinished Revolution: Coming of Age in a New Era of Gender, Work, and Family. Oxford: Oxford University Press, 2010. Girgis, Sherif, Ryan T. Anderson, Robert P. George. What Is Marriage?: Man and Woman: A Defense. New York: Encounter Books, 2012. Glynn, Sarah J. The New Breadwinners: 2010 Update. Washington D.C.: Center for American Progress, 2012. https://​www​.americanprogress​.org/​issues/​labor/​report/​2012/​04/​16/​11377/​the​-new​ -breadwinners​-2010​-update/​. Guttmacher Institute. Unplanned Pregnancy in the United States. New York: Guttmacher Institute, 2019. https://​www​.guttmacher​.org/​fact​-sheet/​unintended​-pregnancy​-united​-states. Huntington, Clare. “Postmarital Family Law: A Legal Structure for Nonmarital Families.” Stanford Law Review 67 (2015): 167–240. Hymowitz, Kay, Jason S. Carroll, W. Bradford Wilcox, and Kelleen Kaye. Knot Yet: The Benefits and Costs of Delayed Marriage in America. Charlottesville: National Marriage Project, 2013. http://​nat​ ionalmarri​ageproject​.org/​wp​-content/​uploads/​2013/​03/​KnotYet​-FinalForWeb​.pdf. Lamy, Lubomir. “Beyond Emotion: Love as an Encounter of Myth and Drive.” Emotion Review 8, no. 2 (2016): 97–110. Lapp, Amber. “How Class Influences Pregnancy Ambivalence.” Institute for Family Studies, April 27, 2015. http://​family​-studies​.org/​how​-class​-influences​-pregnancy​-ambivalence/​; MacGill, Markus. “What Is the Link Between Love and Oxytocin?” Medical News Today. September 4, 2017. https://​www​.medicalnewstoday​.com/​articles/​275795​.php. Marano, Hara Estroff. “Love and Power.” Psychology Today, January 24, 2018. https://​ www​ .psychologytoday​.com/​us/​articles/​201401/​love​-and​-power. Matsumura, Kaiponanea T. “A Right Not to Marry.” Fordham Law Review 84, no. 4 (2016): 1509–58. McMunn, Anne, Peter Martin, Yvonne Kelly, and Amanda Sacker. “Fathers’ Involvement: Correlates and Consequences for Child Socioemotional Behavior in the United Kingdom.” Journal of Family Issues 38, no. 8 (2017): 1109–31. Miller, Amanda J. and Sharon Sassler. “The Construction of Gender Among Working-Class Cohabiting Couples.” Qualitative Sociology 35, no.4 (2012): 427–46. Miller, Amanda J., Sharon Sassler, and Dela Kusi-Appouh. “The Specter of Divorce: Views from Working- and Middle-Class Cohabitors.” Family Relations 60, no. 5 (2011): 602–16. Mincy, Ronald, Irwin Garfinkel, and Lenna Nepomnyaschy. “In-Hospital Paternity Establishment and Father Involvement in Fragile Families.” Journal of Marriage and Family 67 (2005): 611–26. Nauckhoff, Josefine C. "The Role of the Emotions in the Moral Life According to Immanuel Kant." Publicly Accessible Penn Dissertations (1994): 1–305. NeJaime, Douglas. “Windsor’s Right to Marry.” Yale Law Journal Online 123 (2013): 219–49. Obergefell v. Hodges, 576 U.S. ___ (2015). Orr v. Orr, 440 U.S. 268 (1979). Pollard, Michael S. and Kathleen M. Harris. “Cohabitation and Marriage Intensity: Consolidation, Intimacy, and Commitment.” RAND Labor and Population 13, Working Paper No. WR-1001 (2013). http://​ssrno​.com/​abstract​=​2284457. Popenoe, David and Barbara D. Whitehead. The State of Our Unions: The Social Health of Marriage in America. Piscataway, NJ: National Marriage Project, Rutgers, 1999. Quart, Alissa. Squeezed. New York: Ecco Press, 2018.

214  Research handbook on law and emotion Rackin, Heather and Christina M. Gibson-Davis. “The Role of Pre- and Postconception Relationships for First-Time Parents.” Journal of Marriage and Family 74, no. 3 (2012): 526–39. Rosenfled, Michael J. “Couple Longevity in the Era of Same-Sex Marriage in the U.S.” Journal of Marriage and Family 76 (2014): 905–18. https://​web​.stanford​.edu/​~mrosenfe/​Rosenfeld​_Couple​ _Longevity​_Forthcoming​_JMF​.pdf. Rothblum, Esther D., Kimberly F. Balsam, and Sondra E. Solomon. “The Longest “Legal” U.S. Same-Sex Couples Reflect on Their Relationships.” Journal of Social Issues 67, no. 2 (2011): 302–15. Rubin, Edward. Soul, Self and Society: The New Morality and the Modern State. New York: Oxford University Press, 2015. Sassler, Sharon and Amanda J. Miller, “Waiting to Be Asked: Gender, Power, and Relationship Progression Among Cohabiting Couples.” Journal of Family Issues 32, no. 4 (2011): 482–501. Sawhill, Isabel V. Generation Unbound: Drifting Into Sex and Parenthood Without Marriage. Washington D.C.: Brookings Institute Press, 2013. Simmons v. Samulewicz, 304 P.3d 648 (Haw. Ct. App. 2013). Tach, Laura, Ronald Mincy, and Kathyrn Edin. “Parenting as a ‘Package Deal’: Relationships, Fertility, and Nonresident Father Involvement Among Unmarried Parents. Demography 47, no. 1 (2010): 181–204. Tennov, Dorothy. Love and Limerance: The Experience of Being in Love. Lanham, MD: Scarborogh House, 1999. Waller, Maureen R. “Viewing Low-Income Fathers’ Ties to Families Through a Cultural Lens: Insights for Research and Policy.” Annals of American Academy of Politics and Social Sciences 629, no. 1 (2010): 102–22. Wang, Wendy and Kim Parker. “Record Share of Americans Have Never Married.” Washington D.C.: Pew Research Center, September 24, 2014. http://​www​.pewsocialtrends​.org/​2014/​09/​24/​record​-share​ -of​-americans​-have​-never​-married/​. Wilson, James Q. The Marriage Problem: How Our Culture Has Weakened Families. New York: Harper Paperback, 2002. Wu, Katherine. “Love, Actually: The Science Behind Lust, Attraction, and Companionship.” Harvard University Science in the News Blog, February 14, 2017. http://​sitno​.hms​.harvard​.edu/​flash/​2017/​love​ -actually​-science​-behind​-lust​-attraction​-companionship/​.

14. Debt’s emotional encumbrances Pamela Foohey1

In finance and law, the term “encumbrance” refers to a claim asserted against an asset, such as a mortgage on a house.2 For the people or principals of businesses who owe these claims, the term “encumbrance” has additional, different meanings. People and businesses may take on debt, such as student loans and startup capital, to aid them on their paths to financial or life success. Conversely, their need to take on debt may arise from unexpected expenses, such as from medical bills or equipment repairs. The people and principals of businesses that owe the debt, creditors, and the general public will have differing views and feelings about the appropriateness and morality of that debt. And these views and feelings may shift as debtors successfully pay off the debt or as debtors fall further into indebtedness that they have no realistic prospect of paying. This chapter surveys the state of knowledge about people’s emotions regarding personal and business financial problems, and evaluates how bankruptcy, commercial, and consumer credit laws in the United States account for these emotions. The survey finds that emotions surrounding taking on and being unable to pay back debt differ between business leaders and people who shoulder what they view as household debt. The differences in these two groups’ emotional lives are traceable, in part, to historical understandings of the respectability of taking on debt. The chapter begins with this history, as explored through the evolution of debates about bankruptcy laws in America. This history has shaped the development of bankruptcy, commercial, and consumer credit laws in ways that make it easier for businesses than for households to access and navigate these “money law” systems. The result is that people with financial troubles face more emotional encumbrances brought by the legal system, which in turn impacts access the justice and the effectiveness of these laws. The chapter ends by considering the economic and societal ramifications of debt’s emotional encumbrances.

THE EVOLUTION OF DEBT’S EMOTIONS Debt comes in two basic flavors—business and household.3 Businesses of all sizes borrow funds from banks, financial institutions, and other lenders to facilitate their operations. They also may owe others for mishaps stemming from business operations, such as warranty claims or slip and falls in stores. Businesses’ leaders and management may consider the latter types

Professor of Law, Indiana University – Bloomington Maurer School of Law. My thanks to Jody Madeira for useful comments and skillful editing. 2 Black’s Law Dictionary (10th ed.) (Thomson Reuters, 2014), Westlaw. 3 Bankruptcy and secured transactions laws make this distinction, defining “consumer debt” and a “consumer transaction” as dealing with an obligation incurred primarily for personal, family, or household purposes. Elizabeth Warren, Bankruptcy and Article 9: 2018 Statutory Supplement (New York: Wolters Kluwer, 2018), 55, 272. 1

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216  Research handbook on law and emotion of debt ”involuntary” in that they did not agree to owe creditors money in these instances. But they recognize that those liabilities are necessary consequences of running businesses.4 People likewise borrow money from banks and other financial institutions to fund their lives and smooth their consumption. Credit cards, car loans, mortgages, and student loans are a few examples. People also may become debtors due to unforeseen or unwanted events, such as getting divorced and owing alimony or child support, falling ill and being unable to pay doctors’ and hospitals’ bills in full, or needing to immediately repair a broken-down car. In some instances, people may turn to less reputable companies to cover these bills—payday lenders, pawn shops, and auto title loan outfits.5 The potential differences in how people may feel about incurring business and personal debt are evident in these descriptions of how businesses and individuals become debtors, as are the possible differences in how creditors and the public react emotionally to outstanding debt remaining unpaid. Throughout history, incurring debt has been inescapable. Nonetheless, throughout history, particularly in earlier centuries, being in debt was considered shameful and morally reprehensible. For people, indebtedness likely came with the sense of complete failure that results from violating community standards. It also likely brought guilt and remorse simply for having taken out the debt to begin with, emotions that lead people to attribute to themselves responsibility for their debt predicaments.6 Indeed, the words “debt” and “guilt” derive from the same etymology.7 Across world history, debtors have been subjected to punishment, including prison sentences, indentured servitude, and public shaming, and creditors’ rage over unpaid debt has been taken for granted.8 For example, in the United States, in the days of the Republic, every colony allowed imprisonment for failure to pay one’s debt, and most colonies provided that creditors could bind debtors to service, typically for up to seven years. The law made no distinction between personal and business debt. Businessmen and heads of households alike were jailed.9 Regardless of circumstances, failure—particularly that linked with “Lady Credit”—was gendered, with insolvency said to leave businessmen “weak, dependent, and thus, as they said themselves, ‘unman’d’.”10 4 The robust insurance markets for all businesses shows that business leaders plan for these possibilities. 5 For discussions of consumer lending in America, see, e.g., Mehrsa Baradaran, How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy (Cambridge: Harvard University Press, 2015); Lendol Calder, Financing the American Dream: A Cultural History of Consumer Credit, (Princeton: Princeton University Press, 1999); Louis Hyman, Debtor Nation: The History of America in Red Ink (Princeton: Princeton University Press, 2011); Gary Rivlin, Broke, USA: From Pawnshops to Poverty, Inc.—How the Working Poor Became Big Business (New York: Harper, 2010). 6 See Pamela Foohey, “A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy,” Boston College Law Review, 60 (2019): 2297–2346. 7 For a history of debt, see David Graeber, Debt: The First 5,000 Years, (Brooklyn: Melville House, 2011). 8 For a synthesis of this history, see Michael D. Sousa, “Bankruptcy Stigma: A Socio-Legal Study,” American Bankruptcy Law Journal 87, no. 4 (2013): 445–50; Rafael Efrat, “The Evolution of Bankruptcy Stigma,” Theoretical Inquiries in Law 7, no. 2 (2006): 367–74. 9 See Bruce A. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence, (Cambridge: Harvard University Press, 2002): 78–85. For a discussion of the English laws that Republic states drew from, see Charles Jordan Tabb, “The Historical Evolution of the Bankruptcy Discharge,” American Bankruptcy Law Journal 65, no. 3 (1991): 326–44. 10 Mann, Republic of Debtors,120–21.

Debt’s emotional encumbrances  217 As the economy of the Republic (and then America) grew, debt became redefined to distinguish “people who trafficked in credit” from “those who merely purchased on it”—that is, entrepreneurs from households.11 To advance this distinction, “American ideals” continued to attach immorality to taking out debt for personal consumption, while casting entrepreneurs (often termed “merchants”) as rightfully engaging in economic risk.12 For instance, when Father Abraham, Ben Franklin’s alter ego, wrote about the evils of debt, he focused on the purchase of “superfluities” fueled by credit, not commercial debt.13 Defaulting on commercial debt, though unfortunate, was less frequently cast as a moral failure, but, rather, a necessary vulnerability of participating in the market. This notion that certain forms of debt were immoral likewise influenced the development of America’s bankruptcy laws. Although the Constitution provides for the establishment of “uniform laws on the subject of bankruptcy,” the bankruptcy clause remained unused through financial panics in the 1790s. It was not until 1800 that the United States enacted its first federal bankruptcy law.14 True to the distinction between entrepreneurs and consumers, this law’s terms evidenced the notion that taking on any debt that remained unpaid was shameful. It provided that only merchants were eligible for the debt discharge, and only allowed for involuntary bankruptcy petitions filed by merchants’ creditors.15 This law was quickly repealed, replaced 38 years later with the first true bankruptcy law—the Bankruptcy Act of 1841. The 1841 Act allowed merchants and consumers to file voluntary petitions, which set off a “firestorm of controversy,” particularly about the propriety of allowing non-merchants to be eligible for debt relief.16 As shown by commentary around that time, it was increasingly accepted that “most men soon or later [go] bankrupt and fail in their business undertakings; not merely merchants and tradesmen, but even farmers, and those of all occupations.”17 Following the 1841 Act, along with the United States’ increasingly credit-driven economy and recognition of the inescapability of risk in a market society, bankruptcy laws evolved to include provisions for corporations, ways to allow both businesses and individuals to pay creditors in part over time, and fewer reasons for denying a debtor the discharge—all of which made it easier for the “honest but unfortunate” debtor to discharge debt.18 Across these evolutions, the transformation of insolvency from a moral failure to a byproduct of economic risk was largely complete for commercial debtors.19

Mann, Republic of Debtors, 82–3. Mann, Republic of Debtors, 82–3. See also David M. Tucker, The Decline of Thrift in America: Our Cultural Shift from Saving to Spending, (New York: Praeger, 1991) (providing an overview of how America was founded on notions of individualism and self-reliance that eschewed debt, and tracing the evolution of that ideal through the 1980s). 13 Mann, Republic of Debtors, 56 (quoting Benjamin Franklin’s Poor Richard’s Almanack). 14 United States Constitution, Art. 1, § 8; Tabb, “The Historical Evolution of the Bankruptcy Discharge,” at 344–5. 15 Mann, Republic of Debtors, at 256; Tabb, “The Historical Evolution of the Bankruptcy Discharge,” 345–9. 16 Tabb, “The Historical Evolution of the Bankruptcy Discharge,” 345–50. 17 Edward J. Balleisen, Navigating Failure: Bankruptcy and Commercial Society in Antebellum America (Chapel Hill: University of North Carolina Press, 2001), 3 (quoting a contributor to Hunt’s Merchants’ Magazine from 1860). 18 Tabb, “The Historical Evolution of the Bankruptcy Discharge,” 353–69. 19 Mann, Republic of Debtors, 259–63. 11 12

218  Research handbook on law and emotion The shame accompanying consumer debt, in contrast, remained embedded in the American psyche. Culturally, incurring debt for personal purposes was (and continues to be) viewed as “a matter of self-indulgence.”20 Although America’s bankruptcy laws increasingly included protections for consumer debtors, particularly in the Bankruptcy Reform Act of 1978, now known as the Bankruptcy Code, the backlash against providing a discharge to consumers that accompanied the 1841 Act continued unabated through the decades. Relatively soon after the 1978 Act’s passage, creditors began a public campaign against the Code, lobbying for harsher treatment for debtors.21 The general public likewise remained skeptical of households’ use of bankruptcy and debt, in part because consumer bankruptcy filings rose sharply in the 1980s and 1990s.22 The prevailing sentiment about the type of people who filed bankruptcy is summed up by Professor Mechele Dickerson in her description of the prototypical “bankruptcy queen”: the owner of a multi-million dollar exempt mansion, charges lavish trinkets on a Visa card (or takes a cash advance from the credit card to fund a gambling trip to Reno), then cavalierly files for bankruptcy rather than selling the exempt assets, curtailing spending habits, or working to repay the credit card debt.23

Contrary to this portrayal, empirical research based on data from the Consumer Bankruptcy Project (CBP), launched in the 1980s by now Senator Elizabeth Warren, Professor Jay Westbrook, and Professor Teresa Sullivan, consistently has shown that the rise in households seeking refuge in the bankruptcy system links to debt associated with growing healthcare costs, divorce, and changes in employment, including wage stagnation and job loss.24 These drivers of consumer bankruptcy filings highlight a fundamental and concerning change in how American families meet their everyday expenses—such as housing, transportation, child care, and healthcare—in the face of increasing costs, wage stagnation, and a shrinking social safety net.25 They gradually take on debt to pay for the necessities that their incomes and savings generally covered in prior decades.26 In the three decades between 1970 and 2000, Americans

Graeber, Debt: The First 5,000 Years, 379. See generally A. Mechele Dickerson, “Regulating Bankruptcy: Public Choice, Ideology, & Beyond,” Washington University Law Review 84, no. 1 (2006). See also Michael D. Sousa, “The Persistence of Bankruptcy Stigma,” American Bankruptcy Institute Law Review 26, no. 2 (2018): 220–23. 22 See Efrat, “The Evolution of Bankruptcy Stigma,” 376–7. 23 A. Mechele Dickerson, “America’s Uneasy Relationship with the Working Poor,” Hastings Law Journal 51, no. 1 (1999): 48–9. 24 Pamela Foohey, Robert M. Lawless, Katherine Porter and Deborah Thorne, “Life in the Sweatbox,” Notre Dame Law Review 94, no. 4 (2018): 223, n. 19, 231. The CBP is a multi-researcher effort that investigates the people who file bankruptcy. I am a current co-investigator on the CBP, along with Professor Robert Lawless and Dr. Deborah Thorne. For details about the CBP, Foohey et al., “Life in the Sweatbox,” 232–4. 25 See generally Jacob S. Hacker, The Great Risk Shift: The New Economic Insecurity and the Decline of the American Dream (Oxford: Oxford University Press, 2006). 26 See generally Elizabeth Warren and Amelia Warren Tyagi, The Two-Income Trap: Why Middle-Class Parents Are Going Broke (New York: Basic Books, 2004) (providing an overview on how American families’ expenses have changed during the 20th century); Deborah Thorne, Pamela Foohey, Robert M. Lawless and Katherine Porter, “Graying of U.S. Bankruptcy: Fallout From Life in a Risk Society,” 90, Issue 4: 681–704, Sociological Inquiry, https://​ssrn​.com/‌​‌abstract​=​3226574 (discussing the drivers of a decades-long increase in older Americans filing bankruptcy). 20 21

Debt’s emotional encumbrances  219 took on so much debt that nonmortgage consumer credit outstanding increased almost 1,225 percent, from $119 billion to $1,456 billion (in inflation-adjusted dollars).27 At the end of 2017, American household debt reached an all-time (as of then) high of $13.15 trillion, which, including home mortgages, amounted to the average American household holding a bit under $136,000 in outstanding debt.28 In contrast to the reality that many people simply do not make enough money to make ends meet, throughout the late 20th century, descriptions of American households’ consumption fixated on painting a picture of an unbridled consumer spending culture, similar to the idea of a “bankruptcy queen.”29 These descriptions brought condemnation of the presumed profligate spending on new gadgets, expensive meals out, and piles of clothing, and called for a return to America’s supposed puritan, frugal roots.30 This tension between how people actually spent money and how the media portrayed people’s use of credit shaped the way in which Americans, including legislators, currently think about consumer debt. It also shaped how bankruptcy, commercial, and consumer credit laws have evolved to deal with American households’ increasing reliance on debt.

