Research Handbook on Law and Emotion 2021930673, 9781788119085, 9781788119078

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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.

19

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.

15

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.

REFERENCES Atzil, Shir and Maria Gendron. “Bio-Behavioral Synchrony Promotes the Development of Conceptualized Emotions.” Current Opinion in Psychology 17 (Supplement C 2017): 162–9. https://​doi​.org/​10​.1016/​ j​.copsyc​.2017​.07​.009. Bandes, Susan A. “Remorse and Criminal Justice.” Emotion Review 8, no. 1 (2015): 14–19. https://​doi​ .org/​10​.1177/​1754073915601222. Barrett, Lisa Feldman. “Categories and their Role in the Science of Emotion.” Psychological Inquiry 28, no. 1 (2017): 20–26. http://​dx​.doi​.org/​10​.1080/​1047840X​.2017​.1261581. Barrett, Lisa Feldman. How Emotions are Made: The Secret Life of the Brain. Boston: Houghton Mifflin Harcourt, 2017. Barrett, Lisa Feldman. “The Theory of Constructed Emotion: An Active Inference Account of Interoception and Categorization.” Social Cognitive and Affective Neuroscience 12, no. 1 (2017): 1–23. doi: 10.1093/scan/nsw154. Barrett, Lisa Feldman, Ralph Adolphs, Aleix M. Martinez, Stacy Marsella, and Seth Pollak. “Emotional Expressions Reconsidered: Challenges to Inferring Emotion in Human Facial Movements.”

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.

40  Research handbook on law and emotion Psychological Science in the Public Interest 20, no. 1 (2019): 1–68. https://​ doi​ .org/​ 10​ .1177/​ 1529100619832930. Barrett, Lisa Feldman, Maria Gendron, and Yang-Ming Huang. “Do Discrete Emotions Exist?” Philosophical Psychology 22, no. 4 (2009): 427–37. doi:​10​.1080/​09515080903153634. Barrett, Lisa Feldman 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. doi: 0.1016/j.conb.2012.12.012. Barrett, Lisa Feldman and Ajay B. Satpute. “Historical Pitfalls and New Directions in the Neuroscience of Emotion.” Neuroscience Letters 693 (2019): 9–18. doi: 10.1016/j.neulet.2017.07.045. Barrett, Lisa Feldman and Willam K. Simmons. “Interoceptive Predictions in the Brain.” Nature Reviews Neuroscience 16, no. 7 (May 2015): 1–11. doi:​10​.1038/​nrn3950. Barrett, Lisa Feldman, 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), doi:​10​.1098/​rstb​.2016​.0011. Binder, Jeffrey R., Julie A. Frost, Thomas A. Hammeke, Patrick Bellgowan, Stephen M. Rao, and R.W. Cox. “Conceptual Processing During the Conscious Resting State: A Functional MRI Study.” Journal of Cognitive Neuroscience 11, no.1 (1999): 80–93. doi: 10.1162/089892999563265. Buckner, Randy L. “The Serendipitous Discovery of the Brain's Default Network.” NeuroImage 62 (2012): 1137–45. doi:​10​.1016/​j​.neuroimage​.2011​.10​.035. Cordaro, Daniel T., Rui Sun, Dacher Keltner, Shanmukh Kamble, Niranjan Huddar, and Galen McNeil. “Universals and Cultural Variations in 22 Emotional Expressions Across Five Cultures.” Emotion 18, no.1 (2018): 75–93. doi:​10​.1037/​emo0000302. Critchley, Hugo D., Stefan Wiens, Pia Rotshtein, Arne Öhman, and Raymond Dolan. “Neural Systems Supporting Interoceptive Awareness.” Nature Neuroscience 7 (2004): 189–95. doi:​10​.1038/​nn1176. Crivelli, Carlos, James Russell, Sergio Jarillo, and José-Miguel Fernndez-Dols. “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. doi:​10​.1073/​PNAS​.1611622113. Damasio, Antonio R. Descartes' Error: Emotion, Reason and the Human Brain. New York: Avon, 1994. Dewall, C. Nathan, Roy F. Baumeister, David S. Chester, and Brad J. Bushman. “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. doi:​10​.1177/​1754073915572690. Durán, Juan. I., Rainer Reisenzein, and José-Miguel Fernndez-Dols. “Coherence Between Emotions and Facial Expressions.” In The Science of Facial Expression, edited by José-Miguel Fernndez-Dols and James A. Russell, 107–29. New York: Oxford University Press, 2017. Ekman, Paul. “What Scientists Who Study Emotion Agree About.” Perspectives on Psychological Science 11, no.1 (2016): 31–4. doi:​10​.1177/​1745691615596992. Elliott, Maxwell, Annchen R. Knodt, David Ireland, Meriwether L. Morris, Richie Poulton, Sandhya Ramrakha, Maria L. Sison, et al. “Poor Test-Retest Reliability of Task-fMRI: New Empirical Evidence and a Meta-Analysis.” bioRxiv, 1–31 (2019). doi:​10​.1101/​681700. Gendron, Maria and Lisa Feldman Barrett. “Reconstructing the Past: A Century of Ideas About Emotion in Psychology.” Emotion Review 1, no. 4 (October 2009): 316–39. doi:​10​.1177/​1754073909338877. Gendron, Maria and Lisa Feldman Barrett. “Emotion Perception as Conceptual Synchrony.” Emotion Review 10, no. 2 (2018): 101–10, doi:​10​.1177/​1754073917705717. Gendron, Maria, 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. https://​doi​.org/​10​.1177/​0963721417746794. Gendron, Maria, Batja Mesquita, and Lisa Feldman Barrett, (forthcoming) “The Brain as a Cultural Artifact: Concepts, Actions and Experiences within the Human Affective Niche,” in Culture, Mind, and Brain, edited by Lawrence Kirmayer, Shinobu Kitayama, Robert Lemelson, and Carol Worthman. Cambridge: Cambridge University Press, forthcoming. Gross, James J. “The Emerging Field of Emotion Regulation: An Integrative Review.” Review of General Psychology 2, no.3 (1998): 271–99. doi:​10​.1037/​1089​-2680​.2​.3​.271. Grossmann, Igor., 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. http://​dx​.doi​.org/​10​.1037/​xge0000543.

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).

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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.

REFERENCES Abrams, Kathryn, and Hila Keren. ‘Who’s Afraid of Law and the Emotions?’ Minnesota Law Review 94, no. 6 (2010): 1997–2074. Alvaraz, Linda. Discovering Agreement: Contracts That Turn Conflict Into Creativity. Chicago: American Bar Association, 2016. Anderson, Elizabeth. Values in Ethics and Economics. Cambridge: Harvard University Press, 1993. Atiyah, Patrick. S. The Rise and Fall of Freedom of Contract. Oxford: Oxford University Press, 1985. Averill, James R. ‘A Constructivist View of Emotions’, in Emotion: Theory, Research, and Experience, edited by Robert Plutchik and Henry Kellerman, 305–39. New York, Academic Press, 1980. 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, no. 1 (2012): 161–81. Barclays Bank Plc v. O’Brien [1993] 4 All E.R. 417. Barnett, Randy E. ‘Conflicting Visions: A Critique of Ian Macneil’s Relational Theory of Contract’. Virginia Law Review 78 (1992): 1175–206. Beale, Hugh. ‘Bridging the Gap: A Relational Approach to Contract Theory’. Journal of Law and Society 41, no. 4 (2014): 641–51. Becher, Shmuel I. ‘Behavioral Science and Consumer Standard Form Contracts’. Louisiana Law Review 68, no. 1 (2007): 117. Berk, Hillary L. ‘The Legalization of Emotion: Managing Risk by Managing Feelings in Contracts for Surrogate Labor’. Law & Society Review 49, no. 1 (2015) 143–77. Blomqvista, Kirsimarja, Pia Hurmelinnab, and Risto Seppänena. ‘Playing the Collaboration Game Right – Balancing Trust and Contracting’. Technovation 25 (2005): 497–504. Boden, Sharon, and Simon L. Williams. ‘Consumption and Emotion: The Romantic Ethic Revisited’. Sociology 36, no. 3 (2002): 493–512.

The role of emotion in contract law  265 Braun, Virginia, and Victoria Clarke. ‘Using Thematic Analysis in Psychology’. Qualitative Research in Psychology 3, no. 2 (2006): 77–101. Cavendish Square Holding BV v. Talal El Makdessi [2015] UKSC 67. Cheung, Sai-On, 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): 333–43. Consumer Rights Act 2015 c.15. Contracts (Rights of Third Parties) Act 1999 c.31. Conway, Heather, and John Stannard. Emotional Dynamics of Law and Legal Discourse. Portland: Hart Publishing, 2016. Coote, Brian. Contract as Assumption: Essays on a Theme. New York: Bloomsbury Publishing, 2010. Daicoff, Susan. ‘Law as a Healing Profession: The “Comprehensive Law Movement”’. Pepperdine Dispute Resolution Law Journal 6, no. 1 (2005): 1–61. Damasio, Antonio. Descartes’ Error. London: Vintage, 2006. Duffy, James. ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’. QUT Law & Justice Journal 10, no. 1 (2010): 44–61. Dunn, Jennifer R, 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): 736–48. Eisenberg, Melvin Aron. ‘The Limits of Cognition and the Limits of Contract’. Stanford Law Review 47 (1995): 211–59. Eisenberg, Melvin A. The Transformation of Contract Law from Classical to Modern. New York: Oxford University Press, 2018. Ellsworth Phoebe C. ‘Appraisal Theory: Old and New Questions’. Emotion Review 5, no. 2 (2013): 125–31. Elster, Jon. ‘Emotional Choice and Rational Choice’. In The Oxford Handbook of Philosophy of Emotion, edited by Peter Goldie. New York, Oxford University Press, 2009. Feinman, Jay M. ‘The Significance of Contract Theory’. University of Cincinnati Law Review 58 (1990): 1283. Feldman Barratt, Lisa. How Emotions Are Made: The Secret Life of the Brain. London: Macmillan, 2017. Feldman, Yuval. ‘Control or Security: A Therapeutic Approach to the Freedom of Contract’. 18 Touro Law Review (2001-2002): 503–62. Fenton-O’Creevy, Mark, 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): 1044–61. Fried, Charles. Contract as Promise. A Theory of Contractual Obligation (2d ed.) New York: Oxford University Press, 2015. Galletti, Shida. ‘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): 248–79. General Reinsurance Corp v. Forsakringsaktiebolaget Fennia Patria [1983] Q.B. 856. Gudel, Paul J. ‘Relational Contract Theory and the Concept of Exchange’. Buffalo Law Review 46 (1998): 763–97. Hadfield, Gillian K. ‘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): 1235–85. Hillman, Robert A. ‘The Crisis in Modern Contract Theory’. Texas Law Review 67, no. 1 (1988): 103. Jarvis v. Swans Tours Ltd [1973] Q.B. 233 Kelman, Mark. ‘Law and Behavioral Science: Conceptual Overviews’. Northwestern University Law Review 97, no. 3 (2003): 1347–92. Keren, Hila. ‘Guilt-Free Markets? Unconscionability, Conscience and Emotions’. Brigham Young University Law Review 2016, no. 2 (2016): 427–91.  Keren, Hila. ‘Considering Affective Consideration’. Golden Gate University Law Review 40 (2010) 165–234. Kristjánsson, Kristján. Virtuous Emotions. New York: Oxford University Press, 2018. Macaulay, Stewart. ‘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): 44–79.

266  Research handbook on law and emotion Macneil, Ian R. ‘Contracts: Adjustment of Long-Term Economic Relations under Classical, Neoclassical, and Relational Contract Law’. Northwestern University Law Review 72 (1972): 854. Macneil, Ian R. ‘Values in Contract: Internal and External’. Northwestern University Law Review 78 (1983): 340–418. Macneil, Ian R. ‘Relational Contract Theory: Challenges and Queries’. Northwestern University Law Review 94, no. 3 (2000): 877–907. Macneil, Ian R. ‘Contracting Worlds and Essential Contract Theory’. Social & Legal Studies 9(3) (2000): 431–8. Markovitz, Daniel. ‘Promise as an Arm’s Length Relationship’. In Promises and Agreements: Philosophical Essays, edited by Hanoch Sheinman. New York: Oxford University Press, 2011. McLaughlin, Josetta, Jacqueline McLaughlin, and Raed Elaydi. ‘Ian Macneil and Relational Contract Theory: Evidence of Impact’. Journal of Management History 20, no. 1 (2014); 44–61. Melville, Angela, and Karen Laing. ‘“I Just Drifted Into It”: Constraints Faced by Publicly Funded Family Lawyers’. International Journal of the Legal Profession 14(3): (2007) 281–300. Mitchell, Catherine. Contract Law and Contract Practice – Bridging the Gap Between Legal Reasoning and Commercial Expectation. Oxford: Hart Publishing, 2013. Moors, Agnes and Maja Fischer. ‘Demystifying the Role of Emotion in Behaviour: Toward a Goal-Directed Account’. Cognition and Emotion 33, no. 1 (2019): 94–100. Morgan, Philip. ‘Battle of the Forms: Restating the Orthodox’. The Cambridge Law Journal 69, no. 2 (2010): 230–32. Mumby, Dennis K. and Linda L. Putnam. ‘The Politics of Emotion: A Feminist Reading of Bounded Rationality’. Academy of Management Review 17, no. 3 (1992): 465–86. Perillo, Joseph M. ‘The Origins of the Objective Theory of Contract Formation and Interpretation’. Fordham Law Review 69 (2000): 427. Photo Production Ltd Respondents v. Securicor Transport Ltd [1980] [1980] A.C. 827. Posner, Eric. ‘Law and the Emotions’. Georgetown Law Journal 89 (2001): 1977–2012. Posner, Eric. ‘Economic Analysis of Contract Law after Three Decades: Success or Failure?’ Yale Law Journal 112 (2003): 829–80. Radin, Margaret Jane. Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law. Princeton: Princeton University Press, 2013. Roehling, Mark V. ‘The Origins and Early Development of the Psychological Contract Construct’. Journal of Management History 3, no. 2 (1997): 204–17. Rosenberg, Anat. ‘Contract's Meaning and the Histories of Classical Contract Law’. McGill Law Journal 59 (2013): 165. Sanger, Carol. ‘The Role and Reality of Emotions in Law’. William & Mary Journal of Women and the Law 8, no. 1 (2001): 107–13. Scherer, Klaus R. ‘On the Rationality of Emotions: Or, When Are Emotions Rational?’ Social Science Information 50, no. 3–4 (2011): 330–50. Schwartz, Alan and Robert E. Scott. ‘Contract Theory and the Limits of Contract Law’. Yale Law Review 113 (2003): 541. Scott, Robert E. ‘The Death of Contract Law’, University of Toronto Law Journal 54, no. 4 (2004): 369. Simon, Herbert A. ‘Theories of Bounded Rationality’. In Decision and Organization: A Volume in Honor of Jacob Marschak, edited by C. B. McGuire and Roy Radner, 161–76. Amsterdam: North-Holland Publishing Company, 1972. Smith, Stephen A. Contract Theory. New York: Oxford University Press, 2004. Stannard, John. ‘The Emotional Dynamics of Undue Influence’. In Emotional Dynamics of Law and Legal Discourse, edited by Heather Conway and John Stannard, 59–82. Portland: Hart Publishing, 2016. Tan, Zong Xing. ‘Disrupting Doctrine? Revisiting the Doctrinal Impact of Relational Contract Theory’. Legal Studies 39, no. 1 (2018): 98–119. Tekdata Interconnections Ltd v. Amphenol Ltd [2009] EWCA Civ 1209. 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.

The role of emotion in contract law  267 Verweij, Marco, Timothy J. Senior, Juan F. Dominguez, and Robert Turner. ‘Emotion, Rationality, and Decision-Making: How to Link Affective and Social Neuroscience with Social Theory’. Frontiers in Neuroscience 9, no. 332 (2015): 1–13. Walford v. Miles [1992] 2 A.C. 128. Wright, J. Kim. Lawyers as Changemakers. Chicago: American Bar Association, 2016. Wright, J. Kim. ‘Conscious Contracts: Bringing Purpose and Values into Legal Documents’. https://​ jkimwright​.com/​conscious​-contracts​-bringing​-purpose​-and​-values​-into​-legal​-documents/​, last accessed 13 January 2021.

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

268

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, six people were killed and at least 30 injured when Dimitrious (James) Gargasoulas drove his car into pedestrians on busy Bourke Street mall in Melbourne, Australia’s second largest city, in an apparently deliberate attack. In the aftermath, community

‘Nationally, in 2017–18, expenditure (net of revenues) on corrective services was $3.4 billion [USD 2.4 billion] for prisons.’ Productivity Commission, Report on Government Services 2017–18 (Canberra: Productivity Commission, 2019), 8.3. 3 Sean Nicholls, ‘NSW Budget 2016: $3.8 Billion For New Jail Capacity to Cover Surge in Prison Population’, Sydney Morning Herald, June 16, 2016, https://​www​.smh​.com​.au/​national/​nsw/​nsw​-budget​ -2016​-38​-billion​-for​-new​-jail​-capacity​-to​-cover​-surge​-in​-prison​-population​-20160616​-gpkhd5​.html (accessed 28 February 2021). 4 Judy Trevena and Suzanne Poynton, Does a Prison Sentence Affect Future Domestic Violence Reoffending? (Sydney: NSW Bureau of Crime Statistics and Research, 2016). 5 See, e.g., Judy Trevena and Don Weatherburn, Does the First Prison Sentence Reduce the Risk of Further Offending? (Sydney: NSW Bureau of Crime Statistics and Research, 2015); Joanna Wang and Suzanne Poynton, Intensive Correction Orders Versus Short Prison Sentence: A Comparison of Re-offending (Sydney: NSW Bureau of Crime Statistics and Research, 2017). 6 Chris Cunneen et al., Penal Culture and Hyperincarceration: The Revival of the Prison (Farnham: Routledge, 2013). 7 Joseph Kennedy, ‘Monstrous Offenders and the Search for Solidarity through Modern Punishment’, Hastings Law Journal 51 (2000): 845-846. 2

270  Research handbook on law and emotion shock turned to outrage when it emerged that Gargasoulas had been released by a Victorian bail justice only days before.8 The Victorian government immediately responded with extensive punitive reforms to its bail laws.9 This case and the government’s response prompted Bartels et al.10 to examine changes to bail laws across Australia over the preceding five years. They found that a number of Australia’s legislatures have directed the judiciary and police to become more risk-averse when it comes to bail decision-making. They accordingly observed that the perceived purpose of bail has mutated over recent years and now arguably symbolises judgment and serves as a proxy for guilt and punishment. In particular, as a result of recent high-profile cases and a general decrease in the appetite for risk, Australian bail practice has shifted away from its foundational assumption, the presumption of innocence.11 Sentencing In the context of sentencing, there are many recent examples of tough-on-crime policies one can point to in Australia, from mandatory sentencing12 and increased penalties for sex offences,13 to removing community-based sentencing options for certain types of offences.14 One example that has captured the attention of the media and public relates to so-called ‘one punch’ laws, that is, laws relating to cases involving a death following a single assault, generally committed by young men in a public setting where the offender and/or victim are intoxicated. In

8 ‘Melbourne Car Attack: Bail Law Reform Announced by Daniel Andrews in Wake of Bourke St Rampage’, ABC News, January 23, 2017, https://​www​.abc​.net​.au/​news/​2017​-01​-23/​bourke​-st​-rampage​ -prompts​-bail​-law​-review​-in​-victoria/​8202300 (accessed 28 February 2021). 9 ‘Victoria’s Bail System to Become Most Onerous in Australia After Review, State Government Says’, ABC News, May 8, 2017, https://​www​.abc​.net​.au/​news/​2017​-05​-08/​victoria​-set​-to​-tighten​-bail​ -justice​-system​-after​-review/​8505506 (accessed 28 February 2021). 10 Lorana Bartels, Karen Gelb, Caroline Spiranovic, Rick Sarre and Shannon Dodd, ‘Bail, Risk and Law Reform: A Review of Bail Legislation Across Australia’, Criminal Law Journal 91 (2018): 107. 11 Lorana Bartels et al., ‘Bail, Risk and Law Reform’, 107. See also Denham Sadler, ‘Don’t Blame Bail Justices for Bourke St Attack’, Crikey, January 25, 2017, https://​www​.crikey​.com​.au/​2017/​01/​25/​ bail​-justices​-not​-to​-blame​-for​-bourke​-st​-car​-attack/​ (accessed 28 February 2021). 12 See, e.g., Samantha Hutchinson, ‘Politicians Vow to Toughen Mandatory Sentencing Laws After Women Avoid Prison’, The Australian, May 16, 2018, https://​www​.theaustralian​.com​.au/​ national​-affairs/​state​-politics/​politicians​-vow​-to​-toughen​-mandatory​-sentencing​-laws​-after​-women​ -avoid​-prison/​news​-story/​5a​cfd71f27ed0ff1b8384dd24d3331c9 (accessed 28 February 2021). For recent critiques of mandatory sentencing laws, see, e.g., Hilde Tubex, ‘Mandatory Sentencing Leads to Unjust, Unfair Outcomes: It Doesn’t Make Us Safe’, The Conversation, June 5, 2016, https://​theconversation​ .com/​mandatory​-sentencing​-leads​-to​-unjust​-unfair​-outcomes​-it​-doesnt​-make​-us​-safe​-52086; Australian Law Reform Commission, Pathways to Justice, 273–82; Lorana Bartels and Rick Sarre, ‘Law Reform Targeting Crime and Disorder’, in Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice, eds, Rick Sarre and Antje Deckert (Sydney: Palgrave, 2017), 98–100. 13 See, e.g., Adam Cooper, ‘Tougher Sentences Ahead for Sex Crimes in Victoria After Paedophile Cops More Jail Time’, ABC News, December 7, 2017, https://​www​.theage​.com​.au/​national/​victoria/​ more​-jail​-time​-for​-paedophile​-paves​-way​-for​-tougher​-sentences​-for​-sex​-crimes​-in​-victoria​-20171207​ -h00wwx​.html (accessed 28 February 2021); Mark Speakman, ‘Tougher Sentences for Historical Child Sex Crime’ (Media Release, August 31, 2018). For discussion, see Lorana Bartels, ‘Sentencing Review 2016–17,’ Criminal Law Journal 41 (2017): 350–59. 14 Victorian Sentencing Advisory Council, Community Correction Order, https://​www​ .sentencingcouncil​.vic​.gov​.au/​about​-sentencing/​sentencing​-options​-for​-adults/​community​-correction​ -order (accessed 28 February 2021); Bartels, ‘Sentencing Review 2016–17’, 356.

An Australian story on the role of compassion in criminal justice reform  271 New South Wales, the lenient sentence imposed on Kieran Loveridge for the death of Thomas Kelly in a popular nightclub area in Sydney15 served as a catalyst for the introduction of mandatory sentences of eight years’ imprisonment in cases where the offender is intoxicated.16 Parole In 2012, Irish journalist Jill Meagher was walking home from a night out in Melbourne when she was raped and murdered by Adrian Bayley, who was on parole for a series of sex offences.17 Remarkably, Bayley told police, ‘they should have the death penalty for people like me’.18 As a result of this case, which was met by an outpouring of grief and outrage, the parole landscape was irrevocably changed in Victoria and beyond.19 Specifically, the widespread subsequent reforms were characterised by: ●● prioritisation of community safety over all other relevant considerations in parole decision-making; ●● imposition of increasing limits on the courts’ discretion to set non-parole periods through the use of mandatory or presumptive non-parole periods; ●● questioning or undermining the discretion of parole boards to make decisions involving certain types of offences; ●● elevation of victims’ rights; and ●● a shift in the rationale for parole from a prisoner-centred and reintegrative process to a process that is increasingly focused on a prisoner’s forfeiture of rights due to their offending behaviour.20

THE RESULTS OF IRRATIONAL LAW REFORM: MOVING TOWARDS HYPERINCARCERATION What is the impact of all of this punitive reform? Australian prison populations and imprisonment rates are creeping inexorably upwards. As of September 2020, there were over 41,000

‘Thomas Kelly Killing: Kieran Loveridge Sentenced to Four Years,’ The Guardian, November 8, 2013, https://​www​.theguardian​.com/​world/​2013/​nov/​08/​thomas​-kelly​-killing​-kieran​-loveridge​-jailed (accessed 28 February 2021). 16 For discussion, see Julia Quilter, ‘The Thomas Kelly Case: Why a ‘One-punch Law’ is Not the Answer,’ The Conversation, November 13, 2013, https://​theconversation​.com/​the​-thomas​-kelly​-case​ -why​-a​-one​-punch​-law​-is​-not​-the​-answer​-20106 (accessed 28 February 2021). 17 Nino Bucci and Rania Spooner, ‘Adrian Bayley: How the Justice System Left Him Free to Stalk Melbourne’s Streets,’ The Age, March 26, 2015, https://​www​.theage​.com​.au/​national/​victoria/​adrian​ -bayley​-how​-the​-justice​-system​-left​-him​-free​-to​-stalk​-melbournes​-streets​-20150325​-1m70ps​.html (accessed 28 February 2021). 18 Mark Russell, ‘Bayley’s Wish For His Own Death Penalty,’ The Age, March 12, 2013, https://​ www​.theage​.com​.au/​national/​victoria/​bayleys​-wish​-for​-his​-own​-death​-penalty​-20130312​-2fx8i​.html (accessed 28 February 2021). 19 Lorana Bartels, ‘Parole and Parole Authorities in Australia: A System in Crisis?’ Criminal Law Journal 37 (2013). 20 Arie Freiberg, Lorana Bartels, Robin Fitzgerald and Shannon Dodd, ‘Parole, Politics and Penal Policy,’ Queensland University of Technology Law Review 18 (2018). 15

272  Research handbook on law and emotion people in our prisons.21 Our imprisonment rate was 206 per 100,000, although this had fallen from a pre-COVID peak of 224 in March 2020.22 By way of comparison, in the 1980s, it was less than 70 per 100,000. It should be noted the imprisonment rate is rising at the same time as crime rates are falling. In addition, research indicates that there is little correlation between crime and imprisonment rates; indeed, once a community passes a certain point, rather than preventing crime, prison instead causes crime.23 To place this discussion in an international context, Australia’s imprisonment rate places it 10th out of 36 OECD countries, ahead of all of Western Europe and Canada.24 Although the country in the ignominious lead is the United States (US), at 655 to Australia’s 167 per 100,000,25 the US rate has been declining, albeit slowly,26 while ours is on a steady upwards trajectory. The deepest crisis in over-incarceration is faced by Indigenous Australians, who are the most imprisoned peoples in the world,27 with an age-standardised imprisonment rate of 2,081 per 100,000, compared with 156 for non-Indigenous Australians,28 a 13-fold over-representation. An oft-cited figure is that an Indigenous man is more likely to go to prison than university.29 The Human and Financial Cost This approach is unsustainable both morally and financially. In Boulton,30 its seminal judgment on the imposition of community corrections orders as an alternative to full-time imprisonment, the Victorian Court of Appeal acknowledged that prison involves not only the loss of freedom, but also:

Australian Bureau of Statistics (ABS), Corrective Services, Australia – September 2020 Quarter, Cat No 4512.0. (Canberra: Australian Bureau of Statistics, 2020). 22 Australian Bureau of Statistics, Corrective Services. 23 See Bartels, ‘Criminal Justice Law Reform Challenges.’ 24 Statista, Incarceration Rates in OECD Countries As of 2020, https://​www​.statista​.com/​statistics/​ 300986/​incarceration​-rates​-in​-oecd​-countries/​ (accessed 28 February 2021). 25 It is acknowledged that the Australian figure cited here is lower than the ABS data cited above, because it is calculated on a per capita basis, while the data above are calculated per head of adult population. 26 Masood Farivar, ‘US Prison Population Keeps Falling’, VOA News, May 18, 2018, https://​www​ .voanews​.com/​a/​us​-prison​-population​-declines​-to​-lowest​-level​-since​-2014/​4400295​.html (accessed 28 February 2021). 27 Thalia Anthony, ‘FactCheck Q&A: Are Indigenous Australians the Most Incarcerated People on Earth?’ The Conversation, June 6, 2017, https://​theconversation​.com/​factcheck​-qanda​-are​ -indigenous​-australians​-the​-most​-incarcerated​-people​-on​-earth​-78528. See also Australian Law Reform Commission, Pathways to Justice–An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Sydney: Australian Law Reform Commission, 2017); Lorana Bartels, ‘Sentencing Review 2017–18’, Criminal Law Journal 42 (2018): 391–9. 28 Australian Bureau of Statistics, Prisoners in Australia, 2020, Cat No 4517.0 (Canberra: ABS, 2020). 29 ‘Fact Check: Are Young Indigenous Men More Likely to End up in Jail Than University?’ ABC News, March 3, 2016, https://​www​.abc​.net​.au/​news/​2015​-12​-03/​fact​-check​-aboriginal​-men​-in​-jail​-and​ -university/​6907540 (accessed 28 February 2021). 30 Boulton v. The Queen; Clements v. The Queen; Fitzgerald v. The Queen [2014] VSCA 342. For discussion, see Lorana Bartels, ‘Sentencing Review 2014–15,’ Criminal Law Journal 39 (2015): 336–49. 21

An Australian story on the role of compassion in criminal justice reform  273 strict discipline, restriction of movement, forced association with other prisoners and—for a substantial part of each day—confinement in a small cell (in many instances, a cell shared with a cellmate not of the prisoner’s choosing). There is, moreover, exposure to the risks associated with the confinement of large numbers of people in a small space—violence, bullying, intimidation.31

The Court concluded that imprisonment is often seriously detrimental for both prisoners and the community, noting: The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community’s disadvantage.32

Prison is also expensive in monetary terms, with recent research by the Australian Institute of Criminology indicating that it costs nine times as much as community corrections.33

INCREASED KNOWLEDGE AND REFLECTION LEADS TO REDUCED PUNITIVITY Of course, our comments about the irrationality of punitive criminal justice policy are hardly news and are not unique to Australia.34 Nevertheless, this punitive paradigm persists, notwithstanding research showing that the more people know about the criminal justice system—in other words, the more they can bring reason to bear on their thinking about crime—the less punitive they become.35 Loader has termed this the ‘cognitive deficit model’.36 Following this logic, criminologists should educate people about crime—and many of us are doing this in an attempt to overcome society’s cognitive deficit. Unfortunately, facts and figures are seemingly not enough; in fact, reason is commonly brushed aside. It is difficult to get through to politicians and the media. The statement from the New South Wales Corrections Minister that his government would rather spend money on schools and hospitals, rather than prisons is a stark example of this. For those of us involved in policy-making, it is frustrating to present facts and figures, only to find them brushed aside in favour of yet another hastily conceived punitive policy that will further crowd our prisons.

Boulton, [105]. Boulton, [108]. 33 Anthony Morgan, How Much Does Prison Really Cost? Comparing the Costs of Imprisonment with Community Corrections (Canberra: Australian Institute of Criminology, 2018). 34 See generally Julian Roberts, Loretta Stalans, David Indermaur and Mike Hough, Penal Populism and Public Opinion: Lessons from Five Countries (Oxford: Oxford University Press, 2002); Ian Loader, ‘Playing With Fire? Democracy and the Emotions of Crime and Punishment’, in Emotions, Crime and Justice, eds, Susanne Karstedt, Ian Loader and Heather Strang (London: Hart Publishing, 2011); John Pratt, ‘The Power and Limits of Populism: An Illustration From Recent Penal Developments in New Zealand’, in Emotions, Crime and Justice, eds, Susanne Karstedt, Ian Loader and Heather Strang (London: Hart Publishing, 2011). 35 For an overview, see Karen Gelb, More Myths and Misconceptions (Melbourne: Victorian Sentencing Advisory Council, 2008). 36 Loader, ‘Playing With Fire?’ 349. 31 32

274  Research handbook on law and emotion Ironically, given the ineffectiveness of prison, this will not only do little to prevent crime but may even increase it. Importantly, research also shows that, in spite of their apparent punitiveness, the public favours increasing the use of alternatives to imprisonment,37 especially for first-time offenders or those with mental health or substance abuse issues.38 In fact, there has been extensive research in Australia in recent years demonstrating a more nuanced and less punitive picture in relation to public attitudes to sentencing and parole39 than is commonly represented by politicians and the media. This suggests there is significant scope to build on a less punitive narrative about crime.

EMOTION AS A KEY DRIVER OF CRIMINAL JUSTICE LAW REFORM In light of the fact that punitive policies continue to dominate the criminal justice landscape, we suggest that we may have been going about this the wrong way. As researchers, we may feel that our facts and figures are so irrefutable that they must surely change minds. However, it is clear they can do little to change hearts. There has been something of a reluctance among researchers and policy-makers to acknowledge the role of the heart—and emotions more generally—in criminal justice. For example, Karstedt has suggested that emotions are ‘suspicious’ to criminologists and ‘criminology’s approach to emotion has been cautious and circumspect’.40 However, she went on to note that ‘the whole edifice of penal law is erected on the assumption of strong emotions: fear of sanctions should instill compliance, and vengeance has to be channeled by legal procedures’.41 As Maruna and King have suggested, ‘[j]ustice is, at its heart, an emotional, symbolic process, not simply a matter of effectiveness and efficiency’.42 This echoes Garland’s claim that ‘[t]he essence of punishment is irrational unthinking emotion fixed by a sense of the sacred and its violation’.43 In spite of the traditional reluctance to recognise emotions, Pratt44 has argued that governments have increasingly sought to take note of public emotions in policy development, while Karstedt has written about the ‘re-emotionalisation of law’, which has manifested in such developments as restorative justice and the victims’ movement, together with ‘highly emotionalised discourses on crime and justice in western democracies’.45 Gelb, More Myths. Geraldine Mackenzie et al., ‘Sentencing and Public Confidence: Results From a National Australian Survey on Public Opinions Towards Sentencing’, Australian and New Zealand Journal of Criminology 45 (2012). 39 For a recent overview, see Lorana Bartels, Robin Fitzgerald and Arie Freiberg, ‘Public Opinion on Sentencing and Parole in Australia’, Probation Journal (2018). 40 Susanne Karstedt, ‘Handle With Care: Emotions, Crime and Justice’, in Emotions, Crime and Justice, eds. Susanne Karstedt, Ian Loader and Heather Strang (London: Hart Publishing, 2011), 1. 41 Karstedt, ‘Handle With Care’, 2. 42 Shadd Maruna and Anna King, ‘Selling the Public on Probation: Beyond the Bib’, Probation Journal 55 (2008): 347. 43 David Garland, Punishment in Modern Society (Chicago: University of Chicago Press, 1990), 30–32. See also Kennedy, ‘Monstrous Offenders,’ 838. 44 Pratt, ‘The Power and Limits of Populism’. 45 Karstedt, ‘Handle With Care’, 3. 37 38

An Australian story on the role of compassion in criminal justice reform  275 How Emotion Drives Punitive Reform The emotions that fuel populism include fear, anger, alienation and resentment. Much has been written especially about fear of crime. For example, research shows that people with high levels of fear of crime are more likely to be punitive.46 But we do not need research to tell us that fear has visceral power, resulting in an aversive limbic response—one that can arise when we hear mass media narratives of brutal victimisation, just as it can from personal experience with crime. And this limbic response seeks to be soothed, making the ground fertile for politicians pursuing a law-and-order agenda and for narratives of punitivity that turn the offender, and all offenders, into the monstrous ‘other’. Of course, the seductively simple solution—the way to assuage that fear—is to lock the other away, more often and for longer.47 We argue that fear is not only a driver of punitive law reform, but a lever for those who advocate increased punitivity, and an emotion that sees people turn away from those we imprison. Entailed in this is a turning away from understanding. To put it bluntly, if an offender is a ‘monster’ rather than a human being, any attempt at understanding is foreclosed.48 But there is another way—and this involves turning towards both offenders and understanding. Here, we are talking about understanding why a person came to commit their crimes; understanding the conditions, programmes and supervision that might enable them to desist; and understanding how others can be diverted from a similar path before such crimes are committed. Critically, true understanding involves going beyond the individual to ask what it is about our society that, for example, fosters violence towards women. This ‘understanding’ is foundational to any conversation about ‘what works’ in criminal justice policy, but it depends on a willingness to turn towards those who are the subject of punishment and keep their humanity in view. The core concern here is to understand what it is that might enable, and motivate, us to turn towards an offender, and all offenders, to facilitate understanding. And to consider strategies for bringing this understanding into public discourse to foster a more measured—and, in fact, not coincidentally, evidence-based—approach to criminal justice policy. But this does not just involve a reengagement with the head, in the form of rational policy-making. This is also where the heart comes in.

Gelb, More Myths. See also Pratt, ‘The Power and Limits of Populism’, 334. Recent research from the US shows that making people feel safer about viruses, for example, by asking them if they have had a flu vaccine or getting them to use hand sanitizer after being warned about the flu virus, makes them feel more positively about immigration. These findings may be particularly relevant to the criminal justice context. See Jaime Napier, Julie Huang, Andrew Vonasch and John Bargh, ‘Superheroes for Change: Physical Safety Promotes Socially (But Not Economically) Progressive Attitudes Among Conservatives’, European Journal of Social Psychology 48, no. 2 (2018); John Bargh, ‘At Yale, We Conducted an Experiment to Turn Conservatives into Liberals. The Results Say a Lot About Our Political Divisions’, Washington Post, November 22, 2017, https://​www.washingtonpost​.com/​news/​inspired​-life/​ wp/​2017/​11/​22/​at​-yale​-we​-conducted​-an​-experiment​-to​-turn​-conservatives​-into​-liberals​-the​-results​-say​ -a​-lot​-about​-our​-political​-divisions/​?utm​_term​=​.aefee1bda3f5 (accessed 28 February 2021). 47 For an examination of this in the context of sex offenders, see Lorana Bartels, Jamie Walvisch and Kelly Richards, ‘More, Longer, Tougher… or is it Finally Time for a Different Approach to the Post-Sentence Management of Sex Offenders in Australia?’ Criminal Law Journal 43 (2019). 48 Kennedy, ‘Monstrous Offenders’, 830–33. 46

276  Research handbook on law and emotion Compassion as a Foundation for Turning Towards Offenders and Understanding Against this background, we now want to consider the role of compassion.49 We suggest that compassion has the potential to ‘open the heart’ and facilitate a turning towards those who are the subject of punishment, as fellow human beings. Compassion enables us to turn towards others, including offenders—rather than away from them—and to pay attention to them and ‘stay with’ and understand them. So, what is compassion? And what is it not? As expressed by the Dalai Lama, compassion is the ‘sensitivity to suffering in ourselves and others, with a deep motivation and commitment to alleviate and prevent it’. Similarly, Feldman and Kuyken maintain that ‘compassion is the capacity to be open to the reality of suffering and to aspire to its healing’.50 In seeking to provide clarity about the complex psychology of compassion, Gilbert and Choden state: there are two distinct but interdependent psychologies that make up compassion: the psychology that enables us to be motivated to engage with suffering, to stay with it and understand its causes in a nonjudgmental way; and a second psychology that enables us skillfully to work towards the alleviation and prevention of suffering and its causes.51

Compassion is more than empathy. Indeed, Alkon has suggested that compassion is ‘empathy with an action plan’,52 while Harris has asserted that it must involve the ‘desire to relieve another’s suffering, the desire to act’.53 Furthermore, compassion is more than a fleeting emotion arising in response to witnessing the suffering of a class of persons with whom we might ‘naturally’ identify. Instead, drawing on the work of Bornemann and Singer,54 we argue that compassion is better understood as an enduring mental disposition that can be cultivated, with universal application; it is a disposition that motivates and enables action to promote the wellbeing of others and may work to reduce unconscious bias.55 Renowned Australian social commentator Hugh Mackay observed in Australia Reimagined: Towards a More Compassionate, Less Anxious Society that ‘[c]ompassion will encourage our tolerance of difference, our disposition to be kind and non-judgemental, our willingness to

For discussion, see Anthony Hopkins and Lorana Bartels, ‘Paying Attention to the Person: Compassion, Equality and Therapeutic Jurisprudence’, in The Methodology and Practice of Therapeutic Jurisprudence, eds, Nigel Stobbs, Lorana Bartels and Michel Vols (Durham: Carolina Academic Press, 2019). 50 Christina Feldman and Willem Kuyken, ‘Compassion in the Landscape of Suffering’, Contemporary Buddhism 12, no. 1 (2011): 143. 51 Paul Gilbert and Choden, Mindful Compassion: How the Science of Compassion Can Help You Understand Your Emotions, Live in the Present, and Connect Deeply with Others (Oakland: New Harbinger Publications, 2014), 176. 52 Amy Alkon, Unf*ckology: A Field Guide to Living with Guts and Confidence (New York: St Martin’s Griffin, 2018), 117. 53 Angela Harris, ‘Compassion and Critique’, Columbia Journal of Race and Law 1, no. 3 (2012): 329. 54 Boris Bornemann and Tania Singer, ‘The ReSource Model of Compassion’, in Compassion – Bridging Practice and Science, eds, Tania Singer and Matthias Boltz (Munich: Max Planck Society, 2013). 55 See Hopkins and Bartels, ‘Paying Attention to the Person’. See also Yoona Kang, Jeremy Gray and John Dovidio, ‘The Nondiscriminating Heart: Lovingkindness Meditation Training Decreases Implicit Intergroup Bias’, Journal of Experimental Psychology: General 143, no. 3 (2014). 49

An Australian story on the role of compassion in criminal justice reform  277 respond to the needs of the other members of our group and, indeed, to those outside it’.56 Mackay also asserted that compassionate people are more likely to forgive those who have offended them. This may be true at a general level, but we have to ask some searching questions: Is it reasonable to ask those who have suffered at the hands of someone like Adrian Bayley to work towards such a view? Indeed, to make an argument that fails to fully acknowledge the suffering of victims and survivors—the trauma, fear and anger—would itself be lacking in compassion. The writings on compassion call for us to recognise it as universal. This is of course challenging in the present context. We acknowledge that it may not be realistic or possible for society more generally to take a compassionate view of an offender such Adrian Bayley. Clearly, he should not have been on the street with the opportunity to rape and kill Jill Meagher. However, it is critical to understand that taking a compassionate view of an offender—any offender—does not inevitably lead to a ‘soft’ or ‘lenient’ response. In the sentencing context, for example, a judicial officer can be compassionate even while sentencing a person to prison. In this context, the words of shame researcher Brené Brown are instructive. In response to the question ‘Do I believe serial killers and terrorists are doing the best they can?,’ she wrote: Yes. And their best is dangerous, which is why I believe we should catch them, lock them up, and assess whether they can be helped. If they can’t, they should stay locked up. That’s how compassion and accountability work. Hold people accountable for their actions in a way that acknowledges their humanity. When we treat people like animals and expect them to emerge from prison newly minted as loved, empathic, connected people, we’re kidding ourselves. Requiring accountability while also extending your compassion is not the easiest course of action, but it is the most humane and, ultimately, the safest for the community.57

As difficult and uncomfortable as it may be to acknowledge, fully realised, compassion is something we can feel for Gargasoulas, Loveridge and Bayley. The fact that doing this can be profoundly challenging points to a genuine risk that compassion can be misunderstood as being limited to circumstances where positive subjective feelings arise in the face of suffering.58 If these visceral experiences arise only in the face of those with whom we can identify or sympathise, then, as Bandes argues, ‘compassion may be selectively doled out based on racial bias and class bias, unconscious or otherwise’.59 We suggest that this danger of selective bias does not undermine the universality of compassion or its relevance in this context. Rather, it cautions us to be open to the reality that compassion may be only partially realised. It also opens our eyes to the fact that it is a common human experience to turn away, rather than towards, and to be unaware that we are doing this selectively. That said, our pragmatic concern is that the narrative of fear that attends Bayley is applied to all within the criminal justice system, obscuring their humanity and our understanding. The logic of limbic law reform goes something like this: Bayley is a monster who should not have been out on parole; all offenders—or at least all violent offenders—are like Bayley (i.e., they Hugh Mackay, Australia Reimagined: Towards a More Compassionate, Less Anxious Society (Sydney: Pan Macmillan, 2018), 68. 57 Brené Brown, Rising Strong (London: Ebury Publishing, 2015), 128. 58 Benjamin Cuff, Sarah Brown, Laura Taylor and Douglas Howat, ‘Empathy: A Review of the Concept’, Emotion Review 8 (2014). 59 Susan Bandes, ‘Compassion and the Rule of Law’, International Journal of Law in Context 13 (2017): 190. 56

278  Research handbook on law and emotion are monsters) and should not be granted parole.60 This results in a dramatic tightening of parole laws for all offenders, in the absence of a careful evidence-based discussion that might, for example, point out the fact that such a policy will result in violent offenders being released without supervision or support at the end of their sentence. Our argument here is that logic and reason alone cannot win the day. Instead, we need a strategy that moves us towards universal compassion. Taking a pragmatic approach, that strategy will not start with Adrian Bayley, but with those in our criminal justice system we can begin to turn towards and understand, whose suffering can be more easily understood. To provide a concrete recent example, a fundraiser to pay the fines of Aboriginal women imprisoned in Western Australia for fine default raised over AUD230,000 (USD160,000) in just four days.61 We suggest that an effective response to punitivity requires a harmonising of compassion and reason, an engagement of both the heart and the head. We also argue that this is not a zero-sum game—it is possible to be compassionate in relation to both victims and offenders. Although our justice system commonly positions the interests of victims as being diametrically opposed to and incompatible with the interests of offenders, we suggest that it is certainly possible to support both groups’ interests concurrently, as occurs within a restorative justice context.62 In addition, dismantling the false dichotomy between ‘offenders’ and ‘victims’ would more accurately recognise that the line between the two is often illusory, as many offenders were victims long before they became offenders and indeed their offending is causally related to their victimisation experiences.63 Narratives of Compassion: Sketching the Possibilities Even if one accepts that compassion is the foundation for turning towards others in the criminal justice system, we recognise that simply asserting this is unlikely to drive more compassionate and reasoned criminal justice policy. To argue this would amount to simply exhorting people to be more compassionate, a strategy that may lead to contestation of the definition as much as it might promote real change. In contrast, we call for a strategy that goes directly to the heart: identifying, engaging with and promulgating narratives of compassion towards offenders within the criminal justice system. This is a strategy of leading by example, rather than exhortation, and attending to the impact of such examples on the tendency to turn away from the humanity of offenders. It is a strategy of identifying where the human capacity to 60 Kennedy describes a similar categorical illogicality which sees us substituted an image of the monstrous offender for the average offender, foreclosing understanding and supporting the ‘severity revolution.’ Kennedy, ‘Monstrous Offenders’, 829–33. 61 Maani Truu, ‘Viral Campaign to Free Jailed Indigenous Women Reaches $230,000’, SBS News, January 11, 2019, https://​www​.sbs​.com​.au/​news/​viral​-campaign​-to​-free​-jailed​-indigenous​-women​ -reaches​-230​-000 (accessed 28 February 2021). 62 See, e.g., Sam Garkawe, ‘Restorative Justice From The Perspective Of Crime Victims’, Queensland University of Technology Law Review 15 (1999). 63 See, e.g., Susan Miller, Victims as Offenders: The Paradox of Women’s Violence in Relationships (New Brunswick: Rutgers University Press, 2005); Wesley Jennings, Alex Piquero and Jennifer Reingle, ‘On the Overlap Between Victimization and Offending: A Review of the Literature’, Aggression and Violent Behavior 17 (2012); Lorana Bartels and Patricia Easteal, ‘Women Prisoners’ Sexual Victimisation: Ongoing Vulnerabilities and Possible Responses’, Journal of Criminological Research, Policy and Practice 2 (2016).

An Australian story on the role of compassion in criminal justice reform  279 keep the offender in full view is in evidence, and drawing inspiration from this in pursuit of a more compassionate and rational policy conversation. The most extraordinary and inspirational examples of compassion are perhaps drawn from those who have suffered most at the hands of offenders and yet remain turned towards them as human beings worthy of care and concern, even in circumstances where one could hardly expect such a response. A recent example is that provided by Farid Ahmed, who survived the attacks on two mosques in Christchurch, New Zealand, in March 2019, in which a far-right extremist gunman killed Ahmed’s wife and 49 others. Ahmed spoke movingly of forgiveness and against hatred at a national remembrance ceremony held on March 29, 2019. In a subsequent interview, Ahmed went on to say about the gunman: ‘I love him to be honest. I think probably he went through some trauma in his life, probably he wasn’t loved... I don't hate him at all, I don't hate him at all, not at all.’64 His speech at the memorial service followed that of the New Zealand Prime Minster, Jacinda Ardern, who similarly spoke against hatred. Her compassionate response to the attacks and embrace of New Zealand’s Muslim community have won international plaudits.65 To take another example from Canberra, Australia, Ross Dunn and his wife Frances Rose found ‘it in [their] heart to give the person who killed his daughter another chance’.66 Specifically, they reached out to the teenager who drove the stolen car that killed their 21-year-old daughter, Clea Rose; they arranged for him to finish high school, sent him educational resources for him to learn to read and write, helped organise an apprenticeship and even stood by him when he breached his bail after release from prison. Dunn noted: ‘We’re not religious or mystical or anything, but there’s a very handy list of harms and antidotes, a sort of Tibetan Buddhist thing…[and t]he antidote to rage is compassion.’67 On a policy level, in each case, we suggest that the refusal to create a monstrous other out of the offender enabled understanding of the causes of the offending and fostered the potential to work skilfully to help reduce future suffering. In the case of the Christchurch shooter, the focus has been on white supremacy and far-right extremism and its promotion through political discourses of Islamophobia and hatred. In the case of Ross Dunn and Frances Rose, it enabled activism to address the regulation of police vehicle pursuits, with the offender’s attempts to evade capture the precursor to their daughter’s death. To provide further examples, we can look to Rosie Batty, whose 11-year-old son was killed by his father in front of her on a sporting field in Melbourne in 2014. The tragedy propelled her to become a remarkable advocate for action on family violence and she was made Australian Thomas Mead, ‘“I Don’t Hate Him, I Love Him”: Widower Forgives Christchurch Gunman who Killed His Wife’, Newshub, March 17, 2019, https://​www​.newshub​.co​.nz/​home/​new​-zealand/​2019/​03/​i​ -don​-t​-hate​-him​-i​-love​-him​-widower​-forgives​-christchurch​-gunman​-who​-killed​-his​-wife​.html (accessed 28 February 2021). 65 See, e.g., Sushil Aaron, ‘Why Jacinda Ardern Matters’, The New York Times, March 19, 2019, https://​www​.nytimes​.com/​2019/​03/​19/​opinion/​jacinda​-ardern​-new​-zealand​.html (accessed 28 February 2021); Suzanne Moore, ‘Jacinda Ardern is Showing the World What Real Leadership is: Sympathy, Love and Integrity’, The Guardian, March 18, 2019, https://​www​.theguardian​.com/​commentisfree/​ 2019/​mar/​18/​jacinda​-ardern​-is​-showing​-the​-world​-what​-real​-leadership​-is​-sympathy​-love​-and​-integrity (accessed 28 February 2021). 66 Sally Pryor, ‘“I Don’t Think Anybody’s Irredeemable”: Ross Dunn on his Daughter’s Killer’, Canberra Times, February 8, 2019, https://​www​.canberratimes​.com​.au/​national/​act/​i​-don​-t​-think​ -anybody​-s​-irredeemable​-ross​-dunn​-on​-his​-daughter​-s​-killer​-20190207​-p50wbi​.html (accessed 28 February 2021). 67 Pryor, ‘“I Don’t Think Anybody’s Irredeemable”.’ 64

280  Research handbook on law and emotion of the Year in 2015 in recognition of this.68 What is all the more impressive is that she has managed to retain some measure of compassion for her former partner, who killed their son, Luke. She has described him as ‘a tortured soul’, but also said: ‘I don’t hate him. I feel a lot of sorrow for his family’.69 Similarly, Tom Meagher became an anti-violence campaigner following his wife’s murder.70 He made a powerful argument against making a monster out of even the most heinous of offenders. As he put it, ‘I am the first one who wants to see [Bayley] vilified and long may he be one of Australia’s most hated people, but it only does any good if this example highlights rather than obscures the social issues that surround men’s violence against women.’71 As we understand it, Meagher’s point is that, if we see Bayley as a monster, rather than a human being, we will fail to see the prevalence of male violence against women and the way in which society shapes, enables, permits and condones that violence. In short, the ‘monster myth’ precludes men and society in general from examining masculinity, and the structures of misogyny,72 that are at the root of this violence. It restricts and absolves of accountability, rather than productively promoting it. Our closely related point is that if, as a society, we can have compassion for Bayley, we can see clearly the root of his offending, and how this root may exist, and be addressed, in all males that perpetrate violence against women, and in the social structures that create these men. And so, rather than turning away from offenders and locking up increasing numbers of them by enlarging the category of those we perceive as monsters, we may come to see increasing numbers of offenders as human and worthy of compassion, facilitating our understanding of them. This, in turn, supports a more discerning and rational approach to criminal justice policy that points away from the trajectory of mass-incarceration that we are currently on. We acknowledge that these are stories of victims expressing and acting with compassion, or at least resisting the tendency to create a monster out of an offender. These stories are chosen deliberately because they are examples of compassion in the face of extreme suffering at the hands of an offender; they are not open to challenge on the basis that those exhibiting this understanding have not experienced the suffering wrought by such offending.73 However, we cannot simply rely on victim narratives if we seek to steer away from limbic law reform. In recognition of this, we offer a recent exemplar narrative of compassion in the form of Chief Judge Kidd’s remarks when sentencing Cardinal George Pell, ‘one of the most senior figures 68 ‘Australian of the Year: Rosie Batty Awarded Top Honour for Efforts to Stop Family Violence’, ABC News, January 26, 2015, https://​www​.abc​.net​.au/​news/​2015​-01​-25/​rosie​-batty​-named​-australian​-of​ -the​-year​-2015/​6045290 (accessed 28 February 2021). 69 Kim Stephens, ‘Rosie Batty Leaves Anh Do in Tears As She Recalls the Night her Son Luke was Murdered,’ News.com.au, April 20, 2017, https://​www​.news​.com​.au/​lifestyle/​real​-life/​news​-life/​ rosie​-batty​-leaves​-anh​-do​-in​-tears​-as​-she​-recalls​-the​-night​-her​-son​-luke​-was​-murdered/​news​-story/​91​ b82f541496e96b53346425e0d3c54c (accessed 28 February 2021). 70 Erin McGuire, ‘‘I’m Exactly What a Rapist Looks Like’ – Tom Meagher,’ The Irish Times, March 8, 2019, https://​www​.irishtimes​.com/​life​-and​-style/​people/​i​-m​-exactly​-what​-a​-rapist​-looks​-like​ -tom​-meagher​-1​.2405365 (accessed 28 February 2021). 71 Tom Meagher, ‘The Danger of the Monster Myth’, White Ribbon Ireland, April 17, 2014, https://​ whiteribbonblog​.com/​2014/​04/​17/​the​-danger​-of​-the​-monster​-myth/​. 72 Kate Manne, Down Girl: The Logic of Misogyny (Oxford: Oxford University Press, 2017). 73 Kennedy sets out and discusses a fascinating example of a victim challenging rational policy arguments on the basis that they deny the suffering experienced by that victim. Kennedy, ‘Monstrous Offenders’, 895–6.

An Australian story on the role of compassion in criminal justice reform  281 in the Catholic Church, globally’. Pell was subsequently acquitted by the High Court.74 Using this example, we contend that there is significant potential for compassionate judicial officers to influence the public narrative by deliberately delivering their sentencing remarks in a way that keeps the offender, as well as the victim and community, in full view. Cardinal George Pell was convicted by a jury of sexually abusing two children in Melbourne in the 1990s. As explicitly acknowledged by Chief Judge Kidd, the sentencing took place ‘at a particular time, where in recent years there has been the exposure of child sexual abuse within institutional settings’.75 Indeed, the potential to view Pell as a ‘monster’ was all but explicitly acknowledged: ‘it is fair to say that in some sections of the community you are a publicly vilified figure’.76 Further, because Pell pleaded not guilty and continued to maintain his innocence, there was no attempt to explain his offending, so, little foundation for understanding. The challenge of keeping Pell in full view as a human being, and demonstrating this view in sentencing remarks, broadcast in real time to the world,77 in the face of the lifelong suffering Pell had been found by the jury to have caused to his victims and community outrage, was manifest. Nonetheless, we argue that his Honour did just this, for example, by using relational language in addressing Pell, as well as directly addressing ‘other victims of clerical or institutional sexual abuse’ to explain to them, individually, that the sentence could not be a ‘vindication of your trauma’, and to ‘recognise that you seek justice’.78 In an explicit acknowledgement of shared humanity, Kidd made clear that, despite the heinous offending he had been found guilty of, Cardinal Pell was to be sentenced ‘on the basis that you are a member of the community, like any other’.79 Amongst other things, his Honour engaged directly with the experience of incarceration that Pell would face, as a man in his late 70s, and the real possibility that he would die in prison: ‘Facing jail at your age, in these circumstances, must be an awful state of affairs for you.’80 We suggest that the way in which Chief Judge Kidd expressed his sentencing remarks simultaneously displayed compassion towards the offender, Pell’s victims, victims of child sexual offences generally and towards the community and its outrage.

CONCLUSION According to Sparks, ‘crime and punishment can excite powerful and indeed “wild” emotions’.81 He suggested that public engagement with mass media narratives of brutal victimisation is due in part to what he called ‘intuitive sympathy’.82 In fact, he argued that ‘the sentimentalism of the media narrative seems to offer an opportunity to display solidarity with others’ suffering, and thus to represent to a certain level of civic concern’.83

Pell v The Queen [2020] HCA 12. However, the sentencing remarks remain available on various publicly accessible websites and are instructive for the purposes of our discussion. 75 DPP v Pell [2019] VCC 260, [5]. 76 Pell, [5]. 77 Pell, [157]–[167]. 78 Pell, [179]–[181]. 79 Pell, [14]. 80 Pell, [122]. 81 Sparks, ‘Divided Sympathies’, 317. 82 Sparks, ‘Divided Sympathies’, 319. 83 Sparks, ‘Divided Sympathies’, 319. 74

282  Research handbook on law and emotion Loader has suggested that ‘the genie of public emotions is out of the bottle’.84 According to Karstedt, the re-emotionalisation of justice is to be contrasted with ‘a cold, calculating and “emotion-ignorant” model of justice’.85 We argue that emotions should not be ignored when it comes to developing criminal justice policy, decrying what Loader calls the ‘insulation model’86 and what we might generally think of as the ‘ostrich head in sand’ model. For too long, we have pretended that emotions are irrelevant to criminal justice policy, when of course they are not. Loader’s preferred model is the ‘redirection model’, which ‘takes as its starting point the inescapable centrality of the emotions to the question of how societies control crime and punish offenders’87 and seeks to engage with ‘the wide range of affects…that are aroused or mobilised in social life by problems of crime and punishment’.88 As Loader noted, these include not only negative emotions such as fear, anger and resentment, ‘but also shame, remorse, pity, and compassion’.89 He therefore advocated engaging with the public through deliberative processes, deepening their understanding of offenders and their circumstances ‘with a view to finding resolutions that…release the possibilities of remorse, forgiveness and hope’.90 We suggest that there is significant scope for public and media narratives that demonstrate compassion by understanding offenders as people we can and must turn toward. This may involve highlighting not only the victimisation experiences of many offenders, but the other aspects of their experiences that enable us to understand their actions and develop more appropriate responses to their actions and to them as individuals, rather than simply continuing the ‘tough-on-crime’ narrative. As a society, we need to channel public emotions and develop criminal justice policy that is not only evidence-based, but also ‘emotion aware’.91 In order to do so, we have sought to increase awareness of the intersection between emotion, the psychology of compassion, and criminal justice policy. In the preceding section, we provided some examples of compassion emanating even from quarters where we might not be reasonably able to expect it. The sentencing remarks in the Pell decision provide an example of a judicial officer managing to turn towards both a much-reviled offender (as he had then been legally found) and his victims. It is beyond the scope of this chapter to comprehensively analyse the leadership displayed by Jacinda Arden in response to the Christchurch massacre and we acknowledge that it has not been marked by compassion towards the offender, so much as towards the victims in a way that is inclusive and non-punitive. Nevertheless, we suggest that it constitutes a paradigm shift in how to respond to Kennedy’s ‘vivid stories of individual tragedies’.92 Tellingly, when asked by then President Trump what support the US could provide, Ardern called for ‘sympathy and love for all

Loader, ‘Playing With Fire?’ 348. Karstedt, ‘Handle With Care’, 5. 86 Loader, ‘Playing With Fire?’ 352. 87 Loader, ‘Playing With Fire?’ 356. 88 Loader, ‘Playing With Fire?’ 356. 89 Loader, ‘Playing With Fire?’ 356. 90 Loader, ‘Playing With Fire?’ 356–357. 91 Arie Freiberg and Wesley Carson, ‘The Limits to Evidence-Based Policy: Evidence, Emotion and Criminal Justice’, Australian Journal of Public Administration 69 (2010): 160. 92 Kennedy, ‘Monstrous Offenders’, 845. 84 85

An Australian story on the role of compassion in criminal justice reform  283 Muslim communities’.93 We hypothesise that such narratives, with their essential humanising elements intact, have the capacity to influence punitivity and calls for harsher criminal justice policy. In short, we believe this approach has the potential to set an example and echo in public and policy discourse. Clearly, telling governments that building new prisons is expensive and they would get better bang for buck spending their money elsewhere has only limited impact, at least in the contemporary Australian context. We suggest that engaging policy-makers, the media and the public with narratives of compassion may present an emotive and essential ally to complement so-called ‘rational’ arguments for reducing incarceration.

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284  Research handbook on law and emotion -to​-turn​-conservatives​-into​-liberals​-the​-results​-say​-a​-lot​-about​-our​-political​-divisions/​?utm​_term​=​ .aefee1bda3f5 (accessed 28 February 2021). Bartels, Lorana, and Patricia Easteal. ‘Women Prisoners’ Sexual Victimisation: Ongoing Vulnerabilities and Possible Responses’. Journal of Criminological Research, Policy and Practice 2, no. 3 (2016): 206–16. Bartels, Lorana, and Rick Sarre. ‘Law Reform Targeting Crime and Disorder’. In Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice, edited by Rick Sarre and Antje Deckert, 95–112. Sydney: Palgrave, 2017. Bartels, Lorana, ‘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, edited by Ron Levy, Molly O’Brien, Simon Rice, Pauline Ridge and Margaret Thornton, 119–32. Canberra: Australian National University Press, 2017. Bartels, Lorana. ‘Parole and Parole Authorities in Australia: A System in Crisis?’ Criminal Law Journal 37 (2013): 357–76. Bartels, Lorana. ‘Sentencing Review 2014-15’. Criminal Law Journal 39, no. 6 (2015): 326–50. Bartels, Lorana. ‘Sentencing Review 2016-17’, Criminal Law Journal 41, no. 6 (2017): 338–61. Bartels, Lorana. ‘Sentencing Review 2017-18’, Criminal Law Journal 42 (2018): 391–410. Bartels, Lorana, Jamie Walvisch and Kelly Richards. ‘More, Longer, Tougher…or is it Finally Time for a Different Approach to the Post-sentence Management of Sex Offenders in Australia?’ Criminal Law Journal 43 (2019): 41–57. Bartels, Lorana, Karen Gelb, Caroline Spiranovic, Rick Sarre and Shannon Dodd. ‘Bail, Risk and Law Reform: A Review of Bail Legislation Across Australia’. Criminal Law Journal 91 (2018): 91–107. Bartels, Lorana, Robin Fitzgerald and Arie Freiberg. ‘Public Opinion on Sentencing and Parole in Australia’. Probation Journal 65, no. 5 (2018): 269–84. Bornemann, Boris, and Tania Singer. ‘The ReSource Model of Compassion’. In Compassion – Bridging Practice and Science, edited by Tania Singer and Matthias Boltz, 31–3. Munich: Max Planck Society, 2013. Boulton v. The Queen; Clements v. The Queen; Fitzgerald v. The Queen [2014] VSCA 342. Brown, Brené. Rising Strong. London: Ebury Publishing, 2015. Bucci, Nico, and Rania Spooner. ‘Adrian Bayley: How the Justice System Left Him Free to Stalk Melbourne’s Streets’. The Age, March 26, 2015. https://​www​.theage​.com​.au/​national/​victoria/​adrian​ -bayley​-how​-the​-justice​-system​-left​-him​-free​-to​-stalk​-melbournes​-streets​-20150325​-1m70ps​.html (accessed 28 February 2021). Cooper, Adam. ‘Tougher Sentences Ahead for Sex Crimes in Victoria After Paedophile Cops More Jail Time’. ABC News, December 7, 2017. https://​www​.theage​.com​.au/​national/​victoria/​more​-jail​-time​ -for​-paedophile​-paves​-way​-for​-tougher​-sentences​-for​-sex​-crimes​-in​-victoria​-20171207​-h00wwx​ .html (accessed 28 February 2021). Cuff, Benjamin, Sarah Brown, Laura Taylor and Douglas Howat. ‘Empathy: A Review of the Concept’. Emotion Review 8, no. 2 (2014): 144–53. Cunneen, Chris, Eileen Baldry, David Brown, Melanie Schwartz, Alex Steel and Mark Brown. Penal Culture and Hyperincarceration: The Revival of the Prison. Farnham: Routledge, 2013. DPP v Pell [2019] VCC 260. Durkheim, Emile. The Division of Labor in Society, translated by George Simpson. New York City: Macmillan Co, 1933. Farivar, Masood. ‘US Prison Population Keeps Falling’. VOA News, May 18, 2018. https://​www​ .voanews​.com/​a/​us​-prison​-population​-declines​-to​-lowest​-level​-since​-2014/​4400295​.html (accessed 28 February 2021). Feldman, Christina, and Willem Kuyken. ‘Compassion in the Landscape of Suffering’. Contemporary Buddhism 12, no. 1 (2011): 143–55. Freiberg, Arie, and Wesley Carson. ‘The Limits to Evidence-Based Policy: Evidence, Emotion and Criminal Justice’. Australian Journal of Public Administration 69, no. 2 (2010): 152–64. Freiberg, Arie, Lorana Bartels, Robin Fitzgerald and Shannon Dodd. ‘Parole, Politics and Penal Policy’. Queensland University of Technology Law Review 18, no. 1 (2018): 191–215. Garkawe, Sam. ‘Restorative Justice from the Perspective of Crime Victims’. Queensland University of Technology Law Review 15 (1999): 40–56.

An Australian story on the role of compassion in criminal justice reform  285 Garland, David, Punishment in Modern Society. Chicago: University of Chicago Press, 1990. Gelb, Karen. More Myths and Misconceptions. Melbourne: Victorian Sentencing Advisory Council, 2008. Gilbert, Paul, and Choden. Mindful Compassion: How the Science of Compassion Can Help You Understand Your Emotions, Live in the Present, and Connect Deeply with Others. Oakland: New Harbinger Publications, 2014. Harris, Angela. ‘Compassion and Critique’. Columbia Journal of Race and Law 1 (2012): 326–52. Hopkins, Anthony, and Lorana Bartels. ‘Paying Attention to the Person: Compassion, Equality and Therapeutic Jurisprudence’. In The Methodology and Practice of Therapeutic Jurisprudence, edited by Nigel Stobbs, Lorana Bartels and Michel Vols, 15–28 (Durham: Carolina Academic Press, 2019). Hutchinson, Samantha. ‘Politicians Vow to Toughen Mandatory Sentencing Laws After Women Avoid Prison’. The Australian, May 16, 2018. https://​www​.theaustralian​.com​.au/​national​-affairs/​state​ -politics/​politicians​-vow​-to​-toughen​-mandatory​-sentencing​-laws​-after​-women​-avoid​-prison/​news​ -story/​5a​cfd71f27ed0ff1b8384dd24d3331c9 (accessed 28 February 2021). Jennings, Wesley, Alex Piquero, and Jennifer Reingle. ‘On the Overlap Between Victimization and Offending: A Review of the Literature’. Aggression and Violent Behavior 17, no. 1 (2012): 16–26. Kang, Yoona, Jeremy Gray and John Dovidio. ‘The Nondiscriminating Heart: Lovingkindness Meditation Training Decreases Implicit Intergroup Bias’. Journal of Experimental Psychology: General 143, no. 3 (2014): 1306–13. Karstedt, Susanne. ‘Handle With Care: Emotions, Crime and Justice’. In Emotions, Crime and Justice, edited by Susanne Karstedt, Ian Loader, and Heather Strang, 1–22 (London: Hart Publishing, 2011). Kennedy, Joseph. ‘Monstrous Offenders and the Search for Solidarity through Modern Punishment’, Hastings Law Journal 51, no. 5 (2000): 829–908. Loader, Ian. ‘Playing With Fire? Democracy and the Emotions of Crime and Punishment’. In Emotions, Crime and Justice, edited by Susanne Karstedt, Ian Loader, and Heather Strang, 347–62. London: Hart Publishing, 2011. Mackay, Hugh. Australia Reimagined: Towards a More Compassionate, Less Anxious Society. Sydney: Pan Macmillan, 2018. Mackenzie, Geraldine, Caroline Spiranovic, Kate Warner, Nigel Stobbs, Karen Gelb, David Indermaur, Lynne Roberts, et al. ‘Sentencing and Public Confidence: Results from a National Australian Survey on Public Opinions Towards Sentencing’. Australian and New Zealand Journal of Criminology 45, no. 1 (2012): 45–65. Manne, Kate. Down Girl: The Logic of Misogyny. Oxford: Oxford University Press, 2017. Maruna, Shadd, and Anna King. ‘Selling the Public on Probation: Beyond the Bib’. Probation Journal 55, no. 4 (2008): 337–51. McGuire, Erin. ‘“I’m Exactly What a Rapist Looks Like” – Tom Meagher’. The Irish Times, March 8, 2019. https://​www​.irishtimes​.com/​life​-and​-style/​people/​i​-m​-exactly​-what​-a​-rapist​-looks​-like​-tom​ -meagher​-1​.2405365 (accessed 28 February 2021). Mead, Thomas. ‘“I Don't Hate Him, I Love Him”: Widower Forgives Christchurch Gunman who Killed His Wife’. Newshub, March 17, 2019. https://​www​.newshub​.co​.nz/​home/​new​-zealand/​2019/​03/​i​-don​ -t​-hate​-him​-i​-love​-him​-widower​-forgives​-christchurch​-gunman​-who​-killed​-his​-wife​.html (accessed 28 February 2021). Meagher, Tom. ‘The Danger of the Monster Myth’. White Ribbon Ireland, April 17, 2014. https://​ whiteribbonblog​.com/​2014/​04/​17/​the​-danger​-of​-the​-monster​-myth/​. Miller, Susan. Victims as Offenders: The Paradox of Women’s Violence in Relationships. New Brunswick: Rutgers University Press, 2005. Moore, Suzanne. ‘Jacinda Ardern is Showing the World What Real Leadership Is: Sympathy, Love and Integrity’. The Guardian, March 18, 2019. https://​www​.theguardian​.com/​commentisfree/​2019/​ mar/​18/​jacinda​-ardern​-is​-showing​-the​-world​-what​-real​-leadership​-is​-sympathy​-love​-and​-integrity (accessed 28 February 2021). Morgan, Anthony. How Much Does Prison Really Cost? Comparing the Costs of Imprisonment with Community Corrections. Canberra: Australian Institute of Criminology, 2018. Napier, Jaime, Julie Huang, Andrew Vonasch and John Bargh. ‘Superheroes for Change: Physical Safety Promotes Socially (But Not Economically) Progressive Attitudes Among Conservatives’. European Journal of Social Psychology 48, no. 2 (2018): 187–95.

286  Research handbook on law and emotion Nicholls, Sean. ‘NSW Budget 2016: $3.8 Billion For New Jail Capacity to Cover Surge in Prison Population’. Sydney Morning Herald, June 16, 2016. https://​www​.smh​.com​.au/​national/​nsw/​nsw​ -budget​-2016​-38​-billion​-for​-new​-jail​-capacity​-to​-cover​-surge​-in​-prison​-population​-20160616​ -gpkhd5​.html (accessed 28 February 2021). Pratt, John, ‘The Power and Limits of Populism: An Illustration From Recent Penal Developments in New Zealand’. In Emotions, Crime and Justice, edited by Susanne Karstedt, Ian Loader and Heather Strang, 331–46. London: Hart Publishing, 2011. Productivity Commission. Report on Government Services 2017–18. Canberra: Productivity Commission, 2019. Pryor, Sally. ‘“I Don’t Think Anybody’s Irredeemable”: Ross Dunn on his Daughter’s Killer’. Canberra Times, February 8, 2019. https://​www​.canberratimes​.com​.au/​national/​act/​i​-don​-t​-think​-anybody​-s​ -irredeemable​-ross​-dunn​-on​-his​-daughter​-s​-killer​-20190207​-p50wbi​.html (accessed 28 February 2021). Quilter, Julia. ‘The Thomas Kelly Case: Why a ‘One-Punch Law’ is Not the Answer’. The Conversation, November 13, 2013. https://​theconversation​.com/​the​-thomas​-kelly​-case​-why​-a​-one​-punch​-law​-is​-not​ -the​-answer​-20106. Roberts, Julian, Loretta Stalans, David Indermaur, and Mike Hough. Penal Populism and Public Opinion: Lessons from Five Countries. Oxford: Oxford University Press, 2002. Russell, Mark. ‘Bayley’s Wish For His Own Death Penalty’. The Age, March 12, 2013. https://​ www​.theage​.com​.au/​national/​victoria/​bayleys​-wish​-for​-his​-own​-death​-penalty​-20130312​-2fx8i​.html (accessed 28 February 2021). Sadler, Denham. ‘Don’t Blame Bail Justices for Bourke St Attack.’ Crikey, January 25, 2017. https://​ www​.crikey​.com​.au/​2017/​01/​25/​bail​-justices​-not​-to​-blame​-for​-bourke​-st​-car​-attack/​ (accessed 28 February 2021). Schatz, Bryan. ‘New Zealand’s Prime Minister Is Showing the World What Real Leadership Looks Like’, Mother Jones, March 16, 2019, https://​www​.motherjones​.com/​politics/​2019/​03/​new​-zealand​ -prime​-minister​-jacinda​-arden​-love​-muslims​-trump​-gun​-laws/​ (accessed 28 February 2021). Sparks, Richard. ‘Divided Sympathies: David Hume and Contemporary Criminology’. In Emotions, Crime and Justice, edited by Susanne Karstedt, Ian Loader and Heather Strang, 317–30. London: Hart Publishing, 2011. Speakman, Mark. ‘Tougher Sentences for Historical Child Sex Crime’ (Media Release, August 31, 2018). New South Wales Department of Communities and Justice. ‘Tougher Sentences for Historical Child Sex Crime’. General Media Release, August 31, 2018. Statista. Incarceration Rates in OECD Countries As of 2018. https://​www​.statista​.com/​statistics/​300986/​ incarceration​-rates​-in​-oecd​-countries/​ (accessed 28 February 2021). Stephens, Kim. ‘Rosie Batty Leaves Anh Do in Tears as She Recalls the Night Her Son Luke was Murdered’. News.com.au, April 20, 2017. https://​www​.news​.com​.au/​lifestyle/​real​-life/​news​-life/​ rosie​-batty​-leaves​-anh​-do​-in​-tears​-as​-she​-recalls​-the​-night​-her​-son​-luke​-was​-murdered/​news​-story/​ 91​b82f541496e96b53346425e0d3c54c (accessed 28 February 2021). Trevena, Judy, and Don Weatherburn. Does the First Prison Sentence Reduce the Risk of Further Offending? Sydney: New South Wales Bureau of Crime Statistics and Research, 2015. Trevena, Judy and Suzanne Poynton. ‘Does a Prison Sentence Affect Future Domestic Violence Reoffending?’ New South Wales Bureau of Crime Statistics and Research, 2016. Truu, Maani. ‘Viral Campaign to Free Jailed Indigenous Women Reaches $230,000’. SBS News, January 11, 2019. https://​www​.sbs​.com​.au/​news/​viral​-campaign​-to​-free​-jailed​-indigenous​-women​-reaches​ -230​-000 (accessed 28 February 2021). Tubex, Hilde. ‘Mandatory Sentencing Leads to Unjust, Unfair Outcomes: It Doesn’t Make Us Safe’. The Conversation, June 5, 2016. https://​theconversation​.com/​mandatory​-sentencing​-leads​-to​-unjust​ -unfair​-outcomes​-it​-doesnt​-make​-us​-safe​-52086 (accessed 28 February 2021). Victorian Sentencing Advisory Council. Community Correction Order. https://​www​.sentencingcouncil​ .vic​.gov​.au/​about​-sentencing/​sentencing​-options​-for​-adults/​community​-correction​-order (accessed 28 February 2021). Wang, Joanna, and Suzanne Poynton. Intensive Correction Orders Versus Short Prison Sentence: A Comparison of Re-offending. Sydney: NSW Bureau of Crime Statistics and Research, 2017.

PART V LEGAL DECISION-MAKING

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

INTRODUCTION Judges routinely instruct juries that they should decide cases based solely on evidence presented at trial and avoid letting their emotions affect their judgment.1 Judges may exclude relevant evidence if its prejudicial impact outweighs its probative value and may deem evidence to be unfairly prejudicial if the evidence might incite emotional decision-making.2 In the law, emotion is often viewed as extraneous to jury decision-making—either as an unavoidable byproduct of certain types of evidence or an impediment to the decision-making process. Even when the legal system does acknowledge the impact of emotion, it tends to overgeneralize across different types of emotions and legal judgments. Growing consensus in psychological science, however, reveals a much more complicated story. Emotion is not extraneous but rather inextricably intertwined with cognitive decision-making processes and its impact can be very different depending on the type of emotion and the type of legal judgment. The notion that instructing jurors to ignore their feelings will purge emotion from the jury box reflects an oversimplification of human decision-making processes. In this chapter, we will describe how experimental methodology within psychological science can shed light on how emotions can affect jurors’ decision-making processes, with the goal of developing a more nuanced model of the role that juror emotions play in evidence evaluation and legal decision-making.

EXPERIMENTAL MOCK JURY RESEARCH Methodology Determining the effect of emotionally evocative evidence on decision-making processes requires experimental research methodology—typically in the form of mock jury experiments. The goal of mock jury experiments is to simulate a jury decision-making experience in a highly controlled environment. The important advantage of experimental methodology is that it enables a scientist to recruit a large number of people all of whom will be exposed to the same trial evidence. The researchers will manipulate only the variable of interest, for example randomly assigning mock jurors to either be exposed to emotionally evocative evidence or not, and then measuring the mock jurors’ decision-making process and ultimate judgments. If scientists find that mock jurors who have been exposed to the emotionally evocative evidence 1 Criminal Jury Instructions Committee of the State Bar of Arizona, “Preliminary Criminal Instructions,” in Revised Arizona Jury Instructions (Criminal) (LexisNexis, 2018); Colo. Jury Instr. Crim. § E:01 (2017); Mich. Model Crim. Jury Instr. § 3.1(2) (2014). 2 Fed. R. Evid. 403 advisory committee’s note to 2011 amendment.

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Emotional evidence in court  289 behave differently than those who were not, scientists can make a causal inference that being exposed to the emotional evidence affected mock jurors’ decision-making and judgments because that emotional evidence was the only thing that differed systematically between the groups. This methodology is not, however, without limitations. Mock juror studies vary in terms of how realistic they are (e.g., written trial materials versus elaborate trial videos, the inclusion of jury deliberation in the procedure, the representativeness of the sample). Jury researchers face a very challenging task: balancing internal validity (i.e., the degree to which they can infer that the emotional evidence caused a change in jurors’ decisions) through a tightly controlled environment against ecological validity (i.e., the degree to which the results will generalize to real-world juries) by making the process as realistic as possible.3 These trade-off decisions are particularly important when it comes to studying jurors’ emotions because the evidence presentation format might influence mock jurors’ emotional responses. For example, in one study mock jurors who viewed videotaped testimony (compared to reading a transcript) reported being more disturbed and in turn rated the plaintiff as less at fault.4 Therefore, differences in methodological realism might translate to different levels of emotional response in mock jurors. Investigating the impact of emotional evidence specifically in the context of mock jury experiments brings its own unique considerations and challenges. First, although it is important to determine whether the emotional aspect of evidence affects jurors’ decisions, that general fact does not lead to useful information for the legal system (e.g., by helping judges with admissibility decisions). Researchers need to identify why and how emotional evidence affects decisions in order to disentangle whether these effects are operating through legally relevant probative channels (i.e., by providing information jurors need) or prejudicial channels (e.g., biasing their decision-making). Given the intertwined nature of cognition and emotion, this is a complicated endeavor. For example, if researchers want to make the case that emotional evidence is having a prejudicial impact, they have to be careful to include the non-prejudicial information that the emotionally evocative evidence conveys in their comparison control conditions. Otherwise, it would be impossible to determine whether the emotional evidence is increasing conviction rates because of an emotion-based prejudicial impact or because of some sort of probative information it provides. Consider, for instance, the question of what impact, if any, gruesome photographs have on criminal jury verdicts. The ideal comparison is with a control condition that includes any probative information that the gruesome photographs included (e.g., delivered verbally by coroner testimony), as well as non-gruesome photographs so that it is clear that it is the gruesome content of the photographs that is driving the increase in conviction rates. This structure permits the researcher to rule out the alternative explanation that the increase in conviction rates could be driven by information the gruesome photos might provide, or by the persuasive power of seeing any photograph—even when it does not include gruesome content. Another important methodological issue for emotion and law researchers is the measurement of emotion. In mock jury experiments, emotion is typically assessed via self-report 3 Margaret Kovera, The Psychology of Juries (Washington D.C.: American Psychological Association, 2017). 4 Vicki Fishfader et al., “Evidential and Extralegal Factors in Juror Decisions: Presentation Mode, Retention, and Level of Emotionality,” Law and Human Behavior 20, no. 5 (October 1996): 565–72.

290  Research handbook on law and emotion measures in which the participants are asked to report the degree to which they felt a list of emotions on Likert scales, often ranging from Not at all to Very much. Measures that rely on participants’ self-report are vulnerable to potential lack of awareness, unwillingness to be forthright, or misunderstanding of an abstract concept. Despite these potential shortcomings, self-report is usually the most cost-effective and simplest way to measure emotion in mock juror settings. The researcher must also decide on the timing of the emotion measure in the course of the experiment. Measuring emotion too early in the experiment risks calling jurors’ awareness to the potential for their mood or emotion to influence their decisions, leading them to correct their judgment accordingly.5 This would suggest that asking jurors about their emotions before the trial or before they render their verdicts might lead to underestimation of the impact of emotional evidence. On the other hand, measuring emotions after they have made their judgments might also underestimate the jurors’ level of emotion because their emotional response might have already dissipated (e.g., they were experiencing high anger and voted guilty to alleviate that anger, which then dissipated as a result, and was low when they were asked to report their emotion). This is not to say that self-reported emotion measures are not useful—they have led to many insights within legal psychology reviewed in this chapter, as well as a very large literature in basic social psychology. It is important, however, to continue to work toward new methodologies that address these limitations, such as incorporating psycho-physiological monitoring that can measure emotional reactions continuously in real time and is not vulnerable to self-report limitations. Next, we will review advances in our understanding, gleaned from mock jury experiments, of the impact of emotional evidence on legal decision-making.

JURORS’ EMOTIONAL EXPERIENCE OF STRESS Participating in jury duty can be incredibly stressful, for a variety of reasons, including information complexity,6 decision-making difficulty,7 safety fears,8 and the impact of viewing emotionally disturbing gruesome evidence.9 Jurors who serve on capital cases, as compared to short, non-traumatic trials, report particularly significant stress and emotional setbacks.10 5 Simone Schnall et al., “Landy and Goodwin (2015) Confirmed Most of Our Findings Then Drew the Wrong Conclusions,” Perspectives on Psychological Science 10, no. 4 (July 2015): 537–38; Nobert Schwarz and Gerald Clore, “Mood, Misattribution, and Judgments of Well-Being: Informative and Directive Functions of Affective States,” Journal of Personality and Social Psychology 45, no. 3 (September 1983): 513–23. 6 Sarah Trescher, Monica Miller, and Brian Bornstein, “How Does Jury Service Affect 21st-Century Jurors?” in Criminal Juries in the 21st Century: Psychological Science and the Law, eds, Cynthiua Najdowski and Margaret Stevenson (New York: Oxford University Press, 2019), 271–96. 7 Theodore Feldmann and Roger Bell, “Crisis Debriefing of a Jury After a Murder Trial,” Psychiatric Services 42, no. 1 (January 1991): 79–81. 8 Michael Antonio, “Stress and the Capital Jury: How Male and Female Jurors React to Serving on a Murder Trial,” Justice System Journal 29, no. 3 (2008): 396–407. 9 Stanley Kaplan and Carolyn Winget, “The Occupational Hazards of Jury Duty,” Journal of the American Academy of Psychiatry and the Law Online 20, no. 3 (1992): 325–33. 10 Michael Antonio, “‘I Didn't Know It'd Be So Hard’ Jurors' Emotional Reactions to Serving on a Capital Trial,” Judicature 89, no. 5 (March–April 2006): 282–86.

Emotional evidence in court  291 Despite the fact that stressed jurors recognize the importance of the jury’s role in the legal system,11 stress might negatively impact their decision-making processes. Research outside of the jury context has demonstrated that stress can impair systematic consideration of all relevant alternatives,12 exaggerate certain risk-taking biases,13 compromise executive functions and working memory,14 and impair cognitive performance.15 Thus, failing to acknowledge and manage extreme juror stress might lead to flawed decisions stemming from less open-minded and less rigorous decision-making processes. Techniques to reduce juror stress include permitting jurors to take notes,16 permitting jurors to ask questions,17 and using technology to help explain the case.18

DISCRETE EMOTIONS In addition to general stress responses, jurors experience intense emotions that can influence their decisions in various ways. In one experiment, the researchers measured how mock jurors’ emotions varied across several points during a mock death penalty trial. Although there were fluctuations, mock jurors’ positive emotions decreased while their anger and disgust increased over the course of the guilt phase.19 Anger and disgust are associated generally with a need to punish,20 which in a capital trial can translate to a greater likelihood of imposing a death sentence (compared to jurors who did not feel the same level of anger and disgust)—despite all mock jurors hearing the same evidence.21 Jurors’ punishment decisions can even be influenced by how they anticipate feeling. Mock jurors who anticipated experiencing more positive feelings as a result of imposing a death sentence were more likely to sentence a defendant to 11 Mark Costanzo and Sally Costanzo, “Jury Decision Making in the Capital Penalty Phase,” Law and Human Behavior 16, no. 2 (1992): 185–201. 12 Giora Keinan, “Decision Making Under Stress: Scanning of Alternatives Under Controllable and Uncontrollable Threats,” Journal of Personality and Social Psychology 52, no. 3 (March 1987): 639–44. 13 Anthony Porcelli and Mauricio Delgado, “Acute Stress Modulates Risk Taking in Financial Decision Making,” Psychological Science 20, no. 3 (March 2009): 278–83. 14 Mustafa al’Absi, Kenneth Hugdahl, and William Lovallo, “Adrenocortical Stress Responses and Altered Working Memory Performance,” Psychophysiology 39, no. 1 (March 2003): 95–99; Amy Arnsten, “The Biology of Being Frazzled,” Science 280, no. 5370 (June 1998): 1711–12. 15 al’Absi, Hugdahl, Lovallo, “Adrenocortical Stress Responses,” 95–99; J. Veltman and A. Gaillard, “Indices of Mental Workload in a Complex Task Environment,” Neuropsychobiology 28, no. 1–2 (1993): 72–75. 16 Brian Bornstein and Edie Greene, The Jury Under Fire: Myth, Controversy, and Reform (New York: Oxford University Press, 2017). 17 Larry Heuer and Steven Penrod, “Increasing Jurors' Participation in Trials,” Law and Human Behavior 12, no. 3 (September 1988): 231–61. 18 Trescher, Miller, and Bornstein, “How Does Jury Service Affect 21st-Century Jurors?” 271–96. 19 Leah Georges, Richard Wiener, and Stacie Keller, “The Angry Juror: Sentencing Decisions in First-Degree Murder,” Applied Cognitive Psychology 27, no. 2 (March 2013): 156–66. 20 Jessica Salerno and Liana Peter-Hagene, “The Interactive Effect of Anger and Disgust on Moral Outrage and Judgments,” Psychological Science 24, no. 10 (October 2013): 2069–78; Catherine Molho et al., “Disgust and Anger Relate to Different Aggressive Responses to Moral Violations,” Psychological Science 28, no. 5 (March 2017): 609–19. 21 Georges, Wiener, and Keller “The Angry Juror,” 156–66; Narina Nuñez et al., “Negative Emotions Felt During Trial: The Effect of Fear, Anger, and Sadness on Juror Decision Making,” Applied Cognitive Psychology 29, no. 2 (January 2015): 200–09.

292  Research handbook on law and emotion death than those who anticipated feeling less positive feelings—although they anticipated more intense feelings than they ultimately felt.22 Some might argue—particularly those who adhere to a retribution-based motivation to punish—that jurors’ negative emotions should inform their punishment decisions. Many argue that moral outrage, for example, is an emotional barometer that informs individuals about how much punishment is required to balance the scales of justice.23 In addition to creating a need to punish, general social psychological research has demonstrated that moral emotions like anger and disgust can also create a need to blame someone for the act in the first place.24 Experiments specific to legal judgments have demonstrated that higher levels of negative emotions like moral outrage,25 anger,26 and disgust27 can lead mock jurors to be more likely to find a criminal defendant guilty. Yet, not all emotions have the same effect: there is evidence that sympathy and sadness might have no effect on verdicts and damage awards,28 and still other emotions like empathy for the defendant can reduce convictions.29 Mock jury studies have begun to reveal reasons why feeling certain negative emotions might lead to greater convictions and punitiveness. For example, mock jurors’ level of anger is associated with judging mitigation evidence to be weaker,30 and can cause mock jurors to judge defendants’ actions as more intentional.31 Turning to social psychological research outside of the jury realm provides additional explanations. Feeling anger and disgust is associated with

Richard Wiener, Leah Georges, and Juan Cangas, “Anticipated Affect and Sentencing Decisions in Capital Murder,” Psychology, Public Policy, and Law 20, no. 3 (August 2014): 263–80. 23 Alan Fiske and Philip Tetlock, “Taboo Trade-offs: Reactions to Transactions That Transgress the Spheres of Justice,” Political Psychology 18, no. 2 (December 2002): 255–97; Kevin Carlsmith, John Darley, and Paul Robinson, “Why Do We Punish? Deterrence and Just Deserts as Motives For Punishment,” Journal of Personality and Social Psychology 83, no. 2 (2002): 284–99; and Cass Sunstein, “Moral Heuristics,” Behavioral and Brain Sciences 28, no. 4 (July 2006): 531–41. 24 Dacher Keltner, Phoebe Ellsworth, and Kerry Edwards, “Beyond Simple Pessimism: Effects of Sadness and Anger on Social Perception,” Journal of Personality and Social Psychology 64, no. 5 (May 1993): 740–52. 25 Salerno and Peter-Hagene, “The Interactive Effect of Anger and Disgust,” 2069–78. 26 Galen Bodenhausen, Lori Sheppard, and Geoffrey Kramer, “Negative Affect and Social Judgment: The Differential Impact of Anger and Sadness,” European Journal of Social Psychology 24, no. 1 (January/February 1994): 45–62; David Bright and Jane Goodman-Delahunty, “Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making,” Law and Human Behavior 30, no. 2 (May 2006): 183–202. 27 Jessica Salerno, “Seeing Red: Disgust Reactions to Gruesome Photographs in Color (But Not in Black and White) Increase Convictions,” Psychology, Public Policy, and Law 23, no. 3 (March 2017): 336–50. 28 Bodenhausen, Sheppard, and Kramer, “Negative Affect and Social Judgment,” 45–62; Neal Feigenson, Jaihyun Park, and Peter Salovey, “Effect of Blameworthiness and Outcome Severity on Attributions of Responsibility and Damage Awards in Comparative Negligence Cases,” Law and Human Behavior 21, no. 6 (December 1997): 597–617. 29 Tamara Haegerich and Bette Bottoms, “Empathy and Jurors' Decisions in Patricide Trials Involving Child Sexual Assault Allegations,” Law and Human Behavior 24, no. 4 (August 2000): 421–48. 30 Georges, Wiener, and Keller, “The Angry Juror,” 156–66. 31 Julia Goldberg, Jennifer Lerner, and Philip Tetlock, “Rage and Reason: The Psychology of the Intuitive Prosecutor,” European Journal of Social Psychology 29, no. 5–6 (June 1999): 781–95; Karl Ask and Afroditi Pina, “On Being Angry and Punitive: How Anger Alters Perception of Criminal Intent,” Social Psychological and Personality Science 2, no. 5 (September 2011): 494–99. 22

Emotional evidence in court  293 greater confidence in one’s own opinion,32 which can lead to shallower processing of evidence overall.33 Negative moral emotions, like anger and disgust, can also lead to a biased search for information, turning people from “intuitive scientists” into “intuitive prosecutors” trying to justify a conviction and punishment.34 Feeling empathy (or “emotional congruence”) toward an individual is associated with judging their mistreatment as less fair compared to feeling disdain (i.e., “emotional incongruence”) or being apathetic toward the individual.35 Similarly, people judge an advantageous situation as more fair when they feel emotional congruence toward an individual than when they feel emotional incongruence.36 These studies support what is likely intuitive to attorneys—in criminal cases, prosecutors should try to increase negative emotions like anger and disgust, in particular, because they increase convictions and punishment. In civil cases, plaintiffs’ attorneys might want to induce empathy toward plaintiffs so that jurors will see their plight as more unfair; while defense attorneys should try to induce jurors’ empathy toward the defendant given that empathy might reduce liability judgments by making the jurors more open to mitigating evidence of mistreatment in hopes of reducing punishment. Yet, these strategies might not be as straightforward as they sound and research needs to identify the circumstances under which they are effective. Research on the power of emotion in the art of persuasion has demonstrated that congruence between the framing of the message and the emotional state of the listener increases persuasiveness because this congruence increases the believability of the emotion-inducing event.37 Angry people (compared to sad people) believed that angering events were more likely than sad events and vice versa.38 This suggests that, for example, jurors judging future dangerousness in sentencing who are feeling fear might be more likely to believe a defendant will reoffend when the argument induces fear, whereas angry jurors might be more likely to respond to an anger induction, and sad jurors to sad arguments.

Craig Smith and Phoebe Ellsworth, “Patterns of Cognitive Appraisal in Emotion,” Journal of Personality and Social Psychology 48, no. 4 (April 1985): 813–38; Larissa Tiedens and Susan Linton, “Judgment Under Emotional Certainty and Uncertainty: The Effects of Specific Emotions on Information Processing,” Journal of Personality and Social Psychology 81, no. 6 (December 2001): 973–88. 33 Bodenhausen, Sheppard, and Kramer, “Negative Affect and Social Judgment,” 45–62; Tiedens and Linton, “Judgment Under Emotional Certainty,” 973–88. 34 Goldberg, Lerner, and Tetlock, “Rage and Reason,” 782. 35 Steven Blader et al., “Fairness Lies in the Heart of the Beholder: How the Social Emotions of Third Parties Influence Reactions to Injustice,” Organizational Behavior and Human Decision Processes 121, no. 1 (February 2013): 62–80. 36 Blader et al., “Fairness,” 62–80; Mitchell Callan et al., “The Effects of Justice Motivation on Memory for Self-and Other-Relevant Events,” Journal of Experimental Social Psychology 45, no. 4 (July 2009): 614–23. 37 David DeSteno et al., “Discrete Emotions and Persuasion: The Role of Emotion-Induced Expectancies,” Journal of Personality and Social Psychology 86, no. 1 (January 2004): 43–56. 38 David DeSteno et al., “Beyond Valence in the Perception of Likelihood: The Role of Emotion Specificity,” Journal of Personality and Social Psychology 78, no. 3 (March 2000): 397–416. 32

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EMOTIONALLY EVOCATIVE EVIDENCE Many of the mock juror studies discussed so far are correlational: they measure (rather than experimentally manipulate) jurors’ self-reported emotion and measure subsequent legal judgments. As a result, we are unable to draw strong causal inferences from this evidence. Although these studies provide important information about the co-occurrence of emotions and legal judgments, this correlational approach is not able to rule out reverse directionality, such as the possibility that finding a defendant guilty might increase jurors’ anger. Further, there might be unmeasured variables causing increases in both emotion and guilt/punitiveness. For example, the testimony of a particularly credible witness or the introduction into evidence of a document that functions as a “smoking gun” might logically increase judgments of liability as well as increase juror anger. The advantage of experimental manipulations within mock jury studies is that by randomly assigning jurors to a group presented with more (versus less) emotionally evocative evidence while holding everything else constant, researchers can infer that exposure to more emotionally evocative evidence increased convictions and punishment. It is difficult to know whether the impact of jurors’ emotions on their ultimate judgments is a good or bad thing without knowing why and how their emotions are affecting their decision-making processes. Another strength of mock jury experimentation is that it enables researchers to use evidence to systematically vary jurors’ emotions and observe the impact of that evidence on specific aspects of the decision-making process (in addition to ultimate judgments) to determine the extent to which this impact is consistent with the broader goals of the legal system. For example, researchers have theorized that vivid evidence in court might be more persuasive than pallid evidence for reasons that are consistent with the ideals of the jury system, such as motivating closer attention, deeper information processing, and greater availability in memory.39 These information processing effects co-occur with an increase in emotional impact, which in itself is not necessarily undesirable. Although vivid evidence might improve memory, which is a positive thing, this improvement might also introduce bias. Many have theorized that evidence that elicits negative emotions in jurors could influence the processing of subsequent information, such as introducing a motivation to encode, retrieve and interpret evidence to render it consistent with blaming and punishing someone.40 Next, we will review mock jury studies that experimentally manipulate different types of potentially emotionally disturbing evidence and assess their impact on mock jurors’ decision-making processes and ultimate decisions.

Brad Bell and Elizabeth Loftus, “Vivid Persuasion in the Courtroom,”  Journal of Personality Assessment 49, no. 6 (1985): 659–64. 40 Susan Bandes and Jessica Salerno, “Emotion, Proof and Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact Statements,” Arizona State Law Journal 46, no. 4 (Winter 2014): 1003–56; Feigenson, Park, and Salovey, “Effect of Blameworthiness,” 597–617; Jessica Salerno and Bette Bottoms, “Emotional Evidence and Jurors' Judgments: The Promise of Neuroscience for Informing Psychology and Law,” Behavioral Sciences & the Law 27, no. 2 (March 2009): 273–96. 39

Emotional evidence in court  295

GRUESOME PHOTOGRAPHS In murder cases, juries are often presented with photographs depicting the murder victim’s body. These photographs can elicit strong specific emotions, especially anger, which is elicited by seeing an act of harm against another, and disgust, which is elicited by seeing a violation of the human body.41 Viewing gruesome photographs of injuries sometimes increases mock jurors’ willingness to impose a harsher sentence on criminal defendants42 and award higher damages to civil plaintiffs.43 The emotion-based need to punish also carries over into non-punishment judgments. Viewing gruesome photographs can increase the likelihood of guilty verdicts in criminal cases44 and liable verdicts in civil cases.45 A meta-analysis, which is a statistical technique that summarizes findings and leverages statistical power across a set of studies,46 detected a small, but significant, effect of gruesome photographs on both guilt and liability judgments.47 Experimental research has explored the influence of gruesome photographs on several aspects of the juror decision-making processes. Viewing gruesome photographs increases mock juror anger48 and disgust,49 which in turn predict a greater likelihood of finding the defendant guilty. Viewing gruesome photographs (compared to a control) also leads to lower sensitivity to strong (versus weak) defense evidence50 and leads mock jurors to perceive the strength of the prosecution’s case to be more sufficient.51 Further, exposure to a videotaped

41 Pascale Russell and Roger Giner-Sorolla, “Bodily Moral Disgust: What It Is, How It is Different From Anger, and Why It Is An Unreasoned Emotion,” Psychological Bulletin 139, no. 2 (March 2013): 328–51. 42 Rémi Finkelstein and Marina Bastounis, “The Effect of the Deliberation Process and Jurors’ Prior Legal Knowledge on the Sentence: The Role of Psychological Expertise and Crime Scene Photo,” Behavioral Sciences & the Law 28, no. 3 (December 2009): 426–41. 43 Edward Oliver and William Griffitt, “Emotional Arousal and ‘Objective’ Judgment,” Bulletin of the Psychonomic Society 8, no. 5 (November 1976): 399–400; Denise Whalen and Fletcher Blanchard, “Effects of Photographic Evidence on Mock Juror Judgement,” Journal of Applied Social Psychology 12, no. 1 (February 1982): 30–41. 44 Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion,”183–202; Kevin Douglas, David Lyon, and James 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 (October 1997): 485–50; Emily Edwards and Karen Mottarella, “Preserving the Right to a Fair Trial: An Examination of Prejudicial Value of Visual and Auditory Evidence,” North American Journal of Psychology 16, no. 2 (June 2014): 397–414; Kayo Matsuo and Yuji Itoh, “Effects of Emotional Testimony and Gruesome Photographs on Mock Jurors' Decisions and Negative Emotions,” Psychiatry, Psychology and Law 23, no. 1 (January 2016): 85–101; Salerno, “Seeing Red,” 336–50; and Rachel Cush and Jane Delahunty, “The Influence of Limiting Instructions on Processing and Judgments of Emotionally Evocative Evidence,” Psychiatry, Psychology and Law 13, no. 1 (2006): 110–23. 45 Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion,”183–202. 46 Jin Goh, Judith Hall, and Robert Rosenthal, “Mini Meta-Analysis of Your Own Studies: Some Arguments on Why and a Primer on How,” Social and Personality Psychology Compass 10, no. 10 (October 2016): 535–49. 47 Rebecca Grady et al.,“Impact of Gruesome Photographic Evidence on Legal Decisions: A Meta-Analysis,” Psychiatry, Psychology and Law 25, no. 4 (March 2018): 503–21. 48 Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion,”183–202. 49 Salerno, “Seeing Red,” 336–50. 50 Salerno, “Seeing Red,” 336–50. 51 Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion,”183–202.

296  Research handbook on law and emotion crime scene (relative to an irrelevant videotape or no videotape) roused mock jurors’ emotions, which led them to explicitly report lower standards of proof when asked directly.52 These findings suggest that the effect of gruesome photographs on verdicts might, in part, operate specifically through prejudicial channels. Identifying psychological explanations for how these gruesome photographs affect judgments has led to experiments designed to test potential interventions to reduce their emotional impact. Two experiments demonstrated that presenting the gruesome photographs in black-and-white rather than color decreases the jurors’ disgust response and eliminates their effect on verdicts, while maintaining their probative information.53 Another experiment aimed to test whether jury instructions can mitigate the conviction-increasing effect of gruesome photographs54—although, unfortunately, they were unable to test whether the instructions were effective because the presence of gruesome photographs produced no differences in conviction rates in this experiment. It is too early to say whether jury instructions hold promise for reducing bias produced by the gruesome nature of visual evidence like photographs. As a general matter, many aspects of jury instructions are too complex for most jurors to comprehend because judges are concerned about adhering closely to legal rules in their jury instructions to reduce the possibility that the appellate court reviewing the case will find the instructions to contain legal errors.55 It is, therefore, not surprising that empirical research examining how accurately jurors comprehend and apply jury instructions shows that comprehension is sometimes low56 and that decisions are often the same whether instructions are given or not.57 Curative instructions—telling the jury to disregard information that is not admitted into evidence—are notoriously ineffective.58 Despite the limited effectiveness of some jury instructions, we have found preliminary support for a carefully constructed curative instruction to target one mechanism by which emotional evidence can influence decision processes.59 The experimental jury instruction called mock jurors’ awareness to the potentially biasing effect of the gruesome photographs. As expected, viewing gruesome photographs increased the rate of guilty judgments from 44 percent (no photos) to 60 percent (gruesome photos) when jurors heard standard jury instructions. However, the instructions seemed to neutralize the influence of the gruesome photographs: Jurors viewing gruesome photographs who received the “curative” jury instruction convicted at the same rate as jurors who did not see gruesome photographs. Two experiments, thus far, suggest that jury instructions calling attention to the emotionally evocative nature of Saul Kassin and David Garfield, “Blood and Guts: General and Trial-specific Effects of Videotaped Crime Scenes on Mock Jurors,” Journal of Applied Social Psychology 21 no. 18 (September 1991): 1459–72. 53 Salerno, “Seeing Red,” 336–50. 54 Cush and Delahunty, “The Influence of Limiting Instructions,” 110–23. 55 Dan Simon, “More Problems With Criminal Trials: The Limited Effectiveness of Legal Mechanisms,” Law & Contemporary Problems 75, no. 2 (2012): 167–209. 56 Joel Lieberman and Bruce Sales, “What Social Science Teaches Us About the Jury Instruction Process,” Psychology, Public Policy, and Law 3, no. 4 (December 1997): 589–644. 57 Daniel M. Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases,” University of Pennsylvania Law Review 158 (2009): 729. 58 Simon, “More Problems With Criminal Trials,” 187. 59 Jessica M. Salerno, Janice Nadler, Hannah Phalen, Nicholas J. Schweitzer, and Susan A. Bandes, “The Role of Jury Instructions in Neutralizing the Influence of Emotional Evidence” (manuscript in preparation). 52

Emotional evidence in court  297 gruesome photographs can prevent jurors from engaging in biased information processing. Given the preliminary nature of these findings, we are conducting more testing before drawing firm conclusions.

VICTIM IMPACT STATEMENTS Victim impact statements are personal accounts of the impact of the crime by the victim or survivors. They are often given after the defendant is found guilty but before sentencing. The purpose is to permit victims (or family members or other representatives if the victim is incapacitated or no longer alive) to describe to the court the impact of the crime. Because of their nature, victim impact statements can elicit strong emotional responses. The role of victim impact statements in the penalty phase of death penalty trials has been particularly contentious. Over the years, the U.S. Supreme Court has taken contradictory positions on the question of whether highly emotional victim impact testimony is relevant to a capital jury’s decision about whether to impose death. At first, in Booth v. Maryland,60 the Court held that victim impact statements were impermissible in capital sentencing hearings. But four years later in Payne v. Tennessee (after a change in the composition of the Court), the Court starkly overruled itself, holding that the crime’s emotional impact on the survivors was relevant to the decision whether to impose the death penalty.61 However, the Court was bitterly divided over whether capital juries should hear these emotional statements when making sentencing decisions. In the death penalty context especially, victim impact statements remain controversial in part because of the nature and magnitude of emotions they can evoke. Victim impact statements are designed to evoke sympathy and compassion for the victim, but they can also sometimes evoke hatred, vindictiveness, and fear directed toward the defendant.62 The form and content of victim impact statements has received increased empirical attention, laying the groundwork for developing an understanding of the ways in which victim impact statements influence judges’ and juries’ decisions. Victim impact statements can be elicited through question and answer of a witness, or in free narrative spoken or read by the witness.63 Victim impact statements can also take the form of a video montage of the victim’s life from childhood to death, giving the jury the opportunity to view images of the victim,64 sometimes accompanied by music which potentially further provokes heightened emotion from an irrelevant source.65 This deployment of technology for delivering victim impact statements suggests that it will be increasingly important to understand the emotional impact of victim impact evidence on judges’ and jurors’ decision-making processes. This task has been complicated by the absence

Booth v. Maryland, 482 U.S. 496 (1987). Payne v. Tennessee, 501 U.S. 808 (1991). 62 Susan Bandes, “Simple Murder: A Comment on the Legality of Executing the Innocent,” Buffalo Law Review 44, no. 2 (1996): 501–25. 63 Bryan Myers et al., “The Heterogeneity of Victim Impact Statements: A Content Analysis of Capital Trial Sentencing Penalty Phase Transcripts,” Psychology, Public Policy, and Law 24, no. 4 (2018): 474–88. 64 Bandes and Salerno, “Emotion, Proof and Prejudice,” 1003–56. 65 Bennett Capers, “Crime Music,” Ohio State Journal of Criminal Law 7 (2009–2010): 749–69. 60 61

298  Research handbook on law and emotion of a coherent legal framework regarding the purpose of victim impact statements, especially in death penalty hearings.66 Empirical work investigating characteristics of victim impact statements has uncovered some patterns worth noting. One study of capital cases from a variety of locations across the United States showed that witnesses giving victim impact statements are about three times as likely to be female than male, and are most frequently a parent of the victim.67 Victim impact statements commonly focus on positive qualities of the victim as well as how the victim’s death has produced emotional suffering for the survivors.68 A content analysis of victim impact statements from this sample revealed that witnesses giving victim impact statements often conveyed the emotional impact of the crime through “trauma narratives” in which the witness described in detail the experience of having first learned of the victim’s death.69 It is possible that these trauma narratives encourage jurors to take the perspective of the victim’s survivors by imagining what it would be like to learn this news about their own loved one. Taking the perspective of the victim can lead to greater empathy for the victim and as a result, judgments of greater culpability on the part of the defendant.70 That victim impact statements might increase juror punitiveness through the mechanism of perspective taking is troubling in light of long-held concerns about the problem of “victim worth”. That is, one reason to worry about permitting victim impact statements is that it may encourage jurors to perceive more harm in cases where a “good victim” is killed. Jurors’ comparative valuation of victims in the process of assessing defendants’ culpability is troubling, and particularly so when pernicious factors such as race, ethnicity, and religion play a powerful role in jurors’ readiness to empathize with a given victim.71 These concerns are situated within the more general question regarding the relationship between victim impact statements and juror punitiveness. Empirical studies of the influence of victim impact statements suggest that, on the whole, they increase juror punitiveness.72 Experimental studies involving mock jurors show that in death penalty cases, victim impact statements increase the likelihood of a death sentence.73 Further, a variety of different emo Bandes and Salerno, “Emotion, Proof and Prejudice,” 1003–56. Myers et al., “The Heterogeneity of Victim Impact Statements.” 68 Myers et al., “The Heterogeneity of Victim Impact Statements.” 69 Myers et al., “The Heterogeneity of Victim Impact Statements.” 70 Jeanine Skorinko et al., “Effects of Perspective Taking on Courtroom Decisions.” Journal of Applied Social Psychology 44, no. 4 (2014): 303–18. 71 Mona Lynch and Craig Haney, “Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide,” Law & Society Review 45, no. 1 (March 2011): 69–102; William Bowers, Benjamin Steiner, and Maria Sandys, “Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors' Race and Jury Racial Composition,” University of Pennsylvania Journal of Constitutional Law 3, no. 1 (2001): 171–274). 72 Susan Bandes and Jeremy Blumenthal, “Emotion and the Law,” Annual Review of Law and Social Science 8 (December 2012): 161–81. 73 Jerome Deise and Raymond Paternoster, “More Than a Quick Glimpse of the Life: The Relationship Between Victim Impact Evidence and Death Sentencing,” Hastings Constitutional Law Quarterly 40, no. 3 (March 2013): 611–53; Lynne. ForsterLee et al., “The Effects of a Victim Impact Statement and Gender on Juror Information Processing in a Criminal Trial: Does the Punishment Fit the Crime?”  Australian Psychologist 39, no. 1 (March 2004): 57–67; Mila McGowan and Bryan Myers, “Who Is the Victim Anyway? The Effects of Bystander Victim Impact Statements on Mock Juror Sentencing Decisions,” Violence and Victims 19, no. 3 (June 2004): 357–74; Bryan Myers and Jack Arbuthnot, “The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock 66 67

Emotional evidence in court  299 tions might be expressed during victim impact testimony in capital trials, such as sadness and anger. An experimental study found that victim impact statements expressing anger produced a greater likelihood of mock jurors favoring a death sentence than victim impact statements expressing sadness.74 This is consistent with the notion that experiencing anger activates a motivation to blame and punish75 whereas sadness induces feelings of powerlessness.76 Although most empirical research on victim impact statements has focused on the controversial context of death sentences in capital trials, these trials are rare occurrences in the broader scheme of the criminal justice system. In non-homicide criminal cases, victims themselves are often permitted to give statements about how the crime impacted them physically, financially, socially and/or emotionally. Emotional harm expressed by victims produces more punitive judgments in mock jurors than other forms of harm that have been tested.77

VICTIMS AND DEFENDANTS EXPRESSING EMOTION Jurors might have an emotional reaction to seeing witnesses (both victims and defendants) expressing emotion during their testimony, which in turn might affect their judgments. To test this, mock jurors are presented with the same trial evidence and testimony, but are randomly assigned to view a version of testimony that differs in how much emotion the witness expresses while testifying (while holding the content of what they say constant) to see if the witness’s emotion level changes how often mock jurors vote guilty or choose harsher sentences. Generally, victims testifying have the strongest impact when they express some (versus no or mild) negative emotion78—but emotion can backfire if it is perceived to be inappropriate in intensity or valence. The expectations of mock jurors regarding victim emotion displays have been studied in child sexual assault cases,79 adult sexual assault cases,80 and robbery cases,81 and those expectations sometimes depend on the victim’s gender.82 As a general matter, jurors Jurors,” Journal of Offender Rehabilitation 29, no. 3–4 (October 2008): 95–112; Bryan Myers, Allison Room, Deborah Kalnen, and Andre Kehn, “Victim Impact Statements and Crime Heinousness: A Test of the Saturation Hypothesis,” Psychology, Crime & Law 19, no. 2 (2013): 129–43. 74 Narina Nuñez, et al., “The Impact of Angry Versus Sad Victim Impact Statements on Mock Jurors’ Sentencing Decisions in a Capital Trial,” Criminal Justice and Behavior 44, no. 6 (January 2017): 862–86. 75 Goldberg, Lerner, and Tetlock, “Rage and Reason,” 782. 76 Craig Smith et al., “In Search of the “Hot" Cognitions: Attributions, Appraisals, and Their Relation to Emotion.” Journal of Personality and Social Psychology 65, no. 5 (November 1993): 916–29. 77 Olga Tsoudis and Lynn Smith-Lovin, “How Bad Was It? The Effects of Victim and Perpetrator Emotion on Responses to Criminal Court Vignettes,” Social Forces 77, no. 2 (December 1998): 695–722; Janice Nadler and Mary Rose, “Victim Impact Testimony and the Psychology of Punishment,” Cornell Law Review 88, no. 2 (January 2003): 419–56. 78 Nadler and Rose, “Victim Impact Testimony,” 419–56. 79 Jonathan Golding et al., “Big Girls Don’t Cry: The Effect of Child Witness Demeanor on Juror Decisions in a Child Sexual Abuse Trial,” Child Abuse & Neglect 27, no. 11 (November 2003): 1311–21. 80 Geir Kaufmann et al., “The Importance of Being Earnest: Displayed Emotions and Witness Credibility,” Applied Cognitive Psychology: The Official Journal of the Society for Applied Research in Memory and Cognition 17, no. 1 (August 2002): 21–34. 81 Mary Rose, Janice Nadler, and Jim Clark, “Appropriately Upset? Emotion Norms and Perceptions of Crime Victims,” Law and Human Behavior 30, no. 2 (April 2006): 203–19. 82 Rose, Nadler, and Clark, “Appropriately Upset?” 203–19.

300  Research handbook on law and emotion expect victims to match the intensity of their emotional response to the seriousness of the criminal act.83 Future research is needed to better understand the effects of victim impact statements, especially in non-homicide cases where victims’ narratives are told in the first person. These narratives of emotional harm play out not only in criminal trials, but also in civil cases where plaintiffs are asking to be compensated for pain and suffering. In addition to examining emotional displays by victims, researchers have systematically manipulated whether defendants express remorse while testifying in mock jury experiments. These studies demonstrate that jurors think more positively about defendants who express remorse and recommend more lenient sentences compared to the same testimony without remorse84—particularly when the evidence against the defendant is weak, compared to when the evidence is strong.85 Research identifying why witness emotion expression affects verdicts is a fruitful area for future research.

EMOTIONALLY EVOCATIVE EXTRALEGAL FACTORS Extralegal factors can also influence juror decision-making through emotional channels. For example, when mock jurors heard a murder defendant labeled a “terrorist”, they were more angry and more likely to find him guilty relative to those who heard the same evidence but did not hear the defendant labeled a terrorist.86 In fact, jurors’ emotions can be roused by pre-trial publicity or pre-existing moral attitudes toward the behavior on trial before they even hear evidence, and this emotional arousal can affect their verdict decisions.

PRETRIAL PUBLICITY Pretrial publicity can influence jurors’ decisions by eliciting an emotional reaction to a case before they even enter the courtroom—regardless of whether the publicity is positive or negative. Seeing positive pro-defendant pretrial publicity (versus no pretrial publicity) increases mock jurors’ positive emotional responses, which in turn decreases guilt ratings; in contrast, seeing negative anti-defendant pretrial publicity (compared to no pretrial publicity) increases mock jurors’ anger, which in turn increases guilt ratings.87 Emotionally evocative pretrial publicity might be particularly potent; emotional pretrial publicity (compared to factual pretrial

Rose, Nadler, and Clark, “Appropriately Upset?” 203–19. Tsoudis and Lynn Smith-Lovin, “How Bad Was It?” 695–722. Susan A. Bandes, “Remorse and Criminal Justice,” Emotion Review 8, no. 1 (2016): 14–19. 85 Wendy Heath, Bruce Grannemann, and Michelle Peacock, “How the Defendant's Emotion Level Affects Mock Jurors' Decisions When Presentation Mode and Evidence Strength Are Varied,” Journal of Applied Social Psychology 34, no. 3 (2004): 624–64. 86 Jane Goodman-Delahunty, Natalie Martschuk, and Elizabeth Ockenden, “Effects of Terrorist Charges and Threatening Conduct on Mock Jurors’ Decisions,” Psychiatry, Psychology and Law 23, no. 5 (December 2015): 696–708. 87 Christine Ruva, Christina Guenther, and Angela Yarbrough, “Positive and Negative Pretrial Publicity: The Roles of Impression Formation, Emotion, and Predecisional Distortion,” Criminal Justice and Behavior 38, no. 5 (March 2011): 511–34. 83 84

Emotional evidence in court  301 publicity) had a significantly longer-lasting effect —further, the effect of emotional pretrial publicity was exacerbated when participants deliberated.88

JURORS’ EMOTIONS AND JURY NULLIFICATION Jurors are expected to follow the law—but are not necessarily forced to do so. When jurors disagree with the law they can “nullify the law” by delivering a verdict that is contrary to what the law requires in light of the weight of the evidence. If they acquit despite the evidence, there is no legal remedy. Research on jury nullification has demonstrated that jurors’ negative emotions might motivate them to rely more on extralegal factors and be more likely to nullify a law as a result.89 Mock jurors who had pre-existing attitudes supporting euthanasia were significantly more likely to nullify in a euthanasia case than those who were morally opposed to euthanasia. This effect was exacerbated among mock jurors who were experiencing experimentally induced anger; that is, these jurors relied more on their pre-existing moral intuitions when they were angry.90 Thus, anger might motivate jurors to rely more on extralegal factors and nullify the law relative to mock jurors who are not angry. These two very different lines of research converge on the possibility that inducing negative emotion in jurors might exacerbate the impact of extralegal factors, such as pre-trial publicity and pre-existing moral attitudes toward the crime, on verdict decisions. This is consistent with social psychological research demonstrating that, because anger and disgust are related to increased confidence in one’s opinion, they might lead to jurors processing the evidence less effortfully and, as a result, to greater reliance on their “gut intuitions”91 and heuristics.92

INDIVIDUAL DIFFERENCES Some jurors are more affected by emotionally evocative evidence than others. Identifying who is particularly sensitive is not only practically useful for attorneys, but can reveal psychological mechanisms underlying the impact of emotionally evocative evidence. Several relatively stable trait-like characteristics make people more sensitive to emotionally evocative evidence. For example, mock jurors who saw gruesome photographs (compared to no gruesome photographs) felt significantly more disgust, which in turn significantly increased convictions. However, this effect depended on bodily awareness, which is the degree to which people are chronically aware of the sensations in their body.93 More specifically, the increased disgust led to more convictions only among those who were at least moderately aware of their emotional 88 Geoffrey Kramer, Norbert Kerr, and John Carroll, “Pretrial Publicity, Judicial Remedies, and Jury Bias,” Law and Human Behavior 14, no. 5 (October 1990): 409–38. 89 Irwin Horowitz et al., “Chaos in the Courtroom Reconsidered: Emotional Bias and Juror Nullification,” Law and Human Behavior 30, no. 2 (May 2006): 163–81; Liana Peter-Hagene and Bette Bottoms, “Attitudes, Anger, and Nullification Instructions Influence Jurors’ Verdicts in Euthanasia Cases,” Psychology, Crime & Law 23, no. 10 (January 2017): 983–1009. 90 Horowitz et al., “Chaos in the Courtroom Reconsidered,” 163–81. 91 Salerno and Peter-Hagene, “The Interactive Effect of Anger and Disgust,” 2069–78. 92 Bodenhausen, Sheppard, and Kramer, “Negative Affect and Social Judgment,” 45–62. 93 Salerno, “Seeing Red,” 336–50.

302  Research handbook on law and emotion response—highlighting the affective channel through which the photographs were likely operating. This finding is consistent with moral psychology research demonstrating that when participants are experimentally induced to feel disgust (vs. no emotion or sadness), they judged moral transgressions more harshly—but only among participants who are relatively more sensitive to their own physical sensations.94 Similarly, people respond to legal cases differently depending on how chronically prone to disgust reactions they are95 and the degree to which they tend to seek out emotion-inducing situations.96 These individual differences illustrate the important role of jurors’ emotional reactions to evidence in their decision-making processes.

EMOTIONAL INFLUENCES ON OTHER LEGAL ACTORS In the broad scheme of the legal system, trials are rare events, and the decisions of juries determine the outcome of a small percentage of cases. Most research on the impact of emotion in the legal system investigates mock jurors’ reactions to emotional evidence, but research focusing on other actors in the legal system is critically important. Despite theorizing that legal professionals’ decision-making might be similarly affected by their emotional responses and therefore similarly in need of emotion regulation strategies,97 experimental evidence regarding this issue is scarce. The legal system often assumes that legal professionals’ expertise and training shields them from the biasing effect of emotion seen in jurors.98 Research is mixed, however, with some indicating that biases evident among lay people do not replicate in police,99 fingerprint examiners,100 and judges,101 while other research suggests that experts are susceptible to some of the same biases as lay people.102 Very few studies have addressed emotion-based biases in decision-making on legal experts, specifically. One such study found that judges might be buffered against the impact of victims expressing emotion.103 Lay people perceived rape victims who expressed negative emotion 94 Simone Schnall, et al., “Disgust as Embodied Moral Judgment,” Personality and Social Psychology Bulletin 34, no. 8 (August 2008): 1096–2009. 95 Margaret Stevenson et al., “Disgust Sensitivity Predicts Punitive Treatment of Juvenile Sex Offenders: The Role of Empathy, Dehumanization, and Fear,”  Analyses of Social Issues and Public Policy 15, no. 1 (December 2015): 177–97. 96 Emily Corwin et al., “Defendant Remorse, Need for Affect, and Juror Sentencing Decisions,” Journal of the American Academy of Psychiatry and the Law Online 40, no. 1 (January 2012): 41–9. 97 Terry Maroney and James Gross, “The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective,” Emotion Review 6, no. 2 (April 2014): 142–51. 98 Maroney and Gross, “The Ideal of the Dispassionate Judge,” 142–51. 99 Joshua Correll et al., “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” Journal of Personality and Social Psychology 92, no. 6 (2007): 1006–23. 100 Glen Langenburg, Christophe Champod, and Pat Wertheim, “Testing for Potential Contextual Bias Effects During the Verification Stage of the ACE-V Methodology When Conducting Fingerprint Comparisons,” Journal of Forensic Sciences 54, no. 3 (May 2009): 571–82. 101 Ellen Wessel et al., “Credibility of the Emotional Witness: A Study of Ratings by Court Judges,” Law and Human Behavior 30, no. 2 (April 2006): 221–30. 102 Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich, “Inside the Judicial Mind,” Cornell Law Review 86, no. 4 (May 2001): 777–830; Daniel Lassiter et al., “Evaluating Videotaped Confessions: Expertise Provides No Defense Against the Camera-perspective Effect,” Psychological Science 18, no. 3 (March 2007): 224–26. 103 Wessel, et al., “Credibility of the Emotional Witness,” 221–30.

Emotional evidence in court  303 (compared to no emotion, or incongruent positive emotion) to be more credible, and in turn, they were more likely to find the defendant guilty. However, in a sample of judges, rape victim emotion did not influence credibility perceptions or guilt judgments. Although this study did not test whether the lay sample and the judicial sample differed from each other directly, it provides indirect support for the idea that judicial expertise might shield judges from the biasing effects of victim emotion.

FUTURE DIRECTIONS One fruitful avenue for future research in emotional evidence research is methodological. Correlations among different types of emotion measures (i.e., subjective self-report, psychophysiological, behavioral) are typically small and inconsistent across studies, which suggests that no single type of measure is sufficient; more measures increase reliability.104 Given that emotional evidence research generally has relied only on self-report, developing new and improved measurements of emotion is important—as is testing the impact of when and how emotion is measured. Very few experiments, to our knowledge, test the impact of emotional evidence on jurors’ judgments after deliberating as a group or on deliberation behavior itself. There are theoretical reasons to predict that deliberation might minimize or maximize the impact of biasing factors on verdicts.105 Given that most previous experiments testing the impact of emotional evidence rely on undergraduate samples,106 it is important to extend this literature into samples that are more representative of juries than are undergraduates. Relatedly, future research should extend the investigation of emotional evidence beyond jurors to other legal actors. Trials are relatively rare. Further, even in cases that go to trial, non-jurors (e.g., prosecutors, forensic examiners, laboratory technicians, and police) make decisions that influence the course and direction of the case before the case ever reaches a jury. These decisions could create “snowball” or “cascading bias” effects.107 There are theoretical reasons to predict that these expert populations may be affected by the same emotional biases as jurors and might make decisions about cases based on their emotions, but there are also reasons to predict that their expertise and training might buffer them against these biases. Testing these predictions is important, as well as testing research interventions to help legal actors (including jurors) regulate their emotions. Another future direction for emotional evidence is both methodological and theoretical. Thus far, the bulk of the experimental evidence has taken the important first step: demonstrat-

104 Iris Mauss and Michael Robinson, “Measures of Emotion: A Review,” Cognition and Emotion 23, no. 2 (October 2009): 209–37. 105 Tamara Haegerich, Jessica Salerno, and Bette Bottoms, “Are the Effects of Juvenile Offender Stereotypes Maximized or Minimized by Jury Deliberation?” Psychology, Public Policy, and Law 19, no. 1 (February 2013): 81–97; Jessica Salerno and Shari Diamond, “The Promise of a Cognitive Perspective on Jury Deliberation,” Psychonomic Bulletin & Review 17, no. 2 (April 2010): 174–79. 106 For rare exceptions, see Ray Paternoster and Jerome Deise, “A Heavy Thumb on the Scale: The Effect of Victim Impact Evidence on Capital Decision Making,” Criminology 49, no. 1 (February 2011): 129–61; Salerno, “Seeing Red,” 336–50. 107 Saul Kassin, Itiel Dror, and Jeff Kukucka, “The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions,” Journal of Applied Research in Memory and Cognition 2, no. 1 (March 2013): 42–52.