DEBT’S EMOTIONS IN MODERN TIMES Research regarding the emotions surrounding taking on debt, overindebtedness, and filing bankruptcy is sparse. Because the incurrence of and defaulting on business debt has assumed a largely utilitarian function,31 almost all empirical research about debt’s emotions focuses on consumer debt. The most robust research relates to continuing debates over what is the proper extent of household’s access to bankruptcy. This research has fixated on the stigma of filing bankruptcy because proponents of bankruptcy law reforms have contended that bankruptcy’s stigma has decreased so much from the 1970s onward that people feel no shame in racking up debt, with the idea that they will use the bankruptcy system to obtain a quick discharge.32 Contrary to these contentions, comparing levels of consumer debt to the number of consumer

27 Thomas A. Durkin, “Credit Cards: Use and Consumer Attitudes, 1970–2000,” Federal Reserve Board (September 2000), https://​www​.federalreserve​.gov/​Pubs/​Bulletin/​2000/​0900lead​.pdf. 28 “Quarterly Report on Household Debt and Credit, 2017:Q4,” Federal Reserve Bank of New York, (February 2018), https://​www​.newyorkfed​.org/​medialibrary/​interactives/​householdcredit/​data/​ pdf/‌​‌hhdc​_‌‌2017q4​.‌‌‌‌pdf; Claire Tsosie and Erin El Issa, “2018 American Household Credit Card Debt Study,” NerdWallet (December 10, 2018), https://​www​.nerdwallet​.com/​blog/​average​-credit​-card​-debt​ -household/​, accessed January 14, 2021. 29 Compare Calder, Financing the American Dream with Hyman, Debtor Nation. 30 See Calder, Financing the American Dream, 37–8 (discussing America’s cultural ideals of thrift, frugality, and delayed gratification); Foohey et al., “Life in the Sweatbox,” 231–2 (discussing debates about consumer bankruptcy laws). 31 Donald Trump’s remarks during 2016 presidential debates about placing four of his corporations into bankruptcy demonstrate that defaulting on business debt now largely is viewed as an inevitable consequence of a capitalistic society. See The Motley Fool, “Donald Trump, Harry Truman, and how bankruptcy has changed,” USA Today (November 20, 2015), https://​www​.usatoday​.com/​story/​money/​ personalfinance/‌​‌2015/‌‌​‌‌11/​20/​donald​-trump​-harry​-truman​-and​-how​-bankruptcy​-has​-changed/​76129568/​, accessed Janaury 14, 2021. 32 See Foohey et al., “Life in the Sweatbox,” 231.

220  Research handbook on law and emotion bankruptcy filings during the last few decades suggests that bankruptcy’s stigma may have increased.33 Recent surveys of the people who file bankruptcy support this conclusion.34 As part of the CBP’s latest iteration, my co-investigators and I surveyed 910 households that filed bankruptcy between 2013 and 2016.35 Of those households, 68 percent stated that they felt shame upon filing.36 Similarly, a sample of people who filed bankruptcy in 2007, 2008, and 2010 generally stated during interviews that they felt shame and embarrassment and had experienced stigma over filing.37 Additionally, Professor Michael Sousa’s analysis of the biannual General Social Survey (GSS)’s question—“Do you think a person has the right to end his or her own life if this person has gone bankrupt?”—found that similar percentages of respondents from the 1970s through 2016 have answered affirmatively, likewise evidencing that filing bankruptcy has been and remains stigmatized and shameful. As with other research, this analysis suggests that, as consumer bankruptcy filing increased over time, the stigma associated with filing increased as well.38 There also is some, though less, systematic research into the emotions that accompany people’s debt and overindebtedness absent filing bankruptcy. The relative dearth of research in this area most likely is attributable to difficulties in identifying and accessing groups of indebted individuals who have not filed bankruptcy. Nonetheless, data from the CBP show that two-thirds of debtors struggle to pay their debt for two or more years before they file bankruptcy, and that one-third of debtors struggle for five or more years before turning to the bankruptcy system for help.39 During those years, people who eventually file bankruptcy report going without necessities, such as food and utilities, skipping doctors’ visits, foregoing medication, selling their property to pay debt, trying to find additional work, and dealing with repeated calls from debt collectors.40 Based on these reports, people’s lengthy financial struggles almost certainly bring a host of emotions beyond the shame, guilt, and embarrassment that leads them to delay filing bankruptcy.41 These struggles may elicit anger at the actions of creditors and debt collectors, hopelessness in the face of mounting debt, and sadness about how their lives have been changed and consumed by their debt problems.42 Apart from bankruptcy, the existence of support groups organized under the name “Debtors Anonymous,” designed to help people control their spending, confirms that people experience

33 Teresa A. Sullivan, Elizabeth Warren, and Jay Lawrence Westbrook, “Less Stigma or More Financial Distress: An Empirical Analysis of the Extraordinary Increase in Bankruptcy Filings,” Stanford Law Review 59, no. 2 (2006): 233–41 (refuting the declining stigma hypothesis). 34 For an overview of prior empirical inquiries into bankruptcy’s stigma, see Sousa, “The Persistence of Bankruptcy Stigma,” 223–31. 35 Foohey et al., “Life in the Sweatbox.” 36 Foohey et al., “Life in the Sweatbox,” 249. 37 Sousa, “Bankruptcy Stigma: A Socio-Legal Study.” 38 Sousa, “The Persistence of Bankruptcy Stigma,” at 232–8. See also Sullivan, Warren, and Westbrook, “Less Stigma or More Financial Distress.” 39 Foohey et al., “Life in the Sweatbox,” 235–6. 40 Foohey et al., “Life in the Sweatbox,” 241–6. 41 See Pamela Foohey, “Access to Consumer Bankruptcy,” Emory Bankruptcy Developments Journal 34, no. 2 (2018): 347 (noting that attorneys term consumer debtors’ propensity to delay filing the “ostrich defense”). See also supra note 5 and accompanying text for a discussion of these emotions. 42 See Foohey, “A New Deal for Debtors” (discussing emotions and debt).

Debt’s emotional encumbrances  221 fear, unhappiness, and shame because of their indebtedness.43 Debtors Anonymous’ mission and messaging corroborates that there is an enduring public perception that incurring unsecured debt for personal consumption is a “spiritual sickness” that convinces people to “give into it by buying what [they] cannot afford.”44 Through interviews with 46 members of Debtors Anonymous, Professor Terrell Hayes concluded that the program relies on “shame rituals” to help members offset the shame they feel because they incurred unmanageable debt.45 In addition, Professor Michael Sousa also relied on people’s responses to the GSS question about the acceptability of suicide upon going bankrupt to test whether people’s views of debt’s stigma varies by social class. He found that perceptions of indebtedness’s stigma increased with social class, as measured by education, income, and occupational prestige. The higher an individual’s social class, the more likely they were to agree with the acceptability of committing suicide upon “going bankrupt.”46 Combined with the Debtors Anonymous study, these results provide some of the first systematic evidence that shame accompanies unmanageable debt. Another source of data about people’s emotional experiences with debt is the complaint database maintained by the Consumer Financial Protection Bureau (CFPB). Since June 2015, the CFPB has published consumers’ submitted complaints, along with consumers’ narratives about the problems they are facing with consumer financial products and services within the CFPB’s statutory purview.47 The narratives, in particular, provide a rich source of data about how people express their debt problems. I analyzed a random sample of 6,000 narratives to investigate the role of the complaint mechanism in helping people voice, solve, and come to terms with their problems with financial goods and services providers. This analysis involved using qualitative content analysis to identify the emotions people used when discussing their problems. Focusing on anger, disgust, sadness, fear, shame, and guilt,48 I found that people’s narratives most often evidenced anger and the frustration associated with anger. Sadness and fear also came through in a noticeable minority of the narratives. When people wrote with anger and frustration, they commonly called upon companies to remedy the situations or asked the CFPB for help with reigning in companies’ practices because they had been unable to make any headway with their pleas to companies for assistance. When people wrote with sadness and fear, their stories typically included discussions of how credit issues and disputes negatively impacted their personal well-being and harmed loved ones. People expressed fear about their health, living situations, food scarcity, and ability to take care of children and ailing

43 These emotions are extrapolated from Debtors Anonymous’ webpage, “Is D.A. for You?,” Debtors Anonymous, https://​debtorsanonymous​.org/​getting​-started/​da/​, accessed Janaury 14, 2021. 44 “Debtors Anonymous,” Debt.org, https://​www​.debt​.org/​faqs/​debtors​-anonymous/​ (quoting member). 45 Terrell A. Hayes, “Stigmatizing Indebtedness: Implications for Labeling Theory,” Symbolic Interaction 23:1 (2000): 42–5. 46 See generally Michael D Sousa, “Debt Stigma and Social Class,” Seattle University Law Review 41, no. 3 (2018). 47 For an overview of the complaint process, see Pamela Foohey, “Calling on the CFPB for Help: Telling Stories and Consumer Protection,” Law & Contemporary Problems 80, no. 3 (2017): 181-84. 48 For a discussion of why I chose these emotions, see Foohey, “Calling on the CFPB for Help 189–90.

222  Research handbook on law and emotion parents.49 In contrast to the sense of ability to change their situations that comes through the narratives when people express anger and frustration, people’s narratives filled with sadness and fear evidence vulnerability, desperation, and powerlessness to escape the effects for their indebtedness. For the purposes of this chapter, what my analysis of the narratives shows is that debt can come with burdensome emotions. Based on people’s discussions of this subset of financial problems, these emotions take a toll on their lives beyond that attributed to financial instability generally. These findings align with research about people who file bankruptcy, which shows that while people struggle to pay their debt before filing, they endure sleepless nights and argue with their spouses about how to deal with their financial situations.50 They also support studies that connect homeowners’ tendency to act against their financial interests to save houses on which they owe much more than the houses’ value—that is, the houses are severely underwater—to fear, shame, and guilt about their debt situations.51 In short, for people dealing with their personal, household expenses, their struggles with paying the debt they take on to meet their expenses often comes with guilt and shame, as well as likely other disheartening emotions, such as fear, sadness, and hopelessness. In addition, my study of people’s narratives submitted via the CFPB highlights the need to fill the significant gap in research about emotions accompanying debt. Whatever the exact emotions, they impel people to try to pay back their debt long beyond the point when it makes sense to admit defeat. During that time, the lengths that people go to survive seem to be destructive to their health and well-being. Finally, my interviews with pastors and other leaders who filed bankruptcy on behalf of their small churches provide limited data about how small business owners handle overindebtedness. Like the people who file bankruptcy, leaders (and congregants) are apt to delay filing past when resorting to bankruptcy makes financial sense, in part, because of the stigma and shame of bankruptcy. They become attached to particular buildings and do not want to part with their “spiritual homes.” Part of their decisions to file bankruptcy involves sorting out the disappointment and resentment of their churches’ overindebtedness.52 Owners of small businesses—such as mom and pop stores—also may experience their overindebtedness in ways similar to people taking on consumer debt. Like church leaders and heads of households, small business owners may view their businesses’ financial failure as their own moral failure and put off filing bankruptcy in favor of trying to live up to American ideals of self-reliance. In contrast, literature about managerial behavioral around debt used to fund larger businesses often focuses on the risk-taking nature of executives. That this literature responds to

Foohey, “Calling on the CFPB for Help,” 193–9. Katherine Porter, “The Pretend Solution: An Empirical Study of Bankruptcy Outcomes,” Texas Law Review 90, no. 1 (2011): 142–4; Deborah Thorne, “Women’s Work, Women’s Worry?: Debt Management in Financially Distressed Families” in Broke: How Debt Bankrupts the Middle Class, ed. Katherine Porter, (Stanford: Stanford University Press, 2012), 136–53. See Foohey et al., “Life in the Sweatbox,” 255–7 (discussing “the costs of financial misery”). 51 Brent T. White, “Underwater and Not Walking Away: Shame, Fear, and the Social Management of the Housing Crisis,” Wake Forest Law Review 45, no. 4 (2010). 52 Pamela Foohey, “When Churches Reorganize,” American Bankruptcy Law Journal 88, no. 3 (2014); Pamela Foohey, “When Faith Falls Short: Bankruptcy Decisions of Churches,” Ohio State Law Journal 76, no. 6 (2015). 49 50

Debt’s emotional encumbrances  223 this behavior by critiquing legislation designed to rein in questionable business practices and a tendency to waste money to prop up failing businesses implies that the restraint and shame accompanying consumer debt differs from the emotions accompanying larger business debt.53 Overall, research suggests that people’s view of consumer and small business debt continue to differ from their assessment of business debt in ways that should dramatically shape their emotional experiences of incurring and paying back debt.

“MONEY LAW” MISMATCH WITH DEBT’S EMOTIONS The differences in how people continue to experience incurring and being unable to pay debt most likely stem from the American veneration of self-reliance and individualism that shaped the evolution of bankruptcy laws. Consistent with this theory, current laws dealing with consumer credit and finance still principally are premised on the idea that people should try to pay their debt as much and as hard as possible before law helps them. In comparison, laws dealing with business debt are premised on the idea that the legal system should promote the entrepreneurship gamble. To this end, consumer credit and bankruptcy laws effectively force people to look outside the legal system to deal with their financial problems, while business finance and bankruptcy laws welcome people into the legal system. Bankruptcy laws again illustrate this dichotomy. The last time that the United States substantially overhauled its bankruptcy laws was in 2005. As regards consumer debt, the debate leading up to the 2005 amendments (termed “BAPCPA”) reflected fundamental disagreements about when and why people file bankruptcy that had continued since the passage of the 1978 Bankruptcy Act, as discussed above. The tenor of amendment supporters’ arguments replicated many of the assumptions about consumer debt that seem to inform people’s emotions surrounding taking on and not being able to pay back debt. Those who favored changes to bankruptcy laws argued that the people who filed bankruptcy largely used credit to fund frivolous expenses that they later sought to discharge. Despite empirical evidence directly contradicting these assumptions, the debates resulted in the passage of amendments that made it harder and more expensive for people to file bankruptcy.54 BAPCPA increased paperwork, mandated pre-filing credit counseling, and added an obligatory post-filing financial management course. Its most significant change was the addition of the “means test.” This test is designed to identify those households deemed to have too much income relative to prescribed necessary expenses and debt outstanding to be eligible for the quick discharge of chapter 7. It forces such households to file chapter 13, which requires them to pay a portion of their outstanding debt over a three-to-five-year period via a repayment plan. This repayment plan necessarily means that these households will pay more to creditors than if they had filed chapter 7.55

See generally A. Mechele Dickerson, “Behavioral Approach to Analyzing Corporate Failures,” Wake Forest Law Review 38, no 1 (2003). 54 See Foohey et al., “Life in the Sweatbox,” 231–2 (discussing debates about consumer bankruptcy laws). 55 See Foohey et al., “Life in the Sweatbox” (discussing the means test). 53

224  Research handbook on law and emotion When BAPCPA was passed, proponents’ assumption was that the means test would require more households to file chapter 13, shifting the relative percentage of chapter 7 and 13 consumer bankruptcy filings to reflect proponents’ view that many people who filed bankruptcy could pay their creditors more and were cheating by asking for a quick discharge through chapter 7. More than ten years after BAPCPA’s enactment, data from the CBP show that the relative percentage of chapter 7 versus 13 filings has remained constant. Instead of recalibrating which chapter consumer file, BAPCPA presses people to wait even longer to file.56 This outcome makes sense. People have so few assets, particularly compared to debt, and so little income when they file that the means test sorts very few households into chapter 13.57 And people have so little when they file because they try hard to pay their debt for years before turning to bankruptcy for help.58 Perversely, the very shame of overindebtedness and filing bankruptcy that BAPCPA’s proponents assumed had dissipated still pushes households to delay filing bankruptcy until long after it first made economic sense to do so. And BAPCPA’s added filing hurdles only add months to people’s delay in filing, which, as I and my co-authors have argued, leaves struggling households with less of what they need to make effective use of bankruptcy’s fresh start.59 In contrast, BAPCPA largely left business bankruptcy law untouched.60 It is difficult for creditors to force businesses into involuntary bankruptcy, while businesses have an effectively unfettered ability to file bankruptcy either to liquidate or to reorganize. Leaders and managers do not need to prove that their businesses are insolvent at the time of filing. The same is true for people who seek to discharge primarily business debt. The means test does not apply to them. Regardless of income, expenses, and debt, these debtors presumptively are eligible for chapter 7. For both businesses and people with predominately business debt, judges have the discretion to dismiss their bankruptcy cases based on a determination that they were filed in “bad faith.”61 The logic behind this easy access to bankruptcy is two-fold. Businesses’ leaders are presumed to be in the best position to assess when their businesses are struggling such that value can be preserved through bankruptcy. To encourage leaders to file once they make this determination, access is relatively unconstrained. Also, harkening back to ideas that the entrepreneurship gamble depends on access to credit, bankruptcy helps mitigate the risk of default that necessarily accompanies this gamble. Without bankruptcy, it is presumed that business formation would be less robust, which would hamper economic development. Business bankruptcy serves as an economic development tool by spreading financial failure.62

See generally Robert M. Lawless, et al., “Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors,” American Bankruptcy Law Journal 82, no. 3 (2008). 57 Foohey et al., “Life in the Sweatbox,” 228, 239–40. 58 See supra notes 38–40 and accompanying text. 59 Foohey et al., “Life in the Sweatbox,” 258–60. 60 With the exception that BAPCPA added special provisions for small businesses. See Elizabeth Warren et al., The Law of Debtors and Creditors: Text, Cases, and Problems (New York: Wolters Kluwer, 7th ed., 2014): 361–2. 61 See Warren et al., at 256–8 (discussing the application of “mandatory dismissal under the means test”). 62 See “Chapter 2: Business Bankruptcy – Introduction,” Report of the National Bankruptcy Review Commission (October 20, 1997), http://​govinfo​.library​.unt​.edu/​nbrc/​report/​09amass​.html, accessed January 15, 2021. 56