304  Research handbook on law and emotion ing that emotional evidence has an effect on legal judgments and decision making. Yet, only a small part of this literature attempts to investigate the psychological mechanisms underlying these effects to address the extent to which the emotional evidence is affecting jurors through probative and/or prejudicial channels. Designing experiments that try to identify legally prejudicial pathways through which emotional evidence affects jurors would help judges apply the research to their admissibility decisions and would help guide future law reform, for example reform of jury instructions. At the same time, emotional evidence might actually have normatively desirable effects on jurors by improving jurors’ attention to and memory for legally relevant evidence. Providing knowledge about the two possibilities to help judges balance the probative and prejudicial effect of evidence is vital. Research on emotional evidence consistently indicates that jurors’ emotional experiences at trial will impact their decision-making processes and judgments and has combatted the traditional narrative that the legal system operates devoid of emotion—but it has barely scratched the surface. Now that the role of emotion is beginning to be acknowledged, this opens the door to countless research questions of both theoretical and practical importance. Researchers could focus on additional types of trial evidence that might elicit emotion in jurors, such as photographs of a murder victim when alive108 or more advanced visual aids that are particularly vivid and might elicit more empathetic responses from jurors such as animated or virtual reality re-enactments. Researchers could also focus on additional extralegal factors that might elicit emotions in jurors, such as the impact of trial spectators in the courtroom wearing buttons and T-shirts that feature the victim’s face109 or engaging in emotional outbursts—which some have argued warrant a mistrial.110 Researchers could focus on the jury selection process and apply what psychologists have learned about emotion perception and micro-expressions to investigate whether attorneys can rely on potential jurors’ emotional cues during jury selection to determine which jurors have a propensity to respond negatively to the evidence or the attorney. Researchers could investigate the effectiveness of including trait-like measures (e.g., bodily awareness, disgust-sensitivity, need-for-affect scales) during jury selection to choose jurors who either will or will not be highly sensitive to emotional evidence. Further, research can investigate whether judicial instructions, expert testimony, or attorneys’ closing statements can help instruct jurors on how to regulate or deal with the inevitable emotions that will arise during trial. This would be important not only to try to reduce juror stress and the impact of jurors’ experienced emotion on their pre-deliberation measures, but also for jurors’ ability to exert influence over the jury’s decision by expressing emotions during deliberation. When jurors express emotion during deliberation, this can create gender and racial gaps in who has influence over others—making White men more influential but detracting from women and racial minorities’ ability to influence others.111 Given these findings, future explorations of 108 Susanna Rychlak, “I See Dead People: Examining the Admissibility of Living-victim Photographs in Murder Trials,” Vanderbilt Law Review 69, no. 5 (2016): 1423–53. 109 Scott Kitner, “The Need and Means to Restrict Spectators from Wearing Buttons at Criminal Trials,”  The Review of Litigation 27, no. 4 (Summer 2008): 733–68; Elizabeth Sierra, “The Newest Spectator Sport: Why Extending Victims' Rights to the Spectators' Gallery Erodes the Presumption of Innocence,” Duke Law Journal 58, no. 2 (November 2008): 275–309. 110 Bible v. Schriro, 497 F.Supp.2d 991, 1012 (D. Ariz. 2007); Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001). 111 Jessica Salerno and Liana Peter-Hagene, “One Angry Woman: Anger Expression Increases Influence for Men, But Decreases Influence for Women, During Group Deliberation.” Law and Human

Emotional evidence in court  305 juror emotion that might assist jurors in regulating and navigating their inevitable emotional responses is a fruitful area for future research.

CONCLUSION Juxtaposing emotion and reason is commonplace in law, and the contrast is nearly always in the service of declaring that in legal decision-making emotion should be banished, or at least marginalized. Thus in capital sentencing, the U.S. Supreme Court has declared that “any decision to impose the death sentence” must “be, and appear to be, based on reason rather than caprice or emotion.”112 To guide jurors through the rocky shoals of “emotion” in trials of all kinds, judges are counseled to shield jurors from emotional information because it “commonly” has “an undue tendency to suggest decision on an improper basis.”113 And like good judges—according to this view—good lawyers also carefully cabin their emotions. Good lawyering, according to the U.S. Supreme Court, entails “making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom.”114 To be fair, the law’s concern about the power of emotional evidence in the courtroom is not unfounded. As discussed throughout this chapter, emotion-evoking evidence can trigger impulses to blame and punish in ways that are inconsistent with the goals of the trial. But at the same time there are many instances where courts too reflexively eschew emotional evidence, assuming undue prejudice without analysis. This is problematic in the obvious sense that not all emotion results in decisions that are biased or prejudiced, and in the less obvious sense that certain emotions can motivate more careful and deeper information processing. Given that psychological scientists long ago abandoned the false dichotomy between reason and emotion, the time is ripe for social scientists to provide the legal system with a fuller picture, focusing on specific influences (not just verdict preferences) of specific emotions, within specific contexts. Within the framework of the trial, a more detailed mapping of discrete emotions and their influences can facilitate the promotion of all the various aims of the trial.

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Emotional evidence in court  311 Veltman, J., and A. Gaillard. “Indices of Mental Workload in a Complex Task Environment.” Neuropsy chobiology 28, no. 1–2 (1993): 72–75. https://​doi​.org/​10​.1159/​000119003. Wessel, Ellen, Guri Drevland, Dag Eilertsen, and Svein Magnussen. “Credibility of the Emotional Witness: A Study of Ratings by Court Judges.” Law and Human Behavior 30, no. 2 (April 2006): 221–30. https://​doi​.org/​10​.1007/​s10979​-006​-9024​-1. Whalen, Denise, and Fletcher Blanchard. “Effects of Photographic Evidence on Mock Juror Judgement.” Journal of Applied Social Psychology 12, no. 1 (February 1982): 30–41. https://​doi​.org/​10​.1111/​j​ .1559​-1816​.1982​.tb00846​.x. Whitehead v. Cowan, 263 F.3d 708 (7th Cir. 2001). Wiener, Richard, Leah Georges, and Juan Cangas. “Anticipated Affect and Sentencing Decisions in Capital Murder.” Psychology, Public Policy, and Law 20, no. 3 (August 2014): 263–80. https://​doi​ .org/​10​.1037/​law0000014.

19. Emotional dimensions of visual evidence Neal Feigenson

Visual evidence – from surveillance videos and crime scene photographs to computer-animated reconstructions of crimes or accidents, brain scan images, and much more – plays a critical role in many criminal and civil cases. These sorts of pictures can offer highly persuasive proof of contested events. Visual evidence can also be emotionally arousing: Imagine how a gruesome crime scene photo can shock viewers, or how a victim impact video, shown to jurors during sentencing proceedings after the defendant has been convicted of a capital crime, may sadden them. This chapter reviews the psychological research on the emotional dimensions of visual evidence and, in particular, the effects of viewers’ emotional responses to that evidence on their legal judgments. I begin by discussing briefly some of the possible effects of decision makers’ emotions on their perceptions and initial construals of visual evidence. I then outline a general model of how emotions such as anger, disgust, and sympathy can affect legal judgments and use relevant portions of the model to structure a survey of the effects of visual evidence on those emotions and judgments. I explain why visual evidence might be expected to produce stronger emotional influences on legal judgment than most nonvisual evidence does and why specific features of visual evidence would be expected to intensify emotional responses. I conclude with some methodological observations and suggestions for further research. The experimental research to date is suggestive but modest. Roughly a dozen studies have sought to measure both participants’ emotional responses to visual evidence and their effects on legal judgments, and almost all of these have focused on the effects of gruesome crime scene or autopsy photos.1 In addition to its scarcity and restricted scope, this research is subject

David A. Bright and Jane Goodman-Delahunty, “Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making,” Law and Human Behavior 30, no. 2 (2006): 183–202; David A. Bright and Jane Goodman-Delahunty, “Mock Juror Decision Making in a Civil Negligence Trial: The Impact of Gruesome Evidence, Injury Severity, and Information Processing Route,” Psychiatry, Psychology and Law 18, no. 3 (2011): 439–59; Rachel Cush and Jane Goodman Delahunty, “The Influence of Limiting Instructions on Processing and Judgments of Emotionally Evocative Evidence,” Psychiatry, Psychology and Law 13, no. 1 (2006): 110–23; 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): 485–501; Emily R. Edwards and Karen E. Mottarella, “Preserving the Right to a Fair Trial: An Examination of Prejudicial Value of Visual and Auditory Evidence,” North American Journal of Psychology 16, no. 2 (2014): 397–414; Kayo Matsuo and Yuji Itoh, “Effects of Emotional Testimony and Gruesome Photographs on Mock Jurors’ Decisions and Negative Emotions,” Psychiatry, Psychology and Law 23, no. 1 (2016): 85–101; Robert J. Nemeth, “The Impact of Gruesome Evidence on Mock Juror Decision Making: The Role of Evidence Characteristics and Emotional Response” (PhD diss., Louisiana State University, 2002); Jessica M. Salerno, “Seeing Red: Disgust Reactions to Gruesome Photographs in Color (but not in Black and White) Increase Convictions,” Psychology, Public Policy, and Law 23, no. 3 (2017): 336–50; 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): 2069–78. The only studies not of gruesome 1

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Emotional dimensions of visual evidence  313 to a number of other limitations that are likely shared by at least some other experimental research on emotions in law. We can, nevertheless, glean from the research some sense of how decision makers’ emotions may influence and be influenced by their exposure to visual evidence and with what consequences for their judgments.

EMOTIONAL INFLUENCES ON PERCEPTIONS OF VISUAL EVIDENCE Before we reach the question of how the evidence that legal decision makers see can influence their decisions by changing their emotional states, we should consider that their emotions may change what they see in the first place. For instance, fear widens the eyes, enhancing stimulus detection, whereas disgust narrows the eyes, enhancing stimulus discrimination, each at the expense of the other.2 Thus, the emotions jurors experience, say, in response to earlier portions of an evidentiary video may change what they see later in the video and how they process that information. Indeed, if viewers’ disgust is strong enough, it may alter optical input by causing them to avert (or cover) their eyes, so that they simply do not see everything they otherwise might – although visual evidence that elicits disgust may also spark and sustain viewers’ fascination, so that they find themselves unable not to look.3 Viewers’ affective states can also influence how they construe what they see. Many studies have found that people’s physical and mental states can change how they interpret their visual environments; for instance, thirsty people perceive a water bottle to be closer than non-thirsty people do.4 We might therefore expect that people’s affective states, which at the most basic level consist of their moment-to-moment assessments of their internal bodily states, that is, their sense of “how they are feeling” in general (known as interoception5), would influence their interpretations of what they see. Affective realism refers to the human tendency for our background visceral and somatic sensations to color our experiences of perceptual targets

crime scene or autopsy photos are Vicki L. Fishfader et al., “Evidential and Extralegal Factors in Juror Decisions: Presentation Mode, Retention, and Level of Emotionality,” Law and Human Behavior 20, no. 5 (1996): 565–72 (video re-creation of drowning accident); Edith Greene and Brian S. Cahill, “Effects of Neuroimaging Evidence on Mock Juror Decision Making,” Behavioral Sciences and the Law 30, no. 3 (2012): 280–96 (neuroimages in capital sentencing); Jaihyun Park and Neal R. Feigenson, “Picturing Pain and Suffering: Effects of Demonstrative Evidence, Instructions, and Plaintiff Credibility on Mock Jurors’ Damage Awards,” Applied Cognitive Psychology (2021), https:/​doi​.org/​10​.1002/​acp​.3799. A number of other studies have tested for the effects of visual evidence on legal judgments and yielded results consistent with the operation of emotional effects but did not explicitly measure participants’ emotional responses. 2 Daniel H. Lee et al., “Optical Origins of Opposing Facial Expression Actions,” Psychological Science 25, no. 3 (2014): 745–52. 3 Christina Spiesel, “Gruesome Evidence: The Use of Beheading Videos and Other Disturbing Pictures in Terrorism Trials,” in Juries, Science, and Popular Culture in the Age of Terror, eds. David Tait and Jane Goodman-Delahunty (London: Palgrave Macmillan, 2017), 67–85. 4 Emily Balcetis and David Dunning, “Wishful Seeing: More Desired Objects are Seen as Closer,” Psychological Science 21, no. 1 (2010): 147–52. But see Chaz Firestone and Brian J. Scholl, “Cognition Does Not Affect Perception: Evaluating the Evidence for ‘Top-Down’ Effects,” Behavioral and Brain Sciences 39 (2016), e229. 5 Lisa Feldman Barrett, How Emotions Are Made (Boston: Houghton Mifflin, 2017).

314  Research handbook on law and emotion as positive or negative.6 Thus, a viewer with negative affect from some source unrelated to the judgment task may be more inclined to interpret an ambiguous cluster of pixels in an evidentiary video as a weapon rather than as a neutral object, unconsciously imbuing his or her percepts with negative valence.7 The effect extends to specific emotions: People perceive a threatening person to be physically closer to them than a repulsive or affectively neutral person.8 As yet, however, there have been no studies of whether legal decision makers’ affective states or more specific emotions influence their initial perceptions or construals of the visual data that courtroom evidence provides.

A FRAMEWORK FOR UNDERSTANDING EMOTION EFFECTS IN LEGAL JUDGMENT Decision makers’ affect and emotions can influence their judgments in multiple, interrelated ways. Emotions can affect the depth of information processing. They can also affect the direction of the processing, inclining decision makers toward a particular result or judgment. Emotions influence the direction of processing both indirectly, by inclining decision makers to interpret trial information consistently with the cognitive structure of their predominant emotion (appraisal tendency theory9), and directly, by providing informational cues to the ultimate judgment (affect-as-information theory10). These and other paths of affective influence, moreover, can be recursive: Decision makers’ emotional responses to one item of evidence can alter their interpretation of other items or their subsequent reconsideration of previously encountered items.11

EMOTIONAL EFFECTS OF VISUAL EVIDENCE ON JUDGMENT Depth of processing. Emotional responses prompted by visual evidence can influence decision makers’ judgments by altering how carefully they process trial information. One explanation for this is that effects on depth of processing are due to the appraisal tendencies

Eric Anderson et al., “Out of Sight But Not Out of Mind: Unseen Affective Faces Influence Evaluations and Social Impressions,” Emotion 12, no. 6 (2012): 1210–21. See also Gerald L. Clore and Jeffrey R. Huntsinger, “How the Object of Affect Guides its Impact,” Emotion Review 1, no. 1 (2009): 39–54. 7 Barrett, How Emotions Are Made. 8 Shana Cole, Emily Balcetis, and David Dunning, “Affective Signals of Threat Increase Perceived Proximity,” Psychological Science 24, no. 1 (2013): 34–40 (Study 2). 9 See, e.g., 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): 115–37. 10 Gerald L. Clore, Norbert Schwarz, and Michael Conway, “Affective Causes and Consequences of Social Information Processing,” in Handbook of Social Cognition (2nd ed.), eds. Robert Wyer and Thomas Srull (Hillsdale, NJ: Erlbaum, 1994), 1:323–417. 11 Neal Feigenson, “Jurors’ Emotions and Judgments of Legal Responsibility and Blame: What Does the Experimental Research Tell Us?,” Emotion Review 8, no. 1 (2015): 26–31. For an extensive discussion, see Neal Feigenson and Jaihyun Park, “Emotions and Attributions of Legal Responsibility: A Research Review,” Law and Human Behavior 30, no. 2 (2006): 143–61. 6

Emotional dimensions of visual evidence  315 of the respective emotions (see above). Specifically, some emotions (e.g., anger) are typically associated with a greater sense of certainty; others (e.g., anxiety) are typically associated with uncertainty.12 The more certain people feel, the less inclined they are to process information systematically because they are more confident that they already know what they need to know to address the task at hand. Thus, for instance, jurors who are angered at what they see in an evidentiary video would be likely to engage in more mental shortcuts or heuristic thinking (e.g., reliance on stereotypes),13 whereas those who are saddened might be inclined to process trial information more carefully.14 One pair of studies suggests that decision makers’ emotional responses to visual evidence can affect how carefully they think about other evidence.15 In both studies, participants judging a criminal case who saw color (but not black and white) gruesome autopsy photos experienced more disgust than those who saw no photos (which, in turn, made them more likely to vote to convict; discussed further below), and this effect was stronger for participants higher in bodily awareness. In Study 2, participants in the strong defense evidence condition were less likely to convict than those in the weak defense evidence condition, as one would expect, but those who saw gruesome photos and were higher in bodily awareness were less sensitive to the difference in evidence strength than were those who saw no photos – indicative of less systematic processing. “This suggests that the desensitization [to the difference in evidence strength] among jurors with relatively higher bodily awareness was instigated by their affective response to the color gruesome photographs.”16 Direction of processing. The emotions that visual evidence provokes may also bias judgments in a direction that favors one party or the other.17 The emotions studied to date include anger, disgust, anxiety/fear, and sympathy, as well as less specific clusters of emotions or negative affect more broadly. Most of the research, as noted above, has examined the impact of gruesome autopsy or crime scene photographs; consequently, the most robust effects have been on participants’ anger and disgust. Where studies have failed to find these effects or that they significantly influenced participants’ decisions, the null effects may be at least partly explained by the content of the photos or the wording of the emotion measures. Anger. One often-cited study found that mock jurors in a criminal case who saw gruesome autopsy or crime scene photographs became angrier than those who saw no photographs or neutral photographs and that their anger made them more likely to convict the defendant.18 This result is consistent with other research showing that angry mock jurors are more likely

Andrew Ortony, Gerald L. Clore, and Allan Collins, The Cognitive Structure of Emotions (Cambridge: Cambridge University Press, 1988). 13 Larissa Z. Tiedens and Susan Linton, “Judgment Under Emotional Certainty and Uncertainty: The Effects of Specific Emotions on Information Processing,” Journal of Personality and Social Psychology 81, no. 6 (2001): 973–88 (Study 2). 14 Carolyn Semmler and Neil Brewer, “Effects of Mood and Emotion on Juror Processing and Judgments,” Behavioral Sciences and the Law 20, no. 4 (2002): 423–36. 15 Salerno, “Seeing Red.” 16 Salerno, “Seeing Red,” 345. 17 See, e.g., Jessica M. Salerno and Bette L. Bottoms, “Emotional Evidence and Jurors’ Judgments: The Promise of Neuroscience for Informing Psychology and Law,” Behavioral Sciences and the Law 27, no. 2 (2009): 273–96. 18 Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion.” 12

316  Research handbook on law and emotion to find that a criminal defendant acted intentionally19 and to punish him more severely.20 Mediational analyses21 showed that participants’ anger affected their verdicts both indirectly, through its effect on their perceptions of the strength of the prosecution’s evidence (consistent with appraisal tendency theory), and directly – that is, that their anger itself mediated the effect of seeing gruesome pictures on their verdicts (consistent with affect-as-information theory).22 Another study based on the same criminal case and using the same gruesome photos, however, found that exposing participants to gruesome photos did not make them significantly angrier.23 Disgust. Gruesome photographs may prompt viewers to experience disgust as well as anger. While Bright and Goodman-Delahunty found that mock jurors’ disgust in response to such photographs did not mediate the effect of the photos on their verdicts,24 more recent research indicates that disgust may influence legal judgments even more strongly than anger does. Salerno found that mock jurors’ disgust in response to gruesome color (but not black and white) autopsy photographs mediated the effect of those photos on their inclination to find the defendant guilty.25 This direct effect of emotion on judgment is consistent with affect-as-information theory, an interpretation bolstered by the additional finding, noted above, that mock jurors’ level of bodily awareness moderated the mediating effect of disgust on gruesome color photos’ effect on verdicts: Participants who were more aware of their own affective states were more likely to use their disgust as an informational cue to the correct verdict. Salerno indicates that emotional responses to gruesome photos may also affect judgments indirectly: Mock jurors generally perceived strong (vs. weak) defense evidence as stronger and were less likely to

Karl Ask and Afroditi Pina, “On Being Angry and Punitive: How Anger Alters Perception of Criminal Intent,” Social Psychological and Personality Science 2, no. 5 (2011): 494–9. 20 See, e.g., Leah C. Georges, Richard L. Wiener, and Stacie R. Keller, “The Angry Juror: Sentencing Decisions in First-Degree Murder,” Applied Cognitive Psychology 27, no. 2 (2013): 156–66. 21 A mediator is a variable that helps to explain how or why one variable affects another variable. Reuben M. Baron and David A. Kenny, “The Moderator-Mediator Variable Distinction in Social Psychological Research: Conceptual, Strategic, and Statistical Considerations,” Journal of Personality and Social Psychology 51, no. 6 (1986): 1173–82. Mediational analysis refers to various tests used to determine whether a potential mediator plays a statistically significant role in bringing about changes in the dependent variable of interest. Thus, in many visual evidence studies, the presence or absence of photographic evidence, e.g., is the independent variable, which may influence both participants’ emotional responses and their verdicts. The emotional responses may mediate the effect of the photos on verdicts – that is, they may help to explain why seeing the photos affects verdicts – if seeing the photos significantly affects participants’ emotions and those emotions in turn significantly affect their verdicts. And the effect of those emotions on verdicts may itself be mediated by yet another variable, such as perceptions of the strength of the evidence. The effect of participants’ emotions on their judgments is said to be indirect when it is thus mediated by another variable; it is direct when it is unmediated. 22 Seeing neutral photographs, however, also increased guilty verdicts, even though this did not prompt emotional responses different from those of participants who saw no photos at all. 23 Salerno, “Seeing Red.” A difference in the phrasing of the respective emotion measures may help to explain the difference in these findings: Bright and Goodman-Delahunty asked participants to rate how angry they felt toward the defendant (Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion”) whereas Salerno asked them to rate their anger (and disgust) about the victim’s injuries (Salerno, “Seeing Red”). Assuming that the cognitive structure of anger is “disapproving of someone else’s blameworthy action and being displeased about the related event” (Ortony et al., Cognitive Structure of Emotions, 148), Bright and Goodman-Delahunty’s measure may have directed participants’ attention toward, and Salerno’s partly away from, the prototypical target of that emotion. 24 Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion.” 25 Salerno, “Seeing Red.” 19

Emotional dimensions of visual evidence  317 convict the defendant, but seeing gruesome photos, as noted above, significantly reduced this effect for those with moderate to high bodily awareness.26 Another study found that while seeing gruesome autopsy photos prompted both anger and disgust, mock jurors’ disgust was a more consistent predictor of their level of moral outrage and their verdict preferences than their anger was.27 Gruesome pictures may prompt reactions in addition to anger and disgust, such as anxiety, anguish, disturbance, and shock. One study found that all of these responses to gruesome pictures significantly predicted mock jurors’ inclination to convict the defendant.28 Other research has produced more equivocal results. Cush and Goodman-Delahunty found that gruesome photographic evidence produced stronger negative emotions (“event negativity,” consisting of anger, horror, disgust, and sadness in relation to the crime) than neutral photographs did, but that this cluster of emotions did not affect participants’ verdict preferences.29 Edwards and Mottarella found that participants who saw gruesome photos of a drowning victim experienced a greater increase in sadness (compared to pre-test measures) than did those who saw no photos, but did not experience greater change with regard to any other emotions (e.g., hostility or fear). Their increased sadness, moreover, did not affect their verdicts.30 Matsuo and Itoh found that exposure to gruesome (vs. non-gruesome) photos of a murder victim, in conjunction with emotional or non-emotional testimony about the victim, did not significantly increase participants’ anger, disgust, or fear/anxiety; it significantly increased only their sadness, and then only in the absence of emotional testimony.31 It is possible, however, that the lack of stronger emotional responses to the “gruesome” photos in the latter two studies was due to the relatively unevocative content of the photos themselves, as the researchers themselves suggested.32 Finally, one published study to date has tested the effects of gruesome photographs using a civil case scenario. Bright and Goodman-Delahunty found that although participants who saw gruesome photographs of the accident victim, compared to those who saw neutral photographs, reported that the evidence had had a stronger overall emotional impact on them, they Salerno, “Seeing Red” (Study 2). Salerno and Peter-Hagene, “Interactive Effect of Anger and Disgust” (Study 2). 28 Douglas et al., “Graphic Photographic Evidence.” The findings of Douglas and his colleagues also support the direct rather than indirect path of affective or emotional influence on judgments, although the researchers did not measure variables (e.g., perceived evidence strength) that may have indicated indirect influence. 29 Cush and Goodman Delahunty, “Influence of Limiting Instructions.” 30 Edwards and Mottarella, “Preserving the Right to a Fair Trial.” 31 Matsuo and Itoh, “Effects of Emotional Testimony and Gruesome Photographs.” 32 Specifically, Edwards and Mottarella observed that “images included in the ‘Graphic Images’ condition were not graphic by real world standards,” having been rated only 3.0 to 3.9 on a 1-to-5 scale by pilot study participants. Edwards and Mottarella, “Preserving the Right to a Fair Trial,” 409. While the pictures are not described, the case involved a drowning victim, so it seems likely that the body shown in these photos did not bear the same sorts of graphic wounds to be found in the gruesome photos in most other studies. Matsuo and Itoh observed that their “gruesome” photographs: might not have been gruesome enough, since the wounds on the model were created by a professional makeup artist and were therefore artificial. Because the gruesome photographs in the present study might seem less realistic compared to the photographs of real victims that were utilized in past studies . . ., they might not have been effective enough to influence participants’ decisions and emotions. Matsuo and Itoh, “Effects of Emotional Testimony and Gruesome Photographs,” 96. 26 27

318  Research handbook on law and emotion did not actually indicate significantly higher levels of specific negative emotions, nor did their higher reported overall emotional arousal mediate the effect of the gruesome photographs on their judgments of either the defendant’s negligence or his liability.33 Fear. Although some of the studies described above did not find that seeing gruesome photos increased participants’ fear, certain other sorts of visual evidence – specifically, images of a person being killed – might be expected to produce fear, and in particular, fear of death, which would be predicted to influence their judgments. People whose mortality is made salient to them, if they cannot consciously defend against thoughts of their own death, tend to respond by defending their cultural worldview – for instance, by more strongly supporting symbols of that worldview (e.g., the national flag) and more severely punishing those who threaten that worldview (terror management theory34). At least some viewers who see an evidentiary video vividly depicting a police killing of a citizen, for instance, may be prompted to think of their own mortality. Imagine the trial of a police officer for killing the citizen in which jurors see dashcam or bodycam video of the killing. Terror management theory might predict that jurors who perceive the defendant police officer as the threat to their worldview would tend to react more punitively by being more likely to find the defendant guilty where the video and other evidence are ambiguous.35 Other jurors, who identify with the police and perceive the victim of the shooting to be the threat to their worldview (e.g., a threat to law and order), would tend toward a more positive and therefore more lenient response to the defendant.36 These hypotheses have yet to be tested. Sympathy. Visual evidence may also prompt viewers’ sympathy, which in turn may influence their decisions. To feel sympathetic toward another person is to perceive that the other is suffering significantly and undeservedly, and to want to do something to alleviate that suffering.37 In an accident or malpractice case, this would incline them to hold the defendant liable and award damages to the victim.38 In addition, jurors who feel sympathy for the plaintiff in a civil case may become angrier and hence more punitive toward the defendant.39 Pictures of injured accident or malpractice victims – for instance, the images that day-in-the-life movies include – could well have these effects, although this has not yet been researched.40 One study has found that mock jurors who saw photographic images representing the plaintiff’s impaired

Bright and Goodman-Delahunty, “Mock Juror Decision Making in a Civil Negligence Trial.” Jamie Arndt et al., “Terror Management in the Courtroom: Exploring the Effects of Mortality Salience on Legal Decision Making,” Psychology, Public Policy, and Law 11, no. 3 (2005): 407–38. But see Jane Goodman-Delahunty, Natalie Martschuk, and Elizabeth Ockenden, “Effects of Terrorist Charges and Threatening Conduct on Mock Jurors’ Decisions,” Psychiatry, Psychology and Law 23, no. 5 (2016): 696–708. 35 Kerri L. Pickel and Justin R. Brown, “The Effects of Morality Salience on Jurors’ Judgments in a Robbery/Attempted Murder Case” (paper presented at the meeting of the Midwestern Psychological Association, May, 2003). 36 Joel D. Lieberman et al., “Vicarious Annihilation: The Effect of Mortality Salience on Perceptions of Hate Crimes,” Law and Human Behavior 25, no. 6 (2001): 547–66. 37 Ortony et al., Cognitive Structure of Emotions. 38 Brian Bornstein, “From Compassion to Compensation: The Effect of Injury Severity on Mock Jurors’ Liability Judgments,” Journal of Applied Social Psychology 28, no. 16 (1998): 1477–502. 39 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. 40 The stimulus materials in Feigenson et al., “The Role of Emotions,” included photographic evidence, but this was not manipulated as an independent variable. 33 34

Emotional dimensions of visual evidence  319 vision as a result of LASIK malpractice were more sympathetic toward and/or sadder for the plaintiff than were mock jurors who did not see any images and awarded the plaintiff more pain and suffering damages; those emotional responses, however, did not significantly affect the damage awards.41 In capital sentencing, sympathy for the homicide victim, which victim impact videos seem designed to elicit,42 could exacerbate the same punitiveness toward guilty defendants that victim impact statements can produce.43 Conversely, defense attorneys in these sorts of cases are increasingly showing jurors mitigation videos, which may prompt greater sympathy for the defendant and more lenient sentences.44 Again, no experimental research has yet tested these speculations. One study of mock jurors’ sentencing decisions in a capital case, however, found that those who saw neuroimaging evidence purporting to depict the defendant’s mental disorder were more sympathetic to the defendant than were those who only read the expert’s diagnosis of that disorder, but were not more sympathetic than those who read expert neuropsychological testimony.45 No other study of the effects of neuroimages on legal decision making has sought to measure participants’ emotional responses to that evidence.

HOW IS VISUAL EVIDENCE DIFFERENT? Visual evidence can prompt emotional responses, but so can testimony. I offer one reason to expect that some prevalent forms of visual evidence would produce stronger emotional effects and hence stronger influences on legal judgment than most nonvisual evidence does. I then explain why some specific features of visual evidence would be expected to intensify particular emotional responses. All things being equal, legal decision makers are more likely to imbue visual than nonvisual evidence with affect, thus generating the experience of a stronger emotional response to the former, because “affective reactions are always experienced as being about whatever is in Park and Feigenson, “Picturing Pain and Suffering” (sympathy (Study 2); sadness (Studies 1 and 2)).” In another study measuring affective responses to visual evidence in the civil context, Fishfader and colleagues found that participants who watched videotaped testimony about a drowning accident, with or without also watching a short video re-creation of the accident, experienced a greater increase in mood disturbance than did participants who read a written transcript of the testimony (and did not see the video re-creation). Change in mood disturbance was inversely correlated with the percentage of liability assigned to the plaintiff (i.e., the greater the increase in mood disturbance, the less liability they assigned to the plaintiff) (Fishfader et al., “Evidential and Extralegal Factors”). The study is difficult to assess for the present purposes, however, for several reasons, including that no mediational analyses were reported, making it impossible to determine whether participants in the video testimony conditions assigned less liability to the plaintiff because of changes in their mood. 42 See, e.g., Christine M. Kennedy, “Victim Impact Videos: The New Wave of Evidence in Capital Sentencing Hearings,” Quinnipiac Law Review 26 (2007): 1069–105. 43 See, e.g., Susan Bandes, “Empathy, Narrative, and Victim Impact Statements,” University of Chicago Law Review 63, no. 2 (1996): 361–412; Susan A. Bandes and Jessica M. Salerno, “Emotion, Proof, and Prejudice: Cognitive Science of Gruesome Photos and Victim Impact Statements,” Arizona State Law Journal 46 (2014): 1003–56; Ray Paternoster and Jerome Deise, “A Heavy Thumb on the Scale: The Effect of Victim Impact Evidence on Capital Decision Making,” Criminology 49, no. 1 (2011): 129–61. 44 But see Salerno and Bottoms, “Emotional Evidence and Jurors’ Judgments.” 45 Greene and Cahill, “Effects of Neuroimaging Evidence.” 41

320  Research handbook on law and emotion mind at the time” (affective immediacy46) and seeing pictures, in general, tends to occupy more of the mind – more attentional and other cognitive resources – than listening to testimony or reading documents does.47 The two studies that have compared the effects of gruesome visual to nonvisual evidence partly support this speculation. Bright and Goodman-Delahunty found that gruesome photographs produced emotional responses which in turn affected participants’ verdict preferences more than verbal evidence (whether gruesome or non-gruesome) did.48 In contrast, Matsuo and Itoh found that only emotional (vs. non-emotional) testimony about a murder victim, not gruesome (vs. non-gruesome) photographs of the victim, led participants to experience significantly stronger negative emotions (anger, disgust, and fear/anxiety) than they did before exposure to the case materials.49 As noted above, however, their “gruesome” photos may not have been perceived as being sufficiently realistic to create stronger emotional responses. Videos and other forms of visual evidence may enhance the strength of particular emotional reactions. Sympathy, for instance, is subject to a salience bias, such that persons whose suffering is more vividly described or depicted will, all things being equal, engender more sympathy.50 By showing the victim’s suffering more prominently (e.g., if the victim is on screen for longer, occupies more of the screen, and/or is shown in more detail), a day-in-the-life movie, for instance, might be expected to evoke more sympathy for the victim than a testimonial account of the same post-accident or post-malpractice events. Formal features of visual evidence can also increase its emotional impact. Increasing the display size has been shown to intensify viewers’ emotional arousal, especially in response to unpleasant (i.e., gruesome or violent) images.51 Camera angle or perspective would also be predicted to influence emotional responses and their effects: By making a particular actor more salient in the viewers’ visual field, a given perspective may incline viewers to attribute not just more causal significance to that actor (illusory causation52) but also more of the

Clore and Huntsinger, “The Object of Affect,” 39. Brad E. Bell and Elizabeth F. Loftus, “Vivid Persuasion in the Courtroom,” Journal of Personality Assessment 49, no. 6 (1985): 659–64; Yael Granot et al., “In the Eyes of the Law: Perception Versus Reality in Appraisals of Video Evidence,” Psychology, Public Policy, and Law 24, no. 1 (2018): 93–104. 48 Curiously, Bright and Goodman-Delahunty found that, in the absence of pictures, high-gruesome verbal evidence produced weaker emotional reactions and fewer guilty verdicts than did low-gruesome verbal evidence; one would have expected the opposite (Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion”). In a previous study, however, the same researchers found that gruesome verbal evidence led to more guilty verdicts than non-gruesome verbal evidence did, but the researchers did not measure emotional effects (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): 154–66). 49 Matsuo and Itoh, “Effects of Emotional Testimony and Gruesome Photographs.” 50 Neal Feigenson, “Sympathy and Legal Judgment,” Tennessee Law Review 65, no. 1 (1997): 1–78. 51 Maurizio Codispoti and Andrea de Cesarei, “Arousal and Attention: Picture Size and Emotional Reactions,” Psychophysiology 44, no. 5 (2007): 680–86; Byron Reeves et al., “The Effects of Screen Size and Message Content on Attention and Arousal,” Media Psychology 1, no. 1 (1999): 49–67. 52 Leslie Zebrowitz McArthur, “Illusory Causation and Illusory Correlation: Two Epistemological Accounts,” Personality and Social Psychology Bulletin 6, no. 4 (1980): 507–19; see also G. Daniel Lassiter, Andrew L. Geers, Patrick J. Munhall, Ian M. Handley, and Melissa J. Beers, “Videotaped Confessions: Is Guilt in the Eye of the Camera?,” in Advances in Experimental Social Psychology, ed. Mark Zanna (New York: Academic Press, 2001), 189–254. 46 47

Emotional dimensions of visual evidence  321 viewers’ own affect (as per affective immediacy; see above).53 The effects of color are less clear: In one study already discussed, color photographs produced emotional responses that influenced verdicts whereas black and white images did not,54 but in another, color and black white photos had comparable effects.55 We might expect that the strength of emotional effects on judgments that different types of visual evidence produce in different cases would vary considerably. The average size of emotion effects in general on judgments of legal responsibility appears to be in the modest to moderate range; most studies indicate a correlation coefficient (r) between .2 and .3,56 roughly consistent with the effect sizes found for emotions in judgment and decision making generally.57 Given the small number of studies of the effects on legal judgments of emotional responses to visual evidence, however, any speculations about their strength in general would be premature.

EMOTIONAL METACOGNITION AND THE JUDGMENT PROCESS Decision makers’ awareness of their own emotions may also play an important role in regulating their judgment process – an aspect of what is called metacognition, because it functions by means of decision makers’ thinking (i.e., cognition) about their own thinking (i.e., their emotional experience). Legal decision making is often complex, ambiguous, and fraught; decision makers, perhaps especially lay jurors who are unaccustomed to the challenge, may struggle to know whether they are doing the right thing. Like anyone else engaged in a difficult task, they are likely to ask themselves from time to time how well they are progressing toward their goal. Yet their interoceptive system (see above) is continuously monitoring their relationship to their environment, and if they attribute the affect they experience to their progress toward that goal, they will tend to interpret their affective state (positive or negative) as a signal that they are or are not making good progress. Visual evidence may influence this emotional metacognition in various ways. For instance, viewers are likely to experience the fluency or ease with which they get the gist of much visual evidence (processing fluency58) as positive59 John Houston and colleagues found that participants attributed less fault for an airline accident to the flight crew when they viewed a computer simulation of the accident from the flight crew’s perspective as opposed to hearing an audiotape of the events recorded by the cockpit voice recorder or hearing someone reading aloud a transcript of that recording. John M. Houston et al., “Computer Animation in Mock Juries’ Decision Making,” Psychological Reports 76, no. 3 (1995): 987–93. The researchers speculated that the perspective of the animation may have induced participants to make situational attributions for the accident, thus diminishing the flight crew’s responsibility, but they did not measure participants’ emotional responses to the animation. 54 Salerno, “Seeing Red.” 55 Douglas, “Graphic Photographic Evidence.” 56 Jaihyun Park and Neal Feigenson, “Meta-analysis of Effect Sizes of Emotions on Legal Judgments” (in preparation). 57 Amanda D. Angie et al., “The Influence of Discrete Emotions on Judgement and Decision-Making,” Cognition and Emotion 25, no. 8 (2011): 1393–422. 58 Daniel Oppenheimer, “The Secret Life of Fluency,” Trends in Cognitive Science 12, no. 6 (2008): 237–41. 59 Piotr Winkielman and John T. Cacioppo, “Mind at Ease Puts a Smile on the Face: Psychophysiological Evidence That Processing Facilitation Elicits Positive Affect,” Journal of Personality and Social Psychology 81, no. 6 (2001): 989–1000. 53

322  Research handbook on law and emotion and may take that positive affect as a signal that they understand what they need to understand with regard to that item of evidence. If generalized to their decision making process as a whole, that positive affect would signal to them that they are on the right track generally. Moreover, seeing an image – including diagrammatic images such as computer simulations, neuroimages, or other distillations of data that would not seem to be especially emotion-provoking – that decision makers perceive to be highly probative of a crucial element of the case may generate positive affect that informs them that they are making good progress toward the goal of deciding the entire case correctly.60

METHODOLOGICAL OBSERVATIONS Experimental studies of the emotional effects of visual evidence raise numerous methodological concerns, some attributable to the ways in which participants’ emotions are measured and some inherent in the study of emotions in the laboratory setting. An example of the first type of issue is raised by researchers’ choice of emotion words and framing of the emotion measures. Typically, researchers ask about anger, sadness, disgust, sympathy, and fear or anxiety; sometimes responses on an aggregate mood scale61 or subscales rather than specific component emotions62 are measured. A broader range of more nuanced terms might allow for a better test of emotional responses and their effects. In addition, some studies ask participants to indicate their emotional state without specifying a particular target of their emotions. Specifying emotion targets63 could help to clarify some of the underexplored relationships among multiple emotions regarding the multiple judgment targets (e.g., multiple parties) in any given case.64 As with experimental research on other aspects of emotions and legal judgment, studies of the emotional effects of visual evidence also raise ecological validity issues. Findings may either understate or overstate the impact of visual evidence in real cases.65 They may understate it: The emotions prompted by laboratory manipulations cannot approximate those aroused in some actual trials, especially in cases involving particularly heinous crimes, and the dramatic courtroom display of a surveillance video or autopsy photograph is likely to provoke more powerful emotions than seeing the same images by oneself on a small computer monitor while one sits in a psychology lab. Yet they may also overstate it – for instance, because in real cases as opposed to experiments, the impact of visual evidence is often blunted by the much larger amount of other trial information that precedes and follows it; real decision makers’ cognitive load, which has been shown to reduce the negative emotion people experience in response to unpleasant pictures,66 is generally much greater. In addition, real decision making 60 This is not to say, of course, that decision makers are actually correct in believing that they have seen all of the relevant information the visual evidence contains (e.g., Granot et al., “In the Eyes of the Law”) or that they are properly evaluating the evidence’s probative value. 61 See, e.g., Fishfader et al., “Evidential and Extralegal Factors”; Nemeth, “Impact of Gruesome Evidence” (Study 1). 62 See, e.g., Bright and Goodman-Delahunty, “Gruesome Evidence and Emotion.” 63 See, e.g., Cush and Goodman-Delahunty, “Influence of Limiting Instructions.” 64 Feigenson, “Jurors’ Emotions and Judgments of Legal Responsibility and Blame.” 65 Feigenson, “Jurors’ Emotions and Judgments of Legal Responsibility and Blame.” 66 Lotte F. van Dillen, Dirk J. Heslenfeld, and Sander L. Koole, “Tuning Down the Emotional Brain: An fMRI Study of the Effects of Cognitive Load on the Processing of Affective Images,” Neuroimage 45, no. 4 (2009): 1212–19.

Emotional dimensions of visual evidence  323 typically follows the emotion-provoking evidence by days or weeks, not minutes or hours as in the lab, attenuating the effect of the prompted emotions on judgment.

SUGGESTIONS FOR FURTHER RESEARCH The study of the emotional dimensions of visual evidence to date has largely been the study of the impact of crime scene and autopsy photos on mock jurors’ judgments in criminal cases. That focus is understandable, given the practical importance of these sorts of pictures and the substantial number of judicial opinions on whether such evidence should be admitted or excluded as unfairly prejudicial,67 but it would be worthwhile to expand the scope of the research in several ways. Some forms of visual evidence increasingly used in criminal cases and suspected to influence judgments through their emotional impact – victim impact videos and mitigation videos – have not yet been experimentally examined. More research should also be done on the emotional effects of visual evidence in civil cases; in particular, one might expect that day-in-the-life movies and other images of accident or malpractice victims’ injuries and suffering would have emotional impacts that influence damage awards and possibly verdicts. Additional research could also seek to clarify the theoretical distinctions among the different paths of emotional influence – in particular, that between indirect appraisal tendency effects and direct affect-as-information effects (see above) – and further explore the metacognitive functions of affect in guiding decision makers’ judgment processes. More attempts to replicate previous findings68 would be desirable for all of the reasons that they are recommended and conducted elsewhere in the sciences generally and social psychology in particular.69 In sum, the psychology of emotions in general indicates that emotions and affect play a central role in legal decision making, as they do in most perception and judgment. The small body of research to date on the emotional aspects of visual evidence offers tantalizing clues to the importance and distinctive emotional effects of this increasingly prevalent form of legal proof. Much more research is needed, however, to produce more reliable knowledge about the nature and extent of those effects.

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326  Research handbook on law and emotion Park, Jaihyun, and Neal Feigenson. “Meta-analysis of Effect Sizes of Emotions on Legal Judgments.” Manuscript in preparation. Paternoster, Ray, and Jerome Deise. “A Heavy Thumb on the Scale: The Effect of Victim Impact Evidence on Capital Decision Making.” Criminology 49, no. 1 (2011): 129–61. https://​doi:​10​.1111/​j​ .1745​-9125​.2010​.00220​.x. (Accessed February 26, 2021). Pickel, Kerri L., and Justin R. Brown. “The Effects of Mortality Salience on Jurors’ Judgments in a Robbery/Attempted Murder Case.” Paper presented at the meeting of the Midwestern Psychological Association, May 2003. Reeves, Byron, Annie Lang, Eun Young Kim, and Deborah Tatar. “The Effects of Screen Size and Message Content on Attention and Arousal.” Media Psychology 1, no. 1 (1999): 49–67. https://​doi:​10​ .1207/​s1532785xmep0101​_4. (Accessed February 26, 2021). Salerno, Jessica M. “Seeing Red: Disgust Reactions to Gruesome Photographs in Color (but not in Black and White) Increase Convictions.” Psychology, Public Policy, and Law 23, no. 3 (2017): 336–50. http://​dx​.doi​.org/​10​.1037/​law0000122. (Accessed February 26, 2021). Salerno, Jessica M., and Bette Bottoms. “Emotional Evidence and Jurors’ Judgments: The Promise of Neuroscience for Informing Psychology and Law.” Behavioral Sciences and the Law 27, no. 2 (2009): 273–96. https://​doi:​10​.1002/​bsl​.861. (Accessed February 26, 2021). 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. https://​doi:​10​.1177/​ 0956797613486988. (Accessed February 26, 2021). Semmler, Carolyn, and Neil Brewer. “Effects of Mood and Emotion on Juror Processing and Judgments.” Behavioral Sciences and the Law 20, no. 4 (2002): 423–36. https://​doi:​10​.1002/​bsl​.502. (Accessed February 26, 2021). Spiesel, Christina. “Gruesome Evidence: The Use of Beheading Videos and Other Disturbing Pictures in Terrorism Trials.” In Juries, Science, and Popular Culture in the Age of Terror, edited by David Tait and Jane Goodman-Delahunty, 67–85. London: Palgrave Macmillan, 2017. Tiedens, Larissa Z., and Susan Linton. “Judgment Under Emotional Certainty and Uncertainty: The Effects of Specific Emotions on Information Processing.” Journal of Personality and Social Psychology 81, no. 6 (2001): 973–88. https://​doi:​10​.1037//​OO22​-3514​.81​.6​.973. (Accessed February 26, 2021). van Dillen, Lotte, Dirk Heslenfeld, and Sander Koole. “Tuning Down the Emotional Brain: An fMRI Study of the Effects of Cognitive Load on the Processing of Affective Images.” Neuroimage 45, no. 4 (2009): 1212–19. https://​doi:​10​.1016/​j​.neuroimage​.2009​.01​.016. (Accessed February 26, 2021). Winkielman, Piotr, and John Cacioppo. “Mind at Ease Puts a Smile on the Face: Psychophysiological Evidence That Processing Facilitation Elicits Positive Affect.” Journal of Personality and Social Psychology 81, no. 6 (2001): 989–1000. https://​DOI​.10​.1037//​0022​-3514​.81​.6​.989. (Accessed February 26, 2021).

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

Terry Maroney has long recognised the contribution of the broader historical legal realist movement to law and emotion, especially its early exploration of emotions in judicial decision-making.1 Of particular relevance is the realist proposition that judges might decide cases by taking account of factors other than pre-existing law.2 This is not an argument that judicial decisions are arbitrary, but a recognition that legal doctrine is a necessary but too often insufficient basis for explaining decisions.3 In law and emotion, scholars advocating this position have been called ‘new emotional realists’,4 given their argument that judicial emotion ‘exists, and…exerts greater influence over the processes and products of judging than previously had been acknowledged’.5 In contradistinction to the emotional realist trend has been the development of the ‘distancing device’. First mentioned by Raz, distancing devices are said to be tools that judges can rely on to decide cases independently of their personal tastes and other apparently non-legal factors.6 Given the legal tendency to dichotomise emotion and rationality, emotions are normally regarded to be non-legal factors.7 Since Raz, there has been increasing mention of the distancing device.8 Grant, for instance, suggests that these tools provide judges with an ‘artificial system of reasoning which could help determine cases where natural reason runs out, thus assuring the public that the decisions are no mere expression of personal preference on the part of the judges’.9 Therefore, at the core of the distancing device is a claim that, in the process of legal reasoning, a judge can be prevented in whole or in part from relying on non-legal factors to reach a decision. Se-Shauna Wheatle has helpfully identified legal tools that could be regarded as distancing devices. Primarily, she identifies ‘implied principles’,10 which are unwritten principles imputed 1 Terry Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’, California Law Review 99, no. 2 (2011): 632. 2 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’, 653. 3 Victoria Nourse and Gregory Shaffer, ‘Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?’ Cornell Law Review 95 (2009): 73. 4 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’, 632. 5 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’, 653. 6 Joseph Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’, in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 190. 7 Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’, 653. 8 Se-Shauna Wheatle, Principled Reasoning in Human Rights Adjudication (London: Bloomsbury, 2017), 1–2; James Grant, ‘The Ideals of the Rule of Law’, Oxford Journal of Legal Studies 37, no. 2 (2017): 392. 9 Grant, ‘The Ideals’, 392. 10 Wheatle, Principled Reasoning, 104.

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328  Research handbook on law and emotion into legal documents by judges.11 As examples, Wheatle mentions the principle of legality (the rule of statutory interpretation that interferences with rights must be expressly provided for before a court will sanction the interference),12 and concepts such as the rule of law and the separation of powers.13 These principles, Wheatle suggests, ‘situate decision-making in the normative demands of the constitution, rather than the personal and institutional interests of the judiciary’.14 Therefore, ‘the principle…plays an important role in distancing the decision from the personal tastes of the judge’.15 She also suggests that relying on precedent could amount to a distancing device,16 as it requires the court to defer to the evaluations of an earlier decision-maker.17 Despite this, Wheatle concedes that distancing devices are not entirely successful in displacing doubts about the role of non-legal factors in judicial decisions.18 In this chapter, my first objective is to demonstrate that there are good reasons to doubt the capacity of distancing devices to prevent a judge from relying on non-legal factors and personal tastes, specifically their emotions. My purpose in adumbrating this critique is to demonstrate that, without more, they pose no significant threat to the emotional realist insight. Particularly, I will demonstrate that contemporary affective science, especially neuroscience, consistently reveals the interconnected nature of emotion, cognition, reasoning, motivation, and other mental phenomena.19 Consequently, it is a false metaphor to suggest that judges can be distanced from their emotions in the process of reasoning using distancing devices. As Halgren has noted, emotions and cognitive processes are so interconnected that it is often empirically impossible to disentangle the temporal and causal relationships between them.20 In reality, judicial decision-making is likely to be a complex web of cognitive, emotional, and motivational elements, which cannot be realistically reduced to constituent parts and plotted in a linear chronology. My second objective is to outline a linguistic methodology helpful to researchers exploring judicial displays of emotion in written language. This is a useful context to outline this methodology given that distancing devices precisely occur in the language of judgments. I will analyse the United Kingdom Supreme Court case of R (UNISON) v Lord Chancellor21 via the ‘appraisal framework’, devised initially by Martin and White22 and developed later

Wheatle, Principled Reasoning, 1–2. Wheatle, Principled Reasoning, 46. 13 Wheatle, Principled Reasoning, 104. 14 Wheatle, Principled Reasoning, 105. 15 Wheatle, Principled Reasoning, 99. 16 Wheatle, Principled Reasoning, 107. 17 Wheatle, Principled Reasoning, 81–82. 18 Wheatle, Principled Reasoning, 106. 19 Luiz Pessoa, ‘On the Relationship Between Emotion and Cognition’, National Review of Neuroscience 9 (2008): 148–58; Luiz Pessoa, The Cognitive-Emotional Brain: From Interactions to Integration (London: MIT Press, 2013). 20 Eric Halgren, ‘Emotional Neurophysiology of the Amygdala Within the Context of Human Cognition’, in The Amygdala: Neurobiological Aspects of Emotion, Memory and Mental Dysfunction, ed. John Aggleton (New York: Wiley-Liss, 1992), 191–228. 21 [2017] UKSC 51. 22 J.R. Martin and Peter White, The Language of Evaluation: Appraisal in English (London: Palgrave, 2005). 11 12

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  329 by Alba-Juez.23 The appraisal framework is a qualitative linguistic methodology designed to identify the various ways that emotion, stance, and attitude may be expressed in language.24 UNISON is a germane case because the court made use of several forms of distancing, including relying on precedent and implied principles.25 The framework, I hope, will serve as a useful tool for exploring judicial displays of emotion in a highly accessible dataset: judicial language in written judgments.

DISTANCING AS A FALSE METAPHOR Abrams and Keren pithily encapsulate the emotional realist claim by suggesting that ‘emotions already infuse [decision-making] whether or not they are recognized by legal actors (emphasis added)’.26 But what it means for emotions to infuse decision-making does not speak for itself. Indeed, scholars have suggested numerous ways that emotions might influence judicial decisions: ●● A judge may consciously recognise their emotions vis-à-vis the litigating parties and reach a substantive decision purely or largely on that basis;27 ●● A judge might consciously recognise their emotions to register what is at stake for the parties and to explore the human context of the case;28 ●● A judge might consciously use their emotions for so-called orientation, tracker, and service functions: that is, emotions might imbue a legal concept with an autonomous meaning or importance, prompt the judge to react to the subject-matter in a particular way, and guide use of the concept.29 While eminently reasonable, my concern is that these suggestions emphasise how a judge might consciously use their emotions in a functional way. The issue is that, by contrast, affective science consistently focuses on the automatic and non-conscious nature of emotional influence over reasoning.30 As Johnson-Laird and Shafir put it in their classic work on reasoning: ‘Individuals are often not aware of how they reason, having at best only glimpses of the

23 Laura Alba-Juez, ‘Emotion and Appraisal Processes in Language’, in The Construction of Discourse as Verbal Interaction, eds, Maria de los Angeles Gomez Gonzalez and J. Lachlan MacKenzie (Amsterdam: John Benjamins, 2018), 227–50. 24 Martin and White, The Language of Evaluation. 25 R (UNISON) v. Lord Chancellor [2017] UKSC 51. 26 Kathy Abrams and Hila Keren, ‘Who’s Afraid of Law and the Emotions?’ Minnesota Law Review 94, no. 1 (2010): 2004. 27 Benjamin Zipursky, ‘DeShaney and the Jurisprudence of Compassion’, New York University Law Review 65, (1990): 1101–147; John Alder, ‘The Sublime and the Beautiful: Incommensurability and Human Rights’, Public Law (Winter 2006): 697–721. 28 Francois Tulkens, ‘Parity on the Bench: Why? Why Not’, European Human Rights Law Review 6 (2014): 594; Susan Bandes, ‘Compassion and the Rule of Law’, International Journal of Law in Context 13, no. 2 (2017): 185. 29 Emily Kidd White, ‘Till Human Voices Wake Us: The Role of Emotions in the Adjudication of Dignity Claims’, Journal of Law, Religion and State 3 (2011): 201–2. 30 Pessoa, The Cognitive-Emotional Brain.

330  Research handbook on law and emotion process. They are aware of the results, not the mechanism’.31 It follows that a judge may not know how their emotions are influencing their reasoning and may not be able to functionally, consciously use them: the influence might occur unintentionally. My purpose in exploring this dimension to judicial reasoning is to expose the flaws in reasoning behind the distancing device. Once it is recognised that it is difficult, if not impossible, to literally and empirically distance judicial reasoning from emotion given the automatic nature of the interactions, the metaphor collapses. It is not my purpose to comment on whether this makes judicial decision-making normatively ‘good’ or ‘bad’; this analysis is exclusively about the consequences of neurological integration for the distancing device. Readers interested in the positive and negative consequences that emotion might have on reasoning are encouraged to read the work of Isabelle Blanchette.32 Similarly, though emotion regulation is an increasingly important concept,33 I am not trying to answer the question of whether other emotion regulation strategies might better ‘distance’ a judge from their emotions. My sole objective is to evaluate whether the process of reasoning via a distancing device effects this result. I will briefly outline what I mean by emotion, cognition, reasoning, and motivation, given that they will be important concepts throughout this chapter. According to Crocker et al., an emotion is a response to the attainment (or lack thereof) of an individual’s needs, goals, and concerns, involving relevant thoughts, subjective perceptions, physiological reactions, neurological processes, overt behaviours, and language.34 Similarly, Lindquist et al. suggest that there is typically consensus that an emotion refers to some change in a person’s subjective experience or feeling state, autonomic responses (e.g. heart rate, respiration, or electrodermal activity), physical action (e.g. facial muscular movements, gestures, or behaviours), and perception of the world, in response to some event.35 Mauss and Robinson add that emotions can be described as ‘experiential, physiological, and behavioural responses to personally meaningful stimuli’.36 So as to distinguish emotions from longer-term affective states such as moods or temperaments, Fox adds that emotions are normally brief in duration,37 ranging from a matter of seconds,38 to, at most, several hours.39

Philip Johnson-Laird and Eldar Shafir, Reasoning and Decision Making (Cambridge: Blackwell, 1994), 2. 32 Isabelle Blanchette and Serge Caparos, ‘When Emotions Improve Reasoning: The Possible Roles of Relevance and Utility’, Thinking and Reasoning 19, no. 3-4 (2013): 399–413; Isabelle Blanchette, ed. Emotion and Reasoning (London: Routledge, 2014). 33 Ainize Pena-Sarrionandia, Moira Mikolajczak and James Gross, ‘Integrating Emotion Regulation and Emotional Intelligence Traditions: A Meta-Analysis’, Frontiers in Psychology 6 no. 160, (2015): 1–27. 34 Laura Crocker et al., ‘Relationships Among Cognition, Emotion, and Motivation: Implications For Intervention and Neuroplasticity in Psychopathology’, Frontiers in Human Neuroscience 7 (2013): 261. 35 Kristen Lindquist et al., ‘The Hundred Year Emotion War: Are Emotions Natural Kinds or Psychological Constructions?’ Psychological Bulletin 139, no. 1, (2013): 255–263. 36 Iris Mauss and Michael Robinson, ‘Measures of Emotion: A Review’, Cognition and Emotion 23, no. 2 (2009): 209–37. 37 Elaine Fox, Emotion Science (London: Palgrave, 2008), 16. 38 Paul Ekman, ‘An Argument for Basic Emotions’, Cognition and Emotion 6, no. 3–4, (1992): 186. 39 Nico Frijda et al., ‘The Duration of Affective Phenomena or Emotions, Sentiments and Passions’, in International Review of Studies on Emotion, ed. Ken Strongman (Chichester: John Wiley, 1991), 199. 31

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  331 Meanwhile, Neisser has defined cognition as a mental process by which external or internal input is transformed, reduced, elaborated, stored, recovered, and used.40 For Coren, Ward, and Enns, cognition would include memory, association, concept formation, pattern recognition, language, attention, perception, problem-solving, inhibition, imagination, and reasoning.41 Reasoning, then, is a specific subclass of cognition, and Blanchette has defined it as ‘the psychological process through which individuals organize, structure, and draw inferences from information, helping them make sense of the world around them and envisage hypothetical situations’.42 In particular, Blanchette distinguishes between heuristic and analytic reasoning; the former involving automatic, intuitive, and associative decision-making and the latter involving slower, rule-based, and effortful decision-making.43 de Jong and Vroling make plain that the distinction is one of emphasis rather than category; heuristic reasoning might be followed by analytic reasoning considering the veracity of the initial appraisal.44 Moreover, analytic reasoning often involves a series of implicit assumptions (‘epistemic mental models’) that are not normally questioned.45 Finally, motivations are typically defined as processes that drive goal-directed behaviours aimed at achieving desired outcomes and avoiding undesired ones.46 With these definitions elaborated, I move onto demonstrating how each of these subtly distinct phenomena are neurologically integrated or, at least, highly interconnected.

THE EMOTIONAL-COGNITIVE-MOTIVATIONAL BRAIN Luiz Pessoa is well-known for his research on emotion-cognition-motivation interaction in the brain,47 and, for that reason, I begin with his work. Pessoa has noted that, historically, neuroscientists recognised brain regions exclusively related to either emotion or cognition. Regions normally associated with emotion included subcortical regions of the deep brain such as the amygdala, ventral striatum, and hypothalamus. By contrast, the prefrontal and parietal cortices were normally exclusively associated with cognition and reasoning.48 Moreover, Crocker et al. have noted that the nucleus accumbens and caudate have historically been associated with

Ulric Neisser, Cognitive Psychology (New York: Appleton Century Crofts, 1967), 4. Stanley Coren, Lawrence Ward, and James Enns, Sensation and Perception (London: John Wiley, 2003). 42 Blanchette, Emotion and Reasoning, 4. 43 Blanchette, Emotion and Reasoning, 4. 44 Peter de Jong and Maartje Vroling, ‘Better Safe Than Sorry: Threat-confirming Reasoning Bias in Anxiety Disorders’, in Emotion and Reasoning, ed. Isabelle Blanchette, 22–43. London: Routledge, 2014, 24. 45 Jonathan Evans, ‘The Heuristic-Analytic Theory of Reasoning: Extension and Evaluation’, Psychonomic Bulletin & Review 13, no. 3, (2006): 378–9. 46 Ira Roseman, ‘Structure of Emotions, Motivations and Emotivations: Approach, Avoidance, and Other Tendencies in Motivated and Emotional Behaviour’, in Handbook of Approach and Avoidance Motivation, ed. Andrew Elliott (New York: Psychology Press, 2008), 343–66. 47 Pessoa, ‘On the Relationship Between Emotion and Cognition’, Pessoa, The Cognitive-Emotional Brain. 48 Pessoa, ‘On the Relationship Between Emotion and Cognition’, 148–9. 40 41

332  Research handbook on law and emotion motivation, particularly the processing of reward-related information.49 Increasingly, though, such certainties no longer hold good. Indeed, Davidson has gone so far as to call the proposition that emotion and cognition involve separate brain mechanisms as one of the ‘seven sins’ of emotion science.50 In particular, Pessoa argues that parcelling the brain into emotion and cognition regions is inherently problematic as the regions viewed as emotion-related are also involved in cognition and vice versa. To Pessoa, it is more accurate to view cognition and emotion as integrated in the brain, with complex cognitive-emotional behaviour emerging from dynamic interactions between various regions.51 For example, Pessoa notes that the amygdala has traditionally been associated with the emotion of fear, but that its activation is also evident in displays of attention and heuristic reasoning. Activation of the amygdala is also associated with simultaneous activation of the visual cortex, which deals with retinal perception. This makes eminent evolutionary sense as, when in a state of fear, rapid use of attention, reasoning, and perception would be essential for survival.52 Beyond emotion-cognition integration, Pessoa also identifies a neurological circuit between the lateral prefrontal cortex associated with cognition, the amygdala associated with emotion, and the nucleus accumbens associated with motivation. Working in tandem, these regions produce a circuit which guides attention and produces goal-oriented behaviours while experiencing an emotion. For Pessoa, circuits such as this demonstrate the intimately cognitive-emotional nature of motivational processes.53 Consequently, Pessoa argues that no region of the brain should be conceptualised as specifically emotional or cognitive since there is such structural connectivity between them.54 Now, none of this is to suggest that emotion, cognition, and reasoning are the same thing. For instance, while motivations are similar to emotions in that they both produce tendencies to goal-oriented behaviours, they can differ in that motivations tend to be more tightly linked to specific and explicit goals.55 The argument is not one of synonymity but of structural integration. Fox encapsulates this well: In the investigation of how cognitive and affective processes interact, the direction of travel is not always clear. [A] particular emotion…is likely to induce a cognitive bias so that…relevant material is then prioritized by the processing system. In turn…such a bias is also likely to…increase the propensity of experiencing related emotions.56

This structural integration between emotional, motivational, and cognitive processes should make us sceptical towards the pretention that a judge can be distanced from their emotions while in a cognitive process of legal reasoning. Indeed, emotion researchers have developed a range of concepts that seek to join together emotion, cognition, and motivation. These include

Crocker, Relationships Among Cognition. Richard Davidson, ‘Seven Sins in the Study of Emotion: Correctives From Affective Neuroscience’, Brain and Cognition 52, no. 1 (2003): 129–32. 51 Pessoa, ‘On the Relationship Between Emotion and Cognition’, 148. 52 Pessoa, ‘On the Relationship Between Emotion and Cognition’, 149. 53 Pessoa, ‘On the Relationship Between Emotion and Cognition’, 153. 54 Pessoa, ‘On the Relationship Between Emotion and Cognition’, 148. 55 Kimberley Chiew and Todd Braver, ‘Positive Affect Versus Reward: Emotional and Motivational Influences on Cognitive Control’, Frontiers in Psychology 2, no. 1 (2011): 279. 56 Fox, Emotion Science, 164. 49 50

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  333 ‘hot cognitions’,57 ‘emotion schemas’,58 ‘preferences’, and ‘attitudes’, 59 which highlight the intimate connection between emotions and cognitive appraisals; ‘sentiments’ and ‘passions’, which describe emotion-laden values and long-term emotionally-charged motivations respectively;60 ‘emotivations’, which explore the inherent interconnectivity between motivations and emotions;61 and ‘integral emotions’, which arise when an emotion is intrinsically linked to the thing being cognitively reasoned about.62 In consequence, my argument is that judicial decision-making is best characterised as a cognitive-emotional-motivational-heuristic-analytic process, which cannot realistically be reduced into constituent parts or plotted chronologically. Therefore, the distancing device is exposed for what it is: an artificial metaphor that denies the reality of human brain processes by suggesting that it is possible for a judge to distance themselves from their emotions while involved in a process of cognitive legal reasoning. There is little to suggest that this is correct and rather a lot to suggest that it is actively incorrect. Thus, I suggest that, without more, the distancing device poses no threat to the emotional realist perspective.

MEASURING JUDICIAL EMOTIONS In the section above, I focused on the brain mechanisms underlying emotion, cognition, and motivation, so as to demonstrate their integrated nature. Nevertheless, as the definitions that I provided previously reveal, an emotion will normally also have an effect beyond the physical brain, involving a subjective feeling state, physiological reactions, the manifestation of certain behaviours, expressive conduct such as language, and the formulation of certain cognitive appraisals and biases.63 The special feature of an emotion is that these normally independent phenomena become temporarily synchronised to a degree in response to some event.64 Fox stresses that it is important for any researcher to expressly identify what correlate of emotion they focus on, given that this choice will heavily influence, if not positively determine, their methodology, research questions, and conclusions.65 Mauss and Robinson illustrate this particularly well in relation to methodology and I produce below a list adapted from their work: 1. Subjective experience: self-report studies (interviews or questionnaires); 2. Peripheral physiology: autonomic nervous system measures – electrodermal responding (sweat gland activity), such as skin conductance level and skin conductance responses, and cardiovascular responding (blood circulatory activity), such as heart rate and blood pressure; 57 Craig Smith, Kelly Haynes, Richard Lazarus, and Lois Pope, ‘In Search of the “Hot” Cognitions: Attributions, Appraisals, and Their Relation to Emotion’, Journal of Personality and Social Psychology 65 no. 5, (1993): 916–29. 58 Carol Izard, Human Emotions (London: Springer, 1977). 59 Klaus Scherer, ‘What Are Emotions? And How Can They Be Measured?’ Social Science Information 44, no. 4 (2005): 703. 60 Frijda et al, The Duration of Affective Phenomena.’ 61 Roseman, Structure of Emotions. 62 Blanchette and Caparos, ‘When Emotions Improve Reasoning.’ 63 Mauss and Robinson, ‘Measures of Emotion.’ 64 Scherer, ‘What are Emotions?’ 698–9. 65 Fox, Emotion Science, 19.

334  Research handbook on law and emotion 3. Affect-modulated startle: startle response magnitude, such as eye blink measurement; 4. Central physiology: central nervous system measures (brain and spinal cord activity), such as electroencephalography (EEG), functional magnetic resonance imaging (fMRI), and positron emissions tomography (PET); 5. Behaviour: vocal characteristics (amplitude and pitch), facial behaviour (observer ratings or electromyography (EMG)), and whole-body behaviour (observer ratings).66 I set this out in detail because I want to make explicit that studying emotions via one correlate does not necessarily equate to similar findings via another correlate. As Fox notes, it is axiomatic that a person may feel sad subjectively but nevertheless act behaviourally in a happy manner.67 Therefore, it might be problematic to study subjective feeling states via observations of behaviour. Similarly, Gross and Levenson found that participants who were asked to suppress their facial expressions in response to watching negative stimuli experienced greater activation of the sympathetic nervous system (e.g. heart rate, breathing rate, sweating) in comparison to a control group who watched the stimuli in a natural manner.68 Therefore, it might be problematic to study facial expressions when one is interested in internal physiological correlates. Discrepancies such as these are why Roach Anleu, Bergman Blix, and Mack have warned that researchers cannot necessarily make claims about judicial experience of emotion from judicial displays of emotion.69 If other judicial emotion researchers are anything like me, they will be immediately struck by how few of the correlates and measures are of any practical relevance to them. Realistically, I cannot request that, say, Lady Hale, the current President of the British Supreme Court, undertake a PET scan to enable me to investigate the vicissitudes of her brain. Nor can I sit beside Lord Wilson as he is penning a judgment to ask him about his feeling state. Given the broadly inaccessible nature of judges as research subjects, I am severely limited on what I can and cannot do. In this section, I explore what can be gained via one correlate that researchers virtually uniformly will have access to: that of judicial language use in written judgments. Naturally, analyses of language are subject to the same limitation as observational studies; I cannot guarantee that the emotion expressed in language is genuinely experienced, or whether it is only performed or acted, or some intermediate or transitional state between these extremes.70 But I present this study merely as a new way that researchers may seek to explore judicial displays of emotion, perhaps alongside additional methods that may provide insight into judicial experience of emotion, such as interviews or questionnaires.71 I suggest that the issue of distancing devices provides as good an opportunity as any to investigate this correlate because the language use in written judgments is where I will locate the actual use of distanc-

Mauss and Robinson, ‘Measures of Emotion.’ Fox, Emotion Science, 31. 68 James Gross and Robert Levenson, ‘Hiding Feelings: The Acute Effects of Inhibiting Negative and Positive Emotion’, Journal of Abnormal Psychology 106 (1997): 95–103. 69 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): 148. 70 Anleu, Blix, and Mack, ‘Researching Emotion’, 147–8. 71 Anleu, Blix, and Mack, ‘Researching Emotion’, 148. 66 67

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  335 ing devices by judges. To do this, I will use the ‘appraisal framework’ developed Martin and White72 and Alba-Juez.73

THE APPRAISAL FRAMEWORK As Martin and White explain, the appraisal framework is concerned with the subjective presence of writers…as they adopt stances towards both the material they present and those with whom they communicate. It is concerned with how writers…approve and disapprove, enthuse and abhor, applaud and criticise…It is concerned with the construction…of…shared feelings and values, and with the linguistic mechanisms for the sharing of emotions, tastes and normative assessments.74

Given that judges might not be explicit about their emotional reactions in decision-making,75 it is important that the appraisal framework deals not only with overt and explicit displays of emotion, but also with indirect and implicit displays.76 Theoretically, this framework is located within the so-called ‘systemic functional linguistics’ paradigm, which conceives language choice as determined by a writer’s intentions and attitudes, as influenced by their institutional, cultural, social, and individual background.77 Appraisal involves three linguistic domains: attitude, engagement, and graduation. Attitude is concerned with feelings, including emotional reactions, judgements of behaviours, and evaluations of things. Specifically, attitude is divided into three sub-domains: affect, judgement, and appreciation. Affect is about presenting emotional reactions, judgement is about assessing behaviour against normative principles, and appreciation is about exploring the value of things.78 Meanwhile, engagement deals with the sourcing of attitudes and the play of voices around opinions. This can be monoglossic or heteroglossic;79 that is, dialogically contractive by seeking to foreclose alternative opinions or experiences, or dialogically expansive by seeking to engage with alternative views and experiences.80 Finally, graduation attends to grading phenomena whereby feelings are amplified or augmented. This is then subdivided into force, which involves the intensification of language (‘this is an obviously incorrect decision’), and focus, which augments meaning via placing a thing within a category (‘this is a paradigm example of a lawful decision’).81 As Alba-Juez has noted, the expression of emotion would appear to fit exclusively into the affect subdivision of the attitude domain; after all, that is the resource dealing with the presentation of emotional reactions. Nevertheless, she insists that emotion necessarily permeates all the systems and subsystems of appraisal. This is essentially for the reason outlined 74 75 76 77 78 79 80 81 72 73

Martin and White, The Language of Evaluation. Alba-Juez, ‘Emotion and Appraisal.’ Martin and White, The Language of Evaluation, 1. Maroney, ‘Persistent Cultural Script of Judicial Dispassion.’ Martin and White, The Language of Evaluation, 2. Martin and White, The Language of Evaluation, 17. Martin and White, The Language of Evaluation, 35–6. Martin and White, The Language of Evaluation, 37. Martin and White, The Language of Evaluation, 102. Martin and White, The Language of Evaluation, 35–7.

336  Research handbook on law and emotion in the section above: the integrated nature of emotion, cognition, and motivation necessarily means that emotion can bleed into evaluation, attitude, or stance without boundaries between these being recognisable.82 Alba-Juez gives the example of a person writing: ‘Wow! It’s an absolutely amazing film!’ This statement enacts an emotional reaction with its exclamatory nature (the affect domain), while simultaneously expressing a favourable cognitive evaluation of the film (the appreciation domain).83 As previously stated, human mental processes are best thought of as dynamically cognitive-emotional-motivational-heuristic-analytic; not as one purist category. Moreover, Alba-Juez regards the traditional discrete emotion labels, such as love or anger, to be unhelpful because between these labels there exists a potentially infinite range of intermediate and transitional states produced by interaction with a person’s cognitive appraisals. She prefers descriptions that are more nuanced and gradable, that express an emotion from its mild to severe manifestation, such as exploration-curiosity-foraging-expectation-desire or offence-irritability-anger-rage-fury.84 Given that I also accept this perspective, I prefer to give multiple plausible descriptors of the emotion being displayed (e.g. impatience-irritatio n-frustration-anger). With my basic framework outlined, I now put it to use.

R (UNISON) V. LORD CHANCELLOR85 This case was about a statutory provision granting the Lord Chancellor the power to prescribe fees payable for access to various tribunals. The Minister purported to exercise this power in respect of employment tribunals. The question for the Supreme Court was the lawfulness of this order, given that many claimants were discouraged from pursuing legitimate claims against employers, particularly claims of low monetary value. In its judgment, the court, with Lord Reed giving the unanimous opinion, made use of several forms of distancing, including invoking precedent86 and the principle of access to the courts.87 In the following analysis, I will identify several major appraisal features in the judgment so as to demonstrate how the framework might be used when researching judicial emotion displays in written language. I will begin with the court’s reliance on implied principles and particularly the principle of access to the courts. This principle manifested through each of the three appraisal domains: attitude (namely, appreciation and judgement), engagement (namely, heteroglossic narrative), and graduation (namely, force and focus). Given that the engagement domain arises chronologically earliest in the judgment, I will begin there. Engagement emerged especially in the form of heteroglossic narrative; that is, dialogically expansive writing that focused on the experiences of other persons beyond the writer.88 In this context, those persons were employees who may wish to use employment tribunals. At [6], for instance, Lord Reed explained why it was important to protect access to the courts for this group: ‘Relationships between employers

84 85 86 87 88 82 83

Alba-Juez, ‘Emotion and Appraisal’, 391–2. Alba-Juez, ‘Emotion and Appraisal’, 389. Alba-Juez, ‘Emotion and Appraisal’, 379. [2017] UKSC 51. UNISON, [74]–[85]. UNISON, [65]–[73]. Martin and White, The Language of Evaluation, 102.

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  337 and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships…’89 This is but one example of heteroglossic engagement; more or less, the entirety of the judgment until [55] deals with the position of employees seeking to pursue employment tribunal claims. This narrative emerges via three forms of evidence discussed by the court: statistical evidence produced by the Ministry of Justice starting at [38]; survey evidence produced by Acas (Advisory, Conciliation and Arbitration Service) starting at [45]; and hypothetical claims adumbrated by Unison starting at [50]. At [51], for instance, Lord Reed discusses the hypothetical case of a single mother with a child working as a secretary and her difficulties in pursuing an employment case due to tribunal fees.90 Therefore, from the level of generalised statistics to individual claimant examples, Lord Reed spent a significant portion of his judgment outlining the real human consequences of lack of access to courts. Analysing [6] a little more deeply, Lord Reed uses the domain of graduation to add force and focus to his heteroglossic engagement. For force, which concerns the intensification of language, his Lordship writes that ‘generally’ employment relationships are characterised by imbalance of economic power and that Parliament has ‘long intervened’ in these relationships. He paints a view of a world where, in principle, employees find themselves in unequal economic relationships that Parliament has for many years sought to remedy. Similarly, in terms of focus, which concerns the categorisation of things to augment meaning, his Lordship positions the employment relationship in the category of ‘unequal economic power’ and employees in the category of ‘vulnerable to exploitation and undesirable practices’. Using these chosen categories and intensifiers, Lord Reed brings force and focus to his claim that protecting access to courts for employees is of critical importance. Beyond engagement, the domain of attitude also comes to the fore, particularly its subdivisions of appreciation and judgement, the former of which deals with the value ascribed to things and the latter with assessment of behaviour against normative principles.91 To begin with appreciation, there are repeated attempts by Lord Reed to display the value that he places on access to the courts. At [66], for example, he writes that: The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.92

Once again, Lord Reed uses the graduation domain to strengthen his narrative. As an example of force, his Lordship argues that access to the courts is inherent in the rule of law, not merely associated with it or connected to it or even critical to it. He expands this appreciation at [68], by claiming that:

91 92 89 90

UNISON. UNISON. Martin and White, The Language of Evaluation. UNISON.

338  Research handbook on law and emotion Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.93

There is consistent deployment of focus in these two sentences. By his Lordship’s construction of the categories of ‘dead letter’ laws, ‘nugatory’ parliamentary work, and ‘meaningless charade’ elections, he lexically strengthens his argument that access to the courts is important so as to avoid these detrimental categories. Moreover, in the second sentence, he even places access to the courts in a special category all of its own beyond any other public service: ‘This is why the courts do not merely provide a public service like any other.’94 In terms of the judgement domain that deals with assessment of behaviours, Lord Reed indulges in a subtle critique of the Lord Chancellor at [66]: ‘The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other…’95 His Lordship does not name the Lord Chancellor as the one who lacks understanding, but given that it was only the Minister who made this argument, the criticism can apply to no other. This subtle display of judgement is strengthened at [73], when Lord Reed expressly makes a reference to a previous Lord Chancellor who held a different view: ‘A Lord Chancellor of a previous generation put the point in a nutshell, in a letter to the Treasury: (i) Justice in this country is something in which all the Queen’s subjects have an interest, whether it be criminal or civil…’96 Therefore, Lord Reed deploys both appreciation and judgement to bolster his case that access to the courts is of critical importance; appreciation by asserting that access to courts is inherent in the rule of law, and judgement by suggesting that the principle is so important that it is a standard against which to judge the virtue of ministerial behaviour. Even Lord Reed’s use of precedent has a strong element of appreciation in that his Lordship uses precedent to build his case that access to the courts is fundamental. At [74], for instance, his Lordship writes that: In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215…which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297: ‘We will sell to no man, we will not defy or defer to any man either Justice or Right.’97

Lord Reed consistently dates his precedents throughout this section so as to stress the longevity of the principle. At [75], for instance, when Lord Reed mentions the work of Sir Edward Coke, his Lordship is at pains to tell the reader precise dates of publication: ‘written in the 1620s but published posthumously in 1642…’98 In the same paragraph, Lord Reed also makes sure to tell the reader that Sir William Blackstone made his comments on access to the courts in 1765.99 His Lordship consistently relies on dating to lexically construct the principle as an ancient one.

95 96 97 98 99 93 94

UNISON. UNISON. UNISON. UNISON. UNISON. UNISON. UNISON.

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  339 In totality, although there are no direct emotion displays in the judgment – Lord Reed never says, ‘The principle of access to the courts is one that I adore and cherish’ – there is a consistent undertone that Lord Reed is favourable to access to the courts: he repeatedly discusses the human consequences of lack of protection of the principle, he claims its connection to ideals such as the rule of law, and he stresses its longevity. Thinking of human mentality as cognitiv e-emotional-motivational-heuristic-analytic, we can draw on concepts that tie together cognition and emotion to describe the nature of this judgment: Lord Reed has a discernible ‘attitude’, ‘preference’,100 or ‘sentiment’101 favourable to access to the courts. So far as the relevant emotion embedded in this process, this might be labelled as appreciation-respect-reverence for the principle and concern-worry-anxiety about loss of its protection.

CONCLUSION In this chapter, I did two things: first, I demonstrated that, at its current phase of development, the notion of a distancing device poses no threat to the emotional realist insight that a judge’s emotions might influence their decision-making. Specifically, by drawing on contemporary affective neuroscience, I suggested that the best way to conceive of judicial decision-making was as a complex web of emotional, cognitive, motivational, heuristic, and analytic elements which cannot easily, if at all, be reduced to constituent parts or plotted in a causal relationship. This was because those regions of the brain formerly exclusively associated with, say, emotion or cognition, have been found to be integrated or, at least, highly connected much of the time. Therefore, there is good reason to be sceptical of the claim that judges can be distanced from their emotions in the process of legal reasoning, given the automatic nature of cognitio n-emotion-reasoning-motivation integration. My second objective was to use this discussion of distancing devices to outline a new way that law and emotion researchers might think about judicial displays of emotion in written language: namely, via the appraisal framework, a qualitative, linguistic methodology attending to the expression of emotion, attitude, and stance.102 While this methodology could not readily be used to make claims about judicial experience of emotion, it can be used to make claims about judicial displays of emotion in data that researchers will virtually uniformly have access to: judicial language use in judgments. In consequence, I hope that it provides a helpful methodological base that might be developed in future.

REFERENCES Abrams, Kathy, and Hila Keren. ‘Who’s Afraid of Law and the Emotions?’ Minnesota Law Review 94, no. 1 (2010): 1997–2074. Alba-Juez, Laura. ‘Emotion and Appraisal Processes in Language’. In The Construction of Discourse as Verbal Interaction, edited by Maria de los Angeles Gomez Gonzalez and J. Lachlan MacKenzie, 227–50. Amsterdam: John Benjamins, 2018.

Scherer, ‘What are Emotions?’ Frijda et al., ‘The Duration of Affective Phenomena.’ 102 Martin and White, The Language of Evaluation. 100 101

340  Research handbook on law and emotion Alder, John. ‘The Sublime and the Beautiful: Incommensurability and Human Rights’. Public Law 4 (Winter 2006): 697–721. Bandes, Susan. ‘Compassion and the Rule of Law’. International Journal of Law in Context 13, no. 2 (2017): 184–95. Blanchette, Isabelle and Serge Caparos. ‘When Emotions Improve Reasoning: The Possible Roles of Relevance and Utility’. Thinking and Reasoning 19, no. 3–4 (2013): 399–413. Blanchette, Isabelle, ed. Emotion and Reasoning. London: Routledge, 2014. Chiew, Kimberley, and Todd Braver. ‘Positive Affect Versus Reward: Emotional and Motivational Influences on Cognitive Control’. Frontiers in Psychology 2, no. 1 (2011): 279. Coren, Stanley, Lawrence Ward, and James Enns. Sensation and Perception. London: John Wiley, 2003. Crocker, Laura D., Wendy Heller, Stacie L. Warren, Aminda J. O’Hare, Zachary P. Infantolino, and Gregory Miller. ‘Relationships Among Cognition, Emotion, and Motivation: Implications For Intervention and Neuroplasticity in Psychopathology’. Frontiers in Human Neuroscience 7 (2013): 261. Davidson, Richard. ‘Seven Sins in the Study of Emotion: Correctives from Affective Neuroscience’. Brain and Cognition 52, no. 1 (2003): 129–32. de Jong, Peter and Maartje Vroling. ‘Better Safe than Sorry: Threat-confirming Reasoning Bias in Anxiety Disorders’. In Emotion and Reasoning, edited by Isabelle Blanchette, 22–43. London: Routledge, 2014. Ekman, Paul. ‘An Argument for Basic Emotions’. Cognition and Emotion 6, no. 3–4, (1992): 169–200. Evans, Jonathan. ‘The Heuristic-Analytic Theory of Reasoning: Extension and Evaluation’. Psychonomic Bulletin & Review 13, no. 3 (2006): 378–95. Frijda, Nico, Batja Mesquita, Joep Sonnemons, and Stephanie van Goozen. ‘The Duration of Affective Phenomena or Emotions, Sentiments and Passions’. In International Review of Studies on Emotion, edited by Ken Strongman, 187–225. Chichester: John Wiley, 1991. Fox, Elaine. Emotion Science. London: Palgrave, 2008. Grant, James. ‘The Ideals of the Rule of Law’. Oxford Journal of Legal Studies 37, no. 2 (2017): 383–405. Gross, James, and Robert Levenson. ‘Hiding Feelings: The Acute Effects of Inhibiting Negative and Positive Emotion’. Journal of Abnormal Psychology 106 (1997): 95–103. Halgren, Eric. ‘Emotional Neurophysiology of the Amygdala Within the Context of Human Cognition’. In The Amygdala: Neurobiological Aspects of Emotion, Memory and Mental Dysfunction, edited by John Aggleton, 191–228. New York: Wiley-Liss, 1992. Izard, Carol. Human Emotions. London: Springer, 1977. Johnson-Laird, Philip, and Eldar Shafir. Reasoning and Decision Making. Cambridge: Blackwell, 1994. Kidd White, Emily. ‘Till Human Voices Wake Us: The Role of Emotions in the Adjudication of Dignity Claims’. Journal of Law, Religion and State 3 (2011): 201–39. Lindquist, Kristen, Erika Siegel, Karen Quigley, and Lisa Feldman-Barrett. ‘The Hundred Year Emotion War: Are Emotions Natural Kinds or Psychological Constructions?’ Psychological Bulletin 139, no. 1 (2013): 255–63. Maroney, Terry. ‘The Persistent Cultural Script of Judicial Dispassion’. California Law Review 99, no. 2 (2011): 629–82. Martin, J.R., and Peter White. The Language of Evaluation: Appraisal in English. London: Palgrave, 2005. Mauss, Iris, and Michael Robinson. ‘Measures of Emotion: A Review’. Cognition and Emotion 23, no. 2 (2009): 209–37. Neisser, Ulric. Cognitive Psychology. New York: Appleton Century Crofts, 1967. Nourse, Victoria, and Gregory Shaffer. ‘Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory’. Cornell Law Review 95 (2009): 61. Pena-Sarrionandia, Ainize, Moira Mikolajczak and James Gross. ‘Integrating Emotion Regulation and Emotional Intelligence Traditions: Meta-Analysis’. Frontiers in Psychology 6, no. 160 (2015): 1–27. Pessoa, Luiz. ‘On the Relationship between Emotion and Cognition’. National Review of Neuroscience 9 (2008): 148–58. Pessoa, Luiz. The Cognitive-Emotional Brain: From Interactions to Integration. London: MIT Press, 2013. R (UNISON) v Lord Chancellor [2017] UKSC 51.

Distancing devices and their challenge to judicial emotion realists – so far, yet so near  341 Raz, Joseph. ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’. In Constitutionalism: Philosophical Foundations, edited by Larry Alexander, 152–93. Cambridge: Cambridge University Press, 1998. 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. Roseman, Ira. ‘Structure of Emotions, Motivations and Emotivations: Approach, Avoidance, and Other Tendencies in Motivated and Emotional Behaviour’. In Handbook of Approach and Avoidance Motivation, edited by Andrew Elliott, 343–66. New York: Psychology Press, 2008. Scherer, Klaus. ‘What Are Emotions? And How Can They Be Measured?’ Social Science Information 44, no. 4 (2005): 695–729. Smith, Craig, Kelly Haynes, Richard Lazarus, and Lois Pope. ‘In Search of the ‘Hot’ Cognitions: Attributions, Appraisals, and Their Relation to Emotion’. Journal of Personality and Social Psychology 65, no. 5 (1993): 916–29. Tulkens, Francois. ‘Parity on the Bench: Why? Why Not’. European Human Rights Law Review 6 (2014): 587–95. Wheatle, Se-Shauna. Principled Reasoning in Human Rights Adjudication. London: Bloomsbury, 2017. Zipursky, Benjamin. ‘DeShaney and the Jurisprudence of Compassion’. New York University Law Review 65 (1990): 1101–47.

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

INTRODUCTION Emotions have been shown to structure different criminal justice processes – from arrest and charging, to prosecution, determinations of guilt, and sentencing and release.1 This chapter scrutinizes the premise that law is ‘unemotional’ or ‘emotionless’ by considering the ways in which emotions configure the contemporary moralized AIDS panic as it is expressed vis-à-vis the criminalization of HIV nondisclosure. I consider how deeply-felt cultural emotions toward HIV, such as fear and disgust, are connected to the emotions that underscore punitive governmentalities, such as vengeance, anger, and retribution, and thus to HIV criminalization efforts. I do so by utilizing the concept of the ‘legal imagination,’ which asks us to consider how legal actors ‘rely upon culturally shaped processes of [emotional] categorizing, storytelling, and persuasion’2 to convince their audience of the arguments they advance. The legal imagination also considers how journalists, novelists, and literary scholars rely on these same processes and the vocabulary of law in their efforts to engage in narrative construction and legal storytelling. One result of this mutually reinforcing process of storying is that stock stories and tropes are often mobilized in and through law, legal narratives and literary legal imaginings, whether in the courtroom or in culturally produced texts. Writing specifically about how stock stories (or scripts) reproduce racism and white privilege, Bell asserts that they are a ‘set of standard, typical or familiar stories held in reserve to explain racial dynamics in ways that support the status quo’.3 Of course, stock stories and scripts can work to preserve the status quo in relation to other dynamics as well, including those pertaining to gender, class and sexuality among other potential factors. Bell contends that the features or characteristics of stock stories are easily referenced by individuals so much so that they are collectively maintained and are thus culture-defining. Bell’s work on the stock story of the ‘American Dream’ shows how stereotypes about race and class coalesce to produce narratives about hardworking white Susan A. Bandes, ‘Victims, ‘Closure,’ and the Sociology of Emotion’, Law and Contemporary Problems, no. 2 (2009): 1–26; Devon Johnson, ‘Anger About Crime and Support for Punitive Criminal Justice Policies’, Punishment and Society 11, no. 1 (2009): 51–66, Jeffrey G. Murphy, ‘Two Cheers for Vindictiveness’, Punishment & Society 2, no. 2 (2000): 131–43. 2 Anthony G. Amsterdam and Jerome Bruner, Minding the Law: How the Courts Rely on Storytelling, and How Their Stories Change the Ways We Understand the Law and Ourselves (Cambridge, MA: Harvard University Press, 2002), 7. 3 Lee Anne Bell, Storytelling for Social Justice: Connecting Narrative and the Arts in Antiracist Teaching (New York, NY: Routledge, 2010), 29. 1

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Charles Ssenyonga as an HIV sexual predator   343 Americans that shore up narratives about the laziness of Black Americans who continue to disproportionately experience poverty. The same can be said regarding the stock story about the Canadian multicultural mosaic, which advances an ethnocentric view of multiculturalism that fails to consider the continuing impact of settler colonialism. By operating as a norm or standard, stock stories and scripts can be used to neutralize critical dialogue (i.e., that liberal multiculturalism reinforces ethnocentrism and white privilege) and challenges to authority while ‘absolving’ the storyteller of charges of racism, sexism, classism and homo- and transphobia.4 Given how legal and literary actors draw upon these stock stories and tropes in their argumentation, they operate as ‘a powerful medium of cultural communication’.5 Famed Canadian author and journalist June Callwood’s 1995 book, Trial Without End: A Shocking Story of Women and AIDS, documents the case of Charles Ssenyonga, one of the first men to be criminalized for HIV nondisclosure in Canada. Empirically, this chapter takes up Callwood’s book as the object of analysis in order to investigate how emotions are storied in relation to the criminalization of HIV nondisclosure in the Ssenyonga case. Callwood does more than document Ssenyonga’s life in Uganda and after his immigration to Canada; she constitutes his character and criminal subjectivity through an emotional reimagining of his sexual proclivities, HIV denialism, and carelessness towards his sexual partners’ health that shores up support for the problematic construction of Black men (especially African immigrant men) as inherently duplicitous threats to the sexual health and safety of (mostly white) Canadian women.6 Callwood’s literary legal imagining is comprised of three interrelated narratives, what I refer to as the racialized narrative, deception narrative, and victim narrative, which mobilize historic tropes about race, class, gender and sexuality. By situating the book as a settler-colonial text and artefact, I was able to consider how these narratives support the state’s power to criminalize by connecting the audience to the emotional underpinnings of punitive legal imaginings that demand retribution yet are often devoid of context. This kind of analytic work is important because the legal imagination has the power to penetrate and even colonize different arenas, in this case the field of public health, and thus contributes to shaping different fields and professions. For example, the HIV/AIDS and medical service communities must now communicate with their clients/patients by way of law and legal expectations pertaining to (non)disclosure.7 Methodologically, the cultural texts produced via the legal imagination encourage us to talk in and through the language of law and, as I argue in this chapter, via the vocabulary of emotions. The literary legal imagining examined herein is a window on the complainants’ experiences of victimization and is also ‘a source of documentation’ for a series of criminalized events; in this way, it ‘functions as an evidentiary tool for the existence of officially sanc-

Bell, Storytelling, 29–42. Paul J. Heald, Guide to Law and Literature for Teachers, Students, and Researchers, (Durham, North Carolina: Carolina Academic Press, 1998), 8. 6 Jennifer M. Kilty and Katarina Bogosavljevic. ‘Emotional Storytelling: Sensational Media and the Creation of the HIV Sexual Predator’. Crime, Media Culture 15, no. 2 (2018): 1–44; James Miller, ‘African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga’. Sexuality Research & Social Policy 2, no. 2 (2005): 31–50; Thomas Shevory, Notorious HIV: The Media Spectacle of Nushawn Williams, (Minneapolis: University of Minnesota Press, 2004). 7 Jennifer M. Kilty and Michael Orsini. ‘Confessional Technologies and the Will to Disclose: Mobilizing Emotions and Lived Experience in AIDS Service Organizations in Canada’. Sexuality Research & Social Policy 14, no. 4 (2017): 434–44. 4 5

344  Research handbook on law and emotion tioned crime.’8 Mobilizing the legal imagination and narrative analysis techniques (including plot development, character construction, narrator position, events, temporality, and audience) to identify this text’s interconnected narratives and to consider how Ssenyonga was storied involves reflexively generating a different way of knowing that ‘offers the potential to revalorize alternative conceptions of the expression of law.’9 In what follows, I undertake this ambitious goal in order to present an alternative reading of race, gender, class and HIV as they were presented in Callwood’s interpretation of the Ssenyonga case.

THE RACIALIZED NARRATIVE: SETTLER COLONIAL TEXTS AND RACIST IMAGININGS In the opening of Trial Without End, June Callwood sets the tone for the ‘through narrative’10 that she weaves throughout the book – that Charles Ssenyonga, already deceased due to the ravages of AIDS, was a dangerous sexual predator to be feared. While Callwood was an early supporter of HIV/AIDS activism (even founding Casey House, a Toronto AIDS hospice-turned-hospital), her text engages tropes of Black sexuality that reveal how deeply entrenched settler colonial mentalities are – even for progressive writers. This chapter seeks to demonstrate how even the most well-intentioned literary legal imaginings cannot be truncated from their colonial roots. This kind of analysis requires moving beyond identifying the claims that Callwood advances towards an understanding of how those claims come to work upon the reader,11 which I contend occurs by way of the intensely emotional underpinnings of the story’s main narratives. Given that Canada is a settler colonial state, Canadian journalists, authors and scholars must endeavour to consider the role that the engrained national project has on the ways we narrate social, political and legal histories. To do so, we must question the role that our own whiteness plays in shaping how we investigate, analyse, and write these histories.12 Callwood does not reflect on her own whiteness or how it shaped the legal imaginings she crafts about the Ssenyonga case. There are very few points in the book where Callwood explicitly mentions race, and at each turn she dismisses out of hand the very notion that race was a factor in the formal legal imagining, media reimagining or her literary narrativization of the man or his criminal case. Chris Cunneen, ‘Postcolonial Perspectives for Criminology’ in What is Criminology, eds, Mary Bosworth and Chris Hoyle (Oxford: Oxford University Press, 2011), 260. 9 Cunneen, ‘Postcolonial,’ 259. 10 The through narrative is the overarching or main narrative that connects and is supported by each narrative segment or thread that is woven throughout the text. It reflects the author’s efforts to draw out and focus on certain aspects or issues among many in order to connect each particular event to the overall storyline and themes being explored. While the plot may include different details and claims, the author edits, frames, and positions them so as to advance the through narrative. Charissa Crépault and Jennifer M. Kilty. ‘Mainstream Media and the F-Word: Documentary Coherence and the Exclusion of a Feminist Narrative in the Fifth Estate Coverage of the Ashley Smith Case’. Canadian Journal of Law and Society 32, no.1 (2017): 270. 11 Amsterdam and Bruner, Minding the Law; Heald, Guide to Law. 12 Bridget Byrne, White Lives: The Interplay of ‘Race,’ Class and Gender in Everyday Life (London: Routledge, 2006), 1–14 and 42–71; Cunneen, ‘Postcolonial,’ 249–70; Steve Garner, Whiteness: An Introduction (New York: Routledge, 2007), 1–12. 8

Charles Ssenyonga as an HIV sexual predator   345 The Ssenyonga case could have been exceptional for another reason: the accused was a black man. Though relations between the races in the nineties are at a sensitive stage . . . the long investigation, the arrest, and several trials and hearings involving Charles Ssenyonga seemed to most observers to be mercifully free of racism.13 Significantly, the media never commented on Ssenyonga’s colour. . . . no mention was made of the fact that he was black and most of the people he infected were white.14

These excerpts are significant for a number of reasons. First, they reflect the few instances where Callwood discusses the potential role that race and Ssenyonga’s Blackness could have played in the court of public opinion. Second, her suggestions that the case was ‘free of racism’, that the press did not report that Ssenyonga was Black, and that the media would have covered the case regardless of his race are completely unfounded. The news media repeatedly referred to Ssenyonga as a Ugandan national, immigrant or refugee, and often used photographs of him15 to shore up fear of the racialized Other. Not only does the media disproportionately cover cases involving Black men, ‘almost half (49% [820/1680]) of all coverage since 1989 is concentrated on just four racialized people, all of whom are African-Caribbean or Black immigrant men: Charles Ssenyonga, Trevis Smith, Johnson Aziga and Clato Mabior’.16 Third, Callwood’s intimation that the media treated the case with care because they did not directly report that Ssenyonga was Black, despite the fact that most of his victims were white, not only illustrates her understanding that this kind of detail is fodder for sensational media coverage,17 it also shows no reflexive consideration of how her own narrative imagination of this case underscores longstanding settler colonial fears of miscegenation.18 Tropes extolling the dangers of interracial relationships are prominent in historical government documents and trials involving mixed race victims and perpetrators – from depictions of Chinese immigrants seducing white women into drug addiction to the hyper-sexual depictions of Indigenous Peoples.19 These tropes help to sustain deeply problematic, hierarchical divisions that are structured along raced, gendered and classed lines and that are underpinned by emotions – namely, fear, anger and disgust toward the racialized Other that has transgressed the boundaries of his place in the settler colonial state. When these emotions meld in the hearts and minds of members of the dominant group they effectively sow the seed for more punitive responses to the offending behaviour; this point is well evidenced throughout Callwood’s book, in which she supports law’s colonization of public health by way of criminalizing HIV nondisclosure. Finally, there are several points in the book where Callwood claims to speak for ‘Ugandans’ living in Canada, as though the entire community was aware of and felt the same way about

Callwood, Trial Without End, vii. Callwood, Trial Without End, 121. 15 Eric Mykhalvoskiy, Colin Hastings, Chris Sanders, Michelle Hayman, and Laura Bisaillon, Callous, Cold and Deliberately Duplicitous: Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers. Report, Toronto, 2016, 7. 16 Mykhalvoskiy et al., Callous, 7. 17 Kilty and Bogsavljevic, ‘Emotional Storytelling,’ 1–44. 18 Heather Worth, Cindy Patton and Diane Goldstein, ‘Introduction to Special Issue Reckless Vectors: The Infecting “Other” in HIV/AIDS Law’, Sexuality Research & Social Policy 2, no. 2 (2005): 7. 19 Susan Boyd, Busted: An Illustrated History of Drug Prohibition in Canada (Winnipeg: Fernwood Press, 2017); Sherene Razack, ‘Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George’, Canadian Journal of Law & Society 15, no. 2 (2000): 91–130. 13 14

346  Research handbook on law and emotion Ssenyonga, his actions and the criminal trial. While referring to the perspective of ‘Ugandans’, she never describes how she came to be able to make these claims, how she accessed the Ugandan community, or the number of people to whom she spoke. That a white author speaks with such authority about what an entire community of people of colour thought and felt about this case exemplifies the historic ethnocentricity of settler colonial narratives about Indigenous and non-Anglophone or Francophone immigrants.20 Callwood’s failure to engage in a critical discussion of race, her own whiteness, and the whiteness of the legal and media actors tied to this case is unsurprising. Whiteness is often an absent presence, something that is obvious but rarely named, analysed or discussed.21 However, if we accept Fanon’s position that ‘it is the settler that brings the native into existence’,22 we can come to understand how Callwood’s literary legal imagining of this case brought Charles Ssenyonga into existence as a racialized criminal figure to be feared. I contend that Callwood did this by way of a racialized narrative composed of three threads that imagine Ssenyonga as an exotic African Other and sexual predator in denial about his HIV status. Ssenyonga as the Exotic African Other Callwood spends considerable effort throughout the book underscoring how different Ssenyonga was from white mainstream Canadian society. She does this in a number of ways; one of the most important is emphasizing the rarity and lethality of the HIV strain that he purportedly carried – a deadly African strain specific to Uganda that had not yet been introduced to the North American gene pool: The virus that infected Ssenyonga’s sexual partners was . . . something new in the known world of HIV. . . Although many others in North America may carry the same HIV-I virus, the Canadians infected by Ssenyonga are the only people on the continent whose DNA has been examined and identified as this African subtype-A virus.23

As Worth, et al.24 contend, colonial rhetoric linking HIV/AIDS to Africa is not new, and ‘the fact that the accused is African is used to indicate a priori an excessive and lethal sexuality and to position Africa itself as a deviant and viral continent and as the source and cause of AIDS’. Building on this narrative of viral uniqueness, Callwood cast Ssenyonga as an exotic Other by suggesting that he manipulatively spoke with an unusually heavy ‘African accent’ to accentuate his Ugandan heritage while testifying at trial – as though all African people speak with the same accent: He opened with an apology to the judge. ‘English is my second language . . . Sometimes I am misunderstood.’ [The complainants claimed] they had never heard Ssenyonga speak with such a thick African accent. ‘Distance’ came out ‘distawns,’ ‘reserves’ was ‘resairves,’ and ‘size’ came out unintelligibly ‘sayze.’ Bruce Long was not surprised. He had been preparing his cross-examination Byrne, White Lives, 138–67; Cunneen, ‘Postcolonial’, 249–70; Garner, Whiteness, 48–62; Razack, ‘Pamela George’, 91–130; Lorenzo Veracini, ‘Settler Colonialism: Career of a Concept’, Journal of Imperial and Commonwealth History 41, no. 2 (2013): 313–33. 21 Byrne, White Lives, 1–14; Garner, Whiteness, 34–47. 22 Veracini, ‘Settler Colonialism’, 320. 23 Callwood, Trial Without End, 237–8. 24 Worth et al., ‘Introduction’, 8. 20

Charles Ssenyonga as an HIV sexual predator   347 ‘from day one’ in the expectation that Ssenyonga would play a simple country boy who had trouble understanding English . . . His blackness in a room peopled with only whites, . . . emphasized his exotic location.25 (italics added)

This passage reinforces an ethnocentric fascination with Ssenyonga’s foreignness, as though it is exceptional that a Black African could speak eloquent English. Callwood’s narrative also invokes magical thinking in crafting a legal imagining that Ssenyonga’s ‘magnetism’ cast a spell on the courtroom. To break the spell, Callwood re-centres the reader by referencing the complainants’ emotional reactions, writing that Gauthier was ‘annoyed’ and ‘disgusted’ with Ssenyonga’s testimony, stating that ‘he wore a turban because it made it look like we were dumb chickies who fell for a man just off the boat’;26 and ‘He’s acting like some kind of bushman… He’s trying to look like someone from another culture. That’s not the man I met in a laundry room wearing a $200 sweater.’27 Yet, Ssenyonga was from another culture; he had emigrated to Canada as an adult to escape the dictatorship and civil war that had engulfed his home country of Uganda, as well as Kenya, where he was attending university. The suggestion that Ssenyonga was exaggerating his accent (Callwood claims that the accent diminished on day two of his testimony) as part of his defence strategy also fails to consider how the stress of the trial and media coverage would have affected his emotions and his elocution, particularly under the strain of testifying and cross-examination. Finally, Callwood crafted a narrative of Ssenyonga’s Otherness by exoticizing his allure. At times, these descriptions read almost like praise, such as when she describes how Ssenyonga charmed so many women. Using words like enthralling, mesmerizing, magnetic, graceful, exotic, eloquent, worldly, knowledgeable (about politics, culture, and philosophy), passionate, absorbing, and intense to describe Ssenyonga’s character, intellect, and general appeal, Callwood casts him as exceptionally alluring to women, which also helped to position the complainants as justifiably fascinated by and drawn to him. Callwood hypothesizes that Ssenyonga was particularly attracted to white women because this was unheard of and even forbidden in most parts of Uganda.28 Not only does this narrative exoticize and even romanticize the sexual coupling of a white Canadian woman with a Black African man and highlight its quixotic nature, it reinforces the dichotomy between ‘us’ (white Canadians) and ‘them’ (Black and/or racialized Others, who are to be feared). These passages also reflect settler colonial and white supremacist narratives that cast women as inherently naïve and at risk of falling prey to the sexual advances of dangerous men, narratives that underscore the need for masculinist protectionism and shore up patriarchal power. In this light, Ssenyonga’s relationships with the complainants are no longer characterized as casual sexual relationships between two consenting adults. Instead, the complainants’ whiteness, and Callwood’s whiteness by proxy, become the arbiter of Canadian inclusivity, acceptance and racial tolerance, and Ssenyonga’s exotic Blackness helps fashion that ethnocentric narrative of white Canadian multicultural liberality. This framing, however, is merely the set up for the

Callwood, Trial Without End, 320–21. Callwood, Trial Without End, 327. 27 Callwood, Trial Without End, 341. 28 Callwood, Trial Without End, 33. 25 26

348  Research handbook on law and emotion ‘through narrative’29 that Ssenyonga’s charm was a mask for his sexual recklessness and a tool he used to manipulate women. Ssenyonga as Sexual Predator Callwood narrativizes Ssenyonga as a sexual predator who used charm, duplicity, and virile sexuality to seduce his prey to their death. Callwood repeatedly claims that Ssenyonga’s charm and the ‘powerful sexuality he projected’30 drew many women to him – the rhetorical oeuvre for constituting him as promiscuous, as he often managed multiple sexual partners at a time. She references the complainants who asserted that he was a spectacular lover who had ‘amazing stamina’31 – a sexual ‘powerhouse’32 with an insatiable sexual appetite who was always ready to perform. One of the main purposes of art in all its forms, including the literary, is to arouse emotions in the audience. Callwood’s emotional storying emphasizes Ssenyonga’s sexual prowess, which while initially serving to titillate the reader is quickly mobilized to move the plot forward by evoking shock and fear of the behavioural and physical attributes of this sexual ‘powerhouse’. By describing Ssenyonga as sexually insatiable, which is a colonial trope of Black masculinity,33 Callwood initiates the construction of the ‘sexual predator’ thread of her broader racialized narrative. To narrate a Black immigrant man as a sexual predator illustrates Callwood’s invocation of settler colonial stock stories that rouse discomfort with interracial sexual relationships and elicit an ominous sense of dread regarding the sexual safety and purity of white Canadian women in the reader. Following Ahmed’s assertion that emotions are cultural practices,34 that Callwood’s text taps into enduring cultural anxieties about educated, middle class white women being duped into sex by a dangerous man effectively works to intimate that all women are potentially ‘at risk’. Callwood then deftly bridges the rhetoric of Ssenyonga’s viral Otherness with the aged trope about the exceptional sexual stamina and girth of Black men: ‘What is fascinating and frightening about Ssenyonga,’ Cheryl Wagner35 says, ‘is that he managed to infect every woman with whom he had unprotected sex. . . . Either his virus was shedding, multiplying like crazy, or his strain . . . was especially contagious.’ Dr. Iain Mackie speculates that the reason Ssenyonga infected women so readily was that intercourse lasted so long. Ssenyonga was able to sustain an erection for hours. Also, Ssenyonga’s penis was larger than average. Did this result in fatal rips to vaginas?36

Crépault and Kilty, ‘F-Word’, 270. Callwood, Trial Without End, 3. 31 Callwood, Trial Without End, 4. 32 Callwood, Trial Without End, 109. 33 Busi Makoni, ‘Labeling Black Male Genitalia and the ‘New Racism’: The Discursive Construction of Sexual Racism by a Group of Southern African College Students,’ Gender and Language 10, no. 1 (2016): 50. 34 Sara Ahmed, The Cultural Politics of Emotion (London: Routledge, 2004). 35 Cheryl Wagner was the primary care physician for several of the complainants. It was she who connected the cases of her patients and helped identify Ssenyonga to public health and eventually criminal justice authorities. 36 Callwood, Trial Without End, 61. 29 30

Charles Ssenyonga as an HIV sexual predator   349 This query fails to recognize that vaginal elasticity permits expansion to accommodate intercourse and childbirth and the fact that the complainants denied they experienced any vaginal trauma. Instead, it positions Black male sexuality as animalistic, violent, and threatening to the safety of white women. This narrative reifies ‘racist ideologies of black male bodies during the colonial period’ that Makoni37 identifies as a form of sexual racism, where ‘the use of body part lexis’,’and in this case Ssenyonga’s HIV status, is used ‘to synecdochically refer to the whole person’. Callwood fuses the combined attributes of Ssenyonga’s Blackness, African heritage, and HIV positive status to craft a narrative that he was a ‘dashing lothario’38 who knowingly spread HIV. Fear of the Black sexual predator is deeply engrained in Western cultural characterizations of Black men, fortifying white supremacy and the colonial project39 within the Canadian consciousness. Such a racialized framing is unsurprising as it reflects ‘broader shared assumptions and practices of otherization upon which more extreme or violent forms of racism rest’.40 HIV Denialism and Shame The last strand of Callwood’s racialized narrative reveals a conflicted storying of HIV denialism that she uses to communicate Ssenyonga’s ‘backwardness’ and his ignorance of Western medical knowledge and scientific thought about HIV/AIDS. While at times she seems to accept that Ssenyonga was in active denial about his HIV status, Callwood expresses little sympathy – let alone empathy – for the shame that underpins the denial of one’s HIV status. Shame negatively impacts people living with HIV in a number of ways, including dissuading disclosures about sexual history to clinicians; creating a barrier to remaining in treatment; avoiding STI testing; avoiding disclosure to sexual partners; and prompting desire to withdraw from others.41 Callwood suggests that part of the defence strategy was to cast Ssenyonga as suffering from post-traumatic stress disorder (PTSD) from the wartime violence he witnessed and narrowly escaped in Uganda and Kenya. According to the psychologist that testified for the defence, ‘[When he had sex with] complainants . . . he was not aware he could harm them.’ Having sex ‘served as a confirmation that he was normal.’ . . . Ssenyonga’s denial of his HIV status . . . was a classic symptom of the disorder [PTSD].’42 By suggesting that Ssenyonga could not cope with the stress of his diagnosis and the PTSD he experienced, the defence was far more likely to conjure sympathy than Callwood’s earlier imagining of Ssenyonga as a man presenting himself as a simple immigrant who struggled with English. Alternatively, Callwood cites Ssenyonga’s court testimony to show how he linked his denial of HIV-positive status to his view of Canadian racism: [H]e felt Canadians were ignorant about Africa, and had ‘almost a racist kind of attitude’ [including stories about widespread HIV in Africa]. . . . When Dr. Iain Mackie and Dr. Nancy Reid told him

Makoni, ‘Sexual Racism’, 48 and 50. Miller, ‘Ssenyonga’, 37. 39 Makoni, ‘Sexual Racism’, 48 and 50. 40 Gary Kinsman, ‘Vectors of Hope and Possibility: Commentary on Reckless Vectors’, Sexuality Research & Social Policy 2, no. 2 (2005): 103. 41 Phil Hutchinson, Phil and Rageshri Dhairyawan, ‘Shame, Stigma, HIV: Philosophical Reflections’, Medical Humanities 43, no. 4 (2017): 225. 42 Callwood, Trial Without End, 315–16. 37 38

350  Research handbook on law and emotion he had HIV symptoms, he thought they were making a presumption based on his being African, . . . ‘I did not see myself as developing AIDS…The categories I had heard about were gay men and Haitians….’43

Given the time that Callwood spends Othering Ssenyonga throughout the book, this passage is particularly poignant. Not only does it showcase how engrained HIV stigma and stereotypes are, even for people living with HIV/AIDS, it illustrates how profoundly Ssenyonga felt his Otherness. Ssenyonga further testified that he did not eat monkeys while living in Uganda and that he did not see those who did become ill or die as a result of HIV infection. These statements speak to how ignorant he perceived Canadians to be about Africans, as if Canadians believed they were so foreign as to be seen as backwards and uncivilized – a common trope of settler colonial discourses.44 Callwood rejected the possibility that Ssenyonga’s enculturation and experiences as an African immigrant to a white settler colonial state impacted his ability to accept and publicly disclose that he was HIV-positive. Instead, she proposes a simpler explanation ­– that he callously lied out of self-interest. To do so, Callwood refers to the testimony of psychiatrist and HIV specialist Dr. Kenneth Citron, who stated that Ssenyonga’s behaviour was not only ‘atypical’, but that it indicated an active form of HIV denialism. Citron’s argument was that, if Ssenyonga truly believed he was HIV-positive and that the HIV virus causes AIDS, he would have changed his behaviour by consistently using condoms and disclosing his serostatus. That he did not alter his behavior was taken as evidence that Ssenyonga actually engaged in deception, not denial, which Dr. Citron linked to a lack of remorse, demonstrated by his persistent and deliberate lying about his HIV status, bending the truth for personal gain, and his failure to feel any guilt at all about these actions.45 Finally, near the end of the book, Callwood describes the pivotal moment in the trial when the Crown prosecutor asks Ssenyonga if he understood and accepted that HIV was fatal:46 ‘Do you accept that you have HIV and it is a fatal condition?’ The courtroom was very still while Ssenyonga considered his answer. . . . ‘The information I have is that I have HIV… but death might not necessarily be the result of having the virus.’ Ssenyonga, in truth, knew that he had passed into . . . full-blown AIDS.47

This passage shows how both the Crown prosecutor and Callwood herself conflate HIV and AIDS, which contributes to HIV stigma.48 In that sense, Ssenyonga was correct – HIV is not a fatal condition, although AIDS is. Callwood’s description of the hush that fell over the courtroom as they waited for Ssenyonga’s reply builds tension for the reader, who by this point in the book is waiting for the climactic resolution to the author’s conflicting narrative of Callwood, Trial Without End, 323. Cunneen, ‘Postcolonial,’ 252-3; Razack, ‘Pamela George,’ 91-130; Veracini, ‘Settler Colonialism,’ 314. 45 Callwood, Trial Without End, 367. 46 The trial occurred in 1993, prior to the development of the life-saving triple Anti-Retroviral Treatment (ART) that transformed HIV into a chronic manageable condition for those with consistent access to medication. 47 Callwood, Trial Without End, 325 48 Richard Parker and Peter Aggleton, ‘HIV and AIDS-Related Stigma and Discrimination: A Conceptual Framework and Implications for Action’, Social Science and Medicine 57 (2003): 13–24. 43 44

Charles Ssenyonga as an HIV sexual predator   351 HIV denialism. The last line is especially important here; Callwood’s statement definitively positions his denialism not as the result of psychological trauma or perceptions of Canadian racism, but rather as an act of deception and lack of remorse that reveals the ‘true’ nature of his manipulative character.

THE DECEPTION NARRATIVE: A DECEITFUL, MANIPULATIVE, AND CALLOUS NARCISSIST Callwood situates Ssenyonga as deeply cognizant of his Otherness and as actively performing (in the dramaturgical sense) as a moral person to facilitate his pursuit of unprotected sexual relationships. In the opening chapter, she accuses Ssenyonga of being narcissistic, vain, and deceitful to the point that he adeptly alters his presentation of self to suit different contexts and people to charm them in ways that will be to his advantage, whether in terms of financial assistance, garnering sympathy, or securing a new sexual conquest.49 In the best-case scenario, this legal imagining constitutes Ssenyonga as a reckless vector of disease;50 in the worst-case scenario, it suggests that he exhibited an active intent to infect women. If Ssenyonga had the mental forethought to harm women, then his actions were not the result of HIV denialism rooted in shame and fear but were instead reflective of a criminal mens rea51 that confirmed his legal culpability beyond a reasonable doubt. Callwood describes two of Ssenyonga’s weapons of choice: his abilities to charm and deceive women and to masquerade as sincere and sympathetic. Notably, superficial charm is a primary character identifier of psychopathy, and psychopathic subjects are said to be unable to feel and express remorse in an authentic manner.52 Subsequently, Ssenyonga’s characterization as a remorseless sexual predator underscores Callwood’s deception narrative. Throughout the book, Callwood attempts to strengthen this narrative by suggesting that the devious Ssenyonga not only duped individual women, but was also capable of conning his lawyer, Fletcher Dawson, and a series of medical professionals, including his family physician, the leading AIDS specialist in the London area, the physician who conducted his blood test, and the public health nurse who tracked his case from the beginning and met with him almost monthly.53 The Crown attorney [began with questions about when Ssenyonga lied to Fletcher Dawson about being celibate.] ‘Would you characterize that as manipulation?’ . . . Ssenyonga said carefully, ‘I would more characterize it as deceit . . . In hindsight it was part of the whole feeling that this can’t be true.’ [Long asked how that differed from manipulation.] ‘Manipulation takes a lot more mental presence than I had,’ Ssenyonga replied evenly. [Long asked Ssenyonga if he lied despite being

Callwood, Trial Without End, 24. Kinsman, ‘Reckless Vectors’, 99–105. 51 Under Canadian law there is no need to prove mens rea, or the intent to harm, in HIV nondisclosure cases; a conviction can be secured simply by proving that the individual did not disclose and/ or failed to use a condom. I make this point to exemplify how Callwood’s narrativization emphasizes Ssenyonga’s callous duplicitousness. 52 Richard Weisman, Showing Remorse: Law and the Social Control of Emotion (Farnham, UK: Ashgate Publishing Ltd., 2014). 53 Callwood, Trial Without End, 74. 49 50

352  Research handbook on law and emotion confused. Ssenyonga said,] ‘You are incorrect. Your terms imply some kind of constructive manipulation. . . . I just couldn’t believe that this was happening.’54

Ssenyonga attempts to distinguish deceit, which he qualifies as a lie of omission resulting from fear, shock and other emotions related to his impending prosecution, from manipulation, which he describes as requiring the will to exploit others. Callwood scorns this distinction as merely the latest tale of woe spun by a master manipulator. Callwood’s deception narrative rests on casting Ssenyonga as inherently narcissistic, a noted feature of psychopathy.55 These configurations of subjectivity—as a narcissist and psychopath—advance, and indeed require, character imaginings of Ssenyonga as unemotional, cold and callous: [there was] an infantile, egocentric view that the world revolved around Charles Ssenyonga. An indulged son, . . . he was not accustomed to being held accountable for bad behaviour. His carelessness about financial responsibilities, his habit of lying to avoid criticism, his vanity and preening ways all suggest a man whose emotions had not developed beyond an elementary stage of narcissistic self-gratification. And when he clearly was behaving badly, he had a talent for rising above self-blame. Added to this was Ssenyonga’s driven need to imagine himself healthy and invincible. . . . that unpleasant reality, such as being HIV positive, could almost vanish from his mind.56

This excerpt constitutes Ssenyonga as completely self-centred, juvenile, emotionally stunted, and incapable of caring about how his actions affect others. Similarly, Callwood quotes defence lawyer Fletcher Dawson, who noted Ssenyonga’s reluctance to undergo psychological testing was not only evidence of his narcissism, but also of his potential psychopathy, which is again mobilized to portray him as an emotionless and reckless vector: if someone were to deliberately do this, . . . there’s got to be a screw loose. You wouldn’t expect a normal person to engage in that kind of activity for so long, after so many warnings. There had to be some illness, or some problem that was distorting his perceptions. Or even that he might be a psychopath.57

Following the feeling rules and norms58 regarding appropriate sober courtroom emotional displays59 (e.g., bowed head, timing and volume of tears released, etc.), Callwood quotes Crown prosecutor Bruce Long, who described Ssenyonga’s facial expressions and body language while on the stand as an affectless performance as being cold, aloof, and devoid of emotion – even throughout the complainants’ emotionally heart-wrenching testimonies. Callwood reports that Long failed to comprehend this lack of emotional response to the victim’s testimonies, as though he refused to believe that he was the reason for their plight.60 Ssenyonga went further than failing to express emotion; he stated that he did not have a ‘satisfactory explanation why’

Callwood, Trial Without End, 333. Weisman, Showing Remorse, 47–74. 56 Callwood, Trial Without End, 65. 57 Callwood, Trial Without End, 247. 58 Arlie Russell Hochschild, ‘Emotion Work, Feeling Rules, and Social Structure’, American Journal of Sociology 85(3) (1979): 551–75. 59 Jennifer M. Kilty and Sylvie Frigon, The Enigma of a Violent Woman (London: Routledge, 2016), 86–109; Weisman, Showing Remorse, 24–46. 60 Callwood, Trial Without End, 324. 54 55

Charles Ssenyonga as an HIV sexual predator   353 he failed to use condoms61 and that he had never contemplated the ‘impending deaths of the six people he had infected with HIV’.62 Callwood described this lack of care for his sexual partners as one of the Crown’s most convincing arguments63 because, to her, it encapsulated Ssenyonga’s narcissism and lack of remorse, or even concern for his former lovers: ‘It was odd that such an intelligent man would not appreciate that a show of remorse would be to his advantage. Instead he spoke of his own distress and was not only perplexed but indignant that women he had infected would yell at him.’64 Imagining Ssenyonga as a deceptive sexual predator reflects historic accounts of colonial rule that demanded the subordination of colonized subjects and the regulation of the intimate. As poststructuralist historian Ann Stoler65 contends, when colonized subjects wilfully subordinate imperial citizens through sex (forced or consensual), it shrouds those citizens with a deeply entrenched cultural shame and has the power to rouse feelings of anger, resentment and revenge in their contemporaries. One may argue that these feelings are what led Callwood, perhaps unconsciously, to craft such a punishing narrative about Ssenyonga’s character – imputing him with the intent to infect and the lack of concern or affect for the harm he caused. Moreover, imagining Ssenyonga as an unrepentant sexual predator requires a contrasting representation of the complainants. Callwood’s victim narrative positions the complainants according to tropes of female victimhood and sexuality, including naivete and hopeless devotion to a charismatic and exotic figure, that together emphasize the horror of tainting ‘innocent’ women with HIV.

THE VICTIM NARRATIVE: FEMININE PURITY AND THE HORROR OF HIV To support her narrativization of Ssenyonga as an ‘AIDS assassin’,66 Callwood mobilizes stock scripts to story the victim narrative. Amsterdam and Bruner67 contend that narratives have tellability only when ‘some script has been breached or threatened with violation’. The stock script that was breached in this case relates to the violation of the complainants’ sexual purity, all but one of whom was white. Callwood emphasizes that most of the women were ‘good girls’ who did not sleep around and practiced safe sex; subsequently, she stresses that they were fooled by Ssenyonga’s charisma. One of the complainants, Jennifer, was described as a sexual prude who had been celibate for half a year when she became involved with Ssenyonga, while another complainant, Francine, was portrayed as exceedingly health conscious and concerned about venereal disease. Callwood stresses that it was Ssenyonga’s lies

Callwood, Trial Without End, 324. Callwood, Trial Without End, 335. 63 Callwood, Trial Without End, 345. 64 Callwood, Trial Without End, 324. 65 Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley, CA: University of California Press, 2002), 41–78. 66 Fiona H. McKay, Samantha L. Thomas, Kate Holland, R. Warwick Blood, and Susan Kneebone, ‘“AIDS Assassins”: Australian Media’s Portrayal of HIV-Positive Refugees Who Deliberately Infect Others’, Journal of Immigrant and Refugee Studies 9, no. 1 (2011): 20. 67 Amsterdam and Bruner, Minding the Law, 121. 61 62

354  Research handbook on law and emotion about having just been checked and found to be in excellent health that persuaded Francine to engage in sex with him without a condom.68 It is noteworthy that the one Black complainant was often described as being a poor single mother, loud, short-tempered, volatile, threatening to the defence counsel, and as having engaged in prostitution. In this way there was a racialized and emotive hierarchy to the victim narrative, although at no time does Callwood suggest that any one woman was more or less responsible or deserving of their treatment from Ssenyonga. I acknowledge this to showcase again how Callwood’s whiteness exists in the text as an absent presence, and how the text is inhabited by settler-colonial discourses that operate at the intersection of race, class and gender. Here, the narrative works to induce the reader’s sympathy and empathy for the white women cast as ‘good girls’ while encouraging feelings of indifference towards the Black complainant because of her engagement in sex work and brash temperament. While she casts the women as inexperienced and vulnerable, Callwood simultaneously constructs them as independent and accomplished, even feminist – a narrative technique that further underscores how much Ssenyonga took from his victims – and by implication, society. The victim narrative problematically affords little to no agency to any of the women. At trial, Ssenyonga’s lawyer countered similar characterizations by mobilizing the all-too-common sexual assault defence strategy of slut-shaming and victim-blaming,69 suggesting that some of the complainants ‘hotly pursued’ the defendant and thus were partially responsible for having contracted HIV.70 Sexual assault victims report that this strategy is shame-inducing and traumatizing,71 something Callwood acknowledges in her description of how the complainants responded to this line of questioning. Callwood reports that the complainants claimed to have hated the defence’s direct and persistent questions about their sexual relationships with Ssenyonga because it made them feel like they were on trial and that their character was being tarnished by suggestions that they were loose women. In effect, the defence’s questions made the complainants feel like they were being characterized as sluts in open court, despite the fact that many of them claimed to have had few sexual partners.72 At this point, it is worth noting Callwood’s submission that the women who testified deserved commendation for acting in the best interests of society.73 The author actively narrativizes the complainants as moral do-gooders, clearly sympathizing with how difficult the trial was for them. She goes to great lengths to humanize the women, using their plight and colonial stock scripts regarding the insatiable sexual appetite of Black men to invoke a sympathetic and even an empathic emotional response in the reader. To do this, Callwood employs a number of strategies: she emphasizes her disgust that innocent women were exposed to HIV and details how the women were horrified and felt compelled to keep their HIV status secret to prevent their loved ones from experiencing the trauma and grief that would accompany disclosure.74 She also explains how some of the complainants reported that they wished they would die Callwood, Trial Without End, 66. Kilty and Bogosavljevic, ‘Emotional Storytelling’; Razack, ‘Pamela George’; Sandra Walklate, ‘Sexual Violence Against Women: Still a Controversial Issue for Victimology?’ International Review of Victimology 20, no. 1 (2014): 71–84. 70 Callwood, Trial Without End, 182. 71 Walklate, ‘Sexual Violence’, 71–84. 72 Callwood, Trial Without End, 125. 73 Callwood, Trial Without End, 170. 74 Callwood, Trial Without End, 14. 68 69

Charles Ssenyonga as an HIV sexual predator   355 quickly to circumvent the shame they felt each time someone learned that they were HIV positive.’75 For example, Callwood cites the testimony of the complainant she called Joan Estrada: ‘Virtually my entire life is a mess,’ she began. . . . ‘I don’t make any new friends. They might get close to me and I don’t want to hurt them when I die . . . . I always wanted to have children, now I can’t . . . I’m twenty-five years old and this should be the prime of my life. And what do I have to face? Death.’ She turned to face Ssenyonga. . . . ‘Look at me, damn you,’ she cried. ‘Are you proud of yourself? How do you feel. . . . How has it affected me emotionally? Irreversibly. Irreparably.’76

This passage reflects the type of content that is commonly present in victim impact statements, which often recount the range of emotions the individual experienced as a result of their victimization.77 Ssenyonga’s death foreclosed the possibility that victims could read their impact statements in court, and thus the opportunity to seek some degree of closure.78 Here, Estrada’s testimony reveals sadness, horror, shame, anger, and despair. This aspect of the narrative helps to provoke empathy in the reader that may lead to greater acceptance of and support for punitive criminal justice responses to people living with HIV who fail to disclose that they are HIV positive to a sexual partner.79

CONCLUSION This chapter considers how Callwood crafts three interrelated narratives to story the case of Charles Ssenyonga, each of which are mobilized to elicit specific emotions in the reader. While HIV/AIDS stigma is well documented,80 and many of these texts have considered the role that race plays in mediatized content, none have situated these racialized constructions as exemplifying the continuity of settler colonial discourses. By paying attention to the role that Callwood’s whiteness played in her literary legal imagining of Charles Ssenyonga, this chapter demonstrates how this imagining was underscored by settler colonial tropes regarding the dangers and thus fear of Black sexuality. The ‘racialized narrative’ produces a legal imagining of Ssenyonga as a dangerous sexual predator, whose strain of HIV was particularly virulent, impervious, foreign, and deadly to the North American immune system. This sensational narrative is mobilized to elicit shock, fear, anger and disgust that the accused would act so recklessly as to knowingly infect the complainants with HIV. Twinning these particular emotions with the racialized narrative showcases the historicity of settler colonial fears of miscegenation and the absent presence of the author’s whiteness in her literary legal imagining of this case. Callwood, Trial Without End, 89. Callwood, Trial Without End, 281–2. 77 Bandes, ‘Victims, Closure’, 1–26. 78 Bandes, ‘Victims, Closure’, 1–26. 79 Kilty and Bogosavljevic, ‘Emotional Storytelling’, 34; Kilty and Orsini, ‘Confessional Technologies’, 434–44. 80 Lynne Duffy, ‘Suffering, Shame, and Silence: The Stigma of HIV/AIDS’. JANAC 16, no. 1 (2005): 13–20; Hutchinson and Dhairyawan, ‘Shame, Stigma, HIV’, 225–30; Kilty and Bogosavljevic, ‘Emotional Storytelling’, 1–44; McKay et al., ‘AIDS Assassins’, 20–37; Miller, ‘Ssenyonga’, 31–50; Mykhalvoskiy et al., Callous, 1–64; Parker and Aggleton, ‘HIV/AIDS Related Stigma’, 13–24; Shevory, Notorious HIV; Worth et al., ‘Introduction’, 3–14. 75 76

356  Research handbook on law and emotion The racialized narrative is largely supported by the ‘deception narrative’, which casts the accused as a pathological liar and potential psychopath who felt no remorse for his ‘deceitful’ failure to disclose his HIV status, and little concern for the physical and mental well-being of his sexual partners. To craft this narrative, Callwood stories Ssenyonga as emotionless, cold, callous and aloof – descriptors of psychopathy that shore up the accused’s narrativization as a dangerous sexual predator. These emotions also prompt fear and anger in the reader, who is more likely to support punitive criminal justice responses when the accused shows no remorse.81 Finally, the ‘victim narrative’ serves several purposes. First, it supports the racialized and deception narratives by creating dichotomous characterizations of the accused, who is to be feared, and the complainants, who are constructed in ways that elicit sympathy and empathy in the reader. Yet, oppositional representations are inextricably linked; one does not exist without the other, forever marrying the portrayals.82 Second, this narrative exhibits the author’s deep compassion for the women and her desire to counteract the media’s and the court’s overt woman- and victim-blaming. Third, it stokes the reader’s anger and elicits a more punitive mentality towards Ssenyonga (and, by extension, others accused of HIV-nondisclosure). While Callwood’s stated aim is to ‘help spread the word that AIDS can happen to anyone’,83 her emotional (re)storying of Charles Ssenyonga does much more. It exemplifies the power of race and gender in the production of cultural texts, and the ways in which literary agents contribute to crafting emotional narratives that have the power to shape public discourse – in this case, towards support for punitive criminal justice responses to HIV nondisclosure.