Debt’s emotional encumbrances  225 Non-bankruptcy credit laws likewise are harsher on people with consumer debt as compared to business debt. For instance, debt collections and related laws, which chiefly affect consumers, provide wide latitude for creditors’ collection efforts, including that consumer debt can effectively continue forever absent the debtor’s filing bankruptcy.63 Similarly, the importance of consumers’ credit data and scores, combined with the severely limited legal avenues by which people can protect their data and ensure their scores’ accuracy, recently prompted the Congressional Research Service to issue a report about consumer credit data policy issues.64 And more than half a century after the passage of the Fair Housing Act, which includes provisions making redlining and other racial discrimination in housing illegal, research shows that such discriminatory practices continue.65 Nonetheless, an oft-told account of what caused the 2008 financial crisis implicates low-income households’ borrowing choices.66 The advent of the CFPB following the financial crisis, designed to “make consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers,” demonstrates the apparent necessity to strengthen laws in favor of consumers.67 Again, in contrast, corporate and business association laws generally insulate directors, owners, and managers from liability for their companies’ failures, absent a successful argument for piercing the corporate veil. If the people who own and run a business are not personally accountable for their business’s debt beyond their monetary investment or continued employment, they should be incentivized to take more risk, an outcome which again is theorized to encourage entrepreneurship, investment, and economic development.68 As with business bankruptcy laws, limited liability comes with reduced blame for owners, directors, and managers when their companies experience financial problems. Indeed, failing banks and other financial institutions received a trillion-dollar bailout during the financial crisis. And although their directors and managers were called out for their reckless behavior, they faced few lasting social consequences.69 The dichotomy between how law, government, and society treated households versus banks in the wake of the financial crisis provides a paradigm for the logic underlying laws regulating business and consumer credit. Both sets of laws proceed from the assumption that all people

See generally Dalié Jiménez, “Ending Perpetual Debts,” Houston Law Review 55, no. 3 (2018). See generally “Consumer Credit Reporting, Credit Bureaus, Credit Scoring, and Related Policy Issues,” Congressional Research Service (March 28, 2019), https://​fas​.org/​sgp/​crs/​misc/​R44125​.pdf, accessed January 15, 2021. 65 See Tracy Jan, “Redlining was banned 50 years ago. It’s still hurting minorities today,” The Washington Post, March 28, 2018, https://​www​.washingtonpost​.com/​news/​wonk/​wp/​2018/​03/​28/​ redlining​-was​-banned​-50​-years​-ago​-its​-still​-hurting​-minorities​-today/​, accessed January 15, 2021. 66 See Max Ehrenfreund, “It’s time to stop blaming poor people for the financial crisis,” The Washington Post, June 15, 2017, https://​www​.washingtonpost​.com/​news/​wonk/​wp/​2017/​06/​15/​its​-time​ -to​-stop​-blaming​-poor​-people​-for​-the​-financial​-crisis/​, accessed January 15, 2021. 67 “Consumer Financial Protection Bureau Strategic Plan FY 2013 - FY 2017,” Consumer Financial Protection Bureau (April 2013), https://​files​.consumerfinance​.gov/​f/​strategic​-plan​.pdf, accessed January 15, 2021. 68 See Robert B. Thompson, “Piercing the Corporate Veil: An Empirical Study,” Cornell Law Review 76, no. 5 (1991): 1039–43 (discussing piercing the corporate veil). 69 Almost no executives faced jail time; instead, some received bonuses. Louis Story and Eric Dash, “Bankers Reaped Lavish Bonuses During Bailout,” The New York Times, July 30, 2009, https://​www​ .nytimes​.com/​2009/​07/​31/​business/​31pay​.html, accessed January 15, 2021. 63 64

226  Research handbook on law and emotion chiefly think about debt in utilitarian terms. Consumers should file bankruptcy at the first hint of financial troubles that make seeking a discharge economically practicable. Businesses’ managers and leaders should file bankruptcy on behalf of businesses when doing so will provide greater returns to creditors and investors. Similarly, both consumers and businesses will take on an economically sound level of debt. And they will default on that debt when paying no longer makes financial sense. Layered on top of this utilitarian reasoning is the history of how society (and thereby lawmakers) thinks about the taking on of consumer and business debt. Consumers’ incurrence of debt traditionally brought suspicion (though less so currently). Now, the notion that consumers who take on debt are worthy of condemnation has turned into a presumption that people will take advantage of expanded access to debt. In comparison, though the incurrence of business debt historically also brought suspicion, its necessity was recognized early, and the presumption now is that business owners and managers will act in their best financial interests, which also reflect the economy’s best interests. Thus, society penalizes consumers by making the laws to help with their debt problems relatively inaccessible, while helping businesses by providing rather easy access to legal systems and laws designed to insulate managers, directors, and owners personally from the consequences of the decisions they make on behalf of businesses. But the balance struck by society and its laws does not reflect the emotional reality of American consumers and business leaders. People who take on consumer debt have internalized the stigma still associated with being unable to pay their debt. They already push themselves beyond their financial limits to try to make good on their debt obligations. Once they realize they need help, encountering laws that presume they intend to exploit the legal system only doubles the damaging emotions accompanying their debt. Contradictorily, business debt comes with little emotional baggage, which ostensibly makes those dealing with this debt more confident when thinking about using law to address financial problems—and when they do, they find a relatively hospitable legal system. Stated succinctly, the United States’ bankruptcy, commercial and consumer credit laws disregard the relevant emotional experiences of consumer and business debt. Notably, people face two sets of emotional encumbrances regarding their household debt—social and legal. That the American legal system largely overlooks what is known about the debt’s emotional experiences means that the law of debt on the ground diverges from the law of debt on the books. This mismatch brings economic and social ramifications. As to business debt, insulating owners and managers may lead to increased risk taking, as most evident through the 2008 financial crisis. As to consumer debt, people’s money troubles are more likely to go unaddressed by the laws designed to help smooth the financial risks of their lives and to foster more robust lending, which may harm families and negatively impact the broader economy. The task for researchers, lawmakers, and society now is to focus more on the emotions that accompany debt and take seriously how debt’s emotional encumbrances impact access to and the effectiveness of the legal system.

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Debt’s emotional encumbrances  227 Baradaran, Mehrsa. How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy. Cambridge: Harvard University Press, 2015. Black’s Law Dictionary (10th Ed.). Thomson Reuters, 2014. Calder, Lendol. Financing the American Dream: A Cultural History of Consumer Credit. Princeton: Princeton University Press, 1999. “Chapter 2: Business Bankruptcy – Introduction.” Report of the National Bankruptcy Review Commission (October 20, 1997), http://​govinfo​.library​.unt​.edu/​nbrc/​report/​09amass​.html. “Consumer Credit Reporting, Credit Bureaus, Credit Scoring, and Related Policy Issues.” Congressional Research Service (March 28, 2019), https://​fas​.org/​sgp/​crs/​misc/​R44125​.pdf. “Consumer Financial Protection Bureau Strategic Plan FY 2013 - FY 2017.” Consumer Financial Protection Bureau (April 2013), https://​files​.consumerfinance​.gov/​f/​strategic​-plan​.pdf. Debtors Anonymous, https://​debtorsanonymous​.org/​. Dickerson, A. Mechele. “America’s Uneasy Relationship with the Working Poor.” Hastings Law Journal 51, no. 1 (1999): 17–71. Dickerson, A. Mechele. “Behavioral Approach to Analyzing Corporate Failures.” Wake Forest Law Review 38, no. 1 (2003): 1–54. Dickerson, A. Mechele. “Regulating Bankruptcy: Public Choice, Ideology, and Beyond.” Washington University Law Review 84, no. 7 (2006): 1861–905. Durkin, Thomas A. “Credit Cards: Use and Consumer Attitudes, 1970–2000.” Federal Reserve Board, September 2000. https://​www​.federalreserve​.gov/​Pubs/​Bulletin/​2000/​0900lead​.pdf. Efrat, Rafael. “The Evolution of Bankruptcy Stigma.” Theoretical Inquiries in Law 7, no. 2 (2006): 365–93. Ehrenfreund, Max. “It’s time to stop blaming poor people for the financial crisis.” The Washington Post, June 15, 2017, https://​www​.washingtonpost​.com/​news/​wonk/​wp/​2017/​06/​15/​its​-time​-to​-stop​ -blaming​-poor​-people​-for​-the​-financial​-crisis/​. Foohey, Pamela. “A New Deal for Debtors: Providing Procedural Justice in Consumer Bankruptcy.” Boston College Law Review 60 (2019): 2297–2346, https://​ssrn​.com/​abstract​=​3341473. Foohey, Pamela. “Access to Consumer Bankruptcy.” Emory Bankruptcy Developments Journal 34, no. 2 (2018): 341–64. Foohey, Pamela. “Calling on the CFPB for Help: Telling Stories and Consumer Protection.” Law & Contemporary Problems 80, no. 3 (2017): 177–209. Foohey, Pamela. “When Churches Reorganize.” American Bankruptcy Law Journal 88, no. 3 (2014): 277–305. Foohey, Pamela. “When Faith Falls Short: Bankruptcy Decisions of Churches.” Ohio State Law Journal 76, no. 6 (2015): 1319–65. Foohey, Pamela, Robert M. Lawless, Katherine Porter and Deborah Thorne. “Life in the Sweatbox.” Notre Dame Law Review 94, no. 4 (2018): 219–61. Graeber, David. Debt: The First 5,000 Years. Brooklyn: Melville House, 2011. Hacker, Jacob S. The Great Risk Shift: The New Economic Insecurity and the Decline of the American Dream. Oxford: Oxford University Press, 2006. Hayes, Terrell A. “Stigmatizing Indebtedness: Implications for Labeling Theory.” Symbolic Interaction 23, no. 1 (2000): 29–46. “Household Debt and Credit Report (Q4 2018).” Federal Reserve Bank of New York, https://​www​ .newyorkfed​.org/​microeconomics/​hhdc​.html. Hyman, Louis. Debtor Nation: The History of America in Red Ink. Princeton: Princeton University Press, 2011. Jan, Tracy. “Redlining was banned 50 years ago. It’s still hurting minorities today.” The Washington Post, March 28, 2018, https://​www​.washingtonpost​.com/​news/​wonk/​wp/​2018/​03/​28/​redlining​-was​ -banned​-50​-years​-ago​-its​-still​-hurting​-minorities​-today/​. Jiménez, Dalié. “Ending Perpetual Debts.” Houston Law Review 55, no. 3 (2018): 609–58. Lawless, Robert M., et al. “Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors.” American Bankruptcy Law Journal 82, no. 3 (2008): 349–406. Mann, Bruce H. Republic of Debtors: Bankruptcy in the Age of American Independence. Cambridge: Harvard University Press, 2002.

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15. The emotional dynamics of property law Heather Conway and John Stannard1

INTRODUCTION Property is a foundational module in law schools, and one of the most conceptually challenging for students to grasp. At the outset, we try to persuade them that property is not simply the object or the asset itself; that, as a legal construct, property denotes rights over ‘things’ (both tangible and intangible), which the law will protect. We explain ownership as the ultimate legal claim, encompassing what has been traditionally described as a bundle of rights and incidents2 and hinging on notions of excludability.3 Then, just as these ideas gain traction, we introduce different theoretical perspectives. Contemporary scholarship has posited a range of views,4 with some questioning the bundle of rights approach and speaking instead to concepts such as ‘exclusivity’ and ‘agenda setting’,5 to ‘inalienability rules’6 and to property as a ‘law of things’.7 In the midst of this intellectual haze, however, two things stand out. First, labelling something as ‘property’ and someone as its ‘owner’ carries a potency that is not associated with other legal terms and jural relations. Second, property speaks to relational ties and social interactions: it is not simply about the relationship between the owner(s) and the property itself.8 Studies show that most people have a ‘mental toolbox of basic property rules’.9 As a result, some of the themes we explore in class undoubtedly reflect what non-owners – and law students whose views have yet to be shaped by the travails of a property law module – instinctively feel about property. Property has a symbolic resonance; ownership confers significant rights, and owners can exclude others from using or accessing their property. However, other basic assumptions can be misplaced: for example, that ownership rights are absolute and unquali-

The authors are grateful for the reviewer’s comments on an earlier draft of this chapter. Antony M. Honoré, ‘Ownership’, in Oxford Essays in Jurisprudence, ed. Anthony G. Guest (Oxford: Oxford University Press, 1961) 107. See also Bruce Ackerman, Private Property and the Constitution (New Haven, CT: Yale University Press, 1977). 3 See Kevin Gray, ‘Property in Thin Air’, Cambridge Law Journal 50, no. 2 (1991): 252; Thomas W. Merrill, ‘Property and the Right to Exclude’, Nebraska Law Review 77 (1998): 730. 4 See, e.g., Joseph Singer, ‘The Ownership Society and Takings of Property: Castles, Investments and Just Obligations’, Harvard Environmental Law Review 30 (2006): 309; Joseph Singer, ‘Democratic Estates: Property Law in a Free and Democratic Society’, Cornell Law Review 94, no. 4 (2009): 1009. See also Eduardo M. Peňalver, ‘Land Virtues’, Cornell Law Review 94 (2009): 821. 5 Larissa Katz, ‘Exclusion and Exclusivity’, University of Toronto Law Journal 58, no. 3 (2008): 275. 6 Lee Anne Fennell, ‘Adjusting Alienability’, Harvard Law Review 122, no. 5 (2008): 1403. 7 Henry E. Smith, ‘Property as the Law of Things’, Harvard Law Review 125, no. 7 (2012): 1691. 8 Gregory S. Alexander, ‘The Socio-Obligation Norm in American Property Law’, Cornell Law Review 95, no. 4 (2008): 745. 9 Peter DeScoli and Rachel Karpoff, ‘People’s Judgments About Classic Property Law Cases’, Human Nature 26, no. 2 (2015): 184, 186. 1

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230  Research handbook on law and emotion fied, and that the law always protects the rights of owners above everything else. Drawing on these ideas, this chapter will argue that people’s perceptions of property and what it means to them are not necessarily replicated in property law theory and doctrine – and that this conceptual disconnect is most apparent when we look at emotional attachments to property. All legal systems have well-developed and highly specialised property law rules. Yet these do not always reflect the affective connections that exist between owners and their property. In some instances, the law is preoccupied with treating specific types of property as mere commodities. This reflects a rather crude application of basic law and economics theory, in which the main function of property law is seen as being to facilitate the process whereby assets are transferred into the hands of those who are prepared to pay the highest price for them.10 At other times, the law takes a more nuanced view, acknowledging the meaning of the property to the owner and the character of the relationship between the owner and the property – something which a number of scholars have argued is necessary to capture the true meaning of property.11 This chapter explores these ideas by looking at specific types of property, and the extent to which there is a disconnect between the underlying legal and emotional dynamics. In the pages which follow we shall consider some of the theoretical perspectives before going on to see how and to what extent they are reflected in the law.

THEORETICAL PERSPECTIVES Relatively little has been written on the connection between property and emotions from a legal perspective, despite the centrality of property in everyday human life and the significance which legal systems and individuals attach to property rights. However, many scholars have looked at the link between property and emotions from a psychological perspective, analysing what property means to us as individuals and a society, and basic emotional traits associated with the broad constructs of ‘ownership’ and ‘possession’.12 This is slowly being mapped onto

10 See, e.g., Herbert A. Bernhard, ‘The Minority Doctrine Concerning Direct Restraints on Alienation’, Michigan Law Review 57, no. 8 (1959): 1173; A. Mitchell Polinsky, An Introduction to Law and Economics (4th ed.) (New York: Wolters Kluwer, 2011); Scott Grattan, ‘Revisiting Restraints on Alienation’, Monash Law Review 41 (2015): 67; Thomas J. Miceli, The Economic Approach to Law (3rd ed.) (Stanford: Stanford University Press, 2017). 11 Margaret J. Radin, ‘Property and Personhood’, Stanford Law Review 34, no. 5 (1982): 957; Margaret J. Radin, Reinterpreting Property (Chicago: University of Chicago Press, 1993); Jeremy A. Blumenthal, ‘‘To Be Human’: A Psychological Perspective on Property Law’, Tulane Law Review 83 (2009): 609. 12 Leonard Bloom, ‘People and Property: A Psychoanalytical View’, Journal of Social Behavior and Personality 6, no. 6 (1991): 427; Floyd W. Rudmin, ‘‘To Own is to be Perceived to Own’: A Social Cognitive Look at the Ownership of Property’, Journal of Social Behavior and Personality 6 (1991) 85; James K. Beggan and Ellen M. Brown, ‘Association as a Psychological Justification for Ownership’, Journal of Psychology 128, no. 4 (1994): 365.

The emotional dynamics of property law  231 the field of law.13 We would argue, however,14 that there is one particular emotion cluster that is of particular importance in the property context: that of ‘attachment’,15 and its two distinct (yet related) subcategories of ‘material possession attachment’ and ‘place attachment’.16 The first of these is a multifaceted and emotionally complex attachment to a specific material object, the nature of which can change over time. An extension of the self, material possession attachment is based on some sort of ongoing personal history between the person and the possession.17 Typical examples might include a wedding ring, an old family photo album or favourite holiday souvenir, all of which are imbued with an emotional significance beyond their status as simple items of property and have a sentimental value way beyond their economic worth. Both the uniqueness of the possession and the person’s emotional connections to it create a reluctance to sell, whether for the market value 18 or a price in excess of that; they also render the item irreplaceable if lost or damaged. Although material possession attachment has numerous characteristics, two are particularly relevant in the context of the current discussion. First, there is a lot more to the concept than simply liking or valuing an object; material possession attachment involves a completely different (and much stronger) set of emotions.19 Secondly, it involves not so much possession in the physical or legal sense – though obviously this will often be the case – but rather psychological appropriation in the sense that the object is perceived as ‘mine’.20 Place attachment, in contrast, denotes the affective connection that a person develops and maintains with a particular location. Defined in the literature as ‘an emotional bond formed by an individual to a physical site due to the meaning given to the site through interactional processes’,21 the types of place and the relevant experiences can vary widely though the dominant theme is a strong sense of ‘person-place bonding that develops over time via repeated interac13 See, e.g., Andreas Rahmatian, ‘Psychological Aspects of Property and Ownership’, Liverpool Law Review 29, no. 3 (2008): 287; Barbara A. Spellman and Frederick Schauer, ‘Artists’ Moral Rights and the Psychology of Ownership’, Tulane Law Review 83 (2008): 661; Jonathan R. Nash and Stephanie M. Stern, ‘Property Frames’, Washington University Law Review 87, no. 3 (2009): 449; DeScioli and Karpoff, ‘People’s Judgments’. 14 See also Heather Conway and John Stannard, ‘Property and Emotions’, Emotion Review 8, no. 1 (2016): 38. 15 See generally John Bowlby, Attachment and Loss, Vol. 1 (New York, NY: Basic Books, 1969); Jude Cassidy and Phillip R. Shaver eds., Handbook of Attachment: Theory, Research and Clinical Applications (New York: The Guilford Press, 1999). 16 A third category, ‘brand attachment’, is overlooked, because it is less important in the social and psychological contexts of the present analysis. 17 Susan Shultz Kleine and Stacey Menzel Baker, ‘An Integrative Review of Material Possession Attachment’, Academy of Marketing Science Review 1 (2004): 1. 18 Russell W. Belk, ‘Possessions and the Sense of Past’, in Highways and Buyways: Naturalistic Research from the Consumer Behavior Odyssey, ed. Russell W. Belk (Provo: Association for Consumer Research, 1991), 114. 19 Kleine and Baker, ‘An Integrative Review’, 6. See also Susan Shultz Kleine, Robert E. Kleine, and Chris T. Allen, ‘How is a Possession ‘Me’ or ‘Not-Me’? Characterizing Types and an Antecedent of Material Possession Attachment’, Journal of Consumer Research 22, no. 3 (1995): 327. 20 Kleine and Baker, ‘An Integrative Review’, 2. 21 Melinda J. Milligan, ‘Interactional Past and Potential: The Social Construction of Place Attachment’, Symbolic Interaction 21, no. 1 (1998): 1. See also Irwin Altman and Setha M. Low, Place Attachment (New York, NY: Plenum Press, 1992); M. Carmen Hidalgo and Bernardo Hernández, ‘Place Attachment: Conceptual and Empirical Questions’, Journal of Environmental Psychology 21, no. 3 (2001): 273.