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Charles Ssenyonga as an HIV sexual predator   357 Garner, Steve. Whiteness: An Introduction. New York: Routledge, 2007. Heald, Paul J. Guide to Law and Literature for Teachers, Students, and Researchers. Durham, North Carolina: Carolina Academic Press, 1998. Hochschild, Arlie Russell. ‘Emotion Work, Feeling Rules, and Social Structure’, American Journal of Sociology 85(3) (1979): 551–75 Hutchinson, Phil and Rageshri Dhairyawan. ‘Shame, Stigma, HIV: Philosophical Reflections’. Medical Humanities 43, no. 4 (2017): 225–30. Johnson, Devon. ‘Anger about crime and support for punitive criminal justice policies.’ Punishment and Society 11, no. 1 (2009): 51-66. Kilty, Jennifer M. and Katarina Bogosavljevic. ‘Emotional Storytelling: Sensational Media and the Creation of the HIV Sexual Predator’. Crime, Media Culture (2018). https://​doi​.org/​10​.1177/​ 1741659018773813, accessed 13 January 2021. Kilty, Jennifer M. and Sylvie Frigon. The Enigma of a Violent Woman. London: Routledge, 2016. Kilty, Jennifer M. and Michael Orsini. ‘Confessional Technologies and the Will to Disclose: Mobilizing emotions and lived experience in AIDS service organizations in Canada’. Sexuality Research & Social Policy 14, no. 4 (2017): 434–44. Kinsman, Gary. ‘Vectors of Hope and Possibility: Commentary on Reckless Vectors’. Sexuality Research & Social Policy 2, no. 2 (2005): 99–105. Makoni, Busi. ‘Labeling Black Male Genitalia and the ‘New Racism’: The Discursive Construction of Sexual Racism by a Group of Southern African college’. Gender and Language 10, no. 1 (2016): 48–72. McKay, Fiona H., Samantha L. Thomas, Kate Holland, R. Warwick Blood, and Susan Kneebone. ‘“AIDS Assassins”: Australian Media’s Portrayal of HIV-positive Refugees who Deliberately Infect Others’. Journal of Immigrant and Refugee Studies 9, no. 1 (2011): 20–37. Miller, James. ‘African Immigrant Damnation Syndrome: The Case of Charles Ssenyonga.’ Sexuality Research & Social Policy 2, no. 2 (2005): 31–50. Murphy, Jeffrey G. ‘Two Cheers for Vindictiveness’. Punishment & Society 2, no. 2 (2000): 131–43. Mykhalvoskiy, Eric, Colin Hastings, Chris Sanders, Michelle Hayman, and Laura Bisaillon. Callous, cold and deliberately duplicitous: Racialization, Immigration and the Representation of HIV criminalization in Canadian mainstream newspapers. Report, Toronto, 2016. Parker, Richard and Peter Aggleton. ‘HIV and AIDS-Related Stigma and Discrimination: A Conceptual Framework and Implications for Action’. Social Science and Medicine 57 (2003): 13–24. Razack, Sherene. ‘Gendered Racial Violence and Spatialized Justice: The Murder of Pamela George’. Canadian Journal of Law & Society 15, no. 2 (2000): 91–130. Shevory, Thomas. Notorious HIV: The Media Spectacle of Nushawn Williams. Minneapolis: University of Minnesota Press, 2004. Stoler, Ann Laura. Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule. Berkeley, CA: University of California Press, 2002. Veracini, Lorenzo. ‘Settler Colonialism: Career of a Concept’. Journal of Imperial and Commonwealth History 41, no. 2 (2013): 313–33. Walklate, Sandra. ‘Sexual Violence Against Women: Still A Controversial Issue for Victimology?’ International Review of Victimology 20, no. 1 (2014): 71–84. Weisman, Richard. Showing Remorse: Law and the Social Control of Emotion. Farnham, UK: Ashgate Publishing Ltd, 2014. Worth, Heather, Cindy Patton and Diane Goldstein. ‘Introduction to Special Issue on Reckless Vectors: The Infecting “Other” in HIV/AIDS Law’. Sexuality Research & Social Policy 2, no. 2: 3–14.

PART VI HISTORY OF LEGAL EMOTIONS

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

LOVE AND CRIME: FROM FUROR AMORIS TO CRIMINAL PASSIONS This chapter explores the emotion of love in the Italian criminal law during the second half of the nineteenth century in order to understand whether a criminal law without emotions is conceivable. The relationship between love and crime has a long and troubled history, presenting a difficult problem that has been addressed by jurists of different eras and geographical contexts. In Italy, however, more than in any other country, the question of the legal relevance of ‘criminal love’ has assumed a specific connotation in the broader debate about the relevance of emotions and passions in the evaluation of criminal responsibility.1 Historically, in the Roman law tradition, love was included among the factors influencing the ability to understand and to exercise free will; the assumption was that this feeling had to be comparable to madness or rather, furor amoris. In contrast, in the system of ius commune adopted in Europe during the Middle Ages, other emotions (for instance, rage) that overcame the limits of self-control and rationality (ex impetu animi) were considered mere perturbations of the soul that could not be used as excuses but were at most mitigating factors.2 The relevance of love in criminal law began to change with the transformation of the conception of mental illness at the end of the eighteenth century, and, above all, with the appearance of the alienists – as psychiatrists and generally ‘mad-doctors’ were called at that time – in the judicial system during the nineteenth century, when criminal passions were studied in a more systematic way. Nineteenth-century French psychiatry studies gradually asserted the idea that emotions and passions like love could in some cases rise to pathological conditions that could prompt one to commit a crime. This approach was primarily established to resolve the difficulties deriving from the application of Article 64 of the Napoleonic Penal Code (1810) concerning the different conceptions of madness (partial or total mental insanity), and especially the condition named homicidal monomania.3 These issues were studied and debated by all the major exponents of French psychiatry, including Jean-Étienne Dominique Esquirol 1 See generally Raoul Louis Benon, ‘Stati emotivi e passionali. Responsabilità’, Rivista di diritto penitenziario, II (1937): 957–61; Carmelo Bucolo, ‘Stati emotivi o passionali’, La Giustizia Penale, 62, I, (1957): 427–35; Manlio Mazzanti, ‘Stati emotivi e passionali,’ Novissimo Digesto Italiano (Turin: Utet, 1971) XVIII, 215–18; Francesco Saverio Fortuna, ‘Gli stati emotivi e passionali. Le radici storiche della questione’, in Sergio Vinciguerra, Francesco Dassano, eds, Scritti in memoria di Giuliano Marini (Naples: ESI, 2010), 347–75. 2 Enrico Pessina, Trattati elementari. Sul diritto penale delle Due Sicilie (Naples: Tip. Dei Classici Italiani, 1859), 29. 3 Ugo Fornari, Monomania omicida. Origini ed evoluzione storica del reato d’impeto (Turin: Centro Scientifico Editore, 1997).

359

360  Research handbook on law and emotion (1772–1840), his pupil Étienne-Jean Georget (1795–1828), and the psychologist-philosopher, Théodule Ribot (1839–1916). The strongest effort to study the role played by emotions in the criminal field arose mainly from that area of research in which legal medicine, psychiatry and criminal law meet to lay the foundations of emerging criminology. A decisive role in this area was played by the Italian Positivist School of Criminology, founded in the second half of the nineteenth century under the guidance of the well-known psychiatrist and medical examiner Cesare Lombroso (1835–1909).4 Lombroso was considered one of the most important European criminologists of the nineteenth century along with his pupils, criminologists Enrico Ferri (1856–1929)5 and Raffaele Garofalo (1851–1934).6 As I will discuss at length later in this chapter, the purpose of this School was to apply scientific positivism to criminal law in opposition to the undisputed dominion of the so-called Classical School, or the ‘Italian Penal School’ founded by Francesco Carrara (1805–1888),7 a school still anchored to a strictly juridical conception of crime, completely disengaged from other disciplines (such as sociology, statistics, biology, psychiatry, and so on). Indeed Lombroso and his School, through a new approach to the study of crime and the criminal8 strongly influenced by positivist and scientism, tried to entirely deconstruct criminal law. These efforts led to an individualized system of punishment9 inspired by the biological and socio-psychological characteristics of the offender, including their emotions and passions. Because the Positivist School wanted to replace the study of abstract crime with the study of the offender, it embraced the study of the psychic and affective life of criminals, resulting

On the controversial founder of criminal anthropology, see Paolo Marchetti, ‘Cesare Lombroso’, Enciclopedia Italiana di Scienze, Lettere ed Arti. Ottava Appendice. Diritto (Rome: Istituto dell’Enciclopedia Treccani, 2012), 366–70; Delia Frigessi, Cesare Lombroso (Turin: Einaudi, 2003); Silvano Montaldo and Paolo Tappero, eds., Cesare Lombroso cento anni dopo (Turin: Utet, 2009); Emilia Musumeci, Cesare Lombroso e le neuroscienze: un parricidio mancato. Devianza, libero arbitrio, imputabilità tra antiche chimere ed inediti scenari (Milan: FrancoAngeli, 2012). For the international debate on Lombrosian work, see Paul Knepper and Per Jørgen Ystehede, eds., The Cesare Lombroso Handbook (New York-Oxford: Routledge, 2012). 5 See Monica Stronati, ‘Ferri Enrico’, in Enciclopedia Italiana di Scienze, Lettere ed Arti. Ottava Appendice. Diritto (Rome: Istituto dell’Enciclopedia Treccani, 2012) 371–5; Floriana Colao, ‘Ferri Enrico’, in Italo Birocchi et al., eds., Dizionario Biografico dei Giuristi Italiani, (Bologna: Il Mulino, 2013), I, 849–52. 6 Marco Nicola Miletti, ‘Garofalo Raffaele’, in Birocchi et al., eds., Dizionario Biografico di Giuristi Italiani, 947–51; Paolo Camponeschi, ‘Garofalo Raffaele’, in Dizionario Biografico degli Italiani 52 (1999), 366–8. 7 See Paolo Grossi, ‘Assolutismo giuridico e diritto penale (a proposito di recenti appuntamenti carrariani e della ristampa della ‘Parte generale’ del ‘Programma 'del corso di diritto criminale’ di Francesco Carrara),’ Quaderni fiorentini per la storia del pensiero giuridico moderno 24 (1995), 469–75; Mario A. Cattaneo, Francesco Carrara e la filosofia del diritto (Turin: Giappichelli, 1998); Paolo Cappellini, ‘Francesco Carrara e il problema della codificazione del diritto’, Criminalia, 2 (2007) 305–23. 8 Despite the emphasis, the ‘criminal man’ imagined by Lombroso was more complex and multifaceted than a ‘primitive man’. In particular, atavism especially influenced only the first edition of Criminal Man, which was modified and amended many times before Lombroso’s death. As shown in my analysis of the different editions of the book, Lombroso gradually refined his theories on the explanation of crime, according to his clinical case studies. See Musumeci, Cesare Lombroso e le neuroscienze, 17–21. 9 Michele Pifferi, L’in­di­vi­dualizzazione della pena. Difesa sociale e crisi della legalità penale tra Otto e Novecento (Milan: Giuffrè, 2013). 4

The debate on crimes of passion in late nineteenth-century Italy  361 in what could be called a multifactorial approach.10 The second volume of the fourth edition of The Criminal Man (1889) focused on different categories of delinquents: the epileptic, the madman, the criminaloid, a figure between the born-criminal and the occasional one. Next to these figures was also mentioned the ‘offender due to impetus or passion’ or the criminal of passion. These efforts occurred in the context of a debate among Italian legal scholars around the old question of free will as the basis of imputability,11 one that could have slowly led to the elaboration of the concept of criminal and social dangerousness. But at the same time, another debate arose, albeit minor and overshadowed by the free will controversy, that of whether the passionate offender was to be considered more or less dangerous than criminals not motivated by any emotional factors. For this reason, before examining the debate on the passion of love in the Italian courtrooms and the consequent dispute about the criminal of passion that developed among the different Italian penal schools in the end of the nineteenth and the beginning of the twentieth century, it is useful to briefly retrace cases called ‘crimes or pseudo-crimes of love’. This will allow us to frame the question of the relevance of the feeling of love in the Italian courts in the wider context of the relationship between emotions and criminal law.

TWO CASES OF A ‘CRIME OF LOVE’ ‘A storm in the shadow’: Scipio Sighele (1868–1913), a Positivist legal scholar, used this romantic phrase to describe the drama of Domenico Margiotta, which took place in Reggio Calabria on April 14, 1891.12 This case, included by Sighele along with the ‘crimes and the pseudo-crimes of love’, was retraced in the volume The Italian Criminal World [Il mondo criminale italiano] where its pathetic connotations were emphasized. Teresa Zoccali, a 16-year-old girl, had decided to marry Margiotta, even though he had become blind during their engagement. She remained a faithful wife for ten years until she began an adulterous affair with the younger Vincenzo Feola, described by Sighele as ‘a despicable . . . thief who had stolen the honour and love of a man who could not defend them’.13 When Domenico Margiotta noticed the affair despite his disability, he suddenly stabbed Feola to death with a knife. When Margiotta was arrested, he merely exclaimed: ‘he had dishonoured me – I have killed him’.14 The Court of Assizes of Lecce in 1892 absolved Margiotta after a long trial that obliged him to listen to the reading of the love letters between his wife and her lover. For this reason many newspapers of the time described him as a martyr or a victim of a passionate love. A few years later, a case involving a crime of passion was so striking that it generated an international echo. Its protagonist was the Chilean student Carlos Cienfuegos, who killed his lover, the Countess Bianca Hamilton, on March 6, 1915. Suspecting that she was cheating on See Mary Gibson, Born to Crime. Cesare Lombroso and Origins of Biological Criminology (Westport-London: Praeger, 2002). 11 See Emilia Musumeci,’La scienza giuridica penalistica in Italia tra Otto e Novecento: crisi o rinascita?’ Democrazia e Diritto, 4 (2016), 123–48. 12 Scipio Sighele, ‘Una tempesta nell’ombra. Il processo Margiotta,’, in Il mondo criminale italiano (1889–1892), eds, Augusto Guido Bianchi, Guglielmo Ferrero and Scipio Sighele (Milan: Zorini, 1893), 33. 13 Sighele, ‘Una tempesta nell’ombra’, 33. 14 Sighele, ‘Una tempesta nell’ombra’, 33. 10

362  Research handbook on law and emotion him, Cienfuegos shot the Countess in her hotel room and then attempted suicide. The case was renowned not only for involving high-society people (Hamilton was part of the aristocracy and Cienfuegos was the son of a professor of the University of Santiago) but also because the offender's lawyer was Enrico Ferri, a pupil of Cesare Lombroso and one of the Positivist School’s most important proponents, well-known for his silver tongue. His harangue was later published as Love and Death – Defence of Carlo Cienfuegos, Killer of the Countess Hamilton.15 Ferri specified that the Cienfuegos’ crime was not generated by an anti-social passion but by a kind of degeneration of social passion: love, here turned into an ‘aberration of love’.16 Ferri spoke for more than three hours in a courtroom packed with students and ordinary people, and managed to create sympathy for the offender rather than the victim. Because of his theatrical reading of excerpts from the Countess Hamilton’s letters, she was depicted as a declining noble and an unscrupulous woman who aimed more at the patrimony of her lover, than their love. Cienfuegos, meanwhile, was described as the model of a young student in love, who was ‘not the seducer, but the seduced’.17 Faced with a case worthy of appearing in a heart-breaking feuilleton, Ferri highlighted its melodrama, creating a romantic aura around the passionate Latin-American, and his surname, whose Italian translation means ‘one hundred fires’. To support his case, Ferri hunted through the literary tradition in search of references that inextricably linked love and death. Thus, he recalled that the Latin poet Propertius had already understood that there was nothing so close to love than hate, and that Giacomo Leopardi had once written that ‘love and death were born as two siblings, not separable as the body from the shadow’.18 Ferri called up a whirlwind of quotations and suggestions, from Dante Alighieri to Émile Zola and, inevitably, Shakespeare, with Cienfuegos taking on the role of a South American Othello and the poor Countess Hamilton that of a new Desdemona. These literary allusions prepared the judging college and the lay jury for Ferri’s more technical legal reasoning: given the premises explained through literary references, Cienfuegos, like the well-known characters mentioned, could not be held responsible and must be acquitted because the crime was committed under the influence of love in a sort of ‘vertigo able to eclipse feelings and will’.19 According to Ferri, Cienfuegos’s case had to be included among those cases of lucid insanity under Article 46 of the Penal Code, because he was blinded by love, and turned into a homicidal machine devoid of will and control. Thanks to Ferri’s talents, Cienfuegos was able to obtain a rather light sentence (five years and eight months of imprisonment), especially compared to the sentence he might have expected under the original charge of involuntary manslaughter.

15 Enrico Ferri, ‘Amore e Morte – Difesa di Carlo Cienfuegos, uccisore della contessa Hamilton (Corte d’assise di Roma – 7 aprile 1916),’ in Difese penali. Studi di giurisrpudenza penale. Arringhe civili. I violenti. Figure diverse. Le vittime (Vol. II), ed. Enrico Ferri (Turin: Utet, 1925), 74–134. 16 Enrico Ferri, ‘Il processo Hamilton-Cienfuegos. In difesa di Carlo Cienfuegos. Arringa dell’avv. Enrico Ferri,’ L’eloquenza, (1915), 973. 17 Ferri, ‘Il processo Hamilton-Cienfuegos’, 973. 18 Ferri, ‘Il processo Hamilton-Cienfuegos’, 969. 19 Ferri, ‘Il processo Hamilton-Cienfuegos’, 1008.

The debate on crimes of passion in late nineteenth-century Italy  363

THE DEBATE ON THE CATEGORY OF ‘CRIMINAL OF PASSION’ Criminal Love as a Morbid Love? The Margiotta and Cienfuegos cases are two of the many trials in which the passion of love was directly addressed in the Italian courts. In these years, love became the object of legal, psychiatric and medico-legal treatises. Love earned this attention through its capacity as a super-feeling or a sort of ‘fever’ capable of transmuting thoughts, actions and other emotions.20 Gabriel Tarde (1843–1904), the French criminologist and philosopher caustically described this tendency in a discussion with his compatriot, the physician Émile Laurent (1861–1904), on the occasion of the review of his book entitled L’amour morbide.21 According to Tarde, it was necessary to reject the dichotomy between healthy love (which was harmless) and morbid love (which was criminal) since the passion of love had to be always considered a disease, or even a form of anthropophagy. Many discussions on the roles of love and other emotional states as the causes of crime took place in Italy as well as France. One of the most important studies in this matter was that of the Sicilian medical examiner Giuseppe Ziino (1841–1918), who refused to conceptualize love as excessively pathological and, more generally, denied the physio-pathological features of the crime of passion. Firmly convinced that passions (a term generally used to indicate affections, feelings and emotions) were located in the brain and not in the heart, the liver, or throughout the entire human organism, Ziino developed a genealogy in which all passions, including jealousy, were derived in a physiological or pathological way from the passion of love, which he considered the ‘fundamental passion, the germ cell …, radical feeling’.22 Love could degenerate into jealousy, a sentiment negatively considered by Ziino as the pathological transformation of the generic love for the individual woman, in turn, physiologically derived from the original love for the other sex, considered inborn. According to Ziino, love (and therefore jealousy) could be characterized differently by gender. Not only were men considered victims of ‘jealous fever’23 more frequently than women, but there was a significant difference in its emotional experience between the two sexes: while men, for their selfish and materialistic feelings, are worried that their lovers could indulge their bodily favours, – on the contrary, women were afraid of losing the heart of the one they had chosen and loved with all that delicate ardour they are capable of.24

Evidently, this approach reflected the gender roles well-rooted in the imagination of the time, in which the man was hot-tempered and oriented towards the erotic relationship, while the woman was frigid and devoted to a chaste love. Man was negatively portrayed with respect to woman when his proprietary logic focused on the possession of the female body. Gabriel Tarde, ‘L’amour malade’, Archives de l’Anthropologie Criminelle et des Sciences Pénales, V (1890), 585. 21 Émile Laurent, L’amour morbide. Étude de psychologie pathologique (Paris: Société D’éditions Scientifiques, 1891). 22 Giuseppe Ziino, La fisio-patologia del delitto (Naples: Dekten, 1881), 224–5. 23 Ziino, La fisio-patologia del delitto, 233. 24 Ziino, La fisio-patologia del delitto, 233. 20

364  Research handbook on law and emotion Similarly, some decades later, Vincenzo Mellusi (1868–1942), a lawyer and honorary professor at the American Institute of Boston who adhered to Criminal Anthropology, wrote a monograph devoted to crimes of passion. In Those Who Love and Kill [Quelli che amano e uccidono] Mellusi argued for the need to develop a psychopathology of crime capable of unveiling the morbid origin of certain feelings that lead to uxoricide. In his view, the feeling of jealousy, considered as a form of tainted love or ‘poison of love’, had a leading role, being considered a sort of ‘paranoia of sexual honour’.25 Meanwhile, Lombroso had also expressed his opinion on the so-called ‘criminal emotions’. In particular, Lombroso disagreed with Ziino’s thesis that all passions derived from love, arriving at a diametrically opposed conclusion. The Veronese physician challenged the belief that ‘love influences more or less all crimes’,26 noting how only a small number of crimes involved this passion. To demonstrate, Lombroso used a statistical-experimental method to analyse the data collected by the French statistician and lawyer André-Michel Guerry (1802–1866). Guerry had rank-ordered of the four death penalty crimes in France (poisoning, murder, manslaughter and arson), classified according to their apparent motives. At the top of this classification were disputes arising from futile motive in the taverns and other areas where gambling was practiced and/or other violent crimes caused for totally random reunions. On the contrary, love was the motive for crimes only at the fourth classification, including all crimes generated by unfulfilled love, jealousy, rivalry, adultery and concubinage. Moreover, for Lombroso this datum taken27 from Guerry’s research was also distorted by the fact that often ‘love and libido are mixed, or those in which love is only a pretext, a push to the grips of orgy and jealousy’.28 Given this, Lombroso concluded that ‘the cause of pure love is limited to those cases of irresistible force, of feverish love, which, almost always, occurs with double suicide, and that, in reality, it happens very rarely’.29 After establishing this premise, Lombroso analysed a series of crimes of passion motivated by unrequited love or jealousy, distinguishing criminals of passion from other types of offenders and especially from the born criminals, who coldly killed without trying any remorse.30 Conversely, those who killed for love acted on impulse and almost always repented immediately. These were crimes that at an emotional level were favoured by two, often intertwined factors: the ‘natural’ inclination to violence and revenge (also defined by Lombroso as ‘primitiveness’ or ‘savagery’) and a sort of lethal mix of ‘jealousy, love and offended honour’.31

Vincenzo Mellusi, Quelli che amano e uccidono (Turin: Bocca, 1924), 128. Cesare Lombroso, Delitti di libidine (Turin: Bocca, 1886) 19. 27 This approach was typical of Lombroso’s work: he “adopted” and “analysed” data from different works in order to confirm his own thesis. In addition, he also utilized data from different sources (even from literature and art). For this reason, his method has been harshly criticized for a lack of scientific rigor. See Nicole H. Rafter, Creating born criminals (Urbana, ILL, USA: University of Illinois Press, 1997). 28 Lombroso, Delitti di libidine, 20. It is useful to emphasize that in this excerpt Lombroso used the term orgy [in Italian: orgia] in order to indicate ‘arousal’ or ‘exaggerate sexual desire’ in other words, to designate a kind of physical excitement not comparable to ‘love’. 29 Lombroso Delitti di libidine, 20. 30 Cesare Lombroso L’amore nel suicidio e nel delitto (Rome: Loescher, 1881), 21. 31 Lombroso, Delitti di libidine, 26. 25 26

The debate on crimes of passion in late nineteenth-century Italy  365 The Classical School’s Point of View The debate on the role of emotions (and love in particular) in criminal behaviour motivated theoretical battles in the different Italian penal schools (Classical, Positivist and the Third School) 32 after the publication of Lombroso’s provocative book, The Criminal Man, in 1876. Lombroso’s positivist thesis had an impact on the legal science of his time. The Positivist School was developed in Italy in the nineteenth century with the principal purpose of making criminal law a real social science.33 It stood in opposition to the Enlightenment rationalism of criminal law, represented by the various doctrinal currents generically called the Classical School. The Classical School considered crime to be a mere consequence of the breach of a legal rule, and as an event arising from a human’s free and voluntary choice. The Positivist School was strenuously opposed to the Classical School’s abstract and unhistorical rationalism, which constructed criminal behavior as an ‘immutable’ law separated from context. The Positivists’ primary intention was not only to scientifically deny the existence of free will, but also to expunge any metaphysical element from the criminal justice system. The Positivist School’s main impact was on questions relating to the philosophical foundations of criminal responsibility and to the relationship between crime and punishment. It is informative to consider the ensuing intense debate over free will, between the Classical School of Francesco Carrara, who firmly proclaimed the existence of human freedom, and the Positivist School of Lombroso, who denied it. The Positivist School used the example of the existence of criminals of passion (and therefore of occasional criminals) – as opposed to the class of born criminals who were more fearful and harmful to society – to illustrate the need for criminal law reforms that would align with the dictates of scientific progress. However, the category of criminal of passion was not accepted by many legal scholars, especially those of the Classical School, who firmly believed in the need for a criminal law that had at its centre the crime committed and not the criminal man. The most important Classical School effort in cataloguing passions from a legal point of view was that of Francesco Carrara, one of the strongest opponents of the Positivist School. Carrara anchored his own interpretation in the concept of free will. Human freedom, he argued, was necessary to overcome the passions, which he deemed the worst tyrant over human beings,34 which could be divided into two types: ‘blind’ and ‘reasonable’. Only blind passions (such as anger and fear) were able to affect capacity and act strongly on the subject’s will.35 The reasonable passions (such as love or friendship), on the contrary, left the capacity of human reasoning intact, and did not merit any reduction of responsibility.36 This theory, despite its contradictions (such as including in the passion of anger every kind of reasoning passion without adopting a real hierarchy between excusing passions) was popular among

On the debate between the Schools of penal law in Italy (and criticism of the emphasis on it), see Mario Sbriccoli, ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990),’ in Mario Sbriccoli, Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007) (Milan: Giuffrè, 2009) I, 604–5. 33 Cesare Lombroso, Enrico Ferri, Raffaele Garofalo, Giulio Fioretti, Polemica in difesa della Scuola Criminale Positiva (Bologna: Zanichelli, 1886), I. 34 Francesco Carrara, Programma del corso di diritto criminale (Lucca: Tip. Canovetti, 1863), 16. 35 Carrara, Programma del corso di diritto criminale, 147. 36 Carrara, Programma del corso di diritto criminale, 147. 32

366  Research handbook on law and emotion many other legal scholars, who used it to argue that it was not possible to use the insanity defence even in the case of crimes motivated by certain passions. Lino Ferriani (1856–1921), a judge and a careful scholar of legal, social and educational issues, was one of the scholars who followed Carrara’s teachings. In his monograph, Love in the Courtroom (L’amore in tribunale), Ferriani said he was quite open to the interaction between legal science and other disciplines (especially in order to separate the guilty from the innocent in a crime of passion). Nonetheless, he identified the jurist as the only one able to turn on ‘the sun of the justice’37 and distinguish between the blind and reasonable passions, as Carrara suggested. According to Ferriani, love, universally recognized as the most noble of emotions, could suddenly become a sham: ‘the murder that occurs with the halo of love can be the result of a low sensuality or sordid speculation’.38 Therefore, according to Ferriani, if a single criterion of passion had been adopted in the courtrooms according to Lombroso (every crime contains the germ of a love), it would create an absurd result: the acquittal of each offender. After describing numerous cases of crimes of love, adopting a moralistic tone, and incorporating many literary references, Ferriani emphasized the importance of examining the passion’s origin to prevent certain crimes from going unpunished and ‘the need to moralize the masses, educating, starting from the training of women’ so that the family could have the task of ‘growing . . . the plant of love’, liberating it ‘from the deadly herbs of ignoble passions’.39 The same pedagogical intent appeared in Ferriani’s discussion of ‘crimes against the good customs and the family order’ in which he warned of increasing moral corruption, hypothesizing among the causes of this decadence the return of ‘depraved sexuality and wild liberty’.40 The Positivist School’s Attack With the aim of subverting this approach, some jurists of the Positivist School joined the debate. Among others, Enrico Ferri rejected Carrara’s distinction between blind and reasonable passions, affirming the existence of social and anti-social passions. Social passions corresponded to the peaceful co-existence of people, including the so-called moral passions, because morality was one of the primary functions of human beings living in society. The antisocial passions, on the contrary, lead to a general disintegration in social order. Adopting this reasoning, Ferri claimed that criminal acts motivated by an aberration of a social passion, such as love or justice, should be non-punishable. Conversely, such crimes were punishable if generated by an anti-social passion, such as revenge, envy, or lust.41 Another jurist, Ferdinando Puglia (1853–1908), had a more categorical approach that went to the root of the problem: Carrara’s theorization was flawed ab initio because it was based 37 Lino Ferriani, Tra un processo e l’altro. L’amore in tribunale. Appunti penali (Bologna: Tip. Succ. Monti, 1889), 170. 38 Ferriani, Tra un processo e l’altro, 136. 39 Ferriani, Tra un processo e l’altro, 167. 40 Calogero Costanzo, ‘Dei delitti contro il buon costume e contro l’ordine delle famiglie,’ in Completo trattato teorico e pratico di diritto penale (Vol. I, p. I), ed. Pietro Cogliolo (Milan: Vallardi, 1980), 981. 41 Enrico Ferri, ‘Il delitto passionale nella civiltà contemporanea’, in Difese penali. Studi di giurisprudenza penale. Arringhe civili. Leggi penali e tipi di delinquenti. La riforma della giustizia penale. Arringhe civili, vol. III, ed. Enrico Ferri (Turin: Utet, 1925), 284–302.

The debate on crimes of passion in late nineteenth-century Italy  367 on the supposed existence of an offender’s moral responsibility, when it was at most a social responsibility. Puglia argued that, given that free will did not exist, it made no sense to talk about the degree of freedom enjoyed by a criminal who succumbed to his passions. Rather, attention should be focused on the danger that the offender could pose to the social order.42 According to Puglia, only Positivist School methods could address how emotions and passions such as love influenced criminal responsibility without falling into contradiction. Following the Classical School claim that every human being was free to choose and was responsible before the law, that meant that every man agitated by passions had to be considered not morally free, since ‘the passion of whatever nature . . . obscures intelligence more or less profoundly, and drags the human will more or less violently to unconscious and impulsive actions’.43 But this premise could lead to disastrous consequences because it would be impossible to punish many dangerous criminals who committed their crimes out of certain passions. Moreover, Puglia, opined, it was not possible to adopt Carrara’s distinction between blind and reasoning passions to eliminate this risk of under-punishment because it did not comport with common psychological laws (since there was no scientific proof that passions always explode and make a crime of passion inevitable). Finally, Carrara’s thesis conflicted with Classical School legal principles, such as that criminal responsibility should be based on free will. Instead, like many in the Positivist School, Puglia embraced a model of criminal law implying a form of social responsibility based on offender’s fearfulness [temibilità], to be assessed within criminal anthropology studies of the offender’s somatic and psychic features and their external factors, including passions and emotions. Raffaele Garofalo (1851–1934), another well-known advocate of the Positivist School, came to conclusions that differed a bit from those of Puglia. Garofalo was convinced that offenders had diversity of emotions and feelings, given his strong opinion that ‘all criminals are . . . PSYCHICALLY abnormal men; MANY of them are also ANTHROPOLOGICALLY [different from other human beings]’.44 Starting from this shocking assumption, Garofalo argued that, because offenders were deranged with more or less serious forms of psychic anomaly, their emotions were to be considered in one way or another pathological. Garofalo’s conceptualization, then, was a darker, more repressive version of Lombroso. While Lombroso posited that criminals could feel positive emotions (hyperbolic love or altruism) or negative passions (jealousy or desire to revenge), Garofalo believed that offenders’ passions were only negative feelings that were ‘exaggerated’ to the extent they were pathological or a symptom of madness. To Garofalo, this was particularly evident in endemic criminals, offenders with biological defects and influenced by environmental and social factors, perhaps in classes of people. For instance, in Naples, there was a practice of ‘disfiguring for erotic reasons’45 to scar unfaithful lovers, which was tolerated, especially among the lower classes. Similarly, murders and brawls for futile reasons were frequent in inner city Rome. The Neapolitan and Roman

Ferdinando Puglia, ‘Passioni ed emozioni. Loro influenza sulla responsabilità dei delin­quenti’, Archivio di Psichiatria, Scienze Penali ed Antropologia Criminale per servire allo studio dell’uomo alienato e delinquente, III, 1882, 394–5. 43 Puglia, ‘Passioni ed emozioni. Loro influenza sulla responsabilità dei delin­quenti,’ 400. 44 Raffaele Garofalo, Criminologia. Studio sul delitto, sulle sue cause e sui mezzi di repressione (Turin: Bocca, 1885), 114. 45 Raffaele Garofalo, Criminologia, 119. 42

368  Research handbook on law and emotion contexts were, for Garofalo, two examples where whole populations had a lower sensitivity and risked easily committing crimes in the grip of their passions. The Third School’s Proposal The debate among legal scholars expanded so much that it could not be reduced to the mere juxtaposition between the Classical School and the Positivist School. The most significant example was undoubtedly the jurists who tried to overcome the Classical School-Positivist School dichotomy, including Bernardino Alimena (1861–1915), promoter of the so-called Critical School46 (also known as Third School). As part of his monumental work on imputability,47 the Calabrian jurist discussed at length love’s relevance and whether other emotional and passionate states could excuse crime, including a long introduction to the various attempts in philosophy and psychology to define and classify emotions, passions and feelings. Alimena maintained that neither the Positivist or Classical Schools’ solutions were acceptable. First of all, Alimena pointed out that the Positivist School and Lombroso had made a mistake in considering the number of crimes of passion to be only 5 or 6 per cent of violent crimes, thus confusing offenders moved by emotion with those moved by passion. Instead, he argued, that ‘all, or almost all criminals are criminals of passion’ because ‘in many cases of impulsive crimes, there is always an emotion at the origin of the act, while even in the majority of premeditated crimes, there is always a passion’.48 In particular, Alimena emphasized, it was important not to confuse the emotions or all those movements of the soul (like fear) with the passions (like jealousy) that required more time to develop. Given this, the Calabrian jurist found it inexplicable that law took into account only certain passions and emotions (such as anger or jealousy) and not others (such as hate and greed) that also obscured the offender’s freedom of choice without rejecting the theory of criminal responsibility based on free will. But Alimena’s criticism was especially directed towards the supporters of the Classical School and towards Carrara. He defined the distinction they made between blind passions and reasoning as ‘fantastic and unknown to . . . psychology’.49 Furthermore, Alimena could not understand how, despite progress in psychology and widespread diffusion of its theories, there could still be ‘solitary legal scholars, who, ignoring the work in other fields, talked about blind and reasoning passions, with that same tone of certainty, with which we can talk about the earth motion or the lunar phases’.50 He believed that determining the relevance of love and other passions on imputability could be best done through a psychological approach that considered that, while all passions and emotions overwhelm the freedom of choice, only those ‘deriving from a fair and equal cause and indirectly aimed to social ends’ could be used as excuses or mitigating circumstances.51 Consequently, Alimena, in order to justify his thesis, referred to Romagnosi and Bentham’s social and anti-social cause distinction, concluding 46 See Bernardino Alimena, La scuola critica di diritto penale. Prolusione ad un corso di diritto e procedura penale nell’Università di Napoli, 29 novembre 1894 (Naples: Pierro, 1894). 47 Bernardino Alimena, I limiti e i modificatori dell’imputabilità (Vol. I-III) (Turin: Bocca, 1894–1899). 48 Alimena, I limiti e i modificatori dell’imputabilità, III, 252. 49 Alimena, I limiti e i modificatori dell’imputabilità, III, 258. 50 Alimena, I limiti e i modificatori dell’imputabilità, III, 256–7. 51 Alimena, I limiti e i modificatori dell’imputabilità, III, 262.

The debate on crimes of passion in late nineteenth-century Italy  369 that only that approach allowed one to avoid excusing actions motivated by socially harmful passions (like those of an unscrupulous seducer) while excusing those motivated by socially useful passion (like a brother’s honour or the rage of a ‘seduced and abandoned’ girl’s father). In more or less similar terms Giovan Battista Impallomeni (1846–1907) also argued against those lawyers and jurists that supported the ‘criminal of passion’ category (defined as the ‘poisoned fruit of the new school’52 or rather, the Positivist one) within the courtroom, asserting it only impressed those ignorant of legal studies, thanks to the astute rhetoric of the lawyers.

CONCLUSION: LAW’S INADEQUACY CONCERNING PASSIONS The debate over crimes of passion and more specifically on love’s relevance in criminal justice reflected legal scholars’ attempts to regulate the passions and emotions by means of a law that incorporated a problematic dichotomy: on the one hand, the human being that was ‘calculable, disciplined, [and] necessitated’53 who was responsible before the law and, on the other hand, the insane, deviant, and abnormal man who was not responsible before the law. If these are the only two positions in the development of the modern subject,54 no space remains for passions, emotions, and feelings except in the category of insanity. This attitude seems to be the result of Enlightenment efforts to eliminate every kind of superstition and irrational element from law. However, reductionism and the exaggerated praise of reason have reduced our ability to manage social complexity in the juridical field. The hyper-rational perspective, a descendant of the revolutionary era and legal Enlightenment,55 identified the State as the creator of law and the individual as the only subject responsible before the law.56 The impossibility of eliminating all irrational elements from law, however, once again reveals that these Enlightenment ideals are illusory, although they still permeate the juridical experience. One now asks if it is possible to imagine a criminal law without emotions.

Giovan Battista Impallomeni, L’omicidio nel diritto penale (Turin: Unione Tipografico-Editrice, 1900) 526. 53 Friedrich Nietzsche (1887), Zur Genealogie der Moral. Eine Streitschrift, trans. Horace B. Samuel, The Genealogy of Morals (New York City: Boni and Liveright, 1918), 42. 54 Mario Galzigna, ‘Soggetto di passione, soggetto di follia’, in Jean-Étienne Esquirol, Delle passioni considerate come cause, sintomi e mezzi curativi dell’alienazione mentale (Milan-Udine: Mimesis, 2008), 10–11. 55 Considering emotions and passion only in the guise of ‘irrational elements’ to be eliminated from legal science is an approach inherited from the Enlightenment. This period evidenced extreme trust in legislative power (to the detriment of the judicial and executive power) and in the idea that the most important source of law should be the State while the only subject of the laws should be the individual man. This attitude has been also called ‘legal absolutism’ by Paolo Grossi. See Paolo Grossi, Mitologie giuridiche della modernità (Milan: Giuffré, 2001), 136–7. 56 Giorgia Alessi, Il soggetto e l’ordine. Percorsi dell’individualismo nell’Europa moderna (Turin: Giappichelli, 2006). 52

370  Research handbook on law and emotion We can inquire if the recent emotional turn57 that has begun to impact the legal field58 could be considered a way for emotions to seek revenge on reason. In addition, we should try to understand what has changed between late-nineteenth century debates between legal scholars on the dialectic between reason and emotions and the present day. Even as today’s legal scholars rediscover emotions, do they paradoxically valorize the rational side of our emotional world? Does recent discourse about emotions do nothing but strengthen and reinforce the importance of reason?59 It is significant, for instance, that scientists have demystified the feeling of empathy, deeming it only a byproduct of mirror neurons’ functioning. What formerly belonged to the sphere of spirituality and the imponderable (like the ecstasy of Santa Teresa) has become subjected to the cold scrutiny of neuroscientists, and reduced to mere neuronal movements. Similar forces are at work in the recent ‘re-emotionalisation of criminal law and justice’60 movements, especially in common law countries, that aim to create a more emotionally intelligent justice.61 On the one hand, this movement emphasizes the need to include feelings and passions like love, anger, and shame in a criminal law model with key elements that have always functioned through strong emotions such as fear of the penal sanction and the instinctive desire for revenge. On the other hand, this approach could convert primordial passions into sweetened and socially acceptable versions according to modern democratic values, so that they become rational emotions.62 From this point of view, a jurist may be encouraged to ‘handle with care’63 the emotions in a criminal case, making them as inoffensive as a wild animal rendered docile and tame.

The ‘emotional turn’ was launched in the 1990s in the field of political science and political philosophy. See Jeff Goodwin, James M. Jasper and Francesca Polletta, eds, Passionate Politics. Emotions and Social Movements (Chicago: University of Chicago Press, 2001). This collection offered a significant attempt to rethink the relationship between emotion and politics. Gradually the role played by emotions and reason has begun to be considered in different fields of social science and humanities (from anthropology to feminist philosophy). Especially in the last decades this phenomenon has entered every historical discipline (social and cultural history, legal history, history of science and so on) signalling the birth of a new interdisciplinary field called ‘history of emotions.’ This is demonstrated by many publications in this field (see Jan Plamper, The History of Emotions. An Introduction, trans. Keith Tribe (Oxford: Oxford University Press, 2015); Jonas Liliequist, ed., A History of Emotions, 1200-1800 (London: Routledge, 2012); Alain Corbin et al., eds, Histoire des émotions, tt. 1–3 (Paris: Seuil, 2016–2017). There are also a number of important research networks: Centre for the History of Emotions at the Max Planck Institute for the Human Development in Berlin (DE), The Queen Mary Centre for the History of the Emotions in London (UK) and The Australian Research Council Centre of Excellence for the History of Emotions. 58 In this field, see Susan Bandes, ed., The Passions of Law, (New York: New York University Press, 1999). 59 Emilia Musumeci, Emozioni, crimine, giustizia. Un’indagine storico-giuridica tra Otto e Novecento (Milan: FrancoAngeli, 2015), 206–7. 60 Susanne Karstedt, ‘Handle with Care: Emotions, Crime and Justice’, in Emotions, Crime and Justice, eds, Susanne Karstedt, Ian Loader and Heather Strang (Portland: Hart, 2011), 6. 61 Lawrence W. Sherman, ‘Reason for Emotion: Reinventing Justice with Theories, Innovations, and Research – The American Society of Criminology 2002 Presidential Address,’ Criminology, 41, 1 (2003), 1–38. 62 Eimear Spain, The Role of Emotions in Criminal Law Defences: Duress, Necessity and Lesser Evils (Cambridge: Cambridge University Press, 2011). 63 Karstedt, ‘Handle with Care: Emotions, Crime and Justice’, 1–19. 57

The debate on crimes of passion in late nineteenth-century Italy  371 Consequently, if we go beyond an asphyxiated and reductionist conception of law, we can answer the question of whether there can be a criminal law without emotions in the negative. This is especially true given the influence that the emotional and passionate element has had and continues to have on the criminal sphere. To imagine a criminal law completely divorced from the emotional sphere would be to hypothesize a body of law that, while technically excellent, is completely artificial. In a nutshell, a law without emotions would be as real as a marble statue that reproduces a flesh-and-blood human being.

REFERENCES Alessi, Giorgia. Il soggetto e l’ordine. Percorsi dell’individualismo nell’Europa moderna. Turin: Giappichelli, 2006. Alimena, Bernardino. I limiti e i modificatori dell’imputabilità (Vol. I-III). Turin: Bocca, 1894–1899. Alimena, Bernardino. La scuola critica di diritto penale. Prolusione ad un corso di diritto e procedura penale nell’Università di Napoli, 29 novembre 1894, Naples: Pierro, 1894. Bandes, Susan, ed. The Passions of Law. New York: New York University Press, 1999. Benon, Raoul Louis. ‘Stati emotivi e passionali. Responsabilità’, Rivista di diritto penitenziario II (1937): 957–61. Bucolo, Carmelo. ‘Stati emotivi o passionali’, La Giustizia Penale 62, no. 1, (1957): 427–35. Camponeschi, Paolo. ‘Garofalo Raffaele’. In Dizionario Biografico degli Italiani 52 (1999): 366–8. Cappellini, Paolo. ‘Francesco Carrara e il problema della codificazione del diritto’. Criminalia 2 (2007): 305–23. Carrara, Francesco. Programma del corso di diritto criminale. Lucca: Canovetti, 1863. Cattaneo, Mario A. Francesco Carrara e la filosofia del diritto. Turin: Giappichelli, 1988. Colao, Floriana. ‘Ferri Enrico’. In Dizionario Biografico dei Giuristi Italiani (Vol. I), edited by Italo Birocchi, Ennio Cortese, Antonello Mattone and Marco Nicola Miletti, 849–52. Bologna: Il Mulino, 2013. Corbin, Alain, Jean Jacques Courtine, and Goerges Vigarello, eds. Histoire des émotions (Vols. 1–3). Paris: Seuil, 2016–2017. Costanzo, Calogero. ‘Dei delitti contro il buon costume e contro l’ordine delle famiglie’. In Completo trattato teorico e pratico di diritto penale (Vol. II), edited by Pietro Cogliolo, 969–1289. Milan: Vallardi, 1890. Ferri, Enrico. ‘Il delitto passionale nella civiltà contemporanea’. In Difese penali. Studi di giurisprudenza penale. Arringhe civili. Leggi penali e tipi di delinquenti. La riforma della giustizia penale. Arringhe civili (Vol. III), edited by Enrico Ferri, 284–302. Turin: Utet, 1925. Ferri, Enrico. ‘Amore e Morte – Difesa di Carlo Cienfuegos, uccisore della contessa Hamilton (Corte d’assise di Roma – 7 aprile 1916).’ In Difese penali. Studi di giurisrpudenza penale. Arringhe civili. I violenti. Figure diverse. Le vittime (Vol. II), edited by Enrico Ferri, 74–134. Turin: Utet, 1925. Ferri, Enrico. ‘Il processo Hamilton-Cienfuegos. In difesa di Carlo Cienfuegos. Arringa dell’avv. Enrico Ferri’. L’eloquenza (1915): 957–1019. Ferriani, Lino. Tra un processo e l’altro. L’amore in tribunale. Appunti penali. Bologna: Tip. Succ. Monti, 1889. Fornari, Ugo. Monomania omicida. Origini ed evoluzione storica del reato d’impeto. Turin: Centro Scientifico Editore, 1997. Fortuna, Francesco Saverio. ‘Gli stati emotivi e passionali. Le radici storiche della questione’. In Scritti in memoria di Giuliano Marini, edited by Sergio Vinciguerra and Francesco Dassano, 347–75. Naples: ESI, 2010. Frigessi, Delia. Cesare Lombroso, Turin: Einaudi, 2003. Galzigna, Mario. ‘Soggetto di passione, soggetto di follia’. In Delle passioni considerate come cause, sintomi e mezzi curativi dell’alienazione mentale, edited by Jean-Étienne Esquirol, 7–51. Milan: Mimesis, 2008. Garofalo, Raffaele. Criminologia. Studio sul delitto, sulle sue cause e sui mezzi di repressione. Turin: Bocca, 1885.

372  Research handbook on law and emotion Gibson, Mary. Born to Crime. Cesare Lombroso and Origins of Biological Criminology. London: Praeger, 2002. Goodwin, Jeff, James M. Jasper, and Francesca Polletta, eds, Passionate Politics. Emotions and Social Movements, Chicago: University of Chicago Press, 2001. Grossi, Paolo. ‘Assolutismo giuridico e diritto penale (a proposito di recenti appuntamenti carrariani e della ristampa della ‘Parte generale’ del ‘Programma del corso di diritto criminale’ di Francesco Carrara).’ Quaderni fiorentini per la storia del pensiero giuridico moderno 24 (1995): 469–75. Grossi, Paolo. Mitologie giuridiche della modernità. Milan: Giuffé, 2001. Impallomeni, Giovan Battista, L’omicidio nel diritto penale. Turin: Unione Tipografico-Editrice, 1900. Karstedt, Susanne. ‘Handle with Care: Emotions, Crime and Justice’. In Emotions, Crime and Justice, edited by Susanne Karstedt, Ian Loader and Heather Strang, 1–19. Oxford: Hart, 2011. Knepper, Paul and Per Jørgen Ystehede, eds, The Cesare Lombroso Handbook. New York: Routledge, 2012. Laurent, Émile. L’amour morbide. Étude de psychologie pathologique. Paris: Société D’éditions Scientifiques, 1891. Liliequist, Jonas, ed. A History of Emotions, 1200–1800. London: Routledge, 2012. Lombroso, Cesare. Delitti di libidine. Turin: Bocca, 1886. Lombroso, Cesare. L’amore nel suicidio e nel delitto. Rome: Loescher, 1881. Lombroso Cesare, Enrico Ferri, Raffaele Garofalo, and Giulio Fioretti. Polemica in difesa della Scuola Criminale Positiva. Bologna: Zanichelli, 1886. Marchetti, Paolo. ‘Cesare Lombroso’. Enciclopedia Italiana di Scienze, Lettere ed Arti (Ottava Appendice). Rome: Istituto dell’Enciclopedia Treccani, 2012, 366–70. Mazzanti, Manlio. ‘Stati emotivi e passionali’. Novissimo Digesto Italiano (XVIII). Turin: Utet, 1971, 215–18. Mellusi, Vincenzo. Quelli che amano e uccidono. Turin: Bocca, 1924. Miletti, Marco Nicola. ‘Garofalo Raffaele’. In Dizionario Biografico dei Giuristi Italiani (Vol. I), edited by Italo Birocchi, Ennio Cortese, Antonello Mattone and Marco Nicola Miletti, 947–51. Bologna: Il Mulino, 2013. Montaldo, Silvano and Paolo Tappero, eds. Cesare Lombroso cento anni dopo. Turin: Utet, 2009. Musumeci, Emilia. ‘La scienza giuridica penalistica in Italia tra Otto e Novecento: crisi o rinascita?’ Democrazia e Diritto 4 (2016): 123–48. Musumeci, Emilia. Emozioni, crimine, giustizia. Un’indagine storico-giuridica tra Otto e Novecento. Milan: FrancoAngeli, 2015. Musumeci, Emilia. Cesare Lombroso e le neuroscienze: un parricidio mancato. Devianza, libero arbitrio, imputabilità tra antiche chimere ed inediti scenari. Milan: FrancoAngeli, 2012. Nietzsche, Friedrich. The Genealogy of Morals, translated by Horace B. Samuel. New York: Boni and Liveright, 1918 [1887]. Pessina, Enrico. Trattati elementari. Sul diritto penale delle Due Sicilie. Naples: Dei Classici Italiani, 1859. Pifferi, Michele. L’in­di­vi­dualizzazione della pena. Difesa sociale e crisi della legalità penale tra Otto e Novecento. Milan: Giuffrè, 2013. Plamper, Jan. The History of Emotions. An Introduction, translated by Keith Tribe. Oxford: Oxford University Press, 2015. Puglia, Ferdinando. ‘Passioni ed emozioni. Loro influenza sulla responsabilità dei delin­quenti’, Archivio di Psichiatria, Scienze Penali ed Antropologia Criminale per servire allo studio dell’uomo alienato e delinquente (Vol. III) (1882): 394–412. Rafter, Nicole Hahn. Creating Born Criminals. Urbana: University of Illinois Press, 1997. Sbriccoli, Mario. ‘Caratteri originari e tratti permanenti del sistema penale italiano (1860–1990).’ In Storia del diritto penale e della giustizia. Scritti editi e inediti (1972–2007) (Vol. 1), edited by Mario Sbriccoli, 591–670. Milan: Giuffrè, 2009. Sherman, Lawrence W. ‘Reason for Emotion: Reinventing Justice with Theories, Innovations, and Research – The American Society of Criminology 2002 Presidential Address.’ Criminology 41, no. 1 (2003): 1–38. Sighele, Scipio. ‘Una tempesta nell’ombra. Il processo Margiotta’. In Il mondo criminale italiano (1889–1892), edited by Augusto Guido Bianchi, Guglielmo Ferrero and Scipio Sighele, 29–45. Milan: Zorini, 1893.

The debate on crimes of passion in late nineteenth-century Italy  373 Spain, Eimear. The Role of Emotions in Criminal Law Defences: Duress, Necessity and Lesser Evils. Cambridge: Cambridge University Press, 2011. Stronati, Monica. ‘Ferri Enrico’. In Enciclopedia Italiana di Scienze, Lettere ed Arti. Ottava Appendice. Rome: Istituto dell’Enciclopedia Treccani, 2012: 371–75. Tarde, Gabriel. ‘L’amour malade’. Archives de l’Anthropologie Criminelle et des Sciences Pénales (Vol. V) (1890): 585–95. Ziino, Giuseppe. La fisio-patologia del delitto. Naples: Dekten, 1881.

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

INTRODUCTION The ‘lawyerization’ of English law, characterised by the increasing presence of counsel in a number of different courts and causes, is a keynote of eighteenth-century legal history.1 The transition from an ‘altercation’ between litigants, mediated by a presiding judge, to an ‘adversarial’ contest between lawyers, has been discussed in detail by John Langbein. This change is most readily apparent in the criminal trial, which ceased to involve a direct exchange between the parties concerned, replacing their first-person narratives with the arguments and eloquence of paid counsel.2 The increasing use of lawyers had dramatic repercussions for legal practice and for the ways that emotions were performed, read, and interpreted in the courtroom. Techniques such as cross-examination undermined the reliability of sworn testimony under oath, which was previously held as a benchmark for truthfulness. Lawyers used increasingly complex interrogatory techniques to discredit or disrupt testimony, and opening and closing speeches allowed counsel to shape a convincing legal narrative for the jury. Criminal courts were at the cutting edge of these developments.3 Before the Prisoners’ Counsel Act of 1836, which gave felony defendants the right to counsel in English courts, the role of defence counsel in felony cases was significantly curtailed. Yet, the criminal court was the arena for significant innovation and experimentation by lawyers for both prosecution and defence. Above all, the social power of the oath was in the process of being displaced by an emotional regime more typical of a modern, secular world. This chapter explores the importance of this moment in English legal history for understanding the changing role of emotions in the criminal trial. It charts a dramatic shift in the emotional regime of criminal courts, as the decline in influence of divine providence indicating truthfulness and emotional sincerity was accompanied by changes precipitated by the presence of lawyers in the courtroom. Where the ‘proofs’ provided by providence, in addition

1 John M. Beattie, ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law & History Review 9, no. 2 (1991): 221–67; Thomas P. Gallanis, ‘The Mystery of Old Bailey Counsel’, Cambridge Law Journal 65 (2006): 159–73; Tim Hitchcock and Robert Shoemaker, London Lives: Poverty, Crime and the Making of a Modern City, 1690–1800 (Cambridge: Cambridge University Press, 2015), 186–9; David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000). 2 John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003). 3 Stephan Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England’, Cornell Law Review 75 (1989–1990): 496–609; Allyson N. May, The Bar and the Old Bailey, 1750–1850 (Durham: North Carolina University Press, 2003).

374

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  375 to swearing on the Bible, had once been viewed as a ‘security’ which encouraged litigants and witnesses to be truthful at the risk of divine punishment, the introduction of professional legal counsel secularised and complicated legal proceedings. Lawyers used their legal knowledge to challenge evidence, dispute details, and raise points of law with the judge, demonstrating what Langbein describes as ‘truth-detecting efficacy’.4 But they also performed, emoted, gestured, crafted eloquent and impassioned speeches, and skilfully manipulated the emotions of witnesses and the jury to bring sworn testimony into question. The importance of emotions in this transitional period – invested in the belief in divine providence, or skilfully interrogated and performed by a lawyer through gesture, action, and eloquence – is a significant area for further research. By exploring the collision between deeply felt religious beliefs about the power of an oath to provoke fear and awe, as well as the professional performances of counsel skilled in manipulating emotions and obfuscating ‘truthful’ testimony, this chapter combines two methodological approaches proposed by the legal scholar Terry Maroney. We adopt an ‘emotional phenomenon approach’, investigating the experience of emotion to demonstrate the influence of belief in divine providence and Christian obligation on the behaviour of judges, juries and protagonists, and on legal practice in the eighteenth century. Investment in the notion of God’s omniscience, as well as fear of divine anger or punishment, motivated the performance of particular emotions, and influenced the way that emotional performances were received and interpreted. On the other hand, the latter part of the chapter relies on a ‘legal actor approach’, focusing on the emotional performances of lawyers and their attempts to manipulate and engage the emotions of other legal actors to challenge and complicate assumptions of truthfulness.5 This inquiry offers a new perspective, which contributes to scholarship by Malcolm Gaskill, T.P. Gallanis and others on rules of evidence and evidentiary standards during the eighteenth century. Gaskill charts a transition from the ‘religious monopoly of truth’ to ‘legal truth increasingly measured by empirical standards’, demonstrating how expert testimony from medical professionals superseded reliance on providential and superstitious proofs.6 Gallanis demonstrates that early eighteenth-century legal theorists viewed testimony under oath as an evidentiary standard because it created a strong emotional obligation for the witness to speak the truth: this was not the case with hearsay evidence, for example. Gradually, however, cross-examination became the trusted method for ensuring truthfulness.7 By explaining and exploring these shifts with emotions in mind, we demonstrate the extent to which emotional performances (gesture, language, eloquence) and the emotional scripts referenced in court (providence, honour, faith in the law) have the potential to influence the practice of criminal justice. At the same time, there was a socially constructed class dimension which contributed to the new emotional regime. It was associated with the rise of polite sensibility, and partly replaced

Langbein, The Origins of Adversary Criminal Trial, 246. Terry Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field’, Law and Human Behaviour 30 (2006): 119–42. 6 Malcolm Gaskill, ‘The Displacement of Providence: Policing and Prosecution in Seventeenth- and Eighteenth-Century England’, Continuity and Change 11, no.3 (1996): 341–74 at 354. 7 Thomas P. Gallanis, ‘The Rise of Modern Evidence Law’, Iowa Law Review 84 (1999): 533 (499–560). 4 5

376  Research handbook on law and emotion the fear of God with social judgements, as well as the evidentiary culture of lawyers. Showing oneself to be God-fearing by taking an oath to tell the truth was traditionally considered a sufficient guarantee of authenticity and credibility. But as the century progressed, displays of emotion by witnesses were increasingly interpreted according to class-based assumptions about character and moral integrity. Character was an important consideration regardless of social class, and a good character (evidenced by honesty, work ethic, family and standing within the community) increased a witness’s credibility in the courtroom.8 For middle- and upper-class participants, masculine honour was associated with private virtues such as integrity and sobriety, but also with professional reputation and public standing, which were secured by performing appropriate emotions in public.9 Counsel often played upon witnesses’ concern for their reputation by insinuating that they lacked honour or authenticity, attempting to goad them into making more revealing statements, or exhibiting greater emotion during their testimony, and thereby offending against the rules of politeness. The eighteenth-century jury, drawn from the same middling social circles, was held to similar emotional standards. In addition to fearing God’s wrath if they did not do their duty, jurors were afraid of the reputational damage, which would follow an appearance of condoning dishonesty or lack of compassion. As this chapter will demonstrate, while religion’s capacity to structure emotional norms was waning, social motivations for truthfulness and emotional authenticity were ever more powerful, and were reinforced throughout the judicial process. This case study uses material from regional assizes, as well as the Old Bailey Proceedings (or Sessions Paper), a semi-official report published at the conclusion of each session at London’s famous criminal court. The consistency and regularity with which the Proceedings were published, and their reputation for accuracy (if not for comprehensiveness), allows the historian to track changes in legal practice, as well as market-driven editorial choices about which content to include, and in what level of detail.10 This focus on London is instructive since, as Allyson May has noted, ‘the “special problems of the metropolis” would shape the development of English trial procedure’.11 The Proceedings can be used, therefore, to suggest the declining influence of emotions associated with religion and superstition in the criminal courtroom, the increasing presence of lawyers, and the causes and characteristics of changing emotional regimes.

On character, see Alexandra Shepard, Accounting for Oneself: Worth, Status, and the Social Order in Early Modern England (Oxford: Oxford University Press, 2015). 9 Amy Milka, ‘Feeling for Forgers: Character, Sympathy and Financial Crime in London During the Late Eighteenth-Century’, Journal for Eighteenth-Century Studies 42, no.1 (2019): 7–25. The credibility of female witnesses, on the other hand, was bound up with notions of sexual honour. 10 On the format, editorship and management of the Proceedings, see Simon Devereaux, ‘From Sessions to Newspaper? Criminal Trial Reporting, the Nature of Crime, and the London Press, 1770–1800’, The London Journal 32, no.1 (March 2007): 1–27; Langbein, The Origins of Adversary Criminal Trial, 180–90. The Proceedings are available online at oldbaileyonline.org, accessed 13 January 2021. 11 May, The Bar and the Old Bailey, 1. 8

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  377

GOD’S LAW: THE INCIDENCE OF PROVIDENCE IN ASSIZE SERMONS AND JUDICIAL CHARGES ‘It requires no manner of Skill to make a plain and honest Defence.’ So wrote William Hawkins in his famous Treatise of the Pleas of the Crown (1716), one of the key works of jurisprudence informing the criminal trial during the eighteenth century. Hawkins’ faith, and the faith of many other legal practitioners and theorists, that criminal defendants should be able to exculpate themselves simply by telling the truth, as evidenced by their emotional demeanour (‘artless and ingenuous Behaviour’), was supported by the assumption that an unprepared, unscripted defence was a better guarantee of truthfulness than one artfully prepared by a paid lawyer.12 This belief was the foundation of the criminal trial in the early modern period, and was used to justify withholding counsel from felony defendants. Ideally, this made the criminal trial a mediation between disputing parties and their stories as performed, and adjudicated by the presiding judge. But in complex cases, this method of proceeding clearly favoured the prosecution’s case: not only could victims of crime procure legal advice and counsel, they were more easily able to gather witnesses and build a case against the defendant, who would be imprisoned until his trial, which he faced unprepared and without a copy of the indictment. The inequalities inherent in such a system were readily apparent and from the 1730s onwards, despite being legally prohibited, counsel were permitted to represent defendants in a number of criminal cases.13 Affording counsel to a defendant who faced capital punishment seemed humane and, as some complicated cases (such as forgery) required precise legal knowledge, necessary. By the end of the eighteenth century, it was not unusual for both the prosecutor and defendant to be represented by lawyers. The right to defence counsel was finally written into law by the Prisoner’s Counsel Act of 1836. Against this backdrop of change in legal practice, the place of truth in the criminal trial was also transformed, as the dominant emotional regime shifted from religious readings of the trial process, to the performance of lawyers intended to evoke emotional states. Over the course of the century, courts relied less on superstitious or religious explanations as ‘proofs’ of criminal activity. But rather than a strict departure from providential proofs and divine intervention, the courtroom saw a transformation of the language of revelation. Where God’s intervention had previously been credited with foiling escapes, uncovering evidence, or even causing the body of a murdered person to bleed in the presence of the killer, divine intervention might instead simply reveal a criminal’s guilt in their disordered emotions or signs of a troubled conscience.14 All witnesses (except defendants) in criminal courts took a solemn oath upon the Bible to tell the truth. This oath was one example of a protagonist’s emotional ‘performance’ as described by Hawkins in his book on Crown law. But emotional performance was a double-edged threat in the courtroom. As a prisoner’s unruly emotions might be used as proof of a criminal secret, so a witness’s failure of emotional control might be viewed as a sign of dishonesty

William Hawkins, A Treatise of the Pleas of the Crown, Vol. 2 (London, 1716), 400. Tim Hitchcock and Robert Shoemaker have recently found evidence of the presence of counsel at the Old Bailey from the 1720s. Hitchcock and Shoemaker, London Lives, 186–9. 14 Lincoln Faller, Turned to Account: The Forms and Functions of Criminal Biography in Late Seventeenth- and Early Eighteenth Century England (Cambridge: Cambridge University Press, 1987), 75. 12 13

378  Research handbook on law and emotion and impropriety.15 The testimony of all parties was thus assessed against various measures of reliability: had they taken the oath, behaved appropriately while giving evidence, and seemed to be socially respectable people? In sum, was their character and credibility beyond question? As the increasing presence of lawyers professionalised and secularised the criminal trial, the discourse surrounding credibility and reading emotions was gradually divested of its religious connotations and absorbed into everyday legal parlance. Charges to grand juries at regional assizes across England also demonstrate the importance of oaths to the judicial process in the early eighteenth century. Oaths are speech acts, or ‘emotives’: in modern parlance they ‘do things with words’; in judicial settings they may contribute to verdicts.16 In the eighteenth century, taking an oath ‘was calling upon God to witness, i.e. to take notice of what we say, AND it is invoking his vengeance, or renouncing his favour, if what we say be false, or what we promise be not performed’.17 In other words, the oath established a binding contract and invested it with transcendent authority.18 It also acknowledged the power of emotions, especially fear. Judges frequently reminded the assembled jurors of the oath they had taken to present and decide cases ‘without fear or favour’, invoking notions of masculine honour and national pride as well as personal interest in the protection of property to engage their diligence. But the charge was also an opportunity to remind jurors of the spiritual consequences of negligence, bias or concealment. In a 1718 charge at Westminster Hall, justice Whitelocke Bulstrode reminded the assembled Middlesex jurors that: As he who takes an Oath to give Evidence, swears that he will tell the Truth, the whole Truth, and nothing but the Truth, is guilty of perjury before God if he wilfully conceals any Part of the Truth; So, Gentlemen, if you know of any Offences, that I shall give you in Charge, and do not present them, you will be equally Guilty of Perjury before God.19

Judicial process relied on the belief that individuals under oath, whether witnesses giving testimony or jurors deciding cases of local importance, would act with truthfulness and integrity for fear of divine punishment or a providential revelation which would cause their undoing. John Hawkins told the jury at a Middlesex quarter sessions in 1770, that ‘civil sanctions have been found too weak to restrain men from violence, and that without the belief of a God, of Providence, and a future state, society could in no way subsist’.20 The growing concern that the lower classes particularly were incapable of moral reasoning without invoking the fear of divine vengeance surfaced in many discussions of oath-taking. A 1789 pamphlet dedicated to Lord Chief Justice Kenyon aimed to address the ‘gross ignorance of many among the lower orders of society’ by explaining the meaning of an oath in catechistical question-and-answer

For an example of a cross-examination which hinged on reading emotions, see Amy Milka, ‘Impostors: Performance, Emotion and Genteel Criminality in Late Eighteenth-Century England’, Emotions: History, Culture, Society 1, no.2 (2017): 95 (81–107). 16 See William Reddy, The Navigation of Feeling (Cambridge: Cambridge University Press, 2003). 17 Archdeacon William Paley, The Principles of Moral and Political Philosophy (London: Faulder, 1785), 162. 18 John Spurr, ‘A Profane History of Early Modern Oaths’, Transactions of the Royal Historical Society, 11 (2001), 42. 19 Georges Lamoine ed., Charges to the Grand Jury 1689–1803 (London: Royal Historical Society, 1992), 93–98 (original emphasis). 20 Lamoine, Charges to the Grand Jury, 427. 15

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  379 style.21 Referring to a recent assize in which a key witness’s weak understanding of oaths prevented the court from hearing his testimony, the author made clear that ignorance surrounding oaths was an issue of national importance; not for spiritual reasons, but for the impediment it presented to justice. This debate persisted in the nineteenth century, when educated understandings of truth-seeking attributed more complex moral and social motivations for observing oaths, but saw the benefit of maintaining ‘primitive understandings’ about revelation and divine vengeance among the lower classes in the courtroom.22 So the simple social and religious emotional community engendered by the oath was in the process of being displaced by another, more sophisticated, emotional regime typical of a modern, secular world. Indeed, petit jurors, perhaps because of their social position and standing in the local community, were sometimes praised for departing from their oaths, for example when they committed ‘pious perjury’ by undervaluing stolen goods to secure a lesser punishment for a criminal.23 Thus the power dynamics surrounding oaths were clearly influenced by the social position of the courtroom actor, and the extent to which their behaviour conformed with middle-class emotional norms, in this case compassion. At the same time there was concern that the efficacy of oaths and fear of God as a guarantee of truthfulness were under threat from the spread of immoral behaviour more generally. In 1736 at the mid-summer quarter sessions in Guildford, the presiding judge charged the jury to present all ‘common Swearers’, claiming that ‘a Man who hourly Invokes God by rash & vain swearing’ was unlikely to ‘boggle at a false oath’ where it served his interests.24 Excessive swearing and taking the Lord’s name in vain was held up, along with drunkenness and other sinful behaviours, as the gateway to more serious transgressions such as perjury. If fear of God had failed to reform the behaviour of the lower classes, fear of the law must take its place. Charges to grand juries generally appealed to jurors as upstanding, respectable men who would set an example for their communities by weeding out and punishing such behaviour, thereby encouraging the development of middle-class emotional norms of veracity. Divine providence and the importance of oaths figured prominently in charges from the early eighteenth century, and some judges were convinced that despite the possibility of equivocation, oaths were ‘the highest Security for the Sincerity of the Relation of Facts’.25 Vigilance with regard to public morals and suspicious behaviour was paramount for protecting this bulwark of the judicial process. However, the erosion of complete faith in the oath was clear even in judicial calls to defend it. One charge from 1738 asked ‘how insecure & Precarious must the Persons & Property of all men be, when all Contests relating to Both, are decided & determin’d for ye most part upon Evidence given upon Oath?’26 Appeals to truthfulness and integrity were common in judicial charges, but as the eighteenth century progressed, fewer trial judges appealed to religious faith and duty to ensure the cooperation of juries. Ultimately, jurors were instead presumed to be motivated by the ‘new Rev. D. G., Short Account of the Nature and Obligation of an Oath (London, 1789), 4. Simon Devereaux, ‘Swearing and Feeling: The Secularisation of Truth-Seeking in the Victorian English Court’, in Criminal Justice During the Long Eighteenth Century: Theatre, Representation and Emotion, eds, David Lemmings and Allyson N. May (London: Routledge, 2019), 113 (104–27). 23 James Oldham, ‘Truth-Telling in the Eighteenth-Century English Courtroom’, Law and History Review 12, no.1 (1994): 106 (95–121). 24 Lamoine, Charges to the Grand Jury, 285. 25 Lamoine, Charges to the Grand Jury, 385 (Berwick, 1754). 26 Lamoine, Charges to the Grand Jury, 290 (Guildford, 1738). 21 22

380  Research handbook on law and emotion religion’ of patriotism: ‘we have only to enlist under the banners of the British constitution, to support the cause of liberty and truth’.27 Religious punishment was no longer seen as threatening enough, and so the power of the nation (either love for one’s country or fear of its punishment) had to be invoked instead. It is appropriate now to consider the role of oaths in finding the truth via some examples of criminal trial.

PROVIDENCE, OATH-TAKING AND THE LAWYERS: THE CHANGING EMOTIONAL REGIME OF OLD BAILEY TRIALS God and the supernatural had played a role in English criminal trials for centuries. Before 1215, they were implicated in truth-telling in three ways: via trials by ordeal, trials by battle, and the practice of oath-taking.28 In each of these cases, divine revelation was expected to point the way to proof of guilt or innocence, veracity or falsity. But from the perspective of the eighteenth-century Enlightenment, trials by ordeal or battle were ‘gross superstitions, … in which it was impossible for innocence to escape, without a miracle from Heaven’.29 In formal process, among the providential elements in jurisprudence, only oath-taking contributed to eighteenth-century trials, usually in the form of witnesses for the prosecution and (from 1702) defence swearing to tell the truth (ad Veritatem dicendam), although in civil proceedings some documents were verified by oath.30 Grand and petty jurors also took an oath on the bible (unless they were non-Christians, for whom oaths were modified), although defendants were not sworn until 1898, since they were presumed innocent until proved guilty, and for them to swear would therefore constitute ‘a sort of insult upon innocence’.31 Indeed a regime ruled by Christian belief regarded fraudulent oath-taking as imperilling the immortal soul.32 The importance of oath-taking to the administration of justice in the eighteenth century was such that a whole species of offences was derived from false-swearing, under the title of perjury.33 The pre-eminent historian of the adversarial criminal trial, John Langbein, has argued that the beginnings of lawyerization in the early eighteenth were promoted by the judges’ concerns about semi-professional witnesses who perjured themselves in return for statutory rewards, as well as the dubious veracity of ‘crown witnesses’: accomplices who were promised immunity from prosecution in return for their evidence.34 Thus some professional lawyers were clearly doubtful about the substantive truth-telling efficacy of religious oath-taking half a century Lamoine, Charges to the Grand Jury, 4 (Henry Jordell, Norwich Quarter Sessions, 1793). John Hudson, The Formation of the English Common Law (Harlow: Longman, 1996), 72. See also John H. Baker, An Introduction to English Legal History (4th ed.) (London: Butterworths, 2002), 4–6. 29 William Eden, Principles of Penal Law (London: White and Cadell, 1771), 160. 30 Sir Jeffray Gilbert, The Law of Evidence (London: Henry Lintot, 1756), 19–21, 25, 52, 57, 66, 70, 87, 268. Defence witnesses were not sworn before 1702 (Langbein, The Origins of Adversary Criminal Trial, 52–3). 31 Gilbert, Law of Evidence, 145 (‘Infidels cannot be Witnesses, because they are under none of the Obligations of our Religion’); Eden, Principles, 167. See also Langbein, The Origins of Adversary Criminal Trial, 277–8 (including the rule nemo debet seipsum accuser, in William Nelson, Office and Authority of a Justice of the Peace (1718), 253). By the 1820s, oaths were being tailored for non-Christians (see Gallanis, ‘Rise of Modern Evidence Law’, 518n.). 32 Devereaux, ‘Swearing and Feeling’, 104. 33 Hawkins, Pleas of the Crown (1716–21), 172-82. 34 Langbein, The Origins of Adversary Criminal Trial, 148–77. 27 28

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  381 before the first significant incursion of barristers to criminal trials in the 1780s. Their solution was to substitute the emotional norms of law practice for fear of God. Indeed, perhaps there was naturally more scepticism about the intervention of divine providence among educated men generally than among the poor and un-educated, who made up the majority of defendants in criminal trials.35 On the other hand, Lord Chief Baron Gilbert, whose book was the foremost authority on the law of evidence for most of the eighteenth century, had insisted ‘there is that Sanction and Reverence due to an Oath’, and arguments excluding hearsay evidence were accepted partly on the grounds that they lacked the emotional ‘enhancement to veracity’, which swearing an oath was said to confer on witness testimony.36 In these circumstances, it would be interesting to measure the amount of confidence lawyers and judges had in the testamentary oath and whether that changed over the course of the eighteenth century. Gilbert had stated the default case: ‘every plain and honest Man affirming the Truth of any matter under the Sanction and Solemnities of an Oath, is intitled to Faith and Credit, so that under such Attestation the Fact is understood to be fully proved’. But he admitted that in the case of a ‘notorious and public Criminal’, or of ‘Men atheistical and loose to Oaths’, the presumption of veracity was overturned, and his oath was of no value, from the perspective of an educated professional.37 Thus William Smith, the future Chief Justice of Quebec, said on visiting the court of King’s Bench in 1784: ‘The Oaths are shamefully administered with indecent Rapidity.’38 So there was ample room for doubts about the justificatory value of an oath in English courtrooms.

Source: Old Bailey Proceedings.

Figure 23.1

Incidence of ‘Upon Your Oath’ in Old Bailey Sessions Papers (All Offences), 1701–1820

Gaskill, ‘Displacement of Providence’, 351, 353, 357. Langbein, The Origins of Adversary Criminal Trial, 179–80, 237; Gilbert, Law of Evidence, 150. 37 Gilbert, Law of Evidence, 142–3, 158 (‘Men atheistical and loose to Oaths are not of the same Credit as Men of good Manners and clear Conversation’). 38 Leslie Francis Stokes Upton, ed., The Diary and Selected Papers of Chief Justice William Smith, 1784-1793 (Toronto: Champlain Society, 1963), 169. 35 36

382  Research handbook on law and emotion Figure 23.1 analyses the incidence of the phrase ‘upon your oath’ in the transcripts of all Old Bailey trials from the 1700s to the 1810s. The phrase usually appeared as a reminder to witnesses that they had sworn to tell the truth. For example, in May 1746, William Spear, servant to Joseph D’Anvers esq, was giving evidence at the Old Bailey against William Russel, alias Saunders, who was on trial for a highway robbery involving the theft of a silver watch. After describing the circumstances, Spear was asked ‘Do you believe, upon your Oath, that is the Man [i.e. Russel] that took your Watch?’ The identification of the prisoner was crucial, because the offence carried the death penalty; hence the solemn invocation of the testamentary oath.39 On this occasion, there were no counsel involved, and the interlocutor was the presiding judge, but defendants sometimes asked the same question, as did Bryan Carney and Elizabeth Burroughs at their trial for theft of another watch in September 1736. The prosecutor in this case, William Orr, had lost his watch in a private room of a coffee house, and the prisoners sought to prove that Orr had given Burroughs his watch in exchange for sexual favours. Carney, who allegedly had pawned the goods for six shillings, asked Orr ‘upon his Oath if he did not leave the Watch with the Woman for 6s’, and Orr shot back ‘Upon my Oath I did not’. Burroughs was more explicit: she asked him ‘Pray, Sir, did not you lye with me? – Upon your Oath,’ to which he replied ‘Upon my Honour and my Oath, my Lord, I did not,’ and insisted there was no bed in the room. The issue clearly turned upon the credit given to the witnesses’ oaths, and the prosecutor endeavoured to cast doubt on them; at one point he demanded of a servant girl, ‘Ask her (lest she should play the Jesuit) whether she saw the Watch in the Girl’s Hand, up Stairs or below,’ thereby appealing to anti-Catholic prejudice, which asserted that Jesuits could not be trusted.40 Indeed, in both these cases, the invocation of the oath registered doubt as to its enduring power among the common people who were the usual defendants in criminal trials; and sought to harness fear of divine punishment in the event of perjury. Reminders of divine providence were being used to press the plebeian protagonists on their evidence. As Simon Devereux has pointed out, and Figure 23.1 confirms, the peaks in the incidence of such utterances occurred in the years between 1780–1810; and these were the years when defence counsel first appeared at the Old Bailey in substantial numbers.41 It therefore appears that part of the lawyers’ early strategies for challenging the prosecution’s case was to remind witnesses that they were on oath, thereby enforcing the emotional regime of truth-telling. Thus, at the 1785 trial of William Bear and William Davis, for theft of some timber from a barge in the Thames, William Garrow, prisoners’ counsel, pressured John Hyser, the principal witness for the prosecution, by repeatedly reminding him that was on oath. Hyser was a young apprentice in the service of Bear, who was a warfinger (i.e. he was responsible for the business on a wharf), and Garrow demeaned him as an unreliable witness. When Hyser was sworn Garrow said to him ‘Stand up, little honesty,’ and repeatedly accused him of seeking revenge for dismissal by his master, a charge that he deployed sarcastically to doubt the witness’s veracity. The exchange is worth quoting in full:

Old Bailey Proceedings (OBP), R. v. Russel, 15 May 1746, t17460515-22. OBP, R. v. Burroughs and Carney, 8 September 1736, t17360908-59. For eighteenth-century anti-Catholicism see C. Haydon, Anti-Catholicism in Eighteenth-Century England (Manchester: Manchester University Press, 1994), 3 (emphasis added). 41 Hitchcock and Shoemaker, London Lives, 356–7; May, The Bar and the Old Bailey, 34–5. 39 40

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  383 [Garrow]

Now I ask you upon your oath, (God knows you don't mind that) did not he [i.e. Bear] turn you away?

[Hyser]

I went away, they did not take me up, and he wanted to persuade me from going to sea.

[Garrow]

As the only way of preventing you from being hanged: now whose stitch of bacon was it you stole?

[Hyser]

I never stole any bacon.

[Garrow]

How long was you absent from your master's service?

[Hyser]

I cannot tell rightly.

[Garrow]

Was it a year, or half a year, a month or six weeks?

[Hyser]

It was almost half a year, I worked in Mr. Man’s craft at Chelsea, I was in the craft twice.…

[Garrow]

Can you state the name of any human being, that you have done one honest day’s work for these six months.

Mr. [William] Why do not you answer my friend [i.e. Garrow] by asking him the same question? Fielding [prosecuting counsel] to Hyser Mr. Garrow to Mr. Fielding

I have held many briefs of yours during that time.42

So Garrow insinuated that the apprentice was working for the devil and was a petty thief. Furthermore, he brought Hyser’s character and honour into question, attempting to provoke an angry response, which would offend the emotional norms of the middle-class jury and confirm his social subordination. Even if counsel were unsuccessful in disrupting the evidence through cross-examination, this tactic could bring the witness’ reliability into question by showing that they were not in control of their emotions.43 In this example, Fielding, perhaps sensing this danger, intervened to prevent an emotional outburst from his client and attempted to diffuse the situation with barbed humour.44 Fielding’s teasing implied that Garrow’s defence method was dishonest, and Garrow did not deny it; rather he reminded Fielding that he was sometimes counsel for the defence too. Indeed, this levity suggests that the counsel themselves did not believe in the truth-telling power of the oath: their cross-examination work was simply a mix OBP, R. v. Bear and Davis, 14 September 1785, t17850914-80. For example, in a highway robbery case in 1784, prosecution counsel John Silvester questioned a witness until she became angry, retorting, ‘you may cross me as much as you please, I am sure of the time’. OBP, R. v. Wood and Brown, 8 December 1784, t17841208-2. 44 As Katie Barclay suggests for nineteenth-century Ireland, humour was ‘a tool for closing down questioning’, as well as a defence strategy. Men on Trial: Performing Emotion, Embodiment and Identity in Ireland, 1800–1845 (Manchester: Manchester University Press, 2018), 156. William Fielding was the son of Henry, novelist and Bow Street magistrate. 42 43

384  Research handbook on law and emotion of logic and appeals to current emotional customs. The transition from an emotional regime founded upon religious faith to one based on secular norms and lawyers’ professional practice was in full swing. An important ingredient of this transformation can be identified in the culture of sensibility, which was becoming evident at the Old Bailey by the middle of the eighteenth century. In some cases, refusing to ‘swear to’ the prisoner’s identity, or to certainty regarding stolen goods, was a way for witnesses and victims of crime to demonstrate their emotional pedigree, showing that they possessed too much sympathy and sensibility to be instrumental in condemning a person to death lightly. Counsel pressed prevaricating witnesses hard, but many clearly prided themselves on their selflessness and considered their personal honour to be at stake if they appeared too eager to convict. In a trial for highway robbery in 1755, the victim, a Mr. Manby, was asked to identify a pair of silver buckles which had been found in the prisoner’s possession. Manby replied, ‘I was robbed of just such a pair that night; but as there may be many of the same pattern, I will not swear to them. I believe them to be the same.’45 Manby perhaps hoped that by creating doubt surrounding the provenance of the buckles, the jury would consider a more lenient verdict. Indeed, by the 1770s, the language of the Old Bailey Proceedings suggests a shift in focus: items produced in court were no longer described as ‘sworn to’, but ‘deposed to’, a more secular phrase which reduced the emphasis on oath-taking. But reminders about oath-taking persisted, for they had a practical utility, even if belief in their spiritual value was on the wane. The late eighteenth-century trend towards reminding witnesses of their oaths identified in Figure 23.1 is confirmed by Figure 23.2 below, which analyses a particular sample of Old Bailey cases: those for murder. Murder is interesting in the context of divine revelation and emotion in trials, because it was distinguished in scripture as a most heinous crime, and it was particularly associated with the intervention of providence. As the Bow Street magistrate Henry Fielding put it in 1752, at a time when he felt the incidence of murders was increasing alarmingly: ‘The Divine providence hath been pleased to interpose in a more immediate manner in the detection of this crime than of any other.’46 Like JPs in their charges to Grand Juries, however, Fielding was concerned that the common people who appeared at the Old Bailey did not take their oaths seriously, and he attributed the supposed growth in murders to ‘the general neglect (I wish I could not say contempt) of religion, which hath of late years so fatally overspread this whole nation’.47 Figure 23.2 suggests that the incidence of challenging witnesses on their oaths varied less dramatically in murder trials, and that it occurred more uniformly across the eighteenth century, although it also peaked in the second half of the century. We may speculate that in the case of murder, lawyers and judges were more inclined than in other cases to frighten witnesses by invoking their oaths, because murder was believed to be a crime against God. Thus, Henry Fielding’s Examples of the Interposition of Providence in the Detection and Punishment of Murder (1752), which has been quoted above, was a collection of stories about the manifestation of divine intervention in the detection and punishment of murder. According

OBP, R. v. Gill and Keen, 16 January 1755, t17550116-11. Henry Fielding, Examples of the Interposition of Providence in the Detection and Punishment of Murder (London: A. Millar, 1752), 3–4. 47 Fielding, Examples of the Interposition of Providence, 2. 45 46

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  385

Source: Old Bailey Proceedings.

Figure 23.2

Incidence of ‘Upon Your Oath’ in Old Bailey Sessions Papers (Murder only), 1701–1820

to his biographers, Fielding was not so pious as to believe in these supernatural stories revealing guilt. Rather they argue that this book was: a rhetorical strategy calculated to instil fear into the minds of the simple audience to whom the book is addressed – fear and hope being, in Fielding’s view, the strongest of the passions governing the conduct of men and their passions …. to which the Christian religion ‘immediately applies.’48

As stated above, Fielding believed that murders were on the increase, and The Interposition of Providence was designed as an emotional deterrent to plebeian readers who were not especially pious, but conventionally religious and credulous. Fielding was attempting to shore up the traditional regime of fear and hope invested in God. A similar appeal to popular apprehensions of divine providence may be observed in Old Bailey trials for murder which featured counsel. Nine counsel appeared in R. v. Annesley and Redding (1742), four for the prosecution, and five for the defence.49 The defendants were indicted for the murder of Thomas Egglestone, a poacher, who was shot by Annesley when caught netting fish near Staines in Middlesex. Annesley was accompanied by Joseph Redding, the local gamekeeper, and the prosecutor was John Egglestone, son of the deceased, who was poaching with his father when the latter was shot. The case turned upon whether Annesley’s gun went off by accident: Egglestone alleged that Annesley had threatened his father and then fired, but Annesley insisted the gun was fired by mistake.50 Unfortunately for the prosecution,

Martin C. Battestin and Ruthe R. Battestin, Henry Fielding: A Life (London: Routledge, 1993), 549. 49 OBP, 15 July 1742, t17420715-1. 50 The case was something of a cause celebre because Annesley was a claimant to the earldom of Anglesey, and the prosecution was funded by the incumbent earl, who wanted to get rid of his rival. (See, 48

386  Research handbook on law and emotion Eggleston was hardly a credible witness, being an admitted poacher; moreover, he contradicted himself in giving evidence, and the judge appeared favourable to Annesley, allowing him to sit within the bar because he was claimant to a peerage. So physical separation reaffirmed the superior status and emotional authenticity automatically associated with the defendant. In these circumstances, and having suffered defeat in a major point of law at the hands of Alexander Hume Campbell, leading counsel for the defence, the prosecution counsel decided, to the annoyance of the judge, to call four witnesses to Egglestone’s character, asking each in turn explicitly ‘Do you think he would foreswear himself.’ This was obviously a desperate measure, designed to reassure the jury that – like them – the prosecutor was a God-fearing man. Although none of the character witnesses was prepared to say that Eggleston would lie on oath, this stratagem did not work: the judge summed up in favour of Annesley and Redding, and at his prompting the jury found them guilty of the minor offence of chance medley (accidental killing).51 The imperative to give evidence ‘upon your oath’ was thus transformed from a reminder of religious duty, to a pointed slight on the witness’ moral integrity and thus, their standing in the community. Two more Old Bailey cases serve to illustrate how the evolving rule of law in English criminal courts during the later eighteenth century rendered religious oath-taking as substantially redundant in the business of truth telling and allowed legal professionals to control the emotional regime of the trial. First, Langbein has documented a 1749 trial for highway robbery in which the judge destroyed the case for the prosecution by pointing out a thief-taker’s (i.e. unofficial thief-catcher) duplicity in tricking a suspect to confess. The thief-taker had promised the defendant on his oath that he would be discharged if he admitted the offence. But on confession he had the poor man indicted instead, and at the trial he boasted about his clever strategy and sought the reward prescribed by statute. The judge thereupon berated him in shocked tones: ‘You are telling them [i.e. the jury] that you have no regard to an Oath.’52 As the editor of the sessions paper53 thundered, by forswearing himself, the thief-taker had proved himself ‘wicked’ as well as unreliable. The thief-taker was expected to adhere to the emerging emotional regimes of truth-telling. When he failed to do so, the judge did not invoke divine punishment, but took it upon himself to condemn him as a deviant. This effectively constituted a penal action taken by an official representing a nation-state. It therefore illustrates the transition to a secular foundation for emotional norms in the courtroom. Secondly, at the trial of William Whiteway for murder, in October 1787, the oath was brought up only as a matter of form. The prosecutor, Thomas Philbin, who had no counsel, had been shot by a thief-taker for resisting arrest, and subsequently accused him of attempted murder. The counsel for the

Oxforddnb.com, sub. Annesley, James, accessed 13 January 2021). 51 The judge insisted: Gentlemen, as I said before, the Question you are to consider of, is, whether this is Manslaughter, or Chance-Medley in Mr Annesley; for as to Redding, he must certainly be acquitted; and as to Murder, I cannot think there is any Evidence to make Mr Annesley guilty of that; but as there was some hot Blood there may be Reason to consider, whether it is not Manslaughter; on the other Hand, if Mr Annesley was carrying his Gun by his Side, and it went off accidentally, then it will be Chance-Medley. 52 R. v. George Welden, Langbein, The Origins of Adversary Criminal Trial, 232–4. 53 The sessions paper was the pamphlet account of the Old Bailey trials published after the proceedings were complete (see Old Bailey Proceedings).

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  387 defence, Garrow, implied that Philbin, who commanded a press gang, had threatened the thief-taker with a bludgeon, and reminded him of his oath: [Garrow]

Upon your oath, what was the expression that you used when you raised the stick? –

[Philbin]

I used no expression at all; I did not raise the stick any higher than this; I did not raise it for any purpose to strike him, or to do any harm with it.

[….] [Garrow]

‘Did not you say, you would not be taken by any b - y b - r of a thief-taker, and that you would knock his brains out if he offered to take you?

[Philbin]

As I wish I may be saved, I did not say such a thing, ….

So the prosecutor affected to take his oath seriously. But Garrow’s examination of another witness drew this admission: ‘Whiteway [the thief-taker] said he was his prisoner, and he [Philbin] said he would not go with never a d - d bloody b - r of a thief-taker in England, and he raised his stick, bearing it high.’ And Garrow subsequently asked another member of the press gang: ‘Did not you think Philbin wrong, in using such expressions to the officer; did you think he would go with him?’ Here too, then, counsel was applying the emotional norms of the secular state, which reinforced official hierarchies against the appeal to an Englishman’s birthright. Indeed, in his summing up, the judge did not even mention the credibility of the prosecutor, or his likely perjury, but rather pointed out that the evidence did not come within the statute, and stressed that the prisoner Whiteway ‘was a constable acting under the authority of a warrant granted by a Justice of peace, for an assault and battery, by Philbin’. Garrow had previously insinuated that Philbin’s ‘expressions’ of resistance to the constable were impolite, as well as criminal. Thus, the emotional regime of this trial was centred on the rule of law, rather than the rule of God, and the lawyers also appealed to the feeling rules of the middle classes, rather than the norms of the poor who appeared before them. The trial had revealed that the prosecutor’s character was inauthentic, and that he was ungodly, too. The changing emotional norms associated with truth telling were accompanied by other strategies to invoke a more secular emotional regime. This is evident in the emotional posturing of prosecution counsel, who had the advantage of opening the trial with a statement of the case against the prisoner. While many opening speeches were brief and perfunctory, in capital cases, lawyers frequently presented themselves as men of feeling, expressing sympathy for the prisoner’s plight. This could involve an emotional balancing act in which counsel expressed concern for public safety and the rule of law, but also implored the jury to afford the prisoner a fair trial, remembering that a human life was at stake. Counsel could also use opening speeches to inflame the jury’s indignation against the prisoner, sympathy for the victim, or a sense of national pride in upholding the law. Opening a case for breaking the peace by shooting in 1787, Garrow characterised the defendant as ‘a daring assassin, urged by impetuous desire, by resentment, or any other ungovernable passion’, encouraging the jury to consider public safety, before adding somewhat disingenuously, ‘I do not desire to inflame

388  Research handbook on law and emotion your passions.’54 In opening a case of perjury in 1789, Fielding described the distress of his genteel female client at being arrested and taken to a sponging-house: ‘upon my honour I can hardly keep my temper while I am describing it […] I am sure it must have made an impression upon you similar to what it has made upon me’.55 The imperative for the jury to live up to their reputation as honourable, virtuous men was intensified by an expectation that their collective emotions would match those of the gentlemen in the courtroom, but also reflect the feelings of the middle-class public more generally. Counsel’s appeals to the jury, and by extension the public who consumed the Old Bailey Proceedings, directed the emotions towards the victims of crime and against the criminal defendant, before the evidence had even begun.

CONCLUSION The mid- to late eighteenth-century criminal trial came to rely more heavily on ‘empirical’ evidentiary standards, discounting hearsay, superstition, and rumour. Increasing application of the laws of evidence, and the availability of more reliable expert testimony from medical practitioners, for example, generated weightier evidence, and more of it. However, witness testimony was still the major (and often the only) form of evidence offered in criminal trials.56 In the context of a trial without lawyers, oath-taking had been a crucial emotional performance that was used to assess credibility. If oath-taking was no longer considered to guarantee the veracity of witnesses, their emotional performances under the pressure of secular norms would become more important in determining their truthfulness. By the end of the eighteenth century, the ‘truth-detecting efficacy’ of cross-examination was regarded by many to be the most effective method of discovering the truth in the courtroom.57 The simple exhortation ‘upon your oath’ appears to have been only one method in a suite of performances and techniques available to lawyers to press witnesses and construct a narrative about guilt and innocence.58 While invoking the oath reminded some witnesses of a religious obligation to truthfulness, in other instances it was a means of insinuating a lack of honour or good character and invoking the powerful social norms of the middle classes. Attempts to detect truth in the courtroom reveal much about the changing moral and emotional standards of the community at large, and the emotional phenomena which govern beliefs and behaviour. Eighteenth-century lawyers invoked contemporary emotional standards and performed emotions such as sympathy, patriotism, or anger to appeal to the secular sensibilities of the courtroom audience. The ‘truth-detecting efficacy’ described by Langbein depended not only on counsel’s legal acumen, but on appeals to the emotions and the ability to play on the emotions of others. Emotional standards were (and continue to be) used to pressure witnesses, highlighting or provoking adverse responses which undermined their credibility in the courtroom. As engineers of new forms of ‘revelation’ through cross-examination, the rules

OBP, R. v. Elliott 11 July 1787, t17870711-41. OBP, R. v. Elias, 25 February 1789, t17890225-101. 56 Gaskill, ‘Displacement of Providence’. 57 Langbein, The Origins of Adversary Criminal Trial, 246. 58 For further discussion of the emotional performances of lawyers, see Milka and Lemmings, ‘Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom,’ Journal of Legal History 38, no.2 (2017): 155–78; Barclay, Men on Trial. 54 55

Lawyerization, providence, and emotion in the eighteenth-century criminal trial  389 of evidence, and careful emotional performances, lawyers were instrumental in transforming the truth-seeking process. Using old tools such as the oath in new ways, the practices and strategies of counsel engaged the emotions in favour of a new secular emotional regime.

REFERENCES Baker, John H. An Introduction to English Legal History (4th ed.). London: Butterworths, 2002. Barclay, Katie. Men on Trial: Performing Emotion, Embodiment and Identity in Ireland, 1800–1845 Manchester: Manchester University Press, 2018. Battestin, Martin C., and Ruthe R. Battestin. Henry Fielding: A Life. London: Routledge, 1993. Beattie, John M. ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’. Law & History Review 9, no. 2 (1991): 221–67. Devereaux, Simon. ‘From Sessions to Newspaper? Criminal Trial Reporting, the Nature of Crime, and the London Press, 1770–1800’. The London Journal 32, no.1 (March 2007): 1–27. Devereaux, Simon. ‘Swearing and Feeling: The Secularisation of Truth-Seeking in the Victorian English Court’. In Criminal Justice During the Long Eighteenth Century: Theatre, Representation and Emotion, edited by David Lemmings and Allyson N. May. London: Routledge, 2019. Eden, William. Principles of Penal Law. London: White and Cadell, 1771. Faller, Lincoln. Turned to Account: The Forms and Functions of Criminal Biography in Late Seventeenth- and Early Eighteenth Century England. Cambridge: Cambridge University Press, 1987. Fielding, Henry. Examples of the Interposition of Providence in the Detection and Punishment of Murder. London: A. Millar, 1752. Gallanis, Thomas P. ‘The Mystery of Old Bailey Counsel’. Cambridge Law Journal 65 (2006): 159-73. Gallanis, Thomas P. ‘The Rise of Modern Evidence Law’. Iowa Law Review 84 (1999): 499–560. Gaskill, Malcolm. ‘The Displacement of Providence: Policing and Prosecution in Seventeenth- and Eighteenth-Century England’. Continuity and Change 11, no. 3 (1996): 341–74. Gilbert, Jeffray. The Law of Evidence. London: Henry Lintot, 1756. Hawkins, William. A Treatise of the Pleas of the Crown, Vol. 2. London, 1716. Haydon, Colin. Anti-Catholicism in Eighteenth-Century England. Manchester: Manchester University Press, 1994. Hitchcock, Tim and Robert Shoemaker. London Lives: Poverty, Crime and the Making of a Modern City, 1690–1800. Cambridge: Cambridge University Press, 2015. Hudson, John. The Formation of the English Common Law. Harlow: Longman, 1996. Lamoine, Georges, ed. Charges to the Grand Jury 1689–1803. London: Royal Historical Society, 1992. Landsman, Stephan. ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England’. Cornell Law Review 75 (1989-1990): 496–609. Langbein, John H. The Origins of Adversary Criminal Trial. Oxford: Oxford University Press, 2003. Lemmings, David. Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century. Oxford: Oxford University Press, 2000. Maroney, Terry. ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field’. Law and Human Behaviour 30 (2006): 119–42. May, Allyson N. The Bar and the Old Bailey, 1750–1850. Durham: North Carolina University Press, 2003. Milka, Amy. ‘Feeling for Forgers: Character, Sympathy and Financial Crime in London During the Late Eighteenth-Century’. Journal for Eighteenth-Century Studies 42, no. 1 (2019): 7–25. Milka, Amy. ‘Impostors: Performance, Emotion and Genteel Criminality in Late Eighteenth-Century England’. Emotions: History, Culture, Society 1, no. 2 (2017): 81–107. Milka, Amy, and David Lemmings, ‘Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom’. Journal of Legal History 38, no. 2 (2017): 155–78. Nelson, William. Office and Authority of a Justice of the Peace. 1718. Oldham, James. ‘Truth-Telling in the Eighteenth-Century English Courtroom’. Law and History Review 12, no. 1 (1994): 95–121. Paley, William (Archdeacon). The Principles of Moral and Political Philosophy. London: Faulder, 1785. Reddy, William. The Navigation of Feeling. Cambridge: Cambridge University Press, 2003.

390  Research handbook on law and emotion Rev. D. G. Short Account of the Nature and Obligation of an Oath. London, 1789. Shepard, Alexandra. Accounting for Oneself: Worth, Status, and the Social Order in Early Modern England. Oxford: Oxford University Press, 2015. Spurr, John. ‘A Profane History of Early Modern Oaths.’ Transactions of the Royal Historical Society, 11 (2001), 42. Upton, Leslie Francis Stokes, ed., The Diary and Selected Papers of Chief Justice William Smith, 1784–1793. Toronto: Champlain Society, 1963.

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

INTRODUCTION In a series of video clips posted on YouTube in 2014 and 2015, “King Noble”—a proponent of “black supremacy”—angrily called for the murder of white police officers as revenge for police killings of young black men.1 The speeches riled up the right-wing commentariat, who spuriously identified King Noble as a spokesman for Black Lives Matter, a network devoted to protesting officers’ misconduct. A Breitbart News message board participant, however, doubted that King Noble was a BLM activist; he noted that the man spoke “very good English” with “only a few slang words thrown in.”2 In a post on the growing BLM movement, a conservative blogger identified “slang” as a signifier of essential differences between “black agitator[s]” and law-abiding whites: [My objection to “Black Lives Matter”] has nothing to do with the meaning of phrases as ascertained from the dictionary… Rather, we need to be attuned to the political meanings of the phrases, and in order to determine that we have to look at current usage. Put another way, “Black Lives Matter” would be a wonderful sentiment if we found it in a personal letter of William Wilberforce to his mother. In the mouth of a black agitator calling for the murder of cops, it is an abuse of language, an instance of outrageous and hateful slang.3

Significantly, the blogger invoked Wilberforce—one of the foremost advocates of the 1833 abolition of slavery in Britain—to rebuke Noble’s tirade against legally sanctioned racial inequity. He thus posited a racialized opposition of white emotional regulation, reverence for the law, and “very good English” to black emotional volatility, anti-police grievance, and “slang.” In doing so, he reiterated a widely shared view of anti-police sentiment as the unique province—and problem—of the black community. The association of African Americans with fear, resentment, and hostility toward law enforcement is not limited to the right-wing fringe. It can also be seen in mainstream sources. The entry on “Anti-Police Sentiment” in Wikipedia—the fifth-most popular Web site globally,

1 King Noble [pseud.], “It’s Open Season On Killing Whites and Police” and “King Noble Reveals the Secret Location of #FYF911,” YouTube, 2015. The clips were removed from YouTube. Another clip is still posted as of July 2019. See King Noble, “The Video That Went Viral Which Made King Noble & the Black Supremacy Movement a Government Target,” YouTube, June 8, 2014, https://​www​.youtube​ .com/​watch​?v​=​CPKs0cGXKAA. This Web site and all other websites referenced in the chapter were live as of July 16, 2019—with exceptions detailed in subsequent footnotes. 2 Anonymous, comment on Jerome Hudson, “Black Supremacist: ‘It’s Open Season on Killing White People and Cops,’” September 3, 2015, https://​www​.breitbart​.com/​politics/​2015/​09/​03/​black​ -supremacist​-its​-open​-season​-on​-killing​-white​-people​-and​-cops/​#. 3 Douglas Wilson, “What Is the Matter with Black Lives Matter?” Blog & Mablog: Theology that Bites Back (blog), July 14, 2016, https://​dougwils​.com/​books​-and​-culture/​s7​-engaging​-the​-culture/​ matter​-black​-lives​-matter​.html.

391

392  Research handbook on law and emotion and the sixth-most popular in America4—states, “Racial inequalities is [sic] a major factor that has contributed to forming an anti-police sentiment.”5 The entry casts the problem as a recent one—endemic to the United States in particular—and frames it in primarily racial terms. This racialization can be observed at the other end of the political spectrum as well. In a 2015 article in the left-wing magazine Dissent, the historian Barbara Ransby asserted, “[C]ollective, unapologetic black rage. . . has been the catalyst for the new movement condemning police violence against black people.”6 Casting this emotion in a more sinister light, a report for the Southern Poverty Law Center—which has a track record of anti-discrimination research and activism— warned in 2017 of a new surge of “black nationalists” motivated by “anti-police sentiment.”7 Since at least the 1960s, scholars have cast animus towards law enforcement as a specifically black feeling (just as non-expert observers often do). Following up on a 1968 study they had conducted for President Lyndon Johnson’s National Advisory Commission on Civil Disorders, a team of Johns Hopkins researchers wrote, “[P]olice. . . have done much to antagonize Negroes. . . Why have these white institutions done so much to engender black rage?”8 Of all occupational groups interviewed by the researchers, “The police were the least sympathetic” to black grievances.9 Decades later, twenty-first century studies continue to cast “black rage” as a response to “police brutality.”10 While this association is valid, well-meaning scholars all too often perpetuate views of anti-police hostility as a pathology uniquely endemic to the black community by neglecting to connect this response to the larger context of the centuries-old pan-racial history of underclass emotions towards law enforcement. This chapter foregrounds the “sentiment” in “anti-police sentiment,” a phrase that recurs in numerous op-eds, police union speeches, online comments, and law journal articles; a Google search for the phrase yields 26 million English-language results. “Sentiment” became a keyword for British moral philosophy in the 1700s—incidentally, the same century that marked the founding in London of John Fielding’s Bow Street Runners and other precursors of modern British and American police forces. The appearance of “sentiment” in contexts such as the Wikipedia title is significant, for historically the term underscored the subjectivity of moral judgments borne of feeling. David Hume—one of Britain’s leading eighteenth-century philosophers—stated in his masterwork A Treatise of Human Nature (1738–40): “[O]ur first and most natural sentiment of morals is founded on the nature of our passions, and gives the preference for ourselves and our friends, above strangers.”11 Ann Jessie van Sant observes that during the eighteenth century, sentiment was “associated with the mind” and “related to imme-

4 “Wikipedia.org: Competitive Analysis, Marketing Mix, and Traffic,” July 2019, https://​www​.ale​ xa​.com/​siteinfo/​wikipedia​.org. 5 “Anti-Police Sentiment,” Wikipedia, July 2019, https://​en​.wikipedia​.org/​wiki/​Anti​-police​_sent​ iment. 6 Barbara Ransby, “The Class Politics of Black Lives Matter,” in “Arguments on the Left,” ed. Michael Kazin, Dissent (Special Issue) 62, no. 4 (Fall 2015): 31-34, 32. 7 Daryl Johnson, “Return of the Violent Black Nationalist,” Intelligence Report, August 8, 2017, https://​www​.splcenter​.org/​fighting​-hate/​intelligence​-report/​2017/​return​-violent​-black​-nationalist. 8 David Boesel et al., “White Institutions and Black Rage,” Trans-Action 6, no. 5 (March 1969): 24–31, 24. For the earlier report, see Peter H. Rossi et al., “Between Black and White: The Faces of American Institutions in the Ghetto,” in Supplemental Studies for the National Advisory Commission in Civil Disorder (Washington, D.C.: Government Printing Office, 1968), 69–153. 9 Boesel et al., “White Institutions and Black Rage,” 26. 10 See, e.g., Leonard N. Moore, Black Rage in New Orleans: Police Brutality and African American Activism from World War II to Hurricane Katrina (Baton Rouge: Louisiana State University Press, 2010), 66, 78, 83. 11 David Hume, A Treatise of Human Nature [1739–40], eds David Fate Norton and Mary J. Norton (Oxford: Clarendon Press, 2007), 1–315.

Slang and the neglected racial history of fear  393 diate moral and aesthetic responsiveness.”12 In contrast, “anti-police sentiment” today seems to connote emotional and affective attitudes towards law enforcement that are not grounded in reason and morality, but instead driven by unquestioning racial loyalty. Such terms are culturally freighted even when not consciously intended to convey such meaning. To complicate perceptions of anti-police discourse as a recent phenomenon unique to the black community, I survey an array of dictionaries and glossaries of criminal argot ranging back to the 1700s to demonstrate that frustrations with law enforcement—and pejorative vernacular terms that reflected these negative emotions—range back centuries, and were expressed not only by blacks, by also by generations of whites. Although scholars may be aware of this history, it is often absent from media to which the general public is exposed. Rebecca Wanzo has rightly observed, “The civil rights struggle over police brutality is very much about feeling—whose feelings are allowed to count.”13 I argue that scholars need to look to unaccustomed sources and fresh methodologies to enrich the discussion by developing an expansive—yet also granular—and diachronic understanding of vulnerable communities’ emotional and affective responses to law enforcement. Expanding the range of “whose feelings count” not only racially, but also historically will illuminate the untold numbers of whites as well as minorities who felt, and still feel, oppressed by law enforcement and legal authorities. How can scholars examine ordinary people’s views of law enforcement and the criminal justice system—and in particular, how can we gauge the emotions of members of marginalized communities, both historically and today, who engage with these entities? I contend that traditional sources—including legal treatises, academic law journals, case law, and journalists’ reporting—are insufficient for gauging the emotions of members of demographic categories that tend in the popular imagination to be associated with criminal behavior. The perspectives of the disabled, the enslaved, indigenous peoples, the poor, religious and sexual minorities, women, and other marginalized people are typically not foregrounded in historical records. More recently, the disabled, racial and ethnic minorities, the poor, undocumented immigrants, and others often distrust or cannot respond to mail-in questionnaires, Web-based surveys, and other means of collecting data. Thus, scholars need to turn to unconventional and non-standard sources—such as cant lexicons and crowdsourced online dictionaries—to glean traces of the emotions experienced by members of underserved communities when they interact with law enforcement and legal authorities. Criminal argot is more than a barometer of underclass feelings towards law enforcement (police officers) and legal professionals and authorities more broadly (lawyers and judges). It can also anticipate shifts in the emotional and intellectual perspectives of mainstream audiences, who often adopt underclass vocabulary and opinions; many terms from yesterday’s criminal slang are mainstream today. Eventually, this uptake can lead to changes in legal norms, as institutions bend to public pressure regarding the acceptability of certain arrest procedures, legal defense strategies, and punishment and sentencing policies.14 The implications of slang and underclass argot for legal norms and outcomes remain underexamined, despite work by scholars including Tony Thorne and Donald Davie on the use of slang in criminal justice contexts. When well-meaning scholars do not consider this

12 Ann Jessie van Sant, Eighteenth-Century Sensibility and the Novel: The Senses in Social Context (Cambridge: Cambridge University Press, 1993), 4, 5. 13 Rebecca Wanzo, “The Deadly Fight over Feelings,” Feminist Studies 41, no. 1 (2015): 226­–31, 230. 14 See, e.g., Tri Keah S. Henry and Travis W. Franklin, “Police Legitimacy in the Context of Street Cops: The Effect of Race, Class, and Procedural Justice,” Criminal Justice Police Review 30, no. 3 (April 2019): 406–27; Brian K. Payne et al., “What Drives Punitive Beliefs? Demographic Characteristics and Justifications for Sentencing,” Journal of Criminal Justice 32, no. 3 (2004): 195–206. For a contrasting view, see Henry R. Glick and George W. Pruet, “Crime, Public Opinion, and Trial Courts: An Analysis of Sentencing Policy,” Justice Quarterly 2, no. 3 (1985): 319–43.

394  Research handbook on law and emotion history or bring it to light beyond the academy, they reinforce the same “race war” frame that nationalist extremists seek to perpetuate. By taking a more comprehensive historical view of resentment toward and fear of law enforcement as expressed not only by blacks, but also by people of other racial backgrounds, scholars can dispute age-old associations of blackness with a “biological predisposition” to “anger.”15 Taking this longer view also calls into question characterizations of black criminal justice activism as a manifestation of blacks’ unique susceptibility to “self-pity”—a stereotype that proliferates in mainstream publications16 and white message boards17 alike. People tend to use their own sentiments as a standard to determine whether the sentiments of others are reasonable—an idea explored by Adam Smith, another leading light of eighteenth-century British moral philosophy. In his classic work The Theory of Moral Sentiments (1759), he observes: [T]he person who, upon these different occasions, either feels no such emotion as that which I feel, or feels none that bears any proportion to mine, cannot avoid disapproving my sentiments on account of their dissonance with his own. If my animosity goes beyond what the indignation of my friend can correspond to; if my grief exceeds what his most tender compassion can go along with . . . I must incur a greater or less degree of his disapprobation: and upon all occasions his own sentiments are the standards and measures by which he judges of mine.18

By applying Smith’s model of emotional vetting to contemporary perceptions of minority expressions of anti-police sentiment, we can identify a possible reason why those who do not belong to criminalized racial demographic categories find anti-police sentiment bewildering. Either they rarely encounter law enforcement personnel, or their interactions are harmonious: police officers are helpful and lenient, lawyers are dedicated to their interests, and judges are fair. For traces of anti-law enforcement sentiment in earlier periods, I consulted dictionaries and glossaries of criminal slang. Why look to dictionaries? I turned to these sources because they include perspectives on legal authority gleaned outside of the exclusive domains of the judiciary and the academy. Because many of those who came into contact with law enforcement in the eighteenth, nineteenth, and twentieth centuries were poor and thus more likely to be illiterate or to lack time and materials for producing detailed written records of their experiences and emotions, to gauge their perspectives scholars must look beyond official records to items such as glossaries of “cant,” the arcane terminology purportedly used by those who participated in criminal activity. Several were anonymously compiled. These sources are particularly illuminating because a number of criminal glossaries were published in the same volumes as narratives of criminal life that illustrated the emotional context of usage of the terms.19

Jennifer Sandlin and Nathan Snaza, “‘It’s Called a Hustle, Sweetheart’: Black Lives Matter, the Police State, and the Politics of Colonizing Anger in Zootopia,” The Journal of Popular Culture 51, no. 5 (2018): 1190–213, 1202–3. 16 Brendan O’Neill, “The Problem with Black Lives Matter,” Spiked, August 11, 2016, https://​www​ .spiked​-online​.com/​2016/​08/​11/​the​-problem​-with​-black​-lives​-matter/​. 17 Daemon [pseud.], “Black self Pity” [sic], Stormfront, April 16, 2009. https://​www​.stormfront​.org/​ forum/​t591520/​. 18 Adam Smith, The Theory of Moral Sentiments [1759], eds, D. D. Raphael and Alec L. Macfie (Oxford: Clarendon Press, 1976), 16–17. 19 “Slang,” “argot,” and “cant” are related yet distinct terms: “cant,” which refers more specifically to the terminology used by bands of criminals during the early modern period, has fallen out of use; argot is a more general modern-day term for it. In the eighteenth century, slang referred to the speech of “low persons” (Oxford English Dictionary), but it now more broadly denotes “language of a highly colloquial 15

Slang and the neglected racial history of fear  395 To seek twenty-first century manifestations of anti-police sentiment in so-called “urban” slang, I turned to accessible but underutilized goldmines of information: online crowdsourced dictionaries and message boards. These sources have limitations of their own, and attribution is likewise difficult to trace. Two decades ago, a scholar called for the inclusion of “prison slang” in professional law dictionaries,20 but this practice has yet to gain traction. Yet to ignore these sources is to perpetuate what Miranda Fricker calls “epistemic injustice,” whereby a person’s knowledge is disregarded in legal contexts because they are identified with a socially disempowered demographic group.21 Whereas eighteenth-century cant glossaries attributed criminal vernacular to specific ethnicities or nationalities, at least one twentieth-century source presented it as a universal language.22 In today’s America, by contrast, criminal slang is frequently “conflated” by police officers and others with the dialects of black and Latino youths, who are a disproportionate segment of those arrested.23

THE EIGHTEENTH CENTURY: LAW OFFICERS AS PREDATORS First appearing in the sixteenth century, so-called “canting” glossaries continued to flourish in the eighteenth century. These lexicons claimed to decode “cant,” the secret language of the criminal world. In this section, I focus on works published in the decades before and after the first British antecedents of modern police forces were formed in the mid-eighteenth century. Much existing scholarship on cant notes its “associations with violation and outsiders,” as Janet Sorenson describes it; she observes, “Many glossaries would cordon it [cant] off from English, continuing to make it an emblem of a menacing delinquency.”24 Yet even as cant was perceived by financially comfortable sectors of society as redolent of the frightening underclass, it also transmitted fear experienced by marginalized people themselves, as I demontype, considered as below the level of standard educated speech, and consisting either of new words or of current words employed in some special sense” (OED). 20 Rosemarie Gläser, “Should LSP Dictionaries Also Include Professional Jargon and Slang?,” Lexikos 10 (2000): 86–98, 91. 21 See Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007), 1–4. 22 For an eighteenth-century account of cant’s ethnic and national origins, see Francis Grose, A Classical Dictionary of the Vulgar Tongue (London: Printed for S. Hooper, 1785), iii–v. For a recent scholar’s account, see Janet Sorenson, “Vulgar Tongues: Canting Dictionaries and the Language of the People in Eighteenth-Century Britain,” Eighteenth-Century Studies 37, no. 3 (Spring 2004): 435­–54, 438. In a 1950 slang dictionary preface, criminal vernacular is described as universal: It might be more properly termed the Romany or Gipsy language, adapted to the use of modern rogues in all parts of the world, and in which the etymologist will find words drawn from every known language. Some of these words are peculiarly national, but as a general thing the language of the world in New-York is the language of the rogue the world over. Hyman Goldin, Frank O’Leary, and Morris Lipsius, eds., Dictionary of American Underworld Lingo (New York: Twayne, 1950), v–vi. 23 Victor M. Rios and Karlene Navarro, “Insider Gang Knowledge: The Case for Non-Police Gang Experts in the Courtroom,” Critical Criminology 18, no. 1 (2010): 21–39, 22. See also Mel Greenlee, “Sociolinguistic Issues in Gang-Related Prosecutions: Homies, Hearsay, and Expert Standards,” in The Routledge Handbook of Forensic Linguistics, eds. Malcolm Coulthard and Alison Johnson (New York: Routledge, 2010), 281–95, 281. 24 Janet Sorenson, Strange Vernaculars: How Eighteenth-Century Slang, Cant, Provincial Languages, and Nautical Jargon Became English (Princeton and Oxford: Princeton University Press, 2017), 86–7.

396  Research handbook on law and emotion strate in this section. Eighteenth-century canting dictionaries featured words that conveyed underclass fear and resentment of the forerunners of police officers: bailiffs, constables, and “thief-takers.” In the English legal system, a bailiff was an officer who made arrests and served warrants, among other duties, as opposed to modern-day American bailiffs, who have the narrower responsibility of keeping order in a court of law.25 The lexicons also included terms that indicated negative emotions towards judges and lawyers. A number of canting glossaries were appendices to accounts of lives of notorious criminals; one subgenre was execution narratives that were supposedly taken down from condemned men and women on the eve of their deaths. Compilers typically insisted that these narratives were transcribed verbatim: in A Compleat History of the Lives and Robberies of the Most Notorious Highway-Men, Foot-Pads, Shop-Lifts, and Cheats of Both Sexes (1719), Alexander Smith claims that the narratives were “penn’d all from their own mouths, not borrow’d from the Account given of Malefactors by any of the ORDINARIES of Newgate.”26 Although included in a text that purported to warn readers against the duplicity practiced by thieves, beggars, and other denizens of the criminal underworld, such phrasing implied that prison authorities could not be trusted. Certainly, the credibility of these sources, in turn, is open to question, because most eighteenth-century cant glossaries and dictionaries were not prepared by convicted criminals. These mediated texts nonetheless provide a glimpse, however limited or flawed, of how people at the margins of society felt about their encounters with law enforcement and the law more generally. The narratives that preceded the glossaries were presented as vehicles for promoting social morality and public safety. Their ostensible purpose was “to instruct and convert the wicked and profane Persons of this licentious Age”27 and to suggest “how other honest People may escape being impos’d upon by the unknown Cheats of these Criminals.”28 Readers were primed to be disgusted by the speech of criminals, “whose Words are always so odious, detestable, and foul, that some (as little acquainted with a God as they, would be apt to conclude, that Nature spoil’d ’em in the Making, by setting their Mouths at the wrong End of their Bodies.”29 Yet these explicit assertions of admonitory purpose and anti-criminal fervor were undercut by references in cant glossaries to law enforcement officers’ abuses of the vulnerable. Blackguardiana: or, A Dictionary of Rogues, Bawds, Pimps, Whores, Shoplifters, Mail-Robbers, House-Breakers, Murderers, Pirates, Gipsies, Mountebanks, & c. (1793?) features “The Black Profession: A Song,” which tells of men “who were brought up in hell/ On purpose poor people to rob of their due.”30 One of the professions depicted is “A thief-taker, so we him call/If he haps a poor tradesmen [sic], he makes him pay all”31 (in this context, “haps” means “happens to encounter”). Anticipating today’s criticism of police officers’ abuse of civil

“Bailiff,” Oxford English Dictionary Online, https://​www​.oed​.com/​view/​Entry/​14701​?r​ edirectedFrom​=​bailiff​#eid. 26 Alexander Smith, A Compleat History of the Lives and Robberies of the Most Notorious Highway-Men, Foot-Pads, Shop-Lifts, and Cheats, of Both Sexes, in and about London and Westminster, and All Parts of Great Britain, for above an Hundred Years Past, Continu’d to the Present Time (5th ed., 2 vols.) (London: Printed for Samuel Briscoe, 1719), I:iii, Eighteenth-Century Collections Online. 27 Smith, Compleat History, I:vi. 28 Smith, Compleat History, I:viii. 29 Smith, Compleat History, I:iv. 30 James Caulfield, “The Black Profession: A Song,” in Blackguardiana: or, A Dictionary of Rogues, Bawds, Pimps, Whores, Pickpockets, Shoplifters, Mail-Robbers, Coiners, House-Breakers, Murderers, Pirates, Gipsies, Mountebanks, & c., & c. ([London]: Printed for, and sold by, John Shepard [et al.], [1793?]), Eighteenth-Century Collections Online, image 275 of 277; no page numbers are printed in the main text of the volume, although page numbers are printed in the volume’s preface. 31 Caulfield, Blackguardiana, image 277 of 277. 25

Slang and the neglected racial history of fear  397 forfeiture, the cant dictionaries suggested that law enforcement officers of the era were given free rein to seize funds or belongings under any pretext. A “spunging-house” was “a bailiff’s lock-up-house, or repository, to which persons arrested are taken, till they find bail, or have spent all their money: a house where every species of fraud or extortion is practised, under the protection of the law.”32 In a criminal biography attached to one cant dictionary, a man is held at gunpoint by someone he assumes to be a bailiff—actually a highwayman: the victim “cry’d out, Pray, Friend, use no Violence . . if what Coin I have about me, which is about fourteen Guineas, will satisfy thee for Civility, here it is; for verily I say unto thee, when I have been arrested before now, a Bailiff took a great deal less to let me go unknown to my Creditor.”33 The man has become inured to the expectation that officers will apprehend him with the sole purpose of enriching themselves. For audiences of the era, the humor of the scene would have derived from its suggestion of the interchangeability of outlaws and officers of the law. Cant dictionaries consistently likened law enforcement authorities to predators. A “bum bailiff” was “a sheriff’s officer, who arrests debtors, so called perhaps from following his prey, and being at their bums, or as the vulgar phrase is, hard at their a—es.”34 Similarly, a “bandog” was “a bailiff or his follower” and “also a very fierce mastiff.”35 A “setter” was “a bailiff’s follower, who, like a setting dog, follows and points out the game for his master.”36 Birds of prey were also invoked: the call, “Ware hawk,” or “beware of the hawk,” was a warning that a bailiff was nearby.37 Cant vocabulary mordantly figured members of the criminalized underclass as prey. To be arrested was to be “boned” or “roasted.” In his Compleat History, Smith illustrates the term thus: “The Cove is bon’d, and gone to the Whit, i.e. the Rogue is taken up and carry’d to Newgate.”38 In A Dictionary of the Vulgar Tongue (1785), Francis Grose stated, “I’ll roast the dab [means] I’ll arrest the rascal; and likewise to jeer, ridicule, or banter.”39 Predatory animals were also likened to legal professionals in his 1811 Lexicon Balatronicum, which defines “sea lawyer” as “a shark.”40 In the later eighteenth century, cant dictionaries featured terms that playfully diminished the authority of British law enforcement officers by styling them as members of foreign militaries. “Janizaries” denoted “bailiffs, their setters and followers”;41 the word was derived from a term for elite Turkish soldiers. It was not a favorable comparison. In The Present State of the Ottoman Empire (1667), the British diplomat Paul Rycaut commented that the janissaries were a threat to the populace they were charged with protecting:

32 Grose, A Classical Dictionary of the Vulgar Tongue, image 192 of 222. Page numbers are printed in the preface, but not in the definitions section of this edition. 33 Smith, “Tom Jones, a Highwayman,” in Compleat History, I:282–88, 287. 34 Caulfield, Blackguardiana, image 47 of 277. 35 Anonymous, A New Canting Dictionary (London: Printed and sold by the booksellers of London and Westminster, 1725), 18, Eighteenth-Century Collections Online. No page numbers are printed in the definitions section of this volume. 36 Caulfield, Blackguardiana, 224. 37 Grose, A Classical Dictionary of the Vulgar Tongue, 110. 38 Smith, Compleat History, 31. No page numbers are printed in the definitions section of the volume. 39 Grose, A Classical Dictionary of the Vulgar Tongue, 172–73. 40 Francis Grose, Lexicon Balatronicum. A Dictionary of Buckish Slang, University Wit, and Pickpocket Eloquence (London: Printed for C. Chappel, 1811), loc. 190 of 244, HathiTrust. No page numbers are printed in the definitions section. 41 Caulfield, Blackguardiana, 144.

398  Research handbook on law and emotion But as there is no question but a standing Army of veterane and well-discipline’d Souldiers must be always useful and advantageous to the Interest of a Prince; so, on the contrary, negligence in the Officers, and remisness of Government, produces that licentiousness and wrestiness in the Souldiery, as betrays them to all the disorders which are dangerous, and of evil consequence to the welfare of a State.42

Decades later, another British traveler, Lady Mary Wortley Montagu, was aghast to witness a raid by janissaries: Indeed, the Janizarys had no mercy on their [the villagers’] poverty, killing all the poultry and sheep they could find without asking who they belong’d to, while the wretched owners durst not put in their claim for fear of being beaten. Lambs just fall’n, Geese and Turkeys big with Egg: all masacre’d without distinction. ... When the Bassas [pashas] travel ’tis yet worse. Those Oppressors are not content with eating all that is to be eaten belonging to the peasants; after they have cram’d themselves and their numerous retinue, they have impudence to exact what they call Teeth-money, a contribution for the use of their teeth, worn with doing them the Honnour of devouring their meat. This is a literal known Truth, however extravagant it seems, and such is the natural corruption of a Military Government.43

Thus the comparisons in the dictionary entries likened British law enforcement officers to greedy, vicious foreign soldiers whose cruelty was fostered and condoned by corrupt leaders. Another cant sobriquet that exoticized British law enforcement officers was “myrmidon,” a term that connoted the warlike Thessalian people led by Achilles at the siege of Troy. These terms likened British law enforcement to an illegitimate occupying force, underscoring the resentment and fear with which the underclass regarded law’s officers. While a significant number of cant terms presented the power dynamic between officers and their quarries as a contest between dominant hunters and the vulnerable hunted, other terms did not cast law enforcement as powerful. A police officer was transmogrified into a “pig” in Lexicon Balatronicum: A Dictionary of Buckish Slang, University Wit, and Pickpocket Eloquence (1811); “floor the pig and bolt” was glossed as “knock down the officer and run away.”44 This usage reappeared in the 1960s.45 The term implied that law enforcement officers were easily eluded, yet also essentially domestic, British entities, in contrast to the exoticized martial slang terms that were used for the predecessors of the modern police. Only in the early nineteenth century did “police” come to denote an organized body of officers charged with enforcing the law.46

THE VICTORIAN ERA: EXPLICIT SYMPATHY FOR CRIMINALS Cant dictionaries of the eighteenth century thus featured definitions that frequently undercut their warnings to readers to view the poor and other members of the criminalized underclass with fear and suspicion. Some canonical Victorian literature, such as the novels of Charles

42 Paul Rycaut, The Present State of the Ottoman Empire Containing the Maxims of the Turkish Politie, the Most Material Points of the Mahometan Religion, Their Sects and Heresies, Their Convents and Religious Votaries, Their Military Discipline [...] (London: Printed for John Starkey and Henry Brome, 1668; Ann Arbor, Michigan: Early English Books Online Text Creation Partnership, 2002), 196. 43 Mary Wortley Montagu to the Abbé Conti, April 1, 1717, in The Complete Letters of Lady Mary Wortley Montagu, vol. I: 1708 –1720, ed. Robert Halsband (Oxford: Clarendon/Oxford University Press, 1965): 315-321, 316. 44 Grose, A Classical Dictionary of the Vulgar Tongue, 162. 45 Geoffrey Hughes, An Encyclopedia of Swearing: The Social History of Oaths, Foul Language, and Ethnic Slurs in the English-Speaking World (London: Routledge, 2015), 347. 46 Clive Emsley, “A Typology of Nineteenth-Century Police,” Crime, histoire et sociétés/Crime, History and Societies 3, no. 1 (1999): 29–44, 30.

Slang and the neglected racial history of fear  399 Dickens, continued the practice of several eighteenth-century novelists and playwrights of overtly guiding readers to feel sympathy for beggars, thieves, and other lawbreakers, and some criminal slang dictionaries did likewise. A remarkable exemplar of the latter perspective is Vocabulum; or, The Rogue’s Lexicon (1859), compiled by George W. Matsell. Despite his role as the first police commissioner in New York City, Matsell suggested that some police officers were corrupt and unreasonable in their treatment of suspects. Matsell’s extensive lexicon is followed by a story, “Scene in a London Flash-Penny,” which illustrates usage of the defined terms. The plot centers on the arrest of Harry Long, an inexperienced youth who has turned to crime, by Hitch, a corrupt police officer who regularly socializes with criminals without intervening in their crimes. It is explicitly noted that upon arrest, Long readily complies with Hitch’s commands. The other members of the gang likewise refrain from any hint of violence and try to reason with the officer: “All sympathized with the prisoner, and the minion of the law was without assistant,” the narrator notes.47 The tale primes readers to feel for the officer’s target and vilify the officer. One member of the gang implies that the punishment in store for Harry is disproportionate to the amount of time he has been involved in criminal activity: “Only nine months on the pad, and to be up for scragging! What a pity!”48Another pleads for leniency on account of Harry’s age: “He’s too young—he hasn’t had his lark half out; and it’s like making a man pay a debt he don’t owe, to twist him before he has gone the rounds.”49 Still another points out Harry’s cooperative passivity: “He’ll die game for that! Poor fellow! He takes it like a glass of egg-nog!”50 Hitch “seems pleased” with their groveling; unmoved, he declares that he is arresting Harry at the request of the commissioner. Yet when one member of the group pulls Hitch aside and offers to exchange money and a stolen watch for Harry’s freedom, the officer immediately agrees to the deal. The tale is geared to elicit or validate resentment of police officers, who are depicted as primarily concerned with abusing their authority for personal gain. The story’s final episode suggests that police officers in general deserve resentment and disdain; Hitch is not an outlier. His colleagues harass members of the underclass even when no crimes are underway: a fist-fight among thieves has already been resolved when policemen storm the place, round everyone up, and drag them to the station. The tale concludes with the narrator’s exclamation: “What rascally things are policemen! Alas! And alack! Just about as rascally as all the rest of the world.”51 While the use of “rascally” connotes mischief rather than serious rights violations, the tale leaves the impression that officers deserve no respect as moral authorities, are easily compromised, and exacerbate underclass suffering. This critique is heightened by the fact that it is authored by a powerful authority figure who played a vital role in developing the law enforcement institutions of the most populous city in the United States.

THE TWENTIETH CENTURY: REBUKING AUTHORITIES FOR EMOTIONAL ABUSE Most eighteenth- and nineteenth-century lexicons of criminal argot appear to have been produced by compilers who did not belong to the underclass. Beginning in the mid-twentieth century, by contrast, those who used criminal slang were identified not simply as sources of the terminology, but also as co-editors or co-authors. In A Dictionary of Underworld Lingo (1950), editor Hyman Goldin (an author, literary scholar, and attorney) gives two ex-convicts—Morris 47 George W. Matsell, Vocabulum; or, The Rogue’s Lexicon (New York: George W. Matsell & Co., 1859), 99. 48 Matsell, Vocabulum, 101. 49 Matsell, Vocabulum, 101. 50 Matsell, Vocabulum, 101. 51 Matsell, Vocabulum, 104.

400  Research handbook on law and emotion Lipsius and Frank O’Leary—equal billing as “co-compilers”; their role in the project was sufficiently unusual that they were profiled in The New Yorker.52 The preface is preceded by a record of “Board of Underworld Advisors” in the style of a list of contributors in an academic edited collection. It gives the names and backgrounds of “Bad Bill,” “Chop Chop,” “Hal the Rebel,” and thirteen other incarcerated men who provided definitions and examples of usage. The following is one such bio: Butch—operated as a bank robber, strike breaker, election fraud boss, automobile-theft gang boss, pinball and slot-machine operator, and strong-arm terrorist. His career covered the Middle Atlantic, Central, Mountain, and Gulf States. Prison terms in eight county jails and three N.Y. state prisons and in other institutions he does not wish named marked his career.53

Goldin served as the chaplain of New York’s Comstock Prison from the early 1930s through the late 1940s; his years of direct contact with prisoners seems to have influenced his innovations in the centuries-old tradition of criminal dictionaries. This effort at inclusion demonstrates unprecedented concern for seeking out the perspectives and feelings of members of the underclass who bore the brunt of the failures of the criminal justice system. “As might be expected of a radically nonconforming segment of society, a segment that lives by its wits, and under the constant threat of legal sanctions, its speech has unusual directness, pungency, and vigor,” Goldin stated. As did his predecessors, Goldin includes numerous terms that indicate that suspects and prisoners feared the physical threat posed by officers of the law. Compared to its eighteenth- and nineteenth-century antecedents, however, the mid-twentieth-century dictionary newly emphasized emotional and psychological manipulation and abuse by law enforcement authorities. “Examination by police using any of the various methods of coercion and duress” was known as “the third degree.”54 A “mother bull,” described as a “N.Y. City localism,” was defined as follows: A policeman or detective who pretends to befriend a prisoner, protecting him from threatened police violence in order to obtain a confession. (Note: The “maternal” technique often includes the proffering of cigarettes and coffee and other tokens of good will. Accomplices are held in separate rooms, each threatened with violence and subsequently “protected” by the Mother Bull who shuttles back and forth from one accomplice to the other. He knows how to make full use of any trivial admission a criminal may make, leading each one to believe that he has been betrayed by his associates. Together with the threatened, and often applied, third degree, the Mother Bull technique will break down most weak suspects.)55

As in lexicons of centuries past, some terms liken officers to nonhuman creatures; a “roach” was a prison guard or policeman.56 Several definitions reflect a sophisticated understanding that mistreatment of suspects or prisoners could be precipitated by an officer’s emotional state. To “have a bug on” or “bug up” was “[t]o be in an ugly mood.” The example that accompanies this definition demonstrates keen emotional intelligence: “We’re pulling (serving) the bit (sentence), aren’t we? We got a license (right) to get a bug on. The shop screw (guard) bugs up (becomes irritable) ’cause his old lady louses him around (quarrels with him), then he comes in

Lardner, John. “The Lexicographers in Stir,” The New Yorker XXVII, December 1, 1951: 101–25. Goldin, Hyman, Frank O’Leary, and Morris Lipsius, eds., Dictionary of American Underworld Lingo (New York: Twayne, 1950), 5. 54 Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 221. 55 Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 141–42. 56 Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 221. 52 53

Slang and the neglected racial history of fear  401 and buckwheats (abuses) us.”57 The dictionary offers evidence that prisoners were aware that regulations and sentencing guidelines imposed limits on how they could be treated, and that they resented law enforcement personnel for violating these standards: after defining “tangle ass” (“To become embroiled in a fight or heated argument”), the term is illustrated thus: “That hack (guard) ain’t handin’ me no more buckwheat (abuse) or me and him’s gonna tangle ass. The judge didn’t say nothin’ about that bein’ in the bit (my prison term).”58 Taken together, the definitions do not evince contempt for the rule of law, but on the contrary, disappointment and anger regarding the behavior of officers and legal professionals. Several terms characterized officers as lacking integrity, with their moral outlook manifest in their emotional expression. To be “copper-hearted,” for instance, was to be “[u]ntrustworthy; cowardly; having the characters or ideology of a police agent.”59 Other terms indicate wariness and disdain towards lawyers in particular. An “ambidexter” was “[o]ne who befriends both sides; a lawyer who takes fees from both parties in a suit.”60 To “work for the State” was “to work as a defense attorney, against the interests of one’s client and, hence, to aid the State in securing his conviction; to neglect the interest of a client, especially one in poor circumstances.” In the accompanying example, one man advises another: “Skid (get rid of) that shyster (lawyer). He works for the State unless you got plenty of wood (money).”61

THE TWENTY-FIRST CENTURY: TROLLING THE LAW On the cusp of the 2000s, underclass lexicography entered the digital age. Similar to the Dictionary of Underworld Lingo, UrbanDictionary.com crowdsources definitions and usage examples, and the contributors’ identities are concealed behind nicknames and pseudonyms. As with its predecessors, Urban Dictionary includes an array of terms nowhere to be found in professional law dictionaries. Paradoxically, this exclusion confers some measure of legitimacy on non-standard sources. Judicial authorities consult the Web site because it offers information omitted from conventional legal sources. Aaron Peckham, who founded the site in 1999, stated in an interview: I didn’t expect it would be such a useful tool for other audiences—teachers, people learning English as a second language, parents and even judges and police investigators have found Urban Dictionary useful. . . . In one of the site’s first appearances in the news, a judge in the United Kingdom used it to understand what two rappers were saying to each other.62

By 2013, judicial usage of the site had increased.63 Yet the site offers more than basic decoding of terms; it can also reveal popular sentiment towards law enforcement offices and legal authorities. Because their real-world identities are cloaked by pseudonyms, contributors are

Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 35. Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 220. 59 Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 50. 60 Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 8. 61 Goldin, O’Leary, and Lipsius, Dictionary of American Underworld Lingo, 239. 62 Terry Heaton, “Ten Questions for Urban Dictionary’s Aaron Peckham,” Terry Heaton’s PoMo Blog, April 14, 2010, http://​thepomoblog​.com/​index​.php/​10​-questions​-with​-urban​-dictionarys​-aaron​ -pe​ckham/​. 63 Leslie Kaufman, “For the Word on the Street, Courts Call up an Online Witness,” The New York Times, May 20, 2013: 1, https://​www​.nytimes​.com/​2013/​05/​21/​business/​media/​urban​-dictionary​-finds​-a​ -place​-in​-the​-courtroom​.html. 57 58

402  Research handbook on law and emotion unconstrained by fear of retaliation from law enforcement. They can freely express their strong emotions in definitions of terms related to law. As with earlier lexicons, definitions in Urban Dictionary typically do not challenge the legitimacy of law in general, so much as express resentment of officers’ corruption and abuse of power. Consider the definition of judge provided by “Judge ass kicker”: The unmerciful uncivilized unfair pieces of shit they hire in the so-called “judicial system” which is about the biggest crock of shit there is out there. Judges are pansies, often punishing the innocent and letting the guilty walk free. That’s why nobody has faith in the judicial system anymore. You’re better off to take the law into your own hands.64

Note that in this lexicon, unlike a number of those of the past, expletives are uncensored, enhancing the conveyance of intense emotion. Urban Dictionary departs from its predecessors, however, in dwelling on interracial interactions and associated emotional valences in criminal justice contexts. Whereas the Dictionary of Underworld Lingo advocated for the universality of criminal slang, terms related to law in Urban Dictionary are explicitly racialized. A lawyer is defined as “A white guy you pay to convince the judge/jury that you didn’t do it”; the definition is illustrated by a mini-playscript in which the main speaker has a stereotypical African American name (grammar, spelling, and punctuation have been retained from the original): TYRONE BIGGINS: Yeah that n****’s f***ed. The judge aint’ gonna take it easy on a n****. Alexander: He be needin a laywer. TYRONE: N****, what? A: You know, n****! Lawyer be some white dude willing to pretend to be your friend ’n shit in front of the judge so you ain’t look so bad. TYRONE: Aw yeah, he be like “Look, Imma white guy, and I’m aksin nicely to take it easy on dis n****” “Lawyer Commercial*  Some lawyer sounding voice: Here at Wilson in Wilson we know how it be for a n****. Haters don’t think it be like it is, but it do. But we do. I’m Greg Wilson, and I'll be your white guy. TYRONE: Da fuuu...?65

The notion of genuine emotional trust, let alone friendship, with white legal professionals is implied to be risible. The definition for “crooked officer” indicates resentment of predatory authorities (as previously, original spelling and punctuation is retained here): “[W]hen a cop aint striaght or fair and it takes an Illegal search 45 minutes, what the f*** you looking for.”66 The accompanying sentence illustrating usage of the term is racialized: “I roll on  24’s, so the Dopeman is what they get me for/ And that’s a shame, a n**** can’t ride nice/ Without getting harassed, and facing 25 to life.”67 The speaker complains that blameless actions—being black and driving a “nice” vehicle with costly 24-inch decorative rims—can lead to racial profiling by police, culminating in an inordinately long sentence for drug possession. In underscoring racial tensions, Urban Dictionary reflects the larger culture. When whites express hostility towards the police, they frequently adopt African American slang. In the award-winning 2009 single “TiK ToK,” which rose to number one on the charts in the United States and internationally, the white female pop singer Ke$ha complains, “The popo shut us

64 Judge ass kicker [pseud.], “Judge,” December 11, 2006, https://​www​.urbandictionary​.com/​define​ .php​?term​=​judge​&​defid​=​2140137. 65 The original tyrone biggins [pseud.], “Lawyer,” October 11, 2011, Urban Dictionary, https://​www​ .urbandictionary​.com/​define​.php​?term​=​Lawyer. 66 Ashhuleyy [pseud.], “Crooked Officer,” April 18, 2010, Urban Dictionary, https://​www​ .urbandictionary​.com/​define​.php​?term​=​Crooked​%20Officer. 67 Ashhuleyy, “Crooked Officer.”

Slang and the neglected racial history of fear  403 down.”68 In the music video for the song, these lyrics correspond to a scene in which she is shoved onto a car by a white male police officer and led away in handcuffs. “Popo,” meaning police, is a term “now thought to be of African American derivation.”69 As an online message board commenter noted, “Black people get derided, told they’re low class and criminals for using black vernacular and slang, and white people get to be fierce and sassy and cool for using it.”70 While slang used within minority communities has garnered scholarly attention, little research attention has been given to slang used by those who wield authority in the criminal justice system. This slang, too, conveys emotions that have an impact on legal outcomes. In the song “Untouchable” (2017), the white male rapper Eminem assumes the point of view of a racist white police officer. Attempting to draw attention to police brutality, Eminem casts the conflict not as opposition between law enforcement officers and those whom they seek to apprehend, so much as a race war between black and white: Black boy, black boy, we don’t get your culture and We don’t care what our government’s done to f*** you over, man Don’t tell us your attitude’s a result of that Balderdash, where’d you get the chip on your shoulder at?71

In its well-meaning but ungainly juxtaposition of a sixteenth-century English colloquialism (“balderdash”) and Jim Crow-era epithets (“black boy”), of racist obliviousness and Howard Zinn-esque acknowledgment of systemic culpability, these lyrics are unlikely to reflect the speech patterns or opinions of actual officers. To gauge the emotions of legal personnel, it is necessary to glean vernacular terms and usage from venues to which public access is restricted, such as Slack channels for municipal police departments and state agency networks72 and private chat rooms frequented by law enforcement officers.

CONCLUSION Slang is unfavorably contrasted with proper legal terminology, as evidenced by guides to legal writing. Editors of a textbook that has been published in multiple editions contend that the use of slang can repel readers by stimulating negative affect: they instruct writers that slang will “detract from the message and alienate the audience so that they stop listening or become less

68 Kesha Sebert, Dr. Luke [Lukasz Sebastian Gottwald], and benny blanco [sic] [Benjamin Levin], “TiK ToK,” as sung by Ke$ha [Kesha Sebert], Animal (New York: RCA Records, 2010); originally released as a single in 2009. 69 “Popo,” POLICE Magazine, accessed July 2019, https://​www​.policemag​.com/​cop​-slang/​popo. 70 Conspire [pseud.], August 21, 2015, response to Elementary Penguin [pseud.], “A f***boy is a man who is lame, who sucks, who ain’t shit” [sic], August 21, 2015, https://​www​.metafilter​.com/​ 152319/​A​-f***boy​-is​-a​-man​-who​-is​-lame​-who​-sucks​-who​-aint​-shit. 71 Marshall Mathers, Tommy Chong, Gaye Delorme, and Richard Marin, “Untouchable,” Aftermath, as sung by Eminem [Marshall Mathers] (Santa Monica, CA: Aftermath Entertainment/New York: Interscope Records/New York: Shady Records, 2017). Text transcribed from “Untouchable” [“verified lyrics”], 2017, https://​genius​.com/​Eminem​-untouchable​-lyrics. 72 Slack Team, “Fighting Crime with Slack: How the Hartford Police Department Gathers Intelligence in Real Time,” June 21, 2017. https://​slackhq​.com/​fighting​-crime​-with​-slack. The post was removed by Slack management after conflicts between police officers and protesters following the killing of George Floyd in summer 2020. See Tom Maxwell, “The Police Use Slack, but the Company Would Rather We Didn’t Know,” Input, June 7, 2020: https://​www​.inputmag​.com/​culture/​the​-police​-use​ -slack​-but​-the​-company​-would​-rather​-we​-didnt​-know, accessed March 6, 2021.

404  Research handbook on law and emotion receptive to your message.”73 No expectations are granted: “Even when you are writing for lay clients and want to use language they can understand, maintain a formal tone. . . Avoid contractions, slang, and other colloquialisms.”74 An earlier proponent of formality in legal writing urged writers to aim for “literary compositions” elevated far above the base level of slang.75 Much current slang derives from dialects such as African American Vernacular English, which is frequently disparaged as an inferior variant of standard English.” An impediment to taking slang into account in legal contexts, as Michael Adams notes, is that the law is perplexed by slang’s “variety and ephemerality.”76 Yet the vernacular terms and phrases convey feelings about and attitudes towards the law that shape social perceptions of the legitimacy of the authority of legal actors and institutions. Feelings expressed by disempowered members of criminalized underclass groups can eventually exert pressure on social and legal norms. As such, scholars and judicial authorities should develop knowledge of vernacular references to law enforcement and legal authority. It is notable that legal professionals have chosen to invest in lexicons that enable them to understand the parlance of lucrative client sectors. See, for instance, the “Book of Jargon” series developed by the law firm Latham & Watkins. With titles such as titles such as Cryptocurrency and Blockchain, the series is designed to offer a “go-to interactive glossary of capital markets and banking slang.”77 Because slang is typically omitted or misrepresented in academic and judicial legal contexts, it is necessary to consult unconventional sources, including a variety of slang lexicons, to gauge the history and prevalence of anti-law enforcement sentiments that transcend racial and generational divisions. As Rosemarie Gläser notes, a legal dictionary can reflect the “communicative composition and stratification of the community that constitutes the ‘legal profession.’”78 Yet these glossaries include only formal legal vocabulary. The starker stratification is between the legal profession and the broader population it serves, which comprises a number of minority communities. Today, as in previous centuries, slang terms associated with criminal activity and carceral environments are too often regarded by the wider community as mere curiosities or titillation fodder; but these words can reveal much about the sentiments that marginalized people bear toward the law. Understanding how slang can both reflect and influence emotions concerning the law is important for the future, as well. In an age of manufactured manifestations of emotion and concerted attempts to influence the feelings of mass audiences—including psyops, bots, and deepfakes, all of which have been used to shape attitudes towards the law by exacerbating racial tensions—such an undertaking is becoming an increasingly urgent endeavor.

REFERENCES Adams, Michael. Slang: The People’s Poetry. Oxford: Oxford University Press, 2009. “Anti-Police Sentiment.” Wikipedia. https://​en​.wikipedia​.org/​wiki/​Anti​-police​_sentiment. A New Canting Dictionary: Comprehending All the Terms, Antient and Modern, Used in the Several Tribes of Gipsies, Beggars, Shoplifters, Highwaymen, Footpads, and All Other Clans of Cheats and Villains. London: Printed and sold by the booksellers of London and Westminster, 1725. Eighteenth-Century Collections Online. 73 Nancy L. Schultz and Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills (6th ed.), (New York: Wolters Kluwer Law & Business, 2014), 318. 74 Schultz and Sirico, Legal Writing, 165. 75 Edward D. Re, “Legal Writing as Good Literature,” St. John’s Law Review 59, no. 2 (Winter 1985): 211–27, 224. 76 Michael Adams, Slang: The People’s Poetry (Oxford: Oxford University Press, 2009), 40. 77 NYLJ Staff, “Distinguished Leader: Marc Jaffe: Partner and Corporate Department Global Chair at Latham & Watkins,” New York Law Journal, 23 October 2020, https://​ www​ .law​ .com/​ newyorklawjournal/​2020/​10/​23/​distinguished​-leader​-marc​-jaffe/​, accessed February 10, 2021. 78 Gläser, “Should LSP Dictionaries Also Include Professional Jargon and Slang?,” 90.

Slang and the neglected racial history of fear  405 Ashhuleyy [pseud.]. “Crooked Officer.” Urban Dictionary, April 18, 2010. https://​www​.urbandictionary​ .com/​define​.php​?term​=​Crooked​%20Officer. “Bailiff.” Oxford English Dictionary Online, July 2019. https://​www​.oed​.com/​view/​Entry/​14701​ ?redirectedFrom​=​bailiff​#eid. “Wikipedia.org: Competitive Analysis, Marketing Mix, and Traffic,” July 2019. https://​www​.alexa​.com/​ siteinfo/​wikipedia​.org. Boesel, David, Richard Berk, W. Eugene Groves, Bettye Eidson, and Peter H. Rossi. “White Institutions and Black Rage.” Trans-Action 6, no. 5 (March 1969): 24–31. Caulfield, James. Blackguardiana: or, A Dictionary of Rogues, Bawds, Pimps, Whores, Pickpockets, Shoplifters, Mail-Robbers, Coiners, House-Breakers, Murderers, Pirates, Gipsies, Mountebanks, & c., & c. London: Printed for, and sold by, John Shepard et al. [1793?]. Eighteenth-Century Collections Online. Daemon [pseud.], “Black self Pity” [sic]. Stormfront, April 16, 2009. https://​www​.stormfront​.org/​forum/​ t591520/​. Davie, Jim. Slang across Societies: Motivation and Construction. London: Routledge, 2018. Elementary Penguin [pseud.], “‘A f***boy is a man who is lame, who sucks, who ain’t shit.’’’ Response to Kara Brown, “The Definition of ‘F***boy’ Is Not What Bad Trend Pieces Are Telling You,” Jezebel, August 21, 2015. https://​www​.metafilter​.com/​152319/​A​-f***boy​-is​-a​-man​-who​-is​-lame​ -who​-sucks​-who​-waint​-shit. Emsley, Clive. “A Typology of Nineteenth-Century Police.” Crime, histoire et sociétés/Crime, History and Societies 3, no. 1 (1999): 29–44. Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press, 2007. Gläser, Rosemarie. “Should LSP Dictionaries Also Include Professional Jargon and Slang?” Lexikos 10 (2000): 86–98. Glick, Henry R., and George W. Pruet. “Crime, Public Opinion, and Trial Courts: An Analysis of Sentencing Policy.” Justice Quarterly 2, no. 3 (1985): 319–43. Goldin, Hyman, Frank O’Leary, and Morris Lipsius, eds. Dictionary of American Underworld Lingo. New York: Twayne, 1950. Greenlee, Mel. “Sociolinguistic Issues in Gang-Related Prosecutions: Homies, Hearsay, and Expert Standards.” In The Routledge Handbook of Forensic Linguistics, edited by Malcolm Coulthard and Alison Johnson, 281–95. New York: Routledge, 2010. Grose, Francis. A Classical Dictionary of the Vulgar Tongue. London: Printed for S. Hooper, 1785. Eighteenth-Century Collections Online. Grose, Francis. Lexicon Balatronicum. A Dictionary of Buckish Slang, University Wit, and Pickpocket Eloquence. London: Printed for C. Chappel, 1811. HathiTrust. Heaton, Terry. “Ten Questions for Urban Dictionary’s Aaron Peckham.” Terry Heaton’s PoMo Blog, April 14, 2010. http://​thepomoblog​.com/​index​.php/​10​-questions​-with​-urban​-wdictionarys​-aaron​-peckham/​. Henry, Tri Keah S., and Travis W. Franklin. “Police Legitimacy in the Context of Street Cops: The Effect of Race, Class, and Procedural Justice.” Criminal Justice Police Review 30, no. 3 (April 2019): 406–27. Hudson, Jerome. “Black Supremacist: ‘It’s Open Season on Killing White People and Cops.’” Breitbart. com. 3 Sept. 2015. https://​www​.breitbart​.com/​politics/​2015/​09/​03/​black​-supremacist​-its​-open​-season -on-killing-white-people-and-cops/. Hughes, Geoffrey. An Encyclopedia of Swearing: The Social History of Oaths, Foul Language, and Ethnic Slurs in the English-Speaking World. London: Routledge, 2015. Hume, David. A Treatise of Human Nature [1739–40], Vol. 1: Texts. Edited by David Fate Norton and Mary J. Norton. Oxford: Clarendon Press, 2007. Johnson, Daryl. “Return of the Violent Black Nationalist.” Intelligence Report, August 8, 2017. https://​ www​.splcenter​.org/​fighting​-hate/​intelligence​-report/​2017/​return​-violent​-black​-nationalist. Judge ass kicker [pseud.], “Judge,” December 11, 2006, Urban Dictionary. https://​www​.urbandictionary​ .com/​define​.php​?term​=​judge​&​defid​=​2140137. Kaufman, Leslie. “For the Word on the Street, Courts Call up an Online Witness.” The New York Times, May 20, 2013: 1. https://​www​.nytimes​.com/​2013/​05/​21/​business/​media/​urban​-dicti​onary​-finds​-a​-place​ -in​-the​-courtroom​.html. Lardner, John. “The Lexicographers in Stir.” The New Yorker XXVII, December 1, 1951: 101–25. Mathers, Marshall, Tommy Chong, Gaye Delorme, and Richard Marin. “Untouchable,” as sung by Eminem [Marshall Mathers]. Santa Monica, CA: Aftermath Entertainment/New York: Interscope Records/New York: Shady Records, 2017. Text transcribed from “Verified Lyrics” for “Untouchable,” 2017, Genius. https://​genius​.com/​Eminem​-untouchable​-lyrics. Matsell, George W. Vocabulum; or, The Rogue’s Lexicon. New York: George W. Matsell & Co., 1859.

406  Research handbook on law and emotion Maxwell, Tom. “The Police Use Slack, but the Company Would Rather We Didn't Know.” Input. June 7, 2020. https://​www​.inputmag​.com/​culture/​the​-police​-use​-slack​-but​-the​-company​-would​-rather​-we​-didnt​ -know. Accessed 6 March 2021. Montagu, Mary Wortley. Mary Wortley Montagu to the Abbé Conti. April 1, 1717. The Complete Letters of Lady Mary Wortley Montagu, vol. I: 1708 –1720. Ed. Robert Halsband. Oxford: Clarendon/Oxford University Press, 1965. Moore, Leonard N. Black Rage in New Orleans: Police Brutality and African American Activism from World War II to Hurricane Katrina. Baton Rouge: Louisiana State University Press, 2010. NYLJ Staff. “Distinguished Leader: Marc Jaffe: Partner and Corporate Department Global Chair at Latham & Watkins.” New York Law Journal. October 23, 2020. https://​www​.law​.com/​newyorklawjournal/​2020/​ 10/​23/​distinguished​-leader​-marc​-jaffe/​. O’Neill, Brendan. “The Problem with Black Lives Matter.” Spiked, August 11, 2016. https://​www​.spiked​ -online​.com/​2016/​08/​11/​the​-problem​-with​-black​-lives​-matter/​. Payne, Brian K., Randy R. Gainey, Ruth A. Triplett, and Mona J. E. Danner. “What Drives Punitive Beliefs? Demographic Characteristics and Justifications for Sentencing,” Journal of Criminal Justice 32, no. 3 (2004): 195–206. “Popo.” POLICE Magazine, July 2019. https://​www​.policemag​.com/​cop​-slang/​popo. Ransby, Barbara. “The Class Politics of Black Lives Matter.” In “Arguments on the Left” (Special Issue), edited by Michael Kazin. Dissent 62, no. 4 (Fall 2015): 31–34, 32. Re, Edward D. “Legal Writing as Good Literature.” St. John’s Law Review 59, no. 2 (Winter 1985):211–27. Rios, Victor M., and Karlene Navarro. “Insider Gang Knowledge: The Case for Non-Police Gang Experts in the Courtroom,” Critical Criminology 18, no. 1 (2010), 21–39. Rossi, Peter H., Richard A. Berk, D. P. Boessel, Bettye K. Eidson, and W. E. Groves. “Between Black and White: The Faces of American Institutions in the Ghetto.” In Supplemental Studies for the National Advisory Commission in Civil Disorder. Washington, D.C.: Government Printing Office, 1968: 69–153. Rycaut, Paul. The Present State of the Ottoman Empire. Containing the Maxims of the Turkish Politie, the Most Material Points of the Mahometan Religion, Their Sects and Heresies, Their Convents and Religious Votaries, Their Military Discipline [...]. London: Printed for John Starkey and Henry Brome, 1668; Ann Arbor, Michigan: Early English Books Online Text Creation Partnership, 2002. Sandlin, Jennifer, and Nathan Snaza. “‘It’s Called a Hustle, Sweetheart’: Black Lives Matter, the Police State, and the Politics of Colonizing Anger in Zootopia.” The Journal of Popular Culture 51, no. 5 (2018): 1190–213. Schultz, Nancy L., and Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills (6th ed.). New York: Wolters Kluwer Law & Business, 2014. Sebert, Kesha, Dr. Luke [Lukasz Sebastian Gottwald], and benny blanco [sic] [Benjamin Levin], “TiK ToK,” as sung by Ke$ha [Kesha Sebert], Animal (New York: RCA Records, 2010); originally released as a single in 2009. Slack Team, “Fighting Crime with Slack: How the Hartford Police Department Gathers Intelligence in Real Time,” June 21, 2017. https://​slackhq​.com/​fighting​-crime​-with​-slack. Smith, Alexander. A Compleat History of the Lives and Robberies of the Most Notorious Highway-Men, Foot-Pads, Shop-Lifts, and Cheats, of Both Sexes, in and about London and Westminster, and All Parts of Great Britain, for above an Hundred Years Past, Continu’d to the Present Time (5th ed.). London: Printed for Samuel Briscoe, 1719. Eighteenth-Century Collections Online. Smith, Adam. The Theory of Moral Sentiments [1759]. Edited by D. D. Raphael and Alec L. Macfie. Oxford: Clarendon Press, 1976. Sorenson, Janet. Strange Vernaculars: How Eighteenth-Century Slang, Cant, Provincial Languages, and Nautical Jargon Became English. Princeton and Oxford: Princeton University Press, 2017. Sorenson, Janet. “Vulgar Tongues: Canting Dictionaries and the Language of the People in Eighteenth-Century Britain.” Eighteenth-Century Studies 37, no. 3 (Spring 2004): 435­–54. The original tyrone biggins [pseud.]. “Lawyer.” Urban Dictionary, October 11, 2011. https://​ www​ .urbandictionary​.com/​define​.php​?term​=​Lawyer. Thorne, Tony. “The New Canting Crew.” In Global English Slang: Methodologies and Perspectives, edited by Julie Coleman. London: Routledge, 2014: 72–82. Urban Dictionary. www​.urbandictionary​.com. Van Sant, Ann Jessie. Eighteenth-Century Sensibility and the Novel: The Senses in Social Context. Cambridge: Cambridge University Press, 1993. Wanzo, Rebecca. “The Deadly Fight over Feelings,” in “Forum: Teaching about Ferguson.” Feminist Studies 41, no. 1 (2015): 226­–31. Wilson, Douglas. “What Is the Matter with Black Lives Matter?” Blog & Mablog: Theology that Bites Back (blog), July 14, 2016. https://​dougwils​.com/​books​-and​-culture/​s7​-engaging​-the​-culture/​matter​ -black​-lives​-matter​.html.

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

Research on the place of emotions in law has tended to emphasize highly charged interactions in the courtroom, where strongly “marked” displays of feeling, elicited by lawyers or parties, and offered up by witnesses, judges, jurors, and audience members, can have a significant impact on the outcome of a trial and the public perception of its legitimacy.1 Criminal trials have furnished a particularly fruitful source for research in this vein, but certain kinds of civil litigation have also figured prominently—in fields like breach of promise of marriage, divorce, defamation, and discrimination. The emotions on display typically include anger, fear, and sorrow, and their positive corollaries, such as compassion and gratitude. All these emotions are presented against an unmarked background of less intense affective modes, such as boredom, irritation, distraction, confusion, and curiosity; and just as those affective states have received less attention from scholars, so too have the many contexts outside of the courtroom where any of these may arise. In earlier work, using the example of William Blackstone’s Commentaries on the Laws of England (1765–69), I have sought to show how pedagogy might attempt to bring the student into a certain affective relation to the law, by enlisting the emotions in the service of legal rationality.2 In this chapter, I proceed along similar lines, focusing on an earlier pedagogical text, William Fulbeck’s A Direction or Preparative to the Study of the Lawe, first published in 1600.

THE LEGAL HISTORIOGRAPHY OF EMOTION AND AFFECT Before turning to Fulbeck’s text, it may be useful to consider in more detail the significance of emotion and affect for studying legal history, and the methods of studying them. When the events associated with a legal dispute involve powerful emotional displays, the ability 1 For some recent illustrative instances, see, e.g., the contributions in David Lemmings and Allyson N. May, eds, Criminal Justice During the Long Eighteenth Century: Theatre, Representation and Emotion (New York: Routledge, 2019); and in Merridee L. Bailey and Kimberley-Joy Knight, eds., “Writing Histories of Law and Emotion,” The Journal of Legal History 38, no. 2 (2017). For a helpful introduction to the subject as a whole, see Rob Boddice, The History of Emotions (Manchester: Manchester University Press, 2018) and Jan Plamper, The History of Emotions: An Introduction (Oxford: Oxford University Press, 2015). For an overview on legal research in particular, see Susan A. Bandes and Jeremy A. Blumenthal, “Emotion and the Law,” Annual Review of Law and Social Science 8 (2012): 161–81. 2 Simon Stern, “Blackstone’s Legal Actors: The Passions of a Rational Jurist,” in Nancy Johnson, ed., Impassioned Jurisprudence: Law, Literature and Emotion, 1760–1848 (Lewisburg: Bucknell University Press, 2015), 1–19.

407

408  Research handbook on law and emotion to produce those responses on cue, in the course of witness testimony, can be crucial for the jury’s assessment of a witness’s credibility—even if the jurors bring erroneous expectations about the ways that tone, facial expression, and body language bear on the speaker’s sincerity or honesty. Consequently, trials can furnish useful historical evidence about the legal significance of emotion, by revealing what kinds of performances were successful, in various eras, as a means of communicating the passions that would have been demanded of a plaintiff claiming to have been devastated by a jilting suitor, or a criminal defendant claiming to have been incited to murder because of someone’s infuriating behavior.3 Unsuccessful performances can be equally revealing, by showing us what kinds of responses appeared stolid, insensitive, or simply puzzling. A significant amount of the work on law and emotion has explored these performative aspects of emotional displays, building on the already extensive scholarship on law and theatricality.4 Extending this logic, it is evident that in some eras, a lawyer’s talent for highly dramatic enactments could have been the key to professional success, while in other eras, a penchant for histrionic display would have destroyed any hope of advancement.5 Further, the ingredients of a successful dramatic display have also varied historically; by studying legal performances (and contemporaneous commentaries on them), we can gain a better understanding of exactly what gestures and attitudes served to convey empathy, contempt, and hatred in different periods. The questions of who was capable of a successful performance, and who was eligible to be cast as the object of these feelings, are also crucially bound up with questions of race, gender, class, and disability: expressing anger or sympathy may be read as an empty gesture, or even a self-implicating one, if the witness who is testifying is not eligible for treatment as a mature and responsible person.6 In this way, questions about the performance

On breach of promise, see, e.g., Alecia Simmonds, “‘She Felt Strongly the Injury to Her Affections’: Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia,” Journal of Legal History 38 (2017): 179–202; Katie Barclay, “Emotions, the Law and the Press in Britain: Seduction and Breach of Promise Suits, 1780–1830,” Journal for Eighteenth‐Century Studies 39 (2016): 267–84; Larissa Marie Werhnyak, “‘O, Perjured Lover, Atone! Atone!’: A Legal and Cultural History of Breach of Promise to Marry, 1880–1940” (PhD diss., University of Iowa, 2015). On provocation to murder, see, e.g., Chloë Kennedy, “‘Ungovernable Feelings and Passions’: Common Sense Philosophy and Mental State Defenses in Nineteenth Century Scotland,” Edinburgh Law Review 20 (2016): 285–311; Katie Barclay, “Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland,” Journal of Legal History 38 (2017): 203–27; Laura Kounine, “Emotions, Mind, and Body on Trial: A Cross-Cultural Perspective,” Journal of Social History 51 (2017): 219–30. 4 See, e.g., Julie Stone Peters, “Legal Performance Good and Bad,” Law, Culture and the Humanities 4 (2008): 179–200; Leif Dahlberg, “Emotional Tropes in the Courtroom: On Display and Representation of Affect and Emotion in Court Proceedings,” Law and Humanities 3 (2009): 175–205; Lisa Flower, “Doing Loyalty: Defense Lawyers’ Subtle Dramas in the Courtroom,” Journal of Contemporary Ethnography 47 (2018): 226–54. 5 For instance, in the early nineteenth century, American courtroom audiences appreciated histrionic effects that became increasingly disfavored as the century wore on; see Simon Stern, “Forensic Oratory and the Jury Trial in Nineteenth-Century America,” Comparative Legal History 3 (2015): 293–306. 6 See, e.g., Joshua Chambers-Letson, A Race So Different: Performance and Law in Asian America (New York: New York University Press, 2013); Stephen Knadler, “Traumatized Racial Performativity: Passing in Nineteenth-Century African-American Testimonies,” Cultural Critique 55 (2003): 63–100; Ariela R. Dubler, “Wifely Behavior: A Legal History of Acting Married,” Columbia Law Review 100 (2000): 957–1021; Susan M. Schweik, The Ugly Laws: Disability in Public (New York: New York University Press, 2009). 3

Curiosity and legal affect in A Direction or Preparative to the Study of the Lawe  409 of emotion might be construed in relation to what Susanna Blumenthal has called “the default legal person,” and those whom Khiara Bridges characterizes as excluded from the law’s conception of “competent … rightsbearers.”7 Once the focus turns away from courtroom performance, however, the significance of emotion and affect in law may seem less straightforward. Affective responses can change the law by influencing public opinion, creating popular support for (or against) practices whose legality a court might assess—such as slavery, capital punishment, and same-sex marriage.8 Lobbyists sometimes rely on specifically targeted uses of emotional rhetoric; for instance, to motivate the numerous extensions of the term of copyright protection in Britain and America, during the nineteenth and twentieth centuries, proponents repeatedly imagined scenarios of deprivation, in which a writer’s children or grandchildren were left penniless while the author’s books continued to sell in large numbers.9 Emotional performances can have a powerful effect on the decision whether to sue in the first place: “blaming” is one of the essential requirements, in the classic analysis of the factors driving the litigation process,10 and blaming is itself both an emotionally charged act and, in some cases, a response to incitements that carry their own emotional valence. Thus, although the connections between apologies and emotions in law have remained largely unexplored, a future area of research might look to the extensive body

Susanna L. Blumenthal, “The Default Legal Person,” UCLA Law Review 54 (2006): 1135–265; Khiara M. Bridges, The Poverty of Privacy Rights (Stanford: Stanford University Press, 2017), 114. One might also think of legal rituals as opportunities for eliciting such performances so as to validate the law’s grant, or denial, of subjectivity to various persons; see Colin Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons (Princeton: Princeton University Press, 2013). 8 See, e.g., Jeannine Marie DeLombard, Slavery on Trial: Law, Abolitionism, and Print Culture (Chapel Hill: University of North Carolina Press, 2007); Elizabeth B. Clark, “‘The Sacred Rights of the Weak’: Pain, Sympathy, and the Culture of Individual Rights in Antebellum America,” Journal of American History 82 (1995): 463–93; Susan A. Bandes, “Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty,” Vermont Law Review 33 (2008): 489–518; Jody Lyneé Madeira, “The Family Capital of Capital Families: Investigating Empathic Connections Between Jurors and Defendants’ Families in Death Penalty Cases,” Michigan State Law Review (2011): 859–910; Kristine A. Olsen, “Telling Our Stories: Narrative and Framing in the Movement for Same-Sex Marriage,” Social Movement Studies 13 (2014): 248–66; Jim Kitses, “All That Brokeback Allows,” Film Quarterly 60 (2007): 22–7. 9 Wordsworth offers perhaps the most famous example of this pathetic (or bathetic) scenario in “A Poet to his Grandchild; Sequel to ‘A Plea for Authors.’” See Ernest De Selincourt, “A Poet to his Grandchild; Sequel to ‘A Plea for Authors,’” The Poetical Works of William Wordsworth (Oxford: Clarendon Press, 1968), 3. For discussion, see Paul M. Zall, “Wordsworth and the Copyright Act of 1842,” PMLA 70 (1955): 132–44; Susan Eilenberg, “Mortal Pages: Wordsworth and the Reform of Copyright,” ELH 56 (1989): 351–74; Martha Woodmansee, The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia University Press, 1994), 145-–7; Lee Erickson, The Economy of Literary Form: English Literature and the Industrialization of Publishing, 1800–1850 (Baltimore: Johns Hopkins University Press, 1996), 62–4. The House Report accompanying the Copyright Term Extension Act of 1998 offers a more recent example: “Authors will be able to pass along to their children and grandchildren the financial benefits of their works.” H.R. Rep. No. 105-452, at 4 (1998). 10 William L.F. Felstiner et al., “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ...,” Law and Society Review 15 (1980): 631–54. 7

410  Research handbook on law and emotion of writing on the legal significance of apologies—as speech acts that pacify and eliminate the impulse to litigate, and as acknowledgments of wrongdoing that help to promote litigation.11 Thus far, these suggestions have dwelt on additional instances of marked emotions; as noted earlier, less intense affective states and reactions have received comparatively little attention. Boredom and distraction are less susceptible to analysis not only because they are typically more diffuse than anger and sorrow, but also because they tend to be conveyed in a more muted expressive register. The result is that they are harder to pinpoint. We think we know how to recognize anger when we encounter it in a courtroom exchange, or in a dispute that erupts into violence, because we take its signs to be readily visible. Boredom is at once harder to perceive and, even when seemingly evident, harder to locate—and accordingly, its consequences may also be harder to identify. That difficulty, however, might prompt us to realize that more intense affective states, like anger, may present the same challenges, because they, too, are not invariably exhibited as directly as scholars may assume. Although the emphasis on performance has had the beneficial effect of highlighting the transactional and dynamic nature of emotional incitements, the legal research in this area has done less to develop one of the key implications flowing from the work on performativity— namely, that in both subdued and highly charged interactions, expressive forms emerge in ways that do not always conform to predictable scripts. Performative acts are sometimes understood as those that do things to the world, but as William Reddy observes, when examining certain types of emotional performances, such acts may have both internal and external aspects. The acts that he calls “emotives” are “both self-exploring and self-altering,” and he adds that “[i]t is never certain what effect they will have.”12 A significant amount of scholarship by legal historians has relied on the method of keywords, searching for familiar lexical indices of anger, sympathy, and sorrow, and treating the result as the corpus on which to build an argument. One line of analysis in the research on performativity has stressed citation and reiteration as essential practices that can turn utterances into statements laden with truth value; on this view, a keyword-based approach to the study of emotion makes sense, because it attends to the lexemes that keep reappearing as signs of certain affective dispositions. However, another significant line of analysis in scholarship on performativity insists that despite their iterative nature, performances also “requir[e] improvisational skill”;13 on that view, even highly repetitive speech acts may deviate from verbatim citation, allowing for all manner of linguistic variation. If emotions emerge through performance, then anger and sorrow, no less than irritation and confusion, may become evident

For a recent discussion of these issues, indicating some of the emotional and legal questions associated with apologies, see the proceedings of the conference “The Ethics of Apology: Interdisciplinary & International Perspectives” (Centre for Ethics, University of Toronto), available online at https://​c4ejournal​ .net/​category/​the​-ethics​-of​-apology​-interdisciplinary​-international​-perspectives/​, accessed January 15, 2021. 12 William Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge: Cambridge University Press, 2001), 122. 13 Douglas Robinson, Introducing Performative Pragmatics (New York: Routledge, 2006), 5; for some examples specifically related to law, see Sara Ramshaw and Paul Stapleton, “Un-Remembering: Countering Law’s Archive—Improvisation as Social Practice,” in Stewart Motha and Honni van Rijswijk, eds, Law, Violence, Memory: Uncovering the Counter-Archive (New York: Routledge, 2016), 50–69; Sara Ramshaw, “The Paradox of Performative Immediacy: Law, Music, Improvisation,” Law, Culture and the Humanities 12 (2016): 6–16. 11

Curiosity and legal affect in A Direction or Preparative to the Study of the Lawe  411 through modes of expression that cannot be reliably predicted by a list of keywords—and sometimes must be discerned as more inchoate or implicit qualities of interactions. As a result, we must consider not only the explicit outburst, but also subtler and more ambiguous forms of expression, including (insofar as the historical record records these features) evasions, hesitations, and silences. To recognize that modes of emotional expression are not always sudden and direct is also to understand why legal historians have been less eager to explore the avenues that would disclose these possibilities. The positivism that characterizes legal scholarship in general has not been limited to avowedly doctrinal work, but is also evident in many other areas, including legal history.14 One of the most salient effects of that orientation is a penchant for the direct, the specifiable, the quotable nugget. This is not to assert that ambiguity and interpretation pose intractable problems for legal scholarship. To the contrary, law professors have an acute awareness of the need for interpretation, which elicits feats of skill and ingenuity that are readily apparent on the pages of any law review; however, legal scholars also have a strong preference for interpretable objects that can be isolated and specified, and thereby subjected to the particular kind of close analysis that thrives on precise and intricate distinctions. Diffuse phenomena of any kind, and features that must be identified by way of implication, pose difficulties for the method of the legal positivist, which is typically a forensic method. That is to say that it treats proof and causation in much the same way that lawyers do—as matters affording the kind of explicit and concrete demonstration that would persuade a skeptical observer in a court of law. This approach must, necessarily, allow for interpretation, which may be perfectly capable of conforming to the demands of forensic proof, but when qualities must be adduced through implication, or must be observed in scattered traces, forensic requirements are harder to satisfy, and accordingly, the sources and materials that exhibit these features become less appealing to study.15 To a significant extent, research on emotion and affect in law has reflected this forensic orientation, both in the sense of preferring to focus on examples drawn from the courtroom, and in the sense of preferring forms of evidence that are amenable to the demands about proof standards that would apply in a court of law. However, a considerable amount of research on emotion and affect has been conducted by historians, literary critics, and scholars in cognate disciplines, who do not proceed under forensic assumptions. In these fields, proof and causation are not taken to operate in the direct and specifiable manner that lawyers tend to expect; See, e.g., David Millon, “Positivism in the Historiography of the Common Law,” Wisconsin Law Review (1989): 669–714. 15 For discussion of the general problem, see, e.g., Alexander F. Schmidt et al., “Indirect Measures in Forensic Contexts,” in Tuulia Ortner and Fons J.R. van de Vijver, eds, Behavior-Based Assessment in Psychology: Going Beyond Self-Report in the Personality, Affective, Motivation, and Social Domains (Boston: Hogrefe, 2015), 173–94. To be sure, experts in various fields of forensic science have sprung up to address such matters, such as subtle indicators of deception in facial and body language, implicit bias, and personality factors that suggest likelihood of recidivism. Notably, however, the successful experts are those who can make these subtle and hard-to-perceive factors appear direct and obvious. Machine learning presents an excellent example of the challenge: as Mireille Hildebrandt has noted, as algorithmic approaches to legal decision-making become more sophisticated, they also become increasingly resistant to precise and definite explanation in human terms, hence frustrating the “contestability [that] is at the heart of the rule of law.” Mireille Hildebrandt, “Algorithmic Regulation and the Rule of Law,” sec. 4, Philosophical Transactions of the Royal Society A: Mathematical, Physical and Engineering Sciences 376.2128 (2018): 2017.0355; doi 10.1098/rsta.2017.0355. 14

412  Research handbook on law and emotion accordingly, the ways of studying the history of emotions, and the sources that lend themselves to this sort of investigation, are more diverse. Consequently, this may be an area in which legal historians could expand their horizons by engaging more fully with the work of humanities scholars.16 I hope that the discussion of Fulbeck in the next section will illustrate one way to make this connection. A final word on methodology is in order. My aim, in what follows, is not to prove that Fulbeck’s book succeeds (or fails) in producing a particular kind of reader. As has already been suggested, it would be difficult if not impossible to locate the textual cruxes that achieve this effect. One who is intent on adducing forensic proof that Fulbeck managed to elicit a certain affective response would be confronted with two problems: showing that the text actually operated on any particular reader in this fashion and identifying the passages that had that effect. The second demand would be impossible to satisfy, short of reproducing the entire text in order to demonstrate its cumulative effect. The first demand could, perhaps be satisfied with evidence from contemporaneous diaries or letters, or marginalia in surviving copies of the book. To furnish that kind of evidence, however, would be a mistake, because it would imply that an interpretive argument needs to be substantiated with forensic proof. The interpretive argument, in this case, is concerned with the text’s potentialities; the argument’s persuasiveness depends on how well it accounts for Fulbeck’s distinctive approach. A forensic argument assumes that every assertion must be doubted unless it meets a particular proof standard, and that that standard can be satisfied only by reference to concrete and precisely specified instances. The forensic demand thus misunderstands the ambitions and aims of an interpretive approach. To see that Fulbeck attempts to engage the reader in a certain way, and to use that form of engagement as a means of transforming the reader’s attitude, depends on an examination of the text. Actual readers’ responses can be a fascinating source of information about the book’s reception but should not be taken as the requisite means of verifying an account that asks what kind of reader the text aims to produce.

FULBECK’S LEGAL CURIOSITY William Fulbeck’s A Direction or Preparative to the Study of the Lawe17 has the distinction of being the first English legal text that presents its subject not by canvassing a particular field (e.g., property or criminal law) but instead by focusing on questions of legal method and the appropriate disposition that students should bring to their studies. Fulbeck signals this orientation both in the book’s subtitle (“Wherein is Shewed, What Things Ought to be Observed and Used of Them that Are Addicted to the Study of Law, and What, on the Contrary Part, Ought to be Eschewed and Avoided”) and in the table of contents, which includes topics such as “Of the Good Qualities Wherewith the Student of the Law Ought to be Furnished,” “Of the Exercise and Conference Which the Student Ought to Use,” and “What Method is to be

16 See, e.g., Boddice, The History of Emotions; Plamper, The History of Emotions: An Introduction; Kathryn D. Temple, Loving Justice: Legal Emotions in William Blackstone’s England (New York: NYU Press, 2019); Otniel E. Dror et al., Osiris 31 (2016) (special issue on History of Science and the Emotions). 17 William Fulbeck, A Direction or Preparative to the Study of the Lawe (London: Thomas Wright, 1600). A second edition was published in 1620.

Curiosity and legal affect in A Direction or Preparative to the Study of the Lawe  413 Used in Handling and Disposing Matters of Law.”18 These introductory cues signal a radical departure from the prevalent approach among his precursors and contemporaries, which may have begun with celebratory remarks about the law’s dignity, but then went on to attend to doctrinal matters. A full examination of Fulbeck’s text is beyond the scope of this chapter, which will focus on his treatment, in the book’s sixth chapter, of the kind of intelligence that students should seek to develop, so as to make their “Understanding … Proportionable to the Intendment of the Law.”19 In seeking to describe this kind of intelligence, Fulbeck elaborates, more than anywhere else in the text, a certain kind of emotive and affective disposition that is conducive to legal study—conducive because of its active response to the imaginative demands of legal hypothesis and analysis. Fulbeck starts by observing that the objects of legal study may appear abstract, obscure, and inaccessible, not only because of their complexity, but also because they are so “remote from the reach of the senses.” Legal concepts are imperceptible to “ordinary apprehension,” replete with “contingents, which common sense cannot perceive.”20 Removed from the sensory domain, the law might appear to be a singularly unpromising subject for the elicitation of any affective disposition, especially of the marked varieties that figure so prominently in the study of law and emotion. And, in fact, one would be hard pressed to find, either represented in the text or enacted in the text’s mode of readerly engagement, the kinds of passions that may be on display in the courtroom. Rather, through a series of expositions of legal conundrums, Fulbeck explores certain characteristic forms of jurisprudential logic that serve, in the aggregate, not only to make the imperceptible visible, through pattern recognition, but also thereby to stimulate the reader’s curiosity and desire to attempt this kind of analysis. According to his own simile, Fulbeck aims to show how legal concepts resemble “herbs … [in which] we do not find nor feel any moisture … until by pressing or distilling of them, we wring out a juice proper to their nature.”21 Fulbeck thus renders in sensory terms the disposition he seeks to promote. This disposition is not the highly charged reaction of a witness offering dramatic testimony, nor is it readily discernible in a particular instance (or through a well-crafted keyword search). It emerges through a series of problems that Fulbeck considers in the course of this chapter. In probing the law’s “intendment[s]” (i.e., the constructions that the law places on certain acts, circumstances, or verbal formulations), he seeks to develop, in the student, an inquisitive attitude that makes legal puzzles an object of curiosity, turning them into the means of revealing “the secret and hidden causes of things.”22

Fulbeck, A Direction or Preparative to the Study of the Lawe, sig. A2 recto–A2 verso. In referring to the reader as already being “addicted to the study of law,” Fulbeck seems to attribute to the student, at the outset, the very attitude that the text itself seeks to produce. For more on this “positive form of … addiction to law,” see Peter Goodrich, “Maladies of the Legal Soul: Psychoanalysis and Interpretation in Law,” Washington & Lee Law Review 54 (1997): 1035–74, 1061, 1071. Goodrich notes that Sir Edward Coke, similarly, advises the student to “wholy addict thyself to the admirable sweetness of knowledge and understanding.” Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995), 2, n.8 (quoting Sir Edward Coke, “To the Learned Reader,” The Third Part of the Reports (London: Rivington, 1777), fol. C 7 b (originally published in Latin in 1610)). 19 Fulbeck, A Direction or Preparative to the Study of the Lawe, 45 recto. 20 Fulbeck, A Direction or Preparative to the Study of the Lawe, 45 recto. 21 Fulbeck, A Direction or Preparative to the Study of the Lawe, 45 verso. 22 Fulbeck, A Direction or Preparative to the Study of the Lawe, 45 verso–46 recto. 18

414  Research handbook on law and emotion As the chapter proceeds, Fulbeck considers nine seemingly contradictory propositions, each one serving to indicate the “artificial”23 and restricted nature of legal reasoning, such that different intendments, or constructions, may attach to the same state of affairs, depending on the legal perspective from which it is viewed. Consider the first of these puzzles (and see the original text in Figures 25.1 and 25.2): It is cleere by Law, that a terme and a freehold of the selfe same thing may be both in one man at one time, yet if this be deliuered to a superficiall vnderstanding, it will seeme a paradoxe. Tenant for terme of yeres maketh his executors & dyeth, the executors purchaseth the reuersion, in this case both the terme & fee-simple are in the executor to seueral purposes: for the terme shal be assets to the vse of the testator, & the fee simple free inheritance for the vse of the executor & his heires,a And if a man be seised of land of an estate for life, the remainder to his executors for yeres, he may deuise this term or assigne it.b And if lessee for yeres grant his terme to the wife of him in ye reuersion, & to a stranger, the inheritance of the husband can not extinguish the moitie of ye terme: because he hath the inheritance in his owne right, & the terme in right of his wife.c A man seised of land in right of his wife is attainted of felony, & the king seiseth the land pro vita viri, the king hath but a chattel & the wife the freehold: for if a stranger enter, & the husband dye, the wife shall haue an Assise.d a. 43. E. 3 b. 16. E. 2. per Herle, Couenants 25. c. 14. El. 416. Com. Bracebridges case. d. 4. E. 3. 47.

Several features of this passage stand out. Like the other examples that appear in this chapter of his book, each assertion is substantiated by a marginal reference to a legal case—either in the Year Books or (in note c) in Plowden’s Commentaries. This is not the only chapter in the volume to cite cases in the notes, but it is the first one to do so with anything like this frequency, indicating that the student has arrived at the more emphatically doctrinal phase of the discussion. The chapter thus signals that while the answers to these conundrums may perhaps be summarized succinctly, the true understanding of each depends on immersion in the particular cases that illustrate and elaborate their logic: the student’s curiosity may be slaked only by going to the cases themselves. Like nearly all of the seeming paradoxes, this first one involves real property, not only one of the most important legal subjects, but also one of the most intricate and complex areas; a good understanding of this field (and again, not just its substance but also its methods) would ensure that the student was well-prepared to engage with legal logic more generally. The most important point, however—and one that is bound up with these two observations— involves the form in which Fulbeck introduces and elaborates the problem. He starts by positing a paradox, noting that one man may have a freehold (an absolute right) and a term (a limited right) in the same property. Fulbeck presents the student with a riddle: how could one person possibly hold these apparently inconsistent claims? The rest of the paragraph develops various hypotheticals yielding this result. What seems enigmatic to a person with only “a superficiall vnderstanding” thus becomes clear to the student. The exposition brings 23 By “artificial,” Fulbeck means simply “invented.” For instance, he writes that “[a]rtificiall” words (terms of art) are “are these which the inventors of artes have devised for acquainting the mind with the rules & mysteries of their arts.” Fulbeck, A Direction or Preparative to the Study of the Lawe, 29 verso–30 recto. Similarly, he declares that “it is good for Students to use an artificiall Analysis, or resolution of things, into their principles.” Fulbeck, A Direction or Preparative to the Study of the Lawe, 83 verso.

Curiosity and legal affect in A Direction or Preparative to the Study of the Lawe  415

Figure 25.1

Excerpt from Fulbeck, A Direction or Preparative to the Study of the Lawe, 45 verso

Figure 25.2

Excerpt from Fulbeck, A Direction or Preparative to the Study of the Lawe, 46 recto

416  Research handbook on law and emotion the student into a superior understanding, producing a reader who enjoys the gratification of standing in contrast to the one who was puzzled at the beginning of the paragraph. As this pattern repeats over and over in the course of the chapter, the reader comes to see that each of these paradoxes is no paradox at all, to the point where the opening assertion, in each new example, becomes an incitement, a problem whose promised solution will further enhance the student’s skill and sophistication. Through a gradual process of repetition, the transformation produced by each paragraph serves to effect a fundamental change in the reader’s disposition, using a sort of riddle-like form to join curiosity with enjoyment, creating the “addiction” to the study of law mentioned in the book’s subtitle. The structure of these provocations, as much as their content, is crucial in achieving this effect. One way to make sense of this structure is to consider the riddle and the case as examples of the “simple forms” elaborated by André Jolles, for whom each form represents “the reflection in language of a particular mode of human engagement with the world.”24 The person who poses a riddle, according to Jolles, “asks [a] question in such a way that he forces the other person into knowledge,” where that “[k]nowledge is already present the moment the question is asked.”25 The point, Jolles observes, “is not the solution itself, but rather the act of solving”: those who master the riddle have shown that they can speak “a special language … a language the knowledge of which affords inclusion within a closed circle.”26 For the initiates, the closed circle defines a community whose members understand the world in a distinctive way; for the non-initiates, the special language simply appears confusing or meaningless. Considered in this light, Fulbeck’s discussion, through its procedure of posing riddles and answering them, brings the reader into a community of legal thinkers by modelling the various techniques that inform the explanation—such as the contemplation of hypotheticals, the mental operation of temporarily separating cognate rights to discover where each one leads, and the introduction of conditionals to see how they could alter the result. The text offers to place the student in a certain affective relation to the law by inviting readers to speak the specialized language of the law, here presented as closely linked to analytical and explanatory methods that also confer a special way of knowing and that drive “the act of solving.” The student is “forced into knowledge” of the law in a way that, through its very mode of demonstration, stimulates and rewards curiosity, affirming membership in a privileged group who have the pleasure of marking their difference from those of merely superficial understanding. Having sought to intrigue the reader through the process of positing and resolving the riddle, Fulbeck presents the case as the instrument that endows the student with the ability to engage independently in this kind of inquiry. Cases thus acquire a certain kind of allure, as the source of knowledge that makes the lawyer both an asker and answerer of such riddles. The case, according to Jolles, displays and solicits a different kind of “mental disposition,”27 involving on the one hand the relation between examples and classes (or between instances and rules), and on the other hand the evaluation of norms. Focusing on a case drawn from criminal law 24 Peter J. Schwartz, “Translator’s Introduction” to André Jolles, Simple Forms: Legend, Saga, Myth, Riddle, Saying, Case, Memorabile, Fairytale, Joke, trans. Peter J. Schwartz (London: Verso, 2017) (first published in German in 1929), xxi. For a recent discussion that examines the affordances of literary forms, as they organize and modulate cultural and political knowledge, see Caroline Levine, Forms: Whole, Rhythm, Hierarchy, Network (Princeton: Princeton University Press, 2015). 25 Jolles, Simple Forms, 101–02. 26 Jolles, Simple Forms, 106, 111–12. 27 Jolles, Simple Forms, 139.

Curiosity and legal affect in A Direction or Preparative to the Study of the Lawe  417 (involving the theft of a one-hundred-mark banknote, then exchanged for two fifties which the thief splits with his lover), Jolles observes that the details that individuate a case may interfere with its function of being merely representative of a class, or a rule, insofar as they “amplify the feeling of singularity, increase the poignancy of the case.”28 He does not, however insist that cases inevitably escape their representative function, noting that some features may indeed be “inessential to the matter at hand.”29 The question of the norm is the more significant one; for Jolles, to posit the case is to test the norms it invokes. The case models a “mental disposition that imagines the world as one that can be judged and evaluated according to norms,” and the consequence is that “not only are actions measured against norms, but norms are also measured against norms.”30 Fulbeck’s presentation of cases is ambiguous in this respect: his citations direct the reader to particular cases, but he summarizes them so briefly as nearly to strip them of their individuating features, and he leaves the substantive norms implicit, drawing attention instead to normative features of legal reasoning. Yet on this aspect, too, Jolles is instructive, because in the case that he discusses, the thief remains criminally liable, but the lover, despite her knowledge that her fifty-mark share was stolen, is not liable as a fence, because her banknote is not a “piece of personal property illegally appropriated by thief.”31 (Under the applicable law, the fence is liable only for knowingly possessing the stolen item, and here, the lover has something taken in exchange for it.) Jolles’s case thus perfectly mimics the logical operations that Fulbeck keeps reproducing, in which a right or status that initially seems unitary becomes split into contrasting aspects. For Jolles, the very point is to interrogate the norm that distinguishes an item of stolen property from an item obtained in exchange for it. Fulbeck, analogously, might be taken as not only inculcating the reader into the habit of applying the various techniques that solve his riddles, but also prompting the reader to reflect on the validity of the distinctions that keep surfacing. To be sure, Fulbeck appears far more interested in method than in the underlying norms and their justifications (to which he pays so little heed as, generally, to imply that they should be accepted without cavil), but he does finally turn to this issue at the chapter’s close. There, in summarizing the skills he has attempted to demonstrate and develop, he explains that “the vnderstanding of the Student when it entreth into the suruey of these intricate and hidden pointes, must bee of this abilitie to compound thinges, and to resolue them by imagination, to builde and destroy.”32 These imaginative powers, he adds, are themselves subject to legal norms: “I would not haue any imagination to be vsed: but where Equitie and the orderly

28 Jolles, Simple Forms, 145. On this view, cases come to resemble novels much more than would otherwise be supposed: Catherine Gallagher, for instance, comments on the tendency of fictional characters to escape the confines of typecasting, even when “made on purpose to illustrate types”: “As soon as the category of careless people who are both benevolent and stingy is figured in one Mr. Brooke of Tipton Grange, … many things about him are already irrelevant to the class of people he supposedly signifies,” and that tendency prompts us to see that “[i]n novels … it is in the nature of examples generally to exceed that which they are supposed to exemplify.” Catherine Gallagher, “George Eliot: Immanent Victorian,” Representations 90 (2005): 61–74, 64–5. 29 Jolles, Simple Forms, 146. 30 Jolles, Simple Forms, 144. 31 Jolles, Simple Forms, 143. 32 Fulbeck, A Direction or Preparative to the Study of the Lawe, 53 recto.

418  Research handbook on law and emotion coherence of thinges doth require it.”33 These restrictions appear late in the chapter (in fact, in its very last sentence), and they remain so elliptical that one could be forgiven for wondering how much attention Fulbeck actually means to direct to them. To try to answer that question, we might consider his fascination with the imaginative powers themselves. They constitute the fulcrum of this discussion, and Fulbeck dwells at length on their effects. His comment about the ability to build and destroy is perhaps the most dramatic part of a series of reflections that occupy four pages, largely devoted to showing that although imagining counterfactuals might be challenged as an exercise in “phantasy, or … untruth,” almost all legal operations would “be voide of … effect, if you take imagination from the Law.”34 Rather than attack the results for “be[ing] false,” he writes, we would do better to inquire into the methods that produce them. One who has an appetite for understanding and using those methods, Fulbeck suggests, occupies a completely different stance from those who “carry such spiced and scrupulus consciences, that they cannot abide any fiction or representation of a thing that is not in facto.”35 The disdain directed at the narrow-minded literalist implies, by contrast, a delight in the creative and transformative powers of law. Legal artifice thus takes on a charm and prestige that makes its wielder something of magician, whose command of the professional tools and jargon can elicit the same admiration from the audience which Fulbeck’s riddles seek to elicit from the reader. His comments find a striking resonance in a recent discussion of the powers of artifice in the early modern period, by Frans-Willem Korsten. Writing about artifice much the same way that Fulbeck uses the term—to describe the specialized language and methods of disciplines that guide themselves according to bespoke rules—Korsten observes that “the artificiality of the baroque is real in its ability to make, or destroy, a world.” Once we grasp the constitutive power of artifice, in the domains where it supervenes, we recognize that “[t]here is no longer a viewpoint from the outside that implies the possibility of unveiling the appearance of a world for its falsity. We are, radically, in a world.”36 That perspective carries both an insight and a danger. The insight is that such artifice has a remarkable power to reshape the world, and that power can help to explain why some people are drawn to it. The danger is that such artifice may become so all-encompassing as to exclude any means of evaluating its results. Fulbeck shares this realization, and wishes to impress it on his reader as well. If there is a norm that he strives to bring into visibility, it is the norm that flows from this awareness about the agency of legal concepts and methods. To understand their power to create and dismantle the world, he suggests, is both daunting and inspiring, and that reaction should also inform the student’s affective relation to the law. Whereas the earlier part of the chapter is concerned with helping the student enjoy developing these skills and experimenting with them, the latter part expresses—and seeks to elicit—a kind of awe at the law’s creative capacities. It is by enacting that response, more than by speaking of equity and coherence, that Fulbeck brings out the further implication that we must direct these capacities towards achieving justice.

Fulbeck, A Direction or Preparative to the Study of the Lawe, 53 verso. Fulbeck, A Direction or Preparative to the Study of the Lawe, 53 recto. 35 Fulbeck, A Direction or Preparative to the Study of the Lawe, 52 verso. 36 Frans-Willem Korsten, A Dutch Republican Baroque: Theatricality, Dramatization, Moment, and Event (Amsterdam: Amsterdam University Press, 2018), 17. 33 34

Curiosity and legal affect in A Direction or Preparative to the Study of the Lawe  419

REFERENCES Bailey, Merridee L., and Kimberley-Joy Knight, eds. “Writing Histories of Law and Emotion” (Special Issue). The Journal of Legal History 38, no. 2 (2017). Bandes, Susan A. “Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty.” Vermont Law Review 33 (2008): 489–518. Bandes, Susan A., and Jeremy A. Blumenthal. “Emotion and the Law.” Annual Review of Law and Social Science 8 (2012): 161–81. Barclay, Katie. “Emotions, the Law and the Press in Britain: Seduction and Breach of Promise Suits, 1780–1830.” Journal for Eighteenth‐Century Studies 39 (2016): 267–84. Barclay, Katie. “Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland.” Journal of Legal History 38 (2017): 203–27. Blumenthal, Susanna L. “The Default Legal Person.” UCLA Law Review 54 (2006): 1135–265. Bridges, Khiara M. The Poverty of Privacy Rights. Stanford: Stanford University Press, 2017. Boddice, Rob. The History of Emotions. Manchester: Manchester University Press, 2018. Centre for Ethics, University of Toronto. “The Ethics of Apology: Interdisciplinary & International Perspectives.” https://​c4ejournal​.net/​category/​the​-ethics​-of​-apology​-interdisciplinary​-international​ -perspectives/​, accessed January 15, 2021. Chambers-Letson, Joshua. A Race So Different: Performance and Law in Asian America. New York: New York University Press, 2013. Clark, Elizabeth B. “‘The Sacred Rights of the Weak’: Pain, Sympathy, and the Culture of Individual Rights in Antebellum America.” Journal of American History 82 (1995): 463–93. Dahlberg, Leif. “Emotional Tropes in the Courtroom: On Display and Representation of Affect and Emotion in Court Proceedings.” Law and Humanities 3 (2009): 175–205. Dayan, Colin. The Law Is a White Dog: How Legal Rituals Make and Unmake Persons. Princeton: Princeton University Press, 2013. DeLombard, Jeannine Marie. Slavery on Trial: Law, Abolitionism, and Print Culture. Chapel Hill: University of North Carolina Press, 2007. De Selincourt, Ernest. “A Poet to his Grandchild; Sequel to ‘A Plea for Authors,’” The Poetical Works of William Wordsworth (Oxford: Clarendon Press, 1968) Dror, Otniel E., Bettina Hitzer, Anja Laukötter, and Pilar León-Sanz, eds. History of Science and the Emotions (Special Issue). Osiris 31 (2016): 1–257. Dubler, Ariela R. “Wifely Behavior: A Legal History of Acting Married.” Columbia Law Review 100 (2000): 957–1021. Eilenberg, Susan. “Mortal Pages: Wordsworth and the Reform of Copyright.” ELH 56 (1989): 351–74. Erickson, Lee. The Economy of Literary Form: English Literature and the Industrialization of Publishing, 1800–1850. Baltimore: Johns Hopkins University Press, 1996. Felstiner, William L.F., Richard L. Abel, and Austin Sarat. “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ...” Law and Society Review 15, no. 3/4 (1980): 631–54. Flower, Lisa. “Doing Loyalty: Defense Lawyers’ Subtle Dramas in the Courtroom.” Journal of Contemporary Ethnography 47 (2018): 226–54. Fulbeck, William. A Direction or Preparative to the Study of the Lawe. London: Thomas Wright, 1600. Gallagher, Catherine. “George Eliot: Immanent Victorian.” Representations 90 (2005): 61–74. Goodrich, Peter. “Maladies of the Legal Soul: Psychoanalysis and Interpretation in Law.” Washington & Lee Law Review 54 (1997): 1035–74. Goodrich, Peter. Oedipus Lex: Psychoanalysis, History, Law. Berkeley: University of California Press, 1995. Hildebrandt, Mireille. “Algorithmic Regulation and the Rule of Law.” Philosophical Transactions of the Royal Society A: Mathematical, Physical and Engineering Sciences 376.2128 (2018): 2017.0355. doi 10.1098/rsta.2017.0355. Kennedy, Chloë. “‘Ungovernable Feelings and Passions’: Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland.” Edinburgh Law Review 20 (2016): 285–311. Kitses, Jim. “All That Brokeback Allows.” Film Quarterly 60 (2007): 22–7. Knadler, Stephen. “Traumatized Racial Performativity: Passing in Nineteenth-Century African-American Testimonies.” Cultural Critique 55 (2003): 63–100.

420  Research handbook on law and emotion Korsten, Frans-Willem. A Dutch Republican Baroque: Theatricality, Dramatization, Moment, and Event. Amsterdam: Amsterdam University Press, 2018. Kounine, Laura. “Emotions, Mind, and Body on Trial: A Cross-Cultural Perspective.” Journal of Social History 51 (2017): 219–30. Lemmings, David and Allyson N. May, eds. Criminal Justice During the Long Eighteenth Century: Theatre, Representation and Emotion. New York: Routledge, 2019. Levine, Caroline. Forms: Whole, Rhythm, Hierarchy, Network (Princeton: Princeton University Press, 2015. Madeira, Jody Lyneé. “The Family Capital of Capital Families: Investigating Empathic Connections Between Jurors and Defendants’ Families in Death Penalty Cases.” Michigan State Law Review (2011): 859–910. Millon, David. “Positivism in the Historiography of the Common Law.” Wisconsin Law Review (1989): 669–714. Olsen, Kristine A. “Telling Our Stories: Narrative and Framing in the Movement for Same-Sex Marriage,” Social Movement Studies 13 (2014): 248–66. Peters, Julie Stone. “Legal Performance Good and Bad.” Law, Culture and the Humanities 4 (2008): 179–200. Plamper, Jan. The History of Emotions: An Introduction. Oxford: Oxford University Press, 2015. Ramshaw, Sara. “The Paradox of Performative Immediacy: Law, Music, Improvisation.” Law, Culture and the Humanities 12 (2016): 6–16. Ramshaw, Sara, and Paul Stapleton. “Un-Remembering: Countering Law’s Archive—Improvisation as Social Practice.” In Law, Violence, Memory: Uncovering the Counter-Archive, edited by Stewart Motha and Honni van Rijswijk, 50–69. New York: Routledge, 2016. Reddy, William. The Navigation of Feeling: A Framework for the History of Emotions. Cambridge: Cambridge University Press, 2001. Robinson, Douglas. Introducing Performative Pragmatics. New York: Routledge, 2006. Schmidt, Alexander F., Rainer Banse, and Roland Imhoff. “Indirect Measures in Forensic Contexts.” In Behavior-Based Assessment in Psychology: Going beyond Self-Report in the Personality, Affective, Motivation, and Social Domains, edited by Tuulia Ortner and Fons J.R. van de Vijver, 173–94. Boston: Hogrefe, 2015. Schwartz, Peter J. “Translator’s Introduction.” In André Jolles, Simple Forms: Legend, Saga, Myth, Riddle, Saying, Case, Memorabile, Fairytale, Joke. London: Verso, 2017. Schweik, Susan M. The Ugly Laws: Disability in Public. New York: NYU Press, 2009. Simmonds, Alecia. “‘She Felt Strongly the Injury to Her Affections’: Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia.” Journal of Legal History 38 (2017): 179–202. Stern, Simon. “Blackstone’s Legal Actors: The Passions of a Rational Jurist.” In Impassioned Jurisprudence: Law, Literature and Emotion, 1760-1848, edited by Nancy Johnson, 1–19. Lewisburg: Bucknell University Press, 2015. Stern, Simon. “Forensic Oratory and the Jury Trial in Nineteenth-Century America.” Comparative Legal History 3 (2015): 293–306. Temple, Kathryn D. Loving Justice: Legal Emotions in William Blackstone’s England. New York: New York University Press, 2019. Werhnyak, Larissa Marie. “O, Perjured Lover, Atone! Atone!”: A Legal and Cultural History of Breach of Promise to Marry, 1880–1940. PhD diss., University of Iowa, 2015. Woodmansee, Martha. The Author, Art, and the Market: Rereading the History of Aesthetics. New York: Columbia University Press, 1994. Zall, Paul M. “Wordsworth and the Copyright Act of 1842.” PMLA 70 (1955): 132–44.

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

What is the law’s promise beneath and/or beyond rules? Or to put it more precisely, how can we collapse law into life such that we operate with a sense of freedom and yet remain in sync with our culture, our fellow citizens, and our world? We skirt this question every time we wonder why most people in well-regulated societies tend to follow the law. Top-down deterrence theories don’t seem satisfying because even the most universal regulatory force in the most panoptic culture can’t control every citizen. But most people in high-functioning societies tend to follow the law most of the time. Why? While complex, the answer to this question seems related to the relationship between our emotions and our legal systems. In successfully-regulated societies, human beings internalize a desire for law-abiding behavior. For these lucky humans, the law becomes “normative” as Tom Tyler puts it: they obey the law because they “feel the law is just” and they “feel that the authority enforcing the law has the right to dictate the behavior.”1 In short, they feel. But what they don’t feel is coercion. To feel the law is just and to obey it is to feel that one operates as a free subject, yet to be in peaceful co-existence with others who are also free. Is such a thing even possible in a complex society? Giorgio Agamben attempts to confront this question in The Highest Poverty: Monastic Rules and Form-of-Life, addressing the “problem of the relationship between rule and life.”2 There Agamben details the ways in which fourth and fifth century monks regulated themselves to the extent that rules became norms and norms referred “to the entire existence of an individual” until they were “no longer easily recognizable as a law.”3 These norms were meant to be fully accepted, incorporated into the lives, minds, and hearts of the monks. Take the metaphor of the “habit,” for instance. Agamben tells us that for the monks, the highly regulated “habit” was both a form of dress and a form-of-life. What they wore represented who they were, even merged with who they were as the clothing they called “habits” represented the habits they had agreed to adopt. The rules they followed began with dress (the habit) and undress (one required a special dispensation if one wanted to wear shoes) but extended to an obsession with time management in which “time and life were for the first time intimately superimposed to the point of nearly coinciding.” 4 Body and mind were meant to operate in unity here, a dictate foregrounded in the rule that monks must meditate incessantly and thus always be under the guidance of the rules. Although failure to obey these rules and norms could result in penalties, monks were urged to view them as freely chosen. And this freedom of choice could Tom Tyler, Why People Obey the Law (Princeton: Princeton University Press, 2006), 4. Giorgio Agamben, The Highest Poverty: Monastic Rules and Forms of Life, trans. Adam Kotsko (Stanford, California: Stanford University Press, 2013), 8. 3 Agamben, The Highest Poverty, 26. 4 Agamben, The Highest Poverty, 13–25, 34. 1 2

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422  Research handbook on law and emotion be monitored emotionally: monks should “observe all these things with joy…not as slaves under the law, but as those who have been set free by grace.”5 In other words, the creation of “form-of-life,” of a life lived freely and yet formed by rules, relied on emotions, particularly here the emotion of joy, but in general a milder emotional embrace of the lengthy set of rules that governed the lives of the monks. Important to Agamben’s argument is the political and social nature of these rules: Agamben follows Wittgenstein in making the point that no rule can ever be regarded as private in that the very existence of a rule implies a relationship with a community.6 One can never follow a rule privately because simply thinking (or feeling) that one is following a rule doesn’t count. Rule-following is a customary practice that exists both within and outside of the mind and thus rules tend to be constitutive of self and community simultaneously. What Agamben takes away from his study of the monks is a fantasy of how communal, public life could be lived. A better understanding of the merging of rule and life could create the sense of a “transformation that seems to bear on the very way in which human action is conceived, so that one shifts from the level of practice and acting to that of form of life and living.”7 Agamben’s concept of “form-of-life” is elusive; it operates at the limits of our conditioned understanding of how politics and legal systems might work, offering a “thought experiment” as W. Scott Blanchard puts it, but also an “emotive experiment” as I argue here.8 This emotive-thought experiment asks us to imagine “a life that can never be separated from its form,” life that can never be distinguished from what Agamben calls “bare life,” or what we might refer to as “biology.”9 Agamben notes that this begins with a dialectic, the dialectic “between rule, on the one hand, and life, on the other…so dense and complex that…it seems to resolve itself at times into a perfect identity.” Rule and life are “two intensities that are opposed and, at the same time intertwined,” operating in “reciprocal tension” to try to produce something new, a “form-of-life,” something we humans always aim for always miss, often by miles. This is what Agamben refers to as “a third thing,” not rule, not life, but “form of life” in which “both rule and life lose their familiar meaning” and the gap between them is bridged to form a perfect unity.10 The concept of form-of-life dissolves both the divide between self and communal interest and that between the law and the humans that create it and yet feel alienated from it. And adopting this posture eliminates the need for an alienating legal system, leaving us with an internalized sense of justice, a feeling state that externalizes itself in the form of just behaviors, in essence an internalization of what in an earlier time might have been called natural law. The concept of “form-of-life” attempts to cure divides—between law and legal subject, between culture and biology—through merging our understanding of the individual with the collective good. But it also marks the difference between these various poles, prompting us to investigate modern efforts to struggle with these divides. Agamben finds rules and life so intertwined in this reciprocal tension that we are forced to rethink both concepts, to wonder “What is a rule, if it seems to be so mixed up with life without remainder? And what

Agamben, The Highest Poverty, 29 (quoting Regula ad servos Dei (emphasis added)). Agamben, The Highest Poverty, 58. 7 Agamben, The Highest Poverty, 61. 8 W. Scott Blanchard, “Forms of Power, Forms of Life: Agamben’s Franciscan Turn,” New Literary History 46, no. 3 (Summer 2015): 525–48, 528. 9 Agamben, Highest Poverty, 207. 10 Agamben, Highest Poverty, xi–xii. 5 6

Why the law needs the history of emotions  423 is human life, if it can no longer be distinguished from the rule?”11 One might also ask, how is a form-of-life constituted on an emotional level? How would it feel to be liberated from the tyranny of the rule, yet still act in sync with our fellow humans? In engaging these questions, Agamben is, of course, not speaking only of fourth century monks. He argues that we should think seriously about the potential of the form-of-life paradigm for our own futures, as a way of solving our own contemporary governance problems. For him, the fascinating story of the Franciscans is one about “the ‘political’ opposition between order and disorder, governance and anarchy, stability and nomadism.”12 His understanding of the Franciscans’ rejection of law in favor of form-of-life offers what Blanchard refers to as an “optimistic imagining of a stateless, postjuridical social order.”13 As Blanchard explains, for Agamben, Franciscan practices offer the potential for “reimagining such dominant, foundational notions as private property, wealth, and human belonging or citizenship in a cosmopolitan world.”14

FROM AGAMBEN TO BLACKSTONE AND BACK AGAIN Agamben’s “emotive-thought experiment” suggests we reappraise legal commentators operating in many different contexts. My contribution involves examining William Blackstone’s tremendously influential Commentaries on the Laws of England (1765–1768) and suggesting that Blackstone, like Agamben, sought that "third thing" that was not rule, and also not life, but instead offered a solution to the problem of the rule, a problem which is really that of coercion, of the central conflict between our desire to live in harmony and our resistance to rules. For Blackstone that “third thing,” the seamless integration of rule and life, depended on bringing people’s emotions about law into alignment with the law. In contrast, for Agamben’s Franciscans this depended on divorcing oneself from public forms of law and adopting loyalty to a set of freely chosen rules designed for the Franciscan community. These are obviously very different approaches: while Agamben recounts the Franciscans rejection of public law in order to develop an emotional attachment to their own set of rules and regulations, Blackstone encouraged an equally powerful and quite similar attachment to English law, one in which legal precepts seemed “natural” because they mapped onto human emotions and habits, onto what are in effect embodied emotions. By reading Blackstone through rather than against the resistant practices of the Franciscans, we become alert first to how representations of law can create attachment to the law, but secondly, and more importantly, to the fact that the law has the potential to be better than mere rules, to be a fully integrated part of our psyches and to fulfill its original purpose, making us truly communal creatures, as interested in our communal well-being as we are in our own individuality. Blackstone thus offers us a model for fostering an emotional attachment to law and to law-abiding behaviors. Understanding how his model works does not mean capitulating to its ideological precepts. There is, of course, much to critique in Blackstone’s representation of English law and in English law overall. Nevertheless, understanding Blackstone’s model may offer a mode of resistance in itself: the Agamben, Highest Poverty, 5. Agamben, Highest Poverty, 12. 13 Blanchard, “Forms of Power,” 529. 14 Blanchard, “Forms of Power,” 528. 11 12

424  Research handbook on law and emotion better we understand emotional manipulation, the more effectively we can resist it. Moreover, understanding Blackstone may serve a creative function beyond resistance: learning to manage emotions more effectively can serve the public good, better human lives, and help us live more effectively as a community. Most legal historians regard the Commentaries as a brilliant application of Enlightenment reason to English legal history. In their view, Blackstone laid out the rules, justifying them by locating them in English law’s historical sources and through reasoned discussion. And there is certainly enough about penalties and punishment in the Commentaries to suggest that English law stood outside of life rather than participating in its form. But the emphasis on “reason” and “history” in the critical commentary does not fully explain the Commentaries’ crucial role in disseminating conceptions of justice throughout the British Empire: Blackstone was deeply invested in emotions related to law and justice. A poet who believed that “the only true and natural foundations of society are the wants and fears of individuals”—he was ideally suited to condense English law into a form that evoked emotions crucial to promoting English ideas of justice.15 Making an emotion-laden art of English law, he avoided the typically dry, encyclopedic overview of black letter law common in his time, and instead produced an elegantly written, emotionally saturated treatise that encouraged readers to feel as much as reason their way to justice. That feeling element in the Commentaries is the key to what might be called its “binding” power, the force that attracted readers to the Commentaries and made it an icon for English justice. In enlisting emotion to represent English law as just, Blackstone created a moving, evocative poetics of justice with continuing influence across the Western world.16 He also created a text that encourages us to think that English law embodied the hopes and dreams of not only the English, but of all people, that it melded “rule” to “life” seamlessly, and, in doing so, was endlessly self-justifying. In my book, Loving Justice: Legal Emotions in William Blackstone’s England, I investigate the ways Blackstone created this bond between “rule” and “life” through emphasizing the emotions that undergirded England’s adoption of various laws in different arenas: desire and disgust in marriage law; melancholia and mourning in property law; embarrassment in the law of slander and defamation; terror in the criminal law; and happiness (or its lack) in the laws governing slavery. By suggesting, sometimes overtly and sometimes sub-textually and referentially, that law was fully integrated with “natural” human emotions like desire, disgust, embarrassment, fear, and happiness, Blackstone attempted to justify and naturalize even the most illogical and poorly formed English laws. That effort to naturalize English law, to map it onto people’s bodies and emotions and habits, returns us to Agamben’s concept of “form-of-life”: for Blackstone, English law was right, English law was just, English law had evolved naturally and perfectly from national history and custom to the point that it had become a form-of-life, one that brought natural emotions, natural bodies, and legal precepts into what he imagined as perfect alignment.

William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769. 4 vols. (Chicago: Chicago University Press, 1979), 1:47. 16 Kathryn Temple, Loving Justice: Legal Emotions in William Blackstone’s England. (New York: New York University Press, 2019), 1–2. Some introductory material from Loving Justice appears here, lightly edited to suit the present context, with permission from NYU Press. 15

Why the law needs the history of emotions  425 Property Law: Managing Acquisitive Emotions Both Agamben’s Franciscans and Blackstone made property law the linchpin of their systems. Agamben devotes a good part of Highest Poverty to the Franciscan approach to property law because he views property law as constitutive of the Franciscan project and of Franciscan identity. By choosing property as a point of differentiation, the Franciscan’s signaled the seriousness of their desire for freedom from state control. Property law, the management of ownership rights, the differentiation between private property and property owned by one’s government, the rules regarding the use of property whether owned, leased, or deeded away, have long been primary ways of linking bodies to the state. Thus, the Franciscans defined themselves through their rejection of the subjugation to property. When joining the order, they relinquished any claims they may have had to property, but with what seems to modern ears an odd disclaimer: they insisted on their right to use what they did not own. In other words, they claimed that in a state of nature, God had meant all to share all, and that property law was a result of the Fall rather than a natural way of governing the differing needs and contributions human make to a culture. Rejecting property ownership represented a whole-sale rejection of sovereignty since it rejected the state’s role in forming Franciscan identity.17 As Agamben points out, this stance represented an “attempt to realize a human life and practice absolutely outside the determinations of the law.”18 The Franciscan take on property law was not simply a matter of doctrine though; it was intimately tied to emotions around consumption and desire. Blanchard points out that the Franciscans wished to avoid “the inner need or feeling preceding consumption” given that the “need to consume always precedes the desire to possess.”19 In contrast, Blackstone chose to naturalize people’s relationship to property law, to present it as natural and good, as the just result of centuries of experience that had led naturally and inevitably to the results he details in the Commentaries in 1765. In essence, he attempted to tie eighteenth-century English property law to the long-worn habits of “immemorial custom.” I have discussed his methodology at length in Loving Justice but it is worth addressing this again to demonstrate how Blackstone takes an archaic system that must have seemed unnatural and against human needs and emotions to many, reframing it so it came to seem quite natural, quite just, quite right, and fully aligned with human desires.20 Blackstone, for his part, recognized that property law, like property, is uniquely tied to identity, and identity involves a complex of emotions around all that is associated with it.21 In the beginning of Volume II, he frames property law as an emotional arena when he claims that: There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.22

Blanchard, “Forms of Power,” 538. Agamben, Highest Poverty, 110. 19 Blanchard, “Forms of Power,” 536. 20 In the remainder of this section, I offer material from Temple, Loving Justice, 62–88, lightly edited and revised to suit the present context, with permission from NYU Press. 21 Margaret Jane Radin, Reinterpreting Property (Chicago: University of Chicago Press, 1993). 22 Blackstone, Commentaries, 2:2, emphasis added. 17 18

426  Research handbook on law and emotion Moving quickly from imagination and affection to a range of other emotions in what turns out to be a long paragraph, Blackstone evokes pleasure, fear, and satisfaction as possible responses to issues involving property law. In fact, throughout the real property discussion in Chapter Two (and real property takes up over two-thirds of the volume as Blackstone paid less attention to personal property or what he called “Of Things Personal”), Blackstone repeatedly invokes a whole network of emotions: contentiousness, greed, jealousy, loyalty, suspicion, possessiveness, impatience, as well as affection, even love and happiness. Grief also plays a role here. Whereas the ownership of property cannot occur without life, it also cannot occur without loss, often loss figured as the death of an ancestor, of family. As Ravit Reichman argues, property can be the object of our desire and also that of our “grief, dispossession and guilt.”23 Why such an overlay of emotion on an area of law renowned for its technical doctrinal details? Emotion tends to step in where reasoned justifications have failed. In volume II, Blackstone moves immediately from asserting the imagined power of ownership to denouncing its rationality, particularly in the context of hereditary rights. Once dead, owners have abandoned their property: There is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground…or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him.24

What to do? Without hereditary rights, England’s social and economic structure would have been thrown into chaos and yet hereditary rights seemingly have no foundation. Blackstone’s response is partly to rely on “just so” stories throughout his account of property law, as Caroline Rose has so aptly demonstrated.25 In my elaboration of her argument in Loving Justice, I argue that these “just so” stories extended to almost every explanation in Blackstone’s discussion of property. Thus, we learn that it would be, if not logical, then practical to avoid conflicts over property occurring on the death of a property owner, that we should foster the husbandry of land which no one would do if ownership was vested in the most aggressive taker, that those closest to the deceased should naturally inherit his property. Blackstone bolsters this flat pragmatism by embedding his discussion in images of loss and recovery, images designed to capture our emotions through tugging at our desire and by romanticizing grief as he presents property law as a way of preserving and memorializing the lost past—whether that of our distant relatives or of our own history. As Charles Montgomery Gray has demonstrated, “Blackstone said enough about Anglo-Saxon England to tantalize, without gathering up the loose ends.”26 The real story of property law in the Commentaries thus lies not in the technicalities of the most technical doc-

Ravit Reichman, The Affective Life of Law: Legal Modernism and the Literary Imagina­tion, (Stanford: Stanford University Press, 2009), 439. 24 Blackstone, Commentaries, 2:2. 25 Caroline Rose, “Canons of Property Talk Or, Blackstone’s Anxiety.” The Yale Law Journal 108, no. 3 (1998): 601–32. 26 Charles Montgomery Gray, “Blackstone’s History of English Law,” Publications, Paper 3 (2009): 1–31, 16. http://​chicagounbound​.uchicago​.edu. 23

Why the law needs the history of emotions  427 trinal sections, but in their references to feudal England as Blackstone imagined it, entombed and encrypted in the intricacy of doctrinal law. And we are tantalized: buried in masses of doctrine is a simpler, braver, less restrictive world of rugged knights and lords, of first-born sons pledged to their lord, of a communal people in solidarity against their enemies. This is a world of law we can feel good about but also the world that we have lost. Although all property involves loss—one cannot hold property without someone else being excluded—the macrocosmic losses of Blackstone’s Volume II extend beyond the individual property owner to encompass the losses of history, the loss of oral culture, and in the largest sense, the loss of communal agreements about meaning and practice that can only occur in a true community of kindred souls. Blackstone here offers us the fantastic lost world of King Alfred and the Saxon ancient constitution, but as filtered through the lens of the Norman refinements that he found so reprehensible. Whereas Alfred had established laws that were straightforward and easily understood, the “Norman interpreters,” who were “skilled in all the niceties of the feudal constitutions . . . took a handle to introduce not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and dependencies, such hardships and services, as never were known to other nations.”27 In short, the Norman “interpreters” took what had been settled custom, simple and habitual, and complicated it in order to serve their own needs. Buried in Norman doctrine are hints of the now lost deep past of the Anglo-Saxons, a past shrouded in the paucity and obscurity of written records, clouded by changes wrought after the Norman Conquest, brought alive not primarily by Blackstone’s references to doctrinal law but by reference to the body, to embodied emotive habitual practices woven into the very fabric of the doctrine that he carefully attempts to elucidate. For when Blackstone references the lost bodies of the past, he also references the emotions: body and emotional reactivity here merge in Blackstone’s fantasy of an ancient world in which laws mapped onto both the bodies and the emotions of their subjects. The “antient simplicity of feuds,” which Blackstone refers to as “a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence”28 is associated with a fantasy of communality, as Blackstone’s imagined lost world seems to hold more in common with Raymond Williams’s idealization of the culture of the country as “a celebration of a community of people who share the same assumptions and live in kindness and mutuality” than with any real understanding of the brutal and most likely short lives of the Saxons.29 What had been lost seems a lot like Agamben’s “third thing,” a world of mutual interdependence, one in which laws made sense as they represented both community and individual needs in perfect harmony.30 True, Blackstone struggles with a web of elaborated detail, resulting, he argues, in part from England’s rapid development but also from Norman interference. (Agamben notes that the monks were also mired in detail, yet saw it as a form of “meticulous attention” that encouraged the merging of law with life.31) In Blackstone’s version of legal history, the Normans destroyed the simple rules of their earlier feudal cousins through “the subtilty of the scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon,” which resulted in the “most . . .

Blackstone, Commentaries, 2:51. Blackstone, Commentaries, 2:58. 29 J. Hillis Miller, Communities in Fiction (New York: Fordham University Press, 2015), 16. 30 Blackstone, Commentaries, 2:214. 31 Agamben, Highest Poverty, 29. 27 28

428  Research handbook on law and emotion oppressive consequences.”32 Yet those early feudal cousins live on in traces in the very contrast Blackstone creates between their simplicity and Norman “subtilty.” Out of these ruins and relics of the mostly oral Saxon culture, Blackstone constructs the following story, one focused on embodied oral culture and thus on the body and its emotions: originally, the King owned all the land, and granted parcels to his knights in exchange for their service. These transfers occurred “at a time when the art of writing was very little known: and therefore the evidence of property was reposed in the memory of the neighbourhood.”33 Among others, Pierre Legendere has pointed out that “wherever writing is in issue, so too is the body”; “even though the law has no body, it speaks.”34 In Blackstone, the extended metaphor of the body helps the law speak; his careful historical exegesis offers a window into the development of this dynamic over time. Before the law spoke through writing, it spoke through embodied rituals enacted orally and physically by interested parties. Take, for instance, “the delivery of the turf,” where objects stood in for bodily possession of land. As Blackstone explains it: A symbolical delivery of possession was in many cases antiently allowed; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself.

Some of the objects that have stood in for land were objects closely attached to bodies: a shoe, a “cloak of the buyer,” a “staff or wand.”35 But the “mere delivery of possession, either actual or symbolical,” eventually grew unsatisfactory because it was subject to “the ocular testimony and remembrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof.”36 In what seems to have been a lengthy, attenuated process, written deeds developed to stand in for physical deeds, nevertheless remaining in Blackstone’s view “the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property.”37 “Solemn” and “authentic”: Blackstone maps emotions onto legal acts here, suggesting their merger rather than division. The proper management of property is closer to a “form of life” than to a legal system of impositions, resistance, and divisiveness. Interestingly, the writing rather than the “deed” is treated as a fetish in these passages, as Blackstone rhapsodizes about the requirement that property transfers be recorded in writing: the deed must be written, or I presume printed; . . . it must be on paper, or parchment. For if it be written on stone, board, linen, leather, or the like, it is no deed. Wood or stone maybe more durable, and linen less liable to erasures; but writing on paper or parchment unites in itself, more perfectly

Blackstone, Commentaries, 2:58. See also 2:344-5 where “the ingenuity of some, and the blunders of other practitioners,” so “entangled” an estate with “a confusion unknown to the simple conveyances of the common law,” that Parliament was increasingly asked to step in and clean up the mess, causing the king “to wish, that men might not have too much cause to fear, that the settlements which they make of their estates shall be too easily unsettled when they are dead.” 33 Blackstone, Commentaries, 2:53. 34 Pierre Legendere, Law and the Unconscious: A Legendere Reader, ed. Peter Goodrich, trans. Peter Goodrich with Alain Pottage and Anton Schüz (New York: St. Martin's Press, 1997), 110, 112. 35 Blackstone, Commentaries, 2:312–13. 36 Blackstone, Commentaries, 2:313. 37 Blackstone, Commentaries, 2:314, 295. 32

Why the law needs the history of emotions  429 than any other way, both those desirable qualities: for there is nothing else so durable, and at the same time so little liable to alteration; nothing so secure from alteration, that is the same time so durable.38

Blackstone records with seeming delight the early practice called syngrapha by the “canonists” and chirography in the common law, which preserves the integrity of deeds made by several parties: it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them; through which the parchment was cut, either in a strait or indented line, in such a manner as to leave half the word on one part and half on the other.39

Durability and inalterability, both qualities of things but not of human bodies, are here meant to stand in for the ephemeral nature of human transactions, for the vagaries of memory, and the losses that time bestows. The focus on writing attaches deeds to the body and to embodied emotions. Writing itself is “solemn” and “authentic,” in that it records ephemeral human intentions and acts, freezing them in historical time. And throughout we see the same tension between orality and writing that Agamben notes in the early Benedictine texts he studies: these written rules: stage something that is not exhausted in either of these dimensions [of orality and literacy], but finds its truth precisely and solely in the tension that it installs between them. Neither written word nor living voice, the rule constantly moves between these polarities, in search of an ideal of the perfect common life.40

The body of writing is not the only body in Blackstone. Here we have blood, sex, food (the “hotchpot” as a way of describing the portioning out of real property to daughters), even crying babies, all references to the body designed to engage our emotions as our mirror neurons light up in sympathy.41 This oral, embodied, emotional culture sustained itself through ceremonial moments, including rituals of the body, such as the “homage” when “the vassal or tenant upon investiture did usually pay homage to his lord; openly and humbly kneeling, being ungirt, uncovered, and holding up his hands both together between those of the lord, who sate before him . . . and then he received a kiss from his lord.”42 Humbly…receiving a kiss…paying homage—here we see emotions, the body, and the obedience to law merge in what again feels a lot like Agamben’s form-of-life. Obligations to the lord were physical, potentially violent: “to ransom the lord’s person, if taken prisoner;” to go to war for the lord, and to sacrifice one’s family if necessary. The lord claimed, for instance, the right to make his vassals’ first-born

Blackstone, Commentaries, 2:297. Blackstone, Commentaries, 2:295–296. 40 Agamben, Highest Poverty, 75 41 As Blackstone explains, a hotchpot is, in English, a pudding. “By this housewifely metaphor our ancestors meant to inform us, that the lands…should be mixed and blended together, and then divided in equal portions among all the daughters” (2:190). The proof required for “tenancy by the curtesy,” Blackstone explains, may have included an infant’s cries.” “Some have had a notion that it must be heard to cry; but that is a mistake. Crying indeed is the strongest evidence of it’s being born alive; but it is not the only evidence” (2:127). A baby born alive (even if it died an instant later) had become a descendent whereas a baby born dead had not. 42 Blackstone, Commentaries, 2:53. 38 39

430  Research handbook on law and emotion sons knights, a right exercised to provide protection, but also “a matter that was formerly attended with great ceremony, pomp, and expense . . . The intention of it being to breed up the eldest son, and heir apparent of the seignory, to deeds of arms and chivalry, for the better defense of the nation.”43 Body and land were intertwined in these tales, for the lord had the right of wardship of underage heirs should their father die before they became of age, since “the wardship of the body was a consequence of the wardship of the land.”44 Grants of land were related to the personal, embodied ability of the grantee to defend the grantor in battle and thus fathers could not inherit from their sons, even if their sons predeceased them, because lords did not wish to grant land to a “decrepit grandsire” who “would be but indifferently qualified” to serve in battle.45 Similarly, women could not inherit, not because they were women per se, but because due to their relative weakness and frequent pregnancies they were unable to serve in battle. Blood too is all important here, the key to inheritance and to the “unalterable maxim” that “none was capable of inheriting a feud, but such as was of the blood of, that is, lineally descended from, the first feudatory.”46 Such a person is referred to as a “kinsman of the whole blood.”47 The blood metaphor plays out in many different contexts: for instance, it is possible for one’s “blood” to be “attainted” by being convicted of a felony, for the “inheritable quality of his blood” to be “extinguished,” a disability that cannot be removed even by act of Parliament.48 Reliance on the blood metaphor can lead to absurd results, including the rule that “Bastards are incapable of being heirs. Being thus the sons of nobody, they have no blood in them.”49 To this Blackstone adds, as if realizing the attenuation of the blood metaphor, “at least no inheritable blood.”50 Land, body, and bloodlines were mutually constitutive of identity: one could lose one’s land or one’s body or one’s bloodline because each stood in for the other. Of course, there are no real bodies in Blackstone, and no real blood—only virtual bodies and virtual blood or bloodlines. It’s all representation all the way down, as body and blood serve as highly-extended metaphors standing in for a constellation of rights that is nevertheless located in embodied emotions. Instead of actual bodies, we get the language of bodies, words that stand in for bodies and yet constantly reference them, bringing them to the fore of every discussion. To offer only one of many examples from the description of the much-maligned “entail” with its “in tail male or tail female,” “the word body, or some other words of procreation, are necessary to make it a fee-tail.”51 And crucially important in creating a fee tail (rather than an estate for life) are “words to ascertain the body out of which [the heirs] shall issue.”52 Many of the most important legal terms involving property are terms of embodiment. “Fee-tail,” for instance, “signified any mutilated or truncated inheritance, from which the heirs Blackstone, Commentaries, 2:63. Blackstone, Commentaries, 2:68. 45 Blackstone, Commentaries, 2:212. 46 Blackstone, Commentaries, 2:56. 47 Blackstone, Commentaries, 2:227. 48 Blackstone, Commentaries, 2:252–54. 49 Blackstone, Commentaries, 2:247. 50 Blackstone, Commentaries. One notes the irony of this emphasis on the purity of genetic inheritability given English legal history’s attempts to trace a pure English legal descent from the Saxon ancient constitution. It is not as clear to me as it was to legal historian Charles M. Gray that Blackstone managed to rid English legal history of its “fetter-like” aspects and demonstrate a pure, “progressive” path. Gray, “Blackstone’s History of English Law,” 4. 51 Blackstone, Commentaries, 2:114–115. 52 Blackstone, Commentaries, 2:112, n.m. 43 44

Why the law needs the history of emotions  431 general were cut off; being derived from the barbarous verb taliare, to cut.”53 The heirloom derives from loom, but refers to limbs, not to weaving. Blackstone notes that the word is “of Saxon original,” adding “in which language it signifies a limb or member; so that an heirloom is nothing else, but a limb or member of the inheritance.”54 And what of the body that is not a human body? “A monster,” Blackstone tells us, “which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir . . . Yet if it hath human shape, it may be heir. This is a very antient rule in the law of England.”55 As here, Blackstone takes pains to bring the oral world of embodied, emotive speech to the textualized world of his own time, the fabulous “ancient” rule of the “monster” to its present application. The strong association between Saxon bodies, Saxon customs, and property law persists in the Commentaries in the proliferation of technical specifications that eventually came to stand in for the loss of bodies, and with the death of the body, the death of intent and dominion. From the “delivery of the turf” to signify property transfer to the use of the concept of socage, the Saxon practices lived on in Blackstone’s version of eighteenth-century England.56 In fact, according to Blackstone, it is the loss of the body in the body-equals-land equation that destroys the feudal system. Over time, knights began to offer payments to their lords rather than services, a development that Blackstone refers to as “degeneration.”57 And with this “degenerating of knight-service . . . into . . . pecuniary assessments, all the advantage . . . of the feudal constitution were destroyed, and nothing but the hardships remained.”58 Worse yet from Blackstone’s perspective, embellishments, such as those that characterized the doctrine of uses, destroyed the beauty of “the plain simple rules of property established by the antient law,” which made it impossible or at least “impracticable” to explain the current state of the law to educated readers.”59 The body becomes merely an extended metaphor created by words, words no longer spoken but written, and in an even further attenuated relation to the body, printed and widely disseminated. In “standing in” not only for the body, but for the oral tradition with its emphasis on embodied language and on unified communities, writing here marks the loss of the oral, its failure to persist over time. By marking the loss of the oral, embodied, emotional origins of English law, Blackstone foregrounded the loss of law’s authoritative grounding in custom and tradition, in the Saxon bodies of those original creators of English law. For Blackstone, the ideal law is textual, but as Agamben says, this textuality is imagined as blurring with the body and with life: as with the Benedictines, “the text of the rule is thus not only a text in which the distinction between writing and reading tends to become blurred, but also one in which writing and life, being and living become properly indiscernible.”60

Blackstone, Commentaries. Blackstone, Commentaries, 2:427. 55 Blackstone, Commentaries, 2:246–247. 56 Blackstone, Commentaries, 2:81,90. Socage, Blackstone argued, was a Saxon word, one designating unrestricted ownership of property and one of “the relicks of Saxon liberty” that had survived to the present day as a “grand species of tenure.” 57 Blackstone, Commentaries, 2:75. 58 Blackstone, Commentaries. 59 Blackstone, Commentaries, 2:331. 60 Agamben, Highest Poverty, 82. 53 54

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WE CAN HOPE, CAN’T WE? CRITIQUE AND/OR LONGING One can, of course, object to this comparison. Agamben’s monks developed a form-of-life in which detailed written regulations and bodies became indistinguishable, united through an emotional undergirding that celebrated their union. But they did so in order to “expose sovereign power as an emperor without clothes, as an institution that can claim no substantive material reality in the world apart from its nominal value as a sign, as a discursive value that operates only as an instrument of coercion and persuasion.”61 And many have argued along with Agamben that the monks created this system in part because they wished to escape from the law, to live outside of jurisprudence and government.62 Agamben tells us that the legacy of the Franciscans was to imagine “a human life entirely removed from the grasp of the law and a use of bodies and of the world that would never be substantiated into an appropriation.”63 This did not mean, however, an unadministered life, as Agamben’s lengthy forays into a mountain of archival material demonstrate.64 Instead, it meant a life in which one felt self-administered and self-managed, even while obeying any number of restrictive rules.65 While the Franciscans were trying to expose the nakedness of the emperor, critics ranging from Jeremy Bentham to Duncan Kennedy have suggested that Blackstone was attempting to clothe his emperor, to dress up sovereign power in the clothes of natural law, augmented by the implementation of an emotional regime in which the only natural feelings allowed expression were those that supported that regime. Bentham’s critique, of course, is well known: Blackstone represented “nonsense upon stilts;” he was a slave to authority and wanted to enslave us as well; he was complacent; he was poison. Kennedy’s critique is more measured.66 Writing in 1979, and at the height of critical legal studies, he found Blackstone to be instrumental in the transition from monarchy to a liberalism based in rights enforced by the state. This was not a good thing. Blackstone, in Kennedy’s reading, was an apologist for a cruelly deceitful liberal ideology meant to cement power relations and keep progressive change in check. But this critique operates in a larger context of what Kennedy calls “the fundamental contradiction,” one which the Franciscans, Blackstone, and now Agamben, have all struggled with. This fundamental contradiction is one that all communities of humans face, that of the incompatibility of our desire for personal freedom with our absolute dependence on others for species and personal survival. As Kennedy puts it, “the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is neces Blanchard, “Forms of Power,” 538. Agamben, Highest Poverty, 122. 63 Agamben, Highest Poverty, xiii. 64 Blanchard, “Forms of Power,” 532. 65 Agamben, Highest Poverty, 4. Agamben addresses at length the long-standing critical debates about whether the Franciscans “rules” were jurisprudential or somehow not jurisprudential and thus of a different (and yet little understood) order altogether. He concludes that the Franciscan texts he examined were not law, not history, and not mere ethical exercises, but instead were meant to “govern the life and customs of men, both singularly and collectively.” 66 For detailed accounts of Bentham’s relationship with Blackstone, see J.H. Burns, “Bentham and Blackstone: A Lifeme’sDialecc,” Ulitas 1, no. 1 (1989): 22-40; Richard A. Posner, “Blackstone and Bentham,” Journal of Law and Economics. 19, no. 3(1976): 569-606; Philip Schofield, “The ‘Least Repulsive’ work on a ‘Repulsive Subject’: Jeremy Bentham on William Blackstones’ Commentaries on the Laws of England’” in Blackstone and his Crics, eds. Anthony Page and Wilfrid Prest (Oxford, UK: HartPublishing, 2018) 23–40. 61 62

Why the law needs the history of emotions  433 sary to achieve it.”67 In a quite dark take on this problem, Kennedy says “at the same time it forms and protects us, the universe of others…threatens us with annihilation and urges upon us forms of fusion that are quite plainly bad rather than good…. Numberless conformities, large and small abandonments of self to others, are the price of what freedom we experience in society.”68 This issue cannot be dealt with through “the assurances of reason,”69 because it is all about feelings and emotions: “there is a fundamental contradiction between our feelings of dependence on and integration into groups, and our feelings that we are isolates and the collective is a threat.”70 Both Agamben’s Franciscan monks and Blackstone confronted the relationship between rules meant to insure the survival of the collective and, as Blackstone put it, “the wants and fears” that drive individuals. They recognized either overtly or covertly that the attempt to represent the law in a civil society is, as Kennedy points out, “an effort to discover the conditions of social justice” and an attempt to manage, if not deny (as Kennedy argues), “the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world.”71 And both offer idealized, utopic explanations, the “utopian enterprises” that Kennedy associates with Blackstone, those imagining how the divide between the individual and the collective may be bridged, explanations that rely not on reason, but on emotions.72 Agamben argues that “the perfect life coincides with the legibility of the world,” a comment that helps us understand why both the Franciscan monks and Blackstone attempted to bring the “natural” emotions that are experienced as embodied sensations into alignment with written legal regulations.73 It is an old tradition, this attempt to assert that “natural” law coincides with written law: St. Paul refers to the law “written on the heart” and Coke celebrated the law of nature as “written with the finger of God in the heart of man.”74 “Attempt” is the right word to describe the effort to conflate natural and written law. Even Agamben’s monks never fully realize their desire. Agamben tells us a curious story about the monks’ tendencies to “a terrible sickness” called acedia: When in this condition a monk could not read, “leafing through the pages, he looks curiously for the end of the texts, he counts the folios and calculates the number of gatherings. Later he closes the book and puts it under his head and falls asleep, but not a very deep sleep.”75 There is a cure for this condition though: to think of “nature itself” as a book “and the life of the monk as a condition of absolute and uninterrupted legibility.”76 Nice thoughts and a nice remedy, but a central irony underlies any use of “the natural” in the same context as the “legible.” Writing, as we know, is not natural in the same way that speaking is natural. It is an artificial form, developed to aid commerce and communication over distance, 67 Duncan Kennedy, “The Structure of Blackstone's Commentaries,” Buffalo Law Review 28, no. 2 (1979): 212. 68 Kennedy, “The Structure of Blackstone's Commentaries,” 212. 69 Kennedy, “The Structure of Blackstone's Commentaries,” 213. 70 Kennedy, “The Structure of Blackstone's Commentaries,” 257. 71 Kennedy, “The Structure of Blackstone's Commentaries,” 210. 72 Kennedy, “The Structure of Blackstone's Commentaries.” 73 Agamben, Highest Poverty, 35. 74 Edward Coke, The Reports of Sir Edward Coke, Knt. In English, In Thirteen Parts, ed. George Wilson (Dublin: J Moore, 1793), 4, VII, 25. For a discussion of this tradition, see Paul R. DeHart, Uncovering the Constitution’s Moral Design (Columbia and London: University of Missouri Press, 2007) 9–10. 75 Agamben, Highest Poverty (quoting Acedia, 26). 76 Agamben, Highest Poverty, 26.

434  Research handbook on law and emotion useful in building political structures that cannot rely on oral communication alone. Unlike our natural ability to develop language, it requires years of study and practice. Blackstone’s art (or artifice) lies in his ability to make the artificial seem natural, to make it seem that “rules” not only map onto life, but reflect it in some absolute sense that suggests their merger rather than their division. In fact, Blackstone exploits the tension between writing and the body, the irony derived from the fact that writing can only ever emanate from bodies and yet divorces itself from them at the instant of creation, to represent the merger of rules with life, in much the same way that Agamben’s monks lived in tension with the “rules” that determined their every waking and living moment. The legible and the natural, writing and the body, though always in tension, always about to but never actually dissolving into each other, work together in both the Franciscan system and in Blackstone’s Commentaries to represent the merger of rules with life. My recognition of this dynamic could be critiqued as wishful thinking, as “nonsense upon stilts,” as Bentham said of Blackstone’s work. But I wonder if its nonsensical claim on our emotions actually creates a bit of space for hope? Because such a merger—written on the heart—might not be permanent and unalterable. What can be written can also be written off, erased, revised, and remade. To play with the extended metaphor, we might argue that if being “natural” involves a complex of emotions rooted in the habits of the body rather than a fact of nature, there is room for change. Agamben tells us that we always have hope because the “form of life” involves a life in which becoming human is an ongoing event. And Blackstone’s very reliance on emotion suggests the possibility of change in that emotions are culturally malleable; the emotions of today need not be the emotions of tomorrow; other emotions could replace both the hate that drives neo-nationalism, for example, or the greed behind so many current governmental actions. To return to the beginning of my chapter, is to return to Agamben’s “third thing,” the word “thing” standing in for something that resists articulation. As Agamben explains, it refers to “the identification of a level of consistency that is unthought and perhaps today unthinkable… and in which both rule and life lose their meaning,” one constructed from a set of mutual obligations and responsibilities rooted in emotions of loyalty, gratitude, and joy, rather than in hate, greed, and fear.77 Currently the U.S. as well as other governments are trafficking in fear and hatred of the unhomed, the propertyless and disenfranchised “other.” To create this “third thing” might mean many different “things,” one of which could be focused on fostering gratitude and loyalty in our “others,” by treating them with care. In doing so we would both evince and inspire the very loyalty and gratitude that can be written on the heart and felt rather than forced upon the body.

REFERENCES Agamben, Giorgio. The Highest Poverty: Monastic Rules and Forms of Life. Translated by Adam Kotsko. Stanford, California: Stanford University Press, 2013. Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769. 4 vols. Chicago: Chicago University Press, 1979. Blanchard, W. Scott. “Forms of Power, Forms of Life: Agamben’s Franciscan Turn.” New Literary History 46, no. 3 (Summer 2015): 525–48. https://​doi​.org/​10​.1353/​nlh​.2015​.0026

Agamben, Highest Poverty, xii.

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Why the law needs the history of emotions  435 Coke, Edward. The Reports of Sir Edward Coke, Knt. In English, In Thirteen Parts, Edited by George Wilson, Dublin: J Moore, 1793. DeHart, Paul R. Uncovering the Constitution’s Moral Design. Columbia and London: University of Missouri Press, 2007. Gray, Charles Montgomery. “Blackstone’s History of English Law,” Publications, Paper 3 (2009): 1–31. http://​chicagounbound​.uchicago​.edu. Kennedy, Duncan. “The Structure of Blackstone's Commentaries. Buff. L. Rev., 28(2), 205–382. Legendere, Pierre. Law and the Unconscious: A Legendere Reader. Edited by Peter Goodrich. Translated by Peter Goodrich with Alain Pottage and Anton Schüz. New York: St.Martin's Press, 1997. Miller, J. Hillis. Communities in Fiction. New York: Fordham University Press, 2015. Radin, Margaret Jane. Reinterpreting Property. Chicago: University of Chicago Press, 1993. Reichman, Ravit. The Affective Life of Law: Legal Modernism and the Literary Imagination. Stanford: Stanford University Press, 2009. Rose, Caroline M. “Canons of Property Talk, Or, Blackstone’s Anxiety.” The Yale Law Journal 108, no. 3 (1998): 601–32. doi:​10​.2307/​797498. Temple, Kathryn. Loving Justice: Legal Emotions in William Blackstone’s England. New York: New York University Press, 2019. Tyler, Tom. Why People Obey the Law. Princeton: Princeton University Press, 2006.

PART VII BEYOND THE COURTROOM

Legislation

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

These days, sometimes it’s hard to know what to believe—good stories, or good statistics. It is easy to think of issues that pit one type of evidence against the other. In the early 2000s, for example, much public discourse and debate centered on whether vaccines (particularly the measles, mumps and rubella shot) caused autism.1 Horrifying online accounts and news stories described how toddlers’ personalities suddenly changed after receiving the MMR, though the peer-reviewed article supporting a causal link had been retracted and the lead author had repudiated its findings.2 The reasons that lay individuals and experts gave in support of their perspectives differed considerably. On one hand, parents and advocates proffered evidence from lived experience, sharing stories of children whose behavior suddenly changed with shocking rapidity after vaccination; on the other, experts cited research studies that rejected any causal MMR-autism link.3 But this dry, generalized expert knowledge had little emotional impact beside parents’ heartbreaking accounts. Scientific data on vaccine side effects is ample, and generally of excellent quality. But good data is harder to come by for other controversial issues. Federal limitations on government-funded firearms research,4 for example, contribute to a dearth of data on many related questions, such as the effects of enacting or repealing “gun control” laws on crime and suicide rates. When empirical assessments falter in accuracy or generalizability, there is more of a policy-making vacuum—fertile ground for anecdotes to take root. This chapter focuses on one instance where expert knowledge could not stand its ground against a compelling anecdote of a woman who shot another person to save a police officer’s life. This outlier of a story was instrumental in increasing legislative support in the Indiana state House and Senate for House Bill 1284 (“HB 1284”), which gave immunity from civil suits to individuals who used deadly force in self-defense to protect themselves or others from serious bodily harm or death, so long as that force was justified.5 This chapter first describes why anecdotes and statistics have such varying emotional appeal, and how the use of these justifications is embedded within social contexts and relationships. It will then discuss other types of reason-giving behavior and their potential emotional 1 Michael Davidson, “Vaccination as a Cause of Autism—Myths and Controversies,” Dialogues in Clinical Neuroscience, 19, no. 4 (2017): 403–7. 2 A.J. Wakefield et al., “Ileal-Lymphoid-Nodular Hyperplasia, Non-Specific Colitis, and Pervasive Developmental Disorder in Children,” Early Report, 351, no. 9103 (1998): 637–41. 3 Davidson, “Vaccination as a Cause of Autism,” 405. 4 Samantha Raphelson, “How the NRA Worked to Stifle Gun Violence Research,” NPR, April 5, 2018, accessed July 9, 2019, https://​www​.npr​.org/​2018/​04/​05/​599773911/​how​-the​-nra​-worked​-to​-stifle​ -gun​-violence​-research. 5 “Self-Defense, Defense of Others, and Firearms Matters,” House Bill 1284, Indiana Legislature (2019 Session).

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Soft targets: Emotions in the passage of “stand your ground” legislation  439 consequences. Finally, it will turn to the case study of HB 1284, assessing how the bill’s advocates used one woman’s testimony to forge a strong empathic connection with state legislators to persuade them of the bill’s necessity, largely drowning out more representative competing anecdotes and technical accounts. Through this anecdote, HB 1284’s supporters set in place a particular emotional regime which allowed individuals who used deadly force to essentially off-load the emotional and financial burdens of defending a wrongful death suit brought by a criminal-victim or his family.

EMOTIONS AND REASON-GIVING BEHAVIOR If one Googles “anecdote definition,” the Google Dictionary entry that appears gives an apparently contradictory answer. Although the primary definition is innocuous (“a short amusing or interesting story about a real incident or person,”) a secondary definition sounds a more cautionary tone: “an account regarded as unreliable or hearsay.”6 For much of the twentieth century, the “scientific search for universal, generalizable knowledge”7 was increasingly in tension with “localized forms of understanding, which are rooted in individual experience.”8 Categories such as “empirical” versus “anecdotal” and “expert” versus “lay” drew important—and socially maintained—boundaries between what was internal and external, acceptable or inacceptable, to science, research, and academia.9 Expert information, usually derived through the multi-step scientific method, was thought to elicit a generalizable, dispassionate truth that transcended individual experience, supposedly unaffected by bias or emotion.10 Anecdotes, on the other hand, only required a data-set of one, and their truth claims were rooted in a person’s lived experience—perhaps the most vivid manner of ascertaining “truth,” but one that was inherently subjective and embodied, inaccessible to others. By nature, anecdotes were also ostensibly subject to many biases and emotional influences.11 While expert information can help to determine whether two co-existing phenomena are correlative or causative,12 subjective anecdotes exist only at the individual level and are “immeasurable and incomparable,” incapable of establishing causation.13 In expert knowledge, then, “the known takes precedence over the knower,” which leaves “the subject . . . out of the picture.”14 For a period of time, “anecdote” was considered a “pejorative term applied

“Anecdote,” Dictionary, accessed July 9, 2019, https://​www​.google​.com/​search​?q​=​anecdote+​ definition​&​ie​=​&​oe​=​. 7 Alfred Moore and Jack Stilgoe, “Experts and Anecdotes: The Role of ‘Anecdotal Evidence’ in Public Scientific Controversies,” Science, Technology, & Human Values 34, no. 5 (2009): 656. 8 Moore and Stilgoe, “Experts and Anecdotes,” 656. 9 Moore and Stilgoe, “Experts and Anecdotes,” 655. 10 Jonathan Kuo, “The Science of Science Rhetoric,” Berkeley Scientific Journal 23, no. 1 (2018): 4–6; William J. Martin, “Science is Dispassionate, We Are Told,” Annals of the American Thoracic Society 10, no. 4 (2013): 358. 11 Janice M. Morse, “Editorial: The Power of the Anecdote,” Qualitative Health Research 16, no. 8 (2006): 1019–20. 12 David Ricci, “Political Science and Conservative Ideas: The American Case,” Journal of Political Ideologies 14, no. 2 (2009): 164. 13 Ricci, “Political Science and Conservative Ideas,” 164. 14 Moore and Stilgoe, “Experts and Anecdotes,” 656. 6

440  Research handbook on law and emotion to out-of-date evidence that ought to be supplanted with ‘real’ scientific data from the latest medical journals.”15 But anecdotes have always had their own strange power. They “communicate the emotion and meaning of an event . . . and bring a message home.”16 Even in medicine—the expert field that is perhaps most guilty of pillorying lay stories—anecdotes were “once the primary medium of medical knowledge;” anecdotes are evidence within other specialties such as anthropology, education, law, psychiatry, psychology, and others. Anecdotes can enhance the credibility of expert knowledge, including factors that would otherwise be invisible to more generalized research.17 For example, lay knowledge provides information about “specific, local conditions” which generalized research may overlook in pursuing its focus on typical conditions.18 Anecdotes are often the seed from which research studies grow, and they may, at best, be the capstone that breathes life into research findings at the conclusion of analysis, helping lay audiences to conceptualize findings.19 Thus, although anecdotal evidence and expertise are conventionally defined as oppositional,20 scientific boundaries are open to both lay individual experience and anecdotal evidence.21 How each is used in a given context depends on social and relational dynamics.22 The MMR-Autism controversies illustrate these tensions between anecdote and scientific research, during which individuals and experts engaged in negotiation and accommodation through diverse mediums such as public discourse and government regulation.23 In the MMR vaccination context, anecdotal evidence defined what science was not: it was not subjective, nor individual, nor localized to one specific health concern, nor presented by lay people.24 Because scientific institutions could not accommodate or even explain anecdotal evidence of vaccine harms, these stories spilled over into public and political spheres.25 Individuals whose harms went unrecognized or overlooked claimed a different (and unscientific) kind of truth and authority, that of lived experience and embodied knowledge.26 They attempted to validate their claims through other forums,27 and often came to regard scientific knowledge as, at best, information irrelevant to their personal experience and, at worst, a hoax that threatened their self-knowledge. Thus, lay people dealt with a science that could not accommodate their lived experience by questioning the validity of scientific claims, just as scientists questioned the validity of lay anecdotal evidence because of its potential for misrepresentation and bias.28 Social processes gave parents and advocates a platform from which to use anecdotes to contest

Robin Nunn, “Mere Anecdote: Evidence and Stories in Medicine,” Journal of Evaluation in Clinical Practice 17 (2011): 920. 16 Morse, “The Power of the Anecdote,” 1019. 17 Moore and Stilgoe, “Experts and Anecdotes,” 656. 18 Moore and Stilgoe, “Experts and Anecdotes,” 657. 19 Moore and Stilgoe, “Experts and Anecdotes,” 922; Morse, “The Power of the Anecdote,” 1019. 20 Moore and Stilgoe, “Experts and Anecdotes,” 658. 21 Moore and Stilgoe, “Experts and Anecdotes,” 655. 22 See generally Moore and Stilgoe, “Experts and Anecdotes.” 23 Moore and Stilgoe, “Experts and Anecdotes,” 658. 24 Moore and Stilgoe, “Experts and Anecdotes,” 660. 25 Moore and Stilgoe, “Experts and Anecdotes,” 661. 26 Moore and Stilgoe, “Experts and Anecdotes,” 661. 27 Moore and Stilgoe, “Experts and Anecdotes,” 661. 28 Moore and Stilgoe, “Experts and Anecdotes,” 671. 15

Soft targets: Emotions in the passage of “stand your ground” legislation  441 scientific conclusions and processes, lent these accounts an alternative form of relevance and power, and legitimized supporters’ voices in debates.29 In recent years, these tensions between empiricism versus anecdote and expert versus lay authority have magnified, heightening the need to deconstruct how these tools are used to reason through (and past) contemporary issues. If anecdotes were formerly considered anathema to truth and reason, in contemporary “post-truth” politics, the wheel of fate has now turned, and empiricism is now put to the question. Trust in science, research, and other empirical keystones is decreasing in Western liberal democracies.30 More and more citizens are distrusting government data, and “antipathy to statistics has become one of the hallmarks of the populist right,” on the grounds that such data is not just untrustworthy but “almost insulting or arrogant.”31 In contrast, the conservative right is increasingly receptive to stories, even if these accounts are of unpopular groups such as immigrants.32 Statistics and other measures are now faulted for being too abstract and elitist, for erasing memory and narrative, and for burying imagined communities.33 These developments make it much more difficult to talk about populations and policy; in past decades, scientific tools such as statistics, one of the chief accomplishments of Enlightenment nation-state policy-making, had reflected a commitment to “depict a society in its entirety to improve the public good.34 At base, anecdote and empirical work are both reason-giving behaviors, embedded in social relationships and contexts. Sociologist Charles Tilly has proposed a taxonomy to help understand a broad range of reason-giving behaviors and their relational and pragmatic consequences. He posits that reason-giving is fundamentally social, and that people are not motivated by a “universal craving for truth or coherence” so much as by a desire to express or communicate about the relationship between themselves and the object or issue they are trying to explain.35 Tilly’s taxonomy identifies four overlapping categories of reasons: (1) convention; (2) stories; (3) code; and (4) technical accounts.36 Each has different characteristics, form, and content which vary depending upon the relationship between the reason giver and her audience; each type of reason confirms or repairs an existing relationship, claims a new relationship, or denies a relationship.37 Conventions are commonly-accepted reasons for a routine event’s occurrence, and their use varies depending on social circumstances.38 Potential conventions can include both rote excuses to explain lateness (“I was stuck in traffic”) and truisms for good fortune (“your turn finally came”).39 Conventions are not meant to provide causal accounts per se; their depth varies with parties’ relationships. Some reasons will satisfy someone sitting next to us on the bus, but not our spouse.