232  Research handbook on law and emotion tions with a place’.22 Specific examples might include a favourite holiday destination or recreational site; an individual’s current home or living space, the family residence in which he or she was raised, and the surrounding neighbourhood; an area of land (regardless of size), which someone either purchased or inherited. For present purposes, our focus will be on the latter two categories as illustrative of the core themes that we are exploring here. However, two passing observations can be made. First, the formative processes and resultant connections to these specific types of property can be personal, group and cultural;23 a sense of ‘rootedness’ and community ties can be important as well.24 Secondly, and more generally, place attachment bears numerous similarities with material possession attachment; in particular, it involves a similar psychological process of appropriation by which the place in question ceases to be a mere geographical location and becomes closely linked with the person’s identity.25 Both material possession attachment and possession attachment are emotionally complex and dynamic concepts, which are based on singularised and formative personal histories between the individual and the object or place in question.26 The specific attachments are both multifaceted and multi-layered (they are a tangle of ‘messy’ emotions rather than a single feeling), and speak to much more than the economic worth of the subject-matter. And while it would be misleading to present the emotions triggered by both types of attachment as exclusively positive experiences (both material possession attachment and place attachment can trigger ambivalent, sometimes negative feelings towards a particular object or place)27 our focus throughout is on the affirmative aspects. This is not just because the applicable literature tends to focus more on these, but because – and with the acknowledged risk of sounding overly generalist – it is the positive emotional experiences embodied in both material possession and place attachment that imbue the object or place with its highly abstract and deeply personal value, and trigger the specific responses in the scenarios below when the particular item or physical space is removed, violated or no longer accessible. Broadly speaking, both material possession and place attachment theories see certain types of property – both real and personal – as inextricably linked to an individual’s personality and his or her lived experiences. In some ways, this resonates with Radin’s seminal ‘property as personhood’ theory,28 one aspect of which views property as both constitutive and reflective of a person’s identity. Adopting these themes, the following section uses selected examples to examine the extent to which different types of attachment and what we might describe as ‘proprietary emotions’ are reflected in ownership rules and legal contests involving property.

22 Kleine and Baker, ‘An Integrative Review,’ 16 (citing Low and Altman, Place Attachment). See also Milligan, ‘Interactional Past and Potential’. 23 Jennifer E. Cross, ‘Processes of Place Attachment: An Interactional Framework,’ Symbolic Interaction 38, no. 4 (2015): 493. 24 Charis E. Anton and Carmen Lawrence, ‘Home is Where the Heart Is: The Effect of Place of Residence on Place Attachment and Community Participation,’ Journal of Environmental Psychology 40 (2014): 451, 452. 25 Milligan, ‘Interactional Past and Potential’, 16–17. 26 Kleine and Baker, ‘An Integrative Review’. 27 See e.g., Louise Chawla, ‘The Ecology of Environmental Memory,’ Children's Environments Quarterly 3, no. 4 (1986): 34. 28 Radin, ‘Property and Personhood’.

The emotional dynamics of property law  233

LEGAL APPLICATIONS Before we begin our analysis, two points require attention. First, property concepts and rules obviously vary across different societies and cultures; for the most part we are focusing on Western constructs of property, and its treatment within these legal systems. Second, the examples below were deliberately chosen, not only because we felt that these would resonate strongly with a broad spectrum of readers, but to incorporate aspects of both real and personal property (to date, law and emotion scholarship in the area has tended to focus on the former). Criminal Law Offences Involving Property Most modern systems of criminal law draw a clear distinction between offences against the person (such as homicide, assault, and rape) and offences against property (such as theft, fraud, and criminal damage or mischief). As George Fletcher pointed out back in 1978, we are now accustomed to thinking about these in terms of the interests they protect; the focus of offences against the person is the physical integrity of the victim, while his or her property rights are taken care of by offences against property.29 The causing of emotional harm does not fit easily within this frame of reference; even in the context of offences against the person, the tendency of the courts is to be wary of penalising what is often termed ‘mere’ emotional distress, at least where it is not accompanied by a recognisable psychiatric diagnosis.30 However, it has been argued that, from a historical perspective, there is a lot more to property offences than the traditional dichotomy might suggest, and that even such a basic property offence as theft has as much to do with protecting the victim’s possession as his or her economic interests in the property stolen.31 This of course resonates very strongly with the emotional factors discussed above, and traces can be seen in a number of areas, most notably in relation to the home. One clear example of this is the Scots offence of ‘hamesucken’, in which a person is pursued into his or her home and assaulted there.32 This was formerly a capital offence, and still provides aggravated penalties; in the words of Professor John Cairns, the word ‘still resonates as a term, because individuals like to feel secure in their own home, and invasion of one’s home seems particularly heinous’.33 Likewise, the courts in England and Wales have always treated domestic burglary as especially serious,34 and this principle continues to be reflected in the current Sentencing Council Guidelines.35 The potential risk to those who might be in the home at the time is undoubtedly a factor here; more than that, however, domestic burglary involves

George Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 1978), 30. See Leslie Y. Garfield, ‘The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress,’ Criminal Law Brief 5, no. 1 (2009): 33; John Stannard, ‘Sticks, Stones and Words: Emotional Harm and the English Criminal Law,’ Journal of Criminal Law 74, no. 6 (2010): 533. 31 Fletcher, Rethinking Criminal Law, 30-57. 32 Gul v. HM Advocate [2013] HCJAC 177; Gemmell v. HM Advocate [2011] HCJAC 129; and Jaklovev v. HM Advocate [2011] HCJAC 90. 33 ‘Scottish Legal News’ (July 8 2015), https://​www​.scottishlegal​.com. 34 R. v. Brewster [1997] 6 WLUK 531; R. v. Jenkins [2001] EWCA Crim 1181; R. v. Saw [2009] EWCA Crim 1. 35 Sentencing Council, Burglary Offences: Definitive Guideline (2011), https://​www​ .sentencingcouncil​.org​.uk. 29 30

234  Research handbook on law and emotion ‘violation of the extended self’36 through the taking of personal possessions and the encroachment by strangers into one’s home. As Kearon and Leach have pointed out, victims’ reactions to burglary (and other ‘property crimes’) can ‘only be understood in the context of victims’ relationships to their homes, personal possessions and related significant personal objects’.37 In the same way, Sharfstein argues that courts ‘routinely anticipate that people will resort to deadly force over even the most picayune trespasses’ to land,38 and the so-called ‘castle’ doctrine seen in some jurisdictions gives a wide latitude to citizens who use lethal force in defence of the home,39 or even in defence of occupied vehicles and vessels.40 While this could also be explained as reflecting the home as a pre-eminent place of safety, the emotional attachments involved are also relevant since the very concept of ‘safety’ denotes reassurance and feelings of comfort, personal wellbeing, etc. As we have seen, the law takes less account of emotional attachments to personal property in this context, and this is something that could be addressed, either in the context of sentencing or by a greater willingness to bring emotional trauma within the scope of offences against the person.41 Recovery of Compensation for Damage to Property Similar considerations apply where compensation is claimed in the civil courts by a person whose property has been wrongfully destroyed or damaged. The law’s standard approach here is to make an award based on the market value of the property, which will often be simply the cost of replacing it with an equivalent item, but there are cases where courts have realised that the kind of emotional attachments we have been discussing make the property essentially irreplaceable. A good example is the English case of O’Grady v Westminster Scaffolding,42 where the claimant’s classic car was badly damaged due to the negligence of the defendants. The defendants argued that the damages should be restricted to the cost of replacement, but the judge decided that, in the special circumstances of the case, the owner should get the full cost of the repairs; given that this was no ordinary car but a classic car, and the claimant had spent a lot of time and money on it over the years, it would not be fair to restrict him to the cost of replacement. In the same way, some United States jurisdictions have allowed recovery of damages for the loss of heirlooms and other property which is of no intrinsic market value but to which the owner has a sentimental attachment.43 These examples are not simply about the Kleine and Baker, ‘An Integrative Review’, 19. Tony Kearon and Rebecca Leach, ‘Invasion of the “Body Snatchers”: Burglary Reconsidered,’ Theoretical Criminology 4, no. 4 (2000): 451, 452. 38 Daniel J. Sharfstein, ‘Atrocity, Entitlement and Personhood in Property,’ Virginia Law Review 98, no. 3 (2012): 635, 639. 39 See Catherine L. Carpenter, ‘Of the Enemy Within, the Castle Doctrine and Self-Defense’, Marquette Law Review 86, no. 4 (2003): 653; Denise M. Drake, ‘The Castle Doctrine: An Expanding Right to Stand Your Ground,’ St Mary’s Law Journal 39 (2007): 573. 40 Stuart P. Green, ‘Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles,’ University of Illinois Law Review 1 (1999): 1. 41 See Richard S. Miller, ‘The Scope of Liability for the Negligent Infliction of Emotional Distress: Making the Punishment Fit the Crime,’ University of Hawaii Law Review 1 (1979): 1; Stannard, ‘Sticks and Stones’. 42 O’Grady v. Westminster Scaffolding (1962) 2 Lloyd’s Law Reports 238. 43 See Phil Goldberg, ‘Courts and Legislatures Have Kept the Proper Leash on Pet Injury Lawsuits: Why Rejecting Emotion-Based Damages Promotes the Rule of Law, Modern Values and Animal 36 37

The emotional dynamics of property law  235 item in question being ‘one of a kind’ and irreplaceable, though that is undoubtedly part of the narrative; it is the emotional value of the item to the injured party – what we might describe as its sentimentality – that make market value such a difficult restitutionary marker to apply.44 What goes for inanimate property applies even more strongly in the case of pets; for instance the New York Civil Court in Corso v. Crawford v Cat and Dog Hospital Inc.,45 a case involving the wrongful disposition of the remains of a dead dog, declared that a pet was not just a thing, but occupied a special place somewhere in between a person and a piece of property, the essential factor being that (unlike other property) it was capable of returning affection as well as receiving it. For this reason it has been argued that claimants whose companion animals are wrongfully killed should at least be entitled to the same kind, though not necessarily the same magnitude, of damages as parents of young children who are wrongfully killed.46 However, as Goldberg has shown, courts in the United States have steadfastly resisted calls to extend the law in this way.47 The one exception to this is in cases involving the intentional infliction of emotional injury, as in the example cited by Goldberg where in the film Fatal Attraction one character deliberately kills another’s pet rabbit to whom she knows the other is especially devoted. There seem to be two rationales behind the reluctance of the courts to develop the law in this way, one being the anomaly of allowing for emotional loss in these cases where it is not allowed for the loss of human beings other than spouses and children, and the other being the impact it would have on the cost of pet products and services generally, most notably in the field of insurance. Legal Contests Involving the Home The concept of ‘home’ has spawned a vast amount of literature in recent years, much of which emphasises the complex and multifaceted nature of the concept.48 Thus for Thompson, the home is the ‘most intimate space we inhabit…the place where our most significant relationships are nurtured [and] where we can impart a sense of self in both physical and psychological

Welfare,’ Stanford Journal of Animal Law and Policy 6 (2013): 30. See also Victor E. Schwartz and Cary Silverman, ‘The Rise of Empty Suit Litigation: Where Should Tort Law Draw the Line?’ Brooklyn Law Review 80, no. 3 (2014): 599. 44 Patrick Luff, ‘The Market Value Rule of Damages and the Death of Irreparable Injury,’ Cleveland State Law Review 59, no. 3 (2011): 361. 45 Corso v. Crawford v. Cat and Dog Hospital, Inc. 415 NYS2d 182 (1979). 46 Steven M. Wise, ‘Recovery of Common Law Damages for Emotional Distress, Loss of Society and Loss of Companionship for the Wrongful Death of a Companion Animal,’ Animal Law 4 (1998): 33. 47 Goldberg, ‘Courts and Legislatures’. 48 See, e.g., D. Geoffrey Hayward, ‘Home as an Environmental and Psychological Concept’, Landscape 20 (1975): 2; Kimberley Dovey, ‘Home and Homelessness’, in Home Environments, eds, Irwin Altman and Carol M. Werner (London: Plenum Press, 1985), 33; Hazel Easthope, ‘A Place Called Home’, Housing, Theory and Society 21, no. 3 (2004): 128; D. Benjamin Barros, ‘Home as a Legal Concept’, Santa Clara Law Review 46, no. 2 (2006): 255. However, another piece by Stephanie Stern is more critical: Stephanie M. Stern, ‘Residential Protectionism and the Legal Mythology of Home,’ Michigan Law Review 107 (2009): 1093.

236  Research handbook on law and emotion ways’.49 For Gurney the home is, for good or ill, nothing less than an ‘emotional warehouse’;50 for Low these emotions can be not only ‘proactive’ ones such as love, warmth, trust and security, but also ‘reactive’ ones associated with defensive feelings and a desire to be protected from real or imagined dangers.51 The law recognises the inherently unique character of the home in, for example, protecting it from external threats (the ‘castle doctrine’ mentioned above is one illustration). Yet where the home is at the centre of private legal disputes – those between individuals and/or non-state organisations – the emotional significance ascribed to it varies significantly. The types of attachment highlighted earlier have fluid boundaries, and material possession attachment shades into place attachment when analysing the home, though the latter theory is likely to be the dominant one here. Affective connections to the home are simultaneously complex and deeply rooted. In the matrimonial context, Anthony has described it as an ‘important third party in the marriage’52 – an observation that applies to most intimate personal and familial relationships. Emotions run high in family law matters,53 and the home is often the focal point when couples are divorcing or separating. Within the legal arena, its value as a financial asset is a harsh yet inescapable reality, and courts will also be guided by who owns the home (if not in joint names), whether one person has the means to purchase the other’s share or whether a sale and division of the asset is the best way forward. Legal – and practical – realities will override sentimental ties, and residential displacement is inevitable as shared living arrangements come to an end. Yet, in relationship break-ups involving minor children, the kaleidoscope turns and emotional attachments are recognised by governing legislation – albeit implicitly. Here, the custodial parent is often granted the family residence in the absence of a mediated agreement imposing something else. In doing so, the law is prioritising the children’s needs, recognising the nurturing and stability aspects of the home from a child welfare perspective. Embedded within this policy objective, is a tacit acknowledgment of the children’s place attachments to home as the locus of family life, formative childhood interactions and the place where they want to continue living into adulthood.54 In this scenario, the custodial parent’s place attachments are recognised vicariously, though these may have changed significantly during the demise of the relationship itself. Thompson has pointed out that meanings of home are ‘disrupted, changed and lost when families…fall apart’;55 instead of being a source of comfort, familiarity and shared memories, the home can become a source

49 Susan Thompson, ‘Home and Loss: Renegotiating Meanings of Home in the Wake of Relationship Breakdown’, M/C Journal 10, no. 4 (2007): [1]. http://​journal​.media​-culture​.org​.au/​0708/​07​-thompson​ .php. 50 Craig Gurney, ‘Towards a More Affective Understanding of Home’, in Proceedings of Culture and Space in Built Environments: Critical Directions/New Paradigms (2000): 33. 51 Setha M. Low, ‘The New Emotions of Home: Fear, Insecurity and Paranoia’, in Indefensible Space: The Architecture of the National Insecurity State, ed. Michael Sorkin (New York: Routledge, 2008), 233. 52 Kathryn H. Anthony, ‘Bitter Homes and Gardens: The Meanings of Home to Families of Divorce’, Journal of Architectural and Planning Research 14, no. 1 (1997): 1. 53 See, e.g., Clare Huntington, ‘Repairing Family Law’, Duke Law Journal 57, no. 5 (2007): 1245. 54 Gordon Jack, ‘Place Matters: The Significance of Place Attachments for Children’s Well-Being’, British Journal of Social Work 40, no. 3 (2008): 755, 758. 55 Thompson, ‘Home and Loss’, 1.