Moore and Stilgoe, “Experts and Anecdotes,” 655. William Davies, “How Statistics Lost Their Power—And Why We Should Fear What Comes Next,” The Guardian, Jan. 19, 2017. 31 Davies, “How Statistics Lost Their Power,” 1. 32 Davies, “How Statistics Lost Their Power,” 2. 33 Davies, “How Statistics Lost Their Power,” 5. 34 Davies, “How Statistics Lost Their Power,” 5. 35 Charles Tilly, “Reasons Why,” Sociological Theory 22, no. 3 (2004): 447. 36 Tilly, “Reasons Why,” 447. 37 Tilly, “Reasons Why,” 448. 38 Tilly, “Reasons Why,” 448. 39 Tilly, “Reasons Why,” 448. 29 30

442  Research handbook on law and emotion Explanatory stories, on the other hand, can be used to explain exceptional circumstances;40 conventional truisms are unsatisfactory justifications for major life events, accomplishments, failures, or traumatic events. Reason-givers try to match their explanatory stories to particular relationships and situations, and these accounts typically include embedded causal justifications (i.e., X happened because of Y).41 Stories abbreviate cause-and-effect relationships by focusing on a small number of actors in a finite time and space whose actions cause everything that occurs within these boundaries.42 Thus, these narratives do not include either the causal effects of errors and unexpected consequences or indirect, incremental, and environmental effects.43 Individuals who regard stories as acceptable explanations might not prioritize factual accuracy or consistency, but may focus instead on the cultural norms and understandings embedded in these accounts that communicate a moral or higher truth shared between the reason-giver and her audience.44 Explanatory stories are often much more powerful than other types of reasons (particularly data or statistical information) because of a phenomenon known as the “identifiable victim effect.” People typically value a particular known victim more highly than unnamed statistical victims, paying more attention to and feel greater emotional stress for the known victim’s plight.45 Identifiable victims seem more real; their situation is vivid, compelling, and often unfolds in real-time, and harm or death is certain to occur if immediate action is not taken.46 A textbook example of the identifiable victim effect is the 1987 rescue of 18-month-old “Baby Jessica” from a well on her aunt’s property; rescue efforts were broadcast live on CNN, and many tuned in for 48 hours until the child was safe. Sociologists have intensively studied this incident, and it has also been the subject of the 1989 ABC television movie “Everybody’s Baby: The Rescue of Jessica McClure”—a title which aptly illustrates the identifiable victim effect.47 Codified justifications, often proffered by specialists such as judges or priests, are often provided in contexts where there are prescribed rules or a “code,” such as legal and moral judgments.48 Unlike stories, but similar to conventional explanations, codified justifications need not provide a causal explanation, but are focused instead on how the outcome conforms to the appropriate code.49 Finally, technical accounts, like codified justifications, are given by individuals in defined, specialized roles, and “reliably identify connections of cause and effect.”50 The ways in which specialists explain and prove cause-and-effect relationships varies depending on their expertise. Structural engineers will base their accounts on mechanical principles, while sociologists Tilly, “Reasons Why,” 448. Tilly, “Reasons Why,” 448. 42 Tilly, “Reasons Why,” 448. 43 Tilly, “Reasons Why,” 448. 44 Tilly, “Reasons Why,” 448. 45 Deborah A. Small, George Lowenstein and Paul Slovic, “Sympathy and Callousness: The Impact of Deliberative Thought on Donations to Identifiable and Statistical Victims,” Organization Behavior and Human Decision Processes 102 (2007) 144. 46 Karen E. Jenni and George Lowenstein, “Explaining the ‘Identifiable Victim Effect’,” Journal of Risk and Uncertainty 14 (1997): 237–9. 47 See, e.g., Small et al., “Sympathy and Callousness,” 143–153. 48 Tilly, “Reasons Why,” 448. 49 Tilly, “Reasons Why,” 448. 50 Tilly, “Reasons Why,” 448, 449. 40 41

Soft targets: Emotions in the passage of “stand your ground” legislation  443 base them on social processes; experts usually have “whole professions and organized bodies of professional knowledge stand[ing] behind them.”51 Naturally, these diverse categories of reason-giving can overlap. For instance, expert accounts can negotiate and accommodate other types of reasons such as anecdotal datasets, or an expert might report statistical data and then rely on an anecdote to illustrate research findings. These intersections help individuals to strengthen their reasons to make them seem more sensible and to fulfill social needs like communicating to one audience on many different levels or reaching many different audiences. Using multiple types of reasons can enable a person to simultaneously acknowledge factual truths that enable generalization and to incorporate compelling moral or higher truths. Applied to the gun rights/gun control debate, Tilly’s framework helps to delineate a fundamental tension: “popular” explanations focus on conventions and explanatory stories, while specialized accounts use codified justifications and technical accounts.52 In political and policy-making spheres, these two groupings of reasons are often in tension, and unbalanced reliance on one strategy can silence other perspectives and justifications and constrain negotiation. Both types of reasons are used in support of both gun rights and gun control stances, although gun rights advocates frequently fault gun control supporters for relying predominantly on emotional appeals.53 But this accusation might not be accurate; according to research, conservatives and Republican individuals are both more likely to favor gun rights and to favor anecdotes over scientific data or statistics for “rous[ing] the great sleepy public.”54 One excellent example of gun rights anecdotes are the “Armed Citizen” stories in the National Rifle Association’s signature magazine American Rifleman that describe incidents where Americans successfully use firearms to thwart criminal activity. With an understanding of reason-giving behaviors and their social and relational grounding, we may now turn to the case study of HB 1284, in which gun rights supporters passed this bill using a highly emotional explanatory story to overwhelm opponents’ technical accounts and codified justifications. As with other controversial topics, both gun rights and gun control perspectives embody “a moral sentiment, a mind-set that influences and often dictates the judgments made about particular issues.”55 Armies of anecdotes wait for advocates to martial them in support of these divergent moral stances in ways that appear most effective. The appropriateness of each type of reason depends on supporters’ roles and professional training; for example, some individuals may exclude anecdotal evidence in a particular context because it lacks generalizability or credibility, or seems inappropriate given audience characteristics.56 Gun rights and gun control perspectives both use different reasoning behaviors. Gun control advocates, like other progressives, often look to generalized data to determine what is good for the collective, making policy based on economic or social trends or patterns.57 Reliance on Tilly, “Reasons Why,” 449. Tilly, “Reasons Why,” 449. 53 See, e.g., John Haughey, “9 Dumbest Gun-Control Quotes from Politicians and Celebrities,” OutdoorLife, July 22, 2013. 54 Ricci, “Political Science and Conservative Ideas,” 160. 55 William Bennett, The Devaluing of America: The Fight for Our Culture and Our Children (New York: Summit, 1992), 12. 56 Ricci, “Political Science and Conservative Ideas,” 162. 57 “Home,” Giffords, accessed July 7, 2019 (prominently displaying on homepage statistics about American gun deaths). 51 52

444  Research handbook on law and emotion research and empirical studies often prompts advocates to favor codes and technical accounts over explanatory stories.58 Gun control conventions include references to safety and placing responsible limits on constitutional rights.59 Gun rights advocates, on the other hand, are more likely to refer to ideals such as a mythic Constitution or the Founding Fathers’ intentions to determine what is best for the collective.60 Gun rights technical accounts may consist of Second Amendment analyses or firearms’ structure, operation, and use;61 they are less likely to use research and other “elite” information resources, particularly those from the government and academics at “liberal” universities.62 Common gun rights conventions involve references to individual freedom, liberty, patriotism, and God-given or natural rights to self-defense,63 and this emphasis on individualism is often brought to bear through anecdotes.

REASON-GIVING IN LEGISLATIVE TESTIMONY: A CASE STUDY INVOLVING CIVIL IMMUNITY FOR SELF-DEFENSE SHOOTINGS State legislative proceedings are a particularly compelling and pivotal social reason-giving context; both anecdotes and statistics are at play, with enormous consequences. A legislative bill itself is a reason, an argument, an object that can be taken up and debated or left to die in committee. Here, experts and constituents alike exercise the democratic privilege of testifying about their experiences, opinions, or research. Those who testify are claiming a certain status: by virtue of citizenship, expertise, organizational representation, or a combination of factors, they have something pertinent to say, and legislators should take notice. Thus, the act of testifying initiates a new relationship between constituents and legislators.64 Depending on the subject matter and the individual, testimony can include many types of reasons for supporting or opposing a bill, including explanatory stories or anecdotes; their expert counterpart, technical justifications; or codified justifications.65 Explanatory stories in testimony often resonate with ideas and values, generating emotions with powerful consequences. Explanatory stories can signal problems with existing programs and policies, and help lawmakers consider rival policy choices and understand needs for policy change.66 But they can also lead legislators down unproductive or destructive paths, especially when legislators fail to be intelligent story consumers and neglect to demand accountability from testifying

See Tilly, “Reasons Why,” 448–49. “Home,” NRA, accessed July 7, 2019 (“The NRA is widely recognized as a major political force and as America’s foremost defender of Second Amendment rights.”); David Smith, “NRA Head Breaks Silence to Attack Gun Control Advocates: ‘They Hate Individual Freedom’,” The Guardian, Feb. 22, 2018. 60 David Smith, “NRA Head Breaks Silence.” 61 NRA, “Home”; Jennifer Carlson, Citizen Protector (New York: Oxford University Press, 2015), 17–18. 62 Davies, “How Statistics Lost Their Power,” 1–2; Smith, “NRA Head Breaks Silence.” 63 Smith, “NRA Head Breaks Silence.” 64 See Tilly, “Reasons Why,” 447. 65 See Tilly, “Reasons Why,” 447. 66 John E. McDonough, “Using and Misusing Anecdote in Policy Making,” Health Affairs 20 (2001): 207–12. 58 59

Soft targets: Emotions in the passage of “stand your ground” legislation  445 individuals.67 Moreover, as “narratives of detached incidents,” anecdotes do not make connections between events or encourage the identification of causal links or systemic patterns, and may be “atypical of real world experiences, . . . allow[ing] an unrepresentative individual to speak for a group, in effect silencing other members.”68 To be successful in legislative testimony, explanatory stories must transport readers along a certain fact pattern so that the end seems fitting, with plot developments connected in logical ways. An individual might tell an explanatory story with a particularly unsatisfying or upsetting ending in hopes that discord demonstrates the need for legal reform. A discordant technical account, on the other hand, might explain why a given policy won’t promote a certain outcome, or how a bill must be revised to better achieve its goals. Finally, explanatory stories may also urge legislators to make sense of, align with, or restore common sense priorities and outcomes. According to Maroney, common sense, including both “sound practical judgment” and “folk wisdom,” emerges from lived experience. Emotional common sense, in particular, reflects normative views about when and how certain emotions are properly felt or displayed—“what one thinks she simply knows about emotions, based on personal experience, socialization, and other forms of casual empiricism.”69 “Instrumental and value-laden,”70 emotional common sense can influence legislative processes in ways that make legislation more human or that introduce false consensus or psychological or cultural biases. Legislative processes also utilize various techniques of argumentation and persuasion, including the Aristotelian concepts of logos (appeals to logic), ethos (appeals to character), and pathos (appeals to emotion), in stages from motivation, planning, and deliberation to judgment, negotiation, voting, and beyond.71 Though legislators, like other citizens, are affected by laws, they may also be uniquely emotionally invested in certain legislation in more “role-oriented” ways.72 To appear “responsive and respectful,” legislators might “respond[] to demands that legislation attend to the emotional needs of the polity,” raising concerns that non-representative demands may enshrine private needs as public truths.73 Thus, pathos arguments, like explanatory stories, are very common and convincing in legislative contexts.74 This chapter presents a case study of how one discordant explanatory story was instrumental in increasing legislative support for HB 1284, authorizing immunity from civil suits for individuals who used deadly force in self-defense. In January 2019, HB 1284 was introduced in the Indiana House; the House Judiciary Committee heard it on January 28, 2019, with public testimony. The bill was later passed out of that committee, approved by the full House, and sent to the Senate, where the Senate Judiciary Committee considered it on March 20, 2019,

McDonough, “Using and Misusing Anecdote,” 208–9. Susan Bandes, “Patterns of Injustice: Police Brutality in the Courts,” Buffalo Law Review 47 (1999): 1313 (quoting Daniel A. Farber and Suzanna Sherry, “Telling Stories Out of School: An Essay on Legal Narratives,” Stanford Law Review 45 (1993): 838). 69 Terry Maroney, “Emotional Common Sense as Constitutional Law,” Vanderbilt Law Review 62 (2009): 854. 70 Maroney, “Emotional Common Sense,” 858, 864–65. 71 Carol Sanger, “Legislating With Affect: Emotion and Legislative Law Making,” Nomos 53 (2013): 45. 72 Sanger, “Legislating With Affect,” 41. 73 Sanger, “Legislating With Affect,” 59, 60, 62. 74 Jamal Greene, “Pathetic Argument in Constitutional Law,” Columbia Law Review 113, no. 6 (2013): 1452. 67 68

446  Research handbook on law and emotion again hearing public testimony. People testifying before an Indiana state legislative committee must only complete an appearance slip immediately before a committee hearing, including basic information (name, stance on bill, capacity in which testifying, etc.). The political incentive to pass HB 1284 stemmed primarily from a single self-defense shooting that occurred in Rising Sun Indiana, in 2017. On February 20, 2017, an off-duty conservation officer responded to a “suspicious person” call concerning a man named Justin Holland, 25, who was standing near his vehicle on a highway near a residence belonging to Kystie Jaehnen (now Phillips).75 All participants were white. Phillips was outside watching the altercation between Holland and the conservation officer when she saw the two men begin to struggle; alarmed that Holland would overpower the officer and kill him with his service firearm, Phillips drew her own handgun and fired once, striking Holland in the shoulder.76 Holland was pronounced dead at the hospital; autopsy results revealed he had ingested meth, benzodiazepines, marijuana, methadone, and dextromethorphan.77 Phillips was never charged in the shooting. In February 2018, Holland’s family sued Phillips and the conservation officer, alleging excessive and unjustified deadly force.78 A local police officer set up a GoFundMe account to help pay for Phillips’ legal defense, which accumulated more than $10,000 in the first few days.79 Holland’s family filed a motion to dismiss the suit on January 30, 2019, only two days after the House Judiciary Committee meeting in which Kystie testified.80 HB 1284 proposed to remedy these alleged injustices by allowing an individual who used deadly force in self-defense to claim immunity if sued, compelling the presiding judge to conduct a pretrial hearing at which the plaintiff (the victim, victim’s estate or relatives, or bystander) would have to prove by clear and convincing evidence that the shooting was not justified (usually, the defendant would have to prove by a preponderance of evidence that deadly force was justified).81 If the plaintiff did not meet this burden, then her suit would be dismissed and she would have to pay the defendant’s attorney’s fees and court costs.82 Finally, HB 1284 would be retroactive, allowing defendants in existing lawsuits to request an immunity hearing.83 Had HB 1284 passed unamended, Indiana would have been the only state in the country with so draconian a self-defense immunity law.84 In later drafts, the pretrial hearing

75 Justin Sayers, “Woman Kills Man in Dispute With Indiana Conservation Officer,” Courier Journal, Feb. 23, 2017. 76 Sayers, “Woman Kills Man”; Michael Brown, “Family Sues Woman Who Came to Conservation Officer’s Aide in Fatal Indiana Shooting,” Cincinnati Enquirer, April 17, 2018. 77 Brown, “Family Sues Woman.” 78 Molly Lair, “Woman Sued After Shooting Man in Fight With Indiana Officer,” WLWT, April 17, 2018. 79 Lair, “Woman Sued After Shooting Man”; Brown, “Family Sues Woman.” 80 Mike Perleberg, “Plaintiffs Drop Lawsuit Against Woman Who Shot Man Attacking Conservation Officer,” Eagle Country Online, Feb. 4, 2019. 81 “Self-Defense, Defense of Others, and Firearms Matters,” Introduced House Bill 1284, Indiana House 2019 Session. 82 “Self-Defense, Defense of Others, and Firearms Matters.” 83 “Self-Defense, Defense of Others, and Firearms Matters.” 84 See Jody Madeira, “Civil Self-Defense Laws Across the U.S.” (Handout, HB 1284 Hearing Testimony, Indianapolis, IN, Jan. 28, 2019).

Soft targets: Emotions in the passage of “stand your ground” legislation  447 provision was deleted in favor of a presumption that the shooting was justified if criminal charges were not filed against the defendant.85 On the morning the House Judiciary Committee considered the bill, legislative sponsor Representative Jim Lucas gave opening testimony, followed by Guy Relford, a Second Amendment attorney who both drafted the bill and represented Kystie Phillips in the civil suit. Both Rep. Lucas and Relford gave logos and ethos statements as to why the bill made common sense and why committee members, as fellow concerned citizens, needed to support the legislation for reasons of justice, public morality, and private well-being. Introducing the bill before the House Judiciary Committee, Relford noted, “We’re talking about cutting off lawsuits by criminals against their victims. And I have a hard time imagining what opposition there could be to that premise.”86 Lucas went further, theorizing that such lawsuits could deter people others from protecting others: “People have the basic right to self-defense. And once we start inserting barriers to make people question, gee, should I help that person try and save that person’s life or not, then that’s a society I don’t want to be a part of anymore.”87 But yet to come was Kystie’s testimony, the pathetic anecdote that cemented the emotional connection between public morality and the passage of HB 1284.

BUILDING THE EXPLANATORY STORY AS A JUSTIFICATION FOR PASSING HB 1284 Kystie’s testimony before the House Judiciary Committee hearing on HB 1284 effectively set the tone for the entire hearing. Like other explanatory stories, the success of Kystie’s testimony relies on its audience’s membership in a shared community of belief88 and adherence to common norms concerning the propriety of carrying a firearm, the willingness to use a firearm for personal defense, and the idea that justified self-defense shootings are not harms. Kystie’s story was so compelling that those who testified subsequently using codified justifications and technical accounts were faulted for not engaging with her narrative’s emotional contours. Kystie’s testimony before the House Judiciary committee is as follows: When I woke up on February 20th, 2017, I had no idea how my life was about to change. I was alone that day. . . . And while I can’t talk much about the details of that day because I’m being sued, I can tell you that I didn’t ask for a police officer to pull over a suspicious person in front of our house. I didn’t ask for that person, who we later learned was high on illegal drugs, to attack the police officer, screaming profanities, wrestling him to the ground, and trying to grab the officer’s gun to kill him. I didn’t ask to be in a position to save that officer from being shot with his own gun, but I stepped in because that’s what I felt like I had to do under those circumstances. I couldn’t just stand there and watch a police officer murdered in front of my eyes when I had the ability to help that day. And so I helped. After an investigation, the Ohio County prosecutor’s office said that [] my use of force that day was clearly justified and legal. Local police officers and other officers across the country

See “Self-Defense, Defense of Others, and Firearms Matters,” Enrolled House Bill 1284, Indiana House 2019 Session. 86 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284, January 28, Before Indiana House Judiciary Committee, 2019 Indiana Legislative Session. 87 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284, January 28, Before Indiana House Judiciary Committee, 2019 Indiana Legislative Session. 88 Tilly, “Reasons Why,” 451. 85

448  Research handbook on law and emotion thanked me for saving that officer[’s] life. And I’ve also received an incredible amount of love and support from my community and then people across the country as well. . . . And I also thank God that day, that that police officer who almost lost his life that day was able to go home safely to his family. I truly wish the events of February 20th, 2017 had never happened because now I have to live with the ramifications of that for the rest of my life. This is traumatic enough, but now on top of everything else, I’m being sued by the family of the man who tried to kill the police officer. The officer himself is being sued in the same lawsuit. So now I worry about my family’s future. I worry if I might lose my home and my savings. As a single mom, I worry if I’ll be able to take care of my daughters. I worry about how long and how expensive that this is going to be. So I’m here today to support House Bill 1284 because I don’t think that any law-abiding person who defends their own life or save someone else’s life in a way that Indiana law says is totally lawful and justified should have to face a lawsuit brought by a criminal who tried to hurt them. And a criminal’s family should not be allowed to pursue litigation against the criminal’s victim or against a person who comes to the aid of that victim. . . . And most importantly, this bill might save innocent lives because bystanders with the ability to intervene and save a victim’s life won’t hesitate to do that because they fear being sued by the criminal. Despite the struggle with my situation, I’m passionate about finding some way to create an extra layer of protection for those who dedicate their lives, all too many, to protect us. Police have to know that a person watching an event like this unfold is not going to hesitate solely because of legal ramifications that they fear. Someone like me needs to know that their life isn’t going to be forever broken because they choose to help. The passing of this bill, while it would be incredibly helpful in preventing loss to people like me and a deterrent to frivolous lawsuits, would not change at all what I did that day. I couldn’t just stand there and watch it happen and I don’t know how many of you could. . . . The nagging question in my mind is what, what would happen if I was put in that same situation again? What would I do then? Would I let the pain and the hardship that’s caused through all this to get in the way of me stepping up again? I hope not. But in the aftermath . . . it’s torn my family limb for limb, and those scars are never going to completely go away. They’re just not. If it weren’t for the Go Fund Me account that was created by the Aurora FOP [Fraternal Order of Police], quite simply, I couldn’t have fought the battle financially. I couldn’t. I would have no way defending this. . . . That officer is alive. He has children, he has a family that he went home to that day. If one of you were in the same situation as that police officer, I hope someone would come to your aid. . . . I ask you to vote in favor of House Bill 1284 and allow it to go forward for a vote on the floor of the House.

Kystie’s explanatory story was designed to establish a particular narrative about people who used deadly force only to be sued thereafter. This narrative, built upon the commonsensical presumptions that self-defense shootings are legitimate and that criminals who threaten others should not be able to sue the individuals who thwart their crimes, centers around moral responsibility, social accountability, and law’s institutional legitimacy. Kystie describes the feelings of frustration, perhaps even anger, that have followed her act and the significant harms that the Holland lawsuit has inflicted. When testifying, her tone is deliberate and tearful, but not fearful. Kystie’s purpose in testifying is to inspire committee members to empathize with her plight—a single woman who saves an officer’s life only to find her family’s well-being threatened—and act to change the status quo by creating an “escape valve” for similar defendants.89 Kystie’s narrative fits seamlessly into the powerful archetype of stories where “uncomplicated villains [] have deliberately done bad things to good people.”90 According to this archetype, individuals who use deadly force are autonomous agents, free from structural forces or constraints; when they act to protect others, they are heroes who act in the public interest Sanger, “Legislating With Affect,” 47 (describing cultivation of emotion). Robert Cover, “Supreme Court 1982 Term, Foreward: Nomos and Narrative,” Harvard Law Review 97 (1983): 4, 5. 89 90

Soft targets: Emotions in the passage of “stand your ground” legislation  449 from pure motives.91 They deserve to take pride in their conduct and merit public recognition and praise. Instead, their “reward” is a frivolous lawsuit brought by the criminal whom they thwarted, or a bystander whom they protected. In contrast, their adversary, the criminal or bystander complainant, is suspect; the complainant might not display the proper gratitude, or might have been charged with a crime or have a criminal record, or may possess racial, social, and/or economic characteristics that hinder empathy.92 Even the very act of filing a civil suit can mark them as suspect, suggesting that they have an inappropriate motive—a lack of respect or remorse, or are motivated by greed.93 Shoehorned into the defendant role, individuals using deadly force now occupy the role of a wrongdoer accused of breaching fundamental social norms and inflicting unlawful harm. Instead of pride, the role of defendant is associated with shame, guilt, and remorse. Defendants are also subjected to the financial stresses and emotional pain of defending a tort lawsuit, and are thus re-victimized by the legal system, the very institution who determined their deadly force was justified and which is supposed to protect them. Thus, the individual using deadly force again finds herself at the mercy of the criminal, who is the rightful defendant—a position at odds with common sense. Providing immunity to individuals using justified deadly force reallocates the civil suit’s emotional and legal burdens, rejecting the common law’s default allocation of shaming and thereby erecting a particular emotional regime. This immunity is unique and more comprehensive than protections afforded to other defendants in civil tort lawsuits, effectively constructing the individual using deadly force as especially vulnerable and deserving of protection. Moreover, through awarding immunity and attorneys’ fees, HB 1284 places an emotional and financial tax on the act of filing a civil lawsuit, allowing the legislature to punish lawful conduct that it ordinarily could not penalize.94 At common law, courts possess the authority to resolve such claims in their entirety, terminating frivolous lawsuits following the defendant’s motion to dismiss or motion for summary judgment. HB 1284 not only removes the majority of judicial discretion, but creates a result contrary to tort law, which generally does not award parties emotional distress damages for defending a frivolous civil suit (“the tort of intentional infliction of emotional distress cannot be invoked to protect parties from the litigation process”).95 The following subsections discuss each of these archetypal “uncomplicated villain vs. good person” elements in more detail, explaining how each was reinforced and undermined in the House and Senate judiciary hearings. Self-defense Shooter Heroism While Kystie did not explicitly state that she was a hero, her story highlighted the serendipity of her relationship to Holland’s conduct and subsequent death, constructing her as an unwilling champion. Had she acknowledged her heroism outright, she might have come across as narcissistic. Such an explicit statement was unnecessary, as other supporters of HB 1284 una-

Bandes, “Patterns of Injustice,” 1332. Bandes, “Patterns of Injustice,” 1333–34. 93 Bandes, “Patterns of Injustice,” 1338. 94 Carol Sanger, “Legislating With Affect,” 64. 95 See Webster v. United Auto Workers, Local 51, 394 F.3d 436, 443 (6th Cir. 2005); Anderson Dev. Co. v. Tobias, 116 P.3d 323, 338 (Utah 2005); David v. Currier, 704 A.2d 1207, 1209 (Me. 1997). 91 92

450  Research handbook on law and emotion bashedly declared Kystie a hero. Testifying immediately before Kystie, Guy Relford stated, “you’re going to hear from Kystie now, . . . Saved the life of a police officer. She’s a hero, but she’s being sued.” In the subsequent Senate Judiciary hearing, Tracy Wilson also affirmed that Kystie had acted heroically: “I’m a retired Indiana state trooper. . . . I have been in a fight for my life and I prayed for people like her. I apologize, this was not part of my testimony. [Wilson cries] She’s a hero and we need more of her, and Indiana law needs to protect people like her.” Self-defense Shooter Victimization In her testimony, Kystie details the various ways in which she has felt victimized while defending the Holland lawsuit: So now I worry about my family’s future. I worry if I might lose my home and my savings. As a single mom, I worry if I’ll be able to take care of my daughters. . . . But in the aftermath . . . it’s torn my family limb for limb, and those scars are never going to completely go away.

Although Kystie testified to the emotional and financial stresses that the lawsuit had created, other H.B. 1284 supporters overwhelmingly emphasized the financial losses. As Guy Relford remarked: How do you separate the frivolous cases, like the case against . . . Ms. Phillips before two or three or four years of litigation, hundreds of thousands of dollars and expert fees and legal fees and the disruption in someone’s life who’s already had their life disrupted because they were the victim of a violent crime?

The institution responsible for this victimization was the court system. A volunteer for the NRA’s Institute for Legislative Action (“NRA-ILA”) testified at the Senate Judiciary hearing that the potential of civil suit could potentially derail proactive self-defense action: It is not time for a root cause analysis on why this person is upset. It is time for decisive action. . . . I realize we live in a very litigious society. Unfortunately we also live in a “no fee until we get money for you” society. Now, if that sounds familiar, it’s from a lawyer’s commercial. You’d know him. He’s on a lot of billboards, not Daryl the Hammer; Isaacs, the other one.

And in the House Judiciary Committee, the following exchange took place between Guy Relford and House Judiciary Committee member Representative Burton: Rep. Burton:

It isn’t just a gun issue with me. It’s an issue of being able to defend yourself without having to spend hundreds of thousands of dollars. Do you have . . . any kind of an idea of what kind of a cost we would be talking about if a person did the example, I just shared with you in Johnson County, what kind of cost that would be for that person in legal fees?

Guy Relford:

Easily six figures. If you bring in experts, it could be multiple six figures.

Rep. Burton:

What if he didn’t have the money?

Guy Relford:

Then he’s looking at [] simply succumbing to a baseless allegation.

Soft targets: Emotions in the passage of “stand your ground” legislation  451 At the same hearing, NRA lobbyist Chris Kopacki also emphasized, “if you have to protect yourself from those situations and have to hire an attorney, . . . you get what you pay for, when you get an attorney. And some attorneys to defend certain situations like this, it can be extremely, extremely expensive.” Thus, supporters of HB 1284 focused their comments on how the bill protected vulnerable individuals from secondary victimization, and repeatedly stressed that it was not a “gun bill.” As Guy Relford stated in the House Judiciary Committee, “So this is not a gun bill. It’s a self-defense bill and it’s a victim protect [act]. . . . All we’re really talking about here is not allowing bad guys to sue their victims.” In the Senate Judiciary committee hearing, Relford further asserted: it’s very frustrating to see unscrupulous people victim blaming and making excuses for criminal offenders instead of holding the criminals accountable as they should be. I’ve participated in a number of trials during my career, and I’ve seen victims treated as if they were the suspect and responsible for their own victimization as if they asked to be assaulted. This bill will prevent some of these victims being run through the process a second time and revictimized.

Likewise, Jim Lucas, the Indiana state representative who introduced HB 1284, emphasized: I just want to remind people what this bill does and what this bill does not do. What it does is protect innocent Hoosier victims like Ms. Phillips here from being financially ruined and emotionally drug through basically a train wreck for years. . . . People have the basic right to self-defense. And once we start inserting barriers to make people question, gee, should I help that person try and save that person’s life or not, then that’s a society I don’t want to be a part of anymore.

Finally, testifying at the Senate Judiciary hearing, Tracy Wilson stated that she found the fallout of Kystie’s self-defense shooting so horrific that she does not talk about it in her training classes: “I don’t tell the part about her being sued. I tell the part about her being brave enough to save a life, a life that’s not hers, a life that’s not one of her family. . . . I don’t want the women to think, oh my gosh, that might happen to me, if I fight back I might get sued.” The Criminal Should be Held Accountable Kystie succinctly expressed the need to seek accountability from criminals, and not those who thwart their crimes: “We need to know that we can make morally sound decisions to act and our laws will protect us from greedy opportunists.” Supporters of HB 1284 also emphasized that it was common sense to thwart criminals from suing their victims. Touting HB 1284 as a means for separating the wheat of meritorious lawsuits from the frivolous chaff, Guy Relford stressed in the House Judiciary hearing stressed, “We’re talking about cutting off lawsuits by criminals against their victims. And I have a hard time imagining what opposition there could be to that premise.” Relford felt that the injustice was particularly strong when the criminal was deceased, and the suit was brought by his relatives I’m shocked every day at our torts system. [When the criminal dies,] [t]here is no defendant to get convicted. He’s dead and once he’s dead, we still see lawsuits filed by their estate, so there’s no opportunity to have a criminal trial of the perpetrator, because he’s been justifiably dispatched.

452  Research handbook on law and emotion Acts of Self-defense Should be Encouraged Through an Immunity Bill At the House Judiciary committee hearing, Kystie expressed hope that an immunity bill would encourage others to engage in acts of self-defense: “most importantly, this bill might save innocent lives because bystanders with the ability to intervene and save a victim’s life won’t hesitate to do that because they fear being sued by the criminal.” Tracy Wilson, in her Senate Judiciary testimony, described widespread social apathy, and engaged in an impassioned defense of self-protection: We have a good Samaritan clause in that self-defense statute. Not every state has that. . . . It says that a first party can protect a third party the very same way. Unfortunately in today’s world, and this is implemented in our schools for the first 18 years of our children’s lives, if they become a combatant, if they take up for themselves or they take up for someone else, they’re kicked out of school just like the person who started the fight. What are we teaching our children for the first 18 years? We teach them to stand back and get it on your phone and put it on YouTube and post it on Facebook and Instagram. But don’t fight back, because if you’re a cheerleader you won’t get to cheer tonight in the game. And if you’re a basketball player you won’t get to play tonight. We become adults, and they come to me, women come to me for a self-defense class. And I tell them, if you fight back, let’s go to that other wonderful part about our self-defense statute. The state protects you. . . .

Individuals who testified largely assumed that the threat of a civil lawsuit was sufficiently powerful to deter an individual in the heat of confrontation from using deadly force. Interestingly, Kystie herself stated that she would have made the same decision without immunity: “The passing of this bill, while it would be incredibly helpful in preventing loss to people like me and a deterrent to frivolous lawsuits, would not change at all what I did that day. I couldn’t just stand there and watch it happen.”

REASONING AGAINST THE EXPLANATORY STORY Although Kystie’s story was powerful, and HB’s premise of preventing criminals from suing their victims seemed logical, others did testify or argue against this bill on several grounds. This chapter will focus on two types of opposing testimony: the use of technical accounts in the House Judiciary Committee and the use of competing explanatory stories based on racial differences in the Senate Judiciary Committee. Reasoning Against HB 1284 Based on Technical Accounts One individual, Madeira (an author of this chapter), testified in opposition using a technical account that outlined several flaws. First, certain provisions merely referenced “a felony,” suggesting that deadly force could be used against individuals committing any felony. Second, HB 1284’s pretrial hearing provision violated the right to trial by jury in civil cases under the Seventh Amendment to the U.S. Constitution and Article I, Section 20 of the Indiana Constitution. Third, the bill’s retroactivity provision unconstitutionally deprived individuals whose causes of action had accrued of a vested property interest in a cause of action in violation of Article I, Section 12 of the Indiana Constitution. Finally, the legislature had exceeded its authority and encroached on the power of the judiciary in abrogating Indiana Trial Rule 38(B) granting a trial by jury.

Soft targets: Emotions in the passage of “stand your ground” legislation  453 The idea for this chapter was conceived following a brief exchange between Madeira and Rep. Burton after her testimony that revealed how unsatisfying a technical account could be in opposition to an emotional explanatory story. Immediately after Madeira’s testimony, Representative Burton asked her a question that went to the heart of how one defines justice, and, in a fascinating exchange, probed the legitimacy of a legal system that forced people to pay high defense costs to fight civil lawsuits: Rep. Burton:

I’m not a lawyer and I certainly don’t understand all these law [yers?]. I’m just kinda curious, I mean you, with your knowledge, you heard the testimony from that lady a while ago that was protecting a police officer. You heard my statement of what happened in Johnson County [with another lawsuit where a criminal sued his victims]. And both those people are sued and it costs thousands and thousand [of] dollars. What do we do about that?

Madeira:

Well, you could have a civil immunity provision that does not have a pretrial hearing and this and that does not shift the burden to the plaintiff by clear and convincing evidence.

Rep. Burton:

But again, my question is, here’s an individual that did something like that. That shot somebody to protect somebody or hit him with a club or whatever it was. And they’re getting sued for thousands, hundreds of thousands of dollars. And the court costs is what eats them alive. The time. What do they do? What should they do?

Madeira:

I think then you apply for a motion for summary Judgment. I don’t see anybody...

Rep. Burton:

And who pays for that?

Madeira:

The same people who pay for any other case that’s litigated in the tort sense. And it is unfair, but [life] is unfair. As someone whose father died in a car accident when I was seven years old, we were plaintiffs in a wrongful death lawsuit. We recovered nothing, you know, after ten years’ suit, and we expended great amounts of time and emotional pain. And so I’ve been there and I’ve been that tort plaintiff and we’ve had to pay those lawyer’s fees and we were unsuccessful. And so that was an unfortunate experience, but, and I certainly don’t wish that on anybody, but I think we can alleviate the burdens in most cases by both according civil immunity to suits brought by perpetrators and doing so in a procedurally constitutional way.

Rep. Burton:

Again, without having to hire attorneys and go through all this rigmarole, what do they do? If they don’t have a lot of money, if they’re not millionaires, what do they do? Where’s their defense?

Madeira:

I’m sorry, but that’s one of the weaknesses of our judicial system and it’s been a weakness since Alfred the Great.

Madeira responds to Rep. Burton’s question with a series of technical accounts, proffering solutions such as a constitutional civil immunity provision or a motion for summary judgment—answers which Rep. Burton must have found wholly unsatisfying, as he repeats his original question four times. At the apex of this exchange, Madeira explains with some confusion that there is some unfairness inherent within all tort proceedings, but that courts must have discretion to adjudicate these cases. She then gives an emotional explanatory story of her own, detailing her experience as a child plaintiff in a tedious and largely unsuccessful

454  Research handbook on law and emotion wrongful death lawsuit concerning her father’s death. Unappeased even by this explanatory story, Rep. Burton asks again how defendants are supposed to handle these types of lawsuits, leaving Madeira out of answers. As an American law professor, Madeira relies on ethos and logos; she attempts to appear as a speaker with “practical wisdom, virtue, and good will, thereby establishing a measure of ethical authority,”96 but also attempts to give a logically coherent explanation of why HB 1284 is unconstitutional. Madeira adheres to a normative reality where parties generally bear their own costs, and judges and juries consider and resolve cases through tried and tested civil law procedures. Her technical account focuses on the macro-level importance of a legal system that is fair across cases rather than in one particular case. Because no legal system will always produce just results every time, the goal is to reach a fair result most of the time. Rep. Burton, however, is focused on the micro-level, and has been deeply drawn in by Kystie’s testimony. His question addresses allegedly frivolous lawsuits in general, suggesting that he regards Kystie as a typical defendant sued for using deadly force. Thus, he likely thinks that individuals who use deadly force are upstanding citizens, and like him, people striving to preserve order and stability. This perspective marginalizes the victim, who becomes someone seeking to undermine stability, a veritable enemy of the state. Moreover, Rep. Burton’s question suggests that he assumes that self-defense shootings are presumptively justified, and that victims’ lawsuits are frivolous. He is clearly hoping to find way to help defendants extricate themselves from such lawsuits as expeditiously and cheaply as possible. Here, we see the consequences of Kystie’s atypical narrative; very few individuals use deadly force in self-defense, and very, very few self-defense shooters are female, let alone single mothers. And the vast majority of defendants in civil lawsuits must bear their own costs unless a statute provides otherwise. Burton, however, appears unwilling or unable to grapple with these issues. Another committee member, Rep. Delaney, was a lawyer;97 as part of the same specialist community as Madeira; he understood her technical account, and shared Madeira’s concerns about the bill, commenting afterwards, “In my view, we’re in a swamp with this immunity and this bill would only put us further in the swamp.”98 Reasoning Against HB 1284 for Racial Reasons At the Senate hearing, two committee members referenced explanatory stories of their own to problematize the extension of Kystie’s narrative to all self-defense shootings, voicing strong concerns about thwarting judicial discretion, barring innocent bystanders from seeking recovery, and the pernicious effects of this immunity on minorities. Senator Taylor, one of two African-American Democratic committee members, mentioned Trayvon Martin, a 17-year-old African-American high school student who was shot and killed by George Zimmerman, 28, in Sanford Florida, on February 26, 2012; after he was charged with murder, Zimmerman claimed self-defense and was ultimately acquitted. Commenting on the difficulty of making decisions in the moment and adjudicating them afterwards, Senator Taylor queried,

Greene, “Pathetic Argument in Constitutional Law,” 1398. Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284, January 28, Before Indiana House Judiciary Committee, 2019 Indiana Legislative Session. 98 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. 96 97

Soft targets: Emotions in the passage of “stand your ground” legislation  455 The defense in that action was that he was a civil patrol or part of a civil patrol, and he shot Trayvon Martin when they were tangling because Trayvon Martin attacked him according to his defense. And my question for you is for some reason I feel like we might be missing something here. What if the presumption is wrong? What if it is two kids fighting? Because you know we’ve got this thing here in Indiana where you can protect the third party, not just yourself but a third party. So you see two people tussling. Who do you shoot or who do you stop?99

Later on in the same Senate Judiciary hearing, Senator Randolph, the other African-American Democrat on the committee, asked Parvonay Stover, a representative of the Office of the Indiana Attorney General who supported HB 1284, a series of questions about whether she was familiar with various incidents where unarmed African-Americans had been shot, to which Stover demurred, saying that she was not sure her office kept records of shootings involving minorities and was “vaguely familiar” but “not qualified” to comment on these stories.100 By denying knowledge of these stories and declining to discuss them, Ms. Stover is attempting to rob these accounts stories of their power. She wishes only to support the bill “very generally,” which means something other than commenting on how race intersects with the issues that HB 1284 presents.101 When Sen. Randolph presents her with the ultimate question—whether HB 1284 will essentially be a license for others to shoot black individuals with impunity (or immunity)—Ms. Stover just says she does not think that HB 1284 will have such consequences, without further explanation.102 Sen. Randolph ceases his questioning after he establishes that that is the position of the Attorney General’s office—that essentially, Indiana is ambivalent as to violence against people of color.103 In their concluding remarks before the Senate Judiciary committee members voted on the bill, both Sen. Taylor and Sen. Randolph argued that this immunity may have devastating effects on their communities, pitting explanatory stories like Trayvon Martin against Kystie’s account. Sen. Taylor noted that in his opinion this extraordinary immunity would grievously harm communities of color: It’s sad that we know that this has led to so many deaths of people that look like me. You could sit here and close your eyes and hide your head under a rock and recognize these are kids. . . . You guys know what’s being done, you know it’s being applied inproportionately [sic], but you want to bring it forward. You know, do what you want to do. Keep doing this stuff. Eventually, and I keep saying it, eventually, it’s going to hit somebody you care about.104

Sen. Randolph also made a concluding statement questioning the representativeness of Kystie’s proffered explanatory story and the need to pass HB 1284 based on an isolated example of a self-defense shooting: The only thing I can gather there, there was an isolated incident that happened. . . . I didn’t hear anything about the individual that was shot threatening her at all, and I didn’t hear anything about the individual who got shot who officers were testifying had a history of criminal violence. . . . But that’s one isolated incident and now we’ve got a bill before us that’s going to affect the entire state. Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. 101 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. 102 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. 103 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. 104 Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. 99

100

456  Research handbook on law and emotion . . . Anytime you get any kind of case, you’re not going to analyze, you’re going to go ahead and act without thinking and a lot of people are going to get hurt. . . . We have to start to utilize common sense. Just because we can do something, we shouldn’t do it, we have to look at right and wrong. This is wrong. We know it’s wrong. . . . Reality is a lot of people are going to get harmed, hurt, killed. And mostly people of color! . . . . This is not a good bill.105

In their questions and concluding remarks on HB 1284, both Senators Taylor and Randolph again mention other explanatory stories where people of color being shot, allegedly in self-defense. Like Rep. Delaney, Sen. Randolph openly questions the wisdom of codifying immunity presumptions that remove judicial discretion. At base, the men resist supporters’ efforts both to a) paint individuals using deadly force as more vulnerable than people of color; b) establish that these individuals are virtuous and deserving of extraordinary legal protection; and c) utilize Kystie as an exemplar of this type of individual. Sen. Randolph invokes “common sense” to mean something very different than HB 1284’s supporters: the wisdom of not passing this bill, since it will harm more people than it will help. These arguments were ultimately successful; Governor Eric Holcomb signed HB 1284 on-stage during the National Rifle Association’s annual leadership forum, held during its annual meeting in Indianapolis.106 In passing HB 1284, its supporters enshrine in law a certain picture of culpability and liability in which individuals who use deadly force to protect themselves or others are hero-victims, in contrast to the reprehensible criminals and bystanders who would attempt to sue them. HB 1284 also reallocates a portion of the emotional fallout of self-defense through legislating a particular emotional regime in which individuals exercising self-defense should not be subject to fear, shame, guilt, or remorse; these emotions are reserved, instead, for erstwhile plaintiffs. This emotional role-reversal is especially ironic given that law is conventionally constructed as objective, rational, and dispassionate. Kystie’s explanatory story becomes a compelling morality play, where a white woman rides to the rescue of a police officer; by comparison, committee members’ votes suggest that they regard other explanatory stories involving people of color as less compelling, even though they are more common.

CONCLUSION This case study demonstrates how an emotional explanatory story is used to gain legislative empathy for stand your ground immunity and defeat technical accounts in both the Indiana House and Senate Judiciary Committees. This story, in turn, becomes embedded in a complicated web of competing explanatory stories by which opponents unsuccessfully try to thwart the bill’s passage. Legislators, in effect, do not stand their emotional ground when confronted by Kystie’s narrative; they do not critically reflect on whether this account is representative, or indeed whether certain provisions are even constitutional. This case study provides a cautionary lesson on the need to use many different types of reasoning strategies to successfully build legos, ethos, and pathos, lest audiences succumb to affective temptations. Self-Defense, Defense of Others, and Firearms Matters: Hearings on HB 1284. See Kaitlin Lange, “With NRA in Indy, Indiana Gov. Holcomb Signs Bill Strengthening ‘Stand Your Ground’ Law,” Indianapolis Star, April 26, 2019; Michael Brown, “Family Sues Woman,” Cincinnati Enquirer, April 17, 2018. 105 106

Soft targets: Emotions in the passage of “stand your ground” legislation  457

REFERENCES Anderson Dev. Co. v. Tobias, 116 P.3d 323, 338 (Utah 2005). Bandes, Susan. “Patterns of Injustice: Police Brutality in the Courts.” Buffalo Law Review 47, (1999): 1275–341. Bennett, William. The Devaluing of America: The Fight for Our Culture and Our Children. New York: Summit, 1992. Brown, Michael. “Family Sues Woman Who Came to Conservation Officer’s Aide in Fatal Indiana Shooting,” Cincinnati Enquirer, April 17, 2018. Carlson, Jennifer. Citizen Protector. New York: Oxford University Press, 2015. Cover, Robert. “Supreme Court 1982 Term, Foreward: Nomos and Narrative,” Harvard Law Review 97 (1983): 4. David v. Currier, 704 A.2d 1207, 1209 (Me. 1997). Davidson, Michael. “Vaccination as a Cause of Autism—Myths and Controversies.” Dialogues in Clinical Neuroscience 19, no. 4 (2017): 403–7. Davies, William. “How Statistics Lost Their Power—And Why We Should Fear What Comes Next.” The Guardian, January 19, 2017. accessed July 9, 2019, https://​www​.theguardian​.com/​2017/​01/​19/​ politics/​crisis​-of​-statistics​-big​-data​-democracy. Farber, David A. and Suzanna Sherry, “Telling Stories Out of School: An Essay on Legal Narratives,” Stanford Law Review 45 (1993): 838. Giffords. Accessed July 7, 2019. https://​giffords​.org/​. Google. “Anecdote.” Dictionary. Accessed July 9, 2019. https://​www​.google​.com/​search​?q​=​anecdote+​ definition​&​ie​=​&​oe​=​. Greene, Jamal. “Pathetic Argument in Constitutional Law.” Columbia Law Review 113, no. 6 (2013): 1389–482. Haughey, John. “9 Dumbest Gun-Control Quotes from Politicians and Celebrities.” Outdoor Life, July 22, 2013. accessed July 9, 2019, https://​www​.outdoorlife​.com/​blogs/​gun​-shots/​2013/​07/​22/​9​-dumbest​ -gun​-control​-quotes​-politicians​-and​-celebrities/​. Jenni, Karen E., and Lowenstein, George. “Explaining the ‘Identifiable Victim Effect’.” Journal of Risk and Uncertainty 14 (1997): 235–57. Kuo, Jonathan. “The Science of Science Rhetoric.” Berkeley Scientific Journal 23, no. 1 (2018): 4–6. https://​escholarship​.org/​uc/​item/​1vn0318r. Lair, Molly. “Woman Sued After Shooting Man in Fight With Indiana Officer,” WLWT, April 17, 2018. Lange, Kaitlin. “With NRA in Indy, Indiana Gov. Holcomb Signs Bill Strengthening ‘Stand Your Ground’ Law,” Indianapolis Star, April 26, 2019. McDonough, John E. “Using and Misusing Anecdote in Policy Making,” Health Affairs 20 (2001): 207–12. Madeira, Jody. “Civil Self-Defense Laws Across the U.S.” (Handout, HB 1284 Hearing Testimony, Indianapolis, IN, January 28, 2019). Maroney, Terry. “Emotional Common Sense as Constitutional Law,” Vanderbilt Law Review 62 (2009): 854. Martin, William J. “Science is Dispassionate, We Are Told.” Annals of the American Thoracic Society 10, no. 4 (2013): 358–9. accessed July 9, 2019, https://​ www​ .atsjournals​ .org/​ doi/​ full/​ 10​ .1513/​ AnnalsATS​.201306​-167ED​#readcube​-epdf. Moore, Alfred, and Stilgoe, Jack. “Experts and Anecdotes: The Role of ‘Anecdotal Evidence’ in Public Scientific Controversies.” Science, Technology, & Human Values 34, no. 5 (2009): 654–77. Morse, Janice M. “Editorial: The Power of the Anecdote.” Qualitative Health Research 16, no. 8 (2006): 1019–20. Nunn, Robin. “Mere Anecdote: Evidence and Stories in Medicine.” Journal of Evaluation in Clinical Practice 17 (2011): 920–26. NRA. Accessed July 7, 2019. https://​home​.nra​.org/​. Raphelson, Samantha. “How the NRA Worked to Stifle Gun Violence Research.” NPR, April 5, 2018. accessed July 9, 2019, https://​www​.npr​.org/​2018/​04/​05/​599773911/​how​-the​-nra​-worked​-to​-stifle​-gun​ -violence​-research. Ricci, David. “Political Science and Conservative Ideas: The American Case.” Journal of Political Ideologies 14, no. 2 (2009): 155–71.

458  Research handbook on law and emotion Sanger, Carol. “Legislating With Affect: Emotion and Legislative Law Making.” NOMOS 53 (2013): 38–76. Sayers, Justin. “Woman Kills Man in Dispute with Indiana Conservation Officer,” Courier Journal, Feb. 32, 2017. Small, Deborah A., Lowenstein, George, and Slovic, Paul. “Sympathy and Callousness: The Impact of Deliberative Thought on Donations to Identifiable and Statistical Victims.” Organization Behavior and Human Decision Processes 102 (2007): 143–53. Smith, David. “NRA Head Breaks Silence to Attack Gun Control Advocates: ‘They Hate Individual Freedom’.” The Guardian, February, 22, 2018. accessed July 9, 2019, https://​www​.theguardian​.com/​ us​-news/​2018/​feb/​22/​nra​-wayne​-lapierre​-gun​-control​-cpac​-speech​-2018. Tilly, Charles. “Reasons Why.” Sociological Theory 22, no. 3 (2004): 446–54. Wakefield, Andrew J., Simon H. Murch, Andrew Anthony, John C. Linnell, David M. Casson, Mohsin Malik, Mark Berelowitz, Amar P. Dhillon, Mike A. Thompson, Peter K.P. Harvey, et al. “Ileal-Lymphoid-Nodular Hyperplasia, Non-Specific Colitis, and Pervasive Developmental Disorder in Children.” Early Report 351, no. 9103 (1998): 637–41. accessed July 9, 2019, https://​doi​.org/​10​ .1016/​S0140​-6736(97)11096​-0. Webster v. United Auto Workers, Local 51, 394 F.3d 436, 443 (6th Cir. 2005).

International laws and tribunals

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

According to the 2004 Report of the United Nations Secretary to the Security Council, transitional justice (TJ) includes the full range of processes and mechanisms to ‘ensure accountability, serve justice and achieve reconciliation’ after large-scale human rights abuses and mass atrocities. Methods of TJ may comprise ‘prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof.’1 TJ encompasses a range of different legal mechanisms and institutions, including international courts and tribunals as well as national and local ones, truth and reconciliation commissions (TRC) and amnesties, traditional legal settings and innovative ones, and hybrid local and indigenous practices, as well as different schemes of reparations. In many cases, more than one mechanism is involved, e.g. in Latin America a combination of TRC and criminal prosecutions.2 Among these, prosecutions and court procedures, TRCs, and vetting procedures of officials from the former regime all operate with and adapt forms, procedures and processes of criminal law and its institutions. ‘[L]aw always has taken account of emotion … (and) criminal law … reflects fear, grief, and remorse,’3 and TJ mechanisms in their many facets are no exception. Further, the role of emotions for victims and perpetrators, but also legal professionals, the significance of emotions in legal settings, the rules of emotional exchange and their impact on all parties should not substantively differ between established criminal procedures and TJ settings. Thus, victim impact statements and victims’ expressions of emotions seemingly reflect universal processes of emotion sharing and regulation across different justice settings including TJ.4 Emotion rules, emotion dynamics, and cognitive-emotional processes have an enduring presence across all types of institutions that deal with crime and punishment.5 Notwithstanding the universality of emotions in (criminal) justice procedures, the way emotion dynamics unfold depends on the ‘arena’ and the wider social environment in which UN Secretary General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ Report of the Secretary-General, S/2004/616, August (2004): 4. 2 Priscilla B. Hayner, Unspeakable Truth: Transitional Justice and the Challenge of Truth Commissions (2e, New York: Routledge, 2011); Carlos Martín-Beristain et al., ‘Psychosocial Effects of Participation in Rituals of Transitional Justice: A Collective-Level Analysis and Review of the Literature of the Effects of TRCs and Trials on Human Rights Violations in Latin America,’ Revista de Psicología Social 25, no. 1 (2010). 3 Terry A. Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field,’ Law and Human Behavior 30, no. 2 (2006): 120. 4 Terry A. Maroney and James J. Gross, ‘The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective,’ Emotion Review 6, no. 2 (2014); Susanne Karstedt, ‘Emotions and Criminal Law: New Perspectives on an Enduring Presence,’ in Emotions in Late Modernity, eds, Roger Patulny, et al. (New York: Routledge, 2019); Susanne Karstedt ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective,’ Emotion Review 8, no. 1 (2016). 5 Karstedt, ‘Emotions and Criminal Law.’ 1

460

Between micro and macro justice: Emotions in transitional justice   461 they are embedded.6 The international, hybrid, and national criminal courts, and in particular truth commissions, where TJ is enacted, constitute exceptional ‘arenas’ for the role of emotions. Post-conflict and divided societies emerging from large-scale violence and human rights abuses are marked by victims’ trauma, sadness, anger, hatred and feelings of revenge, and perpetrators’ shame, guilt and remorse, but also defiance. Fear and anger are pervasive in the emotional climate as formerly powerful groups find themselves morally blamed, and powerless victims are vindicated.7 As emotions lay at the heart of the past conflict, they are decisive in shaping how affected groups in post-conflict societies experience, perceive and evaluate justice, how they change behaviour, and how they adjust intergroup behaviours.8 A particular characteristic of TJ settings is the intersection between individual and collective emotions, and between personal emotions and the emotional climate in the wider community.9 The atrocities and human rights abuses that are the subject of TJ are of a collective nature. They were committed by groups and organisations,10 with the state as main organising actor, and victims were targeted as groups, and (mostly) not as individuals. Repression and human rights abuses had ‘profound collectivistic features.’11 Even if TJ mechanisms technically deal with individual victims and defendants, these simultaneously represent groups, organisations and collective emotions. Consequently, truth-telling, accountability, and justice are seen as mechanisms that are supposed to lead on to the emotional recovery and change of individuals as well as of groups. Further, these mechanisms should initiate a change of the emotional climate and processes of healing in post-conflict societies as these societies emerge from a history of mass atrocities and human rights abuses.12 Transitional justice operates on two levels, ‘micro and macro justice.’13 Micro-level justice ‘focuses on the needs of the individual victim and concerns the relationship between individuals,’ while macro-level justice ‘focuses on the needs of society as a whole and concerns the structure and development of the social order.’14 These different levels and perspectives have shaped TJ since its early beginnings. They are present in the declaration of its aims as 6 Susan A. Bandes, ‘Share Your Grief but Not Your Anger: Victims and the Expression of Emotion in Criminal Justice,’ in Emotional Expression: Philosophical, Psychological, and Legal Perspectives, eds, Joel Smith and Catharine Abell (Cambridge: Cambridge University Press 2016): 283. 7 Patrick Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions Toward Reconciliation Among Rwandan Survivors and Prisoners Before and After Their Participation in Postgenocide Gacaca Courts in Rwanda,’ Journal of Social and Political Psychology 2, no. 1 (2014). 8 Michael J.A. Wohl and Nassim Tabri, ‘The Rocky Road to Reconciliation: Regulating Emotions in an Intergroup Context,’ Psychological Inquiry 27, no. 2 (2016): 144. 9 Joseph De Rivera and Darío Páez, ‘Emotional Climate, Human Security, and Cultures of Peace,’ Journal of Social Issues 63, no. 2 (2007). 10 Susanne Karstedt, ‘Organizing Crime: The State as Agent,’ in Oxford Handbook of Organized Crime, ed. Letizia Paoli (Oxford: Oxford University Press, 2014). 11 Roman David and Susanne Y.P. Choi, ‘Getting Even or Getting Equal? Retributive Desires and Transitional Justice,’ Political Psychology 30, no. 2 (2009): 174. 12 David Mendeloff, ‘Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?’ International Studies Review 6, no. 3 (2004): 364. 13 Philip Brickman, Robert Folger, Erica Goode, and Yaacov Schul, ‘Microjustice and Macrojustice,’ in The Justice Motive in Social Behavior, eds, Melvin J. Lerner and Sally C. Lerner (New York: Plenum Press, 1981); Christine Lillie and Ronnie Janoff-Bulman, ‘Macro Versus Micro Justice and Perceived Fairness of Truth and Reconciliation Commissions,’ Peace and Conflict: Journal of Peace Psychology 13, no. 2 (2007). 14 Lillie and Janoff-Bulman, ‘Macro Versus Micro Justice,’ 222.

462  Research handbook on law and emotion both ‘accountability’ and ‘reconciliation’ in the report by the UN Secretary General,15 where accountability represents micro justice and reconciliation macro justice. As Brickman et al.16 argue, ‘a macro justice orientation may lead to an entirely different form of responding… than a micro justice orientation.’ Operating on both levels simultaneously has led to a heightened level of complexity of emotion dynamics in TJ settings, and to tensions and discrepancies between individual victims’ emotions and the overall emotional climate. This chapter focuses on emotions at micro and macro justice levels of TJ, and the intersections between them. It starts with an overview of the role of emotions on the micro level for victims and perpetrators, and proceeds to the macro level of reconciliation. It analyses emotional support for TJ measures and institutions, as well as the emotional impact of these measures and institutions, and it provides a conceptual framework explaining discrepancies. This includes apologies and forgiveness as ‘emotional practices’ of contemporary TJ procedures, in criminal trials as well as in TRCs.17 It relies upon evidence from a range of different contemporary TJ settings and procedures in Europe, Latin America and Africa, including international and national criminal trials and tribunals, truth commissions, and community-based procedures like the gacaca courts in Rwanda.

TRANSITIONAL MICRO JUSTICE: INDIVIDUAL EMOTIONAL EXPERIENCES Contemporary TJ prioritises victim–survivors; in particular in TRCs and similar mechanisms, they are both the ‘primary subject and intended beneficiaries’ of investigations and recommendations.18 This perspective extends to trials and court procedures. The relationship between truth and emotional healing,19 between validation of suffering and emotional recovery, support for TJ mechanisms and finally evaluation of their achievements has predominantly focused on victim-survivors. The first comprehensive reviews arrived at sobering conclusions. O’Connell20 focused on criminal trials and prosecution, and canvassed forensic psychological studies, interviews with therapists who counselled survivors, and the scant evidence from TJ fora. He found conflicting and contradictory evidence for the psychological and emotional well-being of victims of severe human rights abuses (mostly torture). Although some studies reported initial relief and positive feelings like hope many found no such positive impact; there was even a negative emotional impact. Mendeloff21 conducted the most extensive 15 UN Secretary General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,’ 4. 16 Brickman et al., ‘Microjustice and Macrojustice.’ 17 Renee Jeffery, ‘To Forgive the Unforgivable?,’ in Confronting Evil in International Relations, ed. Renee Jeffery (New York: Palgrave Macmillan, 2008); Martha Minow, ‘Between Vengeance and Forgiveness: South Africa’s Truth and Reconciliation Commission,’ Negotiation Journal 14, no. 4 (1998). 18 Lisa J. Laplante and Kimberly Susan Theidon, ‘Truth with Consequences: Justice and Reparations in Post-Truth Commission Peru,’ Human Rights Quarterly 29, no. 1 (2007): 237. 19 Minow, ‘Between Vengeance and Forgiveness.’ 20 Jamie O’Connell, ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’ Harvard International Law Journal 46, no. 2 (2005). 21 David Mendeloff, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice,’ Human Rights Quarterly 31, no. 3 (2009): 596, 614.

Between micro and macro justice: Emotions in transitional justice   463 study using ‘direct evidence’ from South Africa and former Yugoslavia. He concluded that it is likely ‘that post-conflict truth-telling mechanisms … have even less (italics in original) of a beneficial impact… [and] psychological benefit’ for victims of wartime abuse than for ‘ordinary’ crime victims’, for whom results are uncertain at best. Doak22 conducted one of the most comprehensive reviews of empirical studies on emotional repair among victim survivors, and concluded: ‘Precisely how the truth acts to transform negative emotions is still unknown.’ Since then, a more nuanced picture has emerged from research on multiple sites of TJ. This body of research allows for differentiating between stages of the TJ process from the beginning to end and distinguishing between different types of emotional engagement in the process of TJ. It identifies different emotion dynamics that are related to support for such measures, to the actual experience of participation, and finally to the impact and achievements of these measures.

EMOTIONS AND SUPPORT FOR TRANSITIONAL JUSTICE Barceló23 found from a sample of the Spanish population that emotional engagement with the past of the Franco regime shaped the desire for TJ: negative emotions like anger, fear and sadness increased the demand for justice mechanisms. A study on a similarly distant past of mass atrocities committed by the Khmer Rouge in Cambodia between 1975 and 1979 analysed how more severe emotional repercussions from previous mass violence— post-traumatic stress disorder (PTSD)—shaped attitudes to the ongoing Khmer Rouge trials in the Extraordinary Chambers in the Courts of Cambodia (ECCC).24 Individuals who showed high levels of probable PTSD had less confidence that justice would be done than those with lower levels. Similarly in a study of Rwanda in 2002, Pham and colleagues25 found that a high level of PTSD coincided with more negative attitudes towards both national criminal trials and the International Criminal Tribunal for Rwanda. Experience of traumatic events significantly contributed to negative attitudes towards the community gacaca courts in Rwanda.26

Jonathan Doak, ‘The Therapeutic Dimension of Transitional Justice: Emotional Repair and Victim Satisfaction in International Trials and Truth Commissions,’ International Criminal Law Review 11, no. 2 (2011). 23 Joan Barceló, ‘The Emotional Underpinnings of Attitudes toward Transitional Justice,’ Political Studies 66, no. 2 (2018). 24 Jeffery Sonis et al., ‘Probable Posttraumatic Stress Disorder and Disability in Cambodia: Associations with Perceived Justice, Desire for Revenge, and Attitudes toward the Khmer Rouge Trials,’ Journal of the American Medical Association 302, no. 5 (2009). 25 Phuong Pham, Harvey M Weinstein, and Timothy Longman, ‘Trauma and PTSD Symptoms in Rwanda: Implications for Attitudes toward Justice and Reconciliation,’ Journal of the American Medical Association 292, no.4 (2004): 292. 26 Timothy Longman, Phuong Pham, and Harvey M. Weinstein, ‘Connecting Justice to Human Experience: Attitudes toward Accountability and Reconciliation in Rwanda,’ in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, eds, Eric Stover and Harvey M. Weinstein (Cambridge: Cambridge University Press, 2004). Gacaca courts were installed after the genocide in Rwanda to deal with lower level and less serious perpetrators in their victims’ communities, and were based on a template of indigenous justice. Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge: Cambridge University Press, 2010). 22

464  Research handbook on law and emotion Nonetheless, anger and desire for revenge are not consistently and significantly related to post-traumatic emotions. A study of war survivors from the former Yugoslavia (2000–2002) showed that emotional reactions to perceived impunity of perpetrators were only weakly or not significantly related to traumatic emotions. However, if impunity is perceived as including an element of threat for the future rather than only the lack of a sanction or redress, then indeed fear and PTSD are strongly related.27 Hall et al.28 explored the role of time in this process in Bosnia two decades after the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established. Past exposure to violence and losses during the war made individuals more inclined to support revenge and retributive measures of justice, while present-day interaction and interdependence with members of the perpetrator group increased preference for restorative justice measures. Kanyangara and colleagues compared survivors and perpetrators shortly before their appearance at a gacaca trial in Rwanda with the respective groups who would participate in the future. The anticipation of imminent participation sparked ‘positive expectations and feelings of hope’ among survivors. In particular survivors experienced lower levels of desire for revenge and higher levels of forgiveness. Overall, they perceived a more positive collective emotional climate, while perpetrators rated the collective emotional climate more negatively.29

EMOTIONAL IMPACT OF PARTICIPATION IN TRANSITIONAL JUSTICE Participation in TJ mechanisms has a nearly unequivocal negative impact on victims, independent of the arena and the social environment of post-conflict societies. Starting with the first studies of victim–witnesses at the ICTY, the results give little support to the assumption that truth-telling, accountability and justice will aid the emotional healing of victims. Rather, victim–witnesses report feelings of anger, helplessness and abandonment, though not feelings of revenge.30 For most victims, giving evidence and truth-telling are experienced as involving considerable emotional pain; this applies to participants in the South African TRC as well as to those in local gacaca courts that dealt with the genocide in Rwanda. Brounéus31 reports a particularly negative impact on the emotional and overall well-being of women who testified

27 Metin Başoğlu et al., ‘Psychiatric and Cognitive Effects of War in Former Yugoslavia: Association of Lack of Redress for Trauma and Posttraumatic Stress Reactions,’ Journal of the American Medical Association 294, no. 5 (2005): 588. 28 Jonathan Hall et al., ‘Exposure to Violence and Attitudes Towards Transitional Justice,’ Political Psychology 39, no. 2 (2018). 29 Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions toward Reconciliation,’ 409, 410 ; Bernard Rimé, et al., ‘The Impact of Gacaca Tribunals in Rwanda: Psychosocial Effects of Participation in a Truth and Reconciliation Process after a Genocide,’ European Journal of Social Psychology 41, no. 6 (2011). 30 Eric Stover, ‘Witnesses and the Promise of Justice in the Hague,’ in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, eds, Harvey M. Weinstein and Eric Stover (Cambridge: Cambridge University Press, 2004). 31 Karen Brounéus, ‘Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts,’ Security Dialogue 39, no. 1 (2008).

Between micro and macro justice: Emotions in transitional justice   465 at the local gacaca courts. This finding is supported by Byrne32 for the South African TRC; 80 per cent reported that the process involved ‘considerable emotional pain,’ and only 20 per cent felt that they had ‘benefited from …. shared reactions’. Victims in Guatemala, who had testified at a military tribunal against those who had participated in a massacre in their communities, reported higher levels of negative emotions like loneliness, anger, and fear.33 More positive results are reported for victims in Cambodia, who acted as civil parties in the trial of Duch, the governor of the notorious S21 detention centre, at the ECCC. Several factors might have contributed to the outcome, including their formal recognition as civil parties, the size of the victim group at the court, and the time that had passed since the events took place in 1975–1979.34 The most robust evidence on the potential emotional impact comes from studies that include differently involved groups, and measures of emotions and emotional well-being before and after participation in TJ mechanisms. Kaminer et al.35 compared victim–survivors who had given public statements at the South African TRC with those who had given closed testimony to a TRC official and those who had not testified at all. No differences for emotional impact (PTSD and anxiety) were discerned for the three groups, neither a positive nor a negative impact. However, those who supported forgiveness generally were in better emotional health. A series of studies by Kanyangara, Rimé and colleagues on participation in gacaca courts generally confirms a reactivation of negative emotions like sadness, fear, anxiety, anger and disgust for both victim–survivors and perpetrators. However, they also found decisive differences between the two groups as well as a more nuanced pattern of individual emotional reactions.36 Victim–survivors became more vengeful and unforgiving after participation, and in particular their emotional health (measured as PTSD) deteriorated significantly. However, feelings of guilt (individual and collective) among this group decreased markedly, as did feelings of shame,37 indicating that the increase in antagonistic anger overall occurred in conjunction with feelings of empowerment by victims. In contrast, perpetrators did not exhibit changes in their emotional health, and their feelings of individual guilt increased significantly, as would have been expected. Conducting a random control field experiment, Cilliers et al.38 similarly found an overall negative impact of participation in community-level reconciliation forums in Sierra Leone, called Fambul Tok. In contrast to gacaca courts in Rwanda, Fambul

Catherine C. Byrne, ‘Benefit or Burden: Victims’ Reflections on TRC Participation,’ Peace and Conflict: Journal of Peace Psychology 10, no. 2 (2004): 243. 33 Brinton M. Lykes, Carlos Martin Beristain, and Maria Luisa Cabrera Pérez-Armiñan, ‘Political Violence, Impunity, and Emotional Climate in Maya Communities,’ Journal of Social Issues 63, no. 2 (2007). 34 Eric Stover, Mychelle Balthazard, and K. Alexa Koenig, ‘Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia,’ International Review of the Red Cross 93, no. 882 (2011): 503–46. 35 Debra Kaminer et al., ‘The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness among Survivors of Human Rights Abuses,’ The British Journal of Psychiatry 178, no. 2 (2001). 36 Patrick Kanyangara et al., ‘Collective Rituals, Emotional Climate and Intergroup Perception: Participation in ‘Gacaca’ Tribunals and Assimilation of the Rwandan Genocide,’ Journal of Social Issues 63, no. 2 (2007); Rimé et al., ‘The Impact of Gacaca Tribunals in Rwanda.’ 37 Rimé et al., ‘The Impact of Gacaca Tribunals in Rwanda,’ 703, 701. 38 Jacobus Cilliers, Oeindrila Dube, and Bilal Siddiqi, ‘Reconciling after Civil Conflict Increases Social Capital but Decreases Individual Well-Being,’ Science 352, no. 6287 (2016). 32

466  Research handbook on law and emotion Tok did not stipulate punishment for perpetrators. Invariably, individual emotional health deteriorated considerably after community participation in Fambul Tok. The ‘accentuation’ of the respective roles of survivors and perpetrators in these TJ settings thus entails on balance more negative than positive emotional experience for the victim group, and for both groups an increase in antagonistic and negative emotions.39 Individual emotional healing and recovery is not achieved; to the contrary, truth-telling on the national level as in the South African TRC as well as on the grass-root level as in Rwanda and Sierra Leone comes with substantial costs in individual emotional well-being and healing. In sum, negative emotions that were congruent with the group experience, like fear for survivors and guilt for perpetrators, were enhanced during the gacaca procedures as well as in transitional justice mechanisms in Latin America,40 and presumably also in the fora in Sierra Leone. Nonetheless, there is widespread support for and generally positive perception of TJ mechanisms like the TRC among the South African population.41 The question arises whether the lack of positive emotional impact on the level of micro justice might entail ‘damaging consequences for the reconciliation process’42 and the project of ‘macro justice’ in post-conflict societies.

TRANSITIONAL MACRO JUSTICE: COLLECTIVE EMOTIONS AND EMOTIONAL CLIMATES From the start, contemporary TJ mechanisms have been conceived as ‘macro justice’ addressing the needs of post-conflict societies. Justice and reconciliation are both designated objectives of TJ,43 and its institutions and mechanisms have been situated on a continuum between the poles of retributive justice at one end of the scale and reconciliation and forgiveness on the other. Justice and reconciliation often have been seen as irreconcilable goals, with justice sparking cycles of revenge and violence in contrast to reconciliation. However, measures of justice and accountability can affect both justice and reconciliation on the level of macro justice, or only one or the other, or even neither of them. Justice in order to be effective might require a degree of reconciliation, and an apology as an instance of reconciliatory measures can increase both the perception of justice and the perception of reconciliation among the population of post-conflict and transitional societies.44 Contemporary TJ procedures are tasked to reach out to their audiences and initiate change in the collective emotions and climate in post-conflict societies: restraining vengeance among

Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions toward Reconciliation,’ 410. 40 Martín-Beristain et al., ‘Psychosocial Effects of Participation in Rituals of Transitional Justice,’ 50. 41 Dan J. Stein et al., ‘The Impact of the Truth and Reconciliation Commission on Psychological Distress and Forgiveness in South Africa,’ Social Psychiatry and Psychiatric Epidemiology 43, no. 3 (2008). 42 Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions toward Reconciliation,’ 410. 43 UN Secretary General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.’ 44 Roman David, Communists and Their Victims (Philadelphia: University of Pennsylvania Press, 2017), 143, 208. 39

Between micro and macro justice: Emotions in transitional justice   467 the victim groups, instilling a sense of collective guilt and collectively felt shame in groups of perpetrators and bystanders, and promoting reconciliation and forgiveness, thus contributing to the ‘healing’ of whole societies.45 Criminal trials in particular convey strong messages and powerful images to the public when perpetrators – whether formerly high-ranking members of powerful groups or lower ranks who collectively committed violence – appear in courts and before truth commissions. The previously powerful emerge as the ‘defeated’, while the formerly powerless victims are now the ‘defended’ group. Such change of status elicits strong emotions of anger, shame and fear in those who are now defeated, and empowers victims emotionally, thus sending messages with high emotional content to both groups as well as to society. TRCs are a standard and widely adopted model of reconciliatory TJ,46 comprising a range of national adaptations. Reconciliation is not merely an intellectual but also an emotional process;47 apologies and forgiveness epitomise the role of emotions in intergroup reconciliation.48 The emotional aspects of these TJ mechanisms and their impact on the emotional climate of societies have been widely explored for gacaca courts in Rwanda, community level forums in Sierra Leone, and Latin American truth commissions. Collective emotional climates are embedded in shared values and beliefs, and attached to group identities, thus representing what people desire or fear.49 Socio-emotional climates reflect the predominant collective emotions and moods shared by members of a group. Negative emotional climates are marked by sadness, fear, distrust and despair, and positive emotional climates by solidarity, confidence and trust, hope and pride. Climates of fear and anger result in negative personal emotions, negative and antagonistic interactions, as well as negative emotional representations of society.50 In post-conflict societies, an emotional climate involving feelings of anger, resentment, shame, sadness and distrust prevails even a long time after the conflict ends; this applies to Rwanda51 as well as to Chile and other Latin American countries.52 Kanyangara, Rimé and their colleagues probed the collective emotions and the emotional climate in communities in Rwanda, where gacaca courts took place, through respective per Martha Minow, ‘Forgiveness, Law, and Justice,’ California Law Review 103, no. 6 (2015). Priscilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. 47 Jodi Halpern and Harvey M. Weinstein, ‘Rehumanizing the Other: Empathy and Reconciliation,’ Human Rights Quarterly 26, no. 3 (2004): 568. 48 For a comprehensive overview and discussion of research on intergroup apologies, forgiveness and reconciliation, see Craig W. Blatz and Catherine Philpot, ‘On the Outcomes of Intergroup Apologies: A Review,’ Social and Personality Psychology Compass 4, no. 11 (2010): 995-1007, and Matthew J. Hornsey, Michael J.A. Wohl, and Catherine R. Philpot, ‘Collective Apologies and Their Effects on Forgiveness: Pessimistic Evidence But Constructive Implications,’ Australian Psychologist 50, no. 2 (2015): 106–14. 49 Christian von Scheve and Mikko Salmela, ‘Collective Emotions: An Introduction,’ in Collective Emotions, eds, Christian von Scheve and Mikko Salmela (Oxford: Oxford University Press, 2014), xv. 50 Darío Páez, Agustín Espinosa, and Magdalena Bobowik, ‘Emotional Climate: How Is It Shaped, Fostered and Changed,’ in Changing Emotions, eds, Dirk Hermans, Bernard Rimé, and Batja Mesquita (London: Psychology Press, 2013); De Rivera and Páez, ‘Emotional Climate, Human Security, and Cultures of Peace.’ 51 Kanyangara et al., ‘Collective Rituals, Emotional Climate and Intergroup Perception,’ 388. 52 Manuel Cárdenas et al., ‘Personal Emotions, Emotional Climate, Social Sharing, Beliefs, and Values Among People Affected and Unaffected by Past Political Violence,’ Peace and Conflict: Journal of Peace Psychology 20, no. 4 (2014). 45 46

468  Research handbook on law and emotion ceptions by victim–survivors and perpetrators. Before participating, victims had higher ratings of a positive emotional climate than a group that had not yet participated; these declined afterwards but remained at a higher level; equally, participation reinforced perceptions of more negative collective emotions. Perpetrators perceived a more positive socio-emotional climate after participation, and were not affected by a more negative social climate. For each group, participation decreased perceptions of the other group as a homogenous ‘other’, and rather promoted more positive stereotypes and perceptions of the heterogeneity of both groups. These overall positive perceptions of the socio-emotional climate were partially offset by a decrease of perceived social cohesion among victim–survivors, while perpetrators saw an increase in social cohesion after participation. On balance though, gacaca courts had a potential to ‘pave the way to social integration and intergroup reconciliation’.53 Cilliers and his colleagues’54 study on community-level TJ fora in Sierra Leone mirrors these results on the impact of such types of TJ mechanisms on the socio-emotional climate and adds support to the finding of a beneficial impact on the macro justice level. Members from those communities where Fambul Tok fora took place were more willing to forgive perpetrators; further, they had higher levels of trust in rebel ex-combatants and migrants, who were often resettling refugees. Indicators of social capital, like social networks and participation in community groups like e.g. village development committees, women’s groups or parent teacher associations which often aimed at healing the wounds of war, showed a significant increase for communities where such fora took place. Overall, Fambul Tok fora had a positive impact on the emotional and social dimensions of community cohesion, including forgiveness. 2011/2012 survey studies in a number of Latin American countries, including Ecuador, Chile, Argentina, Peru, Paraguay, and Uruguay present a complex pattern of macro justice impact of TRCs. Overall, truth commissions, criminal trials, and reconciliatory measures were positively evaluated, indicating an integrated and comprehensive perception of all TJ mechanisms and their achievements among the citizens of different countries. In Chile, a survey conducted by Cardenas and colleagues55 showed that even as a predominantly negative view of forgiveness and its possibility prevailed, the population held a generally positive view of the achievements of the Chilean Truth Commissions.56 Even if the Chilean Truth Commissions were not seen as having achieved their reconciliatory aims, the evaluation of their other aims was sufficient to contribute to an overall positive appraisal. Positive perceptions of the emotional social climate and favourable appraisals of truth commissions and official apologies combined with greater acceptance of forgiveness among citizens. Importantly, trust in institutions in conjunction with a positive emotional climate was a prerequisite for a positive appraisal of the truth commissions’ achievements.57 Substantive levels of trust were also found

Rimé et al., ‘The Impact of Gacaca Tribunals in Rwanda,’ 704. Cilliers, Dube, and Siddiqi, ‘Reconciling after Civil Conflict.’ 55 Manuel Cárdenas, Maitane Arnoso, and Darío Páez, ‘Predictors of Beliefs in Intergroup Forgiveness in a Chilean General Population Sample,’ The Spanish Journal of Psychology 18, no. 1 (2015); Manuel Cárdenas et al., ‘How Transitional Justice Processes and Official Apologies Influence Reconciliation: The Case of the Chilean ‘Truth and Reconciliation’ and ‘Political Imprisonment and Torture’ Commissions,’ Journal of Community & Applied Social Psychology 26, no. 4 (2015); Cárdenas et al., ‘Personal Emotions, Emotional Climate, Social Sharing, Beliefs, and Values.’ 56 See also Jorge Manzi and Roberto González, ‘Forgiveness and Reparation in Chile: The Role of Cognitive and Emotional Intergroup Antecedents,’ Peace and Conflict 13, no. 1 (2007). 57 Cárdenas, Arnoso, and Páez, ‘Predictors of Beliefs in Intergroup Forgiveness,’ 6. 53 54

Between micro and macro justice: Emotions in transitional justice   469 to be a precondition for acceptance of institutional and intergroup apologies as well as intergroup forgiveness and reconciliation.58 Positive appraisals of the truth commissions in these Latin American countries were mostly not affected by individual exposure to and experiences of violence, including family members;59 the exception was Peru, where this had an impact.60 However, independent of individual experiences, emotional reactions to the past of violence and violent conflict played a role: remembering the violent events of the past has an equivocal impact and elicits both negative and positive collective emotions, as in Peru.61 When sadness and anger, however, were accompanied by hope of overcoming this past, support for the truth commissions in Chile increased.62 Transitional justice provokes ambivalent reactions exactly when people welcome it, accept it, and rate it as successful. Positive emotions, personal as well as collective, are related to its reparatory and reconciliatory activities, exemplified by the strong and positive impact of hope. Negative collective emotions come to the fore as truth commissions deal with extremely negative events and collective antagonism. Naturally there are differences between the perceptions of perpetrator and victim groups, as shown for gacaca courts in Rwanda. However, victimisation experiences (direct and indirect) were not consistently related to the socio-emotional climate in Latin American post-conflict countries, presumably due to the lapse of time. On balance, these TJ mechanisms had a positive impact on the macro-level socio-emotional climate, including support for official apologies and forgiveness more general.

EXPLAINING MICRO AND MACRO JUSTICE DISCREPANCIES: A NEEDS-BASED MODEL OF EMOTIONS IN TRANSITIONAL JUSTICE Evidence from different arenas and socio-political contexts concur in the conclusion that TJ mechanisms, and TRCs in particular, ‘positively fulfil macro-level justice purposes, but fail to deliver micro-level benefits’ to victim–survivors who participate in these fora.63 These results are the more worrying, as victim–survivors’ emotional well-being significantly deteriorated overall, even if they slightly gained in emotional empowerment. Such emotional empowerment was indicated by a significant decrease of self-conscious feelings of shame and collective guilt, and simultaneously a significant increase of more antagonistic emotions like anger. Matthew J. Hornsey and Michael J.A. Wohl, ‘We Are Sorry: Intergroup Apologies and Their Tenuous Link with Intergroup Forgiveness,’ European Review of Social Psychology 24, no. 1 (2013); Arie Nadler and Ido Liviatan, ‘Intergroup Reconciliation: Effects of Adversary’s Expressions of Empathy, Responsibility, and Recipients’ Trust,’ Personality and Social Psychology Bulletin 32, no. 4 (2006). 59 Cárdenas et al., ‘How Transitional Justice Processes and Official Apologies Influence Reconciliation.’ 60 Manuel Cárdenas et al., ‘Determinants of Approval of the Work of Truth Commissions in the Southern Cone: A Comparative Study,’ Revista de Psicología Social 31, no. 3 (2016). 61 Agustín Espinosa et al., ‘Between Remembering and Forgetting the Years of Political Violence: Psychosocial Impact of the Truth and Reconciliation Commission in Peru,’ Political Psychology 38, no. 5 (2017). 62 Cárdenas et al., ‘Determinants of Approval of the Work of Truth Commissions,’ 438. 63 Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions toward Reconciliation,’ 411. 58

470  Research handbook on law and emotion Nonetheless, many victim-survivors supported TJ mechanisms on the macro-justice level, changed their perceptions of the perpetrator group, and on balance perceived the emotional climate as slightly more positive as found for Rwanda or significantly so as in Argentina. Cilliers’ et al.64 conclusion from their study in Sierra Leone that ‘gains in societal healing associated with reconciliation come at a substantial cost in individual psychological healing’ is representative across social contexts and TJ mechanisms.65 Notwithstanding these discrepancies between macro justice achievements and failure to deliver personal emotional benefits, these results illustrate the capacity of people to consider both levels of justice: their own personal justice needs as well as the justice needs of post-conflict societies. Even if both offenders and victims, and victims in particular, were negatively affected in their personal emotions by actual participation in TJ procedures, they were willing to endorse the institution, change their perceptions, and engage with the other group. For apologies and forgiveness, we find a reversed pattern between personal and intergroup emotional impact. Though both share essential features, the link between collective apologies and intergroup forgiveness is ‘tenuous’ and ‘weak’,66 while the effect of an interpersonal apology on personal forgiveness is robust and strong.67 Collective apologies do not pave the way towards intergroup forgiveness in the same way as interpersonal apologies consistently promote interpersonal forgiveness. In the TJ context, the personal justice needs of victims of gross human rights violations are not easily fulfilled by a mere apology, rather victims need to see perpetrators being ‘truly sorry’.68 Group and collective justice needs are shaped by complex intergroup relations and specific preconditions that make it difficult for apologies to be effective and achieve intergroup reconciliation.69 Like other TJ mechanisms, institutional apologies conjure negative emotions that are related to the past of violence and conflict, both in directly affected groups and among citizens more generally. This might be the reason why on the macro-justice level, explicit expressions of moral emotions like guilt and shame in an apology by the transgressor seem to be less acceptable and conducive to forgiving than an acknowledgment which is expressed in a non-emotional manner. Čehajić-Clancy and Brown70 found this to be the case for the post-conflict environment of Bosnia Herzegovina. Nonetheless such negative emotions did not necessarily lead to an overall rejection or less-favourable appraisal of official apologies.

Cilliers, Dube, and Siddiqi, ‘Reconciling after Civil Conflict,’ 794. For the South African TRC, see Lillie and Janoff-Bulman, ‘Macro Versus Micro Justice.’ 66 Michael Wohl et al., ‘Belief in the Malleability of Groups Strengthens the Tenuous Link between a Collective Apology and Intergroup Forgiveness,’ Personality and Social Psychology Bulletin 41, no. 5 (2015): 714; Darío Páez, ‘Official or Political Apologies and Improvement of Intergroup Relations: A Neo-Durkheimian Approach to Official Apologies as Rituals,’ Revista de Psicología Social 25, no. 1 (2010). 67 Matthew J. Hornsey, Michael J.A. Wohl, and Catherine R. Philpot, ‘Collective Apologies and Their Effects on Forgiveness,’ 107. 68 For the South African TRC, see Alfred Allan et al., ‘Exploration of the Association between Apology and Forgiveness Amongst Victims of Human Rights Violations,’ Behavioral Sciences & the Law 24, no. 1 (2006); Lillie and Janoff-Bulman, ‘Macro Versus Micro Justice.’ On remorse generally, see Susan A. Bandes, ‘Remorse and Criminal Justice,’ Emotion Review 8, no. 1 (2016). 69 Hornsey, Wohl, and Philpot, ‘Collective Apologies and Their Effects on Forgiveness.’ 70 Sabina Čehajić-Clancy and Rupert Brown, ‘‘You Say It Best When You Say Nothing at All’: Effects of Reparation, Apology, and Expressions of Emotions on Intergroup Forgiveness,’ Peace and Conflict: Journal of Peace Psychology 25, no. 1 (2019). 64 65

Between micro and macro justice: Emotions in transitional justice   471 Positive appraisals of apologies and belief in and support for forgiveness are embedded in an enhanced positive emotional climate. Where official apologies are expressed in the context of TJ processes, as in Latin American countries, they potentially enhance forgiveness, even if they are met with scepticism and critique.71 How can these seemingly fundamentally different outcomes on the personal and societal level be explained? A number of researchers have suggested a needs-based model that takes into account the differential emotional needs of victims and perpetrators in a post-conflict situation.72 Initially developed to explain reconciliation both on the interpersonal and intergroup levels, it has proven to be transferrable to TJ settings, in particular those that aim at reconciliation like gacaca courts in Rwanda.73 The needs-based model starts from the assumption that entrenched emotional issues are raised during and post conflict, and that satisfying the emotional needs of the groups involved is necessary to establish reconciliation, or at least a modus vivendi between them. This situation requires that the different emotional needs of victims and transgressor groups, both of which basically arise from threats to their social power, are satisfied. As victims suffer a basic threat to their power as actors, they experience feelings of powerlessness, loss of control, and status. In contrast, perpetrators experience a threat to their moral identity, and their acceptance as moral actors within the community to which they want to belong. Victims are motivated to restore their sense of power; taking revenge gives a sense of empowerment, but so does control over accepting an apology or acknowledging expressions of remorse, which both can be rejected or withheld. Perpetrators are motivated to reduce the threats to their moral image; this can be achieved by denial, but also by acceptance of guilt, expressing shame, and actively seeking forgiveness.74 Rimé et al.75 propose that victims also have a need to repair their moral identity in order to cope with survivor guilt and shame. The needs-based model describes transitional justice processes as exchanges, in which emotions play a central role.76 In court and truth and reconciliation proceedings, victims will be empowered by information, validation and apologies, and see their personal justice needs satisfied. Perpetrators will be able to restore their moral image by acceptance of guilt and punishment, and by expressing remorse. Satisfying these needs opens up ‘the socio-emotional route’ to justice and reconciliation.77 According to this model, key to the differential impact

71 Magdalena Bobowik et al., ‘Institutional Apologies and Socio-Emotional Climate in the South American Context,’ British Journal of Social Psychology 56, no. 3 (2017). 72 Nurit Shnabel et al., ‘Promoting Reconciliation through the Satisfaction of the Emotional Needs of Victimized and Perpetrating Group Members: The Needs-Based Model of Reconciliation,’ Personality and Social Psychology Bulletin 35, no. 8 (2009); Nurit Shnabel and Arie Nadler, ‘A Needs-Based Model of Reconciliation: Satisfying the Differential Emotional Needs of Victim and Perpetrator as a Key to Promoting Reconciliation,’ Journal of Personality and Social Psychology 94, no. 1 (2008); Arie Nadler and Ido Liviatan, ‘Intergroup Reconciliation Processes in Israel: Theoretical Analysis and Empirical Findings,’ in Collective Guilt, eds Nyla R Branscombe and Bertjan Doosje (Cambridge: Cambridge University Press, 2004). 73 Rimé et al., ‘The Impact of Gacaca Tribunals in Rwanda’; Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions toward Reconciliation.’ 74 Shnabel et al., ‘Promoting Reconciliation,’ 1022; Nadler and Liviatan, ‘Intergroup Reconciliation Processes in Israel: Theoretical Analysis and Empirical Findings.’ 75 Rimé et al., ‘The Impact of Gacaca Tribunals in Rwanda,’ 697. 76 Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions toward Reconciliation,’ 403. 77 Shnabel and Nadler, ‘A Needs-Based Model of Reconciliation,’ 116.

472  Research handbook on law and emotion of TJ procedures is the powerful reactivation of negative emotions that these entail for both victims and perpetrators. Research from different socio-political environments and arenas, as presented above, shows that this dynamic applies to direct participation as well as to general appraisals of TJ measures. On the micro-level of gacaca court confrontations, survivors’ needs were not sufficiently addressed, as they felt more vengeful, were less inclined to forgive, and doubted the sincerity of apologies; this coincided with a significant deterioration in emotional well-being.78 However, the reactivation of painful emotions triggered the complementary emotions of empowerment in survivors and moral emotions in perpetrators. Empowerment of victim–survivors was indicated by heightened levels of antagonistic emotions, while significantly reduced levels of self-reported shame and guilt among victims contributed to a restoration of self-esteem and dignity in this group. Perpetrators experienced a significant increase in personal guilt and shame. With the complementary emotional needs of both groups addressed and satisfied (to a degree) this opened up the route to constructive changes in intergroup perceptions and on balance a more positive socio-emotional climate, potentially leading to reconciliation as predicted by the needs-based model.79 Even if the capacity of gacaca courts to contribute to the individual emotional needs of both groups was small, these gains were presumably decisive for the observed changes in the overall socio-emotional climate that have the potential to be conducive to reconciliation. It is reasonable to assume that similar processes were at work in the Fambul Tok procedures in Sierra Leone.80 The needs–based model of reconciliation (and TJ) offers a useful framework for understanding how the reactivation of negative emotions entailed positive consequences for the socio-emotional climate, and how both feed into and affect each other in transitional justice mechanisms and processes.81

CONCLUSION Emotions are at the heart of conflicts, and decisive in shaping TJ procedures and their outcomes. Dealing with a painful past is painful in itself, and TJ procedures inevitably reactivate negative emotions in victims, perpetrators, and bystanders. It is now clear that the initially widely promoted cathartic model of emotions in TJ does not hold up against available evidence. The mere expression of negative emotions in TJ fora does not have healing effects on the micro justice level, but to the contrary: victim–survivors’ emotional health generally deteriorates. However, TJ mechanisms have the potential to address differential emotional needs of victims and perpetrators that are conducive to reconciliation, even in the presence of strong negative emotions. Consequently, evaluating the acceptance and impact of TJ processes and mechanisms on the personal level alone has led to overly pessimistic perspectives; this singular focus does not do justice to achievements on the societal macro level and in terms of the overall socioemotional climate. Understanding these discrepancies and the complex emotional processes that underlie societal and personal justice will make a major contribution to the future of transitional justice. Kanyangara et al., ‘Trust, Individual Guilt, Collective Guilt and Dispositions Toward Reconciliation,’ 410. 79 Shnabel et al., ‘Promoting Reconciliation.’ 80 Cilliers, Dube, and Siddiqi, ‘Reconciling after Civil Conflict.’ 81 Rimé et al., ‘The Impact of Gacaca Tribunals in Rwanda,’ 703. 78

Between micro and macro justice: Emotions in transitional justice   473

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474  Research handbook on law and emotion Espinosa, Agustín, Darío Páez, Tesania Velázquez, Rosa María Cueto, Evelyn Seminario, Salvador Sandoval, Félix Reátegui, and Iris Jave. ‘Between Remembering and Forgetting the Years of Political Violence: Psychosocial Impact of the Truth and Reconciliation Commission in Peru.’ Political Psychology 38, no. 5 (2017): 849–66. Hall, Jonathan, Iosif Kovras, Djordje Stefanovic, and Neophytos Loizides. ‘Exposure to Violence and Attitudes Towards Transitional Justice.’ Political Psychology 39, no. 2 (2018): 345–63. Halpern, Jodi, and Harvey M Weinstein. ‘Rehumanizing the Other: Empathy and Reconciliation.’ Human Rights Quarterly 26, no. 3 (2004): 561–83. Hayner, Priscilla B. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. 2e. New York: Routledge, 2011. Hornsey, Matthew J., and Michael J.A. Wohl. ‘We Are Sorry: Intergroup Apologies and Their Tenuous Link with Intergroup Forgiveness.’ European Review of Social Psychology 24, no. 1 (2013): 1–31. Hornsey, Matthew J., Michael J.A. Wohl, and Catherine R. Philpot. ‘Collective Apologies and Their Effects on Forgiveness: Pessimistic Evidence but Constructive Implications.’ Australian Psychologist 1, no. 50 (2015): 106–14. Jeffery, Renee. ‘To Forgive the Unforgivable?’. In Confronting Evil in International Relations, edited by Renee Jeffery, 179-212. New York: Palgrave Macmillan, 2008. Kaminer, Debra, Dan J. Stein, Irene Mbanga, and Nompumelelo Zungu-Dirwayi. ‘The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness among Survivors of Human Rights Abuses.’ The British Journal of Psychiatry 178, no. 2 (2001): 373–77. Kanyangara, Patrick, Bernard Rimé, Dario Paez, and Vincent Yzerbyt. ‘Trust, Individual Guilt, Collective Guilt and Dispositions Toward Reconciliation Among Rwandan Survivors and Prisoners Before and After Their Participation in Postgenocide Gacaca Courts in Rwanda.’ Journal of Social and Political Psychology 2, no. 1 (2014): 401–16. Kanyangara, Patrick, Bernard Rimé, Pierre Philippot, and Vincent Yzerbyt. ‘Collective Rituals, Emotional Climate and Intergroup Perception: Participation in ‘Gacaca’ Tribunals and Assimilation of the Rwandan Genocide.’ Journal of Social Issues 63, no. 2 (2007): 387–403. Karstedt, Susanne. ‘The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective.’ Emotion Review 8, no. 1 (2016): 50–55. Karstedt, Susanne. ‘Emotions and Criminal Law: New Perspectives on an Enduring Presence.’ In Emotions in Late Modernity, edited by Roger Patulny, Alberto Bellocchi, Rebecca E Olson, Sukhmani Khorana, Jordan McKenzie and Michelle Peterie, 101–13. New York: Routledge, 2019. Karstedt, Susanne. ‘Organizing Crime: The State as Agent.’ In Oxford Handbook of Organized Crime, edited by Letizia Paoli, 303–20. Oxford: Oxford University Press, 2014. Laplante, Lisa J., and Kimberly Susan Theidon. ‘Truth with Consequences: Justice and Reparations in Post-Truth Commission Peru.’ Human Rights Quarterly 29, no. 1 (2007): 228–50. Lillie, Christine, and Ronnie Janoff-Bulman. ‘Macro Versus Micro Justice and Perceived Fairness of Truth and Reconciliation Commissions.’ Peace and Conflict: Journal of Peace Psychology 13, no. 2 (2007): 221–36. Longman, Timothy, Phuong Pham, and Harvey M. Weinstein. ‘Connecting Justice to Human Experience: Attitudes toward Accountability and Reconciliation in Rwanda.’ In My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, edited by Eric Stover and Harvey M. Weinstein, 104–20. Cambridge: Cambridge University Press, 2004. Lykes, M. Brinton, Carlos Martin-Beristain, and Maria Luisa Cabrera Pérez-Armiñan. ‘Political Violence, Impunity, and Emotional Climate in Maya Communities.’ Journal of Social Issues 63, no. 2 (2007): 369–85. Manzi, Jorge, and Roberto González. ‘Forgiveness and Reparation in Chile: The Role of Cognitive and Emotional Intergroup Antecedents.’ Peace and Conflict 13, no. 1 (2007): 71–91. 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., and James J. Gross. ‘The Ideal of the Dispassionate Judge: An Emotion Regulation Perspective.’ Emotion Review 6, no. 2 (2014): 142–51. Martín-Beristain, Carlos, Darío Páez, Bernard Rimé, and Patrick Kanyangara. ‘Psychosocial Effects of Participation in Rituals of Transitional Justice: A Collective-Level Analysis and Review of the

Between micro and macro justice: Emotions in transitional justice   475 Literature of the Effects of TRCs and Trials on Human Rights Violations in Latin America.’ Revista de Psicología Social 25, no. 1 (2010): 47–60. Mendeloff, David. ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice.’ Human Rights Quarterly 31, no. 3 (2009): 592–623. Mendeloff, David. ‘Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?’ International Studies Review 6, no. 3 (2004): 355–80. Minow, Martha. ‘Between Vengeance and Forgiveness: South Africa’s Truth and Reconciliation Commission.’ Negotiation Journal 14, no. 4 (1998): 319–55. Minow, Martha. ‘Forgiveness, Law, and Justice.’ California Law Review 103, no. 6 (2015): 1615–45. Nadler, Arie, and Ido Liviatan. ‘Intergroup Reconciliation Processes in Israel: Theoretical Analysis and Empirical Findings.’ In Collective Guilt, edited by Nyla R. Branscombe and Bertjan Doosje, 216–35. Cambridge: Cambridge University Press, 2004. Nadler, Arie, and Ido Liviatan. ‘Intergroup Reconciliation: Effects of Adversary’s Expressions of Empathy, Responsibility, and Recipients’ Trust.’ Personality and Social Psychology Bulletin 32, no. 4 (2006): 459–70. O’Connell, Jamie. ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’ Harvard International Law Journal 46, no. 2 (2005): 295–345. Páez, Darío. ‘Official or Political Apologies and Improvement of Intergroup Relations: A Neo-Durkheimian Approach to Official Apologies as Rituals.’ Revista de Psicología Social 25, no. 1 (2010): 101–15. Páez, Darío, Agustín Espinosa, and Magdalena Bobowik. ‘Emotional Climate: How Is It Shaped, Fostered and Changed.’ In Changing Emotions, edited by Dirk Hermans, Bernard Rimé and Batja Mesquita, 113–19. London: Psychology Press, 2013. Pham, Phuong N., Harvey M. Weinstein, and Timothy Longman. ‘Trauma and PTSD Symptoms in Rwanda: Implications for Attitudes toward Justice and Reconciliation.’ Journal of the American Medical Association 292, no. 5 (2004): 602–12. Rimé, Bernard, Patrick Kanyangara, Vincent Yzerbyt, and Darío Páez. ‘The Impact of Gacaca Tribunals in Rwanda: Psychosocial Effects of Participation in a Truth and Reconciliation Process after a Genocide.’ European Journal of Social Psychology 41, no. 6 (2011): 695–706. Shnabel, Nurit, and Arie Nadler. ‘A Needs-Based Model of Reconciliation: Satisfying the Differential Emotional Needs of Victim and Perpetrator as a Key to Promoting Reconciliation.’ Journal of Personality and Social Psychology 94, no. 1 (2008): 116–32. Shnabel, Nurit, Arie Nadler, Johannes Ullrich, John F. Dovidio, and Dganit Carmi. ‘Promoting Reconciliation through the Satisfaction of the Emotional Needs of Victimized and Perpetrating Group Members: The Needs-Based Model of Reconciliation.’ Personality and Social Psychology Bulletin 35, no. 8 (2009): 1021–30. Sonis, Jeffery, James Gibson, Nigel Field, Sokhom Hean, and Ivan Komproe, ‘Probable Posttraumatic Stress Disorder and Disability in Cambodia: Associations with Perceived Justice, Desire for Revenge, and Attitudes toward the Khmer Rouge Trials,’ Journal of the American Medical Association 302, no. 5 (2009): 527–36. Stein, Dan J., Soraya Seedat, Debra Kaminer, Hashim Moomal, Allen Herman, John Sonnega, and David R. Williams. ‘The Impact of the Truth and Reconciliation Commission on Psychological Distress and Forgiveness in South Africa.’ Social Psychiatry and Psychiatric Epidemiology 43, no. 3 (2008): 462–68. Stover, Eric. ‘Witnesses and the Promise of Justice in the Hague.’ In My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, edited by Harvey M. Weinstein and Eric Stover, 104–20. Cambridge: Cambridge University Press, 2004. Stover, Eric, Mychelle Balthazard, and K. Alexa Koenig. ‘Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia.’ International Review of the Red Cross 93, no. 882 (2011): 503–46. UN Secretary General. ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.’ Report of the Secretary-General, S/2004/616, August (2004). von Scheve, Christian, and Mikko Salmela. ‘Collective Emotions: An Introduction.’ In Collective Emotions, edited by Christian von Scheve and Mikko Salmela, xiii–xxiv. Oxford: Oxford University Press, 2014.

476  Research handbook on law and emotion Wohl, Michael J.A., Smadar Cohen-Chen, Eran Halperin, Julie Caouette, Nicole Hayes, and Matthew J. Hornsey. ‘Belief in the Malleability of Groups Strengthens the Tenuous Link Between a Collective Apology and Intergroup Forgiveness.’ Personality and Social Psychology Bulletin 41, no. 5 (2015): 714–25. Wohl, Michael J.A., and Nassim Tabri. ‘The Rocky Road to Reconciliation: Regulating Emotions in an Intergroup Context.’ Psychological Inquiry 27, no. 2 (2016): 144–9.

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

INTRODUCTION In order to assert their humanitarian identity and preserve their civilian status, international humanitarian actors cultivate detachment from international military actors: they avoid, separate, and refuse to yield.1 Detachment does not necessarily entail distance, however. In cases where humanitarians assess that accommodating or cooperating with military actors is beneficial, some form of proximity may be called for. International military actors have taken note of these practices, often experiencing them as a personal affront. Military actors strongly resent that humanitarians would reject their advances; they reserve particular disdain for humanitarians who give them a chilly reception but subsequently reach out in times of need. A NATO soldier thus describes humanitarian-military interactions as ‘a cold liaison’, while a soldier in Sweden likens humanitarian NGOs to an ex-lover who ‘only calls when she wants to cuddle’. Through such accounts, military actors assemble an imaginary humanitarian actor who is aloof, mercurial and often feminized. For legal scholars, it may be tempting to downplay these kinds of tensions as bickering, idle gossip or perhaps colourful asides. What if, instead, we treated such power struggles as a problem for international humanitarian law (IHL)? Tracking the micro-level interactions of different kinds of frontline actors uncovers the way in which inter-personal and inter-group tensions travel across the social and legal domains. Paying attention to this dimension of practice enables us to look at, and see anew, the soldier who hesitates to assist humanitarians stuck at a roadside. While this (often, but not always, male) soldier likely has a legal mandate to facilitate the work of humanitarian actors, feelings of resentment—perhaps towards the same humanitarians who have called for help, or others who resemble them, or the aloof imagined ex-girlfriend—may lead him to drag his feet. This chapter advances the claim that such foot-dragging matters for IHL. This is to say: we need to recognize individual conflict actors as people in order to fully grasp how IHL hits the ground. To illuminate the importance of emotions to the legal regulation of armed conflict, this chapter attends to the affective dimension of encounters between international practitioners of humanitarian assistance and soldiers working for multi-dimensional missions. The chapter opens with a discussion of methodology, examining the tools and ideas required to conduct such an investigation. The

1 This statement draws on Matei Candea et al., ‘Introduction: Reconsidering Detachment,’ in Cultivating Detachment: Essays on the Limits of Relational Thinking, eds, Candea et al. (Manchester: Manchester University Press, 2015). The writing of this chapter was supported by an Early Career Fellowship from the Leverhulme Trust.

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478  Research handbook on law and emotion second part presents original empirical findings from interviews and observation conducted in three civil-military training spaces: a Comprehensive Approaches to Multi-Dimensional Peacekeeping Operations (CAMPO) training at the Centre for International Peace Operations training in Germany; a NATO Multi-National Civil-Military Coordination Group (CIMIC) training in Italy; and a Swedish Armed Forces (SWEDINT) Civil-Military Relations training in Sweden. 2 As is shown, humanitarians and soldiers struggle to communicate with each other and they hold in their minds differing accounts of law. By taking seriously the feelings and perceptions of these frontline actors, this chapter builds towards a deeper understanding of IHL’s human component.

METHODOLOGY: THE INTERPLAY OF LAW AND EMOTION IN CIVIL-MILITARY RELATIONS Historically, human emotions have not been accounted for in legal scholarship in a systematic way. This is changing, however, as legal scholars are increasingly attending to the importance of emotions for both legal theory and practice. This is slowly happening in the field of IHL as well, and some have pointed to a nascent ‘affective turn’ in IHL scholarship.3 It is thus an ideal moment to explore the long-overlooked emotional life and perceptual judgements of those who are expected to enact IHL. This is a pressing task, as the lack of engagement with this human component has enabled a false, and perhaps even purposely obscure, set of assumptions to endure about how IHL works in practice. A preliminary question that arises is how a legal scholar might embark upon an investigation that attends to the legal and affective dimensions of everyday IHL. This discussion charts a way forward, advocating for a grounded theory approach which is underpinned by a relational epistemology and bridges micro and macro levels of inquiry. After addressing each of these elements in turn, methodological limitations are considered. A Grounded Theory Approach How do legal scholars select their objects of study and frame their research questions? These issues receive considerable attention in other disciplines, but the methodological proclivities of legal scholars in general—and IHL scholars in particular—remain under-explored. It is crucial to remedy this oversight, especially as it bears upon the kinds of questions that are (not)

2 In 2015 and 2016, I engaged in over 200 hours of participant observation in these three training spaces and conducted interviews with 38 trainers and trainees. On participant observation, see Alan Bryman, ‘The Debate about Quantitative and Qualitative Research: A Question of Method or Epistemology,’ The British Journal of Sociology 35, no. 1 (1984): 81. 3 A specific sub-field dedicated to IHL and emotions has not yet emerged. Examples of relevant available literature include Nele Verlinden, ‘To Feel or Not to Feel: Emotions and International Humanitarian Law,’ in International Humanitarian Law and Justice: Historical and Sociological Perspectives, eds, Mats Deland, Mark Klamberg and Pal Wrange (London: Routledge, 2018). See also Daniel Munoz-Rojas and Jean-Jacques Fresard, ‘The Roots of Behaviour in War: Understanding and Preventing IHL Violations,’ International Review of the Red Cross 86, no. 853 (2004); Dale Stephens, ‘Behaviour in War: The Place of Law, Moral Inquiry and Self-Identity,’ International Review of the Red Cross 96, no. 895/896 (2014).

The emotions and perceptions of frontline actors   479 asked about law’s regulation of armed conflict. Although there is today a burgeoning critical literature on IHL, overall the favoured approach of IHL scholars remains normative and doctrinal.4 If we instead track the way in which a given IHL rule or idea circulates in specific settings, we might tell a very different story. An investigation that follows a grounded theory approach will not be organized around a specific (causal) hypothesis. Instead, the scholar is guided by ‘foreshadowed problems’5— such as the fact that everyday interactions between humanitarian and military actors appear fraught. This is an iterative research process that is primarily inductive but also has deductive aspects;6 the researcher is creating a puzzle and solving it at the same time.7 Riles conceptualizes the task of sorting out the relationships between various research discoveries as a process of ‘unwinding’.8 In embarking on this process, the scholar faces an intellectual risk because she must remain open to surprises and follow where the material leads her.9 The present investigation unearths the factors that influence the way in which international military actors understand their (legal) obligations to international humanitarian actors. It directs attention to two interconnected questions. First, how do international military actors think international humanitarian actors see them? Second, what do these beliefs about humanitarian actors’ views lead military actors to do with law, and in their routine interactions with humanitarian actors generally? These perceptions—which are, in essence, perceptions of perceptions—might be objectively correct and verifiable, or they might be misperceptions shaped by grievances. Most likely, they are a bit of both.10 The way such perceptions are treated in a scholarly discussion will hinge upon one’s epistemological stance and ontological outlook. This chapter espouses an interpretivist epistemology,11 seeking more to understand than to explain the phenomena under scrutiny. It is informed and inspired by an ethnographic approach that aims to see through the eyes of the actors of interest—so as to grasp their motivations, actions, interpretations, values and patterns of meaning.12 More than a simple factual account, the aim is for ‘thick description’, which Geertz 4 See e.g., Claudie Barrat, Status of NGOs in International Humanitarian Law (Leiden: Brill Nijhoff, 2014). 5 Bronislaw Malinowski, Argonauts of the Western Pacific: An Account of Native Enterprise and Adventure in the Archipelagoes of Melanesian New Guinea (London: Routledge, 1922/1984), 9. 6 Kathy Charmaz, Constructing Grounded Theory: A Practical Guide Through Qualitative Analysis (London: SAGE, 2006), 4, 188. 7 Wilhelm Baldamus, ‘The Role of Discoveries in Social Science,’ in The Rules of the Game: Cross-Disciplinary Essays on Models in Scholarly Thought, ed. Teodor Shanin (London: Tavistock, 1972), 295; Robert Emerson, Rachel Fretz, and Linda Shaw, Writing Ethnographic Fieldnotes (2nd ed.) (London: University of Chicago Press, 2011/1995), 173. 8 Annelise Riles, ‘Afterword: A Method More than a Subject,’ in Exploring the ‘Legal’ in Socio-Legal Studies, eds, David Cowan and Daniel Wincott (London: Palgrave, 2016), 260. See also Annelise Riles, ‘Anthropology, Human Rights and Legal Knowledge: Culture in the Iron Cage,’ American Anthropologist 108 (2008). 9 Riles, ‘Afterword.’ See also Bryman, ‘The Debate,’ 78. 10 I address humanitarian actors’ actual perceptions of military actors in Rebecca Sutton, ‘The Humanitarian Actor as ‘Civilian Plus’: The Circulation of the Idea of Distinction in International Law’ (PhD diss., London School of Economics, 2018); Rebecca Sutton, ‘A Hidden Fault-Line: How International Actors Engage with IHL’s Principle of Distinction,’ in Deland et al., IHL and Justice. 11 John Macionis and Linda Gerber, Sociology (7th ed.) (Toronto: Pearson, 2011), 33. See below, for a discussion of relational epistemology. 12 Bryman, ‘The Debate,’ 77–88.

480  Research handbook on law and emotion would have us assess according to ‘whether it sorts winks from twitches and real winks from mimicked ones’.13 This ethnographic approach draws on the symbolic interactionist movement in sociology, as well as ethnomethodology.14 Both of these traditions focus on micro-level interactions and view social reality as an interpreted world driven by interaction with others. At the centre of these interactions are potentially conflicting interpretations of meanings.15 This investigation also adopts a subjectivist ontology,16 according to which the objective correctness of a given perception is not a central concern. What matters is simply whether a given perception exists and has concrete implications.17 The present investigation peers into the mirror that international military actors hold up, to see how they think they are reflected in the eyes of humanitarian actors. This resonates with Cooley’s concept of the ‘looking glass self’, which describes an individual’s ability to think about how he or she is perceived by others.18 Where the (ascribed) perceptions of humanitarian actors do not align with military actors’ self-conception, a perceptions clash ensues. Swann and Ely term this type of conflict a ‘battle of wills’.19 A Relational Epistemology Following a conference that addressed detachment as an ethnographic category—in everything from meerkat observation to organ transplants—Mattei Candea and his colleagues received a message from philosopher Hallvard Lillehammer.20 Lillehammer had compiled a list, half in jest, of the 60 different iterations of detachment that conference participants invoked. Perusing the list, I felt a jolt of recognition. The efforts humanitarian actors make to preserve their civilian image now came to life on the page as detachment in various guises: avoidance; spatial separation; refusal to yield; accommodation; emotion.21 As I began to catalogue humanitarian practices according to these themes of detachment, it was impossible to escape their nature as relational and embodied practices—as modes of engagement rather than disengagement. 22 We might identify other entry points to thinking about the relational dynamics in play. The Science and Technology Studies literature on ‘cuts’ sheds light on the way in which divisions are enacted at the humanitarian-military interface. In Strathern’s approach, as described by Candea et al: ‘Every cut is revealed as also a relation; every relation is also a disengagement from something else.’23 In his articulation of relational ethnography, Desmond also empha Clifford Geertz, The Interpretation of Cultures (Basic Books, 1977), chs 1, 7. Emerson et al., Ethnographic Fieldnotes, 2. 15 Emerson et al., Ethnographic Fieldnotes, 2. 16 W.I. Thomas’ ‘Thomas theorem’ stipulates that if we believe something to be real, its consequences are real enough because we behave as though it does exist. See W.I. Thomas, ‘The Relation of Research to the Social Process,’ in W.I. Thomas on Social Organization and Social Personality, ed. Morris Janowitz (Chicago: University of Chicago Press, 1966/1931). 17 W.I. Thomas, W.I. Thomas on Social Organization and Social Personality. 18 Charles Horton Cooley, Human Nature and the Social Order (New York: Scribner, 1902). 19 William Swann and Robin Ely, ‘Battle of Wills: Self-Verification versus Behavioral Confirmation,’ Journal of Personality and Social Psychology 46 (1984). 20 Candea et al., ‘Cultivating Detachment.’ 21 Candea et al., ‘Introduction,’ 26–29. 22 Candea et al. use the term ‘embodied practice of detached relationality.’ See Candea et al., 2. 23 Endorsed in Candea et al., 25 (citing Marilyn Strathern, ‘Cutting the Network,’ The Journal of the Royal Anthropological Institute 2, no. 3 (1996)). 13 14

The emotions and perceptions of frontline actors   481 sizes that even the most fraught interactions are relational.24 He offers the example of the landlord and tenant, who are bound up with each other even as they antagonize each other or become estranged.25 Similarly, it can be said that international humanitarian actors are entangled with military actors—even as the former are avoiding, distancing, and building walls.26 Through such moves, humanitarian actors construct and police the borders of the humanitarian and military realms. It is this wall building that Desmond would have us focus on: he redirects attention away from ‘processed people’ and towards processes, away from bounded groups and towards the boundaries erected between them.27 Through the cultivation of detachment, humanitarian actors create their own in-group at the same time as they place military actors outside it. Group belonging both spurs, and stems from, the move to detach. As Nadler contends in her work on in-group commitments and law’s expressive functions,28 group life mediates the way in which actors interact with each other and with law. The impacts of law’s expressive functions are first felt at the level of group values and norms, and these in-group commitments then influence the attitudes and behaviour of individuals within the group.29 Individual and collective emotions also play a role.30 Individuals tend to feel more empathetic and pay more attention to the emotions of fellow in-group members,31 and the manner in which an individual experiences and expresses emotions will be influenced by the anticipated reaction of other members of the group.32 If there is a conflict between Nadler’s treatment of in-groups—which seems to presume a static collective—and Desmond’s invitation to avoid thinking in terms of bounded groups,33 I think the dynamism Desmond envisions should prevail. A final methodological conundrum that requires attention here is how to connect micro-level findings to a macro-level legal problem. Bridging the Micro and the Macro A noted criticism of micro-level approaches such as ethnographic methods is that they fail to engage with macro-level structures and norms. The question that arises here is whether it is possible to take a global outlook while at the same time employing an ethnographic empirical approach. I answer this question in the affirmative, drawing support from two growing scholarly fields: empirical approaches to international law and multi-sited ethnography. First, the field of empirical approaches to international law has gained prominence in recent years. As Baylis finds, legal scholars have traditionally tended to ask ‘whether’ questions—

Matthew Desmond, ‘Relational Ethnography,’ Theory and Society 43, no.5 (2014). Desmond, ‘Relational Ethnography.’ 26 Desmond, ‘Relational Ethnography,’ 554. 27 Desmond, ‘Relational Ethnography,’ 548. 28 Janice Nadler, ‘Expressive Law, Social Norms, and Social Groups,’ Law and Social Inquiry 42, no.1 (2017). 29 Nadler, ‘Expressive Law,’ 70–71. 30 Nadler considers this briefly but does not address the role of emotions detail. There is thus scope to further develop the relationship between emotions, law, and in-group commitments. 31 Nadler, ‘Expressive Law,’ 65 (citing Lisa Brown, Margaret Bradley, and Peter Lang, ‘Affective Reactions to Pictures of Ingroup and Outgroup Members,’ Biological Psychology 71, no.3 (2006)). 32 Nadler, ‘Expressive Law,’ 65. 33 Desmond, ‘Relational Ethnography.’ 24 25

482  Research handbook on law and emotion such as whether a state complies with a given rule—because they can actually be answered.34 This potentially obscures crucial dynamics: the behaviour of a given actor might align with international legal norms even though this actor has no knowledge of international law.35 Empirical methods, Baylis explains, enable us to ask also why, how or when.36 Through this approach, the researcher engages with people, their habits and the social groups they participate in, and subsequently applies her understanding of these dynamics to tackle a pressing international legal problem.37 This bridging is particularly important in international law because of its decentralized nature and the fact that it is implemented across cultures.38 Second, multi-sited ethnography offers a way of applying an ethnographic approach at the global level.39 As delineated by Marcus, multi-sited ethnography allows us to follow elements that are continuous in some way but spatially non-contiguous; one might follow people, things, metaphors, stories, or a particular dispute.40 To study multiple sites in this way may entail a move away from the traditional ethnographic paradigm, which is associated with time-intensive research carried out in a single location.41 This may upset expectations that ethnographic work will emphasize ‘deep hanging out’ in one place. Falzon counters this with the interesting argument that if one’s object of study is mobile or spatially dispersed, for the researcher to be mobile may be to engage in a form of participant observation.42 Space and time are made methodologically interchangeable here, so the need to stay in one place for a long time can be met by moving across space.43 Although Falzon’s argument is elegant, any multi-sited study is at risk of losing the core ethnographic focus on the observable everyday.44 In my own research, I view this as an acceptable trade-off. Methodological Limitations This discussion attends to four methodological challenges that may be of concern to socio-legal scholars and social scientists doing empirical work: falsifiability, generalizability, 34 Elena Baylis, ‘The Transformative Potential of Rigorous Empirical Research,’ American Society of International Law Annual Meeting 104 (March 2010). 35 Baylis, ‘The Transformative Potential of Rigorous Empirical Research.’ For a discussion on ‘convergence,’ see Janina Dill, Legitimate Targets? Social Construction, International Law and US Bombing (Cambridge University Press, 2015), 10. 36 Elena Baylis, ‘The Transformative Potential of Rigorous Empirical Research.’ 37 Elena Baylis, ‘The Transformative Potential of Rigorous Empirical Research.’ 38 Elena Baylis, ‘The Transformative Potential of Rigorous Empirical Research.’ 39 Sally Engle Merry, ‘Ethnography of the Global,’ Workshop at the Berkeley Centre for the Study of Law and Society (February 1, 2013). 40 George Marcus, ‘Ethnography in/of the World System: The Emergence of Multi-Sited Ethnography,’ Annual Review of Anthropology 24 (October 1995). 41 Ulf Hannerz, ‘Being There...and There…and There! Reflections on Multi-Site Ethnography,’ Ethnography 4, no. 2 (2003), 202. Referring to Clifford Geertz on ‘being there.’ See Clifford Geertz, Works and Lives (Stanford, CA: Stanford University Press, 1988), Ch. 1. 42 Mark-Anthony Falzon, ‘Introduction: Multi-Sited Ethnography: Theory, Praxis and Locality in Contemporary Research,’ in Multi-Sited Ethnography: Theory, Praxis and Locality in Contemporary Research, ed. Mark-Anthony Falzon (Burlington: Ashgate, 2009), 8. 43 Falzon, ‘Introduction: Multi-Sited Ethnography,’ 9. See also James Clifford, ‘Traveling Cultures,’ in Cultural Studies, eds, Lawrence Grossberg, Cary Nelson, Paula Teichler (New York: Routledge, 1992). 44 Marcus, ‘Ethnography in/of the World System,’ 8.

The emotions and perceptions of frontline actors   483 validity and reliability. First, the descriptive approach promulgated here potentially poses a problem for falsifiability.45 For this reason, as Gerring observes, description is sometimes treated pejoratively as ‘a euphemism for a failed, or not yet proven, causal inference’.46 This is unfortunate, as rich description might be more amenable to understanding a complex problem.47 Descriptive inference can also provide high levels of authenticity, richness, and trustworthiness in the research findings.48 While the intention is not to ignore potential causal relationships, this chapter (and the empirical field research that underpins it) keeps the causal aspect open-ended. Second, generalizability is often difficult to achieve in ethnographic work, and care must be taken in making claims about a larger class of cases.49 The approach outlined here aims for a modest level of typicality and transferability. Third, in order to strengthen the validity of this research, the researcher can employ data and method triangulation.50 Data triangulation entails gathering information from different individual or group sources, in different locations, and at different times. Method triangulation is achieved by pursuing different methods within the same qualitative study; one might combine participant observation, interviews and group discussions for example. Finally, there is the question of reliability. To enhance the reliability and trustworthiness of the research findings, it is important to apply a well-defined and vigorous coding frame involving precise coding rules.51 Having outlined the kinds of tools and ideas that are needed for an investigation at the intersection of emotions and IHL, the next section delves into the fieldwork findings.

LAW AND EMOTIONS AT CIVIL-MILITARY TRAININGS This part of the discussion explores the way in which the emotions and perceptions of individuals belonging to one in-group (military actors) towards individuals belonging to another in-group (humanitarian actors) shape the implementation of IHL rules. Overview of Civil-Military Guidelines The three civil-military trainings examined here share the goal of helping international military and peacekeeping actors to navigate their relationships with civilians in general, and humanitarian actors in particular. When international military actors operate in contemporary military and peacekeeping missions, they are often given legal mandates that require them to facilitate the work of international humanitarian actors such as the ICRC, UN humanitarian agencies and humanitarian NGOs. In each of the training spaces, trainers explain these mandates and disseminate civil-military guidelines that govern the conduct of international actors in armed conflict. These guidelines contain operational guidance drawn from IHL and other On pursuit of a causal hypothesis, see the discussion of A Grounded Theory Approach, above. John Gerring, ‘‘Mere’ Description,’ British Journal of Political Science 42, no. 4 (October 2012): 721. 47 Gerring, ‘‘Mere’ Description,’ 734. 48 See also Anne Orford, ‘In Praise of Description,’ Leiden Journal of International Law 25 (2012). 49 Gerring, ‘Mere Description,’ 726. 50 Uwe Flick, An Introduction to Qualitative Research (London: SAGE, 2009), 136, 443–53. 51 Lee Epstein and Gary King, ‘The Rules of Inference,’ University of Chicago Law Review 69, no.1 (Winter 2002): 85. 45 46

484  Research handbook on law and emotion bodies of law, and the guidelines, themselves, are typically regarded as a form of non-binding or ‘soft’ law.52 The main guidelines cited at the trainings are: the ‘Oslo Guidelines’ on the use of Foreign Military and Civil Defence Assets in Disaster Relief;53 the ‘MCDA Guidelines’ on the use of Military and Civil Defence Assets to Support United Nations Humanitarian Activities in Complex Emergencies;54 the Inter-Agency Standing Committee (IASC) Reference Paper on Civil–Military Relationship in Complex Emergencies;55 and the IASC Non-Binding Guidelines on the Use of Military or Armed Escorts for Humanitarian Convoys.56 While civil-military guidelines have traditionally been developed with respect to international military interventions (e.g., the International Security Assistance Force in Afghanistan), they are increasingly generated in connection with UN peacekeeping missions.57 This context-specific guidance engages directly with the global guidelines cited above, often identifying the most relevant aspects of the international guidelines for a particular situation.58 In accordance with their legal mandates and these civil-military guidelines, military forces might be expected to provide ‘area security’, offer logistical support and protection for humanitarian actors, and assist in the safe delivery of humanitarian services and goods. These forms of support are designed to enable humanitarian actors to safely carry out their work, but the contact thereby engendered may undermine humanitarian actors’ civilian image and their reputation as independent actors. On any given day in a conflict zone, humanitarian actors navigate these tensions in different ways. Some evade military actors completely, others foster contact when absolutely necessary but otherwise keep their distance, and some others rely heavily on military actors. In the discussion that follows, I treat all of these practices as forms of detachment and, more generally, as modes of engagement. As is shown, when international military actors look upon humanitarian actors as a collective, they have the impression that humanitarians are at once excluding them and the same time leaning on them for support. Furthermore, when individual humanitarian actors make entreaties for separation or ask for assistance, military actors do not interpret these requests as legal claims grounded in international law or civil-military guidance documents. Instead, military actors believe that humanitarian actors are foisting personal demands upon them.