The emotional dynamics of property law  237 of pain that symbolises the loss of the intact family56 as well as lost hopes and dreams.57 Meanwhile the non-custodial parent must establish a new home environment and begin the process of creating new and meaningful ties in unfamiliar surroundings, while negotiating the loss of the shared home, the routine of family life and the neighbourhood ties that went with it.58 Family changes disrupt place attachments, adding to the overwhelming sense of loss and grief that comes with the end of an intimate relationship.59 In contrast, when third parties such as lenders and creditors become part of the legal scenario the picture changes dramatically because the home is now the focal point of an entirely different type of dispute. The sentiments and attachments of those living there are overlooked; instead, the law views the home as a capital asset to be sold to discharge outstanding debts. In mortgage foreclosures – a frequent occurrence in the wake of subprime lending and high rates of residential mortgage default – sale seems inevitable, in the absence of debtor-protective measures such as the right to reclaim the property if the debtor can find the money (so-called ‘redemption rights’).60 Similar trends can be seen in consumer bankruptcy actions; the emotional and psychological well-being of those who live in the home (both adults and children) is disregarded, unless individual state exemption laws protect it from liquidation.61 Conscious of the public policy interest in allowing those who loan money against the security of the home to recoup their debt if things go wrong, the law’s mantra is to sell and reimburse if necessary. For the displaced homeowner or occupier, however, this involves so much more than the loss of a physical structure and financial investment; there is the loss of security, of personal and familial identity and pride, and a sense of disempowerment often mixed with a strong sense of failure. As Fox O’Mahony has pointed out, it ‘is important to recognize that while the whole idea of “home” as an emotional attachment may not easily fit within the value structures of the traditional law-and-economics approach to property law, the significance of the home as identity is undoubtedly real for occupiers’.62 Yet, while individual and familial place attachments to the home tend to be overlooked, some commentators have argued for a more reflective legal approach which preserves the primary residence where possible. For example, Baker has proposed a ‘right to rent’ scheme whereby homeowners would be able to rent the property back after foreclosure to protect the shelter aspect of the home and prevent forced exit by residents with special needs such as minor children.63

Anthony, ‘Bitter Homes’, 4. Thompson, ‘Home and Loss’, 18. 58 Thompson, ‘Home and Loss’, 18. Beyond the physical space of the home, there is the process of dividing the objects within it – many of which (such as family photos or treasured gifts) generate their own strong material possession attachments. 59 Darcy L. Harris, ‘Navigating Intimate Relationship Loss: When the Relationship Dies But the Person is Still Living’, in Counting Our Losses: Reflecting on Change, Loss and Transition in Everyday Life, ed. Darcy L. Harris (Routledge: New York, 2011), 65. 60 Melissa B. Jacoby, ‘The Value(s) of Foreclosure Law Reform’, Pepperdine Law Review 37, no. 2 (2010): 101. 61 Richard M. Hynes, Anup Malani and Eric A. Posner, ‘The Political Economy of Property Exemption Laws’, Journal of Law and Economics 47, no. 1 (2004): 19. 62 Lorna Fox O’Mahony, ‘Home Ownership, Debt and Default: The Affective Value of Home and the Challenge of Affordability’, in Affordable Housing and Public Private Partnerships, ed. Nestor M. Davidson (London: Routledge, 2009), 169, 180. 63 Dean Baker, ‘Subprime Borrowers Deserve an Own to Rent Transition’, The Economists’ Voice 5, no. 1 (2008). 56 57

238  Research handbook on law and emotion State-sanctioned Losses of Property: Adverse Possession and Eminent Domain Despite the fundamental right to property enshrined within the American legal system, there are two situations actively facilitated by the state in which owners can lose their property. The first is adverse possession, whereby the law allows a squatter to claim another person’s land based on uninterrupted possession for a period of time prescribed in limitation statutes, and which varies from state to state.64 At the end of that time, the squatter becomes the ‘rightful’ owner through what was initially a ‘wrongful’ act (trespass to land), and the original owner has their title extinguished without compensation from the squatter (or from the state). Adverse possession is both controversial and emotive: public reactions are overwhelmingly negative, and it tends to be viewed as nothing more than ‘theft or robbery, a primitive method of acquiring land without paying for it’.65 The current authors have analysed the emotional dynamics elsewhere,66 arguing that societal views of adverse possession are shaped by an expectation that the law provides strong (if not impervious) protections for private property rights and that such rights are subject to minimal state inference. From the perspective of the landowner, however, this is only part of the emotional narrative. He or she will feel a strong sense of loss – of something that was legally theirs, of the use and future plans for the property. Financial loss will be a factor as well, and while the payment of compensation would not ‘make things right’ here, the absence of compensation adds proverbial insult to injury. Place attachments are disrupted as the state sanctions something that seems inherently wrong, fuelling the sense of anger and injustice – and a sense of helplessness as the landowner’s displacement is not a voluntary act. Despite its very different theoretical basis, similar themes are apparent when looking at eminent domain. An ‘inherent attribute of sovereignty’,67 eminent domain allows the government to take private land for public use in certain circumstances. Under the Fifth Amendment of the US Constitution, the power can only be exercised where the land is required for ‘public use’ and where the owner is given ‘just compensation’ in return; similar limitations are placed on federal and state governments through the Fourteenth Amendment. The erosion of private property rights on the basis of public interest has been questioned,68 and it is hardly surprising that eminent domain is an emotive topic which triggers extreme public reactions.69 There is no better illustration than the backlash to the Supreme Court decision in Kelo v City of New London,70 when it ruled by a 5:4 majority that residents living in Fort Trumbull, New London, some of whom had been residents for their entire lives, had to vacate their homes for the pharmaceutical giant Pfizer to build a new plant there with all its supposed economic

64 Jeffrey E. Stake, ‘The Uneasy Case for Adverse Possession’, Georgetown Law Journal 89 (2001): 2419. 65 Henry W. Ballantine, ‘Title by Adverse Possession’, Harvard Law Review 32, no. 2 (1919): 135. 66 Heather Conway and John Stannard, ‘The Emotional Paradoxes of Adverse Possession’, Northern Ireland Legal Quarterly 64, no. 1 (2013): 75. 67 Janice Nadler, ‘The Social Psychology of Property: Looking Beyond Market Exchange’, Annual Review of Law and Social Science 14 (2018): 367. 68 See, e.g., Ellen Frankel Paul, Property Rights and Eminent Domain (Routledge: New York, 2017). 69 Janice Nadler and Shari S. Diamond, ‘Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity’, Journal of Empirical Legal Studies 5, no. 4 (2008): 713. 70 Kelo v. City of New London, 545 U.S. 469 (2005).

The emotional dynamics of property law  239 benefits for the community.71 Again, we can see the disruption of place attachments and the sense of anger triggered by the loss of a stable home and surrounding neighbourhood – all with minimum investment on the part of Pfizer. Yet the forced displacement and sense of helplessness at having to leave one’s home and community is only part of the narrative; the fact that any compensation payable is typically benchmarked at the fair market value of the property72 exacerbates the problem and increases the sense of loss. This blunt financial model treats the home as mere ‘bricks and mortar’; it does not acknowledge the outrage caused by a forced taking, let alone the psychological loss of the home as a repository of memories and as a symbol of personal and familial identity, the physical and emotional investments in the property over time, as well as the loss of neighbourhood and community when private citizens are forced to relocate from one area to another under the guise of ‘public good’.73 Fried has described the loss of a home in these circumstances as similar to the death of a loved one74 – an analysis which resonates with theories of material possession attachment and place attachment, though studies have reported higher place attachments to homes than to neighbourhoods.75 Of course, it is a harsh reality that emotional attachments cannot be used to frustrate policy goals where property is needed in the public interest; but the idea of that same property being reducible simply to its market value does not reflect the emotional attachments that displaced owners have to it. While economists might ‘assume that the sentiments, memories, relationships, meaning, and identity that connect an owner with her property can be translated into a dollar value’,76 this is not true in eminent domain cases – though some have questioned whether it is actually possible to incorporate sentimental values into determining a property’s value, given the ‘inherent subjectivity’ this would entail.77 Undeterred, Nadler and Diamond have posited different models for reflecting this, such as set proportion percentage increases on the market price.78 Meanwhile Powell suggests retaining the market value baseline, but introducing stronger legal protections for property owners and less expansive state powers to reduce the overall level of regulatory takings.79

71 See Charles E. Cohen, ‘Eminent Domain After Kelo v. City Of New London: An Argument For Banning Economic Development Takings’, Harvard Journal of Law and Public Policy 29, no. 2 (2005): 491; Ilya Somin, The Grasping Hand: Kelo v. City Of New London and the Limits of Eminent Domain (Chicago: University of Chicago Press, 2016). 72 Steven J. Eagle, Regulatory Takings (5th ed.) (New Providence, NJ: LexisNexis, 2013). 73 Raymond R. Coletta, ‘The Measuring Stick of Regulatory Takings: A Biological and Cultural Analysis’,  University of Pennsylvania Journal of Constitutional Law 1, no. 1 (1998): 20; Jeffrey T. Powell, ‘The Psychological Cost of Eminent Domain Takings and Just Compensation’, Law & Psychological Review 30 (2006): 215. 74 Marc Fried, ‘Grieving for a Lost Home’, in The Urban Condition: People and Policy in the Metropolis, ed. Leonard J. Duhl (New York: Basic Books, 1963), 151. 75 See Maria Lewicka, ‘Place Attachment: How Far Have We Come in the Last 40 Years?’ Journal of Environmental Psychology 31, no. 3 (2011): 207. 76 Nadler, ‘The Social Psychology’. 77 David Markell, Tom Tyler and Sarah Brosnan, ‘What Has Love Got To Do With It?: Sentimental Attachments and Legal Decision-Making’, Villanova Law Review 57, no. 2 (2012): 209, 223. 78 Nadler and Diamond, ‘Eminent Domain’, 14–15. 79 Powell, ‘The Psychological Cost’.

240  Research handbook on law and emotion Inheritance Disputes in Families Set against the loss of a loved one, inheritance disputes within families occur at an emotionally charged time.80 Those involving adult children following the death of a parent are uniquely complex and divisive, as unequal estate distributions, parental disinheritance or simple disagreements over ‘who gets what’ reignite ‘old issues of sibling rivalry and dominance’.81 Some disputes are driven purely by economic consequences of a lost inheritance; but in many instances, it is the fact that specific bequests are viewed as posthumous representations of ‘love, validation, and importance’ between parent and child82 that is the real problem. Different types of property are imbued with meaning, and generate strong emotional attachments, as well as creating their own distinct inheritance expectations – something that is not reflected in wills and estates law.83 The core value of testamentary freedom allows a legally competent adult to bequeath their property to whomever they choose.84 This means that parents are free to disinherit their children, if they choose to do so: while we might view children as the natural recipients of their parent’s bounty, there is no such legal entitlement and the United States stands alone in allowing total disinheritance.85 Yet, it would be wrong to assume that the only aggrieved children are those who find themselves frozen out in this manner; estate contests are just as common where a parent has executed a legally valid will, but the resultant estate distribution is perceived by the children as unjust or unfair. The emotional effects are not short-lived or confined to the disappointed beneficiary; as Drake and Lawrence have pointed out, ‘[w]here inheritance distributions are concerned…, perceptions of injustice may sour family relationships for generations’.86 Most wills focus on real estate, businesses and financial assets, as high-value items. We return to the third one below, and focus initially on the first two. Testamentary freedom facilitates individual choice; however, when it comes to deciding which child should inherit family land or a family business, a host of factors come into play. The property in question may not be easy to divide or apportion (doing so might ultimately devalue it); there may be the question of which child has worked on the land or played a pivotal role in the business; and birth order and gender often play a role when it comes to things like family farms where

P. Mark Accettura, Blood & Money: Why Families Fight Over Inheritance and What To Do About It (Michigan: Collinwood Press, 2011). 81 Jay Folberg, ‘Mediating Family Property and Estate Conflicts’, Probate & Property 23 (2009): 8. See also Jeanne Safer, Cain's Legacy: Liberating Siblings From a Lifetime of Rage, Shame, Secrecy, and Regret (New York: Basic Books, 2012); Heather Conway, ‘Where There’s a Will…: Law and Emotion in Sibling Inheritance Disputes,’ in The Emotional Dynamics of Law and Legal Discourse, eds, Heather Conway and John Stannard (Oxford: Hart Publishing, 2016), 35. 82 Accettura, Blood and Money, 2. 83 This discussion focuses solely on testamentary gifts as opposed to intestacy distributions, since both the will-maker’s freedom of choice and how this is perceived by his/her survivors makes it more amenable to a law and emotions analysis than a legislatively mandated universal scheme. 84 Jesse Dukeminier and Robert H. Sitkoff, Wills, Trusts and Estates (9th ed.) (Wolters Kluwer, 2014), ch 1. 85 Ronald Chester, ‘Disinheritance and the Adult Child: An Alternative from British Columbia’, Utah Law Review 1 (1998): 1. A notable exception in the United States is the state of Louisiana. 86 Deirdre G. Drake and Jeanette A. Lawrence, ‘Equality and Distributions of Inheritance in Families’, Social Justice Research 13, no. 3 (2000): 271, 272. 80

The emotional dynamics of property law  241 the emphasis still tends to be on the eldest son.87 The family home is another good example; since the property is not divisible in a practical sense, and adult children who have long since moved away are unlikely to return, a parent’s will might direct that the home be sold and the proceeds divided equally between the children. Although consistent with social norms around the post-mortem allocation of wealth, such directions can be problematic for the child who is not keen on selling because of strong and enduring emotional ties to the property. Place attachments dominate here: the home is a repository of memories, a unique physical space that conjures up nostalgic images of warmth, security, and growing up as a family with the now deceased parent(s). A share of the monetary value cannot compensate for this loss. The same is true of old family cottages and vacation homes where siblings holidayed with their parents. In many cases, parents (acting with the noblest of intentions) leave vacation properties to their children as shared owners, passing them on ‘like a precious heirloom, to be filled with new memories’.88 All too often, the result is discord when one sibling insists on keeping the property to recreate their own childhood idylls and another resents having their inheritance tied up in a place which they now only value as a cash asset. Vacation properties are a fertile source of litigation,89 though American courts cannot simply overturn an estate distribution since there is no scope to vary the terms of an otherwise valid will. Instead the law’s approach is to sell and apportion – the typical default position where two parties are fighting over something which cannot be split into separate parts. The end result is obvious: one sibling’s financial gain is the other’s psychological loss, and something which just cannot be compensated by giving that brother or sister a share of the money raised by selling the property. Looking beyond real property, money and cash convertible assets such as stocks and shares can be divided in whatever way a parent sees fit – more so than most of the other types of property being looked at here. Where the division is unequal, siblings may be minded to contest any resultant economic disparity, not because of particularly strong emotional attachments to the money itself, but because of what the unequal distribution symbolises and a sense that this is in some way unfair. Of course, there is no discrete legal basis for doing so: testamentary freedom is paramount, and seemingly ingrained social assumptions that children are entitled to equal shares of a parent’s estate, where there is more than one child, are not reflected in any legal reality. The law allows unequal treatment.90 Personal possessions, in contrast, are often omitted from the distributive contents of a dead parent’s will; and while real estate and money are more likely to trigger the sort of litigation alluded to here, disputes over who gets items of personal property (e.g., a mother’s wedding ring or a father’s watch; photo albums; lovingly assembled collections of books, music or china; family mementoes such as Christmas ornaments and holiday souvenirs) can become just as embittered, even if they are less likely to end up in court.

87 Jacqueline J. Goodnow and Jeanette A. Lawrence, ‘Inheritance Norms for Distributions of Money, Land and Things in Families,’ Family Science 1, no. 2 (2010): 73; Daphna Hacker, ‘The Gendered Dimension of Inheritance: Empirical Food for Legal Thought’, Journal of Empirical Studies 7, no. 2 (2010): 322. 88 Stuart J. Hollander, Rose Hollander and David Fry, Saving the Family Cottage (Chicago: Nolo, 2013), 8. 89 Hollander, Hollander and Fry, Saving the Family Cottage. 90 See Conway, ‘Where There’s a Will.’

242  Research handbook on law and emotion There are two reasons for this. First, as items accumulated over a parent’s lifetime (and sometimes across generations of the same family), they are imbued with personal meaning.91 Because they symbolise the dead parent, personal possessions engender exceptionally high levels of emotional attachment, and their symbolic quality is an important factor.92 While we might argue that all property is ‘personal’ property in the inheritance context, a dead parent’s personal possessions generate particularly strong feelings and inheritance expectations. Such items have a sentimental value unrelated to their economic worth, even outside the inheritance context; they have a heightened personal significance because they are ‘bound up’ with the person.93 Personal possessions generate strong material attachments; and on the death of a parent, which child inherits which items can be a source of contention – and there are no discrete legal rules to fill this particular void. Second, the reality is that certain things (e.g., a favourite painting, specific pieces of jewellery) cannot be divided, fuelling the emotional anguish. Stum highlights ‘[o]ngoing rivalries’ and issues of ‘power and control’ among siblings as influencing the transfer of personal possessions.94 However, birth order and gender also have a significant role to play here - for example, a brother is more likely to claim a father’s watch than his sisters, while a mother’s wedding ring often ends up with the eldest daughter.95 Again, there is no legal basis for such a gendered and hierarchical division; social conventions dominate here.

THE WAY FORWARD If there is one theme running through the literature that we have been discussing, it is this: people exhibit identifiable emotional attachments to material objects, which influence how the latter are perceived and valued. Such attachments clearly have a significant impact, but whatever psychological lens is used to view them, it cannot be denied that they are both multifaceted and complex in nature. As we have seen, they also do not fit in well with the standard economic theories underlying property law, which find difficulty in reflecting and quantifying ‘externalities’ of this sort. In the words of Janice Nadler, individuals’ valuation of property is subject to influences not readily predicated by standard economics theory.96 For this reason there is often a disconnect between the law’s approach and the psychological dynamics involved. After all, emotional attachments to property speak essentially to its associative dimensions: something that cannot easily be captured in property law discourse. No doubt there is a certain intuitive logic around property and owning property, and what this means, yet at times the law’s treatment of property seems counter-intuitive, coming up with results that do not match social expectations, and which challenge core beliefs around property rights. In

Darach Turley and Stephanie O’Donohoe, ‘The Sadness of Lives and the Comfort of Things’, Journal of Marketing Management 28, 11 (2012): 1331, 1342. 92 Judith G. McMullen, ‘Keeping Peace in the Family While You are Resting in Peace: Making Sense of and Preventing Will Contests’, Marquette Elder’s Advisor 8 (2006): 61, 82. 93 Radin, ‘Property and Personhood’. 94 Marlene S. Stum, ‘Families and Inheritance Decisions: Examining Non-Titled Property Transfers’, Journal of Family and Economic Issues 21, no. 2 (2000): 177, 179. 95 Denise M. Drake, ‘The Castle Doctrine’, 573, 598. 96 Nadler, ‘The Social Psychology of Property’. 91

The emotional dynamics of property law  243 sum, it cannot be denied that property law doctrines and rules sometimes ride roughshod over emotional attachments of this sort. That said, the extent to which property law should reflect such attachments is more doubtful. Indeed, it might be argued that to a certain extent a functioning system of property law has to ignore them. There is no clear answer here, but three points can be made in this connection. First of all, in so far as law is something that people do, those who ‘do’ property law (whether as legislators, practitioners or judges) cannot afford to be unaware of the emotional dynamics we have been discussing. The strength of emotional attachments to place and property and the influence that they exert is something that cannot be denied, and if lawyers, judges and law-makers are to be properly informed in their approach to problems of property law, they cannot afford to be totally ignorant of such matters. Secondly, saying that those who do property law should be aware of the emotional dynamics does not imply that they should be given any particular weight. While it may be tempting to suggest that they should be more systematically acknowledged across the board, a universal approach would be neither feasible nor desirable. Not feasible, because emotional attachments are context-specific: they vary according to the type of property, the individual’s affective connections to it, and the circumstances in which he or she is confronted with the loss of, damage to or exclusion from a particular piece of property. Not desirable for two reasons: because not all such attachments deserve equal weight, and because they may come into conflict with other more traditional ‘commodity’ interests and investment-based dynamics. In sum, the answer to the question must be context-specific. Last but not least, taking emotional dynamics of this sort into account is of no use whatsoever if done from a position of ignorance. Armchair psychology simply will not do in this or any other legal context. In a study published a decade ago, Andreas Rahmatian identified a clear disconnect between the legal and psychological literature in this respect; psychologists, whether individual or social, rarely if ever touched on the topic of property rights, whereas lawyers rarely looked into the possible psychological roots of property rights and the powers they entail.97 He goes on to add that while there is clearly some psychological reason for the existence of the legal institution of property, studies to date have been based on a reinterpretation of existing psychological studies – some of which deal with property only incidentally – rather than on any dedicated interdisciplinary programme of research on the topic. Such a programme, as we have argued elsewhere, is long overdue.98

CONCLUSION In a seminal article written over a decade ago, Terry Maroney stressed the need for law and emotions to embrace a range of established disciplines in order to be recognised as a specialised field in its own right.99 The brief analysis that we have undertaken here has highlighted how this applies to property law, as much as it does to every other legal topic that is studied by those of us researching in this exciting and ever-expanding field of scholarship. Rahmatian, ‘Psychological Aspects’. Conway and Stannard, ‘Property and Emotion’. 99 Terry Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field’, Law and Human Behavior 30 (2006): 119. 97 98

244  Research handbook on law and emotion Psychological attitudes towards property, its loss and its acquisition are well-documented in modern Western societies – but these are not always reflected in the judicial or legislative processes which govern contested claims, when property law becomes a mechanism for allocating and enforcing rights and duties among persons, regardless of emotion or sentiment, and ownership with all its intrinsic values does not always reign supreme. How a functioning system property law might recognise and reflect emotional attachments when allocating specific types of property or compensating for its loss is a debate for another day. In the meantime, we hope to have persuaded the reader of the extent to which insights from other disciplines can affect both our concept of property itself and the deeper theoretical questions that we have posed here.

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The emotional dynamics of property law  247 R. v. Jenkins [2001] EWCA Crim 1181. R. v. Saw [2009] EWCA Crim 1. Radin, Margaret J. ‘Property and Personhood’. Stanford Law Review 34, no. 5 (1982): 957–1015. Radin, Margaret J. Reinterpreting Property. Chicago: University of Chicago Press, 1993. Rahmatian, Andreas. ‘Psychological Aspects of Property and Ownership’. Liverpool Law Review 29, no. 33 (2008): 287–308. Rudmin, Floyd W. ‘“To Own Is To Be Perceived to Own”: A Social Cognitive Look At the Ownership of Property’. Journal of Social Behavior and Personality 6 (1991): 85–104. Safer, Jeanne. Cain's Legacy: Liberating Siblings From a Lifetime of Rage, Shame, Secrecy, and Regret. New York: Basic Books, 2012. Schwartz, Victor E., and Cary Silverman. ‘The Rise of Empty Suit Litigation: Where Should Tort Law Draw the Line?’ Brooklyn Law Review 80, no. 3 (2014): 599–676. Scottish Legal News, July 8, 2015. https://​www​.scottishlegal​.com. Sentencing Council (2011), Burglary Offences: Definitive Guideline. https://​www​.sentencingcouncil​ .org​.uk. Sharfstein, Daniel J. ‘Atrocity, Entitlement and Personhood in Property’. Virginia Law Review 98, no. 3 (2012): 635–90. Singer, Joseph W. ‘The Ownership Society and Takings of Property: Castles, Investments and Just Obligations’. Harvard Environmental Law Review 30 (2006): 309–38. Singer, Joseph W. ‘Democratic Estates: Property Law in a Free and Democratic Society’. Cornell Law Review 94, no. 4 (2009): 1009–62. Smith, Henry E. ‘Property as the Law of Things’. Harvard Law Review 125, no. 7 (2012): 1691–762. Somin, Ilya. ‘The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain’. Chicago: University of Chicago Press, 2016. Spellman, Barbara A., and Frederick Schauer. ‘Artists’ Moral Rights and the Psychology of Ownership’. Tulane Law Review 83 (2008): 661–78. Stake, Jeffrey E. ‘The Uneasy Case for Adverse Possession’. Georgetown Law Journal 89 (2001): 2419–74. Stannard, John E. ‘Sticks, Stones and Words: Emotional Harm and the English Criminal Law’. Journal of Criminal Law 74, no. 6 (2010): 533–56. Stern, Stephanie Menzel. ‘Residential Protectionism and the Legal Mythology of Home’. Michigan Law Review 197 (2009): 1093–144. Stum, Marlene S. ‘Families and Inheritance Decisions: Examining Non-Titled Property Transfers’. Journal of Family and Economic Issues, 21(2) (2000): 177–202. Thompson, Susan. ‘Home and Loss: Renegotiating Meanings of Home in the Wake of Relationship Breakdown’. M/C Journal 10, no. 4 (2007). http://​journal​.media​-culture​.org​.au/​0708/​07​-thompson​.php. Turley, Darach, and Stephanie O’Donohoe. ‘The Sadness of Lives and the Comfort of Things’. Journal of Marketing Management 28 (2012): 1331–53. Wise, Steven M. ‘Recovery of Common Law Damages for Emotional Distress, Loss of Society and Loss of Companionship for the Wrongful Death of a Companion Animal’. Animal Law 4 (1988): 33–93.

16. ‘…You don’t pay £100,000 to a lawyer unless you care about something’: The role of emotion in contract law Emma Jones

INTRODUCTION As every law student quickly discovers, contracts are ubiquitous in day-to-day life. From the cup of coffee on the way to work, to the long-awaited purchase of a dream holiday, they represent a key part of the framework through which the private law regulates the lives of individuals within contemporary society. For businesses of all shapes and sizes, contracts are also vital to their trading and survival. From supply and delivery to debt collection, from employment to relationships with consumers, all key elements of commercial life are regulated via this mechanism.1 At the same time, all of these elements of private and commercial life involve forms of human interaction and behaviour and are thus imbued with emotional dimensions.2 However, within contract law, it often seems that contracts and emotion run along parallel lines – never meeting or even colliding. Despite the pervasive nature of contracts in the ordering and regulation of human interaction, the literature on the role of emotion in contract law is relatively sparse. What discussion of emotion in contract law there is tends to focus either on a very specific form of contract (e.g., Berk’s exploration of surrogacy arrangements)3 or on a particular doctrinal aspect (as with Keren’s discussion of affective consideration, focused on donative promises4 and Radin’s consideration of boilerplate clauses).5 Although contractual transactions are commonly referred to as ‘contractual relations’ or a ‘contractual relationship’, such ‘relationships’ are often discussed and interpreted (within both academia and practice) using a traditional legal framework that focuses on rationality and the allocation of risk.6 Terms such as ‘arm’s length’ explicitly capture this emphasis on distance and structure which contract law seeks to formal-

This chapter is written with a specific focus on contract law within the United Kingdom (‘UK’), particularly England and Wales, whilst also drawing on an international body of literature which indicate parallels within other jurisdictions. 2 See, e.g., Sharon Boden and Simon L. Williams, ‘Consumption and Emotion: The Romantic Ethic Revisited’, Sociology 36, no. 3 (2002): 493. 3 Hillary L. Berk, ‘The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor’, Law & Society Review 49, no. 1 (2015): 143. 4 Hila Keren, ‘Considering Affective Consideratio’, Golden Gate University Law Review 40, no. 2 (2010): 165. 5 Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (Princeton: Princeton University Press, 2013). 6 Yuval Feldman, ‘Control or Security: A Therapeutic Approach to the Freedom of Contract’, Touro Law Review 18, no. 3 (2001–2002): 503. 1

248

The role of emotion in contract law  249 ise.7 The underlying assumption appears to be that emotion is either absent or, at best, simply irrelevant. This may well be linked to the broader antipathy that has commonly been viewed as existing between law and emotion, in which emotion is viewed as a barrier to legal reason; introducing bias, warping decision-making, and thus producing unfairness or injustice.8 Although this view can be demonstrated to be erroneous, and has increasingly been challenged in some areas of law,9 it still appears to have a stronghold on the analysis of contract law. Recent developments in neuroscience and psychology have given a clearer understanding of the role and importance of emotion. These challenge the notion of a hierarchy in the brain, with the rational cortex as the master of the irrational limbic system where emotion sits. Instead, these insights demonstrate the ways in which emotion is intertwined with, and influences, cognition in a far more complex way.10 As a result, the conceptualisation of rationality and emotion as antithetical, with emotion characterised as irrational and potentially dangerous, is becoming increasingly untenable. There is a growing recognition amongst neuroscientists, psychologists and commentators that a more nuanced understanding of the relationship between emotion and rationality is required to acknowledge and explore the role of emotion in decision-making and choices. Legal scholars Bandes and Blumenthal highlight this when discussing the role of emotions more generally: [Emotions] influence the way we 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.11

Given the large body of evidence, from neuroscience and other disciplines, that rationality and emotion are, in fact, intertwined and inseparable, and that the law is imbued with emotion, this chapter posits that a broader view of the inter-relationship between emotion and contract law is now required.12 Emotion is present within contractual transactions and across all stages of the contract, from formation through to the disputes which may arise before and after completion. The role emotion does, can, and ought to play should therefore be explicitly acknowledged and explored within both theoretical and practical discussions on contract law, rather than remaining an implicit presence within many current debates and examples. For example, take the discussion over which test should be used to determine whether a contractual agreement exists and whether the most appropriate evidence of the parties’ intentions is subjective, based on the individual’s intentions (the historical standard), or objective, based on the perception

Daniel Markovitz ‘Promise as an Arm’s Length Relationship’, in Promises and Agreements: Philosophical Essays, ed. Hanoch Sheinman (New York: Oxford University Press, 2011). 8 Susan A. Bandes, ed., The Passions of Law (New York: New York University Press, 1999). 9 See, e.g., Heather Conway and John Stannard, Emotional Dynamics of Law and Legal Discourse (Portland: Hart Publishing, 2016). 10 See, e.g., Antonio Damasio, Descartes’ Error (London: Vintage, 2006); Phoebe C. Ellsworth, ‘Appraisal Theory: Old and New Questions’, Emotion Review 5, no. 2 (2013): 125; Lisa Feldman Barrett, How Emotions Are Made: The Secret Life of the Brain (London: Macmillan, 2017). 11 Susan A. Bandes and Jeremy A. Blumenthal, ‘Emotion and the Law,’ Annual Review of Law and Social Science 8, no. 1 (2012): 161, 163–4. 12 For examples of evidence see Damasio, Descartes’ Error; Ellsworth, ‘Appraisal Theory: Old and New Questions’: 125; Lisa Feldman Barrett, How Emotions Are Made. For the seminal collection on law and emotion, see. Bandes, The Passions of Law. 7

250  Research handbook on law and emotion of the reasonable person (the current standard).13 The notion of objectivity in this context could arguably be viewed as a mechanism to avoid engagement with emotion, and certainly reinforces the practice of trying to remove emotion, although its explicit justification is usually centred around the difficulties of determining subjective intent. Overall, this chapter will highlight some of the key ways in which emotion can be identified, conceptualised, and acknowledged within contract law generally and with a particular emphasis on business-to-business transactions. It will begin by considering classical and neo-classical theories to explore the lack of engagement they have with the emotional dimensions of contracting. As both of these theories has a significant ongoing impact on the conceptualisation of contemporary contract law, such an exploration demonstrates the ways in which emotion has been characterised as irrational and frequently excluded from these theoretical discussions, leading to a narrow and unrealistic notion of rationality which excludes its emotional components. The chapter then considers the emergence of relational contract theory and the development of a recent paradigm, conscious contracting, both of which offer potential for the role of emotion in contract law to be explicitly acknowledged and explored. Together these challenge contract law’s devotion to such an impoverished and outdated dichotomy and its failure to engage with the evidence on emotion’s role within rationality. This chapter will then illustrate the role emotion plays within the practical experience of contracting, drawing on empirical evidence gained from qualitative interviews with solicitors in private practice in England and Wales. The responses in these interviews vividly demonstrate the way emotion pervades commercial life and transactions and, once again, emphasise the need to acknowledge and understand the role of emotion within contract law.

CLASSICAL CONTRACT THEORY AND EMOTION Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be.14

The above quotation highlights the difficulty of identifying the theoretical basis of contract law, particularly when contracts span so many types and forms within contemporary society. However, for the purpose of considering contract law’s interaction with emotion, a useful starting point is the division into classical, neo-classical and relational theory by the legal scholar Macneil (originator of the relational theory, which will be discussed further below).15 This division provides insight into the historical reasons for the dearth of interest in emotion by contract scholars, as well as illustrating the inadequacies of this traditional disregard. For a general discussion on subjective and objective approaches, see Joseph M. Perillo, ‘The Origins of the Objective Theory of Contract Formation and Interpretation’, Fordham Law Review 69, no. 2 (2000): 427. 14 Alan Schwartz and Robert E. Scott, ‘Contract Theory and the Limits of Contract Law’, Yale Law Review 113, no. 3 (2003): 541, 543. 15 Ian R. Macneil, ‘Contracts: Adjustment of Long-Term Economic Relations under Classical, Neoclassical, and Relational Contract Law’, Northwestern University Law Review 72, no. 6 (1972): 854. For discussion of a range of other contractual theories see Brian Coote, Contract as Assumption: Essays on a Theme (London and New York: Bloomsbury Publishing, 2010). 13

The role of emotion in contract law  251 The classical theory of contract law, which predominated during the nineteenth century, was focused on a form of atomistic individualism which positioned each party as a rational being able to choose and enter into exchanges best placed to further their economic interests as an expression of their free will.16 As legal scholar Fried explains, property and tort law acknowledge and preserve the rights of individuals, whilst contract law ‘facilitates our disposing of these rights on terms which seem best to us’.17 The formal, abstract doctrines applied by the courts at that time (and which still shape much of contract law and its discourses today) were intended to ensure that the individual’s rights were disposed of (or retained) as the individual intended, without seeking to challenge the basis of the bargain or exchange. Whether or not emotion had played a role within the formation of a contract would largely have been viewed as irrelevant, given the emphasis on facilitating individuals’ freedom to contract and correcting flaws and imprecisions in the contractual language used. The wider context in which emotions, motivations and other imperatives had led to the contract’s formation would be disregarded, with the focus concentrated on what legally-enforceable obligations were created or kept.18

NEO-CLASSICAL CONTRACT THEORY AND EMOTION The modern, neo-classical theory of contract law has retained the core tenets of the classical theory whilst acknowledging its practical limitations, such as inequalities in the bargaining powers of parties (notably between consumers and businesses). That is, the core tenets of the classical theory remain, but are tempered by an acknowledgment of ‘communal standards of responsibility to others’ through the application of ‘policy analysis, empirical inquiry, and practical reason’.19 Illustrations of the impact of this theoretical shift in England and Wales include the increased rights to beneficiaries under contracts provided by the Contracts (Rights of Third Parties) Act 1999, and the protections afforded to consumers under the Consumer Rights Act 2015. These changes demonstrate a growing awareness of the ways in which power imbalances can impact on contractual transactions, with an emphasis on the need for transparency by businesses.20 There is a growing body of work on the complex cognitive and emotional factors involved in consumers entering into standard form contracts, for example, in the consumer’s response to various corporate marketing techniques and in their weighing up the risks involved in entering into a transaction.21 Yet neo-classical theory does not incorporate this work or explicitly acknowledge the emotional vulnerabilities inherent in such dynamics. 16 For a clear summary of this narrative, but also a challenge to the notion that this was a consensus, see Anat Rosenberg, ‘Contract's Meaning and the Histories of Classical Contract Law’, McGill Law Journal 59, no. 1 (2013): 165. 17 Charles Fried, Contract as Promise: A Theory of Contractual Obligation (2d ed.). (New York, Oxford University Press, 2015), 2. 18 Photo Production Ltd. Respondents v. Securicor Transport Ltd [1980] A.C. 827, 845. 19 Jay M. Feinman, ‘The Significance of Contract Theory,’ University of Cincinnati Law Review 58, no. 4 (1990): 1283, 1288. 20 See, e.g., The Law Commission and the Scottish Law Commission, Unfair Terms in Consumer Contracts: Advice to the Department of Business, Innovation and Skills (March 2013), https://​s3​-eu​-west​ -2​.amazonaws​.com/​lawcom​-prod​-storage​-11jsxou24uy7q/​uploads/​2015/​06/​unfair​_terms​_in​_consumer​ _contracts​_advice​.pdf, last accessed 13 January 2021. 21 See, e.g., Shmuel I. Becher, ‘Behavioral Science and Consumer Standard Form Contracts,’ Louisiana Law Review, 68, no. 1(2007): 117.

252  Research handbook on law and emotion The question of the extent to which modern contract theory preserves and prizes freedom of contract has been extensively debated,22 and there has been a clear shift towards applying the principle of reliance (did a party rely on a promise) as opposed to that of a bargain (promises should be fully enforced) when developing and applying contractual doctrine.23 However, by preserving the core tenets of classical theory, modern neo-classical theory has arguably continued its disregard for emotion without pausing to question the validity of this response. There is nothing to suggest that contract law’s deification of liberalism’s classic self-interested, free market-oriented individual has been disrupted. Rather, there is a sense that the playing field is being levelled for those less fortunate to enable them to participate and possibly achieve such status themselves. In any event, business-to-business transactions have arguably been least impacted by shifts such as the emphasis on consumer protection and reliance precisely because a company as an artificial legal personality provides the embodiment of a rational, self-interested (and emotionless) decision-maker.

NOTIONS OF RATIONALITY IN CLASSICAL AND NEO-CLASSICAL CONTRACT THEORIES When considering classical and neo-classical contract theories’ lack of engagement with emotion overall, it can be seen that both theories are underpinned by concepts of choice governed by a particular concept of rational thinking. Hadfield argues that the notion of ‘deliberate, rational choice’ is of ‘constitutive importance’ in such contract law theories, distinguishing the law of contract from that of tort, where obligations are imposed as a matter of public policy.24 The concept of rationality is at the heart of much contractual theory, as epitomised by the application of ‘rational choice’ theory, which assumes that individuals use rational self-interest to choose between alternatives and select the one which will maximise their welfare.25 As legal scholar and former federal judge Posner explains: Fundamental assumptions, common to nearly all efforts at economic analysis, are that individuals have preferences over outcomes, that these preferences obey basic consistency conditions, and that individuals satisfy these preferences subject to an exogenous budget constraint.26

22 See, e.g., Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1985). 23 Melvin A. Eisenberg, The Transformation of Contract Law from Classical to Modern (New York: Oxford University Press, 2018), 27. 24 Gillian K. Hadfield, ‘An Expressive Theory of Contract: From Feminist Dilemmas to a Reconceptualization of Rational Choice in Contract Law’, University of Pennsylvania Law Review 146, no. 5 (1998): 1235, 1236. 25 Robert E. Scott, ‘The Death of Contract Law’, University of Toronto Law Journal 54, no. 4 (2004): 369, 382; Robert A. Hillman, ‘The Crisis in Modern Contract Theory,’ Texas Law Review 67, no. 1 (1988): 103, 121. 26 Eric Posner, ‘Economic Analysis of Contract Law after Three Decades: Success or Failure?’ Yale Law Journal 112 (2003): 829, 832.