See, e.g., Gabriella Venturini, ‘International Disaster Response Law in Relation to Other Branches of International Law,’ in International Disaster Response Law, eds, Andrea de Guttry, Marco Gestri and Gabritella Venturini (The Hague: Asser Press, 2012), 53 (treating the IASC guidance as soft law). 53 UN OCHA, ‘Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief,’ November 2007 (‘Oslo Guidelines’). 54 UN OCHA, ‘Guidelines on the Use of Military and Civil Defense Assets to Support United Nations Humanitarian Activities in Complex Emergencies,’ March 2003 (‘MCDA Guidelines’). 55 Inter-Agency Standing Committee, ‘Civil–Military Relationship in Complex Emergency: A Reference Paper,’ 2004 (‘IASC Reference Paper’). 56 Inter-Agency Standing Committee, ‘Non-Binding Guidelines on the Use of Armed Escorts for Humanitarian Convoys,’ February 2013 (‘IASC Guidelines’). 57 These have been developed in contexts including Haiti, the DRC, Sudan and South Sudan. See Victoria Metcalfe and Michelle Berg, ‘Country-Specific Civil–Military Coordination Guidelines,’ Humanitarian Policy Group Working Paper (August 2012). 58 Metcalfe and Berg, 1. 52

The emotions and perceptions of frontline actors   485 Empirical Findings: Direct Participation in Hostility To organize the relational dynamics of interest, select modalities of detachment will now be tied to a pattern of behaviour by humanitarian actors.59 Each mode of detachment is accompanied by a discussion of the way in which international military actors experience these moves to detach. Avoidance: seeing without acting, forgetting, invisibility/absence As Pugh has noted, military actors generally hold the position of power in the humanitarian-military relationship.60 When humanitarian actors enforce boundaries and avoid soldiers, they may be seen to disturb this arrangement. International military actors have strong reactions to the efforts that humanitarian actors make to avoid associating with them in the operational context. One SWEDINT trainee laments that there is simply no relationship at all between humanitarian actors and military actors, because the former decline to meet. A CAMPO trainee offers that he has no problem with humanitarian actors seeking to avoid association in the field, so long as it is for reasons he can understand. If it is simply done out of ideological motivations, however, ‘then I am angry’. One military trainer at NATO proposes that humanitarian actors are driven away not by loathing so much as fear. He finds that humanitarians are ‘often instinctually scared of military and rank and uniform’. A military trainee at NATO corroborates this: ‘at tactical level, NGOs look afraid to talk to you’. Another NATO trainer insinuates that humanitarian actors instrumentalize their ethical commitments as a way of dissociating from soldiers. He asserts, ‘What they will put in your face is the humanitarian principles.’ Spatial separation: distancing, closing off, turning away, division/separation, exclusion/ expulsion, the untying of a knot A military trainer at CAMPO appreciates that humanitarian actors would keep away from military actors in major conflict areas with clear frontlines. He struggles, however, when humanitarians try to adhere to ‘magical frontlines’ in less fraught settings. During the delivery of a group presentation at CAMPO, a police trainee mimics a military actor, performing robotic and machinelike moves with his hands. This performance draws knowing titters from around the room, but the laughter belies a deep-seated resentment. As a number of military actors share in subsequent conversation, they are distressed that others view them as mindless perpetrators of violence. A CAMPO trainer suspects that the operating humanitarian mindset is as follows: ‘I never talk to you because you’re a killing machine.’ When physical distancing is interpreted as coldness in this way, military actors tend to downplay—or overlook entirely— the possibility that humanitarian actors might be trying to preserve their civilian image so as to draw on IHL’s protections. Some trainees at SWEDINT insist that if the humanitarian actors are concerned about their own safety, then proximity to military actors will surely bolster it rather than undermine it. One military trainee proposes, ‘The situation has changed, this era

59 These are composite depictions, compiled from empirical fieldwork on the actual practices of humanitarian actors. For a more detailed treatment see Sutton, ‘The Humanitarian Actor.’ 60 Michael Pugh, ‘Civil–Military Relations in Peace Support Operations: Hegemony or Emancipation?,’ Overseas Development Institute Seminar on Aid and Politics, February 2001, 5.

486  Research handbook on law and emotion of terrorism. Hospitals and NGOs themselves can be targeted. So they need to talk to us, meet with us.’ Refusal to yield: untouchability, refusal to be coopted, autonomy/freedom A military trainee at NATO has the impression that humanitarians simply think that ‘as military we are going to harass them, for information, and nothing else’. Many military actors who participate in the civil-military trainings have trouble understanding this attitude: they believe that the physical protection they provide to humanitarian actors outweighs any risks engendered through an activity like information sharing. One military trainee at SWEDINT, however, sympathizes with humanitarian actors’ hesitation to share. He suggests that asking a humanitarian actor for information about ‘bad guys’ is like ‘asking a journalist to reveal their source for a story’. If humanitarian actors provide military forces with information about a target and this target is subsequently hit, ‘The rebels will know where it came from, and this puts them at risk.’ One SWEDINT trainee concedes this point, but counters that humanitarian actors could at least engage in ‘trusted information sharing’. They could, for example, pass along their assessments of the needs of local populations. Another SWEDINT trainee complains: ‘We never know where the civilians are going, it could be a rebel area.’ His colleague attributes poor communication by humanitarian actors to a lack of appropriate training, but also suspects such training might be for naught simply because ‘some don’t care’. In other words, the reticence of humanitarian actors stems from their distaste for military actors. One SWEDINT trainee ventures that NGOs are simply in conflict zones on holiday. He is suspicious of humanitarian actors who ‘want freedom, no responsibility, and not to be like military or diplomatic [actors]’. Another trainee calls for humanitarian actors to prove that their operations are effective—that they can ‘deliver the goods’. At the NATO CIMIC training, a military trainer voices incredulity at the diversity of humanitarian organizations. There are ‘millions of them. We only know the hugest ones…’ A NATO trainee suggests that the less-organized NGOs put people in danger and risk injury to their staff. At the CAMPO training, a military trainer says that the ICRC is the only humanitarian actor ‘I really respect. The rest, it’s a political thing.’ She describes the individuals who work for small, little-known NGOs as ‘funny figures’ and ‘strange characters’. By sending poorly prepared young people to work in dangerous conflicts, she argues, ‘NGOs can cause danger…these guys are idealistic, emotional. They don’t grasp the complexity, politically, of the place they’re going to.’ This pejorative use of the term ‘emotional’ to describe humanitarian compassion is interesting, especially as the military speaker becomes quite impassioned herself when discussing humanitarian actors. Another CAMPO trainer proposes that larger organizations are more professional, but ‘You also have the exotic guys on the side, who can be a problem.’ His colleague highlights the stereotype of small organizations, who lack clarity of mission and simply carry out whichever activities they can attract funding for. Humanitarian actors who engage in human rights work are deemed especially problematic. One military trainer at CAMPO suggests that this kind of activity leads humanitarians to ‘burn their fingers’. A police trainee confesses that she is generally wary of humanitarian actors, as there is ‘always a suspicion that maybe they are working for someone else’. Smirking at this, another trainee questions whether one can trust that humanitarian actors are who they appear to be. She submits with a raised eyebrow, ‘Maybe they are not really humanitarian.’

The emotions and perceptions of frontline actors   487 Accommodation: mutual accommodation/cooperation, balancing, sacrifice/giving up something It is not only a chilly reception from humanitarians that exasperates international military actors. They also struggle with (what appears to be) erratic behavior, waffling, or indecision on the part of humanitarian actors. Military actors come away with the overall impression that they are being given the cold shoulder and yet also expected to lend a hand when necessary. The legal obligations of soldiers to facilitate the work of humanitarian actors are notably absent from the commentary that follows here. A military trainer at CAMPO shares his frustrations about interacting with humanitarian NGOs while serving as a peacekeeper in Haiti. After painstakingly arranging a military convoy for humanitarian NGOs—who had initially rejected the offer but changed their minds once there was no safe alternative—the NGOs fought over how much distance to have between the cars. He was confounded by this reluctance to be seen together, as he thought that by joining the convoy the humanitarians were signalling an agreement to associate. One SWEDINT trainee describes the relationship with humanitarian actors in conflict zones as ‘non-symbiotic’ and even ‘parasitic’; this generates ‘frustration and dislike from uniformed personnel’. A fellow trainee elaborates: ‘They want to stay far away from us when it suits them, but they use us when they want [something].’ Growing palpably irritated, this trainee protests, ‘How am I supposed to take you seriously when you reject me and don’t want to talk to me, but ask for help a week later?’ 61 Another military trainee at SWEDINT describes a rather convoluted state of affairs: humanitarian actors ‘don’t always run away from us, but they sometimes don’t want to associate with us, but also sometimes they need us’. His colleague depicts a love and hate dynamic: ‘When humanitarians have armed men around them, they love them because they need their help. But when they don’t need them in this way, they hate them.’ This reverberates at the CAMPO training in Germany, where a military trainer addresses an imaginary humanitarian actor with disdain: ‘First you don’t like us, but then you want us when you need us later.’ Raising the issue of professionalism again, this trainer says that in his experience this dynamic is always more challenging with smaller humanitarian organizations. Another CAMPO trainer chimes in, saying of international military forces, ‘Shit hits the fan, and last minute, NGOs do want them.’ In these accounts, the humanitarian actor is depicted as a mercurial ex-girlfriend who loves an armed man when she needs him, but is prepared to discard him until, inevitably, trouble arises again. The unpredictability of humanitarian actors is, for international military actors, ultimately predictable. Emotional: disgust/repugnance, fear, irony, equanimity As noted, military actors sense that humanitarians view them as killing machines that are programmed to follow orders and employ violent means. The possibility that humanitarian actors might deem themselves superior to international military actors is especially enervating for the latter. These projections—which, as I discuss elsewhere have some truth to them62—enable resentment and hostility towards international humanitarian actors to fester. And so, we find a CAMPO trainee bitterly mimicking a humanitarian actor: ‘We don’t want to mingle with This is the same individual who likens humanitarian NGOs to an ex-girlfriend who ‘only calls when she wants to cuddle’. 62 See Sutton, ‘A Hidden Fault-Line.’ 61

488  Research handbook on law and emotion you, you’re military….You’re the killer and I’m the peace angel.’ While they express concerns that humanitarian actors are motivated by an anti-military bias, it is equally clear that military actors bring their own prejudgments to their encounters with humanitarian actors.63 During a CAMPO training session, a trainer induces laughter when he introduces a new use for the acronym C.I.A: ‘Confused International Agencies.’ Later, over dinner, this same trainer softens his view. He confesses, ‘I find I miss the messy humanitarians, who care about people.’ His colleague dismisses this as overly sentimental. ‘You don’t go somewhere as a professional and try to save [people]. You have to be cool-headed and rational. Otherwise you will cause trouble.’ This denigration of the effort to ‘save lives’ is not consistently espoused at the civil-military trainings. At other junctures, CAMPO trainees are reminded that humanitarian actors are not the only ones in conflict zones who save people; military participants in the CAMPO and NATO trainings also express an earnest desire to help. A perceptions clash materializes here, recalling Swann and Ely’s concept of a battle of wills:64 military actors have the impression that humanitarian actors see them as violent killers, while military actors self-conceptualize as actors who are striving to save or protect war-affected populations. A few more explicit remarks on the gender dimension of humanitarian-military encounters are in order. This chapter proposes that international military actors treat the humanitarian actor figure as an ex-girlfriend, and the discussion has shown that the humanitarian actor is often feminized in military accounts. In practice, however, the gender dynamics are not so straightforward as to pit military masculinity against humanitarian femininity. Broadening out from a strict focus on humanitarian-military encounters, one way in which this masculinized-feminized dichotomy breaks down is in the case of civilian members of UN peacekeeping missions. These individuals are not humanitarian actors (though they share their civilian status), nor are they military actors (though they are members of the same missions). An exchange between two civilian trainees at the CAMPO training is illuminating. One trainee speculates about how humanitarian actors perceive her as compared with her fellow trainee: the speaker is a female civilian member of the UN peacekeeping mission in the Democratic Republic of Congo (DRC), and her colleague is a male UN police officer in the same mission. Drawing attention to issues of gender and visual signifiers, the female trainee speculates: ‘Humanitarians probably see your police uniform. You are MONUSCO and you have a weapon and you are a man.’ She remarks, however, that ‘You see masculinity in humanitarian aid too.’ She recounts her impressions of the humanitarian actors who would come to work in the DRC, living several hours away from the frontline in a nice apartment with a pool. ‘These guys, these cowboys, they come and go.’ Conjuring up an image of these humanitarian actors, she puffs herself up and pulls back her shoulders. ‘They are the hero of Oxfam. ‘Oh,’ we say, ‘Another hero is coming.’ He thinks he is the most interesting man in Goma…Sometimes I see the cowboys, I just smile.’ This commentary disturbs the depiction of the humanitarian actor as a petulant ex-girlfriend, dispelling the notion that the humanitarian-military encounter could be cleanly mapped onto a female-male binary. Accounts such as this one highlight the importance of scrutinizing humanitarian-military encounters—and civil-military relations more broadly—through a gendered lens.65 See subsection ‘Refusal to yield’. Swann and Ely, ‘Battle of Wills.’ 65 To date there has been insufficient scholarly attention devoted to gender in the (historical) study of humanitarian practice. See Esther Moller, Johannes Paulmann and Katharina Stornig, ‘Call for 63 64

The emotions and perceptions of frontline actors   489

CONCLUSION This chapter has addressed the fraught relationship of two sets of frontline actors, exploring how international military actors feel about and perceive the efforts that international humanitarian actors make to detach in the operational context. As was shown, military actors feel personally rejected by humanitarian actors and detect an anti-military bias at work; the former deploy humour as a camouflage for deeper feelings of resentment and hostility. A well-informed soldier will be aware that he is expected to facilitate the work of humanitarian actors, and he will know that civil-military guidance documents govern the modalities of support that can be provided. However, he may have recently had an experience where this same humanitarian actor refused to meet with him in public. This perceived slight could even be several degrees removed: perhaps the soldier is aware of a situation where some other NGO treated some other military actor in this way, or he simply has a general sense that humanitarian actors as a collective look down on those of his ilk. And so, we find the soldier remonstrating, dragging his feet, or grumbling afterwards about having had to respond to a call from humanitarian actors. While they may resent the fact that humanitarian actors only call when they want to cuddle, it often seems that military actors are in need of a hug. The central claim advanced in this discussion is that the emotions and perceptual judgments of frontline actors must be part of the story of IHL. By taking seriously the feelings and perceptions of individual actors—and treating those who are expected enact law on a daily basis as people—the chapter articulates the beginnings of a theory of emotions in IHL.

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Proposals for Conference on ‘Gender and Humanitarianism: (Dis) Empowering Women and Men in the Twentieth Century’,’ 2017, accessed on July 30, 2019, http://​www​.ieg​-mainz​.de/​media/​public/​Call​ %20for​%20Papers/​CfP​_Gender​_and​_Humanitarianism​_2017​.pdf. On gender and civil-military relations see: Laura Sjoberg and Sandra Via, Gender, War, and Militarism: Feminist Perspectives (Praeger Security International, 2010).

490  Research handbook on law and emotion Desmond, Matthew. ‘Relational Ethnography.’ Theory and Society 43, no. 5 (2014): 547–79. Dill, Janina. Legitimate Targets? Social Construction, International Law and US Bombing. Cambridge University Press, 2015. Emerson, Robert, Rachel Fretz, and Linda Shaw. Writing Ethnographic Fieldnotes (2nd ed.) London: University of Chicago Press, 2011/1995. Epstein, Lee and Gary King. ‘The Rules of Inference.’ University of Chicago Law Review 69, no.1 (Winter 2002): 1–133. Falzon, Mark-Anthony. ‘Introduction: Multi-Sited Ethnography: Theory, Praxis and Locality in Contemporary Research.’ In Multi-Sited Ethnography: Theory, Praxis and Locality in Contemporary Research, edited by Mark-Anthony Falzon, 1–24. Burlington: Ashgate, 2009. Flick, Uwe. An Introduction to Qualitative Research. London: SAGE, 2009. Geertz, Clifford. The Interpretation of Cultures. New York: Basic Books, 1977. Geertz, Clifford. Works and Lives. Stanford: Stanford University Press, 1988. Gerring, John. ‘‘Mere’ Description.’ British Journal of Political Science 42, no. 4 (October 2012): 721–46. Hannerz, Ulf. ‘Being There...and There…and There! Reflections on Multi-Site Ethnography.’ Ethnography 4, no. 2 (2003): 201–16. Inter-Agency Standing Committee. ‘Civil–Military Relationship in Complex Emergency: A Reference Paper.’ (2004). Inter-Agency Standing Committee. ‘Non-Binding Guidelines on the Use of Armed Escorts for Humanitarian Convoys.’ (February 2013). Macionis, John and Linda Gerber. Sociology (7th ed.) Toronto: Pearson, 2011. Malinowski, Bronislaw. Argonauts of the Western Pacific: An Account of Native Enterprise and Adventure in the Archipelagoes of Melanesian New Guinea. London: Routledge, 1922/1984. Marcus, George. ‘Ethnography in/of the World System: The Emergence of Multi-Sited Ethnography.’ Annual Review of Anthropology 24 (October 1995): 95–117. Merry, Sally Engle. ‘Ethnography of the Global.’ Workshop at the Berkeley Centre for the Study of Law and Society (February 1, 2013). Metcalfe, Victoria and Michelle Berg. ‘Country-Specific Civil–Military Coordination Guidelines.’ Humanitarian Policy Group Working Paper (August 2012). Moller, Esther, Johannes Paulmann and Katharina Stornig. ‘Call for Proposals for Conference on ‘Gender and Humanitarianism: (Dis) Empowering Women and Men in the Twentieth Century.’ (2017). http://​ www​.ieg​-mainz​.de/​media/​public/​Call​%20for​%20Papers/​CfP​_Gender​_and​_Humanitarianism​_2017​ .pdf. Munoz-Rojas, Daniel and Jean-Jacques Fresard. ‘The Roots of Behaviour in War: Understanding and Preventing IHL Violations.’ International Review of the Red Cross 86, no. 853 (2004): 189–206. Nadler, Janice. ‘Expressive Law, Social Norms, and Social Groups.’ Law and Social Inquiry 42, no.1 (2017): 60–75. Orford, Anne. ‘In Praise of Description.’ Leiden Journal of International Law 25 (2012): 609–25. Pugh, Michael. ‘Civil–Military Relations in Peace Support Operations: Hegemony or Emancipation?.’ Overseas Development Institute Seminar on Aid and Politics, February 2001. Riles, Annelise. ‘Afterword: A Method More than a Subject.’ In Exploring the ‘Legal’ in Socio-Legal Studies, edited by David Cowan and Daniel Wincott, 257–64. London: Palgrave, 2016. Riles, Annelise. ‘Anthropology, Human Rights and Legal Knowledge: Culture in the Iron Cage.’ American Anthropologist 108 (2008): 52–65. Sjoberg, Laura and Sandra Via. Gender, War, and Militarism: Feminist Perspectives. Praeger Security International, 2010. Stephens, Dale. ‘Behaviour in War: The Place of Law, Moral Inquiry and Self-Identity.’ International Review of the Red Cross 96, no. 895/896 (2014): 751–73. Strathern, Marilyn. ‘Cutting the Network.’ The Journal of the Royal Anthropological Institute 2, no. 3 (1996): 517–35. Sutton, Rebecca. ‘A Hidden Fault-Line: How International Actors Engage with IHL’s Principle of Distinction.’ In International Humanitarian Law and Justice: Historical and Sociological Perspectives, edited by Mats Deland, Mark Klamberg and Pal Wrange, 85–99. London: Routledge, 2018.

The emotions and perceptions of frontline actors   491 Sutton, Rebecca. ‘The Humanitarian Actor as ‘Civilian Plus’: The Circulation of the Idea of Distinction in International Law.’ PhD diss., London School of Economics, 2018. Swann, William, and Robin Ely. ‘Battle of Wills: Self-Verification versus Behavioral Confirmation.’ Journal of Personality and Social Psychology 46 (1984): 1287–302. Thomas, William I. ‘The Relation of Research to the Social Process.’ In W.I. Thomas on Social Organization and Social Personality, edited by Morris Janowitz, 289–305. Chicago: University of Chicago Press, 1966/1931. UN OCHA. ‘Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief.’ November 2007. UN OCHA. ‘Guidelines on the Use of Military and Civil Defense Assets to Support United Nations Humanitarian Activities in Complex Emergencies.’ March 2003. https://​www​.refworld​.org/​pdfid/​ 3f13f73b4​.pdf. UN OCHA ‘Non-Binding Guidelines on the Use of Armed Escorts for Humanitarian Convoys.’ (February 2013). Venturini, Gabriella. ‘International Disaster Response Law in Relation to Other Branches of International Law.’ In International Disaster Response Law, edited by Andrea de Guttry, Marco Gestri and Gabritella Venturini, 45–64. The Hague: Asser Press, 2012. Verlinden, Nele. ‘To Feel or Not to Feel: Emotions and International Humanitarian Law.’ In International Humanitarian Law and Justice: Historical and Sociological Perspectives, edited by Mats Deland, Mark Klamberg and Pal Wrange, 134–45. London: Routledge, 2018.

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

“A favourite nineteenth-century way of getting a man to buy a chair was to call it sincere...” Randall Jarrell (reviewing Russell Lynes’s The Tastemakers, “Very Graceful Are the Uses of Culture,” Harpers (1954)).

There is much critical potential in bringing together the philosophy of emotion and the study of international law.1 Narratives about legitimate political and legal authority have tended to either assume that it is possible to extricate emotions from political judgment, or to rest upon uncomplicated (and wholly demystified) assumptions about the legibility of emotions over time and place. David Hume in Book III of A Treatise of Human Nature declared there “is no such passion in human minds, as the love of mankind.”2 For Hume, sympathy was stirred by particularities, and proximity to pain. Such an abstract, and general category as “mankind” lacked firm associations and was therefore impossible to grip. Like Hume, philosophers interested in emotion have regularly grappled with questions concerning an emotion’s reach and range, and so too, our ability to recognize the emotions of others (or even those belonging to the self), including the emotions of others outside one’s own social and political spheres. While some psychologists and biologists have suggested a certain universal structure for at least a few “core” emotions,3 many, if not all, emotions contain evaluative judgments,4 and, as such, they strike as subjectively-involved and image-laden “engagements with the world” (to quote Robert Solomon’s memorable phrase).5 Where evaluative judgments are embedded within the structure of an emotion, we can expect it to be scripted, at least to an extent, by 1 An early version of this paper was first presented at a panel on “Emotions and International Law” organized Rebecca Sutton and Anne Saab at the 2018 Law and Society Association Annual Meeting in Washington, D.C. The panel represented the first meeting of the Law and Emotions CRN and the International Law and Politics CRN. An unforgettable set of papers were delivered by my co-panelists Rebecca Sutton, Anne Saab, Irene Claeys, Ioannis Kalpouzos, and Itamar Mann on the subject. I thank them for this time together. 2 David Hume, Stuart D. Warner, and Donald W. Livingston, Political Writings (Indianapolis: Hackett Pub. Co, 1994). 3 Charles Darwin and Paul Ekman, The Expression of the Emotions in Man and Animals, 3rd ed (London: HarperCollins, 1998); Paul Ekman and Richard J. Davidson, eds., The Nature of Emotion: Fundamental Questions, Series in Affective Science (New York: Oxford University Press, 1994). 4 Martha Craven Nussbaum, Upheavals of Thought: The Intelligence of Emotions, 8th pr (Cambridge: Cambridge Univ. Press, 2008); Ronald De Sousa, The Rationality of Emotion, Bradford Books (Cambridge, Mass.: MIT Press, 1997); Robert C. Solomon, Not Passion’s Slave: Emotions and Choice (Oxford ; New York: Oxford University Press, 2003); Jenefer Robinson, Deeper than Reason: Emotion and Its Role in Literature, Music, and Art (Oxford: New York: Oxford University Press, 2005). 5 Robert C. Solomon, The Passions: Emotions and the Meaning of Life (Indianapolis: Hackett Pub. Co, 1993).

492

Images of reach, range, and recognition  493 time and place, which raises, in turn, questions of all sorts pertaining to reach, range, and recognition. Talk of emotions tends to remind us about bodies (and the persons, lands, and objects with which they are consciously and subconsciously attuned), and, at times, as Hume has just done, the absurdity, or strangeness at the very least, of highly abstract concepts that appear to do work in the field of international law. The aim of this chapter is to begin mapping a series of images regarding distance and range within the analytical philosophical literature on emotion to see what questions they might press on the theories and practices of international law, and on the authority of international law. To begin in broad register, we might say that the study of international or transnational law brings to the fore, amongst other things, questions of politics, power, distribution, contingency, treaties, ownership, and jurisdiction.6 Emotions bring to the study of law questions of perception, consciousness, intensity, truthfulness, bodies, precarity, relations, desires, and objects.7 Both raise questions of time, place, boundaries, and political authority. Pervasive in both disciplines are difficult questions concerning the identification and definition of the object of study (and the distance or time horizon with which to best access or understand that object),8 which, in turn, raise questions about one’s research methods and aims. There are several, but at least four, scripts that provide different sorts of reasons for studying emotions in the territories of international law. These are sketched below, though strict boundaries between them are not intended. In many cases, metaphysical, epistemological, and political commitments undergird and bridge these pieces in various ways.

FOUR SCRIPTS FOR STUDYING EMOTIONS IN INTERNATIONAL LAW Law on the Ground The study of emotions stands to offer a deeper sense of the impact of international law which is so often experienced (or borne) far from the international courts, treaties, or governance bodies

James Crawford, Martti Koskenniemi, and Surabi Ranganathan, The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2015); James Crawford, Brownlie’s Principles of Public International Law (New York, NY: Oxford University Press, 2019); Jochen Von Bernstorff, The Battle for International Law: South-North Perspectives on the Decolonization Era (New York, NY: Oxford University Press, 2019); Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Milton Park, Abingdon, Oxon; New York, NY: Routledge, 2012). 7 Emily Kidd White, “On Emotions and the Politics of Attention in Judicial Reasoning,” in Virtue, Emotion and Imagination in Legal Reasoning, eds, Amalia Amaya and Maksymilian Del Mar (London; UK: Hart Publishing, 2020); Emily Kidd White, Emotions in Legal Reasoning, Oxford Legal Philosophy (Oxford University Press, forthcoming); Susan A. Bandes, ed., The Passions of Law, Critical America (New York: New York University Press, 1999); John Deigh, Emotions, Values, and the Law (Oxford; New York: Oxford University Press, 2008); Amalia Amaya and Maksymilian Del Mar, eds, Virtue, Emotion, and Imagination in Law and Legal Reasoning (Chicago: Hart Publishing, 2020); Martha Craven Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton, N.J: Princeton University Press, 2004). 8 Peter Goldie, “Narrative Thinking, Emotion, and Planning,” The Journal of Aesthetics and Art Criticism 67, no. 1 (2009): 97(10). 6

494  Research handbook on law and emotion that establish the legal regime under examination.9 Studying the emotions that appear integral, epiphenomenal, aberrant, or even disruptive to the human practices that constitute international law can assist in developing a more critical understandings of them and, so too, the ways in which they work to support, or undermine, the principles, and norms of application they profess.10 As illustrated by Rebecca Sutton’s work in this volume examining emotions in the context of international humanitarian law, the study of emotions can provide highly-detailed and layered portraits of legal practice.11 When studying how legal officials are applying law at the international or transnational level, or, conversely, how international law is implemented on the local level,12 we might, for example, think it is important to know something about the impact of emotions on perceptions and bias,13 the possibilities and politics of empathy,14 the disease of conceit, the effects of enmity and anger on legal reasoning,15 and/or the consequences of apathy or emotional burn-out on law-making or adjudicatory efforts.16 In the field of international criminal law, for example, we might think it important to query oversimplified narratives linking trauma and truth-telling to emotional catharsis.17 The study of emotions broadens, even complicates, our understanding of legal actors, 18 bringing to light fundamental questions from the role of emotions in legal reasoning, to the relationship between agents and structure, and right down into philosophical conceptions of the mind. Conceptualizations and explanations about practical activity, motivation, and intention all implicate emotion. Scholars interested in the impact of an international or transnational legal regime (or in political change, historical contingency, and/or progress and decline narratives) might also wish to study emotions for their motivational aspects (María Pía Lara, for example, argues that aesthetic performances such as narratives and protests are more successful than reasoned dia-

9 See e.g. Pankaj Mishra, Age of Anger: A History of the Present, First American edition (New York: Farrar, Straus and Giroux, 2017); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011), doi:​10​.1017/​CBO9781139048200; José E. Alvarez, The Impact of International Organizations on International Law (Leiden; Boston: Brill/Nijhoff, 2017). 10 Terry A. Maroney, “Law and Emotion: A Proposed Taxonomy of an Emerging Field.,” Law and Human Behavior 30, no. 2 (2006): 119–42, doi:​10​.1007/​s10979​-006​-9029​-9, reprinted as Chapter 32 in this volume. 11 See e.g. Rebecca Sutton’s chapter in this volume, “How the emotions and perceptual judgments of frontline actors shape the practice of International Humanitarian Law”. 12 See e.g. Megiddo, Tamar, “The Domestic Standing of International Law: A Non-State Account,” Columbia Journal of Transnational Law 57 (2019): 494. 13 Susan A. Bandes, “Remorse and Criminal Justice,” Emotion Review 8, no. 1 (January 2016): 14–19, doi:​10​.1177/​1754073915601222. 14 See e.g. Lawrence Blum, “‘Black Lives Matter’: Moral Frames for Understanding the Police Killings of Black Males,” in Virtue, Emotion and Imagination in Law and Legal Reasoning, eds, Amalia Amaya and Maksymilian Del Mar (Hart Publishing, 2020), doi:​10​.5040/​9781509925162. 15 Terry Maroney, “Angry Judges,” Vanderbilt Law Review 65, no. 5 (2012): 1205–86. 16 See e.g. Stina Bergman Blix et al., “Introducing an Interdisciplinary Frontier to Judging, Emotion and Emotion Work,” Oñati Socio-Legal Series 9, no. 5 (2019): 548–56, doi:​10​.35295/​osls​.iisl/​0000​-0000​ -0000​-1095. 17 See e.g. Sara Kendall and Sarah Nouwen, “Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood”, 76 Law and Contemporary Problems (2014), 235–62. 18 See e.g. Richard Ned Lebow, A Cultural Theory of International Relations, 2009 (Cambridge: Cambridge University Press, 2009).

Images of reach, range, and recognition  495 logue in inspiring new and broader conceptions of social justice),19 for the ways in which they interact with our political attention,20 and the ways in which they can pull one’s eye toward (or obscure altogether)21 the lived impacts of a legal regime.22 Some emotions precipitate or compound an inability to pay quality attention to other persons, while other emotions play indispensable roles in fixing and holding attention on a subject.23 We might query whether there are emotions which spur on law-making processes at the international level (hope, rage, horror, oblivion)? Theories of emotion also seem highly pertinent to biographical work in the field of international law where the aim is often to sketch something like a subjective portrait of a pivotal figure, revealing perhaps something new about the relationship between personality, historical context, action, intention and consequence. For such work, a theory of mind,24 and emotion is always at play, however buried, and it invariably includes ideas and claims about how conscious one might be of their own emotions, and/or those of others.25 The study of emotion seems similarly relevant for research efforts that examine the impact of certain immaterial forces such as the zeitgeist, or the mood of an age, or era (political crises for example often seem to suggest something of an emotional high-pitch, and/or an everything-is-illuminated visceral sense of certain stakes, which might be revealing, illusory, or entirely obscuring of other less visceral, or attention-grabbing, instances of structural political violence, environmental degradation, etc.). Legal Reasoning/Legal Interpretation Research into the forms and practices of legal reasoning and interpretation are similarly enriched by the study of emotion.26 It is evident, for example, that legal texts sometimes

19 María Pía Lara, Moral Textures: Feminist Narratives in the Public Sphere (Berkeley, Calif.: University of California Press, 1998). 20 White, “On Emotions and the Politics of Attention in Judicial Reasoning.” 21 See e.g. Andrea Bianchi and Anne Saab, “Fear and International Law-Making: An Exploratory Inquiry,” Leiden Journal of International Law 32, no. 3 (September 2019): 351–65, doi:​10​.1017/​ S0922156519000177. 22 We might here think of the international law projects that aim at generating data-based visualizations of human rights violations. See, e.g. the “Data Visualization for Human Rights Project” at the New York University School of Law Center for Human Rights and Global Justice. Online at https://​chrgj​.org/​ focus​-areas/​data​-visualization​-for​-human​-rights/​, accessed March 1 2021. 23 White, “On Emotions and the Politics of Attention in Judicial Reasoning.” 24 See e.g. G. E. M. Anscombe, Intention, 2nd ed (Cambridge, Mass: Harvard University Press, 2000); David John Chalmers, The Conscious Mind: In Search of a Fundamental Theory, 1. issued as an Oxford University Press paperback, Philosophy of Mind Series (New York: Oxford Univ. Press, 1997). 25 See e.g. Maria Aristodemou, Law and Psychoanalysis: Taking the Unconscious Seriously (Abingdon, Oxon ; New York, NY: Routledge, 2014); Maria Aristodemou, “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours,” European Journal of International Law 25, no. 1 (February 1, 2014): 35–58, doi:​10​.1093/​ejil/​cht080; Alan W. Norrie, Law and the Beautiful Soul (London; Portland, Or: Portland, Or: GlassHouse; Published in the United States by Cavendish Pub, 2005); Alan Norrie, “Animals Who Think and Love: Law, Identification and the Moral Psychology of Guilt,” Criminal Law and Philosophy 13, no. 3 (September 2019): 515–44, doi:​10​.1007/​s11572​-018​ -9483​-8. See also, Robert Lowell, “Dolphin” “My eyes saw what my hand did” Selected Poems by Robert Lowell, published by Farrar, Straus & Giroux, Inc. 1976, 1977. 26 See Amaya and Del Mar, Virtue, Emotion, and Imagination in Law and Legal Reasoning.

496  Research handbook on law and emotion involve emotion words27 (the search for remorse in sentencing,28 the hate in hate speech29), or evaluative legal terms that have emotional resonances, such as equality, freedom, or dignity.30 We might ask how the hermeneutics of various international legal regimes differ, and how this relates to the roles that emotions play in the various practices of interpreting evaluative legal concepts? Alternatively, one might also be interested in the emotional aspects of the materials that form part of the legal judgments, that are embedded within or invoked via the text of the judgment, i.e. the recitation of the facts, the woven-in metaphors,31 the use of past cases as analogies, the use of hypotheticals and exemplars,32 and the judgment’s overall style (or lack thereof) or prose. Or, one might wish to focus on the emotional aspects of the evidence or testimony that forms part of the legal record, and how these—perhaps even alongside the performances of the legal actors,33 or the aesthetics of the court room, impact legal reasoning. It seems an important question to determine how the law may or may not be able to bear (or even bear witness to) some of these emotional materials.34 One significant site for exploration lies in the emotions of claimants reacting to what they see as the violence of state action and to what they or their lawyers might frame as a rights violation. Claimants may have such emotions as humiliation,35 rage, grief, indignation, and sorrow. The law has a language and a process. The emotions of claimants are mediated through laws of evidence and civil procedure. Legal processes take time. Lawyers work to reflect the humiliation, rage, grief, and sorrow of their clients by building a case that is recognizable by the court—a case that fits coherently into a line of precedent. This can be empowering.36 It can also be debilitating. It is critical to acknowledge the inexpressibility of some anguish and the inconsequence of legal remedy for some harms or wrongs.37 It is also necessary to acknowledge the conservative nature of precedent, which Maroney, “Law and Emotion.” Bandes, “Remorse and Criminal Justice.” 29 See Jeremy Waldron, The Harm in Hate Speech, The Oliver Wendell Holmes Lectures, 2009 (Cambridge, Mass: Harvard University Press, 2012). See also, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467.l. 30 White, Emotions in Legal Reasoning. See, also, Tarunabh Khaitan, “Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea,” Oxford Journal of Legal Studies 32, no. 1 (March 1, 2012): 1–19, doi:​ 10​ .1093/​ ojls/​ gqr024 and Susan Marks, “The Hersch Lauterpacht Memorial Lectures on Dignity” (Lauterpacht Centre for International Law, Faculty of Law, University of Cambridge, March 2, 2021). 31 See Maksymilian Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Oxford; New York: Hart, 2020). 32 See Maksymilian Del Mar, “Exemplarity and Narrativity in the Common Law Tradition,” Law and Literature 25, no. 3 (November 2013): 390–427, doi:​10​.1525/​lal​.2013​.25​.3​.390; Maksymilian Del Mar and William Twining, Legal Fictions in Theory and Practice, (Cham: Springer International Publishing, 2015). 33 See e.g. Stina Bergman Blix and Åsa Wettergren, Professional Emotions in Court: A Sociological Perspective, 1 Edition (New York: Routledge, 2019). 34 Sara Kendall and Sarah Nouwen, “Representational Practices at the International Criminal Court; Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Classics (New York, N.Y: Penguin Books, 2006). 35 See Avishai Margalit, The Decent Society (Cambridge, Mass: Harvard University Press, 1996). 36 Patricia Williams, The Alchemy of Race and Rights (Boston: Harvard University Press, 1992). 37 I thank Megan Donaldson for raising this question. See e.g. Raimond Gaita, “On Dignity,” in Philosophy, Ethics and a Common Humanity: Essays in Honour of Raimond Gaita, ed. Christopher Cordner (New York: Milton Park, Abingdon, Oxon: Routledge, 2017). 27 28

Images of reach, range, and recognition  497 tends to disregard those forms of harm, injury, social exclusion, or discrimination that appear to fall outside the recognized categories of legal rights violations. Foundations/Grounds A distinct set of reasons to study emotions in international law concerns the search for a common—or at least, solid—structure of human experience or human nature with which to establish a ground for critiquing existing political or legal arrangements. In the history of liberal political philosophy, emotions have long been a potential ground for constructing a theory of human nature which serves as a foundation for constructing arguments about legitimate political authority. We might think here of Hobbes building a political system out of a common fear of death, and a desire for commodious living.38 Or Hume who grounded ethical activity in the shared sentiment of beneficence, to argue (in something akin to an early critical genealogy) that justice was an artificial virtue that developed over time via the co-mingling of an ingrained sense of justice and a series of historically contingent community practices concerning property.39 Or we might think of Robin West writing in the 1989 Yale Journal of Law and Feminism that we should scrap much of everything to do with existing legal systems and begin again by constructing a feminist legal theory sourced directly from the emotions of love and rage.40 Normative arguments in legal and political thinking regularly smuggle into their premise’s conceptions of human nature, and or human personality.41 Studying the assumptions at play about emotions in an argument about the authority of international law can further the critical work of unpacking its often-unspoken presumptions and premises. Human nature arguments can run in various directions claiming, for example, that certain political arrangements are necessary to enable or support human security, or human flourishing, to cure the hard-wired ills of human nature, or to prevent distortions in human personality (or, more subtly, construct the possibilities for human personality). This is an old model of political argumentation that has seen explicit renewal in invocations of international human rights and human dignity. Probing the conception of emotion embedded within a theory about the political authority or legitimacy of governance activity beyond the state level can work to expose the broader working account of human nature (or other sorts of foundational claims about what human beings are like) that is often doing a lot of work in sustaining the overall argument. Set to light, such accounts can then be accepted, modified, or rejected at the level of detail or of form.

Thomas Hobbes and Crawford B. Macpherson, Leviathan, Repr, Penguin Classics (Harmondsworth: Penguin Books, 1988). 39 Hume, Warner, and Livingston, Political Writings. 40 Robin West, “Love, Rage and Legal Theory,” Yale Journal of Law and Feminism 1, no. 1 (1989): 101–10. 41 Christopher J. Berry, Human Nature, Issues in Political Theory (Atlantic Highlands, NJ: Humanities Press International, 1986). 38

498  Research handbook on law and emotion The Politics of Sensibility A fourth script envisions the study of emotions in international law as a facet of an interest in sensibility, style,42 aesthetics, or phenomenology, with proponents working through the ways in which emotions are shaped—or mutually constituted by political culture, by law, history and language, and/or deeper material realities/political economies.43 Work here might detail the emotional sensibility already demanded by the international laws that are in force in a particular place (even if that sensibility appears to be a cold, clinical one) by describing it, analyzing it, historicizing it, and/or by drawing attention to its material base. In the alternative, work in this area might focus on establishing (coaxing out, rediscovering, giving due regard, etc. to that which has been politically marginalized) an alternative political sensibility, of solidarity for example, as a form of reaction or resistance.44 Here we might think of work unpacking the emotional architecture of a legal meeting, of jurisdictional overlap,45 or of a treaty.46 The study of emotion seems pertinent to those who are working to recover and call attention to those sensibilities towards international law or governance that have been long ignored or actively dismissed or dismantled. In this vein, we see powerful work emerging in the histories of international law and the field of international law and literature,47 which draws in work on the expressive or affective content48 of international law.49 There are also emotion-rich histories of

As Randall Jarrell said of style, it “ought to make it easy for you to say all the you have to say, not, as most do, make it impossible for you to get free from one narrowed range of experience and expression.” “The Humble Animal”, Jarrell, Poetry and the Age (London: Faber, 1996) at 158. See also, Gerry Simpson, The Sentimental Life of International Law: Literature, Language and Longing (Oxford: Oxford University Press, 2021). 43 See, e.g., Illan rua Wall, “The Ordinary Affects of Law,” Law, Culture and the Humanities, November 16, 2019. 44 See e.g. John Borrows, Freedom and Indigenous Constitutionalism (Toronto; Buffalo; London: University of Toronto Press, 2016). Jessie Hohmann, ed., International Law’s Objects, First Edition (Oxford, United Kingdom: Oxford University Press, 2018). Mishra, Age of Anger. Gerry Simpson has been doing something like this work in a piece entitled “gardening instead”. 45 See John Borrows, “Indian Agency: Forming First Nations Law in Canada,” Political and Legal Anthropology Review 24, no. 2 (2001): 9–24. 46 See e.g. Ruth Buchanan and Jeffery G Hewitt, “Treaty Canoe,” in International Law’s Objects, by Ruth Buchanan and Jeffery G Hewitt (Oxford University Press, 2018), 491–503. 47 See e.g. the workshop series, “Literature and International Law: at the edge” convened by Joseph Slaughter (Columbia University), Vasuki Nesiah (New York University), Gerry Simpson (London School of Economics) and Christopher Gevers (University of KwaZulu-Natal). Website: https://​www​.il​ -lit​.org. 48 See e.g. Mark A. Drumbl, “Memorializing Dissent: Justice Pal in Tokyo,” AJIL Unbound 114 (2020): 111–16, doi:​ 10​ .1017/​ aju​ .2020​ .26; Vidya Kumar, “Revolutionaries,” in Concepts for International Law: Contributions to Disciplinary Thought, ed. Jean D’Aspremont and Sahib Singh (Cheltenham, UK: Edward Elgar Publishing, 2019); Joseph R. Slaughter, Human Rights, Inc. (Fordham University Press, 2007), doi:​10​.5422/​fordham/​9780823228171​.001​.0001. 49 See e.g. Kamari Maxine Clarke, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Durham: Duke University Press, 2019); Fleur Johns, The Non-Legal in International Law: Unruly Law (Cambridge: Cambridge University Press, 2012), doi:​ 10​ .1017/​ CBO9781139012959; Immi Tallgren and Thomas Skouteris, eds., The New Histories of International Criminal Law: Retrials, History and Theory of International Law (Oxford, United Kingdom: Oxford University Press, 2019); Gerry Simpson, “The Sentimental Life of International Law,” London Review of International Law 3, no. 1 (March 1, 2015): 3–29, doi:​10​.1093/​lril/​lru013; Naz K. Modirzadeh, “Cut 42

Images of reach, range, and recognition  499 international law,50 and from a different angle much emerging work on the history of emotions, and the history of emotions in law,51 which aim to offer highly specific and detailed portraits of emotions in a snapshot of legal time.52 If emotions are well understood as bound up with ways of seeing, relating, being in the world, then perhaps work in the field of international law that probes broader historical-materialist planes might wish to think of the emotions that were made possible (or impossible) in various epochs, eras, or periods of time.53

POST-SCRIPT QUESTIONS—CONCEPTUALIZING REACH, RANGE AND RECOGNITION IN THE STUDY OF EMOTIONS …what scaffolded mind  Can rebuild experience Philip Larkin, “A Stone Church Damaged by a Bomb”54

As the above section aims to show, there are several reasons why those studying international law might be interested in emotion. With respect to each of the above scripts, it will be important to consider how one is conceptualizing the reach, range, and recognition of emotions over time and place, including our ability to study emotions, our aptitude for recognizing our own emotions, and those of others, and any underlying assumptions about the relationship of emotions to knowledge claims. While some aspects of an emotion might appear to have universal features,55 a great deal often turns on the relation between a specific emotion and the context in which it is embedded. Emotions involve a physiological aspect (a pain or pleasure), and

These Words: Passion and International Law of War Scholarship,” Harvard International Law Journal 61, no. 1 (2020), doi:​10​.2139/​ssrn​.3485822; Wall, “The Ordinary Affects of Law.” 50 As Nietzsche wrote in The Advantages and Disadvantages of History for Life, the living man uses history in three ways: for sources of grand companions and intensity; for tracing veins, finding loyalty, sentiment, belonging; and for collecting fire-fuel, bodies for bloodlettings (criticism). 51 See e.g. Kathryn Temple, Loving Justice: Legal Emotions in William Blackstone’s England (New York: New York University Press, 2019). 52 See e.g. Sandra Schnädelbach, “The Voice Is the Message: Emotional Practices and Court Rhetoric in Early Twentieth Century Germany,” Oñati Socio-Legal Series 9, no. 9(5) (December 1, 2019): 616–35, doi:​10​.35295/​osls​.iisl/​0000​-0000​-0000​-1030. Also, more generally, see the work at the Center for the History of Emotions at Max Planck Institute for Human Development (Berlin, Germany) and the Australian Research Council Centre of Excellence for the History of Emotions (The University of Western Australia). 53 See e.g. Hila Keren’s writing on neoliberal emotions in “Valuing Emotions” Wake Forest Law Review, Vol. 53, No. 5, 2018; Southwestern Law School Research Paper No. 2019/02. 54 Philip Larkin and Archie Burnett, The Complete Poems, 1. American paperback ed (New York: Farrar, Straus and Giroux, 2013). 55 Some psychologists have shown how anger flashes across faces in a similar manner in cross-cultural studies, with a widening of the eyes and a tight-jawed bearing of the teeth. See e.g. Paul Ekman, Universals and Cultural Differences in Facial Expressions of Emotion (University of Nebraska Press Lincoln, 1971), Paul Ekman, 'Facial Expression and Emotion', American Psychologist, 48/4 (1993), 384, Paul Ekman, Darwin and Facial Expression: A Century of Research in Review (Malor Books, 2006). Charles Darwin, The Expression of Emotion in Man and Animals (Chicago: Chicago University Press, 1965). Antonio R. Damasio, Descartes' Error: Emotion, Reason, and the Human Brain (London: Penguin, 2005) xxiii, 312 p. Joseph E. Ledoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (New York: Simon & Schuster, 1996) 384 p.

500  Research handbook on law and emotion a judgment or evaluation of importance.56 Affectivity, understood as the experience of pain and pleasure, differentiates emotions from other modes of thought or experience.57 Some of the pains and pleasures relevant to emotions are of a particular sort: they are evaluative in the sense that they pick out and respond to features of the environment that the agent considers important.58 As Michael Stocker writes, “there is far more to emotions than what is bodily… (and) this ‘more’ involves thoughts desires and values or evaluations.”59 Where evaluative judgments are embedded within the structure of an emotion, we can expect it to be scripted, at least to an extent, by time and place (shaped by political and material realities, and prone to drawing on idiom, norms, caches of images, binaries, myths, etc.—and with all of this extending even to one’s experience and description of the physiological aspects of emotions).60 This raises, in turn, questions of all sorts pertaining to the reach, range, and recognition of emotions between persons and groups, and these over space and time.61 This final section of the chapter poses two sets of questions raised by the literature on the philosophy of emotion to suggest that how one sets about to examine emotions in the territories of international law will largely depend on the answers to them that are either assumed or given. Questions of Reach, Questions of Capture The first set of questions is already raised by the exercise of writing about emotions. What about emotions is it possible to capture through writing and study? What about emotions is it possible to capture in the study of law, or international law? There is a memorable scene in Mihail Sebastian’s novel Two Thousand Years62 where the protagonist, a young scholar, passes a political march with his friend who is seized by the energy and expression of the crowd before seamlessly joining in. The protagonist also wishes to feel the hot, joyful solidarity of the gathering but finds himself invariably stuck outside the moment, watching himself as an external observer, analyzing the experience, feeling a heavy distance.63 The scene raises the question as to whether an emotional state might be capturable or cognizable from an outside perspective?64 How might the answer to this question change were we to understand 56 John Gardner, “The Logic of Excuses and the Rationality of Emotions,” Journal of Value Inquiry 43, 315–338 (2009). https://​doi​.org/​10​.1007/​s10790​-009​-9181​-9; Solomon, The Passions. 57 Robinson, Deeper Than Reason: Emotion and Its Role in Literature, Music, and Art. 58 White, Emotions in Legal Reasoning; Solomon, The Passions; Robinson, Deeper than Reason. 59 Michael Stocker and Elizabeth Hegeman, Valuing Emotions, Cambridge Studies in Philosophy (Cambridge [England]; New York: Cambridge University Press, 1996). 60 Solomon, Not Passion’s Slave; Solomon, The Passions; Robinson, Deeper than Reason; Bernard Arthur Owen Williams, Shame and Necessity, New ed, Sather Classical Lectures 57 (Berkeley, Calif.: University of California Press, 2008). 61 See e.g. Williams, Shame and Necessity. 62 Mihail Sebastian and Seán Ó Ceallaigh, For Two Thousand Years, Penguin Modern Classics (UK: Penguin Books, 2016). 63 Nietzsche writing about the Ancient Greeks famously mourns the impossibility of absorption, which is something akin to a full-blooded, un-self-conscious, unironic engagement, in modern thinking in Friedrich Wilhelm Nietzsche, On the Advantage and Disadvantage of History for Life (Indianapolis: Hackett Pub. Co, 1980). 64 We might think here of how calls for solidarity in social movements can sometimes leave academics feeling impotent, removed, wrong-tooled or heavy-footed. Or of Philip Larkin writing about the end of love: “Standing on love’s further shore” as Larkin coolly put it in his poem, “Prologue”. Or see Sigrid Nunez in the New York Review of Books for a discussion on Garth Greenwell’s novels and the trickiness

Images of reach, range, and recognition  501 emotions to reflect a politics,65 a political time,66 an ethics67 and/or a way of seeing?68 All of these questions engage deep epistemological questions about the relationship between emotions and understanding. Bernard Williams notably raised similar questions in his book, Shame and Necessity,69 which considers whether and how the “modern” western reader might grasp ancient Greek tragedies and understand their daemonic worldview conceptions of necessity and shame vis-à-vis post-Kantian and Christian conceptions of autonomy and guilt, imbued as they are with disparate social and moral landscapes and metaphysical assumptions. A related background question concerns whether the research and study of emotions alters them? Can research methods grasp their subject, “pinned and wriggling on the wall”?70 One criticism of the law and emotions field is the tendency to offer overly rationalized descriptions of emotions (often casting emotions just like other forms of reasons for action) in order to render them more recognizable to the subject of law, and/or legal reasoning.71 Questions remain, however, as to whether emotions have something like an elusive quality, and whether they are well understood by the self?72 We might ask in what ways are emotions private?73 Stephen Leighton holds the view that the feeling aspects of emotions are private, writing that: (s)erious discussion of feelings is made difficult because feelings, whatever their precise nature and role, occupy a particularly private part of our psychic life…(s)ince these difficulties are inherent in the subject matter, we can never enjoy the sort of sophistication in discrimination or comparison concerning feelings which we enjoy with, say, the cognitive components of emotion.74

Further on the subject of capture, we might ask whether we can study the emotions of legal actors by reference to legal documents, evidentiary records, legislative speeches,75 judg-

of writing about sex in fiction boiling down to the fact that absent a state of arousal much of the language to describe sexual activity appears staid, hackneyed, and ridiculous. Sigrid Nunez, “Sex and Sincerity,” The New York Review of Books, June 11, 2020. 65 Amia Srinivasan, “The Aptness of Anger,” Journal of Political Philosophy 26, no. 2 (June 2018): 123–44, doi:​10​.1111/​jopp​.12130, reprinted at Chapter 8 in this volume; Audre Lorde, Sister Outsider: Essays and Speeches (Berkeley, Calif: Crossing Press, c2007, n.d.). 66 See Mishra, Age of Anger. 67 Expressivists hold something akin to the position that emotions are the foundation of ethics. See Hume, Warner, and Livingston, Political Writings; Charles Leslie Stevenson, “The Emotive Meaning of Ethical Terms,” Mind XLVI, no. 181 (1937): 14–31, doi:​10​.1093/​mind/​XLVI​.181​.14; Solomon, The Passions; Jesse Prinz, “The Emotional Basis of Moral Judgments,” Philosophical Explorations 9, no. 1 (March 2006): 29–43, doi:​10​.1080/​13869790500492466; Jesse Prinz, The Emotional Construction of Morals (Oxford University Press, 2009). 68 Jean-Paul Sartre, Sketch for a Theory of the Emotions, Reprint, Routledge Classics (London: Routledge, 2006); Solomon, The Passions. 69 Williams, Shame and Necessity. 70 “The Love Song of J. Alfred Prufrock” in Thomas Stearns Eliot, Collected Poems, 1909–1962, Centenary ed. (New York: Harcourt Brace Jovanovich, 1991). 71 White, Emotions in Legal Reasoning. 72 See e.g. Aristodemou, Law and Psychoanalysis; Aristodemou, “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours”; Norrie, “Animals Who Think and Love.” 73 See Stephen R. Leighton, “A New View of Emotion,” American Philosophical Quarterly 22, no. 2 (1985): 133–41. 74 Leighton, Philosophy and the Emotions: A Reader at 276. 75 Carol Sanger, “Legislating with Affect: Emotion and Legislative Law Making,” Nomos 53 (2013): 38–76.

502  Research handbook on law and emotion ments?76 If so, are we studying the emotions of these legal actors, or the expression (even performance) of their emotions, the quality of their speech, writing, prose, or something else?77 What of documents written in concert? Or of legal judgments aiming to capture the ear of the public, or to escape the eye of an appellate court? How and when does legal language reveal emotion?78 Whose emotions? Philosophers of emotion have long puzzled through questions about emotions and time (often assumptions about the expected duration of an emotion, for good or ill, serve as stamps of authentication, i.e. is it grief without the long drift, anger without flint, love if it retreats in the cold morning light?).79 And so too, how emotions change when we fold experiences, including emotional experiences into narratives—drawing in patterns, and political histories (e.g. an incident which frightened us, might upon reflection raise laughter, indignation, or rage).80 On the subject of time, law and emotion, Susan Bandes has written of how the emotion of remorse implicates something of a future gaze, and a promise of better behaviour, finding, devastatingly, that judges are often less apt at reading a concrete future (full of family, success, education, etc.) for poor and/or racialized defendants, and hence are less likely to attribute to them the emotion of remorse, a factor which has concrete consequences in terms of sentencing.81 There are also questions concerning the formality, and highly structured nature of legal writing and reasoning.82 What is the assumed relationship between sincerity and form?83 There is a difference between chronicling emotions and experiencing emotions.84 There is a difference between using emotion words, like guilt and love, and experiencing either of these things.85 How wide’s the chasm? These questions are relevant when we think of studying the emotions that get translated (or transmuted) through the rules of evidence, and testimony, the norms of judgment writing, and through legal language, and legal concepts of law, which themselves often contain emotional and expressive content.86

See White, Emotions in Legal Reasoning. Maroney, “Law and Emotion.” Legal sociologists have done fascinating work on the performance of emotion in the courtroom. See Blix and Wettergren, Professional Emotions in Court; Stina Bergman Blix and Åsa Wettergren, “A Sociological Perspective on Emotions in the Judiciary,” Emotion Review 8, no. 1 (January 2016): 32–37, doi:​10​.1177/​1754073915601226. 78 See Maroney, “Law and Emotion.” 79 Goldie, “Narrative Thinking, Emotion, and Planning”; Leighton, “A New View of Emotion,”; White, “On Emotions and the Politics of Attention in Judicial Reasoning.” 80 White, “On Emotions and the Politics of Attention in Judicial Reasoning”; Goldie, “Narrative Thinking, Emotion, and Planning.” 81 Susan A. Bandes, “Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition,” in About the Integrity of Criminal Process: From Theory into Practice, 1st ed. (Hart Publishing, 2016). 82 See Amaya and Del Mar, Virtue, Emotion, and Imagination in Law and Legal Reasoning; Del Mar, “Exemplarity and Narrativity in the Common Law Tradition.” 83 Goldie, “Narrative Thinking, Emotion, and Planning.” Also, W. H. Auden on form, paraphrasing Paul Valéry: "a person is a poet if his imagination is stimulated by the difficulties inherent in his art and not if his imagination is dulled by them." “W. H. Auden, The Art of Poetry No. 17,” The Paris Review, Spring 1974, https://​www​.theparisreview​.org/​interviews/​3970/​the​-art​-of​-poetry​-no​-17​-w​-h​-auden, accessed March 1, 2021. 84 White, “On Emotions and the Politics of Attention in Judicial Reasoning.” 85 White, Emotions in Legal Reasoning. 86 See Khaitan, “Dignity as an Expressive Norm”; White, Emotions in Legal Reasoning; Nussbaum, Hiding from Humanity. 76 77

Images of reach, range, and recognition  503 Some philosophers of emotion have attempted to make sense of these distinctions by insisting that emotions have physiological components.87 One might, for example, hold the particular set of evaluative judgments that are characteristic of an emotion but might not be considered to be experiencing that emotion where they lack its characteristic feeling or physiological aspect.88 Aristotle argued that the emotion of anger followed from the recognition that a slight towards oneself or one’s friends had occurred. One might, however, understand perfectly well that they’ve been slighted and yet feel nothing. Should they be described as angry? What if they use the judgment as a reason for action, or play up the role? What if the physiological aspects of the emotion lag, or are repressed, or projected? A common error is to assume that emotions or emotional reactions occur only in extreme states or are detectable only in overwrought descriptions.89 Combatting the idea that emotional reactions were always over-reactions, and/or the source of undisciplined, specious reasoning, there’s John Gardner’s memorable lines: there is no general or default answer to the question of whether a sober appreciation of reasons for action is more reasonable than an emotionally-charged appreciation of those same reasons for action. Being cool, calm, and collected is just another place on the emotional map, with no special claim to rational efficiency.90

Questions of Recognition and Range The above set of questions concerned what might be possible to capture and study about emotions in the territories of international law. This second series of questions concerns the recognition of others, including the emotions of others, through emotions themselves. Which emotions, for example, facilitate recognition, respect, justice, dignity, solidarity? Under which circumstances? How might we conceptualize or examine one’s range of emotional concern? Or the politics and quality of that emotional concern? Or the barriers to emotional concern?91 Ilya Kaminsky’s Deaf Republic92 is an epic series of poems about a fictionalized town under occupation whose people take up deafness (conceptualized as a meaning-rich, power-filled refusal of sound, not a lack) as a political mode of resistance. In an early poem, entitled, “Deafness, an insurgency begins,” a member of an occupying force barks orders at a citizen, who raises her finger to point at her ear, signalling a message not received, a refusal. The image is of incommensurability as resistance, a communication blockade. In a later poem this stance comes to feel like a “natural” or spontaneous response to many of the townspeople living under the occupation. This book of poems, amongst other things, raises questions about the role emotions play in the political recognition of others as equals.

Robinson, Deeper than Reason; De Sousa, The Rationality of Emotion; Solomon, The Passions. Leighton, Stephen R., “A New View of Emotion.” 89 Israel Scheffler makes a similar argument in a short essay entitled “Ten Myths about Metaphor,” in Israel Scheffler, In Praise of the Cognitive Emotions (London: Routledge, 1991). See, e.g. how the controlled prose of modern poetry can strike as utterly devastating, as in “One Art” in Elizabeth Bishop, The Complete Poems 1926–1979 (New York: Farrar, Straus and Giroux, 1983). See also Randall Jarrell, Poetry and the Age (London: Faber, 1955) 240. 90 Gardner, “The Logic of Excuses and the Rationality of Emotions”, at 349. 91 See e.g. Blum, ‘Black Lives Matter’, 121–38. 92 Ilya Kaminsky, Deaf Republic: Poems (Minneapolis, Minnesota: Graywolf Press, 2019). 87 88

504  Research handbook on law and emotion Robert Solomon describes some emotions as having an intersubjective focus, meaning that they aim at an understanding that sits, in a sense, somewhere between the person experiencing the emotion and its subject.93 Solomon offers pity as an example of such an emotion, and uses this criteria of intersubjectivity to illustrate how ill-versions of the emotion might arise. If the focus of pity, for example, moves too close to the self and away from its subject, it risks becoming narcissistic and/or self-indulgent. If it moves too far away from the self, the suffering of another might fail to register as it should or might have, causing one, at times, to be obtuse, heedless, hard-hearted, or cruel.94 This view echoes in John Berger’s “Photographs of Agony,” though it is cast there in explicitly political terms.95 Berger writes how the mind can move inwards to wrestle with questions of moral inadequacy after witnessing a photograph depicting anguish or horror, in a process that effectively transmutes the reality of the other into a private, general and abstract, existential question that remains far removed from the concrete political realities that precipitated the war, the attack, the mass drowning, the famine, etc. Where, for Berger, the angst felt by the witness does result in action, it is invariably token if it is aimed at relieving their internal discomfort as opposed to a move towards political recognition or confrontation or an act of resistance. Sociologists of punishment have long written about witnessing pain without experiencing pain.96 Must, for example, a recognition of kinship or equality always precede the “sharing of another’s pain,” or might the witnessing of another’s pain instigate and/or facilitate this recognition of kinship or equality. This is a critical sequencing question. Lynn Hunt has argued the latter position, suggesting that, over time, literary depictions of pain and suffering have worked to generate more inclusive conceptions of justice through empathy.97 Hans Joas resists this view by using historical examples to illustrate how the pain of “the other” remained unseen and un-affecting prior to the recognition that they were sacred or equal.98 While these views needn’t be mutually exclusive, the productive potential of emotions like empathy in the law rests on the sequencing of pain and recognition that the emotion is presumed to entail.99 At times, painful emotions serve epistemic functions, aiding our understanding of the situation we are confronting.100 Pain, up to a point, can facilitate focus and attention. In this way, it has the potential to be clarifying, just as anger can be a form of right-seeing.101 All emotions

Solomon, Not Passion’s Slave. Where the affective component of pain and concern is traded for pleasure, the suffering of others could result in gawking or titillation. See White, Emotions in Legal Reasoning. 95 John Berger et al., Ways of Seeing (London: Penguin Books, 2008). 96 David Garland, Punishment and Modern Society: A Study in Social Theory, Studies in Crime and Justice (Chicago: University of Chicago Press, 1990); Michel Foucault, Discipline and Punish: The Birth of the Prison, 2nd Vintage Books ed. (New York: Vintage Books, 1995). 97 Lynn Hunt, Inventing Human Rights: A History, 1st ed. (New York: W.W. Norton & Co, 2007). 98 Hans Joas, The Sacredness of the Person: A New Genealogy of Human Rights (Washington, D.C: Georgetown University Press, 2013). 99 White, Emotions in Legal Reasoning; Emily Kidd White, “Till Human Voices Wake Us,” Journal of Law, Religion and State 3 (2014): 201. 100 Michael S. Brady, Emotional Insight: The Epistemic Role of Emotional Experience (Oxford University Press, 2013). 101 Srinivasan, “The Aptness of Anger.” See Amia Srinivasan’s chapter in this volume, “On the Aptness of Anger”. See also, Catherine Z. Elgin, “Impartiality and Legal Reasoning,” in Virtue, Emotion and Imagination in Law and Legal Reasoning, eds, Amalia Amaya and Maksymilian Del Mar (Hart Publishing, 2020), doi:​10​.5040/​9781509925162. 93 94

Images of reach, range, and recognition  505 have a built-in desire, and painful emotions have a built-in desire to locate the source of the pain.102 Emotional reactions, such as horror, indignation, or political anger,103 can also serve to highlight the hypocritical nature of a legal order by juxtaposing the impact of a law’s publicly stated purpose, against its impact.104 The attention-directing features of emotions are far from apolitical, and raise a series of questions about whose emotions are legible to those in power, and whose emotions are perceived to be legitimate, compound, deeply-felt, or authentic.105 In a different but related vein we might worry about the arrogance (one that seems easily compounded by racist, classist, or gendered stereotypes) in assuming the legibility of the emotions of others over time and place. Iris Murdoch has written powerfully on the need to generate new ethical concepts that respect the gravity and complexity of the other.106 Murdoch writes: we derive from Kant, and also Hobbes and Bentham through John Smart Mill, a picture of the individual as a free rational will. With the removal of Kant’s metaphysical background this individual is seen as alone. (He is in a certain sense alone on Kant’s view also, that is: not confronted with real dissimilar others.)107

Elsewhere I have written about the error of empathy that occurs where legal actors, operating under the assumption that there are no deep or difficult to access differences between persons and how they experience the law, imagine themselves into the legal and/or social position of the claimant in a manner which serves to co-opt their stories and experiences into a pre-existing narrative.108 In earlier writings, I’ve drawn on the work of Simone Weil to illustrate how pain experienced by others might be erased, or found to be titillating. Others have detailed how empathy is often highly selective, frequently moralized, and dependent upon (often highly problematic) notions of desert and agency, and much has been written on the ways in which racist, classist, and gendered prejudices and stereotypes can foreclose the possibility of empathy.109 The unforgettable lyrical prelude to Kaminsky’s book of poems is entitled, We Lived Happily During the War (“And when they bombed other people’s houses, we/protested/ but not enough, we opposed them but not enough… in the street of money in the city of money in the country of money/our great country of money, we (forgive us)/lived happily during the war.”)110 The poem points to the wrongness and/or betrayal of living happily amidst great suf Solomon, Not Passion’s Slave. Gardner, “The Logic of Excuses and the Rationality of Emotions.” Srinivasan, “The Aptness of Anger.” 104 See e.g. Patricia J. Williams, “The Raw and the Half-Cooked,” in The Humanities and Public Life, ed. Peter Brooks and Hilary Jewett, First edition (New York: Fordham University Press, 2014). 105 Bandes, “Remorse and Criminal Justice.” 106 Iris Murdoch, “Against Dryness: A Polemical Sketch,” Encounter, 1961; Iris Murdoch, Metaphysics as a Guide to Morals, 1st American ed. (New York: Allan Lane, The Penguin Press, 1993). 107 Murdoch, “Against Dryness: A Polemical Sketch.” 108 White, “On Emotions and the Politics of Attention in Judicial Reasoning.” 109 Amy Coplan and Peter Goldie, eds., Empathy: Philosophical and Psychological Perspectives (Oxford ; New York: Oxford University Press, 2011); White, “On Emotions and the Politics of Attention in Judicial Reasoning”; Paul Bloom, Against Empathy: The Case for Rational Compassion (New York: Ecco, 2018); Sally Anne Haslanger, Resisting Reality: Social Construction and Social Critique (New York: Oxford University Press, 2012); Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford ; New York: Oxford University Press, 2007). 110 “We Lived Happily During the War” in Kaminsky, Deaf Republic. 102 103

506  Research handbook on law and emotion fering (perhaps even at the expense of another’s suffering). It concerns the failure to respond emotionally where one has political, or moral reasons to do so. This raises an additional series of questions concerning how one’s range of emotional concern might be extended, and the ways in which they might be extended in line with one’s political, ethical or justice-based commitments? How utilitarian is this calculation? Thinking about the role emotions might play in the service of justice raises a series of subtle questions about emotions and truth or knowledge claims, and about the rationality of emotions themselves. Within the field of the philosophy of emotion, it is a long-abandoned view that emotions are beyond judgment, or political evaluation, though this is often the stated rationale for the call to disentangle legal reasoning from emotion. Emotions are, however, evaluative in at least two senses. Emotions are object-directed, which means that facts or new information about an object can work to revise an emotional state.111 Emotions are also comprised of cognitive judgments reflecting in some sense what the person experiencing the emotion considers important, which opens them up to probing questions about the status of the values underlying those emotional concerns. It is with respect to the former that perspectival understandings of law can work to illustrate how certain histories, experiences, and proximity to the impact of a legal regime serve to lend a credibility, weight, or rationality to certain emotional expressions over others.112 In a powerful debate over the political virtue of anger, Amia Srinivasan responds to Martha Nussbaum’s argument that anger is politically unproductive and morally damaging by raising the history of black feminists who have long defended the rationality, and psychic significance of anger, as a powerful means of acknowledging political injustice.113 While truth and/or rationality claims about emotions can play foundational roles in political and justice-based arguments, it is also worthwhile to explore the ways in which emotions can contribute to political projects (perhaps via literature, aesthetics, communal movements, radically imagined futures etc.) without necessarily drawing on the language of truth, rationality, or reason.114 We might also like to puzzle through the assumptions about emotions, knowledge and bodies. While the cognitive view of emotions tends to be preeminent (for the time being) in the field of the philosophy of emotion, other philosophical conceptions of emotion foreground their affective and bodily aspects. William James famously wrote of how emotions were felt first in the body—with old evolutionary structures of the brain trained to spur reactions like flight. These experiences (the widened pupil, the quickened heartbeat) are later processed into emotion words and experiences, such as fear, or shame. Jenefer Robinson’s account of emotions—of “emotions-as-process”—similarly foregrounds the affective or physiological aspect of emotions. She writes that emotions consist of an initial affective appraisal of something that the agent considers important, and at this stage, “our emotional pathways are fast

Nussbaum, Upheavals of Thought; Solomon, The Passions. See e.g. Williams, “The Raw and the Half-Cooked”; Peggy Cooper Davis, “Responsive Constitutionalism and the Idea of Dignity,” University of Pennsylvania Journal of Constitutional Law 11, no. 5 (2009): 1373; Jedediah Purdy, “Laundered Violence: Law and Protest in Durham,” N+1, August 23, 2017, https://​nplusonemag​.com/​online​-only/​online​-only/​laundered​-violence/​, accessed March 1, 2021. 113 Srinivasan, “The Aptness of Anger.” 114 See e.g. Gabrielle Bellot, “Gabrielle Bellot on the Dreamy, Queer Beauty of On a Sunbeam,” Literary Hub, May 28, 2019, https://​lithub​.com/​gabrielle​-bellot​-on​-the​-dreamy​-queer​-beauty​-of​-on​-a​ -sunbeam/​. 111 112

Images of reach, range, and recognition  507 and ‘dirty’, emphasizing the situation as perceived in terms of one’s interests and desires.”115 Robinson suggests that is useful to think of affective appraisals “as a kind of ‘meta-response,’ evaluating in a rough and ready way” something in the internal or external environment that matters to the individual in question, which then precipitates a physiological response (slowed breathing, a shiver down the spine). The process ends with cognitive reflection, which layers on social meaning. We are thinking creatures, and we think through (justify, correct, temper) our responses.116 A final distinct but related question concerns the political value of what is captured by and through emotions? What are the affective aspects of solidarity? What is the difference between an emotion-soaked witness, and voyeurism? Are there material, political, legal, constitutional prerequisites for feelings associated with solidarity, equality, or dignity?117 What is the relationship between imagination and emotion?118 How might one study emotions in international law without falling into a sort of scholarly preciousness or dilettantism—grave errors each given the long-running structural, colonial, material violence associated with the history of the field.119 How to guard against the wrong or betrayal of drawing on the materials of international law to showcase one’s own fineness of sensibility for reading or writing about the subject? How might we cut at the distinction between sentiment and sentimentality?120 How might associations between emotions and virtue (or fineness/sensibility/sensitivity) resist elitism, and contend with rule of law concerns?121

CONCLUSION The final poem in Kaminsky’s book sees the fictionalized occupied town left by the narrator for present day America. The poem is entitled, “In a Time of Peace,”122 a section of which reads, “Ours is a country in which a boy shot by police lies on the pavement/for hours./ We see in his open mouth/ the nakedness/ of the whole nation./ We watch. Watch/ others watch. / The body of a boy lies on the pavement exactly like the body of a boy.” The poem, as I understand it, is referring to the police shooting of an unarmed black teenager Michael Brown, and the grave dishonour, and disregard, shown from the act of letting his lifeless body lie on the pavement for hours, as the surrounding community gathered to give witness. Brown is not Robinson, Deeper than Reason. See e.g. Thomas Nagel, Concealment and Exposure: And Other Essays (Oxford; New York: Oxford University Press, 2002). 117 Rocio Lorca, “Punishing the Poor and the Limits of Legality,” Law, Culture and the Humanities, July 23, 2018, 174387211878998, doi:​10​.1177/​1743872118789985. 118 See e.g. Amaya and Del Mar, Virtue, Emotion, and Imagination in Law and Legal Reasoning. 119 This cutting criticism was raised in Christine Schwöbel-Patel’s lecture entitled, “Occupying’ Global Justice: Towards a Counter-Aesthetics of Marketised Global Justice” at Osgoode Hall Law School on February 27, 2019. See also the forthcoming book, Christine Schwöbel-Patel, Marketing Global Justice: The Political Economy of International Criminal Law, Cambridge Studies in International and Comparative Law 152 (Cambridge: Cambridge University Press, 2021). 120 See Catherine Z. Elgin, “Impartiality and Legal Reasoning”. Gerry Simpson locates this tension in the practice of international law in “The Sentimental Life of International Law,” London Review of International Law 3, no. 1 (March 1, 2015): 3–29. 121 Elgin, “Impartiality and Legal Reasoning.” 122 Kaminsky, Deaf Republic. 115 116

508  Research handbook on law and emotion mentioned by name in the poem, nor his town of Ferguson, Missouri. As one reads the poem, the reference is known, or not known, and one final question for this chapter is what turns on this? It raises a question, long grappled with in the study of the history of political thought (and so too with respect to the history of the philosophy of mind and knowledge), which is, how much context and detail is required for understanding? We might ask here after the role of detail in constructing affect. What is it necessary to know to share in the rage and mourning called for by allusion to the killing in the poem? What details impact the shape of this rage and this mourning? Or the duration of this rage and this mourning? What is lost in broad comparative work? What is gained? This chapter represents only a first effort at generating a series of questions that seem invariably raised by any study of emotions in the territories of international law. Many of these are overwhelmingly large, implicating whole systems of knowledge, philosophies of action, theories of history, theories of human nature, and so on. Nevertheless, we must ask them as our answers to these questions, however buried or explicit, set our terms, and frames, and associations for the research that follows.

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510  Research handbook on law and emotion Eliot, Thomas Stearns. Collected Poems, 1909–1962. Centenary ed. New York: Harcourt Brace Jovanovich, 1991. Foucault, Michel. Discipline and Punish: The Birth of the Prison. 2nd Vintage Books ed. New York: Vintage Books, 1995. Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. Oxford; New York: Oxford University Press, 2007. Gaita, Raimond. “On Dignity.” In Philosophy, Ethics and a Common Humanity: Essays in Honour of Raimond Gaita, edited by Christopher Cordner. New York: Milton Park, Abingdon, Oxon: Routledge, 2017. Gardner, John. “The Logic of Excuses and the Rationality of Emotions,” Journal of Value Inquiry 43, 315–338 (2009). Garland, David. Punishment and Modern Society: A Study in Social Theory. Studies in Crime and Justice. Chicago: University of Chicago Press, 1990. Goldie, Peter. “Narrative Thinking, Emotion, and Planning.” The Journal of Aesthetics and Art Criticism 67, no. 1 (2009): 97(10). Haslanger, Sally Anne. Resisting Reality: Social Construction and Social Critique. New York: Oxford University Press, 2012. Hobbes, Thomas, and Crawford B. Macpherson. Leviathan. Repr. Penguin Classics. Harmondsworth: Penguin Books, 1988. Hohmann, Jessie, ed. International Law’s Objects. 1st ed. Oxford, United Kingdom: Oxford University Press, 2018. Hume, David, Stuart D. Warner, and Donald W. Livingston. Political Writings. Indianapolis: Hackett Pub. Co, 1994. Hunt, Lynn. Inventing Human Rights: A History. 1st ed. New York: W.W. Norton & Co, 2007. Jarrell, Randall. Poetry and the Age. London: Faber, 1955 Joas, Hans. The Sacredness of the Person: A New Genealogy of Human Rights. Washington, D.C: Georgetown University Press, 2013. Johns, Fleur. The Non-Legal in International Law: Unruly Law. Cambridge: Cambridge University Press, 2012. doi:​10​.1017/​CBO9781139012959. Kaminsky, Ilya. Deaf Republic: Poems. Minneapolis, Minnesota: Graywolf Press, 2019. Kendall, Sara, and Sarah Nouwen. “Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood. (The Practices of the International Criminal Court).” Law and Contemporary Problems 76, no. 3–4 (2013): 235. Keren, Hila. “Valuing Emotions” Wake Forest Law Review, Vol. 53, No. 5, 2018; Southwestern Law School Research Paper No. 2019/02. Khaitan, Tarunabh. “Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea.” Oxford Journal of Legal Studies 32, no. 1 (March 1, 2012): 1–19. doi:​10​.1093/​ojls/​gqr024. Kumar, Vidya. “Revolutionaries.” In Concepts for International Law: Contributions to Disciplinary Thought, edited by Jean D’Aspremont and Sahib Singh. Cheltenham, UK: Edward Elgar Publishing, 2019. Lara, María Pía, Moral Textures: Feminist Narratives in the Public Sphere. Berkeley, Calif.: University of California Press, 1998. Larkin, Philip, and Archie Burnett. The Complete Poems. 1. American paperback ed. New York: Farrar, Straus and Giroux, 2013. Lebow, Richard Ned. A Cultural Theory of International Relations, 2009. Ledoux, Joseph E. The Emotional Brain: The Mysterious Underpinnings of Emotional Life. New York: Simon & Schuster, 1996. Leighton, Stephen R. “A New View of Emotion.” American Philosophical Quarterly 22, no. 2 (1985): 133–41. Leighton, Stephen R., ed. Philosophy and the Emotions: A Reader. Peterborough, Ont.; Orchard Park, NY: Broadview Press, 2003. Lorca, Rocio. “Punishing the Poor and the Limits of Legality.” Law, Culture and the Humanities, July 23, 2018, 174387211878998. doi:​10​.1177/​1743872118789985. Lorde, Audre. Sister Outsider: Essays and Speeches. Berkeley, Calif: Crossing Press, c2007, n.d. Lowell, Robert. “Dolphin” “My eyes saw what my hand did” Selected Poems by Robert Lowell, published by Farrar, Straus & Giroux, Inc. 1976, 1977. Available online: https://​poets​.org/​poem/​dolphin.

Images of reach, range, and recognition  511 Margalit, Avisha. The Decent Society. Cambridge, Massachusetts: Harvard University Press, 1996. Maroney, Terry. “Angry Judges.” Vanderbilt Law Review 65, no. 5 (2012): 1205–86. Maroney, Terry A. “Law and Emotion: A Proposed Taxonomy of an Emerging Field.” Law and Human Behavior 30, no. 2 (2006): 119–42. doi:​10​.1007/​s10979​-006​-9029​-9. Megiddo, Tamar. “The Domestic Standing of International Law: A Non-State Account.” Columbia Journal of Transnational Law 57 (2019): 494. Mishra, Pankaj. Age of Anger: A History of the Present. First American edition. New York: Farrar, Straus and Giroux, 2017. Modirzadeh, Naz K. “Cut These Words: Passion and International Law of War Scholarship.” Harvard International Law Journal 61, no. 1 (2020). doi:​10​.2139/​ssrn​.3485822. Murdoch, Iris. “Against Dryness: A Polemical Sketch.” Encounter, 1961. Murdoch, Iris. Metaphysics as a Guide to Morals. 1st American ed. New York: Allan Lane, The Penguin Press, 1993. Nagel, Thomas. Concealment and Exposure: And Other Essays. Oxford; New York: Oxford University Press, 2002. Nietzsche, Friedrich Wilhelm. On the Advantage and Disadvantage of History for Life. Indianapolis: Hackett Pub. Co, 1980. Norrie, Alan. “Animals Who Think and Love: Law, Identification and the Moral Psychology of Guilt.” Criminal Law and Philosophy 13, no. 3 (September 2019): 515–44. doi:​10​.1007/​s11572​-018​-9483​-8. Norrie, Alan W. Law and the Beautiful Soul. London; Portland, Or.: Portland, Or: GlassHouse; Published in the United States by Cavendish Pub, 2005. Nunez, Sigrid. “Sex and Sincerity.” The New York Review of Books, June 11, 2020. Nussbaum, Martha Craven. Hiding from Humanity: Disgust, Shame, and the Law. Princeton, N.J: Princeton University Press, 2004. Nussbaum, Martha Craven. Upheavals of Thought: The Intelligence of Emotions. 8th pr. Cambridge: Cambridge Univ. Press, 2008. Pahuja, Sundhya. Decolonising International Law: Development, Economic Growth and the Politics of Universality. Cambridge: Cambridge University Press, 2011. doi:​10​.1017/​CBO9781139048200. Prinz, Jesse. “The Emotional Basis of Moral Judgments.” Philosophical Explorations 9, no. 1 (March 2006): 29–43. doi:​10​.1080/​13869790500492466. Prinz, Jesse. The Emotional Construction of Morals. Oxford University Press, 2009. https://​www​ .oxfordscholarship​.com/​view/​10​.1093/​acprof:​oso/​9780199571543​.001​.0001/​acprof​-9780199571543. Purdy, Jedediah. “Laundered Violence: Law and Protest in Durham.” N+1, August 23, 2017. https://​ nplusonemag​.com/​online​-only/​online​-only/​laundered​-violence/​. Accessed March 1, 2021. Robinson, Jenefer. Deeper than Reason: Emotion and Its Role in Literature, Music, and Art. Oxford: New York: Clarendon Press; Oxford University Press, 2005. Sanger, Carol. “Legislating with Affect: Emotion and Legislative Law Making.” Nomos 53 (2013): 38–76. Sartre, Jean-Paul. Sketch for a Theory of the Emotions. Reprint. Routledge Classics. London: Routledge, 2006. Scheffler, Israel. In Praise of the Cognitive Emotions. London: Routledge, 1991. Schnädelbach, Sandra. “The Voice Is the Message: Emotional Practices and Court Rhetoric in Early Twentieth Century Germany.” Oñati Socio-Legal Series 9, no. 9(5) (December 1, 2019): 616–35. doi:​ 10​.35295/​osls​.iisl/​0000​-0000​-0000​-1030. Schwöbel-Patel, Christine. Marketing Global Justice: The Political Economy of International Criminal Law. Cambridge Studies in International and Comparative Law 152. Cambridge: Cambridge University Press, 2021. Sebastian, Mihail, and Seán Ó Ceallaigh. For Two Thousand Years. Penguin Modern Classics. UK: Penguin Books, 2016. Simpson, Gerry. “The Sentimental Life of International Law.” London Review of International Law 3, no. 1 (March 1, 2015): 3–29. doi:​10​.1093/​lril/​lru013. Slaughter, Joseph R. Human Rights, Inc. Fordham University Press, 2007. doi:​ 10​ .5422/​ fordham/​ 9780823228171​.001​.0001. Solomon, Robert C. Not Passion’s Slave: Emotions and Choice. The Passionate Life. Oxford; New York: Oxford University Press, 2003. Solomon, Robert C. The Passions: Emotions and the Meaning of Life. Indianapolis: Hackett Pub. Co, 1993.

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PART VIII CLASSIC ARTICLES

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

He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie. Mary Zvolanek, mother of murder victim, in her victim impact statement.1

INTRODUCTION Mary Zvolanek’s testimony about her daughter’s death and its effect on her grandson is heartbreaking. On paper, it is nearly unbearable to read; imagine hearing it in court from Mary Zvolanek herself. Should jurors have the opportunity to hear such testimony? In Payne v. Tennessee,2 the Supreme Court held that they should. In so doing, it overruled its decision in Booth v. Maryland,3 which only four years earlier had held that impact statements by the victim’s family were not admissible at a capital sentencing hearing. At first blush, victim impact testimony possesses several attractive attributes. It gives new information that helps provide a particularized context for decision making; it brings to the legal forum an otherwise silenced narrative voice; and it supplies an undisguised opportunity for the trier of fact to exercise compassion in the legal context. How can one argue, in light of these attributes, that the victim impact statement is a story that should not be told, one that evokes emotions that ought to be suppressed? My interest in victim impact statements was originally propelled by concern about—or, more accurately, outrage over—the result in Payne. This outrage flowed from several sources, including a strong belief that admitting such statements was improper, discomfort with the new majority’s rapid overruling of contrary precedent, and indignation at the inconsistency of Chief Justice Rehnquist, who denounced compassion toward a civil rights plaintiff as an invalid ground for decision in DeShaney v. Winnebago County Department of Social Services,4 yet invoked compassion toward crime victims in support of the Court's holding in Payne. It soon became obvious that however easy—and initially satisfying—it might be to blame the result in Payne on jurisprudential inconsistency, the most difficult questions regarding victim impact statements remain. Why is it wrong to give the otherwise silenced victim a voice in the proceedings? Is it necessarily inappropriate to use compassion in one type of

* Author note: This article is a shortened and adapted version of Susan Bandes, “Empathy, Narrative, and Victim Impact Statements,” University of Chicago Law Review 63, no. 2 (1996). 1 Payne v. Tennessee, 501 U.S. 808, 814-15 (1991). 2 Payne v. Tennessee. 3 Booth v. Maryland, 482 U.S. 496 (1987). 4 DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).

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Empathy, narrative, and victim impact statements  515 case but not another? Many who favor encouraging empathy and compassion in judging, or opening the legal process to silenced voices, have discovered that victim impact statements raise uncomfortable questions about both the empathy and narrative movements. Ultimately, this discomfort gives rise to other significant questions: are storytelling and the exercise of empathy unambiguously benign devices—that is, can either be considered an unmitigated good—in the legal forum? Or does a normative principle exist that identifies their benign uses, or the contexts in which they are desirable? Because they raise such significant questions, victim impact statements provide a particularly useful starting point for a broader examination of the uses of narrative and emotion in legal processes. Explorations of the role of emotions-particularly “benign” emotions, such as empathy and compassion—and the role of storytelling in the legal process have led to some of the most innovative and exciting legal scholarship of recent years. This chapter highlights the accomplishments of this scholarship to date, and also suggests some important directions for further exploration. The scholarship thus far has developed largely along two strands. Although to some extent the structure of this chapter replicates this separation by considering emotion and narrative individually, one of its central theses is that the two strands should be more explicitly intertwined. Ordering events into a narrative is a key component of the ability to empathize with another's suffering: “[O]ne [must] be able to run a narrative through one’s mind about what happened to the sufferer to bring the individual to his or her current state, and what might be done to help. To empathize is to understand beginnings, middles and possible ends ...”5 The studies of emotion and narrative rest on considerable common ground, and each can contribute to the other. This chapter first deals with the topic of emotion in the law. In large part, it is an appreciation of the current scholarship, which has laid to rest the notions that law can be an emotionless endeavor and that reason can operate in a sphere untouched by emotion. However, it also identifies the need for a more nuanced exploration of these issues. Specifically, the topic of emotion in the law reveals that the current scholarship tends to treat them as monolithic, unambiguous entities; it has yet to contend with—much less incorporate in any meaningful way—the complex, unruly field of emotion theory. This part of the chapter concludes that the recent scholarly focus on benign emotions such as empathy, compassion, and caring has been crucial in challenging the marginalization of these emotional modes in the legal context. Nevertheless, we must avoid placing undue faith in the power of these benign emotions and ask the difficult questions of what role these emotions ought to play and in which legal contexts they ought to play that role. The chapter then argues that the notion of outsider narrative is significant, first, because it provides a crucial normative grounding for narrative scholarship, and second, because in doing so it reveals the limiting principle that explains why more narrative is not always better. Although Judge Richard Posner charges that “the internal perspective—the putting oneself in the other person's shoes—that is achieved by the exercise of empathetic imagination lacks normative significance,”6 I believe that the initial impulse behind, and much of the force guiding, the scholarship of narrative and emotion are imbued with normative significance. Natalie Angier, “Scientists Mull Role of Empathy in Man and Beast,” New York Times, May 9, 1995. 6 Richard A. Posner, Overcoming Law (Cambridge: Harvard University Press, 1995), 381. 5

516  Research handbook on law and emotion Such scholarship seeks to expose the unstated, longstanding privileging of dominant narratives and emotional attitudes in the legal arena. Put differently, the scholarship attempts to open that arena to outsider narratives and to emotional attitudes that have heretofore been marginalized or completely silenced. These two sections argue that the law must acknowledge and abide by this normative principle. However, when the use of narrative or the introduction of benign emotions is not directed toward this end, neither device is normatively desirable; indeed, in this instance, both may be dangerous. I conclude that neither narratives nor benign emotions such as caring, empathy, or compassion are always helpful or appropriate in the legal arena. Whether a particular narrative ought to be heard, or a particular emotion expressed, depends on the context and the values we seek to advance. For those of us who believe that compassion has been wrongly exiled from opinions such as DeShaney, that dominant legal narratives need to be challenged by the voices of outsiders, and that legal decisions ought to be based on information from as many of those affected as possible, the difficult questions are which emotions to consider in judging, which narratives to privilege or silence, and how to circumscribe the decision-making contexts in which these devices should be used. This chapter then applies the normative analysis and the limiting principle developed earlier to the concrete context of victim impact statements. Here, I argue that victim impact statements are narratives that should be suppressed because they evoke emotions inappropriate in the context of criminal sentencing. Specifically, victim impact statements appeal to hatred, the desire for undifferentiated vengeance, and even bigotry. In doing so, they may block the sentencer’s ability to perceive the essential humanity of the defendant. More subtly, victim impact statements, in their insistence on evaluating the worth of victims, offend the dignity of the victim as well.

THE ROLE OF EMOTION Even a cursory foray into the writings of philosophers, psychologists and neurobiologists reveals the daunting complexity of the study of emotions. Dozens of theories attempt to explain and define that which cannot be explained or defined. There is widespread agreement on the impossibility of finding a definition for the term “emotion.” Nevertheless, there is broad agreement on one crucial point—that emotions have a cognitive aspect—and its corollary—that reasoning has an emotive aspect. Despite the general consensus among scholars in various fields who have studied emotion, this core insight has met with continual resistance in the legal world, which generally subscribes to the formalistic belief that reason can be neatly separated from emotion. The scholarship on the role of emotion in law does not seek to establish that there are no significant differences between reason and emotion. Rather, it persuasively demonstrates that the mainstream notion of the rule of law greatly overstates both the demarcation between the two and the possibility of keeping reasoning processes free of emotional variables. Emotion and cognition, to the extent they are separable, act in concert to shape our perceptions and reactions. But more than that, much of the scholarship posits that it is not only impossible but also undesirable to factor emotion out of the reasoning process: by this account, emotion leads to truer perception and, ultimately, to better (more accurate, more moral, more just) decisions.

Empathy, narrative, and victim impact statements  517 The law perpetuates the illusion of emotionless lawyering and judging by portraying certain “hard” emotions or emotional stances as objective and inevitable. Yet even a legal process devoid of such “soft” emotions as compassion or empathy is not emotionless; it is simply driven by other passions. As Martha Minow and Elizabeth Spelman point out, “logic ... [itself] predictability, and security ....”7 Justice Brennan aptly describes as emotional the judge’s “visceral temptation to help prosecute the criminal.”8 Nevertheless, the passion for predictability, the zeal to prosecute, and mechanisms, such as distancing, repressing, and isolating one’s feelings from one’s thought processes, are the emotional stances that have always driven mainstream legal thought; as a result, they avoid the stigma of “emotionalism.” That derogatory term is reserved for the marginalized “soft emotions:” compassion, empathy, caring, mercy. If we accept that emotion cannot be factored out of the reasoning process, we resolve the debate about whether emotion belongs in the law—emotional content is inevitable. Legal reasoning, although often portrayed as rational, does not—indeed, cannot—transcend passion or emotion. Instead, it is driven by a different set of emotional variables, albeit an ancient set so ingrained in the law that its contingent nature has become invisible. The characterization of some emotional variables, stances, or mechanisms as “emotional” and others as “reasonable” is an assertion of power—a camouflaged decision to marginalize the former and privilege the latter. Much of the importance of the scholarship on emotion lies in exposing this assertion of power and challenging the notion of a neutral, emotionless baseline. The scholarship about the role of emotion in law teaches that the presence of emotion in legal discourse is not optional. In order to make that point, it has tended to focus on, and strive to rehabilitate, the marginalized emotions. This has been a necessary and effective strategy. However, it is time for the focus to shift and widen. Beginning with the assumption that emotion is an inextricable part of legal discourse, we must now ask the most important question-how do we determine which emotions deserve the most weight in legal decision making, which perspectives are the most desirable? The recent literature on emotions—philosophical, psychological, and neurobiological— essentially agrees that emotions are not merely instinctive and uncontrollable, but are also partially cognitive. The cognitive aspect allows emotions to evolve with exposure to new information and experiences. Thus, if one is open to new understandings, it may be possible to mitigate the limitations of one’s own perspective. It may also be possible to consciously split off some of the factors—for example, blind spots, prejudices, and fears—that inappropriately interfere with judgment. But what does it mean to say that an attribute “interferes with judgment?” How is it possible to determine which are the fears, neuroses, prejudices, blind spots, and unsavory emotions that interfere with judgment, and which are the attributes and particular perspectives that make up each person’s unique personality? How is it possible to determine which other perspectives should be taken into account, and how much weight to accord them? The enterprise founders without a normative principle to guide it. 7 Martha L. Minow and Elizabeth V. Spelman, “Passion for Justice,” Cardozo Law Review 10, no. 1-2 (1988): 45. 8 William J. Brennan Jr., “Reason, Passion, and ‘The Progress of the Law,’” Cardozo Law Review 10, no. 1-2 (1988): 11.

518  Research handbook on law and emotion Is it possible to decide which emotions belong in the law? I suggest that no emotion, no matter how benign, is an unmitigated good in the context of legal decision making. Nor can less “agreeable” emotions, such as anger and fear, be dismissed across the board. There are two basic, interrelated reasons for these conclusions. First, the appropriateness of particular emotions cannot be discussed apart from the context in which they appear. For example, an appropriate emotion for a judge to employ in deciding civil liability may be inappropriate for jurors at the sentencing phase of a criminal trial. Second, the nature of emotions is far too complex to permit broad-based judgments on their propriety. For example, as I will discuss, the term empathy has many different meanings. Nevertheless, we can show that certain emotions are generally more desirable than others through the development of external normative criteria. In other words, if empathy is desirable, or the hunger for revenge undesirable, we should be clear and principled about the reasons why. Such reasons may initially be grounded in law, but ultimately they will be animated by political, moral, religious, and other external values… The debate must proceed on these parallel planes as well, for once we have articulated a normative principle, we will be prepared to evaluate whether particular emotions are valuable additions to different legal contexts. As Susan Jacoby argues in her excellent book, Wild Justice,9 there is a deeply imbedded assumption in contemporary legal theory that justice and revenge are mutually exclusive, and indeed, that the very word “revenge” is pejorative. Yet revenge, and even vindictiveness, have longstanding and respectable roots in historical, religious, and moral tradition. Moreover, Jacoby makes an articulate case that revenge continues to be, in certain contexts, the morally appropriate reaction to criminality. Jeffrie Murphy similarly argues that forgiveness is not always the morally appropriate emotional stance, and advances a spirited defense of hatred and resentment as righteous emotions in certain contexts.10 The point is not that Jacoby or Murphy are necessarily correct, but rather that they are scrutinizing the appropriateness of particular emotions in different contexts. They effectively challenge the blanket condemnation of certain emotions, and do so by carefully considering the external moral, religious, and political criteria by which these emotions may be evaluated, as well as the various contexts in which they might be appropriate. This same careful consideration must extend to emotions generally considered benign as well; the use of such emotions, to be desirable, must be grounded in external normative principles. To illustrate, I will focus on one benign emotional capacity—empathy—in some detail. There are two major problems with the use of empathy in the legal context. First, the notion of empathy is laden with serious definitional problems on close scrutiny, it resembles a moving target. Second, the conceptual utility of empathy varies widely depending on the context in which it is invoked, and the purposes for which it is employed. Henderson, in her seminal article on empathy, explains that the word has several definitions. Specifically, she describes the following three alternatives: “1) feeling the emotion of another; 2) understanding the experience or situation of another, ... often [ ] by imagining oneself to be in the position of the other; [or] 3) action brought about by experiencing the

Susan Jacoby, Wild Justice: The Evolution of Revenge (New York: Harper & Row, 1983), 1–4. Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (New York: Cambridge University Press, 1990), 16–19, 89–90. 9



10

Empathy, narrative, and victim impact statements  519 distress of another ... .”11 Obviously, these definitions describe a wide range of cognition and behavior, and this inherent ambiguity makes it difficult to advance broad claims about the desirability of empathy in law. Empathy is desirable regardless of context in only one sense. To the extent empathy is the facility to perceive the humanity of another person, it is an unmitigated good. In this sense, empathy facilitates the basic recognition that all people should be accorded basic human dignity. Without empathy in this sense, as Judge Posner describes in his discussion of the judges of the Third Reich, persons can be easily excluded from the human community and made into outlaws “to whom no consideration is due.”12 Once we move beyond the basic recognition of human dignity, empathy becomes a more problematic concept. Even if we assume empathy means feeling another's pain, or, even less than that, simply understanding the situation of another; it is not a particularly helpful term in the legal context. Specifically, it begs some important questions: To what extent can we truly feel another's pain, or even understand another's situation? And to what end do we seek this understanding? Tennessee Williams captures the conundrum underlying the first of these questions: Nobody sees anybody truly but all through the flaws of their own egos. That is the way we all see each other in life. Vanity, fear, desire, competition—all such distortions within our own egos—condition our vision of those in relation to us. Add to those distortions in our own egos the corresponding distortions in the egos of others and you see how cloudy the glass must become through which we look at each other.13

Let me be clear—I am in no way dismissing the effort to achieve imaginative understanding of others, but it is important to realize that the effort, however well intentioned, is constrained by each individual’s particular capabilities and limitations. We best understand that which conforms to our own experience, or at least to our own brand of experience. In order to bridge disparate types of experience, so as to facilitate empathy across a broader range of contexts, it is often necessary to emphasize commonalities, and to downplay perspectives that are not shared. This may effectively serve to perpetuate, rather than challenge, the status quo. Consider, for example, the dark underbelly of empathy, as illustrated in a recent notorious case. In that case, the defendant found his wife in bed with another man at midnight, chased the man away, drank and argued with his wife until four a.m., and then fatally shot her in the head with a hunting rifle. A Baltimore County Circuit Court judge sentenced the defendant to eighteen months in prison for voluntary manslaughter, saying “I seriously wonder how many men married five, four years would have the strength to walk away without inflicting some corporal punishment.”14 The judge’s reaction was the one that came most easily—prereflective and self-referential. The judge starkly demonstrated his inability to diverge from his patterned, preconscious response to the situation. The useful response would have been the more difficult one—an effort to understand or experience the viewpoint most unlike his own. The Baltimore case is unusual because the easy identification for the judge was with the defendant. This, unfortunately, is more often true in cases of rape and domestic violence, in Lynne N. Henderson, “Legality and Empathy,” Michigan Law Review 85, no. 7 (1987): 1579. Posner, Overcoming Law, 158. 13 Tennessee Williams, Letter to Elia Kazan, in The Fifties, David Halberstam (New York: Villard Books, 1993), 262. 14 Tamar Lewin, “What Penalty for a Killing in Passion?” New York Times, October 21, 1994. 11 12

520  Research handbook on law and emotion which predominantly male judges find it easier to make the empathetic link with male defendants, than in cases of other crimes. More often, the difficulty for the trier of fact is in making the empathetic link with the defendant, in seeing the defendant’s shared humanity. In either situation, though, the real importance of empathy lies in its counternarrative aspect—it enables the trier of fact to imagine himself in the place of another. Before we can empathize in this way, we must realize that the dominant perspective, or one’s own perspective, or any particular perspective, is not universal. Judges in particular must understand this. Whereas the juror and the attorney receive constant reminders that their perspectives are partial, the judge is encouraged by every trapping of the judicial role to believe that his own perspective is truly universal—a grave danger indeed. Although the judge ostensibly speaks in his own voice, in order to appear authoritative he must project a larger, more transcendent persona. He does this by speaking declaratively, in the language of certainty. As Robert Ferguson explains, the judicial opinion (particularly the majority opinion) seeks to achieve the rhetoric of inevitability, “a rhetoric which admits of no freedom of choice on the part of the judge.”15 According to Robert Cover, this rhetoric must give the “impression ... of bowing ... to the inexorable force of crystal clear demands,”16 so that regardless of his decision in any case, the judge may experience himself as a moral person who is simply bowing to irresistible forces that transcend his own conscience or sense of justice. Thus the judge’s claim to speak in a universal voice goes hand-in­hand with his claim to have moved beyond individual emotions and morals into the emotionless realm of the rule of law. This judicial mentality exacts terrible costs. It demeans litigants and others whose claims fall outside the ambit of the “universal” voice, those whose claims evoke emotions that the judge either cannot understand or cannot admit feeling (such as racial hatred). This mentality conversely privileges emotions that the judge doesn’t think of as “emotional” (such as the zeal to prosecute and the desire for revenge). Most disturbingly, it permits a retreat from responsibility. Because the judge has not truly understood the consequences to the excluded litigants, and because, to the extent he has understood them, he has not accepted responsibility for causing them, he is able to exact these costs while minimizing his own emotional distress. Therefore, the empathetic mode does have important attributes to offer the judge. First of all, it can help the judge understand, experientially rather than intellectually, that “[t]here is another world ‘out there,’”17 and that many people live under conditions very different from those with which he is familiar. In a criminal case, the effort to understand the defendant's perspective can yield information valuable for both the guilt and sentencing phases of the trial. As I discuss below, this type of understanding is not necessarily incompatible with judging—one may understand a defendant’s perspective without absolving him of responsibility. In addition, simply incorporating some of the language of empathy and compassion into the judicial vocabulary would enable a judge to face more directly the “burden and pain of judging.”18

Robert A. Ferguson, “The Judicial Opinion as Literary Genre,” Yale Journal of Law & the Humanities 2, no. 1 (1990): 213–16. 16 Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975), 223. 17 Beal v. Doe, 432 U.S. 438, 463 (1977). 18 Judith Resnik, “On the Bias: Feminist Reconsiderations of the Aspirations of Our Judges,” Southern California Law Review 61, no. 6 (1988): 1926. 15

Empathy, narrative, and victim impact statements  521 Nevertheless, before we ask how best to incorporate empathy into judging, we should acknowledge that the relationship between a judge and a defendant is not a therapeutic one. The judge is, after all, ultimately there to pass judgment. In the criminal context he is there to sentence. In the capital context, the sentence may be death. Empathy, by itself, is merely an instrumental concept. It is not an emotion, benign or otherwise, but rather a capacity, a tool used to achieve a variety of ends. Psychoanalysts regard empathy as a means of diagnosing and treating their patients. Transplanting the concept from the psychological to the legal context erases its ordinary meaning. Therefore, empathy must be redefined in the legal context with reference to the instrumental ends for which it is employed. Dr. Michael Basch put it well: Empathy is first and foremost a capacity. Strictly speaking, it is value-free. Empathic thinking ... is a function that the human brain at a certain level of development is potentially capable of performing, no more and no less. This is often not understood, and empathy becomes confused with altruism and other-directedness, though it need not be employed in the service of either goal.19

What one does with the insight provided by empathic understanding remains to be determined by the nature of the relationship between the people involved and the purpose for which the empathic capacity was engaged by its user in the first place. Thus, empathy lends itself to many ends, in the legal arena as elsewhere. Although the term often evokes appealing images of friends experiencing each others' joys and sorrows, in the legal arena empathy can be used—or misused—across the whole spectrum of human relationships: for example, between lawyer and client, suspect and investigator or prosecutor, and litigant and judge. In addition to the example of the judge in a capital case, consider two other illustrations of the use of empathy. First, empathy is a tool of the court-ordered psychiatrist, who, depending on his findings, may testify against the interests of the defendant. As Daniel Shuman explains: [The] information is gathered during a forensic relationship that is unbalanced; it is not a voluntary relationship that [the] patient chooses to enter or terminate. The participants do not share a common goal of patient benefit. The rules of confidentiality do not apply. It is an adversarial relationship arising out of a judicial proceeding, with the examiner having the capacity to influence the result of a judicial proceeding against the defendant.20

Second, empathy is a tool of the police officer interrogating a suspect. Police manuals advise interrogators to win the trust of the suspect by using such empathetic devices as sympathizing with the suspect's plight and placing themselves in the suspect's shoes. The tactics used to elicit a confession from Susan Smith exemplify graphically the use of empathy in this context. After telling her that he knew she was lying, the officer interrogating Ms. Smith prayed with his suspect, and held her hand. The officer probably felt compassion for Ms. Smith, but he also had a job to do.21 As with the sentencing judge and the court-ordered psychiatrist, the police 19 Michael Franz Basch, “Empathetic Understanding: A Review of the Concept and Some Theoretical Considerations,” Journal of the American Psychoanalytic Association 31, no. 1 (1983): 119. 20 Daniel W. Shuman, “The Use of Empathy in Forensic Examinations,” Ethics & Behavior 3, no. 3-4 (1993): 296. 21 Rick Bragg, “A Killer’s Only Confidant: The Man Who Caught Susan Smith,” New York Times, August 4, 1995.

522  Research handbook on law and emotion interrogator used empathetic listening to win and then betray his suspect's trust in a situation in which he held the balance of power. In all of these examples, empathy helps one participant gain knowledge and understanding from another who has no choice but to cooperate, and who has much to lose from his cooperation. It thus serves to further exacerbate the imbalance of power, and thereby ratify rather than challenge the status quo. Empathy is an instrumental concept, and, in the legal arena, it is also a political concept. Ideas about therapeutic empathy and commonality of interpretation look foolishly sentimental when the empathizer is in a dominant position. The real challenge is to create actual political equality. Empathy may be harnessed in service of this ideal, but by itself it won’t get us there.

THE ROLE OF NARRATIVE [This section has been substantially edited for the sake of brevity]. The scholarship on the emotional content of law and the scholarship on the narrative content of law… both emphasize our individual differences and the biases that inevitably shape our understanding of the law. However, bias is a misleading term in this context if its recognition implies that there is an unbiased norm. More accurately, every understanding of the law is partial, situated, and contingent—who we are shapes what we hear and understand. Accepting this premise paves the way for the crucial insight of both strands of scholarship. The law can present itself as authoritative, hard, and inevitable, transcending passion, bias, and individual morality, by marginalizing certain modes of perception and placing its imprimatur on others. Compassion, empathy, and mercy are marginalized as “emotional” and therefore inappropriate, while at the same time the hatred and prejudice in Bowers v. Hardwick,22 the mean-spirited formalism of Lockhart v. Fretwell,23 or DeShaney,24 and the zeal to prosecute and execute in Herrera v. Collins,25 are portrayed as being inexorably compelled by logic and precedent. This categorization represents an assertion of power to privilege one emotional mode and denigrate another. As to narrative, certain categories of stories are relegated to the status of outsider narratives—suspect, implausible, and optional—while others speak the rhetoric of universality and inevitability, and are thus authoritative. This dichotomy likewise represents an assertion of power to privilege some voices and marginalize or even silence others. Eventually, in both the emotional and the narrative contexts, the assertions of power become invisible, and the dominant emotional mode, the insider narrative, appears neutral and natural. This insight provides the normative grounding for both strands of scholarship, and thus the limiting principle that allows us to define where in the legal context certain emotions are appropriate. First and foremost, this principle tells us that neither narrative nor any particular emotion is an unmitigated good, desirable regardless of context. Unguided discretion can be dangerous. In a court of law, as opposed to a therapist’s office, not every voice can be given its due cost-free. The order of the day is not unconditional acceptance, but rather weighing, deciding, judging, and sentencing. Not every empathetic impulse is appropriate. As a result,

24 25 22 23

Bowers v. Hardwick, 478 U.S. 186 (1985). Lockhart v. Fretwell, 506 U.S. 364 (1993). DeShaney, 489 U.S. 189 (1989). Herrera v. Collins, 506 U.S. 390 (1993).

Empathy, narrative, and victim impact statements  523 we need some safeguards to ensure that critical reflection supersedes preconscious prejudice, and to ensure equality of treatment. The challenge, then, is to design frameworks that incorporate and respond to the experiences of subordinate groups. Next, I illustrate and apply these principles in the context of victim impact statements.

VICTIM IMPACT STATEMENTS Death penalty jurisprudence provides a particularly rich context for a discussion of emotion and narrative in the law because it implicates all of the themes noted above. Current Eighth Amendment doctrine requires capital sentencing to be contextual and particularistic. Yet this requirement raises converse concerns about unguided discretion and inadequate structure. Capital sentencing heightens the tension, always present in the law, between structured and contextual decision making: both aspects are crucial to the constitutionality of the enterprise yet they seem mutually exclusive.26 As Robert Weisberg has said, “[c]apital punishment is at once the best and worst subject for legal rules.” The stakes are so high, the decision calls out for objective rules. Yet the ultimate decision is “an intensely moral, subjective matter.”27 Capital punishment jurisprudence is also unavoidably emotional. Indeed, it is one of the rare areas of law in which an explicit dialogue about emotion takes place. Cases such as California v. Brown,28 which considered the constitutionality of an anti-sympathy jury instruction, discuss mercy, sympathy, and emotion, and their place in capital sentencing. Less explicit but also pervasive in death cases are the emotions of anger, outrage, frustration, impatience, vengeance, fear, and, arguably, racial hatred. Capital cases often extract a palpable emotional toll from their participants, including some Supreme Court justices. The high stakes and the inherent subjectivity of the judgment—with its requisite balancing of mercy, vengeance, and retribution—make this a context in which the emotional variables present in all legal decision making exist exquisitely close to the surface. Capital punishment jurisprudence thus contains many of the buzzwords found in contemporary legal scholarship—“contextual,” “particularistic,” “emotion-laden,” “rife with narrative.” The controversy over victim impact statements provides a concrete setting for an examination of these terms. For example, a recent defense of victim impact statements by Paul Gewirtz illustrates how these terms, which seem to describe desirable attributes, can be used to argue for undesirable outcomes. When uninformed by normative criteria, the terms prove entirely malleable. Gewirtz argues that victim impact statements possess several attributes currently valued in progressive circles. They are a form of narrative, and moreover, they are outsider narratives; they are a vehicle through which otherwise silenced voices may be heard in the judicial process. They are contextual and particularistic-they invite case-by-case consideration of the harm to the victim and survivors, and of what punishment it ought to elicit. Finally, in Gewirtz's words, they “invite[ ] empathetic concern in a way that abstractions and general

26 Scott E. Sundby, “The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing,” UCLA Law Review 38, no. 5 (1991): 1164–86. 27 Robert Weisberg, “Deregulating Death,” Supreme Court Review (1983): 308. 28 California v. Brown, 479 U.S. 538 (1987).

524  Research handbook on law and emotion rules do not, and encourage [ ] appreciation of complexity.”29 Thus, as Gewirtz adroitly demonstrates, victim impact statements appear to possess all of the progressive, pragmatic, and feminist attributes we say we value. Nevertheless, victim impact statements ought to be suppressed. Booth was correctly decided—at least in its result—and the Payne Court erred in overruling it. This conclusion rests on a rejection of either narrative or empathy as an absolute good, and on an insistence that their attributes be judged both contextually and according to moral principles. Victim impact statements are stories that should not be told, at least not in the context of capital sentencing, because they block the jury’s ability to hear the defendant's story. Moreover, they evoke emotions that do not belong in that context. Victim impact statements illustrate the pitfalls of acontextually prioritizing any emotion— no matter how benign the emotion may seem. Likewise, they illustrate that storytelling can be used for distinctly unprogressive ends. Ultimately, they illustrate the emptiness of the concepts of empathy and narrative when they are not constrained by extrinsic normative, political, or moral principles. The Wrong Emotions Most scholars who study emotion agree that emotions are partially cognitive, and, therefore, educable. If emotions can indeed be educated, then we must face the question of whether emotions are hierarchical. That is, are certain emotions more desirable—for example, more moral, ethical, healthy, helpful, or utilitarian—than others? Many philosophers and psychologists have studied this question. The philosopher Ronald de Sousa, for example, suggests several possible principles for distinguishing good from bad emotions. Ultimately, he concludes that very few emotions are completely without moral foundation—he singles out prejudices of race, class, and sex as “unredeemably nasty by-products of evolution and development.”30 A number of contemporary philosophers have advanced arguments that emotions are hierarchical, and that particular emotions deserve privileged places in the hierarchy. Martha Nussbaum, for example, has eloquently argued that in the context of judging and punishing accused criminals, equity and mercy are emotions of a higher order than the primitive emotions associated with the retributive urge.31 Also influential have been Nel Noddings’ argument for caring32 and Lynne Henderson’s for empathy.33 Yet respected scholars have also advanced spirited defenses of resentment34 and hatred as well as revenge.35 Perhaps all scholars would stipulate that prejudice and bigotry are emotions of a lower order, not to mention generally unconstitutional when acted upon. Beyond this stipulation, however, it would be difficult to find consensus for any particular hierarchy. 29 Paul Gewirtz, “Victims and Voyeurs: Two Narrative Problems at the Criminal Trial” in Law’s Stories: Narrative and Rhetoric in the Law, eds, Peter Brooks and Paul Gewirtz (New Haven: Yale, 1996), 142–43. 30 Ronald de Sousa, The Rationality of Emotion, (Cambridge: MIT Press, 1987), 315–16. 31 Martha Nussbaum, “Equity and Mercy,” Philosophy & Public Affairs 22, no. 2 (1993): 125. 32 Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education (Berkeley: University of California Press, 1984), 98–103. 33 Henderson, “Legality and Empathy,” 11. 34 Murphy and Hampton, Forgiveness and Mercy, 16–19, 89–90. 35 Jacoby, Wild Justice, 1–4.

Empathy, narrative, and victim impact statements  525 Despite the disagreement on the value of particular emotions, the philosophic debate does reflect a consensus of a more important sort: all appear to agree that value choices are possible, and even unavoidable, when we talk about how we should live our emotional lives. The debate over victim impact statements is, unavoidably, about just such choices. Their defenders call them vehicles for such benign values as empathic concern and inclusion. I argue that the emotions they evoke—hatred, bigotry, and unreflective empathy—demean the dignity of both victim and defendant. In the capital context, the threshold question is how victim impact statements comport with the dictates of the Eighth Amendment. Today, however, it is clearer than ever that the Eighth Amendment does not “dictate” much at all. To see this, one need only contrast Justice Brennan's conception of the Eighth Amendment as precluding the death penalty entirely with Justice Scalia's conception of the Eighth Amendment as permitting each community nearly unlimited power to both impose the death penalty and define its parameters. Justice Brennan's understanding of the Eighth Amendment flows from his belief in the basic dignity of every member of the human race;36 Justice Scalia’s flows from his belief in the importance of local control and deregulation.37 More specifically, Justices Brennan and Scalia have sharply divergent views on the purposes of punishment, and these go a long way toward explaining their views on victim impact statements. Although external values should inform the interpretation of any provision of the Bill of Rights, the Eighth Amendment makes such information mandatory; by incorporating a community judgment, it guarantees that individual emotional and moral choices will be part of the decision. There is a moral crux to the decision whether to admit victim impact statements. The decision requires judging the value of the emotions the statements evoke, both toward the defendant and toward the victim. At bottom, the moral objection to victim impact statements is that they deny the humanity—and the basic dignity—of both defendant and victim. The Defendant Victim impact statements evoke not merely sympathy, pity, and compassion for the victim, but also a complex set of emotions directed toward the defendant, including hatred, fear, racial animus, vindictiveness, undifferentiated vengeance, and the desire to purge collective anger. These emotional reactions have a crucial common thread: they all deflect the jury from its duty to consider the individual defendant and his moral culpability. Undifferentiated vengeance Booth held victim impact statements inadmissible, noting that the jury's decision to sentence the defendant to death must rest on the character of the individual defendant and the circumstances of the crime, and not on extraneous factors such as the character of the victim. Payne rejected this rationale, holding that the defendant is not entitled to receive individualized “consideration wholly apart from the crime which he ha[s] committed.”38

36 William J. Brennan, Jr., “Foreword: Neither Victims nor Executioners,” Notre Dame Journal of Law, Ethics & Public Policy 8, no. 1 (1993): 7. 37 Payne, 501 U.S. at 833–35. 38 Payne, 501 U.S. at 822.

526  Research handbook on law and emotion The rationale adopted by the Payne majority obfuscates the real issue. Of course, in many respects the harm caused by a criminal act is relevant to determining the defendant's level of responsibility, at both the guilt and sentencing phases. To take an easy example, murder and attempted murder are defined and punished differently, even though the act and the intent may be identical in each case, and the only difference may be the fortuity of whether the victim survived or died. But certain other fortuities ought to be irrelevant. Again taking an easy example, the law ought not to condone punishment of a defendant that varies according to the social class or the race of his victim. Such ugly disparities are undeniably part of the realist land­ scape, but Payne completely avoided the question of whether the legal system, by permitting victim impact statements, should encourage them. The usual justifications advanced for the death penalty are retribution and deterrence. The justifications for admitting victim impact statements, however, arguably satisfy a different, less savory, set of objectives. Justice Scalia’s dissenting argument in Booth, which ultimately prevailed in Payne, was that punishment should be keyed not to the defendant’s moral guilt, but to the total harm caused by his actions, whether direct or tangential, intended or unintended, foreseeable or unforeseeable.39 Steven Gey suggests that this rationale for victim impact state­ments is far more radical than garden-variety retribution. Gey argues that, under Scalia’s view, the sentencing body at a capital trial could “use the unanticipated and unknown consequences of a particular defendant's actions as an aggravating factor” in sentencing the defendant, solely “because society has an abstract need to ameliorate its ‘public sense of injustice’ at criminal harms generally.”40 As Gey points out, the idea of venting collective outrage diverges sharply from traditional retributive theory, which does not use punishment merely as a means to promote some other good.41 Martha Nussbaum makes a similar point. She argues that a characteristic of primitive forms of justice is a lack of concern for the particulars of retribution—such as the existence of mitigating circumstances or even whether the person who pays for the wrong was the one who committed it. She sees victim impact statements as a vehicle for venting society’s crude passion for revenge.42 To the extent victim impact statements are driven by a thirst for undifferentiated vengeance, and therefore shift the focus from the moral culpability of the individual defendant, they offend a bedrock moral principle. Rules concerning life and death should not operate like lotteries.43 Rather, when our society is choosing which heinous murderers to kill and which to spare, its gaze ought to be carefully fixed on the harm they have caused and their moral culpability for that harm, not on irrelevant fortuities such as the social position, articulateness, and race of their victims and their victims’ families.

Booth, 482 U.S. at 519-21. Steven G. Gey, “Justice Scalia’s Death Penalty,” Florida State University Law Review 20, no. 1 (1992): 120. 41 Gey, “Justice Scalia’s Death Penalty,” 123. 42 Nussbaum, “Equity and Mercy,” 89–90. 43 See Ronald Dworkin, Law’s Empire (Cambridge: Belknap Press, 1986): 178–86, for discussion of principle that “checkerboard” decisions—decisions based on arbitrary and irrelevant criteria, such as that every third person should be executed—should be ruled out because they fail to take account of the moral status of persons. See also Shirley Jackson’s terrifying short story about scapegoating “The Lottery,” in The Lottery: Or the Adventures of James Harris (Cambridge: Bentley, 1980). 39 40

Empathy, narrative, and victim impact statements  527 The right emotions in the wrong contexts Victim impact statements illustrate concretely the ambiguous nature of the term empathy, the dangers of arbitrariness and prejudice inherent in encouraging empathy, without sufficient structural safeguards, and the undesirability of empathy unaccompanied by critical reflection. Victim impact statements convey information; is more information necessarily better? Assuming the empathy elicited by the statements is good, why not encourage it by exposing the decision maker to more voices? There are several problems with this reasoning and its underlying assumptions. First, not everyone is equipped to hear every voice. We feel empathy most easily toward those who are like us. As for people from backgrounds—ethnic, religious, racial, economic— unlike our own, however, there is a pervasive risk that our ability to empathize will be inhibited by ingrained, preconscious assumptions about them. We all have limited perspectives and a limited ability to empathize with those who do not share our life experiences and values. When the unusual case comes along in which the members of a capital jury are able to see the defendant as one of their own, we take notice. Consider the recent decision of the jury in Susan Smith’s trial for drowning her two sons. The jury was drawn from the close-knit community of Union, South Carolina, where Smith and her extended family had lived for a considerable time. The jurors declined to sentence Smith to death, citing sympathy for her difficult life, sympathy for her family, which would lose yet another member if she were executed, and their own need to live in the community with the Smith family. Juror Roy Palmer said that had he voted for death, “he still would have had to pass by Smith’s family members in the streets and supermarket aisles of this small town. ‘I might have wanted to hang my head,’ said Palmer.”44 Most felt outrage and contempt toward Susan Smith, but the jurors saw her as an individual, a human being, someone like them in important ways. Ultimately, they felt compassion for her and could not vote to kill her.45 More often, for the jury to empathetically connect with the defendant during the sentencing phase of a capital trial is an extremely difficult task. Not only has the defendant been convicted of a heinous crime—a fact that by itself sets him very much apart from the jury’s experience— but he may be from a radically different socioeconomic milieu as well. Thus, the jury has difficulty making an empathetic connection without the help of judicial rules and structures that both encourage that connection and place in perspective the more natural, instinctive connection that most jurors feel with the victim. No matter how well intentioned the members of the jury might be, to the extent their feelings toward the defendant are preconscious, widely shared, and, therefore, effectively invisible, they will be unable to critique or to distance themselves from those feelings without the help of rules that limit their discretion. The feeling of identification with the victim of a crime often comes naturally. In fact, some psychological literature identifies fear of being in the same position of suffering as an important component of empathy. Whether this ought to qualify as putting oneself in another's shoes or simply as a prereflective and self-referential reflex is an interesting semantic question. Indeed, some scientists argue this kind of empathy is of a lesser, instinctual variety: [These] researchers argue that a version of empathy developed with the evolution of mammals, which care for their young over a protracted period and thus require a mechanism for identifying need in

Mike Dorning, “Susan Smith’s Jurors Felt Her Pain,” Chicago Tribune, July 30, 1995. Dorning, “Susan Smith’s jurors.”

44 45

528  Research handbook on law and emotion others—the young—and responding appropriately. These scientists define empathy as including some seemingly fraternal behaviors that have a nearly automatic feel to them. If you see a person bump a shin into a fire hydrant, for example, you very likely will wince with vicarious pain. Such knee-jerk reactions suggest to some that empathy is an evolutionarily ancient response, its neural and physiological mechanisms in place long before the advent of Homo sapiens or even primates.46

Even if one chooses to call this reflexive identification empathy, it lacks a crucial component of understanding-critical distance. Contrary to Justice Stevens’ assertion in his dissent in Payne, the problem with victim impact statements is not that they evoke emotion rather than reason.47 Rather, it is that they evoke unreasoned, unreflective emotion that cannot be placed in any usable perspective. In evidentiary terms, victim impact statements are prejudicial and inflammatory. They overwhelm the jury with feelings of outrage toward the defendant and identification with the victim. Finally, victim impact statements diminish the jury’s ability to process other relevant evidence, such as evidence in mitigation. This point identifies the fatal flaw in the “more empathy is better” argument. The admission of a victim impact statement does not simply expand the jury’s empathetic horizons by making the victim more human. Instead, it interferes with—and indeed may completely block—the jury’s ability to empathize with the defendant or comprehend his humanity. The skewed playing field Payne incorrectly assumes that victim impact statements remedy an inequality of treatment between victim and defendant. However, there is no requirement of parity in the treatment of victim and defendant. As I have argued in detail elsewhere, the Bill of Rights is designed to level the playing field between the defendant and the state; its provisions afford extra protections to the former to counteract the awesome power of the latter… Thus, in the context of capital punishment, the Eighth Amendment has been properly interpreted to give the defendant more latitude than it gives the state. Specifically, it requires courts to admit unlimited mitigation evidence, so that the jury may choose to be merciful for any reason or no reason at all, yet it requires courts to limit aggravation evidence to that which is relevant to the defendant's character and the circumstances of the crime. It thus tries, albeit vainly, to achieve the oxymoronic ideal of “guided discretion.”48 Finally, even assuming the playing field between victim and defendant ought to be level, the Payne Court is incorrect in believing that victim impact statements achieve this purpose. Payne states that: [T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.49

The Court here assumes that, in the absence of victim impact statements, the defendant has the advantage at the penalty phase. To the contrary, the empathic connection between jury

48 49 46 47

Angier, “Scientists Mull Role of Empathy in Man and Beast.” Payne, 479 U.S. at 856. Sundby, “The Lockett Paradox,” 1161–64. Payne, 501 U.S. at 825.