The role of emotion in contract law  253 The assumption is that individuals can thus apply rational thought to identify which expected outcome has the greatest utility for them.27 However, the form of rationality which these (and other) theories appear to envisage is a wholly cognitive creation which eschews any acknowledgment or consideration of emotion and the affective domain.28 Where the role of emotion is acknowledged, it seems to have been in largely negative terms, with Elster (discussing the beliefs that guide decision-making in rational choice theory) suggesting that emotion will lead to ‘biased beliefs and low-quality beliefs’. In other words, emotion is being characterised as antithetical to rationality, thus necessitating its removal from the contractual sphere. In contrast, an example of the inescapable and vital role emotion plays within rationality is demonstrated by ‘plural rationality theory’ which acknowledges the intersection of cognition, emotion and social relationships within preferences and decision-making.29 A key acknowledgment this theory provides is that, however much a choice, decision or action may be characterised as ‘rational’ and ‘reasoned’, there will have been an emotional component or influence upon it. It thus re-conceptualises the notion of individual choice, and its underpinning characterisation of rationality, in a way in which acknowledges that contract law is imbued with emotion, although to date there is little evidence of its approach having been drawn upon, let alone integrated into, the realm of classical and neo-classical contract law theories. Ignoring this approach, and the wider importance of emotion, leads to a gap within contract theory. Emotion will have a part to play in what contract is made, with whom, at which point, how it is transacted, how the actions or outcomes it envisages are performed (or not performed), whether disputes arise and how these are dealt with. In other words, emotion is present throughout the formation, execution and completion of the contract. To ignore this is to cling to an outdated conceptualisation of contracting which separates rationality and emotion.

FALSE DICHOTOMIES BETWEEN RATIONALITY AND EMOTION The discussion of rational choice theory above demonstrates that, when arguing for an acknowledgment of the role of emotion within contracts, it is important not to set up a false dichotomy in which a purely cognitive vision of rationality is pitted against emotion and affect as a form of irrationality which must be identified to be either eliminated or ameliorated. It is arguable that a more nuanced form of this false dichotomy also occurs when the theory of ‘bounded rationality’ is applied in contract. Bounded rationality challenges the notion that an individual can make a perfectly rational choice, for example, because of the limited time and incomplete information available and/or the complexity of the decisions involved.30 Perhaps

27 Mark Kelman, ‘Law and Behavioral Science: Conceptual Overviews’, Northwestern University Law Review, 97, no. 3 (2003): 1347, 1350. 28 Jon Elster, ‘Emotional Choice and Rational Choice’, in The Oxford Handbook of Philosophy of Emotion, ed. Peter Goldie (New York: Oxford University Press, 2009). 29 Marco Verweij, Timothy J. Senior, Juan F. Dominguez D., and Robert Turner, ‘Emotion, Rationality, and Decision-Making: How to Link Affective and Social Neuroscience With Social Theory’, Frontiers in Neuroscience 9 (2015): 6. 30 Herbert A. Simon, ‘Theories of Bounded Rationality,’ in Decision and Organization: A Volume in Honor of Jacob Marschak, ed. C. B. McGuire and Roy Radner (Amsterdam: North-Holland Publishing Company, 1972), 161.

254  Research handbook on law and emotion most tellingly, a number of commentators also highlight cognitive limits as further bounding the application of rationality. As early as 1995, Eisenberg argued that: In light of how recently this scientific foundation has been built, it is not surprising that courts for the most part have not justified the principles governing the limits of contract on the basis of the limits of cognition. Nevertheless, many of these principles…undoubtedly arose and persisted on the basis of a tacit understanding of those limits. Now that the scientific foundation of those limits has been established, it is time to recognize that explanation explicitly, partly to make the principles more transparent to testing, and partly because explicit recognition of the role of the limits of cognition helps to show how we should shape existing principles and what new principles we should develop.31

Eisenberg does not explicitly mention emotion, but there is a danger that focusing on the cognitive can be interpreted as conceptualising emotion as a limitation on, or even a distraction from, rationality. If emotion is not viewed as cognitive in nature, it arguably becomes characterised as a limitation which much either be rationalised or disregarded as inappropriate.32 This potential form of dualism, separating cognition and rationality from emotion and perceived irrationality, is no longer appropriate.33 It is not necessary or even possible to try and delineate the ‘rational’ aspects of a contract from the ‘emotional’ aspects when the two in fact represent integral parts of the decisions and choices made during the contractual process. Characterising rationality and emotion as inseparable and integrated also means it is still possible, indeed essential, that the concept of rationality remains a valid part of contract’s theoretical basis. However, it may well be a different concept of rationality, one which explicitly acknowledges the role of emotion within it. This conceptualisation of emotion can be seen as akin to Anderson’s version of rationality within economics, which views traditional theories as inadequate because they do not acknowledge the role of values, in particular their ‘socially grounded, pluralistic’ nature.34 Instead, she identifies a rational choice as one which adequately expresses the values of the person doing the choosing.35 Applying this approach to contract law, Hadfield argues it provides an opportunity to readdress the core questions of whether a promisor should be legally bound and what remedy should apply.36 She argues for the incorporation of Anderson’s values-based theory in a range of contractual situations, suggesting that, ‘Respect for the multiplicity of frames in which a decision to contract can be made often entails looking beyond the fact of choice to the complexity of what it means to choose’.37 This work highlights the importance of exploring the complex interplay between emotion and values that is present within approaches to contract

Melvin Aron Eisenberg, ‘The Limits of Cognition and the Limits of Contract,’ Stanford Law Review 47 (1995): 211, 258. 32 Dennis K. Mumby and Linda L. Putnam, ‘The Politics of Emotion: A Feminist Reading of Bounded Rationality,’ Academy of Management Review 17, no. 3 (1992): 465. 33 For an accessible discussion of the way in which cognition and emotion intertwine, see Damasio, Descartes’ Error. For a discussion of the relationship between different types of emotion and rationality, see Klaus R. Scherer, ‘On the Rationality of Emotions: Or, When Are Emotions Rational?’ Social Science Information 50 no. 3–4 (2011): 330. 34 Elizabeth Anderson, Values in Ethics and Economics (Cambridge: Harvard University Press, 1993), 16. 35 Anderson, Values in Ethics and Economics, xii. 36 Hadfield, ‘An Expressive Theory of Contract,’ 1239. 37 Hadfield, ‘An Expressive Theory of Contract,’ 1285. 31

The role of emotion in contract law  255 law.38 However, even more importantly for the purposes of this chapter, if values influence rationality in this way, then surely emotions must do too. This can be seen by drawing on the example Hadfield gives of Barclays Bank Plc v, O’Brien [1993] 4 All E.R. 417.39 In this case, the husband wished to increase a company overdraft and offered the matrimonial home as security. The husband and wife signed the relevant documentation without reading it, with the wife later claiming her husband had put her under undue pressure and misrepresented the effect of the legal charge to her. The House of Lords held that Barclays was under constructive notice of the possibility of undue influence or misrepresentation and therefore the charge was unenforceable. Hadfield suggests that this decision is based on an application of rational choice theory as the wife’s signature is not seen as representing her true wishes or viewed as being an assessment of the actual risks and benefits. However, Hadfield argues that the wife’s choice is ‘expressive’ of the wife’s emotions and motivations at the time of the contract, rather than being ‘instrumental’ in terms of a form of cost-benefit analysis.40 Therefore, she suggests that the fact the contract is ‘expressive’ should be the starting point for further investigation into reasons why it should (or should not) be enforced, rather than being viewed as rendering the contract unenforceable. For example, the focus could be upon Barclays’ reliance upon the wife’s signature and whether or not that was reasonable in the circumstances, or it could be developed into a wider enquiry into the balance to be struck between the value of specific institutional protocols and fairness.41 In relation to business-to-business transactions, Hadfield acknowledges that ‘Pride, loyalty, and defiance of the odds all intrude on the commercial actor's calculus of risks and re-ward’ but suggests that an instrumental, risk-allocation framework can still be applied.42 This lacks a more nuanced approach which distinguishes different forms of commercial contract. For example, in cases where there is a powerful contractor and smaller sub-contractor, there is still a strong argument that such a contract is ‘expressive’ in nature and that therefore the courts need to look beyond a simple conclusion that the weaker party chose to enter into a certain bargain. A broad and nuanced concept of rationality, such as Hadfield’s, has particular resonance in relation to remedies for breach of contract. Although damages (the payment of financial compensation) is the most common remedy, they can be calculated according to different measures of loss. In addition, there are other equitable remedies such as specific performance (where a party is compelled to complete performance of contractual obligations). Posner suggests that the claimants’ remedy preferences are premised upon a non-emotional rational process of design and selection. However, under a broader conception of rationality that incorporates emotion, a more nuanced approach to designing and awarding remedies is possible. This nuanced approach could take account of the emotional aspects of contracting, not in the sense of vengefully punishing violations, but by ensuring that the parties’ participation in contract-making is not reduced to a crude financial calculation devoid of other preferences, See, e.g., Kristján. Kristjánsson, Virtuous Emotions (Oxford, Oxford University Press, 2018). Hadfield, ‘An Expressive Theory of Contract,’ 1245. 40 Hadfield, ‘An Expressive Theory of Contract,’ 1267. 41 Hadfield, ‘An Expressive Theory of Contract,’ 1268. For a detailed discussion of emotion and undue influence, see John Stannard ‘The Emotional Dynamics of Undue Influence’, in Emotional Dynamics of Law and Legal Discourse, ed. Heather Conway and John Stannard, 59–82 (Portland: Hart Publishing, 2016). 42 Hadfield, ‘An Expressive Theory of Contract,’ 1269. 38 39

256  Research handbook on law and emotion including emotion.43 One example of this could be in the treatment of liquidated damages clauses within commercial contracts. The U.K. Supreme Court case Cavendish Square Holding BV v. Talal El Makdessi [2015] UKSC 67 considered whether such clauses were unenforceable as penalties. The judgment emphasised the importance of demonstrating a ‘legitimate interest’, extending beyond recovery of loss, to support a claim for enforcement. It is arguable such an interest could be expanded to include one incorporating emotional aspects, including disappointment or anger over the consequences of delays, to enable such a clause to be enforced.

RELATIONAL CONTRACT THEORY AND EMOTION Currently, relational theory is the contractual theory which arguably moves the closest to recognising the role of emotion within contract law.44 In developing relational theory, Macneil makes four key propositions: (1) all transactions are ‘embedded in complex relations’; (2) understanding a transaction requires an understanding of these relations; (3) analysing a transaction requires an acknowledgment and exploration of the relational aspects that ‘significantly’ impact the transaction; and (4) this relational analysis of transactions is more efficient and accurate than focusing on discrete transactional elements alone.45 The notion of discrete contracts arguably reflects the approach of classical contract theory by viewing the identity of the parties as irrelevant, commodifying the subject-matter, limiting the sources to be taken into account when interpreting the agreement, providing a limited set of remedies, and drawing clear lines between what is and is not a contractual transaction (e.g., through the strict requirements for contract formation).46 It is also effectively replicated within neo-classical theory because it shares an underlying assumption that the function of contract law is to facilitate such discrete exchanges based on individual choice. Relational theory provides a fundamentally different view of human nature to that of classical and neo-classical theory; one in which conventional conceptualisations of cognition, reason and rationality cannot capture the realities of contractual relationships.47 Thus relational theory provides a vehicle to counter classical and neo-classical contract theory’s deification of an emotionless (and thus unachievable) notion of rationality as the basis for contract law. Instead, the provision of an alternative conception of human nature offers a route to acceptance of an individual as a messier, less simplistic character than the rational, purely self-interested paragon of perceived rationality who has pre-dominated within contract law. The individual is not acting purely to maximise self-gain, but instead is guided by a broader set of norms,

Eric Posner, ‘Law and the Emotions,’ Georgetown Law Journal 89 (2001): 1977, 2006–10. Macneil, ‘Values in Contract,’ 856. See also Stewart Macaulay, ‘The Real and the Paper Deal: Empirical Pictures of Relationships, Complexity and the Urge for Transparent Simple Rules,’ Modern Law Review 66, no. 1 (2003): 44. Macneil has more recently chosen to re-name his particular theory as ‘essential contract theory’ to differentiate it from other forms of relational theory. See Ian R. Macneil, ‘Contracting Worlds and Essential Contract Theory,’ Social & Legal Studies 9, no. 3 (2000): 431, 432. 45 Ian R. Macneil, ‘Relational Contract Theory: Challenges and Queries’, Northwestern University Law Review 94, no. 3 (2000): 877, 881. 46 Macneil, ‘Values in Contract’, 863-864. 47 Ian R. Macneil, ‘Values in Contract: Internal and External’, Northwestern University Law Review 78 (1983) 340, 348. 43 44

The role of emotion in contract law  257 governed by the dual notions of solidarity and reciprocity, in a way which challenges implicit assumptions and offers new directions for inquiry.48 Relational theory has been heavily critiqued on a range of fronts; for example, legal scholar Barnett argues that Macneil misinterprets the role and importance of consent in contractual relations and fails to appreciate the importance of contractual rights in regulating and preserving underlying property rights.49 However, relational theory’s emergence has potential significance in highlighting the role of emotion in contract law. Its relational emphasis challenges the formalistic approach of classical and neo-classical contract theories and their focus on applying legal rules solely to identify the specific elements of a contract. Its challenge to the notion of contracts as discrete transactions emphasises the broader context in which such agreements are situated and the way in which they are embedded within wider social relations thus arguably necessitating the inclusion of emotion because of its necessary and integral role in such relationships. An example of the application of the formalistic approach can be found in Walford v. Miles [1992] 2 A.C. 128, involving the sale of a business, where it was alleged that the defendants had agreed not to deal with any other parties with regard to the sale while negotiating with the plaintiffs. The plaintiffs tried to persuade the court that there was an inherent obligation on the defendants to negotiate the terms of the sale in good faith, but this was rejected on the grounds that acknowledging such a duty of good faith would lead to uncertainty. Taking account of relational theory, a court might instead have concluded that a duty of faith could be determined based on the parties’ relationship to date, developing during their negotiations. Where the parties have a previous trading history, this argument could be even stronger, based on the context derived from this relationship. As the case above demonstrates, it is significant that relational contract theory has positioned itself as relevant not only to individuals, but also in business-to-business transactions. Here relational theory has had an identifiable impact, at least in terms of business scholarship, challenging the notion that commercial bodies are in some way immune or set apart from the wider context of social relations where emotion (and values) are so often located.50 An example of the role of emotion in a commercial context can be identified in Blomqvist et al’s discussion of smaller and larger companies forming research and development collaborations together. This necessitates a contractual relationship to agree upon the apportionment of intellectual property rights, but it also requires a significant level of trust because of the impossibility of capturing all eventualities within the written contract.51 Such trust will inevitably require positive emotional responses between the companies’ personnel to enable the relationship to develop.52 Another example in a commercial setting can be found in the so-called ‘battle of the forms’ cases, where each party will seek to incorporate their own standard contractual terms into an

48 Paul J. Gudel, ‘Relational Contract Theory and the Concept of Exchange’, Buffalo Law Review 46, no. 3 (1998) 763, 777. 49 Randy E. Barnett, ‘Conflicting Visions: A Critique of Ian Macneil’s Relational Theory of Contract,’ Virginia Law Review 78 (1992): 1175. 50 Josetta McLaughlin, Jacqueline McLaughlin, and Raed Elaydi, ‘Ian Macneil and Relational Contract Theory: Evidence of Impact’, Journal of Management History 20, no. 1 (2014): 44. 51 Kirsimarja Blomqvista, Pia Hurmelinnab, and Risto Seppänen, ‘Playing the Collaboration Game Right – Balancing Trust and Contracting’, Technovation 25, no. 5 (2005): 497. 52 Jennifer R. Dunn, Maurice E. Schweitzer, and Patricia Devine, ‘Feeling and Believing: The Influence of Emotion on Trust’, Journal of Personality and Social Psychology 88, no. 5 (2005): 736.

258  Research handbook on law and emotion agreement.53 The decision in the case of Tekdata Interconnections Ltd v. Amphenol Ltd [2009] EWCA Civ 1209 applied the traditional ‘last shot’ approach, whereby the seller’s terms were last to pass between the parties and therefore applied to the contract. Despite evidence based on a previous trading relationship of over 20 years indicating a different understanding, the Court of Appeal did not view this as strong enough to displace the conventional offer/acceptance analysis. Given the parties’ long trading history, a greater acknowledgment of the role of trust, loyalty and other emotional aspects could arguably have been applied to find that the purchaser’s terms were instead incorporated on the basis of their past relationship. The use and discussion of the term ‘relational’ does not necessarily have to include an explicitly emotional element. Indeed, the framing of it within contractual theory is instead largely predicated on social norms and values involving co-operation, reflecting the sociological origins of Macneil’s argument.54 To date, little research has explored how emotion influences these social norms and their application and interplay within individual contracts. However, emotion must play a significant part in such relations, given its pervasiveness within all interactions and the way it shapes people’s attitudes to each other, to decisions, to actions, and to values.55 For example, when considering which terms are implied on the grounds of custom and trade usage, the distinction drawn between legally-enforceable practices and those followed as a non-binding courtesy in General Reinsurance Corp v. Forsakringsaktiebolaget Fennia Patria [1983] Q.B. 856 could be challenged by characterising such non-binding terms as forming part of an emotional context with adherence to these involving specific emotions such as empathy, kindness and friendship or, conversely, non-adherence framed by guilt or shame. It would also be interesting to explore the parallels with emotion’s own (at least partially) socially constructed nature56 and the overlap with the notion of a ‘psychological contract’ which is commonly discussed in relation to employers and employees.57 Thus, even at the point where emotion has not been explicitly incorporated into relational theory, it provides a number of valuable lines of argument which support the idea that emotion can and should be incorporated into contractual theory.

RELATIONAL THEORY’S IMPACT ON THE FRAMING OF CONTRACT LAW Relational theory opens up and challenges traditional contract law theory, demonstrated by its emphasis on ‘contextualisation’ and the ‘implicit dimension’ of contractual transactions,

53 Phillip Morgan, ‘Battle of the Forms: Restating the Orthodox’, The Cambridge Law Journal 69, no. 2 (2010): 230. 54 Macneil, ‘Contracting Worlds and Essential Contract Theory’; Zong Xing Tan, ‘Disrupting Doctrine? Revisiting the Doctrinal Impact of Relational Contract Theory’, Legal Studies 39, no. 1 (2018): 1, 5. 55 Bandes and Blumenthal, ‘Emotion and the Law’. 56 James R. Averill, ‘A Constructivist View of Emotions’, in Emotion: Theory, Research, and Experience, eds, Robert Plutchik and Henry Kellerman, 305–39 (New York: Academic Press, 1980). 57 For a useful summary, see Mark V. Roehling ‘The Origins and Early Development of the Psychological Contract Construct’, Journal of Management History 3, no. 2 (1997): 204.