Empathy, narrative, and victim impact statements  529 and victim is, in most cases, easily made. The jury, having just convicted the defendant of a heinous crime, is far more likely to begin the penalty phase feeling empathy toward the victim than the defendant. It is the defendant who is at a disadvantage, and who needs rules and structures to enable the jury to make the empathic connection with him. It is the defendant whose life is in the jury’s hands, who is in danger of being dehumanized, and who is literally threatened with banishment from the human community. In order to decide whether to exercise mercy, the jury must attempt to put itself, at least briefly, in the shoes of the defendant. The jury’s ability to do so is hampered by the admission of statements that play upon its natural empathy for the victim. Martha Nussbaum defends the Aristotelian concept of the equitable person as one who “judges with” the wrongdoer. In this conception, in order to accurately judge the wrongdoer, one must see things from his point of view; only then does one comprehend what obstacles he faced.50 One might object, as Judge Posner does, that “when we succeed in looking at the world through another's eyes, we lose the perspective necessary for judgment.”51 Indeed, as I argued earlier, it is important not to confuse the sentencing phase of a criminal trial with the therapeutic process. The defendant has been convicted of a crime, and he must be punished. Nevertheless, the function of the sentencing hearing is to provide the sentencing body with additional information about the wrongdoer in order to inform the determination of an appropriate sentence. Moreover, it is possible to understand the wrongdoer’s actions more fully without absolving him of blame. As Alice Miller says, telling the murderer’s story doesn’t exonerate him, but “show[s] that every one of his actions had a meaning that can be discovered only if we free ourselves from the compulsion to overlook the context.”52 Moreover, information gained in attempting to understand any given wrongdoer may be useful not merely in adjudicating his individual case, but also in comprehending the larger societal context in which crime and punishment take place. The rationale underlying Payne emphasizes the connections among victims. Concomitantly, it seeks to atomize and isolate each defendant in a fault-based world of his own making. Such reasoning is sadly blind to the fact that it is possible to hold the defendant responsible for the consequences of his wrongful act without forgetting that there are historical, political, racial, and economic determinants that consistently disadvantage particular groups. To the extent larger systemic change may be capable of breaking this vicious circle of crime and punishment, the additional information gained through empathizing with capital defendants can only be useful. The victim Victim impact statements are billed as encouraging empathy for the victim, allowing the otherwise silenced victim to tell his story, and, more generally, empowering victims in the legal system. Quite to the contrary, though, victim impact statements may actually disempower, dehumanize, and silence victims. In short, victim impact statements offend human dignity— the victim’s as well as the defendant’s. A major problem with victim impact statements is that they may not be helpful to the victim—or even true to the victim’s experience—despite the victims’ rights’ rhetoric. Justice Nussbaum, “Equity and Mercy,” 94. Posner, Overcoming Law, 382. 52 Alice Miller, For Your Own Good: Hidden Cruelty in Child-Rearing and the Roots of Violence (New York: Farrar, Straus, Giroux, 1983), 226. 50 51

530  Research handbook on law and emotion Scalia argues that the statements lay out the full reality of the human suffering caused by the defendant. But the suffering of crime victims may take many different forms, and it is difficult and dangerous to generalize about what victims experience, what victims want, or what is best for victims. Martha Minow points out that the victim impact statement itself does not really encourage empathy in the sense of allowing us to know the victim in his or her particularity. Instead, it generally draws on stock “victim” imagery. Anything richer would undermine the desired sense of victimhood.53 Victim impact statements offend victims’ individuality and dignity in an even more pernicious way. In Payne, Chief Justice Rehnquist stated that the “victim impact evidence is not offered to encourage comparative judgments [of the victim's worth, but] ... is designed to show instead each victim’s ‘uniqueness as an individual human being.’”54 But saying it doesn’t make it so. As one satirical article put it, “the entire tenor of the Court’s Payne opinion implicitly stamps an imprimatur upon this blunt fact: Some murder victims are necessarily more valuable than others.”55 Victim impact statements permit, and indeed encourage, invidious distinctions about the personal worth of victims. In this capacity, they are at odds with the principle that every person’s life is equally precious, and that the criminal law will value each life equally when punishing those who grievously assault human dignity. Commentators have observed that the victims’ rights movement revives the concept of privatized justice, by portraying the criminal case as a struggle between the defendant and the victim's family and by seeming to erase the role of the state. With Payne, the Court has disinterred a primitive version of privatized justice, one that not only pits the defendant against the victim’s family, but revives the notion that different victims call for different levels of compensation. Finally, to the extent valuation does occur, it will often be very difficult to detect because much of it will take place sub rosa. Angela Harris raises the concern that victim impact statements play on our preconscious prejudices and stereotypes.56 And while it is unlikely that any jury expressly debates the issue, the Baldus studies demonstrate that juries value white victims more than they do black victims, and that their most feared scenario is the black defendant murdering the white victim.57 Victim impact statements thus have the ugly potential to introduce these repugnant calculations into the sentencing process, and to do so with the sanction of the state. Counternarratives The Payne Court chooses to tell a particular story. Its narrative about the defendant’s violence and personal responsibility is thick, as is its narrative about the victim’s individual characteristics. It chooses not to tell other stories: the complex story of the defendant’s own web of personal circumstances; the larger story of another kinds of violence, [such as] the violence of racial injustice, poverty and abuse. The important point, both generally and in regard to victim impact statements, is that not every story should be told, or every voice heard, in the legal context. The question is always

Martha Minow, “Surviving Victim Talk,” UCLA Law Review 40, no. 6 (1993): 1432. Payne, 501 U.S. at 823. 55 Teree E. Foster, “Beyond Victim Impact Evidence: A Modest Proposal,” Hastings Law Journal 45, no. 5 (1994): 1312. 56 Angela P. Harris, “The Jurisprudence of Victimhood,” The Supreme Court Review (1991): 94–95. 57 See McCleskey v. Kemp, 481 U.S. 279, 326–27 (1987). 53 54

Empathy, narrative, and victim impact statements  531 which narratives we should privilege and which we should marginalize or even silence. Booth rested on the recognition that different stories are appropriate in different contexts, and that in the context of the capital sentencing hearing, the focus must be on the story of the defendant’s character and circumstances. Booth further recognized that victim impact statements would not merely expand the number of stories available to the trier of fact, but, rather, would divert and detract from this constitutionally required focus.58 We do not need elaborate structures to assist us in feeling fear, pain, and grief for those like us who have suffered violence at the hands of the other. This is already the dominant narrative of the criminal trial. The difficult challenge lies in making possible the decision maker’s identification with the other. To achieve that goal the legal system needs to afford the decision maker an opportunity to hear the counternarrative, not the stories of the parties with whom it already empathizes. Payne, coupled with Brown, which permits the judge to instruct the jury not to give in to its natural sympathy toward the defendant, does not merely seek to give a voice to the silenced victim; perhaps it does not even seek that. The victim impact statement was never intended simply to provide more information; rather, it has a political and strategic purpose all its own. The victim impact statement dehumanizes the defendant and employs the victim’s story for a particular end: to cast the defendant from the human community.

CONCLUSION: WHY CAN’T LAW BE MORE LIKE LITERATURE? I have argued that neither empathy nor narrative can be considered an unmitigated good in the legal context—that each must be assessed in light of external normative principles. To the extent we recognize that the law is imbued with narrative and emotional content, we can begin to identify the dominant narratives that were heretofore invisible, and to evaluate those that ought to be privileged. But just as notions of narrative and empathy cannot determine our values for us, neither is the notion of outsider narratives outcome determinative. Identifying marginalized narratives unmasks privilege and allows us to dis­cuss what ought to be done about it. But the hard questions still remain. I think of Mark Yudof's question: What of the voice of the rapist? He concludes that though the rapist's voice is human, “[t]he rape victim’s human voice does and should drown [it] out.”59 It is true that the rapist, however impoverished or abusive his background, must be held accountable for his crime. But in this situation, both the rapist and the rape victim may be outsiders, in various ways. Just as the rapist’s guilt may be better understood in a larger social, political, and historical context, so too the law—as constructed and interpreted by men—has for historical and political reasons shown far too much sympathy and even forgiveness for the rapist. Unavoidably, we will need to evaluate “competing claims of victimization,”60 and there is no magic formula for doing so without reference to extrinsic values. If we try to understand the rapist, what will result? Judge Posner says the following:

Booth, 482 U.S. at 502–07. Mark G. Yudof, “‘Tea at the Palaz of Hoon:’ The Human Voice in Legal Rules,” Texas Law Review 66, no. 3 (1988): 602. 60 Minow and Spelman, “Passion for Justice,” 1437. 58 59

532  Research handbook on law and emotion To understand another person completely is to understand the causality of his behavior, to see ... [it] as determined rather than responsible .... If we understand a criminal’s behavior as well as we understand a rattlesnake’s behavior, we are unlikely to accord him much dignity and respect.61

Perhaps. Maybe all we will feel is contempt, loathing, and a desire for revenge. On the other hand, Martha Nussbaum praises the philosopher Seneca, who argued that a merciful attitude achieves more accurate results; it regards each particular case as a complex narrative of human effort in a world full of obstacles. In Toni Morrison’s novel, The Bluest Eye,62 she tells the story of Pecola Breedlove, a black girl in a society that defines goodness and beauty in terms of whiteness. Many forces converge to ensure Pecola’s destruction, but her father, Cholly Breedlove, contributes far more than his share to her misery. Ultimately, he rapes her—in fact, he rapes her twice. These two acts, coupled with her mother’s act of blaming her for the rapes, propel her into madness. The remarkable achievement of the novel is that the reader does come to understand Cholly—he is a product of ongoing, brutal dehumanization, described in heartbreaking detail. One cannot possibly forgive or excuse Cholly’s treatment of Pecola, but neither can one ignore his humanity. Morrison has ensured that we will see him as a person—and that is an accomplishment. Law is not literature, but people are not rattlesnakes. The Court’s recent death penalty jurisprudence has a decidedly political agenda—it dehumanizes the defendant in order to more easily cast him out of the human community. We ought not to pretend that storytelling and empathy are value neutral, when in fact they are potent weapons in the battle over a basic question of values: whether every human being is entitled to some dignity.

REFERENCES Angier, Natalie. “Scientists Mull Role of Empathy in Man and Beast.” New York Times, May 9, 1995. Basch, Michael Franz. “Empathetic Understanding: A Review of the Concept and Some Theoretical Considerations.” Journal of the American Psychoanalytic Association 31, no. 1 (1983): 101–26. Beal v. Doe, 432 U.S. 438, 463 (1977). Booth v. Maryland, 482 U.S. 496 (1987). Bowers v. Hardwick, 478 U.S. 186 (1985). Bragg, Rick. “A Killer’s Only Confidant The Man Who Caught Susan Smith.” New York Times, August 4, 1995. Brennan, William J., Jr. “Foreword: Neither Victims nor Executioners.” Notre Dame Journal of Law, Ethics & Public Policy 8, no. 1 (1994): 1–9. Brennan, William J., Jr . “Reason, Passion, and ‘The Progress of the Law.’” Cardozo Law Review 10, no. 1–2 (1988): 3–24. Cover, Robert M. Justice Accused: Antislavery and the Judicial Process. New Haven: Yale University Press,1975. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). De Sousa, Ronald. The Rationality of Emotion. Cambridge: MIT Press, 1987. Dorning, Mike. “Susan Smith’s Jurors Felt her Pain.” Chicago Tribune, July 30, 1995. Dworkin, Ronald. Law’s Empire. (Cambridge: Belknap Press, 1986).

Posner, Overcoming Law, 382. Toni Morrison, The Bluest Eye (New York: Washington Square Press, 1970).

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Empathy, narrative, and victim impact statements  533 Ferguson, Robert A. “The Judicial Opinion as Literary Genre.” Yale Journal of Law & the Humanities 2, no. 1 (1990): 201–19. Foster, Teree E. “Beyond Victim Impact Evidence: A Modest Proposal.” Hastings Law Journal 45, no. 5 (1994): 1305–27. Gewirtz, Paul. “Victims and Voyeurs: Two Narrative Problems at the Criminal Trial.” In Law’s Stories: Narrative and Rhetoric in the Law, edited by Peter Brooks and Paul Gewirtz, 135–61. New Haven: Yale, 1996. Gey, Steven G. “Justice Scalia’s Death Penalty.” Florida State University Law Review 20, no. 1 (1992): 67–132. Harris, Angela P. “The Jurisprudence of Victimhood.” Supreme Court Review (1991): 77–102. Henderson, Lynne N. “Legality and Empathy.” Michigan Law Review 85, no. 7 (1987): 1574-–653. Herrera v. Collins, 506 U.S. 390 (1993). Jackson, Shirley. “The Lottery.” In The Lottery: Or the Adventures of James Harris (Cambridge: Bentley, 1980). Jacoby, Susan. Wild Justice: The Evolution of Revenge. New York: Harper & Row, 1983. Lewin, Tamar. “What Penalty for a Killing in Passion?” New York Times, October 21, 1994. Lockhart v. Fretwell, 506 U.S. 364 (1993). McCleskey v. Kemp, 481 U.S. 279 (1987). Miller, Alice. For Your Own Good: Hidden Cruelty in Child-Rearing and the Roots of Violence New York: Farrar, Straus, Giroux,1983. Minow, Martha. “Surviving Victim Talk.” UCLA Law Review 40, no. 6 (1993): 1411–45. Minow, Martha L., and Elizabeth V. Spelman. “Passion for Justice.” Cardozo Law Review 10, no. 1–2 (1988): 37–76. Morrison, Toni. The Bluest Eye (New York: Washington Square Press,1970). Murphy, Jeffrie G., and Jean Hampton. Forgiveness and Mercy. New York: Cambridge University Press,1990. Noddings, Nel. Caring: A Feminine Approach to Ethics and Moral Education. Berkeley: University of California Press, 1984. Nussbaum, Martha. “Equity and Mercy.” Philosophy & Public Affairs 22, no. 2 (1993): 83-125. Payne v. Tennessee, 501 U.S. 808 (1991). Posner, Richard A. Overcoming Law. Cambridge: Harvard University Press, 1995. Resnik, Judith. “On the Bias: Feminist Reconsiderations of the Aspirations of Our Judges.” Southern California Law Review 61, no. 6 (1988): 1877–924. Shuman, Daniel W. “The Use of Empathy in Forensic Examinations.” Ethics & Behaviour 3, no. 3-4 (1993): 289–302. Sundby, Scott E. “The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing.” UCLA Law Review 38, no 5 (1991): 1147–208. Weisberg, Robert. “Deregulating Death.” Supreme Court Review (1983): 305–95. Williams, Tennesse. Letter to Elia Kazan. In The Fifties, by David Halberstam, 262. New York: Villard Books, 1993. Yudof, Mark G. “‘Tea at the Palaz of Hoon:’ The Human Voice in Legal Rules.” Texas Law Review 66, no. 3 (1988): 589–622.

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

INTRODUCTION A number of scholars have, in recent years, turned their collective attention to the intriguing issues that lie at the intersection of emotion and law.1 These scholars come from many fields, including psychology, law, philosophy, and neuroscience; they include theorists, empiricists, and practitioners; and they have tackled issues ranging from the elusive boundary between emotion and cognition—and the significance of such a boundary to concepts of legal reason—to the nature and import of emotional bonds between attorneys and their clients. “Law and emotion,” it has been suggested, might now be added to a family of interdisciplinary approaches that includes, for example, law and economics and feminist jurisprudence.2 This chapter seeks primarily to educate empirical scholars and legal theorists alike about this emerging, yet relatively unexamined, movement exploring the relevance of human emotion to legal analysis. Robustly conceptualized, the movement takes as its subject a wide range of legal constructs, including substantive and procedural doctrine, behavioral models underlying legal rules, and the impact of emotion on law-relevant decision-making. Placing the study of emotion and legal decision-making, that subset to which most empirical research has been directed, within the broader rubric of emotion and legal analysis better contextualizes that inquiry. Further, awareness of the full range of potential interactions between law and emotion promises to generate new directions for theoretical and empirical research.

Editors’ note: This article is a reprinted version of Terry A. Maroney, “Law and Emotion: A Proposed Taxonomy of an Emerging Field.,” Law and Human Behavior 30, no. 2 (2006): 119–42. 1 See Eric A. Posner, “Law and the Emotions,” Georgetown Law Journal 89, no. 6 (2001): 1977; Susan. A Bandes, ed., The Passions of Law (New York: New York University Press, 1999); Richard H. Pildes, “Conceptions of Value in Legal Thought,” Michigan Law Review 90, no. 6 (1992): 1524. 2 See Bandes, The Passions, 1–15; Kathryn Abrams, “The Progress of Passion,” review of The Passions of Law, by Susan A. Bandes, ed., Michigan Law Review 100, no. 6 (2002); Neal R. Feigenson, “Another Thing Needful: Exploring Emotions in Law,” review of The Passions of Law by Susan A. Bandes, ed., Constitutional Commentary 18 (2001): 445; Laura E. Little, “Negotiating the Tangle of Law and Emotion,” review of The Passions of Law, by Susan A. Bandes, ed., Cornell Law Review 86, no. 4 (2001): 974; Carol Sanger, “The Role and Reality of Emotions in Law,” William & Mary Journal of Women and the Law 8, no. 1 (2001); Heidi Li Feldman, Foreword: “Law, Psychology, and the Emotions,” Chicago-Kent Law Review 74, no. 4 (2000). It remains an open question whether “law and emotion” is rightly considered a “field” or “movement” in its own right, or whether theoretical and empirical explorations of the law-emotion interaction are merely a content-based point of intersection among various established interdisciplinary fields. This question, which the author plans to explore in the future, goes beyond the scope of this chapter. For present purposes, it is assumed that it is accurate and helpful to call the described scholarship a “field” or “movement,” and certain arguments are offered in support of that assumption. *

534

Law and emotion: A proposed taxonomy of an emerging field  535 The chapter briefly describes the genesis and development of academic interest in law and emotion;3 proposes that this scholarship is helpfully conceptualized along six interrelated, but theoretically distinct, foci; and suggests directions for future research and interdisciplinary collaboration. The taxonomy it offers is primarily a descriptive one, seeking to isolate and surface the scholarship’s hidden infrastructure. However, this proposed taxonomy, representing as it does an exercise in articulating the movement’s goals and theoretical underpinnings, also provides an evaluative approach that may help identify gaps in the existing literature and encourage more thorough, grounded, and carefully contextualized analysis going forward.

THE EMERGENCE OF “LAW AND EMMOTION” AS A DISTINCT FIELD The law always has taken account of emotion. One easily conjures ready examples: we sometimes decline to admit relevant evidence (such as gory photos) because we fear that the emotions it will provoke may overcome jurors’ ability to reason in the manner required by their institutional role;4 we consider anger and jealousy when determining whether a given provocation warrants treating a killing as manslaughter rather than murder.5 Criminal law reflects theories of fear, grief, and remorse; family law seeks (ideally) to facilitate love and attachment; tort law measures emotional suffering; litigants seek emotional satisfaction by invoking legal mechanisms; legal decision-makers may have strong feelings about parties in their cases. The point is so obvious as to make its articulation seem almost banal.6 But, as other commentators have noted, this relationship has been a rocky one. A core presumption underlying modern legality is 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.7 This theoretical model has persisted despite its implausibility as a model of either how humans live or how our law is structured and administered.8 The emotional aspects of our substantive and procedural law therefore have tended to develop sub rosa, consisting largely of unstated assumptions about human nature.9 Those moments in which emotion plainly surfaces itself— for example, in victim impact statements or hearings on emotional damages—stand out, as if the sole permissibly emotional outposts in an otherwise “rational” legal universe. Only As the purpose of this chapter is to explicate the underpinnings of a transdisciplinary academic movement, discussion of how the implicated issues are treated within case law is deliberately limited. Case law is occasionally cited where particularly relevant but a detailed exploration of this important topic is a project for another day. 4 See sources in note 32. 5 See sources in notes 74–75. 6 Bandes, The Passions, 1; Francesca Polletta, “The Laws of Passion,” review of The Passions of Law, by Susan A. Bandes, ed., Law & Society Review 35, no. 2 (2001): 467, 469. 7 This point has been made by virtually every scholar who has delved, even briefly, into this area. Neal R. Feigenson, “Sympathy and Legal Judgment: A Psychological Analysis,” Tennessee Law Review 65, no. 1 (1997): 1, 15. But see Kathy Laster and Pat O’Malley, “Sensitive New-age Laws: The Reassertion of Emotionality in Law,” International Journal of the Sociology of Law 24, no. 1 (1996): 21, 23–4. 8 Abrams, “The Progress,” 1602. 9 Bandes, The Passions, 2. 3

536  Research handbook on law and emotion recently have scholars begun to speak deliberately about the role of emotion per se and to self-consciously reckon with the myriad ways in which the law reflects or furthers conceptions of how humans are, or ought to be, as emotional creatures. This development is, perhaps, unsurprising. Not only has law in recent decades become far more receptive to insights from other disciplines, but those disciplines have begun to engage far more deliberately with issues of defining and understanding human emotion. This is most evident in the field of law and psychology; that field has grown exponentially in recent decades,10 and psychology itself has in the last ten years seen significant growth in emotion scholarship.11 Much exciting emotion work has now begun in neuroscience, cognitive neuroscience, and neuropsychology.12 Philosophers, sociologists, economists, anthropologists, and feminist scholars also have brought an increased focus on emotion to their respective fields.13 These various developments made it possible, or even inevitable, to turn to a more general inquiry into the interaction between emotion and law. Early such efforts within legal scholarship consisted largely of decrying the construct of a clean division between “emotion” and “reason,” and advocating a more explicit role for the former. The late Justice William J. Brennan, Jr. issued a rallying cry in a 1987 speech in which he denounced “formal reason severed from the insights of passion,” and asserted that passion—defined as “the range of emotional and intuitive responses to a given set of facts or arguments, responses which often speed into our consciousness far ahead of the lumbering

10 Jeremy A. Blumenthal, “Law and Social Science in the Twenty-first Century,” Southern California Interdisciplinary Law Journal 12, no. 1 (2002); James R. P. Ogloff, “Two Steps Forward and One Step Backward: The Law and Psychology Movement(s) of the 20th Century,” in Taking Psychology and Law into the Twenty-First Century, ed. James R. P. Ogloff (New York: Plenum, 2002), 1–33. 11 Stephanie H. M. van Goozen, Nanne van de Poll, Joseph A. Sergeant, eds., Emotions: Essays on Emotion Theory (Hillsdale: L. Erlbaum, 1994); Richard S. Lazarus, Emotion and Adaptation (New York: Oxford University Press, 1991); Andrew Ortony, Gerald L. Clore, and Allan Collins, The Cognitive Structure of Emotions (New York: Cambridge University Press, 1988); Klaus R. Scherer and Paul Ekman, eds., Approaches to Emotion (Hillsdale: L. Erlbaum, 1984); Robert Plutchik and Henry Kellerman, Emotion, Theory, Research, and Experience (Toronto: Academic Press, 1980). 12 Richard D. Lane, Lynn Nadel and Geoffrey Ahern, eds., Cognitive Neuroscience of Emotion (New York: Oxford University Press, 2000); Antonio Damasio, The Feeling of What Happens: Body and Emotion in the Making of Consciousness (New York: Harcourt Brace,1999); Joseph LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (New York: Simon & Schuster,1996); Antonio R. Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain (New York: Harper Perennial, 1994). For an overview of contemporary scientific emotion research, including neuroscientific research, see Richard J. Davidson, Klaus R. Scherer, and H. Hill Goldsmith, eds, Handbook of Affective Sciences (Oxford: Oxford University Press, 2003). For a compilation of new research into “law and the brain,” see proceedings from “The Brain and Law,” a conference in Philosophical Transactions of the Royal Society B.: Biological Sciences 359 (2004). 13 Kathryn Abrams, “Legal Feminism and the Emotions: Three Moments in an Evolving Relation,” Harvard Journal of Law & Gender 28, no. 2 (2005); Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001); Peter H. Huang, “Reasons within Passions: Emotions and Intentions in Property Rights Bargaining,” Oregon Law Review 79, no. 2 (2000): 439–40, nn. 22–24, 29; Martha C. Nussbaum, Love’s Knowledge: Essays on Philosophy and Literature (Oxford: Oxford University Press, 1990); Rom Harré, “An Outline of the Social Constructionist Viewpoint,” in The Social Construction of Emotions, ed. Rom Harré, ed. (New York: Blackwell, 1986), 2.

Law and emotion: A proposed taxonomy of an emerging field  537 syllogisms of reason”—could enhance legal reasoning.14 A series of articles responding to Brennan explored these same themes, which were also taken up by two influential scholars who argued that empathy, in particular, was a vital component of legal decision-making.15 These contributions staked out important ground, but were urging further development rather than resting on an established body of scholarship,16 and through the early 1990s attention to law and emotion remained at this level of generality.17 Within a decade, though, the outlines of a distinct law-and-emotion jurisprudence were forming. The mid-1990s saw publication of articles exploring theories of emotion potentially underlying criminal law;18 the emotional content and function of victim impact statements, an issue that attracted broad attention when brought repeatedly before the Supreme Court;19 and emotion in the language of judging.20 These were followed shortly by explorations of shaming punishments,21 the nature of disgust,22 and the role of sympathy in legal judgment.23 And as the volume of emotion-and-law scholarship increased, its insights became more nuanced and complex. Early efforts had successfully shifted the baseline, creating some broad agreement that it is both undesirable and impossible to exclude emotion from legal analysis. Scholars then began to complicate the model. They recognized that embracing an explicit role for emotion in law is an inherently normative enterprise,24 and began to advocate more careful attention to the complexity of emotion theory within other disciplines. This stage of the movement reached a high-water mark with The Passions of Law,25 which brought together scholars from several corners of the academy—but, in a conspicuous omis-

William J. Brennan Jr., “Reason, Passion, and ‘The Progress of the Law,’” Cardozo Law Review 10, no. 1–2 (1988): 3, 9, 11. 15 See articles responding to Brennan Cardozo Law Review 10, no. 1–2 (1988) including Lynne Henderson, The Dialogue of Heart and Head, 123–49; Samuel H. Pillsbury, “Emotional Justice: Moralizing the Passions of Criminal Punishment,” Cornell Law Review 74, no. 4 (1989); Lynne N. Henderson, “Legality and Empathy,” Michigan Law Review 85, no. 7 (1987). 16 Scholars … must explore the complex relation between emotional reactions and legal policy in many different areas of the law. … The effort, if successful, will subtly alter the culture of Law so that Emotion is no longer viewed as Evil, but as a broad category of reactions whose nature and origins we must distinguish. … This describes a rather grandiose and long-term project. Pillsbury, “Emotional Justice,” 705. See also Henderson, “Dialogue of Heart,” 124. 17 One scholar has characterized early law and emotion work as consisting of a largely ineffectual and possibly counterproductive “frontal” attack on the reason/emotion dichotomy. Abrams, “The Progress,” 1602. 18 Dan M. Kahan and Martha C. Nussbaum, “Two Conceptions of Emotion in Criminal Law,” Columbia Law Review 96, no. 2 (1996): 269. 19 Susan Bandes, “Empathy, Narrative, and Victim Impact Statements,” University of Chicago Law Review 63, no.2 (1996); Payne v. Tennessee, 501 U.S. 808 (1991); South Carolina v. Gathers, 490 U.S. 805 (1989); Booth v. Maryland, 482 U.S. 496 (1987). 20 Martha C. Nussbaum, “Emotion in the Language of Judging,” St. John’s Law Review 70, no. 1 (1996). 21 Toni Massaro, “The Meanings of Shame: Implications for Legal Reform,” Pyschology, Public Policy, and Law 3, no. 4 (1997). 22 William Ian Miller, The Anatomy of Disgust (Cambridge: Harvard University Press, 1997). 23 Feigenson, “Sympathy.” 24 Bandes, “Empathy, Narrative,” 365, 371–72. 25 Bandes, The Passions; Little, “Negotiating the Tangle,” 974. The Passions of Law was developed in conjunction with “a conference on the subject of law and emotion held at the University of Chicago Law School in May, 1998.” Feigenson, “Another Thing,” 447 n.5; Bandes, The Passions, xi. 14

538  Research handbook on law and emotion sion, none from psychology or the life sciences—with a series of essays on the relationship between law and a select group of emotions, ranging from disgust to romantic love. The volume aimed to convince readers that “emotion in concert with cognition leads to truer perception and, ultimately, to better (more accurate, more moral, more just) decisions,” and, more modestly, to both provoke debate on the reason/emotion dichotomy and encourage examination of the emotion theories underlying legal schemes.26 Not surprisingly, Passions fell short of its more lofty ambitions, though it did significantly advance the dialogue. The lack of a social science or life-sciences perspective is its most evident shortcoming. The authors largely failed to contend seriously with definitional debates within primary emotion scholarship, though they did attend (if in a sometimes cursory manner) to the parallel debate over the cognitive content of emotions.27 But whatever ground it left unplowed, the pivotal role of Passions in positioning law and emotion as a distinct enterprise is evident. It prompted several book reviews, the first publications in legal journals to describe the emerging field as such,28 as well as multiple conferences and symposia on law and emotion, 29 events that have become increasingly common.30 Empirical research on law and the emotions followed a roughly parallel trajectory, though its track—notably, proceeding quite separately from that of legal theory—was running perhaps a few years ahead. As early as the mid-1970s researchers began to isolate emotion as a distinct element and think about its unique relevance to law;31 those efforts became pro-

Bandes, The Passions, 7, 11. Little, “Negotiating the Tangle,” 984, 987–92; Bandes, The Passions, 10. Query, however, whether this strong lineup behind the “cognitive view” is uniformly a good thing. Stephen J. Morse, Review of The Passions of Law by Susan A. Bandes, Ethics 114, no. 3 (2004). 28 Morse, Review; Abrams, “The Progress”; Feigenson, “Another Thing”; Little, “Negotiating the Tangle”; Polletta, “The Laws of Passion.” 29 Proceedings from “The Passions of Law by Susan A. Bandes,” a conference in William & March Journal of Women and the Law 8, no. (2000); proceedings from “Law, Pyschology, and the Emotions,” a conference in Chicago-Kent Law Review 74, no. 4 (1999). 30 “Current Issues in Law and the Emotions: Jury Decision-making and Beyond,” American Psychology-Law Society/Division 41 of the American Psychological Association Annual Conference on March 5, 2004, http://​www​.fiu​.edu/​~apls2004/​APLS​%202004​%20Program​.pdf; proceedings from “Interdisciplinary Perspectives on Fear and Risk Perception in Times of Democratic Crisis,” a conference in Missouri Law Review 69, no. 1 (2004); proceedings from “Responsibility and Blame: Psychological and Legal Perspectives,” a conference in Brooklyn Law Review 68, no. 4 (2003); proceedings from “Fear and the Law,” a conference in Washburn Law Journal 42, no. 1 (2002); Special Issue, “The New Culpability: Motive, Character, and Emotion in Criminal Law,” Buffalo Criminal Law Review 6, no. 1 (2002); proceedings from “The Role of Forgiveness in the Law,” a conference in Fordham Urban Law Journal 27 (2000). 31 Though this empirical work was in important respects “new,” it is worth noting that psycholegal studies’ roots in legal realism had a distinctly emotional flavor. Jerome Frank famously proclaimed that we cannot “get rid of emotions in the field of justice” and encouraged judges to undergo psychoanalysis in order that their emotions would “become more sensitive, more nicely balanced, more capable of detailed articulation.” Jerome Frank, Law and the Modern Mind (New York: Peter Smith Pub Inc., 1930), 143; Jerome Frank, “Are Judges Human? Part One: The Effect on Legal Thinking of the Assumption that Judges Behave like Human Beings,” University of Pennsylvania Law Review and American Law Register 80, no. 1 (1931); Jerome Frank, “Are Judges Human? Part Two: As Through a Class Darkly,” University of Pennsylvania Law Review and American Law Register 80, no. 2 (1931). While Frank’s somewhat shallow reliance on Freudian theory is now regarded as naïve and “died out for lack of heirs,” his core points about emotionality would later be taken up by those working in law and psychology. Feldman, “Foreword,” 1423–24; Bandes, “Empathy, Narrative,” n. 39. 26 27

Law and emotion: A proposed taxonomy of an emerging field  539 gressively more specific and sophisticated, with a marked increase on both fronts in the late 1990s and continuing today. Analysis of the impact of vivid, gruesome evidence on jurors provides an illustrative example. The first study suggesting emotion’s role in mediating jurors’ processing and valuation of such evidence appeared in 1976; by 1982, Whalen and Blanchard attempted tentatively to test this “emotional arousal interpretation,” and counseled that future research measure emotional arousal directly; and such studies began to appear in the 1990s and continue to be generated.32 While the literature that identifies itself as part of a distinct law and emotion field remains small, it continues to grow in both volume and richness. Indeed, well over half of the literature on law and emotion, both theoretical and empirical, has been generated since 1999, the year The Passions of Law was published.33 In sum, a confluence of influences from a variety of disciplines made it possible deliberately to explore the complex relationship between emotion and law. The aim at first was simply to challenge the prevailing legal narrative of a strict dichotomy between reason and emotion, while later efforts, dominated by law scholars and philosophers, asked progressively more complex questions about the nature of emotion and its role within law. In very recent years, the literature has expanded rapidly, pulling in ever more areas of law and including far greater numbers of contributors from the social and life sciences.

APPROACHES TO LAW AND EMOTION As the above discussion suggests, the range of theoretical and empirical work on law and emotion is wide. I propose here a taxonomy of such scholarship. While this taxonomy is on one level descriptive, it may also have analytic and evaluative value, in that it provides a framework for analyzing the strengths and weaknesses of particular law and emotion scholarship and may point to new areas within which such scholarship may fruitfully be pursued.

32 Robert J. Nemeth, “The Impact of Gruesome Evidence on Mock Juror Decision Making: The Role of Evidence Characteristics and Emotional Response”(unpublished Ph.D. diss., Louisiana State University and Agricultural & Mechanical College, 2002); Brian H. Bornstein and Robert J. Nemeth, “Jurors’ Perception of Violence: A Framework for Inquiry,” Aggression and Violent Behavior 4, no. 1 (1999); Kevin S. Douglas, David Lyon, and James 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); Denise H. Whalen and Fletcher A. Blanchard, “Effects of Photographic Evidence on Mock Juror Judgment,” Journal of Applied Social Pyschology 12, no. 1 (1982); Edward Oliver and William Griffitt, “Emotional Arousal and “Objective” Judgment,” Bulletin of the Pyschonomic Society 9, no. 5 (1976). Another example of this historical trajectory may be found in empiricists’ treatment of remorse. Compare Michael G. Rumsey, “Effects of Defendant Background and Remorse on Sentencing Judgments,” Journal of Applied Social Psychology 6, no. 1 (1976) with Brian H. Bornstein et al., “The Effects of Defendant Remorse on Mock Juror Decisions in a Malpractice Case,” Behaviour Sciences & the Law 20, no. 4 (2002). 33 In a bibliography based on the author’s survey of the literature 133 of 217 entries are dated 2000 and later. An additional eight entries—including one entry for The Passions of Law, which contains 14 separate contributions—were published in 1999 alone. The complete bibliography is available from the author upon request.

540  Research handbook on law and emotion What Counts as Law and Emotion Scholarship? Thorny definitional issues arise the moment one proposes to discuss law and emotion. Not only must one indicate just what is meant by “law” in this context, but one must also be careful to specify the intended meaning of “emotion.” While there is debate within legal academia over the boundaries of the former, the latter inquiry has far more practical bite. A sizeable literature has attempted to distinguish between emotions, feelings, mood, and affect, and each such concept both relates closely to the others and contains substantive subcategorizations of its own—for example, “affect” generally refers to the perceived “goodness” or “badness” of a given stimulus, but often is used as an umbrella term encompassing both “emotions” and “mood,” the latter term often defined as a diffuse, non-object-specific feeling-state.34 Multiple taxonomies of the emotions have been offered, often with different lineups.35 Further, the same terms may have very different meanings depending on one’s perspective and operative definitions. For example, Damasio distinguishes “emotions,” by which he means a series of nonconscious processes mapped in the body and brain in response to emotionally competent stimuli, and “feelings,” the conscious experiences of happiness, sadness, and so on that are triggered by emotions; but what he calls feelings are what most non-scientists, and some scientists, would call emotions.36 Further, other psychological phenomena, such as attachment, often are implicated in studies of emotion and its operationalization. Just as the study of emotion carries with it a perpetual definitional dilemma, so too does any attempt to categorize the literature within the (posited) new field of law and emotion. The question as to at what point any given project is sufficiently about both “law” and “emotion” to productively be claimed for this particular enclave is worthy of greater exploration than is possible here. I offer, nonetheless, two premises, one pertaining to motivation and the other to method. First, contemporary law-and-emotion scholarship is based on the beliefs that human emotion is amenable to being specifically and searchingly studied, that it is highly relevant to the theory and practice of law, and that its relevance is deserving of closer scrutiny than it Paul Ekman and Richard J. Davidson eds., The Nature of Emotion: Fundamental Questions (Oxford: Oxford University Press, 1994), 49–96, 184, 199. Slovic has further defined “affect” as “a faint whisper of emotion,” the “specific quality of ‘goodness’ or ‘badness’ (i) experienced as a feeling state (with or without consciousness) and (ii) demarcating the positive or negative quality of a stimulus.” Paul Slovic, “What’s Fear Got to Do with It? It’s Affect We Need to Worry About” Missouri Law Review 69, no. 4 (2004): 971. Affect, he asserts, carries “the meaning and motivational force of fear and other emotions without the necessity of creating an emotional state.” Ibid., 989. See also Jeremy A. Blumenthal, “Does Mood Influence Moral Judgment? An Empirical Test with Legal and Policy Implications,” Law & Psychology Review 29 (2005). Accord Richard J. Davidson, “On Emotion, Mood, and Related Affective Constructs,” in The Nature of Emotion,” 51. 35 There is some agreement on the existence of certain “core” emotions—generally including fear, anger, happiness, sadness, surprise, and disgust—a repertoire on which humans demonstrate many gradations and variations. Robert Plutchik, Emotion: A Psychoevolutionary Synthesis (New York: Harper & Row, 1980); James A. Russell, “A Circumplex Model of Affect,” Journal of Personality and Social Psychology 39, no. 6 (1980). 36 Antonio Damasio, Looking for Spinoza: Joy, Sorrow and the Feeling Brain (New York: Harcourt, 2003); Damasio, Descartes’ Error, n. 146. For purposes of this chapter, reflecting its purpose not to assert the correctness of any particular terminology but instead to capture as fully as possible a wide range of scholarship, the term “emotion” generally is used in a broad sense to signify a spectrum of phenomena encompassing what might instead be called emotion, feelings, affect, and mood; where a more specific meaning is intended, a more specific term is used. 34

Law and emotion: A proposed taxonomy of an emerging field  541 historically has received. Second, such scholarship explicitly directs itself to both sides of the “and”; it takes on a question regarding law and brings to bear a perspective grounded in the study or theory of emotions. Using this framework, some law-and-emotion literature is relatively easy to identify. Certain legal scholars explicitly claim that label and attempt to stake out the field as a distinct enterprise.37 Similarly, some empirical studies clearly declare their intention to examine an undeniably emotion-based question—such as the effects of induced anger on decision-making—within an unquestionably legal context—the jury room.38 The movement, however, encompasses more than just such self-identified work. Consider, for example, the debate between Ogletree, who asserts that successful public defenders are motivated by “empathy and heroism,” and Smith, who urges instead a model of “respect, pride, and outrage.”39 Both claim to offer defenders the best tool for withstanding the significant emotional demands of their profession. Though neither author positions this debate within a law and emotion movement or discusses that literature, both are directly engaged with the questions of what emotions are, how emotions interact with motivation in the context of lawyering, and whether particular emotion-states (such as feeling compassion or anger toward one’s client) help or hinder legal reasoning and judgment. No discussion of emotion and law can be complete without considering contributions such as these. Just as one must consider what to draw into the fold of law and emotion, one must also consider what to fence out. For example, most of the extensive literature on hate crime has little to do with how the emotion of hate is experienced and expressed by the subject or object, focusing instead on the First Amendment, the right to a jury trial on sentence-enhancing factors, and cultural factors shaping approaches to this area of law.40 Only that subset of work analyzing the distinctively emotional components of the “hate” in “hate crime” is usefully conceptualized as part of the field.41 Similarly, not every empirical study of a potentially law-relevant

Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004); Laura E. Little, “Adjudication and Emotion,” Florida Coastal Law Journal 3 (2002): 205; Bandes, The Passions, 1–15. 38 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). 39 Abbe Smith, “Too Much Heart and Not Enough Heat: The Short Life and Fractured Ego of the Empathic, Heroic Public Defender,” U.C. Davis Law Review 37, no. 5 (2004); Charles J. Ogletree, “Beyond Justifications: Seeking Motivations to Sustain Public Defenders,” Harvard Law Review 10, no. 6 (1993). 40 Apprendi v. New Jersey, 530 U.S. 466 (2000); Terry A. Maroney, “The Struggle Against Hate Crime: Movement at a Crossroads,” in Structured Inequality in the United States: Discussions on the Continuing Significance of Race, Ethnicity, and Gender, eds. Adalberto Aguirre, Jr. and David V. Baker (Upper Saddle River: Pearson Prentice Hall, 2000); James. B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 2000); Valerie Jenness and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence (New York: Aldine de Gruyter, 1997). 41 Megan Sullaway, “Psychological Perspectives on Hate Crime Laws,” Psychology, Public Policy, and Law 10, no. 3 (2004); Kathryn Abrams, “‘Fighting Fire with Fire’: Rethinking the Role of Disgust in Hate Crimes,” California Law Review 90, no. 5 (2002); Rachel F. Moran, “Law and Emotion, Love and Hate,” The Journal of Contemporary Legal Issues 11, no. 2 (2001) 749–50; Dan M. Kahan, “The Progressive Misappropriation of Disgust,” in The Passions of Law, ed. Susan A. Bandes, (New York: New York University Press, 1999), 69–73; Richard A. Posner, “Emotion versus Emotionalism in Law,” 37

542  Research handbook on law and emotion operationalization of emotion is law-and-emotion scholarship. For example, Bodenhausen et al. showed that sad (as compared to happy) persons are more prone to anchoring bias, though persons with sad mood generally are less prone to cognitive biases when making judgments. While the authors briefly alluded to this finding’s potential relevance to legal judgment, that decision-making context was not presented in the study.42 A follow-up study exploring that point would fall within the universe I describe, but the former does not.43 The core of the relevant literature is that which is fundamentally and centrally grounded in at least one issue of law and one of emotion. Studies at the periphery may be highly relevant and useful to those undertaking the core endeavor but do not themselves comprise that endeavor. With some preliminary guidance as to what the law-and-emotion literature is and is not, I now turn to an analysis of what that literature does.

A PROPOSED TAXONOMY OF LAW AND EMOTION STUDIES The law-and-emotion literature all proceeds according to the following analytical approaches, set forth in Table 32.1. Like all typologies, this one draws apparently sharp distinctions where looser ones might sometimes be more accurate. While there is utility in teasing out each approach, most (if not all) law-and-emotion scholarship consists of a multidimensional engagement with various foci. Further, I propose that while any given study will have its primary grounding in one (or possibly more) of the described approaches, it generally should attend to the queries central to each of the six. Emotion-centered One approach is to analyze how one emotion—including theories of its origin, purpose, functioning, embedded values, and appropriateness—is, or should be, reflected in law. I call this the emotion-centered approach.

in The Passions of Law, ed. Susan A. Bandes, (New York: New York University Press, 1999), 313–17. Some scholars see all or most of hate crimes jurisprudence in this light. Bandes, The Passions, 2; Dan M. Kahan, “The Anatomy of Disgust in Criminal Law,” review of The Anatomy of Disgust by William Ian Miller, Michigan Law Review 96, no 6 (1998): 1634. Indeed, concepts of emotional harm to victims are relevant to the substantive hate-crime and hate-speech jurisprudence: Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993); Virginia v. Black, 538 U.S. 343 (2003); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 42 Galen V. Bodenhausen, Shira Gabriel, and Megan Lineberger, “Sadness and Susceptibility to Judgmental Bias: The Case of Anchoring,” Psychological Science 11, no. 4 (2000): 320–23. 43 A related example is research on the impact of emotion on negotiation. Much of that research concerns potentially law-relevant but non-law-specific negotiation models. Shu Li and Michael E. Roloff, “Strategic Negative Emotion in Negotiation,” IACM 17th Annual Conference Paper, June 15, 2004, http://​ssrn​.com/​abstract​=​609283; Robert S. Adler, Benson Rosen, and Elliot M. Silverstein, “Emotions in Negotiation: How to Manage Fear and Anger,” Negotiation Journal 14, no. 2 (1998); Leigh Thompson, Kathleen Valley, Roderick M. Kramer, “The Bittersweet Feeling of Success: An Examination of Social Perception in Negotiation,” Journal of Experimental Social Psychology 31, no. 6 (1995). Only a few studies focus specifically on legal negotiation. Huang, “Reasons within Passions,” 438; compare Joseph P. Daly, “The Effects of Anger on Negotiations over Mergers and Acquisitions,” Negotiation Journal 7, no. 1 (1991).

Law and emotion: A proposed taxonomy of an emerging field  543 Table 32.1

Analytical approaches to law and emotion

Analytical Approach to Emotion and Legal Analysis

Defining Characteristics

Emotion-centered approach

Analyze how a particular emotion is, could be, or should be reflected in law.

Emotional-phenomenon approach

Describe a mechanism by which emotion is experienced, processed, or expressed, and analyze how that emotion-driven phenomenon is, could be, or should be reflected in law.

Emotion-theory approach

Adopt a particular theory (or theories) of how the emotions may be approached or understood, and analyze how that theory is, could be, or should be reflected in law.

Legal-doctrine approach

Analyze how emotion is, could be, or should be reflected in a particular area of legal doctrine or type of legal determination.

Theory-of-law approach

Analyze the theories of emotion embedded or reflected within a particular theoretical approach to the law.

Legal-actor approach

Examine how a particular legal actor’s performance of the assigned legal function is, could be, or should be influenced by emotion.

Many of the most prominent examples of this approach have focused on disgust. Nussbaum and Kahan, for example—inspired largely by Miller’s wide-ranging The Anatomy of Disgust44—have debated the legitimacy of disgust as a basis for legal rulemaking. Nussbaum has argued that its evolutionary grounding in concepts of contamination and disease renders disgust “anti-social” and dehumanizing; Kahan has sought instead to “redeem disgust,” arguing that there are “situations in which properly directed disgust is indispensable to a morally accurate perception of what’s at stake in the law.”45 The closely related emotion of shame has also been studied, primarily within the contemporary debate over the proposed revival of “shaming sanctions.”46 Nussbaum, deliberately linking disgust and shame, recently undertook to explain those emotions’ relevance not only to shaming sanctions but also areas of law as diverse as prohibitions on same-sex intimacy, the definition of obscenity, and protections for the disabled.47 Fear, too, has attracted a good deal of attention. Certainly the law of self-defense incorporates assumptions about fear, both as a psychological and physical experience and, as a social and cultural matter, its appropriate triggers and external manifestations. Research and theory on “battered women’s syndrome” defenses brought those issues to the fore, as advocates made

Miller, The Anatomy. Martha C. Nussbaum, “‘Secret Sewers of Vice’: Disgust, Bodies, and the Law, in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999): 20–21; Kahan, “The Progressive Appropriation,” 63. 46 Massaro, “The Meanings of Shame,” 645; Jeffrie G. Murphy, “Shame Creeps Through Guilt and Feels Like Retribution,” Law and Philosophy 18, no. 4 (1999); Toni M. Massaro, “Shame, Culture, and American Criminal Law,” Michigan Law Review 89, no. 7 (1991). 47 Nussbaum, Hiding from Humanity. Miller described disgust as the “flip side” of shame, embarrassment, humiliation, and vengefulness, each of which he examined in Humiliation: And Other Essays on Honor, Social Discomfort, and Violence (Ithaca: Cornell University Press, 1993). He categorized this latter group of emotions as constitutive of “our experience of being lower or lowered,” and disgust as part of the experience of reacting to the lowly. Miller, The Anatomy, x. See also Stephen P. Garvey, “The Moral Emotions of the Criminal Law,” Quinnipiac Law Review 22, no. 2 (2003). 44 45

544  Research handbook on law and emotion a case for legal recognition of a specific experience of fear and the forms of behavior it may cause.48 Sunstein has explored the impact of fear, both individual and collective, on legal regulation of public health and safety risks.49 Recent symposia have explored more broadly the relationship between fear and law, including post-Columbine restrictions on student speech and government responses to terrorism following the events of September 11, 2001.50 By delving deeply into a particular emotion, we stand to learn much; but it is here that definitional issues are of greatest salience. Is a stable definition of what constitutes an emotion necessary to development of a robust emotion-centered literature, or might slavishness to a particular taxonomy close off interesting avenues for exploration? For example, it is quite debatable whether a “passion for justice”—the organizing principle of one section of The Passions of Law—is a distinct emotion in a psychological or neuroscientific sense, but it may, from the perspective of moral philosophy or legal theory, constitute a unique and law-relevant phenomenon worthy of discussion. We also may ask whether the definition of emotion for this purpose will include closely related concepts such as affect and mood.51 These questions matter, both because scholars vary in their use of emotion-related terminology and because the questions asked (and answers generated) may vary according to which concepts are operative. Slovic made this point when, writing in a symposium on fear, he asked: “What’s fear got to do with it? It’s affect we need to worry about.”52 I do not here propose to answer the taxonomy-within-the-taxonomy issue; it may not be amenable to being answered, and insights may emerge from the dialogue it engenders; but it is an area deserving of continued attention. Emotional Phenomenon It is also possible to make a particular emotion-driven phenomenon the focus. Though the emotional phenomenon approach may at first appear difficult to distinguish from the emotion-centered approach, the former takes as its primary focus a mental process or behavior in which emotion plays a vital role but which is not itself an emotion.

John W. Roberts, “Between the Heat of Passion and Cold Blood: Battered Women’s Syndrome as an Excuse for Self-Defense in Non-Confrontational Homicides,” Law and Psychology Review 27 (2003); Eric A. Posner, “Law and the Emotions,” 1996, n.37); Mary Becker, “The Passions of Battered Women: Cognitive Links Between Passion, Empathy, and Power,” William & Mary Journal of Women and the Law 8, no. 1 (2001): 14–16. 49 Cass R. Sunstein, The Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005); Cass R. Sunstein, “The Laws of Fear” (John M. Olin Program in Law and Economics Working Paper No. 128, 2001), http://​papers​.ssrn​.com/​paper​.taf​?abstract​_ id=274190; Cass R. Sunstein, The Laws of Fear, 115 Harv. L. Rev. 1119 (2002b) (book review of Paul Slovic, The Perception of Risk (2000)). For a rebuttal, see Rachel F. Moran, “Fear Unbound: A Reply to Professor Sunstein,” Washburn Law Journal 42, no. 1 (2002). Much of the fear-related law and emotion work is grounded in the methodologies of law and economics. See, e.g., Matthew D. Adler, “Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety,” Chicago-Kent Law Review 79, no. 3 (2004). 50 “Interdisciplinary Perspectives on Fear and Risk,” conference proceedings; “Fear and Law,” conference proceedings. 51 Blumenthal, “Does Mood Influence”; Carolyn Semmler, Neil Brewer, Alan J. Tomkins, and Mark A. Small, “Effects of Mood and Emotion on Juror Processing and Judgments,” Behavioral Sciences & the Law 20, no. 4 (2002). 52 Slovic, “What’s Fear,” 990. 48

Law and emotion: A proposed taxonomy of an emerging field  545 One example of an emotional phenomenon is affective forecasting, or the prediction of future emotional states.53 Predicting that one will feel happy if she wins a certain level of damages in a civil case against an employer is different from actually being happy (though one may evoke present feelings of happiness through imagining future happiness). Based on such forecasting a litigant may make important legal decisions, such as rejecting a settlement offer that she regards as too low to ensure the desired, projected level of happiness.54 As Blumenthal argues, much law is based on the assumption that people are able accurately to predict their future emotions.55 Recent empirical research, however, suggests that such predictions often fail to match our actual reactions when confronted with the previously-imagined set of circumstances.56 On a practical level, taking that phenomenon into account is likely a more useful project than would be thinking generally about litigants’ quest for happiness through damages, if for no other reason than that it is more specific. Awareness of the existence of an emotion-driven phenomenon as separate from the emotions that are its subject thus represents an important analytic step.57 A number of other emotional phenomena—notably empathy, the exercise of mercy, and apology—have also been discussed in the legal literature, with varying levels of precision.58 Henderson, for example, has taken care to define empathy not as an emotion in its own right but rather as a mechanism through which the emotion of another is perceived and processed, but many elide that point.59 Bibas and Bierschbach, in their treatment of the role of apology in criminal proceedings, similarly take care to define apology as an expression of sorrow, regret, and remorse, an expression which can in turn generate other emotional phenomena, such as manifestations of “forgiveness” and “healing” on the part of crime victims.60 But they too sometimes elide the distinction between apology and its underlying and resulting emo53 Jeremy A. Blumenthal, “Law and the Emotions: The Problems of Affective Forecasting,” Indiana Law Journal 80, no. 2 (2005): 163, n. 40, 189; Chris Guthrie, “Risk Realization, Emotion, and Policy Making,” Missouri Law Review 69, no. 4 (2004). 54 Compare Chris Guthrie, “Better Settle Than Sorry: The Regret Aversion Theory of Litigation Behavior,” University of Illinois Law Review 1999, no. 1 (1999). 55 This assumption is particularly operative in economic theories of law. Eric A. Posner, “Law and the Emotions,” 1982. 56 Blumenthal, “Law and the Emotions,” 11–19. 57 Other examples of law-relevant emotion-driven psychological phenomena are “probability neglect,” or the idea that “when intense emotions are engaged, people tend to focus on the adverse outcome, not on its likelihood,” Cass R. Sunstein, “Probability Neglect: Emotions, Worst Cases, and Law,” Yale Law Journal 112, no. 1 (2002): 62 and “emotional contagion,” the phenomenon by which people “catch” the affective states of those around them, Elizabeth F. Emens, “The Sympathetic Discriminator: Mental Illness and the ADA,” Georgetown Law Journal 94, no. 2 (2006). 58 Dan Markel, “Against Mercy,” Minnesota Law Review 88, no. 6 (2004); Jeffrie C. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988); Martha C. Nussbaum, “Equity and Mercy.” Philosophy & Public Affairs 22, no. 2 (1993): 83–125.; Joshua Dressler, “Hating Criminals: How Can Something That Feels So Good Be Wrong?,” review of Forgiveness and Mercy by Jeffrie G. Murphy and Jean Hampton, Michigan Law Review 88, no. 6 (1998); Henderson, “Legality and Empathy.” 59 Henderson, “Legality and Empathy,” 1579, 1579–80, nn. 26–43; Justin D’Arms, “Empathy and Evaluative Inquiry,” Chicago-Kent Law Review 74, no. 4 (2000): 1479. 60 Stephanos Bibas and Richard A. Bierschbach, “Integrating Remorse and Apology Into Criminal Procedure,” Yale Law Journal 114, no. 1 (2004). For an example of another such effort, see Austin Sarat, “Remorse, Responsibility, and Criminal Punishment: An Analysis of Popular Culture,” in The Passions of Law ed. Susan A. Bandes (New York: New York University Press, 1999), 168–90.

546  Research handbook on law and emotion tions, and offer little guidance as to what is meant by the emotional “catharsis” and “healing” apology is claimed to generate.61 Recent empirical research on the phenomenon of remorse as expressed through apology addresses certain of these issues.62 As the above examples demonstrate, the emotional phenomenon approach can be complex, as it requires drawing distinctions between emotions and the mechanisms of their operationalization and expression in the world, an exercise that then asks the author to carefully parse both aspects of the analysis; and many fall short of that ideal. Further, because so many psychological phenomena implicate emotion, this is a category that could expand so far as to erase the conceptual advantage of thinking specifically about emotion qua emotion. While this issue warrants more consideration than is possible here, I propose that only scholarship about phenomena as to which emotion plays a primary or driving force belongs in this category. To illustrate: affective forecasting necessarily revolves around emotion; selective attention does not, though the emotional competence63 of competing stimuli may play a role in how a person’s attention is directed. Exploration of the legal impact of the former always will belong to the law-and-emotion literature; literature on the latter will only if directed specifically to the emotional-competence question rather than the phenomenon in general. This is a determination largely of degree, and will admit of some difficult cases. Theory of Emotion A different approach is to focus on a particular theory (or theories) of emotion, and then to posit that the law currently reflects that theory; analyze how accepting that particular theory would affect the law; or argue that the theory should be adopted. I call this the emotion-theory approach. In the context of this taxonomy, it is helpful to think of a “theory” as incorporating both methodological or disciplinary categories as well as more finely-grained claims as to how emotion may be approached or understood. One might identify both her chosen disciplinary approach—for example, cognitive neuroscience, philosophy, or psychoanalysis—and also a particular theory of the emotions within that universe—the somatic marker theory, the virtue ethics tradition, or Freudian models—and explain why that particular theory (and the methodology used to test it) is a valid lens through which to examine the chosen issue regarding emotion’s role in law. Law-and-emotion literature that derives its energy primarily from a theory of the emotions is scant. Its most prominent specimen within legal scholarship remains “Two Conceptions of Emotion in Criminal Law,” in which the authors proposed that criminal law simultaneously embraces two competing theories of emotion, which they coined “mechanistic” and “evaluative.”64 This article may be (and has been) criticized for overly simplifying the relevant psychological theories of emotion: the “mechanistic view” Kahan and Nussbaum describe has

Bibas and Bierschbach, “Integrating Remorse,” 116 (quoting Heather Strang and Lawrence W. Sherman, “Repairing the Harm: Victims and Restorative Justice,” Utah Law Review 2003, no. 1 (2003): 17–23; see also Bibas and Bierschbach, “Integrating Remorse,” 116–17 & nn. 139–152, 119–21 & nn. 162–71, 138 & nn. 260–61. 62 Bornstein et al., “The Effect of Defendant Remorse.” Compare Guthrie, “Better Settle.” 63 Emotional competence is used here in the sense meant by Damasio in Looking for Spinoza. 64 Kahan and Nussbaum, “Two Conceptions,” 273. 61

Law and emotion: A proposed taxonomy of an emerging field  547 few supporters within the modern science of the mind, and their cognition-driven “evaluative view” fails to recognize that most emotion theories within the sciences accept some role for cognition but still find ample points of departure from one another.65 It is undeniable, however, that their attempt to explicate the theoretical underpinnings of an area of law by explicit reference to emotion theory was in important respects groundbreaking. The issue in this domain is somewhat different for empiricists. The nature of applied science virtually guarantees that empiricists will state their methodology, and their chosen discipline generally is evident, so the operative theories are likely to be transparent. However, with the likely exception of studies now emerging in cognitive neuroscience, seldom does a particular theory of emotion overtly drive the inquiry, as opposed to being assumed as the proper mechanism for getting to the “real” question. One illustrative exception is Lieberman’s examination of the attractiveness cue—the robust (if not entirely consistent)66 finding that physically attractive defendants receive more lenient legal judgments—in light of “cognitive experiential self-theory (CEST).” The purpose of the study was not to revisit prior attractiveness-cue research but, rather, to test CEST’s theory that humans process information either experientially or rationally, the former mode defined as an “emotionally based system,” associated with “affect” and entailing disproportionate use of heuristics.67 The diversity of theories regarding the origin, content, nature, functioning, and purpose of emotion need not be debilitating to the utility of this approach. Close analysis of any one of these can (and sometimes does) teach us important things about the law. It should, in fact, be quite difficult to conduct any study of emotion and the law without clarifying one’s choice as to the operative theory or theories of emotion and grappling in some manner with competing theories. In practice, though, many fail to do so.68 Moreover, those—particularly 65 Most psychologists accept that human emotion has some cognitive content. Ortony, Clore and Collins, The Cognitive Structure. That (limited) consensus does not end debate over the precise interrelation between emotion and cognition. See Paul Ekman and Klaus Scherer, Questions About Emotion: An Introduction, in Approaches to Emotion, 3; Richard S. Lazarus, “The Cognition-Emotion Debate: A Bit of History,” in Handbook of Cognition and Emotion, eds. Tim Dalgleish and Mick J. Power (New York: Wiley, 1999): 1–19; compare Richard S. Lazarus, “On the Primacy of Cognition,” American Pyschologist 39, no. 2 (1984): 124–29, and Robert B. Zajonc, “On the Primacy of Affect,” American Psychologist 39 (1984). 66 David A. Abwender and Kenyatta Hough, “Interactive Effects of Characteristics of Defendant and Mock Juror on U.S. Participants’ Judgment and Sentencing Recommendations,” Journal of Social Psychology 141, no. 5 (2001); John E. Stewart, “Defendant’s Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study,” Journal of Applied Social Psychology 10, no. 4 (1980); Harold Sigall and Nancy Ostrove, “Beautiful but Dangerous: Effects of Offender Attractiveness and Nature of the Crime on Juridic Judgment,” Journal of Personality and Social Psychology 31, no. 3 (1975); Ronald M. Friend and Michael Vinson, “Leaning Over Backwards: Jurors’ Responses to Defendants’ Attractiveness,” Journal of Communication 24, no. 3 (1974). See generally Ronald Mazzella and Alan Feingold, “The Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-Analysis,” Journal of Applied Social Psychology 24, no. 15 (1994). 67 Joel D. Lieberman, “Head Over the Heart or Heart Over the Head? Cognitive Experiential Self-Theory and Extralegal Heuristics in Juror Decision Making,” Journal of Applied Social Pyschology 32, no. 12 (2002). 68 For example, one author applied Freudian psychoanalytic theory to lawyer-client relationships, but did not undertake to explain the choice of psychoanalysis or to explore and reject alternative models. Marjorie A. Silver, “Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship,” Clinical Law Review 6, no. 1 (1999). In contrast, Anne C. Dailey explicitly discusses treatment of the

548  Research handbook on law and emotion legal scholars—who do actively seek to unmask their underlying emotion theories often punt on the hard question of which theory (or theories) should be accepted as valid.69 Perhaps even more common is the tendency to pick out morsels of insight from a variety of theories without cleanly distinguishing among any of them. To be sure, various theories of emotion often can (and perhaps should be) brought to bear; for example, evolutionary and social constructionist theories both may be relevant and even complimentary in the context of any given project. But even if this is so, invocation of multiple theories should be deliberate and thoughtful—what Miller has called a commitment to methodological promiscuity70—rather than reflecting casual choices from “a theoretical smorgasbord, from which each scholar can choose the definitions or concepts most amenable to her particular legal argument.”71 Legal Doctrine Though the above-described approaches to law and emotion take as their starting point ideas related primarily to the emotion side of the “and,”72 it is equally possible to make law the driving factor. Some scholars choose as their focus one particular type of legal doctrine or legal determination, and analyze how that area of law incorporates, or could or ought to incorporate, emotion. I call this the legal doctrine approach. Much of this literature takes as its subject criminal law and procedure. Perhaps the most obviously emotion-related area of criminal law is the murder-manslaughter distinction, in which attention is directed specifically to whether a crime was committed in the “heat of passion” or while “under the influence of extreme mental or emotional disturbance.”73 The main insight of legal scholars here has been to argue that manslaughter determinations embody deeply culture-and-era-specific notions of “appropriate” emotions and acceptable modes of their expression.74 Lending support to the idea that jurors enforce cultural notions of appropriate (and possible) emotional control is research suggesting that their murder/manslaughter distinctions are unaffected by judges’ instructions to assess the defendants’ emotions from an “objective” or “subjective” perspective, but instead are affected by the degree to which a defendant is perceived to have “dwelled upon” his emotions (and, potentially, the nature of the triggering emotion), suggesting that we expect others to “control” their emotions in a particular way and that such underlying theories of emotional appropriateness drive the legal determination.75 emotions within cognitive psychology and psychoanalysis, and argues that the latter better accounts for law-relevant emotional behavior. Anne C. Dailey, “The Hidden Economy of the Unconscious,” Chicago-Kent Law Review 74, no. 4 (2000). 69 Eric A. Posner, “Law and the Emotions,” 1991; D’Arms, “Empathy and Evaluative,” 1482. 70 Miller, The Anatomy, xii. 71 Bandes, The Passions, 8. 72 Little, “Negotiating the Tangle,” 979. 73 Kahan and Nussbaum, “Two Conceptions,” 305, nn. 145–46. 74 Victoria Nourse, “Passion’s Progress: Modern Law Reform and the Provocation Defense,” Yale Law Journal 106, no. 5 (1997): 1331–35; Joshua Dressler, “Rethinking Heat of Passion: A Defense in Search of a Rationale,” Journal of Criminal Law & Criminology 73, no. 2 (1982). 75 Matthew P. Spackman, Jann Belcher, Justin Calapp, and Aaron Taylor, “An Analysis of the Effects of Subjective and Objective Instruction Forms on Mock-Juries’ Murder/Manslaughter Distinctions,” Law and Human Behavior 26, no. 6 (2002): 607, 615–18; Matthew P. Spackman, Jann C. Belcher, Ashley S. Hansen, “Effects of Perceived Emotional Intensity on Mock Jurors’ Murder/

Law and emotion: A proposed taxonomy of an emerging field  549 Other areas of the criminal law also have drawn interest, particularly with regard to punishment.76 The emotive content and consequences of victim impact statements, one of the earliest topics taken up by the field and one of a select few to have been discussed extensively in case law, continues to attract research.77 Capital sentencing, too, and its direct engagement with sympathy, fear, anger, and a desire for retribution, remains a frequent focus.78 Other punishment-related questions—such as constitutional limits on “three strikes” laws imposed by a proposed doctrine of “emotive due process”79—and certain areas of criminal procedure— such as the relevance of emotional harms to determinations of what constitutes a Fourth Amendment search80—also have gotten air time. The emphasis on criminal law has been mirrored in the empirical work, though legal scholars and empiricists alike increasingly have begun to explore the emotive content of non-criminal areas of law, taking on topics as varied as tort schemes,81 the regulatory state,82 workplace humiliation,83 freedom of speech,84 and compliance with international environmental law.85 Evidentiary rules have also garnered attention. For example, Edwards and Bryan’s finding of a “rebound effect” for instructions to disregard emotionally charged evidence—which paradoxically may increase the influence of such evidence—calls into question the use of such

Manslaughter Distinctions,” Journal of Applied Biobehavioural Research 7, no. 2 (2002); Norman J. Finkel, “Culpability and Commonsense Justice: Lessons Learned Betwixt Murder and Madness,” Notre Dame Journal of Law, Ethics & Public Policy 10, no. 1 (1996): 54–56. 76 Susanne Karstedt, “Emotions and Criminal Justice,” Theoretical Criminology 6, no. 3 (2002); John Pratt, “Emotive and Ostentatious Ounishment: Its Decline and Resurgence in Modern Society,” Punishment & Society 2, no. 4 (2000). 77 A recent KeyCite of Bandes “Empathy, Narrative,” showed 104 references, most generated since 2000. See 2004 WL 1588549.; John H. Blume, “Ten Years of Payne: Victim Impact Evidence in Capital Cases,” Cornell Law Review 88, no. 2 (2003): 281; Bryan Myers, Steven Lynn, Jack Arbuthnot, “Victim Impact Testimony and Juror Judgments: The Effects of Harm Information and Witness Demeanor,” Journal of Applied Social Psychology 32, no. 11 (2002); Susan A. Bandes, “Reply to Paul Cassell: What We Know About Victim Impact Statements,” Utah Law Review 1999, no. 2 (1999): 545. 78 Susan Bandes, “Fear Factor: The Role of Media in Covering and Shaping the Death Penalty,” Ohio State Journal of Criminal Law 1 (2004): 585; Stephen P. Garvey, “The Emotional Economy of Capital Sentencing,” New York University Law Review 75, no. 1 (2000); Theodore Eisenberg, Stephen P. Garvey, and Martin T. Wells, “But Was He Sorry? The Role of Remorse in Capital Sentencing,” Cornell Law Review 83, no. 6 (1998); Pillsbury, “Emotional Justice.” 79 Samuel H. Pillsbury, “A Problem in Emotive Due Process: California’s Three Strikes Law,” Buffalo Criminal Law Review 6, no. 1 (2002): 483, 485. 80 Andrew E. Taslitz, “The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions,” Law and Contemporary Problems 65, no. 2 (2002). 81 Heidi Li Feldman, “Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law,” Chicago-Kent Law Review 74, no. 4 (2000): 1431. 82 Sunstein, “The Laws of Fear.” 83 Catherine L. Fisk, “Humiliation at Work,” William & Mary Journal of Women and the Law 8, no. 1 (2001). 84 R. George Wright, “An Emotion-Based Approach to Freedom of Speech,” Loyola University of Chicago Law Journal 34, no. 2 (2003); David L. Hudson, Jr., “Fear of Violence in Our Schools: Is “Undifferentiated Fear” In the Age of Columbine Leading to a Suppression of Student Speech?,” Washburn Law Journal 42, no. 1 (2002). 85 Peter H. Huang, “International Environmental Law and Emotional Rational Choice,” Journal of Legal Studies 31, no. 1 (2002).

550  Research handbook on law and emotion instructions.86 Consider as well the “excited utterance” exception to the hearsay rule, which presumes that statements made by one experiencing extreme emotional arousal are likely to be truthful because in such situations “raw” emotion trumps the cognitive function necessary for deception.87 While to date little attention has been paid to this area of doctrine, there are at least preliminary indications that its various underlying assumptions may not be accurate.88 The range of possible applications of the legal doctrine approach is as wide as the range of legal doctrine. It therefore promises to be an exciting area to watch. Theory of Law If the legal doctrine approach is the “law-side” corollary of the emotion-centered approach, the theory-of-law approach complements the emotion-theory approach. This approach entails taking as the baseline a particular theoretical approach to law and analyzing the theories of emotion embedded or reflected therein. The most provocative work within this category has been in law and economics. When emotion is factored into rational choice models, it—like the many types of cognitive bias at the core of behavioral law and economics research89—can be seen as a systemic source of bounded rationality and distortion for which legal systems should account and correct.90 Some instead have posited that emotion contains its own rationality, which law must understand and anticipate.91 The distinction between these two premises would appear to be no more than the positive or negative attitude they reflect about emotion; and regardless of spin, it is evident that those from the law-and-economics school increasingly are seeking to incorporate emotion research into this vital area of legal theory.92 Huang, in particular, consistently has sought to expand rational actor and game-theoretical paradigms, claiming that when fundamental insights about emotion from other disciplines are incorporated into law-relevant economic models, “a diverse range of previously inexplicable factors are capable of being explained,”93 an insight he asserts can illuminate areas of law ranging from property-law bargaining, to decisions to litigate, to securities regulation.94

Kari Edwards and Tamara S. Bryan, “Judgmental Biases Produced by Instructions to Disregard: The (Paradoxical) Case of Emotional Information,” Personality and Social Psychology Bulletin 23, no. 8 (1997). 87 Fed. R. Evid. 803(2); Feigenson, “Sympathy,”16, n. 54. 88 Aviva Orenstein, “‘My God!’ A Feminist Critique of the Excited Utterance Exception to the Hearsay Rule,” California Law Review 85, no. 1 (1997): 165–82. 89 Cass R. Sunstein, ed., Behavioral Law and Economics (Cambridge: Cambridge University Press, 2000). 90 Bruce E. Kaufman, “Emotional Arousal as a Source of Bounded Rationality,” Journal of Economic Behavior and Organization 38, no. 2 (1999). Compare Rachel F. Moran, “Fear: A Story in Three Parts,” Missouri Law Review 69, no. 4 (2004): 1021. 91 Eric A. Posner, “Law and the Emotions,” 1978, 1982. 92 Sunstein, “The Laws of Fear”; Adler, “Fear Assessment”; Ward Farnsworth, “The Economics of Enmity,” University of Chicago Law Review 69, no. 1 (2002); Eric A. Posner, “Fear and the Regulatory Model of Counterterrorism,” Harvard Journal of Law & Public Policy 25, no. 2 (2002): 681–98. 93 Huang, “Reasons within Passions,” 438. 94 Peter H. Huang, “Lawsuit Abandonment Options in Possibly Frivolous Litigation Games,” The Review of Litigation 23, no. 1 (2004): 75–8; Peter H. Huang, “Trust, Guilt, and Securities Regulation, University of Pennsylvania Law Review 151, no. 3 (2003): 1075–89. 86

Law and emotion: A proposed taxonomy of an emerging field  551 The fact that this dialogue is taking place within law and economics potentially bodes well for an examination of emotion within other theoretical approaches to law. Indeed, it surprising that more scholars from other corners of jurisprudential theory have not yet joined the project. Perhaps emotion is less relevant to certain areas of legal theory; perhaps those areas are methodologically less suited to exploring the intersection; or perhaps other scholars have not been convinced of the rigor and usefulness of the law and emotion perspective.95 Some exceptions merit mention. Certainly many early contributions were made by feminist legal scholars, reflecting the strong historical association between emotion and “the feminine,” and the attendant devaluation of both;96 but to date such works have focused primarily on empathy, compassion, and (to a lesser degree) intimate violence, and their volume counterintuitively has decreased as the field overall has grown.97 There is a certain synergy developing among those who analyze law as a site of cultural and social meaning, 98 and some have addressed the emotional elements of “therapeutic jurisprudence” and “restorative justice.”99 One would expect the theory-of-law approach to expand its offerings in coming years. Legal Actor The legal-actor approach focuses on the humans that populate legal systems and explores how emotion influences and informs, or should influence or inform, those persons’ performance of the assigned legal function. Not surprisingly, this is the area of highest concentration of empirical work. However, that work has not been evenly distributed across the universe of legal actors—including defendants, victims, plaintiffs, prosecutors, attorneys, judges, jurors, legislators, executive officials, regulators, and police—but has focused primarily on jurors.100 This lopsided focus is unsurprising, as juror decision making is particularly well-suited to experimental manipulation. And to be sure, the jury work, which has tested hypotheses relevant to both criminal and civil trials, is immensely important, in part because the role of the jury remains central to North American notions of fairness and justice, particularly in criminal cases (though query whether that perceived importance bears adequate relation to a contemporary legal system in which the

Eric A. Posner, “Law and the Emotions,” 1977–8. Kathleen Woodward, “Calculating Compassion,” Indiana Law Journal 77, no. 2 (2002): 225; Feigenson, “Sympathy,” 28–9, n. 111. 97 See Abrams, “Legal Feminism”; Susan Bandes, “What’s Love Got to Do With It?,” William & Mary Journal of Women and the Law 8, no. 1 (2001): 97, 98, nn. 3–7; Henderson, “Dialogue of Heart,” 133; Cynthia V. Ward, “A Kinder, Gentler Liberalism? Visions of Empathy in Feminist and Communitarian Literature,” University of Chicago Law Review 61, no. 3 (1994). 98 Woodward, “Calculating Compassion,” 223; Moran, “Law and Emotion”; Sarat, “Remorse, Responsibility,” 168; Cheshire Calhoun, “Making Up Emotional People,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 217. 99 Thomas D. Barton, “Therapeutic Jurisprudence, Preventive Law, and Creative Problem Solving: An Essay on Harnessing Emotion and Human Connection,” Pyschology, Public Policy, and Law 5, no. 4 (1999); Thomas J. Scheff, “Community Conferences: Shame and Anger in Therapeutic Jurisprudence,” Revista Juridica de la Universidad de Puerto Rico 67, no. 1 (1998). 100 For a survey of empirical research on how mood and emotion influence law-relevant decision-making, see Neal R. Feigenson, “Emotions, Risk Perceptions and Blaming in 9/11 Cases,” Brooklyn Law Review 68, no. 4 (2003): 959, 962-78; Neal Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (Washington DC: APA Publishers, 2000), 69–86. 95 96

552  Research handbook on law and emotion overwhelming majority of cases, both civil and criminal, are now resolved via settlement and guilty pleas). Scholars have examined the impact on jurors (or, far more commonly, on mock jurors) of victim impact statements,101 gruesome photographs,102 video recreations of emotionally arousing events underlying tort liability,103 pre-deliberation inducement of anger,104 instructions to disregard “emotionally charged information,”105 perceptions of murder defendants’ emotional intensity,106 witness expressions of emotionality,107 and the emotional impact of serving as a juror.108 The boundaries between emotion and related phenomena, particularly mood, are salient here as well. For example, one study found that mock jurors in whom a sad mood had been evoked, when contrasted with those in a neutral mood state, displayed more “careful, detailed, and analytical processing” of eyewitnesses’ testimonial inconsistencies.109 Jurors are not the only legal actors to have drawn the spotlight, which has shone as well on judges. Traditional legal theory either presumes that judges have no operative emotions about the litigants and issues before them or mandates that any such emotions be actively suppressed, reflecting an untested, commonsense wisdom that emotion distorts the objective legal reasoning demanded by the judicial role. Overt sentimental expression in judging—such as Justice Blackmun’s famous cry of “Poor Joshua!” in DeShaney—has attracted public debate and even derision.110 In response to these dynamics legal scholars have posed broad questions about the role of emotion in judging, and have looked to judicial determinations—particularly Myers, Lynn, Arbuthnot, “Victim Impact Testimony.” Douglas, Lyon, and Ogloff, “The Impact”; Nemeth, “The Impact of Gruesome Evidence.” 103 Vicki Fishfader, Gary Howells, Roger Katz, and Pamela Teresi, “Evidential and Extralegal Factors in Juror Decisions: Presentation Mode, Retention, and Level of Emotionality,” Law and Human Behavior 20, no. 5 (1996). 104 Lerner, Goldberg, and Tetlock, “Sober Second Thought.” 105 Edwards and Bryan, “Judgmental Biases.” But see Feigenson, “Sympathy,” 68–9 which describes research suggesting that sympathy, in particular, can be “regulated” and “controlled,” though perhaps other emotions may be harder to set aside. 106 Spackman, Belcher, Calapp, and Taylor, “An Analysis of the Effects”; Spackman, Belcher, and Hansen, “Effects of Perceived Emotional Intensity.” 107 Geir Kaufmann et al., “The Importance of Being Earnest: Displayed Emotions and Witness Credibility,” Applied Cognitive Psychology 17, no. 1 (2003); Randall T. Salekin, James R. P. Ogloff, Cathy Mcfarland, Richard George Rogers, “Influencing Jurors’ Perceptions of Guilt: Expression of Emotionality During Testimony,” Behavioral Sciences & the Law 13, no. 2 (1995). 108 Marjorie O. Dabbs, “Jury Traumatization in High Profile Criminal Trials: A Case for Crisis Debriefing?” Law and Psychology Review 16 (1992); Theodore B. Feldmann and Roger A. Bell, “Crisis Debriefing of a Jury After a Murder Trial,” 42 Hospital and Community Psychiatry 42 (1991). Both articles take special note of the “unusual” sensitivity of the observed trial judge to the emotional needs of jurors; one suggested that the emotional challenges presented to jurors were compounded by their feelings of guilt for experiencing emotions, “because of their conception that they are expected to remain unemotional.” Dabbs, “Jury Traumatization,” 205. 109 Semmler, Brewer, Tomkins, and Small, “Effects of Mood.” It is worth noting that some studies of emotion use measures of mood, such as the Profile of Mood States (POMS). Nemeth, “The Impact of Gruesome Evidence,” 58, 82 (acknowledging that different measures of emotion “may yield different relationships between emotions and mock jurors’ verdicts…the validity, in this context, of various emotion/mood scales may vary”); Fishfader, Howells, Katz, and Teresi (using POMS to measure emotional reactions); compare Douglas, Lyon, and Orloff, 1997. 110 DeShaney v. Winnebago Soc. Svcs. Dep’t, 489 U.S. 189, 213 (1989); Jeffrey Rosen, “Sentimental Journey: The Emotional Jurisprudence of Harry Blackmun: Criticism of Retiring Supreme Court Justice,” The New Republic 210, no. 18 (1994): 13; Benjamin Zipursky, “DeShaney and the Jurisprudence of Compassion,” New York University Law Review 65, no. 4 (1990). 101 102

Law and emotion: A proposed taxonomy of an emerging field  553 verbal cues embedded in written opinions—for clues as to judges’ feelings about parties and issues or their theories of “appropriate” emotionality.111 Lawyers, too, have been studied as emotional creatures, as the debate between Ogletree and Smith reveals.112 Others have examined female defense attorneys’ experience and management of emotional stress, as well as “emotion-focused cognitive defenses” among a sample of female law firm associates. 113 A small literature is also developing on fashioning legal education—particularly clinical programs—better to capture, reflect, and “train” the emotions of law students.114 And just as the emotions of jurors, judges, law students, and lawyers matter, so too do those of litigating parties. Huang and Wu have proposed that litigants’ anger and pride can increase the number of cases brought to trial and make the threat of trial more credible.115 Emotion-related work related to other legal actors, though limited, includes studies of domestic violence victims’ participation in divorce mediation,116 property crime victims’

Susan Bandes, “Fear and Degradation in Alabama: The Emotional Subtext of University of Alabama v. Garrett,” University of Pennsylvania Journal of Constitutional Law 5 (2003): 520; Laura Krugman Ray, “Judicial Personality: Rhetoric and Emotion in Supreme Court Opinions,” Washington and Lee Law Review 59, no. 1 (2002); Little, “Adjudication and Emotion”; Nussbaum, “Emotion in the Language”; A. Morgan Cloud III, “Introduction: Compassion in Judging,” Arizona State Law Journal 22, no. 1 (1990); Judith Resnik, “Feminism in the Language of Judging,” Arizona State Law Journal 22, no. 1 (1990); see also generally Cardozo Law Review 10, no. 1–2 (1988). Morse describes such work as “causal analysis,” in that it seeks to explain how emotions cause a judge’s behavior, and posits that while it “has no necessary normative implications … it is interesting in its own right.” Morse, Review, 603. 112 Smith, “Too Much Heart”; Ogletree, “Beyond Justifications; Marjorie A. Silver, Sanford Portnoy, Jean Koh Peters, “Stress, Burnout, Vicarious Trauma, and Other Emotional Realities in the Lawyer/ Client Relationship: A Panel Discussion,” Touro Law Review 19, no. 4 (2004); Morse, Review, 601; Douglas Ammar and Tosha Downey, “Transformative Criminal Defense Practice: Truth, Love, and Individual Rights – The Innovative Approach of the Georgia Justice Project,” Fordham Urban Law Journal 31, no. 1 (2003); Leti Volpp, “Lawyering at the Margins: On Reason and Emotion,” American University Journal of Gender, Social Policy and Law 11, no. 1 (2002); Susan Bandes, “Repression and Denial in Criminal Lawyering,” Buffalo Criminal Law Review 9, no. 2 (2006), UC Berkeley Public Law Research Paper No. 789764, NYLS Clinical Research Institute Paper No. 09/10 #16, Available at SSRN: https:/​wwssrn​.com/​abstract​=​789764. 113 Cynthia Marie Siemsen, “Ideological Resolutions of Emotional Trials: The Moral Work of Women Defenders” (unpublished Ph.D. diss., University of California at Santa Cruz, 2000); Marilyn Haas, “Women in a Male-Dominated Career: Stress and Coping” (unpublished Ph.D. diss., Emory University, 1988). 114 Ann Juergens, “Practicing What We Teach: The Importance of Emotion and Community Connection in Law Work and Law Teaching,” Clinical Law Review 11, no. 2 (2005); Laurel E. Fletcher and Harvey M. Weinstein, “When Students Lose Perspective: Clinical Supervision and the Management of Empathy,” Clinical Law Review 9, no. 1 (2002); Marjorie A. Silver, “Emotional Intelligence and Legal Education,” Pyschology, Public Policy, and Law 5, no. 4 (1999). 115 Peter H. Huang and Ho-Mou Wu, “Emotional Responses in Litigation,” International Review of Law & Economics 12, no. 1 (1992) 116 Joseph M. Suozzo, Jr., “Power, Gender, and Emotion: Influences that Impact the Experience of Domestic Violence Victims in Divorce Mediation” (unpublished Psy.D. clinical diss., California School of Professional Psychology, 2000). 111

554  Research handbook on law and emotion police-reporting decisions,117 effects of emotional arousal on eyewitnesses,118 and the emotional effects of death sentences on both condemned inmates and their families.119

THE TAXONOMY AS AN ANALYTIC AND EVALUATIVE TOOL As the above discussion suggests, the law-and-emotion literature contains few examples of “pure” applications of the six approaches delineated in the taxonomy. Rather, they commonly are combined. This makes sense, for to do otherwise generally would lead to unworkably large topics. Consider the immense difficulty of examining “love,” in all its permutations, and asking how “the law” (including, say, family law, trusts and estates, criminal law, and tort) can, does, or should take love into account.120 Instead, the usual method will be to weave together various approaches, the result being more specific inquiries informed by a complex multidimensionality. And, generally speaking, the more deliberate and thoughtful such multidimensional engagement, the more rigorous and valuable the resulting work. It is here that the proposed taxonomy acquires its analytic traction. If the six approaches are regarded not simply as descriptive of the types of analyses from which specific studies draw their centers of gravity, but also as focal points through which studies can and possibly should rotate, they gain evaluative power. Careful consideration of the analytical approaches potentially implicated in any given project will help identify blind spots or force unstated assumptions to the surface, and may further encourage scholars to justify why they make the choices they do.121 Thus, academic inquiry into the intersection of law and emotion should identify which emotion(s) it takes as its focus; carefully distinguish between those emotions 117 Martin S. Greenberg and Scott R. Beach, “Property Crime Victims’ Decision to Notify the Police: Social, Cognitive, and Affective Determinants,” Law and Human Behavior 28, no. 2 (2004). 118 There is, of course, an extensive literature on the effects of various stimuli on eyewitness memory; some of that research is emotion-relevant. Kenneth A. Deffenbacher, Brian Bornstein, Steven Penrod, E. McGorty, “A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory,” Law and Human Behavior 28, no. 6 (2004). 119 Mark D. Cunningham, Mark P. Vigen, and Alan J. Tomkins, “Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature,” Behavioral Sciences & the Law 20, no. 1–2 (2002); John Ortiz Smykla, “The Human Impact of Capital Punishment: Interviews with Families of Persons on Death Row,” Journal of Criminal Justice 15, no. 4 (1987). 120 To be sure, some have undertaken such enormously ambitious endeavors. Nussbaum, Love’s Knowledge; Nussbaum, Upheavals of Thought; Nussbaum, Hiding from Humanity. 121 See Morse, Review, 602–3. Consider, for example, a study proposing to examine how fear affects the creation and administration of sex-offender registries. Looking to the full range of possible theoretical approaches, blind spots in this formulation reveal themselves. The only clear choices of approach here are of an emotion—fear—and a legal doctrine—the law of conditions of release for and supervision of sex offenders. The author might then be asked to justify why she has not explicitly chosen or advocated any particular theory (or theories) of emotion, an exercise that might expose a weakness in her treatment of fear. Perhaps she has unwittingly drawn on fear scholarship from a number of different schools and has combined them without considering how inter-and-intradisciplinary differences might affect her claims. Or perhaps she has actually adopted a theory of fear, but has not articulated it; that failure will have an impact on others’ ability to engage with and respond to her project, as would a failure to make clear any theory of law—for example, that of therapeutic jurisprudence—on whose premises her argument hinges. Further, the author might ask whether she has adequately considered the relevant legal actors: whose fear is she considering—that of offenders, defendants, victims (or potential victims), judges, legal-system consumers, or legislators?

Law and emotion: A proposed taxonomy of an emerging field  555 and any implicated emotion-driven mental processes or behaviors; 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 on which the analysis rests; and make clear which legal actors are implicated. While the respective weight given to each approach will vary according to the nature of the project, each choice, and those choices’ unique combination, ideally should be considered, explained, and, to the extent possible, justified.

DIRECTIONS FOR FUTURE RESEARCH Having described how the current scholarship on law and emotion developed and gained some traction, and having analyzed theoretical approaches to such scholarship, described the extant literature within those categories, and reflected on the taxonomy’s utility in guiding future developments in law and emotion, it is appropriate now to turn to a discussion of future directions for such research.122 Looking first to the emotion-centered approach, it is evident that the bulk of extant work focuses on “negative” emotions such as shame, disgust, fear, and anger, while “positive emotions,” discussed primarily within the context of empathy, have received relatively short shrift.123 Scholars may want to explore the legal relevance of a wider range of emotions— including positive ones such as loyalty, gratitude, generosity, elevation, and awe—in greater depth.124 Family law—particularly the law of child custody—necessarily implicates notions as to how best to encourage “good” and “appropriate” manifestations of familial love, affection, and attachment. To date, however, little of the self-identified law and emotion literature has entered the arena of family law, nor has the family-law literature sought specifically to extract useful insights from the emotion-and-law field.125 Similar avenues for exploration emerge from comparing each of the proposed approaches with the extant literature. Our understanding of emotion and law could benefit from looking more searchingly at a broader range of emotional phenomena (for example, affection and emotional attachment between children and foster parents)126 and theories of emotion. Jones

Other commentators also have offered agendas for law and emotion studies. Feigenson, “Another Thing,” 456–60 (advocating research of emotion’s role in civil cases and lawyer-client relations); Little, “Negotiating the Tangle,” 993–1000 (research possibilities abound in civil remedies, therapeutic justice, emotions of legislators and executive officials, trusts and estates, property and contract law, and “the interplay among emotion, society, and culture”). 123 Abrams, “The Progress,” 161–315. 124 Dacher Keltner and Jonathan Haidt, “Approaching Awe, a Moral, Spiritual, and Aesthetic Emotion,” Cognition and Emotion 17, no. 2 (2003); Jonathan Haidt, “Elevation and the Positive Psychology of Morality,” in Flourishing: Positive Psychology and the Life Well Lived eds. Corey L. M. Keyes and Jonathan Haidt (Washington DC: American Psychological Association, 2003), 275–89; Hanne Petersen, ed., Love and Law in Europe (Brookfield: Ashgate/Dartmouth, 1998). But see Eric A. Posner, “Law and the Emotions,” 1986. 125 Little, “Negotiating the Tangle,” 993–94. But see Sanger, “The Role and Reality,” 112 (briefly sketching emotional implications of legal schemes regulating open adoption); Calhoun, “Making Up Emotional People.” 126 Such work would not, of course, begin on a clean slate; far from it. Joseph Goldstein, Anna Freud, and Albert J. Solnit, Before the Best Interests of the Child (New York: Free Press, 1979); Joseph 122

556  Research handbook on law and emotion has made this latter point in the context of behavioral biology, suggesting that our understanding of contemporary law, as well as our ability “to design social and legal systems that more effectively regulate behaviors in ways that further our shared social values and goals,” would be greatly enhanced by taking into account the evolutionary history of human emotion and emotion-driven behaviors.127 Such work remains largely undone. Most legal doctrine scholarship to date has focused on the criminal law, with relatively little attention to civil and administrative law.128 This imbalance has begun to correct itself, but the sheer volume of non-criminal legal doctrine counsels an even greater increase. It may be particularly fruitful to analyze the law of emotional-distress torts—and valuation of damages for emotional harms—in light of contemporary scientific and sociological advances in the understanding of emotion.129 As to theory of law, as previously noted, more new work would be expected from feminist legal theorists; and surprisingly little is being generated by critical race theorists, even though cultural notions of the “appropriateness” of emotional expression, social constructs as to division of emotional labor, and other law-relevant emotion issues strongly implicate race.130 Finally, both empiricists and theorists may find it fruitful to examine the emotional motivations and behaviors of a wider variety of legal actors and to apply to those actors some of the methodologies developed to study jurors. The cast of characters involved in legal decision-making is large; attention to each of these dramatis personae—particularly lawmakers, executive branch officials, civil litigants, prosecutors, legal activists, and the police—would enrich the literature.131

Goldstein, Anna Freud, and Albert J. Solnit, Beyond the Best Interests of the Child (New York: Free Press, 1973). Emotional attachment is a factor in legal doctrine regarding child custody and adoption, though its legal import remains highly charged and hotly contested. Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 782, 832, 836 & n.40, 844-46 & n.52 (1977); Lofton v. Secretary of Dept. of Children and Family Svcs., 358 F.3d 804, 812-15 & n.9 (11th Cir. 2004). Additional studies on these issues would be timely and useful. 127 Owen D. Jones, “Law, Emotions, and Behavioral Biology,” Jurimetrics 39, no. 3 (1999): 289; Morse, Review, 601. 128 This disproportionate focus mirrors that in empirical psycholegal research generally. Ogloff, “Two Steps Forward,” 465, 474. 129 For a partial overview of the law’s treatment of these topics, see David F. Partlett’s book review of Nicholas J. Mullany and Peter R. Handford, Tort Liability for Psychiatric Damage: The Law of “Nervous Shock”(Sydney: Law Book Co., 1993) which characterizes American jurisprudence on emotional distress as “chaotic” and “schizophrenic”: “Tort Liability and the American Way: Reflections on Liability for Emotional Distress,” The American Journal of Comparitive Law 45, no. 1 (1997): 173, 177. See also Susan Poser, Brian Bornstein, and E. McGorty,” Measuring Damages for Lost Enjoyment of Life: The View from the Bench and the Jury Box,” Law and Human Behavior 27, no. 1 (2003): 53. 130 But see Henry L. Chambers, Jr., “Fear, Irrationality, and Risk Perception,” Missouri Law Review 69, no. 4 (2004): 1050–51; Andrew E. Taslitz, “Race and Two Concepts of the Emotions in Date Rape,” Wisconsin Women’s Law Journal 15, no. 1 (2000); compare Rachel F. Moran, Interracial Intimacy: The Regulation of Race and Romance (Chicago: University of Chicago Press, 2001); Peggy C. Davis, “Law as Microaggression,” Yale Law Journal 98, no. 8 (1989). 131 Polletta, “The Laws of Passion,” 482. To the extent that the literature discusses “governmental emotions,” Abrams, “The Progress,” 1616, it tends to treat the “government” as a unitary entity whose emotional expression—for example, of disgust toward criminal defendants—reflects that of a unitary “community,” and does not generally explore the emotion-driven motivations of individual governmental actors. But see Elizabeth Rapaport, “Retribution and Redemption in the Operation of Executive Clemency,” Chicago-Kent Law Review 74, no. 4 (2000); D. Don Welch, “Ruling with the Heart: Emotion-Based Public Policy,” Southern California Interdisciplinary Law Journal 6, no. 1 (1997).

Law and emotion: A proposed taxonomy of an emerging field  557 Perhaps the most promising direction for future research would be, simply, an increase in collaboration. Much of the law-and-emotion literature is confined, both in perspective and in reach, to the academic niche within which its author is housed. One result is a division between those who embrace and explore philosophical and psychological theories of emotion, despite the fact that these two disciplines “have converged in recent years in agreement that our emotional responses influence our judgments.”132 We see as well a persistent divide between empiricists and theorists. The lack of dialogue across these dividing lines lessens opportunities for cross-fertilization. We therefore would do well to foster dynamic collaborations among social scientists, those trained in the life sciences, philosophers, lawyers, and legal scholars.133 The exercise of forging such collaborations would encourage creation of a common language, and resulting scholarship would be both more complex and more accessible to those across the range of implicated disciplines.

CONCLUSION Law-and-emotion studies are an exciting and relatively new site of cross-disciplinary research and insight. This emerging field is not, however, without its problems and pitfalls. “Emotion theory” is not itself a recognized discipline. Rather, emotion is a topic taken up by scholars within a variety of established disciplines; but even within those disciplines, approaches vary enormously, and the state of research and theoretical agreement is far from stable. When this somewhat wobbly compendium of thought on human emotion is paired up with “law,” a term encompassing a breathtakingly large domain of social regulation, the enterprise seems perilously unsteady. This is not an idle concern. Certainly, the tremendous variety within emotion theory may be more destabilizing than is, for example, the range of economic theories potentially underlying law, for economics is a separate discipline in which law-and-economics work is grounded.134 But the inevitability of emotion’s influence on law, and scholars’ evident interest in exploring that relationship rather than continuing to push it underground, counsels moving forward with the project notwithstanding such fluidity. There is an infrastructure lurking within the field of law and emotion. Awareness of and attention to that infrastructure will maximize possibilities for rigorous, sophisticated work without sacrificing the dynamism inherent in the interdisciplinary exercise.

D’Arms, “Empathy and Evaluative,” 1499. Examples of such collaboration include Neal Feigenson, Jaihyun Park, and Peter Salovey, “The Role of Emotions in Comparative Negligence Judgments,” Journal of Applied Social Pyschology 31, no. 3 (2001): 576–603. 134 Stephen J. Morse, “New Neuroscience, Old Problems,” in Neuroscience and the Law: Brain, Mind, and the Scales of Justice, ed. Brent Garland (New York: Dana Press, 2004), 157-98; but see Morse, Review, 602. 132 133

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Law and emotion: A proposed taxonomy of an emerging field  559 Brennan, William J., Jr. “Reason, Passion, and ‘The Progress of the Law.’” Cardozo Law Review 10, no. 1–2 (1988): 3–24. Calhoun, Chesire. “Making Up Emotional People.” In The Passions of Law, edited by Susan A. Bandes, 217–40. New York: New York University Press, 1999. Chambers, Henry L., Jr. “Fear, Irrationality, and Risk Perception.” Missouri Law Review 69, no 4. (2004): 1047–52. Cloud, A. Morgan., III. “Introduction: Compassion and Judging.” Arizona State Law Journal 22, no. 1 (1990): 123. Cunningham, Mark D., Mark P. Vigen, and Alan J. Tomkins. “Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature.” Behavioral Sciences & the Law 20, no. 1-2 (2002): 191–210. “Current Issues in Law and the Emotions: Jury Decision-making and Beyond.” American Psychology-Law Society/Division 41 of the American Psychological Association Annual Conference on March 5, 2004, in possession of the author. D’Arms, Justin. “Empathy and Evaluative Inquiry.” Chicago-Kent Law Review 74, no. 4 (2000): 1467–500. Dabbs, Marjorie O. “Jury Traumatization in High Profile Criminal Trials: A Case for Crisis Debriefing?” Law and Psychology Review 16 (1992): 201–16. Dailey, Anne C. “The Hidden Economy of the Unconscious.” Chicago-Kent Law Review 74, no. 4 (2000): 1599–623. Dalgleish, Tim, and Michael J. Power, eds. Handbook of Cognition and Emotion. New York: Wiley, 1999. Daly, Joseph P. “The Effects of Anger on Negotiations over Mergers and Acquisitions.” Negotiation Journal 7, no. 1 (1991): 31–39. Damasio, Antonio R. Descartes’ Error: Emotion, Reason, and the Human Brain. New York: Harper Perennial, 1994. Damasio, Antonio R. The Feeling of What Happens: Body and Emotion in the Making of Consciousness. NewYork: Harcourt, Brace, and Company, 1999. Damasio, Antonio R. Looking for Spinoza: Joy, Sorrow and the Feeling Brain. New York: Harcourt, 2003. Davidson, Richard J., Klaus R. Scherer, and H. Hill Goldsmith, eds. Handbook of Affective Sciences. Oxford: Oxford University Press, 2003. Davis, Peggy C. “Law as Microaggression.” Yale Law Journal 98, no. 8 (1989): 1559–77. Deffenbacher, Kenneth, Brian Bornstein, Steven Penrod, and E. McGorty. “A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory. Law and Human Behavior 28, no. 6 (2004): 687–706. Douglas, Kevin, David Lyon, and James 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. Dressler, Joshua. “Rethinking Heat of Passion: A Defense in Search of a Rationale. Journal of Criminal Law & Criminology 73, no. 2 (1982): 421–70. Dressler, Joshua. “Hating Criminals: How can Something that Feels so Good be Wrong?” Review of Forgiveness and Mercy by Jeffrie G. Murphy and Jean Hampton. Michigan Law Review 88, no. 6 (1990): 1448. Edwards, Kari and Tamara S. Bryan. ”Judgmental Biases Produced by Instructions to Disregard: The (Paradoxical) Case of Emotional Information.” Personality and Social Psychology Bulletin 23, no. 8 (1997): 849–64. Eisenberg, Theodore, Stephen P. Garvey, and Martin T. Well. “But was he Sorry? The Role of Remorse in Capital Sentencing.” Cornell Law Review 83, no. 6 (1998): 1599–637. Ekman, Paul and Richard J. Davidson, eds. The Nature of Emotion: Fundamental Questions. Oxford: Oxford University Press, 1994. Emens, Elizabeth F. “The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA.” Georgetown Law Journal 94, no. 2 (2006): 399–487. Farnsworth, Ward. “The Economics of Enmity.” University of Chicago Law Review 69, no. 1 (2002): 211–61. “Fear and the Law.” Conference proceedings in Washburn Law Journal 42, no. 1 (2002).

560  Research handbook on law and emotion Feigenson, Neal R. “Sympathy and Legal Judgment: A Psychological Analysis.” Tennessee Law Review 65, no. 1 (1997): 1–78. Feigenson, Neal R. Legal Blame: How Jurors Think and Talk about Accidents. Washington DC: APA Publishers, 2000. Feigenson, Neal R. “Another Thing Needful: Exploring Emotions in Law.” Review of The Passions of Law, by Susan A. Bandes, ed. Constitutional Commentary 18 (2001): 445–61. Feigenson, Neal R. “Emotions, Risk Perceptions and Blaming in 9/11 Cases. Brooklyn Law Review 68, no. 4 (2003): 959–1001. Feigenson, N., Jaihyun Park and Peter Salovey. “The Role of Emotions in Comparative Negligence Judgments. Journal of Applied Social Psychology 31, no. 3 (2001): 576–603. Feldman, Heidi Li. “Foreword: Law, Psychology, and the Emotions.” Chicago-Kent Law Review, 74, no. 4 (2000): 1423–30. Feldman, Heidi Li. “Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law. Chicago-Kent Law Review 74, no. 4 (2000): 1431–66. Feldmann, Theodore B. and Roger A. Bell, Roger. “Crisis Debriefing of a Jury after a Murder Trial.” Hospital and Community Psychiatry 42 (1991): 79. Finkel, Norman J. “Culpability and Commonsense Justice: Lessons Learned betwixt Murder and Madness. Notre Dame Journal of Law, Ethics & Public Policy 10, no. 1 (1996): 11–64. Fishfader, Vicki, Gary Howells, Roger Katz, and Pamela Teresi. “Evidential and Extralegal Factors in Juror Decisions: Presentation Mode, Retention, and Level of Emotionality.” Law and Human Behavior 20, no. 5 (1996): 565–72. Fisk, Catherine L. “Humiliation at Work.” William & Mary Journal of Women and the Law 8, no. 1 (2001): 73–96. Fletcher, Laurel E. and Harvey M. Weinstein. “When Students Lose Perspective: Clinical Supervision and the Management of Empathy.” Clinical Law Review 9, no. 1 (2002): 135–56. Frank, Jerome. “Are Judges Human? Part One: The Effect on Legal Thinking of the Assumption that Judges Behave like Human Beings.” University of Pennsylvania Law Review and American Law Register 80, no.1 (1931) 153. Frank, Jerome. “Are Judges Human? Part Two: As Through a Class Darkly.” University of Pennsylvania Law Review and American Law Register 80, no. 2 (1931): 233–67. Frank, Jerome. Law and the Modern Mind. New York: Peter Smith Pub Inc., 1930. Friend, Ronald and Michael Vinson. “Leaning over Backwards: Jurors’ Responses to Defendants’ Attractiveness.” Journal of Communication 24, no. 3 (1974): 124–29. Garvey, Stephen P. “The Emotional Economy of Capital Sentencing.” New York University Law Review 75, no. 1 (2000): 26-–3. Garvey, Stephen P. “The Moral Emotions of the Criminal Law.” Quinnipiac Law Review 22, no. 2 (2003): 145–64. Goldstein, Joseph, Anna Freud, and Albert J. Solnit. Beyond the Best Interests of the Child. New York: Free Press, 1973. Greenberg, Martin S., and Scott R. Beach. “Property Crime Victims’ Decision to Notify the Police: Social, Cognitive, and Affective Determinants.” Law and Human Behavior 28, no. 2 (2004): 177–86. Guthrie, Chris. “Better Settle than Sorry: The Regret Aversion Theory of Litigation Behavior.” University of Illinois Law Review 1999, no. 1 (1999): 43–90. Guthrie, Chris. Risk Realization, Emotion, and Policy Making. Missouri Law Review 69, no. 4 (2004): 1039–45. Haas, Marilyn. “Women in a Male-Dominated Career: Stress and Coping.” Unpublished Ph.D. Diss., Emory University, 1988. Haidt, Jonathan. “Elevation and the positive psychology of morality.” In Flourishing: Positive Psychology and the Life Well Lived, edited by Corey L. M. Keyes and Jonathan Haidt, 275–89. Washington, DC: American Psychological Association, 2003. Harré, Rom. “An Outline of the Social Constructionist Viewpoint.” In The Social Construction of Emotions, edited by Rom Harré. New York: Blackwell, 1986. Henderson, Lynne. “The Dialogue of Heart and Head.” Cardozo Law Review 10, no. 1–2 (1988): 123–48. Henderson, Lynne. “Legality and Empathy.” Michigan Law Review 85, no. 7 (1987): 1574–653.

Law and emotion: A proposed taxonomy of an emerging field  561 Huang, Peter H. “Reasons within Passions: Emotions and Intentions in Property Rights Bargaining. Oregon Law Review 79, no. 2 (2000): 435–77. Huang, Peter H. “International Environmental Law and Emotional Rational Choice. Journal of Legal Studies 31, no.1 (2002): S237–58. Huang, Peter H. “Trust, Guilt, and Securities Regulation.” University of Pennsylvania Law Review 151, no. 3 (2003): 1075–96. Huang, Peter H. “Lawsuit Abandonment Options in Possibly Frivolous Litigation Games. The Review of Litigation 23, no. 1 (2004): 47–113. Huang, Peter H. and Wu, Ho-Mou. “Emotional Responses in Litigation.” International Review of Law and Economics 12, no. 1 (1992): 31–44. Hudson, David L., Jr. “Fear of Violence in our Schools: Is “Undifferentiated Fear” in the Age of Columbine Leading to a Suppression of Student Speech?” Washburn Law Journal 42, no. 1 (2002): 79–105. “Interdisciplinary Perspectives on Fear and Risk Perception in Times of Democratic Crisis.” Conference proceedings in Missouri Law Review 69, no. 1 (2004). Jacobs, James B. and Kimberly Potter. Hate Crimes: Criminal Law and Identity Politics. New York: Oxford University Press, 2000. Jenness, Valerie and Kendal Broad. Hate Crimes: New Social Movements and the Politics of Violence. New York: Aldine de Gruyter, 1997. Jones, Owen D. “Law, Emotions, and Behavioral Biology.” Jurimetrics 39, no. 3 (1999): 283–89. Juergens, Ann. “Practicing What We Teach: The Importance of Emotion and Community Connection in Law Work and Law Teaching.” Clinical Law Review 11, no. 2 (2005): 413–24. Kahan, Dan M. “The Anatomy of Disgust in Criminal Law.” Review of The Anatomy of Disgust by William Ian Miller. Michigan Law Review 96, no. 6 (1998): 1621–57. Kahan, Dan M. “The Progressive Misappropriation of Disgust.” In The Passions of Law, edited by Susan A. Bandes, 69–73. New York: New York University Press, 1999. Kahan, Dan M., and Martha C. Nussbaum. “Two Conceptions of Emotion in Criminal Law.” Columbia Law Review 96, no. 2 (1996): 269–374. Karstedt, Susanne. Emotions and Criminal Justice. Theoretical Criminology 6, no. 3 (2002): 299–317. Kaufman, Bruce E. “Emotional Arousal as a Source of Bounded Rationality.” Journal of Economic Behavior and Organization 38, no. 2 (1999): 135–44. Kaufmann, Grier, Guri C. B. Drevland, Ellen Wessel, Geir Overskeid, and Svein Magnussen. “The Importance of being Earnest: Displayed Emotions and Witness Credibility.” Applied Cognitive Psychology 17, no. 1 (2003): 21–34. Keltner, Dacher, and Jonathan Haidt. “Approaching Awe, a Moral, Spiritual, and Aesthetic Emotion.” Cognition and Emotion 17, no 2 (2003): 297–314. Lane, Richard D., Lynn Nadel, L., and Geoffrey Ahern, eds. Cognitive Neuroscience of Emotion. New York: Oxford University Press, 2000. Laster, Kathy and Pat O’Malley. “Sensitive New-Age Laws: The Reassertion of Emotionality in Law.” International Journal of the Sociology of Law 24, no. 1 (1996): 21–40. “Law, Psychology, and the Emotions.” Conference proceedings in Chicago-Kent Law Review 74 (2000). Lazarus, Richard S. “On the Primacy of Cognition.” American Psychologist 39, no. 2 (1984): 124–29. Lazarus, Richard S. Emotion and Adaptation. New York: Oxford University Press, 1991. Lazarus, Richard S. “The Cognition-Emotion Debate: A Bit of History.” In Handbook of Cognition and Emotion, edited by Tim Dalgleish and Mick J. Power 1-19. New York: Wiley, 1999. LeDoux, Jospeh. The Emotional Brain: The Mysterious Underpinnings of Emotional Life. NewYork: Simon & Schuster, 1996. 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. Li, Shu and Michael E. Roloff. (2004, June 15). “Strategic Negative Emotion in Negotiation.” IACM 17th Annual Conference Paper, Pittsburgh, PA, June 15, 2004, http://​ssrn​.com/​abstract​=​609283). Lieberman, Joel D. “Head Over the Heart or Heart Over the Head? Cognitive Experiential SelfTheory and Extralegal Heuristics in Juror Decision Making.” Journal of Applied Social Psychology 32, no. 12 (2002): 2526–53.

562  Research handbook on law and emotion Little, Laura E. “Negotiating the Tangle of Law and Emotion.” Review of The Passions of Law, by Susan A. Bandes, ed., Cornell Law Review 86, no. 4 (2001): 974–1001. Little, Laura E. “Adjudication and Emotion.” Florida Coastal Law Journal 3, (2002): 205–19. Markel, Dan. “Against Mercy.” Minnesota Law Review 88, no.6 (2004): 1421–80. Maroney, Terry A. “The Struggle Against Hate Crime: Movement at a Crossroads.” In Structured Inequality in the United States: Discussions on the Continuing Significance of Race,Ethnicity, and Gender. Edited by Adalberto Aguirre, Jr. and David V. Baker. Upper Saddle River: Pearson Prentice Hall, 2000. Massaro, Toni M. “Shame, Culture, and American Criminal Law.” Michigan Law Review 89 no. 7 (1991): 1880–944. Massaro, Toni M. “The meanings of Shame: Implications for Legal Reform.” Psychology, Public Policy, and Law 3, no. 4 (1997): 645–704. Mazzella, Ronald and Alan Feingold. “The Effects of Physical Attractiveness, Race, socioeconomic status, and gender of defendants and victims on judgments of mock jurors: A Meta-Analysis.” Journal of Applied Social Psychology 24, no. 15 (1994): 1315–38. Miller, William Ian. Humiliation: And Other Essays on Honor, Social Violence. Ithaca: Cornell University Press, 1993. Miller, William Ian. The Anatomy of Disgust. Cambridge: Harvard University Press, 1997. Moran, Rachel F. Interracial Intimacy: The Regulation of Race and Romance. Chicago, University of Chicago Press, 2001. Moran, Rachel F. “Law and Emotion, Love and Hate.” The Journal of Contemporary Legal Issues 11, no. 2 (2001): 747–84. Moran, Rachel F. “Fear Unbound: A Reply to Professor Sunstein.” Washburn Law Journal 42, no. 1 (2002): 1–30. Moran, Rachel F. “Fear: A Story in Three Parts.” Missouri Law Review 69, no. 4 (2004): 1013–37. Morse, Stephen J. “New Neuroscience, Old Problems.” In Neuroscience and the Law: Brain, Mind, and the Scales of Justice, edited by Brent Garland, pages. New York: Dana Press, 2004. Morse, Stephen J. Review of The Passions of Law by Susan A. Bandes. Ethics 114 no. 3 (2004): 601–5. Mullany, Nicholas and Peter R. Handford. Tort Liability for Psychiatric Damage: The Law of “Nervous Shock.” Sydney: Law Book Co., 1993. Murphy, Jeffrie G. “Shame Creeps through Guilt and Feels like Retribution. Law and Philosophy 18, no.4 (1999): 327–44. Murphy, Jeffrie G. and Jean Hampton, J. Forgiveness and Mercy. Cambridge: Cambridge Unviersity Press, 1990. Myers, Bryan, Steven Lynn, and Jack Arbuthnot. “Victim Impact Testimony and Juror Judgments: The Effects of Harm Information and Witness Demeanor.” Journal of Applied Social Psychology 32, no. 11 (2002): 2393–412. Nemeth, Robert J. “The Impact of Gruesome Evidence on Mock Juror Decision Making: The Role of Evidence Characteristics and Emotional Response.” Unpublished Ph.D. diss., Louisiana State University and Agricultural & Mechanical College, 2002. Nourse, Victoria. “Passion’s Progress: Modern Law reform and the Provocation Defense.” Yale Law Journal 106, no. 5 (1997): 1331–448. Nussbaum, Martha C. Love’s Knowledge: Essays on Philosophy and Literature. Oxford: Oxford University Press, 1990. Nussbaum, Martha C. “Equity and mercy.” Philosophy & Public Affairs 22, no. 2 (1993): 83–125. Nussbaum, Martha C. “Emotion in the Language of Judging.” St. John’s Law Review 70, no. 1 (1996) 23–30. Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. Cambridge: Cambridge University Press, 2001. Nussbaum, Martha C. Hiding from Humanity: Disgust, Shame, and the Law. Princeton: Princeton University Press, 2004. Ogletree, Charles. “Beyond Justifications: Seeking Motivations to Sustain Public Defenders.” Harvard Law Review 106, no. 6 (1993) 1239. Ogloff, James R. P., ed. Taking Psychology and Law into the Twenty-First Century. New York: Plenum Publishers, 2002.

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Law and emotion: A proposed taxonomy of an emerging field  565 van Goozen, Stephanie H. M., Nanne van de Poll, and Joseph A. Sergeant, eds. Emotions: Essays on Emotion Theory. Hillsdale: L. Erlbaum, 1994. Volpp, Leti. “Lawyering at the Margins: On Reason and Emotion.” American University Journal of Gender, Social Policy and Law 11, no. 1 (2002): 129–33. Ward, Cynthia V. “A Kinder, Gentler Liberalism? Visions of Empathy in Feminist and Communitarian Literature.” University Chicago Law Review 61, no. 3 (1994): 929–55. Welch, D. Don. “Ruling with the Heart: Emotion-Based Public Policy. Southern California Interdisciplinary Law Journal 6, no. 1 (1997): 55–87. Whalen, Densie H. and Fletcher A. Blanchard. “Effects of Photographic Evidence on Mock Juror Judgment. Journal of Applied Social Psychology 12, no. 1 (1982): 30–41. Woodward, Kathleen. “Calculating Compassion.” Indiana Law Review 77, no. 2 (2002): 223–45. Wright, R. George. “An Emotion-Based Approach to Freedom of Speech. Loyola University Chicago Law Journal 34, no. 2 (2003): 429–77. Zajonc, Robert. B. “On the Primacy of Affect.” American Psychologist 39 (1984): 117-23. Zipursky, Benjamin. “DeShaney and the Jurisprudence of Compassion.” New York University Law Review 65, no. 4 (1990):1101–47.

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

INTRODUCTION Law and emotions scholarship has reached a critical moment in its trajectory.1 It has become a varied and dynamic body of work, mobilizing diverse disciplinary understandings to analyze the range of emotions that implicate law and legal decisionmaking. Conferences, academic collaborations, and even a number of law school seminars reflect its gradual dissemination.2 Yet mainstream legal academics have often greeted it with ambivalence. . . It is often treated as a novel academic pastime rather than an instrument for addressing practical problems. This reception contrasts sharply with that accorded two fields with significant overlap with law and emotions: behavioral law and economics, and the emerging field of law and neuroscience. In the sense that all three challenge the narrow definition of rationality that has informed traditional legal thought, they can be seen as branches of the same tree or as related fields of scholarship.3 Despite this apparent proximity, however, several factors have prompted a different response. Law and emotions work 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. It has arrived only recently at an explicit embrace of normativity. And it is more plural in its normative aspirations: it does not aim simply to correct legal subjects’ decisionmaking in favor of rationality—the primary normative impetus in behavioral law and

* What follows is an excerpt from Kathryn Abrams’ and Hila Keren’s foundational 2010 essay on the development of Law and Emotions scholarship. We have attempted to retain the notes while omitting lengthy quotations from cited sources. 1 “ Law and emotions” scholarship explores the reciprocal relations between emotions and the law. It reflects pluralism along several dimensions: (1) attributes of cognition: law and emotions scholarship values the affective dimensions of cognition as fully as the classically rational, rather than understanding them as “other” or as potentially problematic departures from rationality; (2) cognate literatures: law and emotions scholarship may draw on economics, biological science, and more objectivist social sciences, but it also draws on literature, history, philosophy and other humanist disciplines; (3) normative goals: law and emotions scholarship engages law not simply, or even primarily, to correct the cognitive responses of legal subjects in favor of greater rationality; it aims to modify law more fully to acknowledge the role of specific emotions, or to use law to produce particular emotional effects. See also Terry A. Maroney, “Law and Emotion: A Proposed Taxonomy of an Emerging Field,” Law & Human Behavior 30, no. 2 (2006): 119. 2 See, e.g., “Symposium on Law, Psychology, and the Emotions,” Chicago-Kent Law Review 74, no. 4 (2000): 1423. 3 See Jeremy A. Blumenthal, “Emotional Paternalism,” Florida State University Law Review 35, no. 2 (2007): 1, 2–3.

566

Who’s afraid of law and the emotions  567 economics scholarship4—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 normativity5 and therefore has less pragmatic value.6 In this chapter, we respond to these doubts: law and emotions is a vital field whose distinctive insights and plural methodologies are essential, not simply to the full understanding of the role of emotions in many domains of human activity, but to their intelligent and responsible engagement by law. Our main goal in this chapter is therefore to explain the pragmatic value of this school of thought, and enable broader application of law and emotions analysis to pressing legal problems. Some legal analysts may never be persuaded that emotions should become a focal concern of the law. They may prefer to view law as an arena that answers to the standards of rationality, 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. To this end, this chapter seeks to analyze the ambivalent legal response to the law and emotions perspective. While the recognition of emotional intelligence,7 or the award of the Nobel Prize to Daniel Kahneman,8 suggest a growing public appreciation of the limits on human rationality, legal analysts may be experiencing greater difficulty in relinquishing their rationalist premises. In fact, we may be witnessing a recuperation of the tendency to dichotomize and hierarchize reason and emotion: one which casts doubt not on the presence of the emotions in law, but on the value of analyzing and responding to that presence. Persistent legal skepticism about the emotions may also explain the warmer reception that has met the challenge

4 See On Amir and Orly Lobel, “Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy,” Columbia Law Review 108, no. 8 (2008): 2099. 5 For a thoughtful description of the centrality of particular forms of normativity to legal scholarship, see Edward L. Rubin, “The Practice and Discourse of Legal Scholarship,” Michigan Law Review 86, no. 8 (1988). This attribute of mainstream legal scholarship has been the subject of trenchant and inventive critique. See, e.g., Pierre Schlag, “Normative and Nowhere to Go,” Stanford Law Review 43, no. 1 (1990): 167; Pierre Schlag, “Normativity and the Politics of Form,” University of Pennsylvania Law Review 139, no. 4 (1991): 801; Pierre Schlag, “Stances,” University of Pennsylvania Law Review 139, no. 4 (1991): 1059; Steven L. Winter, “Contingency and Community in Normative Practice,” University of Pennsylvania Law Review 139, no. 4 (1991): 963; Steven L. Winter, “Without Privilege,” University of Pennsylvania Law Review 139, no. 4 (1991): 1063. Although we concur in some dimensions of this critique, our point is that one need not embrace it in order to see value in emerging law and emotions work: this work reflects more conventional forms of legal normativity as well. 6 Some readers contend not that law and emotions work lacks normative or pragmatic value, but rather that it is associated with forms of normativity that we should find threatening. Although we see this objection as less prevalent than the belief that law and emotions work simply fails to provide the kind of normative direction legal scholars and actors require, we will address it below. See Part III.C. 7 See, e.g., Daniel Goleman, Emotional Intelligence: Why It Can Matter More Than IQ (New York: Bantam Dell 1995), 33–39. 8 See Daniel Kahneman, “Maps of Bounded Rationality: Psychology for Behavioral Economics,” American Economic Review 93, no. 5 (2003); 1457. Kahneman received the Nobel Prize in Economic Sciences in 2002.

568  Research handbook on law and emotion to the assumptions of rationality offered by behavioral law and economics.9 Countering this skepticism about emotions, by highlighting the patterns and contributions of law and emotions work, will be our primary goal in this chapter. Law and emotions work has great pragmatic potential, ranging from its conceptualization of legal problems, through its investigation of the relevant aspects of emotions, to the proposal of specific normative legal solutions. Realizing this potential should be of interest to a range of legal scholars and actors.10 . . . .

I.

A BRIEF HISTORY OF LAW AND EMOTIONS SCHOLARSHIP

Scholarship on law and emotions has undergone a rapid development, from a movement allied with feminists and other critical scholars in challenging legal rationality and objectivity, to an interdisciplinary effort aimed at exploring many dimensions of human affective response.11 Most recently, law and emotions work has taken a normative turn, using the fruits of interdisciplinary exploration to argue for changes in legal conceptualization, policy, and doctrine.12 A.

Challenging Legal Rationality

Law and emotions scholarship began by arguing that emotions have a vital role to play in legal thought and decisionmaking.13 This radical claim confronted a long intellectual tradition that dichotomized reason and emotion14 and construed legal thought as a professionally instilled cognitive process, which could be powerfully unsettled by affective response.15 The 9 Admittedly, emotions and cognitive processes are intertwined and what further blurs the lines is the lack of an agreed-upon definition of “emotion,” as opposed to emotionally driven behavior or decisions. See generally Keith Oatley, Dacher Keltner and Jennifer M. Jenkins, Understanding Emotions, 2d ed. (Malden, MA: Blackwell Publishing, 2006), 4–8. Regardless of the breadth with which one defines emotion, behavioral law and economics tends to emphasize decisions rather than emotions, a fact that is reflected in the alternative names for this body of work: “behavioral decision theory” or “legal decision theory.” See, e.g., Jeffrey J. Rachlinski, “The ‘New’ Law and Psychology: A Reply to Critics, Skeptics, and Cautious Supporters,” Cornell Law Review 85, no. 3 (2000): 740. An exception that may prove the rule is the engagement of behavioral law and economics with the emotion of regret, which stands at the core of the status quo bias. See Russell Korobkin, “Behavioral Economics, Contract Formation, and Contract Law,” in Behavioral Law and Economics, ed. Cass R. Sunstein (New York: Cambridge University Press, 2000), 116, 117. Another exception is Cass Sunstein's work on fear. See Cass R. Sunstein, Laws of Fear Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005). Jeremy Blumenthal has recently underscored the gap between behavioral law and economics and the emotions. Interestingly, for purposes of our focus, Blumenthal shares the belief that legal interventions with the emotions present special difficulty. See Blumenthal, “Emotional Paternalism,” 5–6. 10 It is interesting to compare our effort to demonstrate the usefulness of law and emotions against skepticism to a similar call coming from behavioral law and economics. See Rachlinski, “The ‘New’ Law and Psychology,” 742. 11 See infra notes 44, 46–53 and accompanying text. 12 See infra notes 46, 60–62 and accompanying text. 13 See, e.g., Angela P. Harris and Marjorie M. Shultz, “‘A(nother) Critique of Pure Reason’: Toward Civic Virtue in Legal Education,” Stanford Law Review 45, no. 6 (1994): 1774. 14 See, e.g., Harris and Schultz, “A(nother) Critique,” 1775. 15 In this chapter, we use the term “affective” interchangeably with “emotional.” This draws on the definition of “affective” as “relating to, arising from, or influencing feelings or emotions.”

Who’s afraid of law and the emotions  569 detachment of legal rationality reflected the historic view of law as a quasi-science: a process of deducing, from a framework of legal principles, the rule to be applied to a particular case.16 A detached, rationalist stance also served to insulate judges from pressure by the political branches17 or from undue sympathy with one or more of the parties.18 Emotion floods careful, stagewise reasoning in a tidal wave of affect; its association with particulars sweeps decisionmakers from their impersonal, Archimedean pedestal.19 Law and emotions scholars challenged this entrenched understanding with two kinds of arguments. The first was a descriptive claim: emotions already infuse decisionmaking whether or not they are recognized by legal actors.20 The second, and perhaps more central, argument was normative. Legal decisionmaking is enriched and refined by the operation of emotions because they direct attention to particular dimensions of a case, or shape decisionmakers' ability to understand the perspective of, or the stakes of a decision for, a particular party. Efforts to exile affective response—a damaging outgrowth of historic dichotomizing—can produce legal judgments that are shallow, routinized, devaluative, and even irresponsible. One setting in which scholars applied this challenge was the law school classroom. Scholars such as Marjorie Shultz and Angela Harris described and confronted the exaggerated objectivism of the pedagogic environment.21 They highlighted the damage that can be produced when emotion is devalued or exiled from the classroom,22 and the benefit that can be gained when emotion is acknowledged and used to illuminate unnoticed assumptions23 or to direct attention to norms and commitments that speakers intuitively value.24 Although the law school classroom, and even the courtroom,25 claimed the attention of some early law and emotions scholars, their primary focus was on the judge. This was particularly embattled territory as, in conventional legalism, the judge remained the legal actor, whose paradigmatic status required the separation of legal reason from emotion.26 Unlike “jurors [or] children,” Richard Posner famously declared, judges discipline themselves to respond to the problems before them with careful, linear rationality.27 Notwithstanding the depth and cenMerriam-Webster's Collegiate Dictionary, 11th ed. (Faridabad: Thomson Press India Ltd. 2003). This is not, of course, the only way one could define “affect.” See, e.g., Oatley et al., Understanding Emotions, 29 (defining “affective” as comprehending a larger domain including emotions, moods, and dispositions). 16 See Harris and Shultz, “A(nother) Critique,” 1776. 17 See Judith Resnik, “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges,” Southern California Law Review 61, no. 6 (1988): 1882–84. 18 See Resnik, “On the Bias,” 1885. 19 Owen M. Fiss, “Reason in All Its Splendor,” Brooklyn Law Review 56, no. 3 (1990). 20 See Harris and Shultz, “(A)nother Critique,” 1774. 21 See generally Harris and Shultz, “(A)nother Critique.” 22 Harris and Shultz, “(A)nother Critique,” 1799. 23 Harris and Shultz, “(A)nother Critique,” 1792. 24 Harris and Shultz, “(A)nother Critique,” 1786. 25 See Lynne Henderson, “Legality and Empathy,” Michigan Law Review 85, no. 7 (1987): 1596-607. Justice Brennan discusses the effect on his decisionmaking process of the appellees' brief in Goldberg v. Kelly. See William J. Brennan, Jr., “Reason, Passion, and ‘The Progress of the Law,’” Cardozo Law Review 10, no. 1-2 (1988): 3, 21. 26 See, e.g., Fiss, “Reason in All Its Splendor,” 790. 27 Richard A. Posner, “Emotion Versus Emotionalism in Law,” in The Passions of Laws, ed. Susan A. Bandes (New York: New York University Press, 1999), 311. Resisting the siren song of affect has been viewed as crucial because of emotion's inevitable intertwinement with particulars: judges, as Owen Fiss has argued, must eschew responses that draw them toward specific individuals or motivations, and

570  Research handbook on law and emotion trality of these mainstream commitments, early law and emotions scholars argued that judges not only did, but should, permit affective forms of knowledge to shape their decisionmaking. In revealing and lauding the role of emotion in adjudication, these scholars drew on a varied foundation, which was emerging both inside and outside the law. The legal realists’ challenge to judicial objectivity28 had been extended by a set of broader epistemological challenges raised by feminist psychologists,29 philosophers,30 and legal scholars31 during the 1980s and early 1990s. Scholarship highlighting the role of emotion in adjudication also drew support from the published reflections of a handful of judges. Justice William Brennan argued in a controversial article, for example, that emotion had illuminated the human terrain that spurred his landmark decision in Goldberg v. Kelly.32 These frank testaments to the presence and potential value of emotion in judging provided the final incitement for legal scholarly intervention. A group of legal theorists—many of whom had helped to inaugurate feminist legal theory—challenged the assumption that emotion was distinct from and alien to legal reasoning. Scholars such as Lynne Henderson,33 Judith Resnik,34 Martha Minow, and Elizabeth Spelman35 contested the categorical valorization of qualities (such as detachment or impartiality) associated with “reason.” Thoroughgoing impartiality was virtually impossible for a situated human being to achieve;36 moreover, resolve cases in a detached and impartial spirit, “on the basis of reasons accepted by the profession and the public.” Fiss, “Reason in All Its Splendor,” 801. 28 However, some heirs to legal realism have retreated toward objectivism, or formalism, in implementing the realist suggestion that law could be ameliorated through more systematic reliance on social policy analysis, or the social sciences. See Joseph William Singer, “Legal Realism Now,” California Law Review 76, no. 2 (1988): 465–504. 29 See generally Mary Field Belenky et al., Women’s Ways of Knowing (New York: BasicBooks, 1986); Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982). 30 See generally Louis M. Antony and Charlotte Witt, eds., A Mind of One’s Own: Feminist Essays on Reason and Objectivity (New York: Taylor & Francis, 1993); Sarah Harding, ed., Feminism and Methodology: Social Science Issues (Bloomington: Indiana University Press, 1987); Sandra Harding, Whose Science? Whose Knowledge? Thinking from Women's Lives (Ithaca: Cornell University Press, 1991), 136–7. See, e.g., Harding, Whose Science?, 136–7. 31 Scholarly analysis of experiential narratives, by feminist and other critical legal scholars, demonstrated that highly particularistic, experiential arguments could be valuable sources of knowledge, not simply through the illuminating quality of their affective charge, but through the unacknowledged assumptions their insights revealed, and the distinctive lines of vision their experience provided. See, e.g., Kathryn Abrams, “Hearing the Call of Stories,” California Law Review 79, no. 4 (1991): 971; Richard Delgado, “Storytelling for Oppositionists and Others: A Plea for Narrative,” Michigan Law Review 87, no. 8 (1989): 2411; William N. Eskridge, Jr., “Gaylegal Narratives,” Stanford Law Review 46, no. 3 (1994): 607; Marc A. Fajer, “Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men,” University of Miami Law Review 46, no. 3 (1992): 511. 32 See Brennan, “Reason, Passion,” 20; Resnik, “On the Bias,” 1928–9. 33 See Henderson, “Legality and Empathy,” 1576. 34 See Resnik, “On the Bias,” 1879. 35 See Martha Minow and Elizabeth V. Spelman, “Passion for Justice,” Cardozo Law Review 10, no. 1–2 (1988): 45. 36 See Martha Minow, “Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors,” William & Mary Law Review 33, no. 4 (1992); Martha Minow, “The Supreme Court, 1986 Term, Foreword - Justice Engendered,” Harvard Law Review 101, no. 1 (1987): 36, n. 120; Henderson, “Legality and Empathy,” 1576.