The role of emotion in contract law  259 outside the confinement of the contractual document.58 Moreover, this critique is also evident when relational theory is applied to the business-to-business contracts that so often appear frozen within the classical paradigm.59 However, it is not obvious exactly what impact relational theory should and could have on the framing of contract law. Tan identifies a school of relational theory that minimises law’s role in contractual transactions to allow for a broader acknowledgment of the practical realities of contractual relations. Another school (represented by Macneil) seeks to integrate relational norms into a legal framework by which to resolve contractual disputes in court.60 Tan identifies three different potential frameworks for this type of integration of relational theory into the courts’ decision-making processes, from a ‘re-interpretive relationalism’ which focuses in shifts in normative meaning with little visible doctrinal reform, to ‘re-orientative relationalism’ requiring more visible alterations within the existing documents, through to the more radical ‘reconstructive relationalism’ which would involve a wholescale review and possible re-ordering of the principles of contract law.61 The first of these could involve a shift or broadening in the meaning of specific contractual terminology, for example, by widening the scope for contractual damages to be awarded for emotional distress, building on the well-worn line of holiday claims where damages have been awarded for stress and inconvenience provided the purpose of the contract is shown to be one of enjoyment (as in the purchase of a package tour).62 The notion of ‘re-orientative relationalism’ could include a focus on more easily perceptible shifts within the wider existing framework. For example, Keren (in the U.S. context) proposes a rule of ‘conscious enforcement’ to acknowledge the value of promises motived by affect and allow for legally binding donative promises (which are currently unenforceable for lack of consideration).63 A wholescale review and re-ordering could involve taking a fundamental contractual concept, such as reliance (referred to in relation to neo-classical theory above), and re-examining its theoretical and practical basis. For example, could and should a reliance-based duty arise as a result of an emotional reliance by a party?64 This could arguably form a different basis for the undue influence in decision in Barclays Bank Plc, moving it away from a reliance on rational choice theory. Another example of its possible impact could be found in the economic duress case of CTN Cash and Carry Ltd v. Gallaher Ltd [1994] 4 All E.R. 714 which considered the difficulty of drawing a line between proper and improper threats to undertake a lawful act (removing the claimant’s credit facilities unless a dispute was settled in the defendant’s favour). In this instance, the Court of Appeal found the threat to be a proper one, as the defendant genuinely believed the settlement was due to them. However, re-interpreting this on the

58 Shida Galletti, ‘Contract Interpretation and Relational Contract Theory: A Comparison Between Common Law and Civil Law Approaches’, The Comparative and International Law Journal of Southern Africa 47, no. 2 (2014): 248. 59 Catherine Mitchell, Contract Law and Contract Practice – Bridging the Gap Between Legal Reasoning and Commercial Expectation (Oxford: Hart Publishing, 2013). 60 Tan, ‘Disrupting Doctrine?’. 61 Tan, ‘Disrupting Doctrine?’ 9. 62 In Jarvis v. Swans Tours Ltd [1973] Q.B. 233 it was held that the claimant could recover for ‘mental distress’ in a contract to provide ‘entertainment and enjoyment’. 63 Keren, ‘Considering Affective Consideration’. 64 For a discussion on reliance generally, see Stephen A. Smith, Contract Theory (New York: Oxford University Press, 2004).

260  Research handbook on law and emotion basis of reliance could lead to a broader conception of improper threats, taking into account the fear, distress and even humiliation possibly caused to the claimant.

CONSCIOUS CONTRACTS A recent iteration of relational theory can be found in the notion of conscious contracts. This concept has evolved from what is generally known as the comprehensive65 or integrative law movement66 which views law as a ‘healing profession’.67 Explicitly relational in purpose, conscious contracting involves creating a framework for contracting based upon the vision and principles of the parties involved, be they individuals or businesses.68 For example, at the start of a contractual relationship the parties may: … Start the process with a conversation about their purposes, values, principles, plus their hopes and dreams for the relationship. The values conversations are memorialized in the contract because they are important to the creation of the relationship. They don’t just cover Who, What, How, and When, but also Why?69

The practical consequence of this approach to contracts is that the parties can develop a framework for their transactions which is unique to them and which incorporates their vision for the relationship. They can therefore maximise their sense of autonomy and self-governance whilst at the same time retaining the support of the wider legal framework for contract law. This shared understanding should facilitate a co-operative contractual relationship, whilst the explicit discussion of goals and motivations means that issues can potentially be resolved using a wider range of solutions than the traditional contractual remedies prescribed by law and thus avoiding the emotionally-avoidant model of financial compensation referred to above.70 The parties could agree an individualised dispute resolution mechanism designed to preserve the relational aspects of their agreement and consider remedies based on preferences driven by specific emotions and values (say pride in their reputation or fear of financial losses) or even design clauses with the intention of evoking empathy or guilt as drivers for compliance with the contractual terms.71 As is often the case in relational contracts, the focus here is on values, rather than emotion. However, the notion of a holistic approach to contract formation which emphasises the broader relationship between the parties certainly implies an emotional element in a way that traditional ‘arm’s length’ transactions do not. For example, the motivations and goals of the parties 65 Susan Daicoff, ‘Law as a Healing Profession: The ‘Comprehensive Law Movement’, Pepperdine Dispute Resolution Law Journal 6, no. 1 (2005): 1. 66 J. Kim Wright, Lawyers as Changemakers (Chicago: American Bar Association, 2016). 67 Daicoff, ‘Law as a Healing Profession’. 68 Linda Alvaraz, Discovering Agreement: Contracts that Turn Conflict into Creativity (Chicago: American Bar Association 2016). 69 J. Kim Wright, ‘Conscious Contracts: Bringing Purpose and Values into Legal Documents’, https://​jkimwright​.com/​conscious​-contracts​-bringing​-purpose​-and​-values​-into​-legal​-documents/​. 70 Alvaraz, ‘Discovering Agreement’; Posner, ‘Economic Analysis of Contract Law after Three Decades’. 71 Hila Keren, ‘Guilt-Free Markets? Unconscionability, Conscience and Emotions’, Brigham Young University Law Review 2016, no. 2 (2016): 427. 

The role of emotion in contract law  261 will have an emotional component which will thus be built into the contracting process and perhaps even the contract itself. An example of this could be clauses that highlight and protect specific aspects of a transaction in which a party has an emotional investment (such as pride or joy). Seen as the mutual, collaborative pursuit of a goal, contracting seems to inevitably involve an emotional element, and engender emotional reactions, too.72 The scarcity of academic work on the concept of conscious contracting suggests that it is at a relatively early stage of development, although it does have valuable antecedents to draw upon, such as partnering within construction contracts (a form of contractual relationship based on a team approach to building projects which emphasises collaboration and shared values).73 However, as it becomes more commonly used, it certainly offers new lines of inquiry for those seeking to integrate emotion into the sphere of contract law.

CONTRACT LAW IN PRACTICE What relational contract theory and the concept of conscious contracts have done (as, to a lesser extent, neo-classical theory did previously) is to acknowledge the difference between the theory of contract law and the reality of transactions.74 Effectively, these approaches seek to integrate the practical with the theoretical, either by creating a private framework through which the parties can construct their contractual relationship (as with conscious contracts) or through seeking to mould existing law to acknowledge a broader, evidence-based conceptualisation of rationality (as with Hadfield’s analysis of Barclays Bank Plc).75 This then leads to the question of whether and to what extent emotion is involved in contract law in practice. The discussion above has already referred to this question on a theoretical level by emphasising that emotion forms a part of reason and rationality. It has also posited, as a consequence of the notion that rationality and emotion are inseparable, that individual parties will have emotional responses during the formation of the contract. However, to explore this further it is necessary to consider the empirical evidence relating to the emotional aspects of contract law.

THE EMOTIONAL PRACTICE OF CONTRACT LAW To date the most detailed empirical examinations of emotion in legal practice have focused on those areas of law which contain the most clearly affective elements, notably criminal and family law.76 In the U.K., this author recently undertook (with the aid of a research assistant)

See, e.g., Agnes Moors and Maja Fischer, ‘Demystifying the Role of Emotion in Behaviour: Toward a Goal-Directed Account’, Cognition and Emotion 33, no. 1 (2019): 94. 73 Sai-On Cheung, Thomas S. T. Ng, Shek-Pui Wong, and Henry C. H. Suen, ‘Behavioral Aspects in Construction Partnering’, International Journal of Project Management 21, no. 5 (2003): 333. 74 Macaulay, ‘The Real and the Paper Deal’. 75 Hadfield, ‘An Expressive Theory of Contract’, 1245; Kathryn Abrams and Hila Keren, ‘Who’s Afraid of Law and the Emotions?’ Minnesota Law Review 94, no. 6 (2010): 1997, 2003–4. 76 See, e.g., Angela Melville and Karen Laing, ‘‘I Just Drifted Into It’: Constraints Faced By Publicly Funded Family Lawyers’, International Journal of the Legal Profession 14, no. 3 (2007): 281. 72

262  Research handbook on law and emotion a series of semi-structured interviews with 20 solicitors77 in England and Wales who specialised in areas of private law practice, including corporate, commercial, and employment law. These participants were identified using a stratified purposive sampling technique based on data freely available from the Law Society of England and Wales’ ‘Find a Solicitor’ service,78 with the aim of obtaining participants with a range of post-qualification experience in a variety of different-sized firms. A thematic analysis (an inductive approach identifying key themes arising from the data)79 identified that the participants viewed emotion as relevant to their work, even when that work was heavily commercial and transactional, hence the title quote: ‘You don’t pay £100,000 to a lawyer unless you care about something’ (Litigation Solicitor 1, 5-10 years PQE). Other references to emotional responses in these legal practice areas included references to clients in commercial litigation being unhappy or angry with their case prognosis, failing to understand legal processes, and ‘banging their head against the table’ (Litigation Solicitor 2, 5-10 years PQE). Although participants acknowledged that these legal practice areas did not always involve raw emotions as family law might, it was clear that the involvement of commercial and business interests did not automatically remove emotion: I have found that clients engaged in commercial litigation also tend to get very... are deeply involved in it on a personal level, that they don't just see it as something that, you know, their company is doing and they can stand back from. Often we're dealing with the owners of the company and they, yes, are, are heavily involved at all levels. (Litigation Solicitor 3, 20-30 years PQE)

There is clearly much more empirical work needed to explore how parties’ emotional involvement plays out in the contractual arena. However, there are also further bodies of literature which add credence to the idea that emotion has a role to play within the realities of contracting. For example, Fenton O’Creevy et al’s (2011) qualitative study of traders within four investment banks in the City of London found that emotion played a ‘central role’ even within an environment strongly associated with traditional concepts of rationality.80 Based on their findings, the authors argue for: … the value of a more nuanced understanding which considers the role of emotions in decision making, the differential impact of various emotion regulation strategies, the conditions under which ‘gut-feel’ support effective decision making and the role of empathic responses in understanding the behavior of other actors.81

There is a clear resonance here for contract law, particularly in commercial and business transactions, again illustrating the need to explicitly acknowledge and explore the role of emotion to ensure that contracting parties and contract practitioners can understand and identify such

In the U.K.-context, the role of a ‘lawyer’ is divided into two professions, solicitors and barristers. The Law Society, ‘Find a Solicitor,’ http://​solicitors​.lawsociety​.org​.uk/​. 79 Virginia Braun and Victoria Clarke, ‘Using Thematic Analysis in Psychology’, Qualitative Research in Psychology 3, no. 2 (2006): 77. 80 Mark Fenton-O’Creevy, Emma Soane, Nigel Nicholson and Paul Willman, ‘Thinking, Feeling and Deciding: The Influence of Emotions on the Decision Making and Performance of Traders’, Journal of Organizational Behavior 32, no. 8 (2011): 1044, 1056. 81 Fenton O’Creevy et al., ‘Thinking, Feeling and Deciding’, 1056. 77 78

The role of emotion in contract law  263 influences appropriately.82 The results of this could be personal, including those involved in contracting becoming more aware of how to proactively regulate their own emotions within transactions and disputes and use their intuitive thinking processes more effectively, avoiding potential biases and erroneous decision-making. In wider terms, it could also lead to the construction of contracts which better encapsulate the relationship and values of the parties, providing a framework for constructive and ongoing relationships.

THE CONSEQUENCES OF EMOTION IN CONTRACT LAW Acknowledging the inter-relationship between emotion and contract law allows practitioners, academics, and educators to explore how emotion does, can and should shape and influence contract law and contractual transactions, not to mention the development and resolution of contractual disputes. That is not to say that such an acknowledgment is likely to prove wholly positive. As Tan indicates with regard to relational theory, taking the time to understand the potential impact of a new framework ‘is not to say that all of these potential ramifications should be undiscriminatingly welcomed’.83 In the case of emotion and contract law, there are likely to be objections and consequences to be dealt with at two overlapping levels. First, there will be concerns raised specifically in relation to contract law, whether theoretical or practical. For example, Beale asserts that a relational focus may jeopardise contract enforcement: … I hesitate to say that English courts should always start with a broad enquiry into the nature of the relationship and the commercial expectations of the parties, rather than with the documents. We might achieve greater accuracy but at the possible cost of making it harder to enforce agreements even when the terms of the agreement appear clear on the documents.84

Similar concerns could be raised over the balance to be struck when considering emotion. One can debate whether an objective ‘reasonable person’ standard can and should be used when assessing emotion, how doctrines such as duress should be employed to measure emotion, and whether emotion should play a role in considering undue influence, good faith and the many other issues that contracts bring into play. At the same time, there are also more general questions raised by law and emotion scholarship to be navigated in this new arena. For example, Sanger has discussed the danger that emotion becomes inauthentic in legal settings. Her argument is that, where an emotion begins to be required by law, the danger is it will lose the very authenticity which made it worthy of note in the first place. This may particularly be the case where its inclusion has been ‘well advertised’ and it therefore becomes scripted.85 Whilst Sanger is referring to victim impact

82 Further supporting evidence can also be obtained from the field of dispute resolution, e.g., in relation to mediation, see James Duffy, ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’’ QUT Law & Justice Journal 10, no. 1 (2010): 44. 83 Tan, ‘Disrupting Doctrine,’ 19. 84 Hugh Beale, ‘Bridging the Gap: A Relational Approach to Contract Theory’, Journal of Law and Society 41, no. 4 (2014): 641, 649. 85 Carol Sanger, ‘The Role and Reality of Emotions in Law’, William & Mary Journal of Women and the Law 8, no. 1 (2001): 107, 110.

264  Research handbook on law and emotion statements (in the U.S. context), versions of this argument could easily apply within private law should emotion become explicitly included in contractual doctrines. For example, if damages were to be more widely awarded for emotional distress, it can be imagined that claimants (or their representatives) would seek as a matter of course to include standard wording to portray any contractual breach as causing worry, anxiety and upset.

CONCLUSION Overall, this chapter is not arguing for a specific way to recognise emotion, or for a particular theoretical or practical conceptualisation. Instead, it has sought to problematise how emotion is often at best disregarded, and at worst ignored or regarded as an obstacle within contract law. At a theoretical level, the concepts of rationality prized within classical and neo-classical theory can be challenged as incomplete because they do not acknowledge emotion. Whilst relational contract theory has shifted discussion towards a recognition of the implicit and the unwritten factors influencing contract law, particularly in relation to values and social norms, emotion has not been explicitly investigated. On a practical level, evidence can demonstrate that the parties to a contract, even in a business-to-business transaction, will have emotional input and involvement which should be understood and explored. If contracts are ubiquitous in everyday and commercial life, emotion is all-pervasive within all spheres of human existence. Therefore, to assume the two run separately and parallel without further investigation is to ignore and devalue a rich area for scholarship and debate.

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17. Engaging head and heart: An Australian story on the role of compassion in criminal justice reform Lorana Bartels and Anthony Hopkins

INTRODUCTION In this chapter, we argue that understanding the increasingly punitive and irrational trajectory of criminal justice law reform requires an engagement with emotion. It requires facing the power of emotions, and understanding emotions, particularly fear, as key drivers of punitivity, with the capacity to subvert rational evidence-based arguments and policy-making. We contend that fear—and narratives of fear—cause us to turn away from those who are the subject of criminal sanction, ‘othering’ them as ‘monsters’. And, furthermore, that this turning away from the human subject to punishment involves turning away from understanding—which can, paradoxically, result in law reform that reduces public safety, rather than increasing it. We argue that rational criminal justice law reform requires us to turn towards the person facing sanction, as a human being, to understand the individual and systemic causes of their criminality, to consider how others can be diverted from that path, and whether and in what circumstances desistance is possible. Our core contention is that compassion is the foundation for this understanding, the psychology that enables us to keep humanity, and rationality, in view. We argue that, fully developed, compassion is universal and enables and motivates us to engage with the suffering of victims as well as offenders, seeing more clearly the ways in which suffering can be prevented and alleviated. Once this core value is accepted, it leads to the question of how researchers and criminal justice law reformers can foster a more compassionate, understanding and rational law reform conversation. Simply exhorting people to be more compassionate is unlikely to stimulate the heart. Instead, we conclude with a strategy to get the heart started, calling for an engagement with narratives of compassion in the field of criminal justice—in other words, inspiration to link head and heart. We illustrate our argument by examining recent developments in criminal justice policy in Australia. We begin from the premise that Australia has become addicted to the use of prison.1 By this, we mean that Australian governments across the political spectrum seem to regard the increasing use of imprisonment as something of a fait accompli or accepted by-product of policy-making, rather than a serious social problem to be reversed. To provide an example, in 2016, the government of Australia’s largest state, New South Wales, announced that it would spend AUD3.8 billion (approximately USD3 billion) building new prisons. To put this in

Lorana Bartels, ‘Criminal Justice Law Reform Challenges for the Future: It’s Time to Curb Australia’s Prison Addiction’, in New Directions For Law in Australia: Essays in Contemporary Law Reform, eds, Ron Levy et al. (Canberra: Australian National University Press, 2017). 1

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An Australian story on the role of compassion in criminal justice reform  269 context, that is more than the annual cost of the entire Australian prison system.2 In making this announcement, the Corrections Minister, David Elliott, said: ‘This is, it must be said, not money the state government is happy to spend…. My personal preference would always be that this money, this NSW taxpayers’ money, is spent on schools and hospitals.’3 We suggest that rhetoric of this nature is disingenuous at best; at worst, it is indicative of a failure to develop sensible policy or engage with evidence-based practice. In fact, only two days before making this announcement, the government-funded New South Wales Bureau of Crime Statistics and Research released research demonstrating that short prison sentences of up to 12 months are no more effective in deterring domestic violence-related reoffending than suspended sentences.4 This finding aligns with research by the Bureau before and since that confirms how ineffective prison is as a crime prevention tool.5 But it is not enough to simply rail at the irrationality entailed in the current trajectory towards hyper-incarceration,6 which is of particular concern for Indigenous Australians. This irrationality must be understood and engaged with. Before turning to some examples that we suggest show a compassionate response to offenders, we will first provide some brief examples of irrational law reforms in Australia. Specifically, we consider examples of recent high-profile cases or sentinel events that have precipitated punitive measures and have increased prison populations. However, we suggest that the observations are likely to be relevant beyond our continent, as many other countries have experienced similar trajectories in which ‘[vivid] stories of individual tragedies have served as catalysts for sweeping changes in policy’.7

RECENT EXAMPLES OF PUNITIVE LAW REFORM Bail In January 2017, s