Who’s afraid of law and the emotions  571 aspiring to a stance of detachment could produce a failure to take responsibility for the consequences of judicial action.37 In contrast, they argued, the self-conscious operation of affective response could humanize and strengthen the task of adjudication, helping judges to understand their daunting power and its implications for the lives of those before them.38 These insights produced a modest, yet important, shift in the way that legal analysts viewed the role of emotion in adjudication. By the early 90s, fewer scholars viewed emotion as “trespassing on territory, such as the judge's mind, that is owned by reason.”39 Mainstream legal scholars increasingly began to acknowledge that emotions were not wholly alien to judicial decisionmaking, and emotions such as empathy could conceivably contribute to judicial reflection on cases.40 Yet, this change in perception remained, in many ways, shallow in its conceptual penetration. Scholars admitted some role for more affective forms of decisionmaking without acknowledging their centrality. Most remained committed to a core of detached, impersonal decisionmaking, though they acknowledged that it could be tinged at times with infusions of affect.41 The bounded character of this transformation is important: it explains why questions about the legitimacy of affectively informed decisionmaking have continued to surface even as law and emotions analysis has proceeded in the legal academy. But even this partial or provisional shift in understanding was sufficient to launch a body of new work, and to send legal scholars in search of other disciplines, where analysis of the emotions was already in progress. B.

Studying the Emotions

The next phase of inquiry turned from a focus on the legitimacy of the emotions in law to a focus on the emotions themselves. This movement had been occurring incrementally for a number of years, but it was highlighted and consolidated in 1999 with the publication of Susan Bandes’ landmark collection, The Passions of Law.42 Bandes’ introduction stated conclusively the insight that many law and emotions scholars had begun to draw from the epistemological exchanges of the preceding years: emotion is everywhere in law.43 Thus, the question becomes not whether emotion can have a role in law, but what kinds of emotions operate in particular contexts and what sort of a role do they play?44 Legal scholars began to study the emotions, often drawing on the research or insights of other disciplines, to answer this question.45 See Minow and Spelman, “Passion for Justice,” 48, 56–9; Resnik, “On the Bias,” 1922; Henderson, “Legality and Empathy,” 1590-91 (citing Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975)). 38 Two of the most influential of these works,” Passion for Justice,” by Minow and Spelman, and “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges,” by Resnik, took their bearings explicitly from these judicial revelations. 39 Minow and Spelman, “Passion for Justice,” at 37. 40 See Minow, “Stripped Down,” 203. 41 See Eric A. Posner, “Law and the Emotions,” Georgetown Law Review 89, no. 6 (2001): 1977, 1979. 42 See Bandes, The Passions of Law, 311. 43 Susan A. Bandes, “Introduction,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 1. 44 Bandes, “Introduction,” 7. 45 See Bandes, “Introduction.” 37

572  Research handbook on law and emotion In this newer work, legal scholars investigated emotions with greater particularity. They focused not on the general category of affective response, but rather on a range of distinct and particularized emotions, from vengeance to indignation to mercy.46 Much of this attention was trained on the negative emotions that inform the criminal law.47 Emotions like anger or vengeance had been part of criminal jurisprudence even before the epistemological challenge; criminal law is one of the few areas of doctrine in which an examination or assessment of emotions (e.g., did the defendant act in the “heat of passion” or did he demonstrate remorse?) has been a standard feature of the doctrinal and adjudicative landscape.48 The exploration of emotion in criminal justice helped to expand law and emotions scholars' view of the contexts that constituted “law,” adding foci such as the jury,49 capital sentencing,50 state and federal legislation,51 and the pronouncements of public officials and advocates.52 As legal analysts sought to learn more about the range of emotions they now perceived, they increasingly turned to fields outside the law, where inquiry into the emotions was better established.53 One can glimpse this pattern in scholarly arguments about disgust, whose role in the criminal law fueled one of the most vivid and extended debates in this body of work. William Miller’s The Anatomy of Disgust,54 a path-breaking volume in this vein, was far-ranging and eclectic in its use of cross-disciplinary knowledge. Miller drew broadly on literature;55 he also mined psychological, anthropological, and philosophical discussions to understand the emotion of disgust.56 Similarly, Martha Nussbaum’s challenge to the legal mobilization of disgust analyzed a range of sources, from the poetry of Walt Whitman to psychological studies of disgust provoked by food.57 The distinguishing feature of this interdisciplinary investigation was the breadth of its aspiration, drawing on resources as distinct as Orwell or Mahler,58 on the one hand, and empirical psychological studies, on the other, to create a synthetic account of particular emotions that resonated with human experience.

Bandes, “Introduction,” 2. See Bandes, “Introduction.” 48 See Bandes, “Introduction.” 49 See, e.g., David A. Bright and Jane Goodman-Delahunty, “Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making,” Law & Human Behavior 30, no. 2 (2006): 183. 50 See, e.g., Theodore Eisenberg, Stephen P. Garvey and Martin T. Wells, “But Was He Sorry? The Role of Remorse in Capital Sentencing,” Cornell Law Review 83, no. 6 (1998): 1599; Austin Sarat, “The Cultural Life of Capital Punishment: Responsibility and Representation in Dead Man Walking and Last Dance,” Yale Journal of Law and the Humanities 11, no. 1 (1999): 153, 161. 51 Bandes, “Introduction,” 3. 52 See, e.g., Dan M. Kahan, “The Progressive Appropriation of Disgust,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 63, 70–71. 53 See Bandes, “Introduction,” 7. 54 See William Ian Miller, The Anatomy of Disgust (Cambridge: Harvard University Press, 1997). 55 For example, his discussion of the hierarchical character of disgust, and the related emotion of contempt, draws provocatively on George Orwell's Down and Out in Paris and London. Miller, The Anatomy of Disgust, 243–7. 56 Miller, The Anatomy of Disgust, 17, 27, 29. 57 See Martha C. Nussbaum, “The Secret Sewers of Vice”: Disgust, Bodies, and the Law,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 19, 23, 33–4. See Miller, The Anatomy, 26–8, 55. 58 Miller, The Anatomy, 28. 46 47

Who’s afraid of law and the emotions  573 C.

Making a Normative Turn

As legal scholars interested in the emotions ventured into other disciplines, some brought insights gleaned from this work to bear normatively on specific legal questions. In the first instance, these works examined the possible roles for particular emotions in law, or the appropriateness of specific emotions in particular legal contexts. Dan Kahan, reviewing Miller’s work on disgust, asked how the law might harness disgust to serve a variety of goals, from expressing the moral norms of the community, to marking the special salience of hate crimes.59 Over time, this focus expanded to include not simply works that considered whether and how particular emotions should play a role in law, but also works that asked whether and how law might affect emotions in a more purposive way.60 Both of these emphases shifted the focus from understanding emotions to working with the law. However, the latter project envisions the law as having a more instrumental role in shaping affective experience. For instance, Martha Minow, Laurel Fletcher, and others explored the ways that law might help contending factions move toward forgiveness or reconciliation after mass violence.61 In a similar vein, we recently argued that the law—in contexts from litigation to programs such as Head Start—can help to cultivate hope in people whose political or material deprivation has led them toward despair.62 This more recent work has significantly expanded the scope of law and emotions scholarship. It encompasses doctrinal areas beyond the criminal field, moving into areas such as family law,63 education policy,64 and corporate and securities law.65 It comprehends both negative emotions such as fear and disgust, and positive emotions such

See Dan M. Kahan, “The Anatomy of Disgust in Criminal Law,” Michigan Law Review 96, no. 6 (1998): 1621, 1631. 60 This normative legal work was previewed by work in philosophy. See Robert C. Solomon, “Justice v. Vengeance: On Law and the Satisfaction of Emotion,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 123, 131. Cheshire Calhoun has argued that legal prohibitions on gay marriage, among other social and cultural influences, have served to script romantic love as an exclusively heterosexual affair. See Cheshire Calhoun, “Making Up Emotional People: The Case of Romantic Love,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 217, 218. 61 See generally Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide And Mass Violence (Boston: Beacon Press, 1998). See also Laurel Fletcher, “Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, (Review),” Berkeley Journal of International Law 19, no. 2 (2001): 429 (reviewing Minow, Between Vengeance and Forgiveness). 62 See Kathryn Abrams and Hila Keren, “Law in the Cultivation of Hope,” California Law Review 95, no. 2 (2007): 323. 63 See Clare Huntington, “Repairing Family Law,” Duke Law Journal 57, no. 5 (2008): 1246; Solangel Maldonado, “Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce,” Wake Forest Law Review 43, no. 2 (2008): 441. 64 See Abrams and Keren, “Law in the Cultivation,” 363–77. 65 See Peter H. Huang, “Emotional Impact Analysis in Financial Regulation: Going Beyond Cost-Benefit Analysis” IDEAS Working Paper Series from RePEc (January 1, 2006), http://​search​ .proquest​.com/​docview/​1697442917/​. Peter H. Huang, “Regulating Irrational Exuberance and Anxiety in Securities Markets,” in The Law and Economics of Irrational Behavior, eds, Francesco Parisi and Vernon L. Smith (Stanford: Stanford University Press, 2005), 501, 503. 59

574  Research handbook on law and emotion as love,66 forgiveness,67 and hope.68 Perhaps most importantly, it envisions a more dynamic and purposive relation between law and the emotions, reflecting both the belief that law can be used strategically to nurture, shape, or channel particular emotions, and the awareness that law can create incidental effects on the emotions, which legal actors may endeavor to anticipate and control.

II.

ECHOES OF THE LAW/EMOTION DICHOTOMY

In Part II, omitted here, the authors examine the surprisingly ambivalent response to the rich scholarship on law and the emotions that they describe in Part I. They argue that such disappointing response reflects the persistence of the traditional tendency to dichotomize and hierarchize reason and emotion. The authors explain that the problem is that after the emergence of law and emotions scholarship, the resistance is harder to detect because it comes in a more obscure form, as a refusal not of the descriptive, but of the normative dimension of this work. The best answer to this type of skepticism, the authors therefore argue, is to emphasize and demonstrate the pragmatic value of law and emotions work. In Part III, the authors accordingly elaborate this pragmatic potential of law and emotions scholarship, offering a roadmap for future development of this critical approach.

III.

THREE DIMENSIONS OF USEFULNESS

The ambivalent reception of law and emotions scholarship stands at sharp odds with its pragmatic potential. Therefore, this Part aims to offer an analysis of law and emotions scholarship that explicates the tools it provides for responding to legal problems. We argue this scholarship has demonstrated three “dimensions” which can inform both the more modest end of improving legal doctrine, and the more ambitious aspiration of using law to produce desirable emotional effects. In this Part, we mark these three dimensions with the terms Illumination, Investigation, and Integration. The first dimension, “Illumination,” stands for the task of highlighting the often unacknowledged way that emotions are implicated in a particular legal setting. The second, “Investigation,” reflects the interdisciplinary effort to better understand the nature and characteristics of the specific emotions at issue. The third, “Integration,” represents the challenge of incorporating the new affective insights gleaned through this effort into normative suggestions for legal change. Not every example of law and emotions scholarship encompasses each of these dimensions. Yet, particularly in the context of resurgent legal resistance to emotions, it is important to recognize that the most fully realized forms of this scholarship, and the aspirations of this body of scholarship as a whole, reflect all three.

See Calhoun, “Making Up,” 218. See Minow, “Justice Engendered,” 14; see also Huntington, “Repairing Family,” 1300; Maldonado, “Cultivating Forgiveness,” 441. 68 See Abrams and Keren, “Law in the Cultivation,” 344–77. 66 67

Who’s afraid of law and the emotions  575 A. Illumination The “illumination” dimension has at its core the observation of specific legal issues through the new prism of the emotions. As law and economics works to revisit legal problems from the perspective of costs and benefits, and feminist projects examine legal matters from the perspective of women’s experiences, or of gender bifurcation or subordination, law and emotions scholarship embodies a particular lens: an affective standpoint. Examining law from the perspective of the emotions is not, however, a simple task. In most cases the emotions do not appear on the surface of a judicial opinion, a legislated norm, or another articulation of a legal issue. Instead, the practice of dichotomizing law and emotions obscures the emotion or emotions that may be relevant to a particular legal context; we need therefore to dig beneath the surface, and ask ourselves how emotion might be implicated in such contexts. This process often permits us to see that emotions play a role that has not been acknowledged, or that they have been misapprehended in the context of existing legal doctrine. Sometimes reconsidering a legal problem from the perspective of the emotions will reveal that emotions have been marginalized within conventional analysis. This is both a remainder and a reminder of the traditional dichotomy between law and emotions and its consequences. Typically in such cases, the accepted rationalist understanding of the subject either ignores the emotions altogether, or alludes to them briefly or shallowly as a matter that requires no inquiry or explanation. For example, writing about prisoners awaiting execution on death row, Professor Amy Smith illuminates the glaring neglect of the negative emotions that occurs during the extended period of time between conviction and execution.69 . . . Professor Smith explains that legal actors have started to use the term “death row syndrome,” to describe the psychological effects of the experience of living in the harsh conditions of death row for a long period of time.70 However, she calls attention to the fact that despite legal “use of the word ‘syndrome,’… the concept has never been systematically studied by psychologists, psychiatrists, or social scientists.”71 And yet, this argument could be read as underscoring the law's utter failure to consider the devastating affective outcomes of lives lived on death row. . . . “[I]t exposes a crucial dimension of the “cruel and unusual” punishment that the Constitution proscribes.72 Another observable pattern from an affective perspective is the legal failure to differentiate the particular emotions that may be relevant to a particular legal question. Although there are contexts in which it may be useful to speak generally about “the emotions,”73 this monolithic characterization is often indicative of a persistent tendency to dichotomize emotion and reason. In many cases, the monolithic conception means that “emotions” are being imagined as a bundle of overwhelming and uncontrollable “feelings” which, by definition, threaten the intellectual process of legal reasoning. . . .

See Amy Smith, “Not ‘Waiving’ but Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution,” Boston University Public International Law Journal 17, no. 2 (2008): 237. 70 Smith, “Not ‘Waiving,’” 238. 71 Smith, “Not ‘Waiving.’” 72 See Smith, “Not ‘Waiving,’” 240. 73 See, e.g., Jeremy A. Blumenthal, “Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey,” Washington Law Review 83, no. 1 (2008): 6. 69

576  Research handbook on law and emotion For example, in California v. Brown, the Court affirmed an instruction stipulating that capital jurors assessing mitigation “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.”74 In explaining her support for the ruling, Justice O’Connor argued that “the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime rather than mere sympathy or emotion.”75 The undifferentiated treatment of emotion signals Justice O'Connor's view of it as utterly distinct from, and destructive of, appropriate legal reasoning. A similar pattern exists in the failure of contract law to enforce gratuitous promises.76 Akin to instructing capital jurors to ignore their feelings in assessing mitigation, contract law historically made a deliberate choice to ignore those promises that are assumed to be motivated by emotions rather than by rational calculations, such as the profit motivation. In such cases, the failure to disaggregate the emotions not only reflects a deep suspicion of the role of affect in law, it also prevents analysts from glimpsing and analyzing the specific emotions such as empathy and gratitude that are actually implicated in gratuitous promises. Occasionally, applying an affective frame reveals a legal decisionmaker gesturing toward particular emotions, without attempting fully to understand them. Chris Guthrie has made this argument, for example, about the Court's opinion in Gonzales v. Carhart.77 He argues that when the majority invoked the risk of women's regret as a ground for upholding a law proscribing one form of late-term abortion, it named this emotion without knowing, or attempting to learn, about it.78 Thus the Court failed to engage an important body of research that would have shown this emotion to be a less serious problem than the Court predicted.79 Clare Huntington has made a similar point about family law, and its assumptions about the emotions that shape familial conflicts.80 Conventional family law, according to Huntington, assumes a simplistic binary affective model that dichotomizes love and hate.81 . . . . But, this reductive model is at odds with what psychologists and other social scientists have learned about the affective cycles that typify intimate relationships: these cycles often move from love to anger to guilt to efforts at repair.82 By recognizing a limited affective model, which acknowledges only rupture but not a possible repair, the law freezes familial relationships at the moment of breakdown and “exacerbates emotional harm within families.”83 [A]ffective analysis in its “illumination” mode permits a new understanding of family functioning. Another group of cases which stand to benefit from affective analysis are those in which the law's significant impact on particular emotions has not been acknowledged. . . . [D]octrine may fail to acknowledge the law’s negative impact on certain emotions. Samuel Bagenstos 74 California v. Brown, 479 U.S. 538, 545 (1987). The example is taken from Dustin Latka, “From Vengeance to Mercy: Examining the Other and Finding the Human” 3 (2007) (unpublished manuscript for 2007 seminar entitled “Challenges of Legal Rationality,” on file with authors). 75 Brown, 479 U.S. at 545 (second emphasis added). 76 See Hila Keren, “Considering Affective Consideration,” Golden Gate University Law Review 40, no 2 (2010). 77 Chris Guthrie, “Carhart, Constitutional Rights, and the Psychology of Regret” Southern California Law Review, 81, no. 5 (2008): 877. 78 See Guthrie, “Carhart,” 881. 79 See Guthrie, “Carhart.” 80 See Huntington, “Repairing Family,” 1254. 81 See Huntington, “Repairing Family.” 82 See Huntington, “Repairing Family,” 1260. 83 See Huntington, “Repairing Family,” 1249.

Who’s afraid of law and the emotions  577 and Margo Schlanger argue, for example, that the award of “hedonic damages” to those who become disabled in accidents risks precisely such negative impact.84 Its flawed assumption that those disabled by an accident suffer substantial losses in “enjoyment” of life—when in fact their enjoyment returns to earlier levels after a short period of adjustment—induces nondisabled people to pity them without justification.85 . . . . In another example, Carol Sanger uses the law and emotions lens to expose the affective cost of the “judicial bypass” process on pregnant teenagers seeking abortions.86 Sanger illuminates the humiliation that this process may cause to young, unmarried girls who do not enjoy parental support and are required to testify in court “about the circumstances of intercourse, their mishaps with contraception, misgivings about pregnancy, or the nature of their relationships with those closest to them.”87 . . . . Engendering humiliation, Sanger concludes, is a cost of the bypass process that has not been considered by lawmakers; it threatens severe harm to the girls involved as well as a basic denial of our society’s decency.88 . . . [U]sing the same lens, scholars can glimpse places where legal actors have neglected their potential to cultivate valuable and positive emotions. Solangel Maldonado makes this argument with respect to forgiveness in family law.89 Although reforms such as no-fault divorce have not decreased the levels of “bitterness and vengefulness that characterize some divorces,”90 Maldonado sees potential in a legal focus on forgiveness. Drawing from forgiveness models developed by scholars in other disciplines, Maldonado argues that family law can cultivate forgiveness by offering “Healing Divorce Programs” to high-conflict divorcing couples.91 The illumination dimension of law and emotions work is thus aimed at exposing law's limited or mistaken assumptions, about the emotions in general or about particular emotions. . . When the focal point is a legal problem that directly raises an affective concern, the connection may be evident and easy to illuminate. For example, scholars who have debated the value of admitting victim impact statements in capital sentencing proceedings face a context which is explicitly emotion-laden: from empathy and compassion toward the victim and her loved ones to vengeance and hatred toward the defendant.92 In other cases, affective connection may not be obvious from the context. . . . Accordingly, some works in the field begin from an analysis of a particular emotion or of emotions, and only then move on to connect their insights to legal contexts in which those emotions play a role. For example, writing about the role of emotions in risk regulation, Dan Kahan begins Samuel Bagenstos and Margo Schlanger, “Hedonic Damages, Hedonic Adaptation, and Disability,” Vanderbilt Law Review 60, no. 3 (2007): 778–84. 85 Bagenstos & Schlanger, “Hedonic Damages,” 778–84. 86 Carol Sanger, “Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law,” Columbia Journal of Gender and Law 18 (200): 414. 87 Sanger, “Decisional Dignity,” 447. 88 Sanger, “Decisional Dignity,” 497. 89 Maldonado, “Cultivating Forgiveness,” 444. 90 See Maldonado, “Cultivating Forgiveness,” 459. 91 Maldonado, “Cultivating Forgiveness,” 492–95. 92 See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, University of Chicago Law Review 63, no. 2 (1996): 392. See also Paul Gewirtz, “Victims and Voyeurs: Two Narrative Problems at the Criminal Trial,” in Law’s Stories: Narrative and Rhetoric in the Law, eds. Peter Brooks and Paul Gerwitz (New Haven: Yale University Press, 1996), 135, 143; Kenji Yoshino, “The City and the Poet,” Yale Law Journal 114, no. 8 (2005): 1883–4. 84

578  Research handbook on law and emotion with three leading theories for conceptualizing this role,93 and only then turns to what he calls “normative and prescriptive implications.”94 . . . . Making both kinds of efforts—from doctrine deeper into the emotions and from emotions back to doctrine—is crucial to realizing the full potential of affective analysis. In illuminating the place of emotions in a particular legal setting, it is important to note the wide variety of legal questions to which law and emotions tools can be applied. Not only have we seen examples from different areas of law (criminal law, constitutional law, family law, the law of contracts, criminal procedure, tort law, education law, and administrative law), but we have also seen that emotions may be implicated in judge-made doctrine, legislation, regulation, and legislative programs which reflect public policy. B. Investigation . . . [T]he law’s deep commitment to rationalism can render legal actors oblivious or ill-informed about the emotions that infuse it. Exploring and highlighting the research into emotion that is emerging from other disciplinary fields is thus a critical step toward improving legal understanding. This is especially true in legal settings that are affectively laden, such as reproductive choice, victim impact statements, or in contexts in which the law embraces specifically affective goals, such as enhancing deterrence by cultivating shame among criminal offenders.95 Under these circumstances, the lack of awareness and understanding among legal decisionmakers can be a critical shortcoming. What we define here as the “investigation” dimension of law and emotions scholarship refers to the efforts to fill this void. . . . . Our argument is twofold: first, we argue that an investigation effort is essential for the law and emotions project; second, however, we observe that simply engaging in such vital work is not sufficient to reveal the full potential of law and emotions scholarship.96 In the work with greatest pragmatic potential, thorough interdisciplinary investigation of the emotions is the crucial predicate for normative thinking about the law: either about its amelioration or about its role in shaping the affective lives of its subjects. . . . . As we have seen, the first generation of law and emotions work was mainly devoted to the task of undermining the dichotomy between law and emotions and seemed to end after accomplishing this important goal.97 To the extent that such works explored emotions independently, they did so for the limited purpose of targeting the myth that emotions threaten rationality and distort legal reasoning. For example, some legal scholars explored research from other fields which increasingly suggested that “emotions are partly cognitive in their very structure.”98 This interdisciplinary insight helped to strengthen the conventional legal view that “emotions are not merely instinctive and uncontrollable.”99

See Dan Kahan, “Two Conceptions of Emotion in Risk Regulation,” University of Pennsylvania Law Review 156, no. 3 (2008): 744. 94 Kahan, “Two Conceptions,” 760. 95 See, e.g., Toni M. Massaro, “Show (Some) Emotions,” in Bandes, The Passions of Law, 80. 96 Cf. Posner, “Emotion Versus Emotionalism.” 97 See, e.g., Harris and Shultz, “A(nother) Critique,” 1773. 98 Harris and Shultz, “A(nother) Critique,” 1786; Dan M. Kahan and Martha C. Nussbaum, “Two Conceptions of Emotion in Criminal Law,” Columbia Law Review 96, no. 2 (1996): 277–8. 99 Bandes, “Introduction,” 14. 93

Who’s afraid of law and the emotions  579 . . . . Law and emotions scholars can enhance the potential contribution of their illumination efforts by investigating existing literatures that explore attributes of those emotions implicated in their particular contexts. Bagenstos and Schlanger, in their work on hedonic damages, offered an instructive investigation of one emotion implicated by their question (joy),100 yet did not undertake a similar inquiry into another emotion that was central to their thesis (pity). Their argument that awarding hedonic damages inappropriately cultivates pity toward the injured person seems to call for an investigation of the nature and operation of pity. Moreover, this inquiry should be contextualized and shaped by the reasons that readers want to know more about pity.101 . . . . While a thorough exploration of emotions is highly important for the formulation of a usable law and emotions scholarship, it may not, in and of itself, be sufficient. A prime example can be found in William Miller’s groundbreaking work, The Anatomy of Disgust.102 This work set what many scholars viewed as the gold standard for nuanced interdisciplinary investigation of specific emotions; yet it placed little or no emphasis on linking this investigation to actual legal problems and their resolution. It was only as scholars such as Dan Kahan began to ask what instruction could be drawn from Miller's trove of insights for the direction of the criminal law that it became clearer how an investigation of disgust could serve the pragmatic goals of legal actors.103 In the remainder of this section, we will identify the kinds of efforts that typify the investigation dimension. . . . As legal actors are deeply invested in the “rational” image of the law, they are particularly averse to emotion when they view it as an “impulse[] or surge[]” of affect, which is “more or less devoid of thought or perception.”104 To overcome this resistance to affective analysis, it is important to prepare the ground by highlighting the connections between emotions and cognition. In Descartes’ Error, for example, Antonio Damasio points to the imprecise and misleading character of the reason/emotion dichotomy.105 To him, emotions are forms of intelligent awareness: “just as cognitive as other precepts.”106 Once the sharp distinction is removed, two arguments unfold. On the one hand, as works by scholars such as Martha Nussbaum demonstrate, many emotions have a cognitive structure: they embody judgments about the objects to which they respond that has a kind of logical structure.107 . . . .

See Bagenstos and Schlanger, “Hedonic Damages,” 781–88. See Bandes, “Introduction,” 3. For a fine example of such contextual analysis, see Martha Minow’s discussion of vengeance in Martha Minow, “Institutions and Emotions: Redressing Mass Violence,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 265–84. 102 Miller, The Anatomy of Disgust. 103 See Kahan, “The Anatomy of Disgust,” 1631. See also Maldonado, “Cultivating Forgiveness,” 479–85. 104 Kahan and Nussbaum, “Two Conceptions,” 277–8. 105 Antonio R. Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain (New York: G. P. Putnam, 1994), xv. 106 Damasio, Descartes’ Error, xv. 107 See, e.g., Martha Nussbaum, Love’s Knowledge: Essays on Philosophy and Literature (New York: Oxford University Press, 1990), 40; Andrew Ortnoy, Gerald L. Clore and Allan Collins, The Cognitive Structure of Emotions (Cambridge: Cambridge University Press, 1988); Richard Lazarus, “Universal Antecedents of the Emotions,” in The Nature of Emotion: Fundamental Questions, eds. Paul Ekman and Richard J. Davidson (Oxford: Oxford University Press, 1994), 163. 100 101

580  Research handbook on law and emotion On the other hand, as psychologists such as Jonathan Haidt have argued,108 the process of cognitive decisionmaking embodies vital affective components. In one experiment, for example, people who received a gift while shopping in a mall became happier, and without being aware of it, evaluated their cars as performing better than those of control subjects who had received no gift.109 . . . . If various emotions have the structure of cognition, and cognition itself often functions in an intuitive, affective way, then bringing the two together by recognizing the place of emotions in law does not seem anomalous after all. Another part of the preparation phase involves identifying the specific emotions that are implicated in a particular legal context. As Susan Bandes has reminded us, the emotions that pervade law are often “invisible”110 and therefore an independent effort is often necessary to expose the emotions that are relevant to the discussion. Huntington’s “Repairing Family Law” offers a fine example.111 Drawing on a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein, Huntington suggests that certain emotions and affective dynamics stand at the core of conflicts that emerge in the intimate sphere.112 While family law has only noticed the binary existence of love and hate in those conflicts,113 her interdisciplinary research shows “the cyclical nature of familial relationships.”114 In this cycle, guilt feelings and a following emotive drive for reparation play a major role—a role which Huntington importantly exposes and identifies before delving into her investigation of the cycle of intimacy in Western culture and its acceptance in modern psychological thought and numerous other academic disciplines.115 . . . . The effort to identify the specific emotion(s) at play in a particular legal context is itself informed by research from outside the law. Mainstream legal scholars who understand emotions primarily in distinction to reason often think about emotions as undifferentiated. Those who study emotions in other fields, however, observe that emotions cannot be discussed monolithically.116 . . . . In working to identify the specific emotions that inform particular legal contexts, law and emotions scholars face the challenge of going beyond the limited list of emotions that have been conventionally associated with law. Such familiar emotions as anger, compassion, mercy, vengeance, and hatred117 remain relevant; yet law and emotions scholars should be alert to the operation of other emotions. Indeed, examples from the existing law and emotions literature include happiness, guilt, forgiveness, romantic love, gratitude, loyalty, envy, regret,

Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” Psychological Review 108, no. 4 (2001): 815. 109 Oatley, Keltner and Jenkins, Understanding Emotions, 24 (describing research undertaken by Alice Isen and her colleagues). 110 Bandes, “Introduction,” 2. 111 Huntington, “Repairing Family,” 1254–66. 112 Huntington, “Repairing Family,” 1245–46. 113 We classify this argument as belonging to the illumination dimension. 114 Huntington, “Repairing Family,” 1247. 115 Huntington, “Repairing Family,” 1260–74. 116 Joseph LeDoux, The Emotional Brain: The Mysterious Underpinnings of Emotional Life (New York: Simon & Schuster, 1998), 105–6 (1996). 117 Bandes, “Introduction,” 2. 108

Who’s afraid of law and the emotions  581 and our own engagement with hope.118 The list, we argue, is almost infinite and should remain open to accommodate new research and reflection from a variety of fields.119 As the investigation passes these preparatory steps and moves into a full exploration and synthesis of the existing literature, its distinguishing characteristic is its grave complexity.120 . . . . Perhaps most critically, legal scholars who seek to unite law with research into the emotions must process and distill insights that have developed for decades in other fields such as psychology, neurobiology, anthropology, and philosophy. They must make judgments about which fields or literatures are most germane to a particular legal context, and develop synthetic accounts of the emotion(s) in question which both reflect the insights of the contributing fields and shed light on the legal question. Susan Bandes’ analysis of the pseudo-emotion of “closure,” for example, encompasses psychological work both on the elusive character of that alleged response, and on the proximate emotions of grief and loss.121 . . . . While sorting out the information, the challenge is to avoid oversimplification, on the one hand, and still to create a useful synthesis of knowledge which will improve the understanding of law and its impact, on the other. A “useful synthesis” will sort and arrange the nonlegal knowledge in a manner which responds to the context and legal questions at hand. This means that some important theories or data will be purposefully omitted, while other facts and theories may be emphasized beyond their relative weight outside of law. . . . With the wide range of emotion theories, the many disciplines that study emotions, the abundant literature they produce, and the rapid pace of scientific progress, the complexity of the investigation work may be daunting. Perhaps for this reason, scholarly collaborations between legal scholars and those who study emotions in other disciplines are gradually becoming more common. . . . [C]oping with the challenge is not only extremely enriching, it is also crucial to creating a law and emotions scholarship with solid grounding in emotions research that enables it to be useful. Generally speaking, the key to breaking the traditional alienation between law and emotions is to be found in deepening the familiarity of legal actors with the emotions: with various affective dynamics, with the importance of the emotions to any “rational” decisionmaking, and with concrete emotions that are tightly connected to law and/ or highly influenced by it. [In the remainder of the section regarding investigation, omitted here, the authors provide examples of fascinating investigations of particular emotions, and explain how critical it is for law and emotions scholars to engage in creating an interdisciplinary account of the emotions that matters for their legal work. In general, they argue, the key to breaking the traditional alienation between law and emotions is deepening the familiarity of legal actors with the emotions: with various affective dynamics, with the importance of the emotions to any “rational” decisionmaking, and with concrete emotions that are tightly connected to law and/or highly influenced by it.]

118 See, e.g., Huntington, “Repairing Family,” 1254–66; Calhoun, “Making Up,” 217–40 (exploring romantic love); Abrams and Keren, “Law in the Cultivation,” 361–71. 119 This phase of analysis may also involve analyzing alleged affective phenomena which may not, on careful examination, turn out to be emotions, and may not function the way that advocates or analysts have suggested that they do. An interesting example in this regard is Susan Bandes’ work on “closure” in the context of the death penalty. Susan A. Bandes, “Victims, “Closure,” and the Sociology of Emotion,” Law and Contemporary Problems 72, no. 2 (2009). 120 On the dilemma facing legal scholars who must address complex multidisciplinary research into the emotions, see Massaro, “Show (Some) Emotions,” 83–89. 121 Bandes, “Victims, Closure,’” 18–25.

582  Research handbook on law and emotion C. Integration The third dimension of law and emotions scholarship is “integration.” Scholars apply the analyses of particular emotions that they have gleaned from work in other disciplines to address particular problems in legal doctrine, policy, or argumentation.122 For scholars whose work encompasses all three dimensions, this means returning to the problem that they initially identified as implicating the emotions, and developing normative proposals. For scholars who begin with an analysis of particular emotions, this third dimension means thinking about how their investigation may help to address specific legal issues. Attention to this dimension has emerged more recently in law and emotions scholarship; scholars outside the field may be less cognizant of this dimension than of the first two. Where it has been glimpsed, moreover, this dimension has proved more controversial than the first two. The development of normative legal proposals—particularly those which use law to foster, direct, or discourage specific emotions—may arouse both epistemological and practical concerns in some legal scholars and readers. In the following discussion, we examine two attributes of “integration.” First, we consider the normative goals of this scholarship: that is, what law and emotions scholars aim to achieve by using affective analysis to inform legal intervention. Then we explore the normative means of this scholarship: what legal instrumentalities it uses in these interventions. Our analysis will address some of the normative concerns that have been provoked by more ambitious forms of this scholarship. But we aim primarily to demonstrate that the normative dimension of this body of work—as well as its “illumination” and “investigation”—has practical promise. 1. Normative goals When law and emotions scholars use affective analysis to structure legal proposals, they have one (or more) of several possible goals. Many are simply trying to improve legal doctrine or policy, by making it more responsive to emotions that inflect its operation. If women's reproductive decisionmaking, as Jeremy Blumenthal argues, can be distorted both by misleading facts and by extremes of emotion, then the standard for state abortion regulations should encompass both.123 But law and emotions scholars do not simply see affective analysis as a vehicle for improving legal decisionmaking. Many also view legal doctrine, policy, and various forms of legal rhetoric as vehicles for influencing the emotions. These goals may, moreover, be pursued in tandem: Hila Keren's recent work, for example, aims not only to improve the law of contract through (an affective argument for) enforcing gratuitous promises; it also seeks to foster the empathy and gratitude reflected in such promises, by making them legally enforceable.124 This section examines the less familiar, and potentially more controversial, of these goals: the idea that we can and should use law to produce particular effects on the emotions. It begins with an analytic question: in what ways can law engage the emotions?

122 See David J. Arkush, “Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory,” Brigham Young University Law Review 2008, no. 5 (2008): 1365. 123 See Blumenthal, “Emotional Paternalism,” 36–38 (discussing the crucial role of the emotions in the context of spousal notification laws). 124 Keren, “Considering Affective Consideration.”

Who’s afraid of law and the emotions  583 a. A framework for analyzing law’s relations to the emotions As we have studied the work that has been done in investigating particular emotions or highlighting their role within specific legal contexts or questions, we have identified a number of possible relations between law and various emotions.125 These relations run the gamut from the purposive—action undertaken specifically because of its emotional effects—to the largely inadvertent. In some cases, legal actors understand or anticipate the emotional effects of their choices, though these effects are not the primary object of their action. Comprehending the range of such relations is an important first step to understanding the goals to which they might be turned: revising law to respond to new understandings of the emotions, or using law to produce specific emotional effects. We describe these relations below, in an order that reflects an increasing degree of intervention by law in the emotions in question. Law may, first, serve as a vehicle for expressing society’s collective response. In this role, law serves to mirror, project, or in some cases, support or amplify,126 an emotion that is already present. This relation has become familiar in the context of criminal law: when the law criminalizes and punishes specific acts, it becomes one vehicle through which citizens can express their anger, indignation, or disgust at these crimes.127 Law may also seek to modify an emotion that is already present among some group of legal subjects. A legal rule might aim to secure decisionmaking processes from the influence of what actors believe to be highly visceral or potentially distortive emotions. Jeremy Blumenthal's effort to encompass affectively based distortions in reproductive decisionmaking under Casey is an example of this kind of containment.128 He is concerned that certain “informed consent” warnings about the attributes of the fetus may generate such strong emotions of anxiety, fear, or guilt as to make coherent decisionmaking impossible.129 Similarly, Susan Bandes has argued against the use of victim impact statements: they induce intense empathy, which can prevent juries from reaching just conclusions in capital cases.130 The goal of using law to contain emotions is shared by a small body of behavioral law and economics works that do go beyond the descriptive enterprise and seek to offer normative proposals.131 Such works critique the assumptions of rationality through which law and economics scholars have constructed homo economicus, arguing that “real people” are limited by their own biases and heuristics, and are characterized generally by bounded rationality, bounded willpower, and bounded self-interest.132 They propose legal interventions to contain 125 Clare Huntington undertakes an inquiry that has some intersection with the one we pursue here. Clare Huntington, “Familial Norms and Normality,” Emory Law Journal 59 (2010): 1103. 126 This appears to be the point in Dan Kahan's argument that criminal law should express societal disgust at certain acts or actors. See Kahan, “The Progressive Appropriation,” 63, 69–73. 127 Some legal expression of emotion may be inadvertent or may proceed differently than anticipated. See Bandes, “Empathy, Narrative and Victim,” 395–8. But, in the main, the legal expression of emotion has an intentional character: the law is purposefully deployed as a vehicle for articulating a particular affective response. 128 Blumenthal, “Abortion, Persuasion, and Emotion,” 27–38. 129 Blumenthal, “Abortion, Persuasion, and Emotion,” 20–26. 130 Bandes, “Empathy, Narrative, and Victim,” 392–3. 131 While behavioral law and economics scholars always offer descriptive work, they disagree with regard to the engagement in normative analysis. For an account of the debate see infra notes 209–211 and accompanying text. 132 See, e.g., Christine Jolls, Cass R. Sunstein and Richard Thaler, “A Behavioral Approach to Law and Economics,” Behavioural Law and Economics 13, (2000).

584  Research handbook on law and emotion the influence of the biases or heuristics, from a belief that, similarly to emotions, they may impede sound decisionmaking.133 Cass Sunstein’s view that risk assessment may be distorted by probability neglect or availability bias, for example, leads him to argue that such irrationality can be controlled by delegating such decisions to experts, whose training makes them less vulnerable to flawed heuristics.134 However, because of the distinct focus and assumptions of each body of work, such areas of normative overlap between law and emotions and behavioral law and economics are relatively rare. Because behavioral law and economics privileges rationality and understands emotions and biases, in general, as disruptive, interventions in the emotions that aim at goals other than containment or control are largely beyond its ambit. Law and emotions work may also use law to manage emotions. The goal of this management . . . is to adjust specific emotions upward or downward in response to challenges in the specific context. We have recently begun a project that explores the role of hope in the legal representation of clients on death row. Our initial research suggests that attorneys representing those on death row play a pivotal, ongoing role in managing the hopes of their clients: they help clients with potentially weak cases to adjust their hopes downward when facing a promising plea agreement, or help clients to adjust their hopes upward when they are sentenced to death row or even life without parole, and need to glimpse the possibility of living a life with some value in prison.135 These interventions aim at specific legal outcomes: they seek to prevent “volunteering,” which ends lives and creates ethical conflicts for death row lawyers,136 or to keep cases from going to trial, in contexts where a plea is more likely to avert a death sentence.137 But they also seek to stabilize and ameliorate the emotional well-being of those who have been sentenced to death.138 The law can also work to channel or moderate emotions that are already being experienced by a particular person or group. Here we refer not simply to controlling the intensity of particular emotions, but to reshaping or redirecting them. The criminal law is sometimes conceptualized, in general terms, as a vehicle for channeling the anger, grief, or retributive urges of victims. The late Robert Solomon argued, somewhat more subtly, that embodying the desire for retribution in the criminal law actually serves to moderate this emotion: it makes the desire for vengeance cooler and less volatile, and less socially disruptive because the criminal law connects this urge to specific legal processes for determining guilt or punishment.139 Martha Jolls, Sunstein, and Thaler, “A Behavioral Approach,” 32–46. Sunstein, Laws of Fear, 64–88. Interestingly, Sunstein analyzes fear by reference to such heuristics, focusing not, as humanistic legal scholars such as William Miller have done, on the judgment of danger implicit in fear, or on the physical sensation it produces, or on leading examples of fear in historical or literary works, but rather on the heuristically flawed estimation of risks which can underlie fearful response. For an overview of Miller’s work, see William Ian Miller, “Fear, Weak Legs, and Running Away: A Soldier’s Story,” in The Passions of Law, ed. Susan A. Bandes (New York: New York University Press, 1999), 241–64. 135 Interviews from Monterey Death Penalty Conference, February 2007 (on file with authors). 136 C. Lee Harrington, “A Community Divided: Defense Attorneys and the Ethics of Death Row Volunteering,” Law & Social Inquiry 25 (2000): 850–54. 137 See Charles N.W. Keckler, “Life v. Death: Who Should Capital Punishment Marginally Deter?” Journal of Law, Economics & Policy 2 (2006): 95. 138 Cf. Jeffrey L. Kirchmeier, “The Undiscovered Country: Execution Competency and Contemplating Death,” The Kentucky Law Journal, 98, no. 2 (2009): 263. 139 See Solomon, “Justice v. Vengeance,” 131–7. 133 134

Who’s afraid of law and the emotions  585 Minow has made a similar point about international tribunals convened in response to episodes of genocide: they may turn consuming grief and rage toward the more concrete and socially attainable goal of securing justice in relation to specific perpetrators.140 Such channeling or moderation usually has some purposive dimension, although it need not be the exclusive or primary goal of legal action: punishment or hearings before international tribunals may moderate the desire for vengeance, even as they serve the goal of justice, by bringing the culpable to account. Law may also produce more palpable transformations in the affective states of its subjects. One of the subtler and more pervasive examples of this relation is law’s capacity to script emotions: in other words, to prescribe the emotions that should be felt in particular contexts, or the particular persons or groups who are entitled to feel them. Scripting may be understood as a more intensive form of legal intervention than management or channeling, because it may encourage subjects to experience emotions in contexts where they might not otherwise have felt them (or discourage them in contexts where they might otherwise have arisen). Scripting, as Cheshire Calhoun observes, may affect subjects not only as individuals, or in the aggregate, but as members of identified groups.141 She argues, for example, that romantic love is scripted in ways that place heterosexuals, but not homosexuals, in the “leading roles.”142 Heterosexual rituals and patterns of coupling—from “making love” to “starting a family”— shape the content of this emotion, as it is reproduced in language and cultural products such as fiction and film: only heterosexual couples are assumed—and encouraged—to feel romantic love.143 By implication, legal scripting also creates “outlaw” emotions: emotions that are outside the prevailing script and, as a result, are not considered natural, normal, or legitimate when they emerge in distinct groups or contexts. Laws which proscribe gay or lesbian partnership or marriage thus transform same-sex couples who experience romantic love into “emotional outlaws.”144 Similarly, informed consent laws that tell women that regret, guilt, or suicidal ideation may follow from an abortion—or a doctrine that tells women that “respect for human life finds an ultimate expression in the bond of love the mother has for her child”145—may suggest to women that these are the proper emotions to feel in relation to abortion (versus reproduction). They may transform into “emotional outlaws” those women who feel ambivalence or even relief about the decision to abort, whose primary response to the news of a pregnancy is not a “bond of love,” or who may not experience the embryo or fetus as “[their] child.”146 See Minow, Between Vengeance, 52–90. See Calhoun, “Making Up,” 217–20. 142 Calhoun, “Making Up,” 220–22. 143 Such scripting is not exclusively a legal endeavor: romantic love is scripted both by cultural vehicles—such as films, books, and advertisements—and by laws that limit marriage to heterosexual couples. See Calhoun, “Making Up,” 217–22. 144 Calhoun, “Making Up,” 223–5. See Tucker Culbertson and Jack Jackson, “Proper Objects, Different Subjects and Juridical Horizons in Radical Legal Critique,” in Feminist and Queer Theory: Intimate Encounters, Uncomfortable Conversations, eds, Martha Albertson Fineman, Jack E. Jackson and Adam P. Romero (Burlington, VT: Ashgate, 2009), 135–40. 145 Gonzales v. Carhart, 550 U.S. 124, 159 (2007). 146 Gonzales, 550 U.S. at 159. Legal scripting can run the gamut from completely intended to largely incidental. See Calhoun, “Making Up,” 234–6. However, scripting can also be non-purposive or incidental such as in the area of sexual harassment. One recent controversy about non-purposive scripting concerns the legal doctrine of sexual harassment. Compare Katie Roiphe, The Morning After: Sex, 140 141

586  Research handbook on law and emotion Legal intervention can also engender emotion in specific contexts through manipulation or misdirection. Here law encourages people to feel a particular emotion, usually positive; yet it does so without adequate basis, so that such feelings are not situationally supported or justified. Where legal actors or institutions understand from the outset that the positive emotions their operations engender are not contextually justified, we might call the legal action “manipulation”; where the realization dawns only over time—making the disappointment of the law’s subjects inadvertent—we might call the relation “misdirection.” Peter Drahos illustrates purposive misdirection in the international approval of a regime of intellectual property protections aimed at benefitting large pharmaceutical companies.147 . . . . An example of the inadvertent misdirection of hopes might be the No Child Left Behind Act of 2001.148 This Act engaged the hopes of a generation of schoolchildren and their parents, particularly children of color and English language learners, by promising to improve academic performance and reduce the performance gaps between groups.149 But if the Act is inadequately funded, or its test-based strategy fails to deliver, or it offers children the hope of progress without the means within their control to achieve it, the Act may be said to misdirect those hopes—or raise them without justification, albeit inadvertently. An especially forceful legal intervention in the realm of affective experience is the relationship of cultivation. Here law’s role is truly ambitious in that it purposefully attempts to bring new emotions into being. Scholars such as Martha Minow150 and Laurel Fletcher151 have investigated the ways that truth commissions and tribunals—often operating in conjunction with other social processes or initiatives—can foster feelings of reconciliation or empathy between former enemies. Our work on hope152 examines the role that law can play in fostering this crucial, but often neglected, emotion.153 . . . . Similarly, Solangel Maldonado proposes to cultivate forgiveness by adding special procedures to the legal process of divorce.154 Law can also be used to cultivate negative emotions, such as the emotions of fear or shame. Law has been used to cultivate fear or shame quite intentionally—one might point to laws passed restricting the activity, movement, and dress of Jews during the early part of the Nazi regime.155 The intensive restriction and surveillance of activity promoted an atmosphere of fear

Fear and Feminism on Campus (Boston: Little Brown and Co., 1993), 85-113 with Kathryn Abrams, “Songs of Innocence and Experience: Dominance Feminism in the University,” Yale Law Journal 103, no. 6 (1994): 1534 (reviewing Roiphe). See also Vicki Schultz, “The Sanitized Workplace,” Yale Law Journal 112, no. 8 (2003): 2063-72. See also Janet Halley, “Sexuality Harassment,” in Left Legalism/ Left Critique, eds, Wendy Brown and Janet E. Halley (Durham: Duke University Press, 2002), 80–104. 147 Peter Drahos, “Trading in Public Hope,” Annals of American Academy of Political and Social Science, 592, no. 1 (2004): 24–30. 148 No Child Left Behind Act of 2001, Public Law No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of 20, 25, and 42 U.S.C.). 149 Cf. Anita F. Hill, “A History of Hollow Promises: How Choice Jurisprudence Fails to Achieve Educational Equality,” Michigan Journal of Race and Law 12 (2006): 137–40. 150 See Minow, Between Vengeance, 52–90. 151 See Laurel E. Fletcher and Harvey M. Weinstein, “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation,” Human Rights Quarterly 24, no. 3 (2002): 597–601. 152 Abrams and Keren, “Law in the Cultivation.” 153 Abrams and Keren, “Law in the Cultivation,” 345–71. 154 Maldonado, “Cultivating Forgiveness,” 492–4. 155 For a timeline of restrictive legislation affecting Jews in the first years of Hitler’s dictatorship, see “Holocaust Encyclopedia,” United States Holocaust Memorial Museum, https://​encyclopedia​.ushmm​

Who’s afraid of law and the emotions  587 in Jewish neighborhoods and the requirement to display a yellow Star of David conspicuously on clothing produced a feeling of stigma and shame in the Jewish population.156 These laws had a simultaneous but distinct effect on non-Jews living and working in proximate areas: they encouraged non-Jews to feel disgust or contempt for those so rigorously marked and regulated.157 But the law may also operate to engender fear without such explicit or unitary intention. Jonathan Simon’s book, Governing Through Crime, makes this kind of point: through a range of laws and regulations that seek to combat ostensibly pervasive criminality, legal actors have engendered a fairly widespread culture of fear.158 Here, enhancing collective security by responding to extant or potential criminality may be the primary, or most explicit, goal of governmental action.159 But the related affective production—the engendering of fear in a broader population that includes those who are neither current nor prospective criminals—may contribute to this goal, or may be a not-entirely-unanticipated effect of so comprehensive an approach to criminality.160 Just as decisionmakers may use the law to cultivate or foster particular emotions, they may also use it to discourage or prevent them from emerging in particular settings. Sam Bagenstos and Margo Schlanger’s argument against the award of hedonic damages is aimed at discouraging pity toward the disabled, which they view as both erroneous and demeaning.161 Along similar lines, courts—such as the majority in Carhart—that express concern about post-abortion regret may see themselves as trying to prevent the emergence of that emotion in women facing difficult reproductive choices.162 Perhaps the most conclusive impact that law can have on the emotions is the effect of destruction. This operation of law on the emotions is often nonpurposive: legally induced affective destruction is most frequently a byproduct of failed legal interventions. Our work with capital .org/​en. See also “Nuremberg Laws on Citizenship and Race, September 15, 1935,” http://​holocaust​.umd​ .umich​.edu/​news/​uploads/​nuremberg​_laws​.pdf (last visited June 13, 2020). 156 A poignant example of the painfully mixed emotions these regulations inspired in German Jews may be found in a letter from the Organisation of Independent Orthodox Communities to Hitler in 1933 asking for a clarification of the meaning of the regulations. “Memorandum from the Organisation of Independent Orthodox Communities to the German Chancellor (Hitler), October 1933,” in Documents on the Holocaust: Selected Sources on the Destruction of the Jews of Germany and Austria, Poland, and the Soviet Union, eds, Yitzhak Arad, Israel Gutman, Abraham Margaliot; Mazal Holocaust Collection (Jerusalem: Yad Vashem, 1981) (hereinafter Orthodox Community Memorandum). 157 For contemporaneous discussions of the purpose and effect of such regulations, see Robert Weltsch, “Wear It With Pride, The Yellow Badge,” Juedische Rundschau (Apr. 4, 1933), https://​ www​.yadvashem​.org/​odot​_pdf/​Microsoft​%20Word​%20​-​%203830​.pdf. See also Orthodox Community Memorandum, 59–63. Recent legal efforts to enact shame-based sanctions, such as proposals to mark the clothing or residences of convicted sexual predators, aspire to cultivate similar emotions, both in their immediate targets and in the broader population. See Dan Kahan, “What Do Alternative Sanctions Mean?” University of Chicago Law Review 63, no. 2 (1996): 632–3. 158 Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford: Oxford University Press, 2007), 4–7. 159 See Simon, Governing Through Crime, 75. 160 See Simon, Governing Through Crime, 260–61. 161 See Bagenstos and Schlanger, “Hedonic Damages,” 748–52. 162 Chris Guthrie’s article on regret in the context of abortion seems to ascribe this goal to the Court in Carhart. Guthrie, “Carhart, Constitutional Rights,” 877. It is possible that some decisionmakers crediting this argument are attempting to prevent regret, while others, such as the advocacy organizations involved in soliciting women’s narratives, are more interested in preventing abortions, or in scripting regret in a way that associates it with the choice to obtain an abortion. Robin Toner, “Abortion Foes See Validation for New Tactic,” New York Times, May 22, 2007.

588  Research handbook on law and emotion lawyers suggests, for example, that clients’ hopes can be almost irrevocably destroyed by years of incompetent or uncaring representation.163 Amy Smith’s work similarly highlights the destruction of hope by legal norms, which deny post-conviction capital prisoners any control over the timing of execution, dooming them to extended periods of helplessness and uncertainty.164 It is also possible that the law can perpetrate emotional destruction through flawed institutional design. One might think about the kind of affective destruction that can be produced by layer upon layer of mind-deadening bureaucracy. Lucie White underscores these effects in Notes on the Hearing of Mrs. G.,165 when she presents a client's unexpected emotional resilience in the face of such bureaucracy as a puzzle or a miracle; we might ask how many more people have been emotionally depleted by a life lived within such legal structures. . . . Thus, the law may embody a range of potential relations to the emotions, from relations such as expression, which produce little or no change in the emotion itself, through more active forms of engagement, such as channeling, containment, or management, to relations capable of bringing emotions into being or the reverse, such as scripting, cultivation, or destruction. b. Uses of the framework This framework serves to highlight the fact that law is already actively engaged in shaping the emotions—whether or not legal scholars or actors recognize it. The framework demonstrates many ways in which law may produce “affective externalities”: effects on the emotions that stem from legal actions undertaken for other reasons. These may be wholly unintended166 . . . or partially anticipated but not the primary goal of regulation (such as the scripting of romance as taboo in the workplace under sexual harassment law).167 The framework also demonstrates that there are cases in which legal actors quite purposively have undertaken to shape the emotions of those in a particular context. For scholars whose goal is to ameliorate the functioning of the law, this framework may highlight the affective consequences of particular doctrinal choices—both intended and unintended—and permit scholars to contemplate doctrinal revision. Doctrinal questions will rarely be formulated in explicitly affective terms, even when emotions are directly implicated. For example, Carhart is, strictly speaking, about the constitutionality, under due process, of a federal statute prohibiting one form of late-term abortion.168 The above framework helps to demonstrate that the case may also be described as being about the effects of particular legal rules on the emotions of guilt or regret. Even more importantly, the framework helps legal analysts contemplating normative recommendations to reflect on what kind of legal response is appropriate to produce specific effects on particular emotions. Once we understand these potential relations we can ask more explicitly normative questions about what the law should be doing in the future. If we credit the government’s goal of preventing guilt or regret, we can ask what kinds of solutions reflect the most plausible alternatives for achieving this goal. If we believe this doctrine also, or pri163 Lis Semel and Ty Alper, interview by authors, tape recording, University of California Berkeley School of Law Death Penalty Clinic, November 16, 2006 (on file with authors). 164 Smith, “Not Waiving,” 238. 165 Lucie E. White, “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G,” Buffalo Law Review 38, no. 1 (1990): 32. 166 See No Child Left Behind Act; Hill, “A History of Hollow Promises,”137–40. 167 See Schultz, “The Sanitized Workplace,” 2079–84. 168 See Gonzales, 550 U.S. at 132–33.

Who’s afraid of law and the emotions  589 marily, affects the scripting of regret, we can ask whether the risk of negative emotions can be reframed in less portentous terms, or whether the affective costs of providing such information outweigh its ostensible benefits. The same framework can also be used for thinking through legal challenges that implicate legal representation or policy, or have not yet crystallized into a case. For example, if a capital attorney is troubled by the problem of excessive volunteering or suicide on death row, then she might explore forms of legal representation that cultivate or at least manage hope. Similarly, if legal actors are concerned with the impoverishment of children that may follow a particularly hostile divorce, they may be interested in reforms, such as those examined by Solangel Maldonado, that help to cultivate forgiveness or channel rage. For scholars who begin not with the analysis of a legal problem, but with the analysis of an emotion, or for scholars whose goal is to use law to affect emotions in particular ways, this framework may offer illustrative normative possibilities. . . . For example, Robert Solomon explains how vengeance is cooled, rationalized, or satisfied through certain features of the criminal law.169 Dan Kahan demonstrates how shame might be fostered by alternative criminal sanctions.170 Similarly, we show how programs such as Head Start have successfully cultivated hope in the parents of students.171 So when legal scholars begin to focus on an emotion that they believe might play a salutary role in a particular context, they can draw on a body of work that reflects the range of things that law can do and offers some more instrumental guidance. 2. Normative means If law and emotions scholars approach the normative dimension of their work with the goals of enhancing the operation of law, and ameliorating the affective lives of those who live under it, what are the means that they use to advance these goals? In the remainder of this Part, we explore four instrumentalities that law and emotions scholars have used to forward their normative aims: doctrinal revision, institutional design, rhetorical and deliberative strategies, and programmatic/policy initiatives.172 Each of these approaches demonstrates that affective analysis can fuel productive legal action. a. Doctrinal revision The first, and most familiar, normative means deployed by law and emotions scholars is doctrinal revision. Scholars have advocated changes in doctrine in a wide range of substantive fields, from contract law173 to constitutional law,174 to statutorily based securities,175 or tort law.176 Scholars argue that doctrine is flawed either because it is based on a flawed understanding of the emotions, or it fails completely to apprehend the operation of emotion in the specific

See Solomon, “Justice v. Vengeance,” 127–31. See Kahan, “What Do Alternative,” 605–30. 171 See Abrams and Keren, “Law in the Cultivation,” 363. 172 This ordering moves from the narrowest and most concrete kinds of legal proposals to the most global or ambitious. 173 See, e.g., Hila Keren, “Can Separate Be Equal? Intimate Economic Exchange and the Cost of Being Special,” Harvard Law Review 19 (2005): 25–7. 174 See, e.g., Blumenthal, “Abortion, Persuasion, and Emotion,” 1; Guthrie, “Carhart, Constitutional Rights,” 882. 175 See Huang, “Emotional Impact Analysis,” 6; Huang, “Regulating Irrational Exuberance,” 518. 176 See, e.g., Bagenstos and Schlanger, “Hedonic Damages,” 774. 169 170

590  Research handbook on law and emotion legal context: in either case, the answer is revision of the doctrine to encompass the relevant affective knowledge. Hila Keren argues, for example, that contract law misunderstands the emotions that animate gratuitous promises. Far from reflecting a realm of self-sacrifice that is distant from market relations, the emotions that animate altruism afford benefits to the giver that are importantly comparable to the benefits of market transactions.177 This understanding demands a change in doctrine: some gratuitous promises should be enforced for many of the same reasons applicable to contracts formed in the market.178 In the abortion context, Jeremy Blumenthal argues that the Casey Court's concern about factually misleading information in informed consent exchanges fails completely to recognize that information can be factually correct but affectively misleading, or distortive of women’s decisionmaking processes, as well. The answer, again, is to change the doctrine and to interpret Casey in a way that responds to both kinds of threats to women’s reproductive decisionmaking.179 Terry Maroney argues that emotional as well as cognitive capacities affect criminal defendants’ ability to make the decisions necessary to participate in their own defenses.180 After examining these affective dimensions of competence and explaining how they bear on defense-related decisionmaking,181 she proposes modifying the Dusky standard for assessing competence to stand trial,182 to encompass emotional as well as cognitive measures of the “rational understanding” necessary to establish decisional competence.183 b. Institutional competency or design Other scholars engaged in affective analysis have focused not on doctrine but on questions of institutional competency or design. What they have learned about the role of emotions in the decisionmaking process leads them to a conclusion about the optimal decisionmaker in a particular legal context. As we saw above, Cass Sunstein’s concern with flawed heuristics in risk assessment leads him to delegate certain forms of such assessment to experts who have been schooled to avoid such reliance.184 Dan Kahan, on the other hand, relies on a different

See Keren, “Considering Affective Consideration.” Chris Guthrie argues, similarly, that the Court’s decision in Carhart is based on a misunderstanding of the focal emotion of regret. Guthrie, “Carhart, Constitutional Rights,” 877. See also Bagenstos and Schlanger, “Hedonic Damages,” 774–5. 179 See Blumenthal, “Abortion, Persuasion, and Emotion,” 11–12. 180 Terry A. Maroney, “Emotional Competence, ‘Rational Understanding,’ and the Criminal Defendant,” American Criminal Law 43, no. 4 (2006): 1376. 181 Maroney, “Emotional Competence,” 1400–425. 182 Maroney, “Emotional Competence,” 1425–33. In Dusky v. United States, 362 U.S. 402, 402 (1960), the Supreme Court articulated the applicable standard for adjudicative competency. It held that a defendant is competent to stand trial when he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” 183 Maroney, “Emotional Competence,” 1399–425. She also argues, more specifically, that psychological and neurological testing might be added to the screening tools, such as the MacCAT-CA (MacArthur Competence Assessment Tool - Criminal Assessment), which are already used to assess cognitive competence. Maroney, “Emotional Competence,” 1425–31. 184 Sunstein, Laws of Fear, 64–88. An emphasis on institutional competency or institutional design is another normative feature that some behavioral law and economics scholars share with law and emotions work. Sunstein and his sometime-collaborator Richard Thaler, for example, have placed great emphasis on certain institutional design issues they refer to as the “architecture of choice.” Richard H. Thaler and 177 178

Who’s afraid of law and the emotions  591 view of emotions to argue against Sunstein’s proposal.185 Emotions, he argues, are not forces that fuel departures from rational decisionmaking; rather they are “judgments of value”186 that help us perceive a larger worldview that orients us toward risk. Because all of us, whatever our training, read risk assessment data according to our worldviews, rather than adjusting our worldviews to risk assessment data, efforts to avoid the influence of emotion through reliance on experts are likely to be unavailing.187 The goal of legal policy should instead be to educate laypersons about the evaluative power of their emotions, and to frame policy alternatives in ways that demonstrate their responsiveness to a range of worldviews.188 A comparable view of emotion and expertise animates Doni Gewirtzman's understanding of constitutional decisionmaking.189 In what we have called the illumination dimension of his work, Gewirtzman observes that emotion has historically been treated as anathema to sound constitutional decisionmaking—as a matter of both constitutional theory and institutional arrangements.190 However, in his investigative work he uses recent psychological research to demonstrate that emotion is integral to two attributes we consider essential to functioning constitutionalism: commitment and imagination.191 This gives members of the lay citizenry, in whom such emotions flourish, valuable resources to contribute to ongoing constitutional reflection, deliberation, and revision.192 Eventually, at the integration level, Gewirtzman uses this understanding to buttress a burgeoning theoretical interest in popular constitutionalism, and to question the historical primacy of the judiciary in constitutional decisionmaking.193 c. Rhetorical and deliberative strategies Understanding the affective dimensions of a problem can also fuel new rhetorical strategies, or approaches to structuring public debate. In some contexts, scholars have asked whether debates should be framed in affective (as opposed to rational) terms, or whether particular emotions should play a prominent role in legal argument. Douglas Berman and Stephanos Bibas have argued, for example, that grasping the ways that emotions infuse the death penalty should persuade abolitionists to frame their opposition in affective—as opposed to dispassionate—terms.194 Martha Nussbaum and Dan Kahan have debated whether the emotion

Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven: Yale University Press, 2008), 81. 185 Kahan, “Two Conceptions,” 749–53. 186 Kahan, “Two Conceptions,” 750 (citing Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001), 19). 187 Kahan, “Two Conceptions,” 748–52. 188 Kahan, “Two Conceptions,” 764–5. See also Peter Huang, “Diverse Conceptions of Emotions in Risk Regulation,” University of Pennsylvania Law Review Pennumbra 156 (2008): 437, http://​www​ .pennumbra​.com/​responses/​response​.php​?rid​=​40. 189 Doni Gewirtzman, “Our Founding Feelings: Emotion, Commitment, and Imagination in Constitutional Culture,” University of Richmond Law Review 43, no. 2 (2009): 625–6. 190 Gewirtzman, “Our Founding Feelings,” 635–44. 191 Gewirtzman, “Our Founding Feelings,” 632–5. 192 Gewirtzman, “Our Founding Feelings,” 670. 193 Gewirtzman, “Our Founding Feelings,” 679–81. 194 See Douglas A. Berman and Stephanos Bibas, “Engaging Capital Emotions,” Northwestern University Law Review 102 (2008): 360–61.

592  Research handbook on law and emotion of disgust should animate the rhetoric, structure the sanctions, or more generally, direct the enforcement of criminal law.195 In other cases, affective understanding points to a new frame or structure for public debate. Dan Kahan and Donald Braman have argued that understanding positions on gun control as a function of “cultural worldview”196 rather than rational  risk assessment should change our strategy for approaching disputes about gun control regulation. Policymakers have often assumed that we need more empirical information about the relative risks related to different levels of regulating gun possession. Yet, Kahan and Braman contend, if one's cultural orientation197 determines one’s response to empirical evidence, rather than vice-versa, we need not more evidence, but rather a form of democratic exchange that permits us to articulate, and openly discuss, means of reconciling competing worldviews, including the emotions they comprise.198 Attending to affectively infused cultural positions, rather than relying on neutral liberal dialogue about evidence, may prevent the kinds of deliberative breakdown, and harsh affective fallout, that currently infects the debate.199 Policy and programmatic design. Analysis of the emotions can also inform normative proposals in a final area: policy assessment or programmatic design. Some scholars have used the effect on emotion as a criterion for retrospective assessment of the efficacy of specific legal or governmental programs. This kind of assessment has been prominent in studies of transitional justice, where scholars such as Laurel Fletcher and Harvey Weinstein have asked about the extent to which legal regimes facilitate the gradual restoration of trust or a sense of common purpose among neighbors who have become enemies.200 We have asked, in the context of educational policy, what features can make legislated programs suitable for cultivating the hopes of children and their parents, where hope is understood as the ability to conceive and work toward the realization of challenging, long-term goals.201 We then suggested a framework for a cultivation of hope which includes guidelines for engaging in such an effort.202 Scholars whose work has highlighted the value (or the danger) of particular emotions may devise specific policies that are aimed at fostering (or ameliorating) them. This has been a vital recent focus in the area of family law. Solangel Maldonado, working on the emotion of forgiveness, has advocated the use of “forgiveness education” programs which assist family members in ventilating and processing anger, and moving to a posture of greater acceptance and mutual engagement.203 Courts can expand recourse to such programs by ordering partici-

Kahan, “The Progressive Appropriation,” 70; Nussbaum, “The Secret Sewers,” 19. Dan M. Kahan and Donald Braman, “More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions,” University of Pennsylvania Law Review 151, no. 4 (2003): 1294–5. 197 Kahan and Braman rely, for example, on paradigmatic cultural orientations, such as authoritarian, egalitarian, or individualist. See Kahan and Braman, “More Statistics,” 1297. 198 Kahan and Braman, “More Statistics,” 1324. 199 Kahan and Braman, “More Statistics,” 1318. Kahan and Braman’s argument does not revolve around a simple opposition between emotion and rationality. Their argument is, rather, about the ways that acknowledging the affectively infused, value driven dimensions of risk assessment can integrate emotion and cultural norms in a more productive form of discussion that takes its bearings from worldviews rather than from empirical evidence. 200 Fletcher and Weinstein, “Violence and Social Repair,” 617–35. 201 Abrams and Keren, “Law in the Cultivation,” 320–22. 202 Abrams and Keren, “Law in the Cultivation,” 344–60. 203 Maldonado, “Cultivating Forgiveness,” 483. 195 196

Who’s afraid of law and the emotions  593 pation in the context of legal proceedings such as divorces.204 Clare Huntington's recent work also includes several examples of affectively driven policy proposals such as creating the status of “coparent” to recognize relationships that continue after rupture,205 and process-based changes such as the use of collaborative law, family group conferencing, mediation, and parenting coordinators.206 All these changes better reflect the complex cycles of love, anger, guilt, and repair that, according to her analysis, infuse intact family life as well as divorce.207 3. Normative concerns Doctrinal or programmatic initiatives which reflect an affirmative role for law, or for the state, in cultivating, scripting, or more generally shaping, the emotions have tended to provoke the wariest response from readers and commentators. This kind of normative work draws the fears about intrusive state intervention, or the manufacturing of sham emotions that we surveyed earlier.208 Though a full treatment of such reservations is beyond the scope of this chapter, we will conclude with some thoughts that aim to place these concerns in perspective. First, it is important to acknowledge the normative motivations of many who engage in law and emotions scholarship. Here, again, the comparison to behavioral law and economics, with its focus on description and its ambivalence about making normative recommendations for legal interventions, comes to mind. It is not surprising that traditional law and economics scholars who strongly believe in homo economicus, such as Richard Posner, have attacked the behavioral law and economics project as being “useless.”209 It is more remarkable that contributors to the project have expressed internal resistance to normative moves. Gregory Mitchell, for example, has warned that normative engagement will “convert the government into an irrationality monitor” and sound the death-knell of behavioral law and economics by making it “a political movement rather than a scientific endeavor.”210 Within the behavioral project, even scholars who are less opposed to prescriptive work often find themselves equivocal about the normative import of their analysis.211 Thus, as a general matter, behavioral law and economics has prompted far fewer objections on the ground of excessive intervention.

Maldonado, “Cultivating Forgiveness,” Huntington, “Repairing Family,” 1303–4. 206 Huntington, “Repairing Family,” 1305. 207 Huntington, “Repairing Family,” 1304–5. See also Clare Huntington, “Happy Families? Translating Positive Psychology into Family Law,” Virginia Journal of Social Policy & Law 16, no. 2 (2009): 401. 208 Another reservation, which Clare Huntington explores, is that such normative initiatives are drawn from interdisciplinary work that is largely descriptive in its focus. See Huntington, “Repairing Family,” 1258. 209 Richard A. Posner, “Rational Choice, Behavioral Economics, and the Law,” Stanford Law Review 50, no. 5 (1998): 1560–61. 210 Gregory Mitchell, “Tendencies Versus Boundaries: Levels of Generality in Behavioral Law and Economics,” Vanderbilt Law Review 56, no. 6 (2003): 1811. For a reply to Mitchell, see Robert A. Prentice, “Chicago Man, K-T Man, and the Future of Behavioral Law and Economics,” Vanderbilt Law Review 56, no. 6 (2003): 1670. Interestingly, Mitchell himself has recently published a co-authored article in which the behavioral law and economics analysis is self-defined as containing both descriptive and normative arguments. Adam J. Hirsch and Gregory Mitchell, “Law and Proximity,” University of Illinois Law Review 2008, no. 2 (2003): 559. 211 Prentice later wrote about the unenforceability of gratuitous promises in contract law. Robert A. Prentice, “‘Law &’ Gratuitous Promises,” University of Illinois Law Review 2007, no. 3 (2007). 204 205

594  Research handbook on law and emotion Law and emotions scholarship may be greeted with suspicion by some scholars—such as those described above—simply because it increasingly reflects normative motivations.212 But this pattern explains only part of the resistance. Legal scholarship is, by and large, a normative enterprise.213 This suggests that the mainstream scholars may be responding, in part, to the characteristics of, or the kinds of, normativity that are emerging as part of law and emotions analysis. The forms of normativity that are being proposed are . . . far ranging and various. They are not easily categorized, but they are unlikely to be confined to such goals as correcting human behavior in the direction of rationality, or providing decisionmaking “architecture” to encourage rational choice.214 This variety itself may seem unmanageable to some mainstream scholars, or may prompt fears of excessive legal intervention. . . . Normative proposals may be animated by a desire to cultivate, script, or otherwise shape emotions. . . . None of these qualities, however, make legal interventions that aim to produce emotional effects pernicious (or, for that matter, salutary) as a category. Critiques that view them in such broad terms may reflect the resurfacing of a dichotomized approach to emotion and reason (affectively based grounds for legal intervention are suspect), or a resurgent objectivism (scholarship which is “scientific” is preferable to scholarship which is “political”), more than a response to a specific type of normative intervention. Similar to the “anti-anti-paternalism” message of the more normatively oriented behavioral law and economics—which challenged the sweeping resistance of law and economics to legal interventions in private decisions215— the law and emotions movement has convincingly demonstrated the fallacy of comprehensive objection to affectively motivated interventions. Law and emotions scholarship has also, within its own terms, responded to many of the specific objections that critics have raised. To see emotion as the sanctum sanctorum of human personality; to see it as a separate realm, untouchable by the impersonal hand of the law; or to see it as either pure and authentic or as a sham response to state demands, neglects many of the insights that burgeoning research into the emotions has produced. It neglects the deep intertwining of emotion with other forms of cognition. And it neglects the social situatedness of emotion: the ways in which our affective responses—as potent signals of what we value216—are continually being shaped and informed by the responses of others, and by social and cultural norms.217 Finally, these anxieties ignore the point . . . that a range of current legal interventions do, in fact, produce emotional effects, whether such effects are wholly incidental, vaguely anticipated, or purposefully contemplated. All this being said, particular interventions in the emotions may be good or bad, promising or ominous —or many combinations of these. They demand assessment, but as specific normative proposals, rather than as a comprehensive category of legal action. . . . See notes 200–210 and accompanying text. Rubin, “The Practice and Discourse”; Schlag, “Normative and Nowhere”; Schlag, “Normativity and the Politics” Schlag, “Stances”; Winter, “Contingency and Community”; Winter, “Without Privilege.” 214 See note 5 and accompanying text. 215 See Cass R. Sunstein, “Behavioral Analysis of Law,” University of Chicago Law Review 64, no. 4 (1997): 1178; Blumenthal, “Emotional Paternalism,” 56. 216 See Kahan, “Two Conceptions,” 774; Nussbaum, “The Secret Sewers,” 26. 217 See generally Bandes, “Victims, Closure,’” 17–22 (describing the effect that the failure to embrace the role of emotion in the law has had on the capital system). 212 213

Who’s afraid of law and the emotions  595 When evaluating a potential intervention, we may want to think first about the character of the emotion in question.218 We may find it worth sustaining risks of inappropriate interference if we find the emotion in question worthy of cultivation, or particularly promising in a specific context. Similarly, legal action may seem warranted where the emotion is potentially damaging enough—particularly in a specific setting—to warrant management, channeling, or other amelioration. Anger, resentment, or distrust among neighbors in a suburban housing development, or between neighborhoods battling over a locally undesirable land use, may not strike us as demanding legal intervention aimed at the emotions; but anger, distrust, or resentment among neighbors in Bosnia may prompt a different response. Some emotions may also strike us as less public, or more intimate—and they may, therefore, induce greater caution when they are proposed as targets for legal intervention. We may feel less concerned about having our retributive urges cooled through law, for example, than having our love scripted by the state. A large part of what determines whether we find a legal intervention promising or ominous—from the standpoint of either mind control or generation of sham emotions—is the manner or process through which it occurs. One question we may want to ask of such interventions is the extent to which they entail transparency about their affective goals or impacts. . . . It is not always possible to make such effects accessible to all those who may be influenced. But, frank discussion of why hope should be cultivated or why the possibility of regret is serious enough to justify the intervention of the state may foster valuable discussion and serve to calm anxieties of this sort. A second question which may be important is whether legal approaches condition specific legal consequences on the manifestation of particular emotions. Many of the most troublesome examples raised by critics—from Carol Sanger’s concern with the regret of teenagers seeking abortions,219 to Austin Sarat’s worry about the remorse of those entering sentencing proceedings220—concern this kind of legal demand to perform emotion, on pain of punishment or of losing some significant benefit. Interventions that simply seek to engender emotions, without conditioning legal consequences on their manifestation, may be less intrusive, and may raise fewer concerns about generating inauthentic affective responses. In the realm of process considerations, it may also be useful to think about the specific legal actor, or the level of government responsible for implementing the intervention.221 . . . One-size-fits-all efforts to induce affective response, or interventions undertaken at a governmental level which is distant from subjects’ (affective) lives seem to raise more serious concerns. When these are the questions that are framed and answered, it becomes clear that interventions aimed at shaping affective response are not so distinctive or anomalous. Some interventions may seem problematic; others more innocuous, or even beneficial. They prompt questions about substance, process, and level of government charged with implementation— much like many other kinds of legal intervention. And the body of scholarly thought that 218 Clare Huntington makes the point with respect to state-based norm entrepreneurship that proceeds via the emotions. Huntington, “Familial Norms.” 219 Carol Sanger, “The Role and Reality of Emotions in Law,” William & Mary Journal of Women and the Law 8, no. 1 (2001): 111. 220 Sarat, “The Cultural Life,” 159–63. 221 See Rachel F. Moran, “The Politics of Discretion: Federal Intervention in Bilingual Education,” California Law Review 76, no. 6 (1988): 1331–51. We are grateful to Rachel Moran for bringing this issue to our attention.

596  Research handbook on law and emotion informs them and debates their merits is a pragmatic, normatively oriented legal endeavor, like many which have received wider recognition in legal scholarship.

CONCLUSION This inquiry brings us full circle to the original insight of law and emotions scholarship, which was 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. The emergence of neighboring fields of analysis that permit us to comprehend the limits on rationality is a valuable and illuminating contribution; but it is not enough. 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. Developing this understanding requires a body of work which draws on a breadth of humanistic and (social) scientific knowledge, which brings that knowledge to specific legal problems by integrating it into practical solutions, whose utility follows many distinct paths and can be communicated to and adopted by a range of legal actors. So who's afraid of law and the emotions? No one should be.

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Index

abortion 19, 21, 22–3, 576, 577, 582, 583, 585, 587, 588, 590, 595 Abrams, K. 67, 68, 69, 329 access to the courts 336–9 Adams, M. 403 adverse possession 238 Aeschelus 46 affect-as-information theory 314, 316, 323 affective forecasting 545, 546 affective immediacy 320, 321 affective realism 313–14 Agamben, G. 421–3, 425, 427, 429, 431, 432, 433, 434 age 19 Ahmed, Farid 279 Ahmed, S. 348 AIDS see HIV nondisclosure: emotional storying Alba-Juez, L. 329, 335–6 Alimena, Bernardino 368–9 Alkon, A. 276 amicus briefs 16, 22–3 Amsterdam, A.G. 353 amygdala 29, 331, 332 analytical philosophy see international law Anderson, E. 254 anecdotes see stand your ground legislation anger 15, 81, 104, 139, 159, 275, 277, 282, 336, 370, 408, 448, 518, 549, 572, 595 aptness of 119–29, 506 affective injustice 126–7, 128 appreciating injustice 124, 125 communication 124 counterproductivity critique 119–21, 122, 123, 124–5, 126, 506 disappointment 122 intrinsic and instrumental reasons 121–2 raging Achilles 129 rationality and status quo 128–9 revenge-drive 123 tragic spectatorship 127 Aristotle 503 challenges 410 contract law 256, 262 crimes of passion in late nineteenth century Italy 365–6, 368 debt 220, 221, 222 defence lawyers 173–4 English criminal trial in eighteenth century 383, 388

HIV nondisclosure 342, 345, 355, 356 IHL: civil-military relations 485 international law 494 judicial 147–8, 152, 154, 155, 186 keyword-based approach 410–411 litigating parties 553 mock jury research 290, 291, 292–3, 294, 295, 299, 300, 301, 315–16 murder or manslaughter 535 neuroscience 30–31, 32, 35, 36, 37, 38–9 property 239 retribution 109–10 not anger but respect for dignity 94–100 right-seeing 505 slang 394, 400 time and emotions 502 transitional justice 461, 463–4, 464, 465, 467, 469 visual evidence 295, 301, 312, 315–16, 317, 318, 320, 322 animals, companion 235 annoyance 174, 186 Anthony, K.H. 236 anxiety 205, 315, 317, 320, 322, 465 apologies 409–10, 462, 467, 468, 469, 470–472, 545–6 appraisal tendency theory 314, 316, 323 Ardern, Jacinda 279, 282–3 Argentina 142–3, 468, 470 Aristotle 123, 503 Armour, M.P. 114 attractiveness cue 547 austerity 166 Austin, J.L. 97 Australia 137, 180–182, 184–7, 190–193 compassion in criminal justice reform see separate entry Bagenstos, S. 576–7, 579, 587 bail 269–70 Baker, D. 237 Baldwin, James 119–20, 125–6, 127 Bandes, S.A. 1, 166, 249, 277, 502, 571–2, 580, 581, 583 Bańkowski, Z. 71 bankruptcy see debt banks 255, 259, 261, 262 Barbalet, J. 150, 151, 155 Barceló, J. 463

601

602  Research handbook on law and emotion Barnett, R.E. 45, 257 Barrett, L.F. 104 Bartels, L. 270 Barth, John 47 Basch, M.F. 521 ‘battered women’s syndrome’ 543–4 Batty, Rosie 279–80 Baylis, E. 481–2 Beale, H. 263 Bell, L.A. 342–3 Beloved (Morrison) 51 Bentham, J. 432, 505 Berger, J. 504 Bergman Blix, S. 153, 193, 341 Berk, H.L. 248 Berman, D.A. 591–2 Berns, N. 110, 113 bias(es) 277, 289, 293, 294, 296–7, 302–3, 305, 315, 378, 522, 583–4 anchoring 542 anecdotes 439, 440 anti-military 488, 489 availability 584 cascading 303 cognitive 332, 550 emotional common sense 445 expert information 439 international law 494 risk-taking 291 salience 320 Bibas, S. 545–6, 591–2 Bierschbach, R.A. 545–6 Black Lives Matter movement 391–2 Blackstone, W. 85, 407, 423–4, 425–31 Blanchard, F.A. 539 Blanchard, W.S. 422, 423, 425 Blanchette, I. 330, 331 Bloom, P. 87 Blumenthal, J.A. 249, 545, 582, 583, 590 Blumenthal, S.L. 409 Bodenhausen, G.V. 542 Booth v. Maryland 297, 514, 524, 525, 526, 531 boredom 407, 410 Bornemann, B. 276 Bosnia Herzegovina 464, 470 bounded rationality 253–4, 550, 583 Braman, D. 592 Brennan, W.J., Jr 73, 517, 525, 536–7, 570 Brickman, P. 462 Bridges, K. 409 Bright, D.A. 87, 316, 317–18, 320 Brounéus, K. 464 Brown, B. 277 Brown, Michael 507–8 Brown, R. 470

Bruner, J. 353 Bryan, T.S. 549–50 Buckley, William F., Jr 119–20, 121, 125, 126 bullying 185, 273 burglary, domestic 233–4 Burnyeat, M. 123 Burton, C.D. 112–13 business debt see debt Butch Cassidy and the Sundance Kid 47, 48 Byrne, C.C. 464 Cairns, J. 233 Calhoun, C. 585 California v. Brown 523, 576 Callwood, June see HIV nondisclosure: emotional storying Cambodia 463, 465 Camus, Albert 47 Canada 272 Canada v. Bedford 75–6 Carter v. Canada 65–6, 67, 68, 69–71, 73, 75–6 case of Charles Ssenyonga see HIV nondisclosure: emotional storying Charter of Rights and Freedoms s 7: right to life, liberty and security 62–4, 76 legal education 62–76 Rodriguez v. British Colombia 62–4, 65–6, 68, 70, 73, 76 Candea, M. 480 capital punishment see death penalty capitalism 159 Cardenas, M. 468 Carey v. Musladin 16 Carrara, Francesco 360, 365–7, 368 Cassian, John 120 Catholic Church 54–5, 280–281 Čehajić-Clancy, S. 470 Chait, J. 120 child sexual assault 299 children and parents 207–10, 211, 236–7, 555, 589, 592, 593 inheritance disputes in families 240–242 No Child Left Behind Act 586 victim impact statements 298 Chile 467, 468 Choden 276 Christianity 54–5, 57, 58, 59, 83, 97, 120, 123, 129, 501 child sexual abuse 280–281 debt 222 divine providence see English criminal trial in eighteenth century

Index  603 religious orders 421–2, 423, 425, 427, 429, 431, 432, 433, 434 sexuality 201–2 Cicero 129 Cilliers, J. 465, 468, 470 civil rights 57 civil-military relations see international humanitarian law (IHL) Clark, Judy 172 class 87, 205, 206, 209, 221, 342–3, 367, 408, 505, 524 bias 277 English criminal trial in eighteenth century 375–6, 378–9, 383, 387, 388 HIV nondisclosure: emotional storying 343–4, 345, 348, 354 underclass emotions towards law enforcement see slang victim impact statements 526 closure in criminal courtroom 102–16 content analysis of news accounts 111–13 range of documents 113 current research and methodologies 110–111 definitional issues and their institutional consequences 104–8 feedback loop 109, 111 further research 115–16 interviews 114–15 silencing defendant 107–8 sociology of emotion 108–10 cognitive deficit model 273 cognitive experiential self-theory (CEST) 547 cohabitation see family law Cohen v. California 17–18 Coke, Edward 433 Collins, R. 158 colonialism, settler see HIV nondisclosure: emotional storying commercial credit laws see debt common sense, emotional see lay conceptions companion animals 235 compassion 139, 376, 379, 514–15, 516, 517, 520, 522, 527 in criminal justice reform 268–83 IHL: civil-military relations 486 judging and emotion study 184 victim impact statements 297, 577 compassion in criminal justice reform 268–83 emotion as key driver in reform 274–81 compassion as foundation 276–8 narratives of compassion 278–81 knowledge and reflection: reduced punitivity 273–4 punitive law reform 269–71

results of irrational law reform 271–3 consent, informed 583, 585, 590 constitutional law 46, 589, 591 education, legal see separate entry consumers 251 debt see separate entry contract law 45, 47, 57, 248–64, 589 ‘battle of the forms’ 257–8 conscious contracts 260–261 consent 257 consequences of emotion in 263–4 contract theory classical 250–251, 252–3, 256, 257, 264 neo-classical 251–3, 256, 257, 259, 264 plural rationality theory 253 rational choice theory 252–3, 255, 259 relational 250, 256–60, 264 emotional practice of 261–3 false dichotomies 253–6 values 254–5, 260, 264 freedom of contract 251, 252 gratuitous/donative promises 248, 259, 576, 582, 590 in practice 261 property rights 257 psychological contract 258 reciprocity 257 solidarity 257 Cooley, C.H. 480 copyright 409 Coren, S. 331 corporate and securities law 550, 573, 589 Cover, R.M. 49, 520 crimes of passion in late nineteenth-century Italy 359–71 debate classical school 360, 365–6 criminal love as morbid love 363–4 positivist school 360–361, 365, 366–8 third school’s proposal 368–9 law’s inadequacy 369–71 two cases of ‘crime of love’ 361–2 criminal justice/law 38, 46, 47, 261, 424, 494, 496, 572, 587 apology 545–6 channel or moderate emotions 584–5, 589 closure in criminal courtroom see separate entry compassion in criminal justice reform see separate entry competence to stand trial 590 crimes of passion in late nineteenth-century Italy see separate entry death penalty see separate entry defence lawyers see separate entry

604  Research handbook on law and emotion disgust see separate entry English criminal trial in eighteenth century see separate entry HIV nondisclosure: emotional storying see separate entry killing see separate entry legal aid 166 prisons see separate entry property offences 233–4, 553–4 retribution see separate entry taxonomy of law and emotion studies 535, 537, 539, 546–7, 548–9, 551–2, 553–4, 556 transitional justice 463, 464, 467, 468, 471 victim in criminal justice system see separate entry see also evidence; juries critical legal studies 44, 45, 66, 432 critical race theories 66, 556 Crocker, L. 330, 331–2 crying: tears of jurors 20–21 cultural cognition 21 cultural difference 38, 136 cultural/national emotional regimes see judicial dispassion culture 19, 149, 348 Curtis, V. 90 Cush, R. 317 Dalai Lama 276 damages 15, 292, 295, 300, 318–19, 323, 449, 535, 556 affective forecasting 545 contract, breach of 255–6, 259, 264 hedonic 577, 579, 587 liquidated 256 property, damage to 234–5 Damasio, A. 540, 579 Davidson, R. 332 De Jong, P. 331 De Kock, Eugene 142 De Sousa, R. 524 deadly force in self-defense see stand your ground legislation death penalty 20–21, 80, 85, 137, 141–2, 233, 305, 409, 549, 554, 572 abolitionists 591–2 attorneys 584, 588, 589 close-knit community 527 closure in criminal courtroom see separate entry death row syndrome 575 English criminal trial in eighteenth century 377, 382, 384, 387 execution narratives 396

experimental mock jury research 290, 291–2, 319 jury instruction on mitigation 523, 576 nineteenth century France 364 victim impact statements 110, 297–9, 514, 523, 524, 525–6, 531, 532, 577, 583 right emotions in wrong contexts 527–8 skewed playing field 528–9 victim impact videos 319 debt 215–26 churches 222 corporate veil 225 drivers of consumer bankruptcy filings 218–19 entrepreneurship 223, 224, 225 evolution of debt’s emotions 215–19 financial crisis (2008) 225, 226 home 237, 255 modern times 219–23 ‘money law’ mismatch with debt’s emotions 223–6 means test 223–4 small business owners 222 defamation 424 defence lawyers 165–76, 293, 354, 541, 553, 584, 588, 589 dislike, disappointment, disgust and anger 171–4 disloyalty 170–171 English criminal trial in eighteenth century 374–5, 377, 382–4, 385–7 happiness and pride 174–5 loyalty 165, 167–70, 175 studies on lawyers, emotions and 165–6 mitigation videos 319 slang 400–402 definitions 538 cognition 331 emotion 4, 330, 516, 540, 544 empathy 518–19, 521, 545 motivations 331 reasoning 331 remorse 132, 134 Del Mar, M. 71, 73 Democratic Republic of Congo (DRC) 488 Descartes, R. 16 DeShaney v. Winnebago County Department of Social Services 514, 516, 522, 552 Desmond, M. 480–481 Devereux, S. 382 Devlin, P. 84–5, 89 Diamond, S.S. 239 Dickens, Charles 46, 398 Dickerson, A.M. 218 dignity 186, 472, 496, 497, 516, 525, 529–30, 532

Index  605 retribution: not anger but respect for 94–100 disabilities 69, 70, 408, 543, 577, 587 disappointment 122, 172, 222, 256, 400 disempowerment 57, 237, 395, 404, 529 disgust 80–91, 186, 424, 537, 543, 572, 573, 579, 587, 592 deep support position 84–5, 89 defence lawyers 172–3 descriptive-to-normative swerve 82 food taboos 82, 83–4 four views of role of 89–90 HIV nondisclosure 342, 345, 354, 355 incest 82–3, 89 is–ought 90 mock jury studies 87–8, 291, 292–3, 295, 296, 301–2, 316–18 moral judgments, emotions and law 81 naturalistic fallacy 90 neuroscience 30–31 obscenity 82, 85–6, 543 oppressive aspect of 86–7 political discourse 87 psychological research 88–9 transitional justice 465 untrustworthy emotion 87, 90 visual evidence 295, 301–2, 312, 313, 315, 316–18, 320, 322 dislike 171–2, 487 distraction 407, 410 divorce see under family law Doak, J. 463 doctor-assisted suicide see education, legal domestic violence 74, 202, 205, 208, 519–20, 553 Doubt: A Parable (John Patrick Shanley) 51–5, 57, 58 Dover, K.J. 87 Drahos, P. 586 Drake, D.G. 240 Dunn, Ross and Frances Rose 279 duress 263 economic 259–60 Dworkin, R. 48, 49, 85 economic duress 259–60 Ecuador 468 Edin, K. 208 education, legal 62–76, 553, 569 affect in 71–2 deep-learning 72, 75 emotion pervades the law 66–9 situating emotion 69–71 strategies for change in 73–5 see also Fulbeck’s A Direction or Preparative to the Study of the Lawe Edwards, E. 317

Edwards, K. 549–50 Eisenberg, M.A. 254 Elias, N. 159 Elliott, David 269 Elster, J. 253 Ely, R. 480, 488 Eminem 403 eminent domain 238–9 empathy 18, 44, 45, 47, 48, 50, 59, 107, 151, 166, 293, 408, 537, 545 compassion and 276 contract law 258, 260, 262 gratuitous promises 576, 582 cultivation of 586 error of 505 explanatory story and legislative 456 HIV nondisclosure 354–5, 356 in-group members 481 international law 494 judges 184, 519–21, 571 legal education 69, 71, 73, 74 literary depictions of pain 504 mirror neurons 370 mock jury research 292, 304 narrative and victim impact statements 514–32 plaintiffs’ attorneys 293 public defenders 541 remorse 142 vasopressin and ocytocin 200 victim impact statements 298, 577, 583 worldview 21 employment law 57, 58, 59, 262 psychological contract 258 English criminal trial in eighteenth century 374–89 class 375–6, 378–9, 383, 387, 388 cross-examination 374, 375, 382–4, 387, 388 God’s law: incidence of providence 377–80 providence, oath-taking and lawyers 380–388 Enns, J. 331 Epstein, R. 45 equal protection of the law 49–50, 56, 59 Eriksson, Johan 167, 169 estate law 240–242 ethnicity 298, 395, 527 ethnomethodology 480 evidence 288–305, 502, 539 eighteenth century see English criminal trial in eighteenth century eyewitnesses 552, 554 hearsay 375, 381, 388, 550 inadmissible 15, 288, 296, 304, 535 instruction to disregard 549–50

606  Research handbook on law and emotion international law 496 juries see evidence evaluation and decision-making under juries mental disorder: neuroimaging 319 in mitigation 100, 138–9, 528 remorse 135–8 victim impact evidence/statements 16, 263–4, 297–9, 355, 460, 535, 537, 549, 552, 577, 583 closure 102, 105, 106–7, 110, 113, 116 empathy, narrative and 514–32 victim impact videos 319, 320, 323 visual see separate entry eyewitnesses 552, 554 facial expressions 31, 36 Falzon, M.-A. 482 family inheritance disputes 240–242 family law 47, 74, 197–211, 261, 409, 424, 535, 573, 576 cycle of intimacy 580, 593 divorce 202, 203, 204, 205, 208, 218, 236, 553, 577, 586, 589, 593 ‘forgiveness education’ programs 592–3 home 236–7 intestacy 205 love, marriage, duty and trust 198–205, 210–211 duty, fidelity and commitment 201–3 equal respect, interdependence and trust 203–5 sexual desire, romantic love and attachment 199–201 nonmarriage 210–211 contingent relationships and lack of trust 205–7 parents and children 207–10, 211, 236–7, 555, 589, 593 vulnerability 202, 203, 204 Fanon, F. 346 fear 17, 36, 104, 293, 297, 332, 370, 506, 518, 535, 543–4, 549 Blackstone’s Commentaries 424, 426 classical approach 28, 29, 30 constructionist approach 35 contract law 260 crimes of passion in late nineteenth century Italy 365–6, 367, 368 criminal justice reform 268, 274, 275, 277, 282 cultivation of 586–7 debt 221–2 English criminal trial in eighteenth century 378, 382 HIV nondisclosure 342, 345, 348, 352, 355, 356

IHL: civil-military relations 485 legal authority, fear toward see slang property law 426 transitional justice 461, 463, 464, 465, 466, 467 visual evidence 313, 315, 317, 318, 320, 322 Feldman, C. 276 feminism 66, 120–121, 497, 506, 524, 536, 551, 556, 570 Ferguson, R.A. 520 Ferri, Enrico 360, 362, 366 Ferriani, Lino 366 Ferris, G. 72 Fessler, D.M.T. 83–4 films 47–8 Doubt 51–5, 57, 58 financial crisis (2008) 225, 226 fingerprint examiners 302 firearms research 438 Fletcher, G. 233 Fletcher, L.E. 573, 586, 592 food taboos 82, 83–4 forensic examiners 303 forgiveness 98, 113, 279, 282, 518, 531, 545, 573, 574, 577, 586, 589 ‘education’ programs 592–3 transitional justice 462, 464, 465, 466–7, 468–9, 470–472 forum theatre 74 Fox, E. 330, 332, 333, 334 Fox O’Mahony, L. 237 France 359–60, 363, 364 Franklin, Benjamin 217 free law movement in Germany 153 Fricker, M. 395 Fried, C. 251 Fried, M. 239 Friedman, L. 149 friendship 48, 258, 365, 402 Frye, M. 121 Fulbeck’s A Direction or Preparative to the Study of the Lawe 407, 412–18 legal historiography of emotion and affect 407–12 methodology 412 Gabel, P. 44 Gallanis, T.P. 375 gangs 57, 58, 59, 94, 100, 168 Gardner, J. 503 Garland, D. 274 Garofalo, Raffaele 360, 367–8 Gaskill, M. 375 Gaza Strip 120 Geertz, C. 479–80 gender 18–19, 150, 153, 156, 408, 505, 519–20

Index  607 debt 216 family law 197, 202–3, 205, 206–10, 211 HIV nondisclosure: emotional storying see separate entry IHL: civil-military relations 477, 488 inheritance 240–241, 242 juries 304 legal education 65 victim impact statements 298 Ziino 363 genocide 464, 585 Germany 153, 478, 586–7 Gerring, J. 483 Gewirtz, P. 523–4 Gewirtzman, D. 591 Gey, S.G. 526 Gilbert, J. 381 Gilbert, P. 276 Ginsburg, Ruth Bader 18–19, 22 Gläser, R. 404 Glaspell, Susan 51 Goffman, E. 155 Goldberg, P. 235 Goldin, Hyman 399–401 Gonzalez v. Carhart 19, 22–3, 576, 587, 588 good faith and contracts 257, 263 Goodman-Delahunty, J. 87, 316, 317–18, 320 The Good Wife 47 Gottman, J. 205 Grant, J. 327 Gray, C.M. 426 Greece, ancient 87, 95, 501 grief 22, 271, 426, 496, 502, 535 Gross, J. 334 Gross, S.R. 112 grounded theory approach 478–80 Guatemala 465 Guerry, André-Michel 364 guilt 133, 134, 138–9, 449, 501 contract law 258, 260 debt 216, 222 property law 426 transitional justice 461, 465, 466, 469, 470, 471, 472 gun control/rights 592 stand your ground legislation see separate entry Gurney, C. 236 Guthrie, C. 576 Hadfield, G.K. 252, 254, 255, 261 Haidt, J. 83, 87, 91, 580 Haiti 487 Halgren, E. 328 Hall, J. 464

hamesucken 233 happiness 104, 174–5, 424, 426 Harris, A.P. 276, 530, 569 Harris, L.C. 165 Hart, H.L.A. 85 hate crime 541, 573 hate speech 496 Hawkins, William 377 Hayes, T.A. 221 heat-of-passion defense 27, 38–9, 548, 572 Hegel, G.W.F. 96, 127 Henderson, L.N. 518–19, 524, 545, 570 heuristics/heuristic reasoning 301, 315, 331, 332, 333, 336, 339, 547, 583–4, 590–591 history of law and emotions scholarship 568–74 challenging legal rationality 568–71 normative turn 573–4 studying the emotions 571–2 HIV nondisclosure: emotional storying 342–56 deception narrative 351–3, 356 racialized narrative 344–51, 354, 355 exotic African other 346–8 HIV denialism and shame 349–51 sexual predator 348–9 victim narrative 353–5, 356 Hobbes, T. 19, 56, 497, 505 Hochschild, A.R. 108, 166 Holmes, O.W., Jr 45, 46, 49 home ‘castle’ doctrine 234, 236 contract law 255 criminal law offences 233–4 legal contests involving 235–7 State-sanctioned loss of property: eminent domain 238–9 wills 241 homosexuality 82, 84–5, 87, 585 hopelessness 220, 222 hotchpot 429 household debt see debt Huang, P.H. 550, 553 Hughes, Langston 125–6 Hume, D. 393, 492, 493, 497 Hume’s law 90 humiliation 18, 53, 119, 260, 496, 549, 577 Hunt, L. 504 Huntington, C. 576, 580, 593 Huxley-Binns, R. 72 immunity from civil suits see stand your ground legislation Impallomeni, Giovan Battista 369 incest 82–3, 89 Indigenous peoples 66, 269, 272, 278, 345, 346, 460

608  Research handbook on law and emotion indignation 85, 86, 90, 141, 174, 387, 496, 502, 505, 514, 572, 583 individualism 153, 201, 211, 223, 251, 444 inheritance 240–242, 426, 430–431 insolvency see debt insurance 235 intellectual property rights 257, 409, 586 International Criminal Tribunal for the Former Yugoslavia (ICTY) 464 International Criminal Tribunal for Rwanda (ICTR) 463 international environmental law 549 international human rights 461, 462, 470, 486, 497 international humanitarian law (IHL) 477–89, 494 civil-military guidelines 483–4, 489 findings 485–8 methodology 478–83 perceptions clash 480, 488 international law 492–508 four scripts 493–9 post-script questions 499–507 of reach, of capture 500–503 of recognition and range 503–7 interoception 313 interpretivist epistemology 479–80 interview research 114–15, 136, 160, 333 contract law 250, 261–3 defence lawyers see separate entry judicial emotion and emotion management see separate entry intestacy 205 Ishiguro, Kazuo 51–2, 56–8 Islamophobia 279 Israel 120 Italy 156, 160, 478 crimes of passion in late nineteenth-century see separate entry Itoh, Y. 317, 320 ius commune 359 Jacoby, S. 518 Jaggar, A. 121 James, W. 506 jealousy 15, 363–4, 367, 368, 426, 535 Jews 87, 586–7 Joas, H. 504 Johnson, P. 90 Johnson-Laird, P. 329–30 Jolles, A. 416–17 Jones, O.D. 555–6 judges 168, 327, 442, 503, 517, 518, 537, 552–3, 569–71 bail 270 codes of ethics 186

compassion and sentencing remarks 280–281, 282 distancing devices 327–8, 333, 339 appraisal framework 328–9, 335–9 definitions 330–331 discrete emotion labels 336 emotional-cognitive-motivational brain 331–3 false metaphor 329–31 linguistic methodology 328–9, 335–9 measuring judicial emotions 333–5 R (UNISON) v. Lord Chancellor 328–9, 336–9 empathy 184, 519–21, 571 rhetoric of inevitability 520 English criminal trial in eighteenth century 374, 377, 379, 380, 381, 384–5, 386, 387 impartiality 106, 148, 169, 180, 185, 186–7, 193, 570 international law 496 judicial dispassion see separate entry judicial emotion and emotion management see separate entry juries 188, 304, 305 instructions to 296–7, 304, 523, 548, 549–50, 576 remorse 133–4, 135, 136–7, 139, 502 slang 393, 394, 396, 401 stand your ground legislation 452, 456 victim emotion 302–3 victim impact statements 106, 297 judicial dispassion 27, 38, 147–61, 180, 186, 193 authority 157–8 definition of emotional regime 148 dialectic relationship between law and culture 149 emotion, rationality and regime of 149–52 emotional energy 157, 158 methodological applications and agenda for future research 158–61 national emotional regimes 156 socio-cultural variations of 152–4 power and status 156–8 quantitative methods 161 theoretical toolkit for analysis of emotions in court 154–7 background emotions 155, 156, 161 backgrounded to subject/foregrounded to others 155–6 foreground emotions 155, 156, 161 frame concept 154–5 group charisma 157 judicial emotion and emotion management 180–193

Index  609 anger 147–8, 152, 154, 155, 186 Australian study 180–182, 190–193 findings 184–7 diaphragmatic breathing 187 discretionary activities 189 interviews, efficacy of 189–93 rapport 188, 193 self-talk 184, 186 social awareness 188 social isolation 189 surface and deep acting 186 United States study 180, 181, 182–4, 190–191, 192–3 findings 187–9 juries 17, 20, 408, 452, 518, 520, 572 active listening 188 attractiveness cue 547 buttons with victim’s face 16, 304 close-knit community 527 defence lawyers 166 disgust and mock jury studies 87–8, 291, 292–3, 295, 296, 301–2, 316–18 English criminal trial in eighteenth century 374, 375, 376, 378, 379–80, 383, 384, 386, 387–8 evidence evaluation and decision-making 288, 303–5, 313, 318–19, 323, 539, 551–2 discrete emotions 291–3 emotionally evocative evidence 294 extralegal factors 300 gruesome photographs 289, 295–7, 301–2, 315–18, 320, 535, 552 individual differences 301–2 jurors’ emotions and jury nullification 301 mock jury research: methodology 288–90 pretrial publicity 300–301 stress 290–291, 304 victim impact statements 297–9, 528 victims and defendants expressing emotion 299–300 videotaped crime scene 295–6 hate crime 541 judges and see juries under judges murder/manslaughter distinction 548 remorse 133–4, 135, 136–7, 140 tears of jurors 20–21 victim impact statements 106, 297–9, 528–9, 552, 583 victim impact videos 319, 320, 323 videos, mitigation 319, 323 Jury of her Peers (Glaspell) 51 just societies and emotions 421–34, 425–31 Agamben’s ‘form-of-life’ concept 421–3, 424, 427, 429, 431, 432, 433, 434

Blackstone’s Commentaries 423–4, 432, 433–4 legal terms and embodiment 430–431 property law: managing acquisitive emotions 425–31 critique and/or longing 432–4 orality and writing 428–9, 431, 433 Kafka, Franz 47 Kahan, D.M. 21, 80–81, 84, 86, 90, 543, 546–7, 573, 577–8, 579, 589, 591, 592 Kahneman, D. 567 Kaminer, D. 465 Kaminsky, I. 503–4, 505–6, 507 Kant, I. 95–6, 97, 98, 202, 505 Kanwar, V. 107–8 Kanyangara, P. 464, 465, 467 Karstedt, S. 274, 282 Kass, L.R. 84, 85, 89 Ke$ha 402 Kearon, T. 234 Kefalas, T.J. 208 Kelly, D. 90 Kelo v. City of New London 238–9 Kemper, T. 157, 158 Kennedy, D. 432–3 Kennedy, J. 282 Keren, H. 67, 68, 69, 248, 259, 329, 582, 590 Kerouac, Jack 47 Kesey, Ken 47–8 keyword-based approach 410–411 killing 51, 318, 361–2 grading of offenses and retributive desert 99 manslaughter 15, 362, 364, 519, 535, 548 murder see separate entry ‘one punch’ laws 270–271 kindness: contract law 258 King, A. 274 King, Martin Luther 120, 121 Korsten, F.-W. 418 Kövecses, Z. 159 Kristof, N. 120 Kunstler, James Howard 47 Kuyken, W. 276 LA Law 47 laboratory technicians 303 Langbein, J.H. 374, 375, 380, 386, 388 Lara, M.P. 494–5 Latin America 460, 466, 467, 468–9, 471 law and economics 45, 237, 557, 593 behavioural 550–551, 566–7, 568, 583–4, 593–4 law and literature 44–59 Lawrence, J.A. 240 lawyers 408, 496, 520, 521, 553

610  Research handbook on law and emotion defence see separate entry slang 393, 394, 396, 397, 400–402 see also education, legal; prosecutors lay conceptions 15–24, 445, 456 emotion science and 35–9 intermittent accuracy of 17–20 interrogation of 23–4 worldview and 20–23 see also juries Leach, R. 234 Lee, Harper 47 legal authority, fear and resentment toward see slang legal culture 148–9 legal education see education, legal legal positivism 49, 411 legal realism 45, 48, 327, 570 legality principle 328 Legendere, P. 428 legislators 556 stand your ground legislation see separate entry Leighton, S.R. 501 Levenson, R. 334 LGBT activists 121 Lieberman, D. 88 Lieberman, J.D. 547 Lillehammer, H. 480 Lindquist, K. 330 linguistic methodology: judicial displays of emotion 328–9, 335–9 Lipsius, Morris 399–401 Loader, I. 273, 282 Lombroso, Cesare 360, 362, 364, 365, 366, 367, 368 Lorde, A. 121 love 22, 48, 94, 96–7, 98, 279, 282–3, 336, 426, 497, 554, 574 crimes of passion in late nineteenth-century Italy see separate entry family law 197, 535 love, marriage, duty and trust 198–205, 210–211 home 236 scripting 585, 595 time and emotions 502 Low, S.M. 236 loyalty 165–70, 175, 255, 258, 426, 434 Luther, Martin 202 McCauley, C. 87 machine learning 30 Mack, K. 341 Mackay, H. 276–7 Macneil, I.R. 250, 256, 257, 258, 259 McVeigh, Timothy 107, 115, 140, 141 Madeira, J.L. 107, 111, 114, 115, 452–4

Maharg, P. 71 Makoni, B. 349 Malcolm X 120, 121 Maldonado, S. 577, 586, 589, 592–3 manslaughter 15, 362, 364, 519, 535, 548 Marcus, G. 482 Margiotta case 361 Maroney, T.A. 147, 150, 154, 243, 327, 375, 445, 590 marriage see family law Martin, J.R. 328, 335 Martin, Trayvon 454–5 Maruna, S. 274 Matheson, D.J. 112 Matsell, George W. 398–9 Matsuo, K. 317, 320 Mauss, I. 330, 333 May, A.N. 376 Meagher, Tom 280 measuring judicial emotions 333–5 media 273, 274, 275, 281, 282, 283, 361, 393 debt 219 HIV nondisclosure 344, 345, 346, 347, 356 newspaper reports on capital trials 111–13, 115 remorse 140, 141 medical assistance in dying see education, legal Melanesia 31 Mellusi, Vincenzo 364 Melville, Herman 46 Mendeloff, D. 462–3 mental illness/disorder 359 neuroimaging 319 mercy 94, 96–7, 98, 141, 517, 522, 523, 524, 528, 529, 532, 545 military-civil relations see international humanitarian law (IHL) Mill, J.S. 505 Miller, A. 529 Miller, W.I. 80, 84, 90, 543, 548, 572, 573, 579 Minow, M.L. 68, 517, 530, 570, 573, 584–5, 586 mirror neurons 370, 429 miscegenation 345, 355 misogyny 122, 280 Mitchell, G. 593 MMR vaccine 438, 440–441 Moore, M.S. 95 moral community and remorse 140–143 moral sentiments and liberal legal order 44–59 Doubt: A Parable (John Patrick Shanley) 51–5, 57, 58 law’s coercion, law’s protection 49–50 narrative depictions of law’s absence 50–58 The Remains of the Day (Ishiguro) 51–2, 56–8 String Music (Pelecanos) 51–2, 55–6, 57, 58 Morar, N. 90

Index  611 Morrison, Toni 51, 532 motivational interviewing 188 Mottarella, K. 317 Mowen, T.J. 111 multiculturalism 343 murder 16, 80, 85, 295, 317, 320, 364, 366, 367–8, 408, 535 attempted 526 defendants’ emotional intensity 552 English criminal trial in eighteenth century 384–6 felony murder rule 99 jurors: murder/manslaughter distinctions 548 see also closure in criminal courtroom; death penalty Murdoch, I. 505 Murphy, J.G. 518 Nadler, J. 239, 242, 481 Narayan, U. 121 narratives see storytelling/narratives national/cultural emotional regimes see judicial dispassion natural law 422, 432, 433 naturalistic fallacy 90 Navarrete, C.D. 83–4 Neisser, U. 331 neuroscience 27, 199, 249, 328, 339, 536, 547, 566 classical approach 28–31, 36 bodily and behavioral change 30–31 neural activity 29–30 scientific evidence for 29 cognition and emotion 30, 38 emotional-cognitive-motivational brain 331–3 constructionist approach 31–5, 37 default mode network (DMN) 34–5, 38 salience network (SN) 34–5, 38 scientific evidence for 33–5 lay theories of emotion 35–7 consequences of 37 science, law and 38–9 mirror neurons 370, 429 New Public Management 159 New Zealand 279, 282 Nietzsche, F. 98 Noddings, N. 524 Nussbaum, M.C. 80–81, 86–7, 88, 90, 91, 94, 96, 120, 123, 506, 524, 526, 529, 532, 543, 546–7, 572, 579, 592 oaths see English criminal trial in eighteenth century Obama, Barack 120 obscenity 82, 85–6, 543

O’Connell, J. 462 O’Creevy, F. 262 Ogletree, C. 541, 553 O’Leary, Frank 399–401 other/othering 268, 275, 345, 346–8, 349–50, 351, 434, 468, 504, 505 outrage 86, 141, 239, 270, 271, 281, 523, 526, 527, 541 mock jurors 88, 292, 317 victim impact statements 514, 528 Palestinians 120 Paraguay 468 parents see children and parents parole 38, 100, 131, 137, 138, 143, 271, 274, 277–8 life without (LWOP) 113, 114–15, 141, 584 patience 184–5, 186, 187 patriarchy 51, 201, 347 Payne v. Tennessee 297, 514, 524, 525–6, 528, 529, 530, 531 Peckham, Aaron 401 pedagogy see education, legal Pelecanos, George 51–2, 55–6, 57, 58 Pell, George 280–281, 282 personal debt see debt Peru 468, 469 Pessoa, L. 331, 332 pets 235 Pettigrove, G. 120, 128 Pham, P. 463 pharmaceutical companies 586 Pierce, J.L. 166 Pillsbury, S. 99 Pinsky, D. 192 pity 504, 577, 579, 587 plea bargaining 99 police 157, 168, 270, 302, 303, 318, 554, 556 empathy and interrogation 521–2 slang 391–5, 397–8, 403–4 twentieth century 399–400 twenty-first century 402–3 Victorian era 398–9 populism 275, 441 Posner, E. 252, 255 Posner, R.A. 44, 49, 94, 95, 515, 519, 529, 531–2, 569, 593 post-conflict societies see transitional justice ‘post-truth’ politics 441 poverty 96, 502, 530 Powell, J.T. 239 power relations and status 19, 156–8, 379, 432, 522 contracts 251, 255 employment 57, 337 inheritance 240, 242 relationships: equal power and longevity 205

612  Research handbook on law and emotion pragmatic potential of law and emotions scholarship 574–96 illumination 574, 575–8 integration 574, 582–96 normative concerns 593–6 normative goals 582–9 normative means 589–93 investigation 574, 578–81 Pratt, J. 274 precedent/stare decisis 65, 70, 328, 329, 336, 338, 496–7, 522 pride 255, 260, 261, 378, 387 defence lawyers 172, 175 home 237 litigating parties 553 public defenders 541 transitional justice 467 prisoner’s dilemma 45 prisons 94, 95 clemency or parole 100 cruel and unusual punishments 100 debt 216 hyper-incarceration see compassion in criminal justice reform life without parole (LWOP) 113, 114–15, 141, 584 long-term solitary confinement 97, 99, 100 rate of imprisonment 271–2 recidivism 139 privacy 97 private law 44–6 see also contract law; family law; inheritance; tort professionalism 56–7, 486, 487 defence lawyers 165, 167, 171–3 humane 69 property law 229–44, 251, 550 just societies and emotions 424 managing acquisitive emotions 425–31 legal applications 233 adverse possession and eminent domain 238–9 compensation for damage to property 234–5 criminal law 233–4, 553–4 inheritance disputes 240–242 legal contests: home 235–7 theoretical perspectives 230–232 material possession attachment 231, 232, 236, 239, 242 person’s identity 232, 237, 239 place attachment 231–2, 236, 237, 238, 239, 241 way forward 242–3

prosecutors 147–8, 157, 160, 168, 293, 303, 521, 556 English criminal trial in eighteenth century 374, 377, 383, 385–8 objectivity 169–70, 174 prostitution 75–6, 354 psychiatrist, court-ordered 521 public health 343, 345, 544 public law 46 Pugh, M. 485 Puglia, Ferdinando 366–7 race 19, 298, 408, 502, 507–8, 520, 532 bias 277 critical race theories 66, 556 housing: discrimination 225 juries 304 parents and children 209–10 racism 96, 119–20, 121, 122, 125–6, 505, 506 racialized narrative see HIV nondisclosure: emotional storying slang 391–5, 403–4 twenty-first century: trolling the law 401–3 stand your ground legislation 454–6 victim impact statements 524, 525, 526, 527, 529, 530 Radin, M.J. 232, 248 Rahmatian, A. 243 Ransby, B. 392 rape 51, 99, 105, 519–20, 531–2 prison 94, 95, 100 victim emotion 302–3 rapport 188, 193 rational choice theory 252–3, 255, 259, 550 Raz, J. 327 Reddy, W. 148, 410 regret 19, 22–3, 133, 576, 585, 587, 588, 589, 595 Reichman, R. 426 relational epistemology 480–481 religion 298, 527 Christianity see separate entry Dalai Lama 276 incest 83 Islam 279, 283 Judaism 87, 586–7 love as a duty 97 The Remains of the Day (Ishiguro) 51–2, 56–8 remorse 131–43, 282, 351, 449, 496, 535, 545–6, 595 meaning of definition 132, 134 distinguishing from guilt and shame 133–4

Index  613 mock jury studies 300 moral community and 140–143 outcomes 100 harsher punishment for unremorseful 140 mitigation of punishment 100, 138–9 others way to acknowledge 139–40 proving 38, 100, 134 courtroom demeanour 135–7 evidence 135 parole hearings 137 too dubious 137–8 time, law and emotion 502 transitional justice 461, 471 transitional societies 142–3 research and development collaborations 257 resentment 205, 222, 275, 282, 353, 387, 518, 524, 595 IHL: civil-military relations 477, 485, 487–8, 489 toward legal authority see slang transitional justice 467 Resnik, J. 570 restorative justice 105, 107, 113, 139, 274, 278, 464, 551 retribution 94–100, 109–10, 342, 464, 466, 523, 524, 526, 549, 584, 595 dignity 95–6, 97, 99, 100 long-term solitary confinement 97, 99, 100 poverty 96 practical implications 99–100 racism 96 two limits and cautions on 97–8 revenge 123, 353, 364, 366, 367, 370, 518, 520, 524, 525–6, 532 retribution and 95 transitional justice 461, 463–4, 466, 471 riddles 414–17, 418 Riles, A. 479 Rimé, B. 465, 467, 471 risk assessment 584, 590–591, 592 risk aversion 35 risk regulation 577–8 Roach Anleu, S. 334 robbery 299, 382, 384, 386 Robinson, J. 506–7 Robinson, M. 330, 333 Roman law 359 Rose, C. 426 Rosenwein, B.H. 154 Rozin, P. 87, 91 rudeness 185 rule of law 50, 150, 328, 337–8, 339, 387, 400, 516 Rwanda 463, 464, 465, 466, 467–8, 469, 470, 471, 472

sadness 292, 293, 299, 315, 317, 319, 322, 355, 552 cognitive biases 542 debt 220, 221, 222 judicial dispassion 467 transitional justice 461, 463, 465, 467, 469 Safford v. Redding 18–19, 22 Saguy, A.C. 149 St Paul 433 Salerno, J.M. 316–17 same-sex couples 202, 210–211, 409, 543, 585 Sanger, C. 263–4, 577, 595 Sarat, A. 595 Scheer, M. 189 Schlanger, M. 577, 579, 587 Schnädebach, S. 153 Schroeder, R.D. 111 science and technology studies 480 Scilingo, Adolfo 142–3 Scotland 233 Sebastian, M. 500 securities regulation 550, 573, 589 selective attention 546 self-defense, deadly force used in see stand your ground legislation Seneca 120, 127–8, 532 sentimentality 234–5, 239, 281 sentiments and liberal legal order 44–59 Doubt: A Parable (John Patrick Shanley) 51–5, 57, 58 law’s coercion, law’s protection 49–50 narrative depictions of law’s absence 50–58 The Remains of the Day (Ishiguro) 51–2, 56–8 String Music (Pelecanos) 51–2, 55–6, 57, 58 sentiments and slang see slang separation of powers 328 sex work 75–6, 354 sexual assault 105, 299, 354 sexual desire, romantic love and attachment 199–201 sexuality 201–2, 366 HIV nondisclosure: racialized narrative 343, 344, 346, 348–9, 354, 355 shadowing 160 Shafir, E. 329–30 Shakespeare, W. 46, 97 shame 133–4, 138–9, 202, 282, 370, 449, 501, 506, 537, 543 contract law 258 cultivation of 586–7, 589 debt 216, 217, 218, 219–20, 221, 222, 224 HIV nondisclosure 349–51, 354–5 slut-shaming 354 transitional justice 461, 465, 466, 467, 469, 470, 471, 472 Shanley, Patrick 51–5, 57, 58

614  Research handbook on law and emotion Sharfstein, D.J. 234 Shepard, Judy and Dennis 107–8 Shields, Brooke 48 Shultz, M.M. 569 Shuman, D.W. 521 Sierra Leone 465, 466, 467, 468, 470, 472 Simon, J. 587 Singer, T. 276 slang 391–404 eighteenth century: law officers as predators 395–8 sentiment 391–3, 394, 401, 404 twentieth century: emotional abuse 399–401 twenty-first century: trolling the law 401–3 Victorian era: sympathy for criminals 398–9 slavery 51, 129, 409, 424 Slovic, P. 544 slut-shaming 354 Smith, Abbe 541, 553 Smith, Adam 44, 394 Smith, Amy 575, 588 Smith, Susan 527 social contract 97–8 sodomy 81, 85, 89 soldiers and humanitarians see international humanitarian law (IHL) Solomon, R.C. 492, 504, 584, 589 Sophocles 46 Sorenson, J. 395 Sousa, M.D. 220, 221 South Africa 142–3, 463, 464–5, 466 sovereignty 425, 432 Soviet emotional regimes 109, 153 Spain 463 Sparks, R. 281 specific performance 255 speech emotive function of 17–18 freedom of 549 Spelman, E.V. 68, 517, 570 Ssenyonga, Charles see HIV nondisclosure: emotional storying stand your ground legislation 438–56 case study 444–7 emotions and reason-giving behavior 439–44 codified justifications 442, 443, 444 conventions 441, 443 explanatory stories 442, 443, 444 identifiable victim effect 442 technical accounts 442–4 explanatory story: building as justification 447–52 criminal accountable 451 encourage self-defense 452 heroism 449–50

victimization 450–451 reasoning against explanatory story 452–6 racial reasons 454–6 technical accounts 452–4 stare decisis/precedent 65, 70, 328, 329, 336, 338, 496–7, 522 statistics and anecdotes see stand your ground legislation statutory interpretation 328 Stearns, P.N. 159 Steiker, C.S. 94, 96 stereotypes 315, 342–3, 350, 394, 468, 505, 530 Stevenson, Robert Louis 47, 48 stigma 587 bankruptcy 219–20, 221, 222, 226 HIV/AIDS 350, 355 Stocker, M. 500 Stoics 123, 128, 129 Stoler, A.L. 353 storytelling/narratives 494–5, 502 empathy, narrative and victim impact statements 514–32 explanatory story see stand your ground legislation HIV nondisclosure: emotional storying see separate entry Strathern, M. 480 String Music (Pelecanos) 51–2, 55–6, 57, 58 strip search 18–19 Stuart, F. 149 Stum, M.S. 242 suicide, doctor-assisted see education, legal Sullivan, T.A. 218 Sunstein, C.R. 544, 584, 590–591 Swann, W. 480, 488 Sweden 147–8, 152, 154, 156, 160, 478 Bar Association 171 defence lawyers 165–76 high-trust society 153, 159 symbolic interactionism 480 sympathy 44, 46, 47, 48, 49, 50, 51, 54, 81, 113, 281, 282–3, 408, 531, 537, 549 anti-sympathy jury instruction 523, 576 counterproductivity critique of anger 121, 124–5 crime of passion 362 English criminal trial in eighteenth century 384, 387, 388 experimental mock jury research 292 HIV nondisclosure 354, 355, 356 Hume 492 IHL: civil-military relations 486 mirror neurons 429 slang 398–9 victim impact statements 297

Index  615 visual evidence 312, 315, 318–19, 320, 322 Tan, Z.X. 259, 263 Tarde, Gabriel 363 Tavuchis, N. 141, 142 taxonomy of law and emotion studies 534–57 as analytic and evaluative tool 554–5 approaches 539–55 emotion-centred 542–4, 555 emotion-theory 546–8, 555–6 emotional phenomenon 544–6, 555–6 legal actor 551–4, 556 legal doctrine 548–50, 556 theory of law 550–551, 556 emergence as distinct field 535–9 future research 555–7 identifying law and emotion scholarship 539–42 television 47 Temple, William 97 Tennov, D. 200 terror management theory 318 terrorism 140, 167, 277, 300, 486, 544 Tessman, L. 121 Tewksbury, R. 112–13 theatre, forum 74 theoretical toolkit for analysis of emotions in court see judicial dispassion Thompson, S. 235–6 Tilly, C. 441 tort 45, 251, 252, 535, 549, 552, 556, 589–90 damages 15, 449 duty of care 45 negligence 234, 318 stand your ground legislation see separate entry transitional justice 460–472, 592 emotional impact of participation in 464–6 emotions and support for 463–4 justice and reconciliation 466 macro justice 461–2, 466–9 discrepancies 469–72 micro justice 461–3 discrepancies 469–72 needs-based model 471–2 transitional societies: remorse and moral community 142–3 trespass to land 234, 238 Trump, Donald 87, 282–3 trust 166, 190, 193, 402 contract law 257–8 family law 197 love, marriage, duty and trust 198–205, 210–211

nonmarriage: contingent relationships and lack of trust 205–7, 210–211 home 236 transitional justice 467, 468–9 truth and reconciliation commissions (TRCs) 142–3, 460, 461, 462, 464–5, 466, 467, 468–9, 471, 586 Twain, Mark 46, 47, 48 Tyler, T. 421 Umbreit, M.S. 114 undue influence 255, 259, 263 United Kingdom Blackstone’s Commentaries see just societies and emotions contract law 250, 251, 255, 259–60, 261–3 ‘battle of the forms’ 258 good faith 257 liquidated damages 256 copyright 409 defence lawyers 165, 166 extreme pornographic images 85 Fulbeck’s A Direction or Preparative to the Study of the Lawe 407–18 lawyerization: English criminal trial in eighteenth century 374–89 God’s law: incidence of providence 377–80 providence, oath-taking and lawyers 380–388 national emotional regime 152 parole hearings 137 property compensation for damage to 234 criminal law 233–4 R (UNISON) v. Lord Chancellor 328–9, 336–9 access to the courts 336–9 precedent 336 slang 391–5, 401, 403–4 eighteenth century: law officers as predators 395–8 Victorian era 398 Wolfenden Report 84–5 United States 263–4, 434 Bill of Rights 528 children 204, 208, 209–10, 586 competence to stand trial 590 Constitution 17–19, 23 1st Amendment 86, 541 2nd Amendment 444 4th Amendment 549 5th Amendment 238 7th Amendment 452 8th Amendment 100, 523, 525, 528, 575 14th Amendment 49–50, 238

616  Research handbook on law and emotion bankruptcy 217 Equal Protection Clause 49–50 contract law 259 copyright 409 death penalty 20–21, 80, 85, 137, 141–2, 297, 305, 514, 523, 524, 525–6, 528–9, 531, 532, 575, 576 close-knit community 527 closure in criminal courtroom see separate entry debt see separate entry defence lawyers 166, 167, 168, 174, 175 family law children 204, 208, 209–10 domestic violence 208 family formation 204 incest 82 inheritance law 240, 241 judicial emotion and emotion management 180, 181, 182–4, 187–9, 190–191, 192–3 anger 147–8, 152 juries 16, 20, 452, 523, 576 defence lawyers 166 lay concepts of emotion in law 16–19 and worldview 20–23 low-trust society 159 mens rea 99 misconduct: lawyers 168 national emotional regime 152 Oklahoma City bombing 107, 114, 115, 140, 141 penal system 94, 99–100, 272 property adverse possession 238 compensation for damage to 234–5 eminent domain 238–9 race 119–20, 121, 125–6, 209–10, 507–8, 532 ‘American Dream’ 342–3 discrimination in housing 225 profiling 402 slang 391–5, 401–4 stand your ground legislation 454–6 victim impact statements 524, 525, 526, 527, 529, 530 slang 391–5, 403–4 nineteenth century 398–9 twentieth century 399–401 twenty-first century 401–3 stand your ground legislation see separate entry student speech 544 Supreme Court 16–17, 305, 522, 525, 552 anti-sympathy jury instruction 523, 576 cruel and unusual punishments 100

emotive function of speech 17–18 jury instruction 523 obscenity 85–6 regret 19, 22–3, 576, 587, 588 same-sex sodomy 81 strip search 18–19 victim impact statements 297, 514, 524, 525–6, 528, 529, 530, 531, 532, 537 untouchables 87 Uruguay 468 usefulness see pragmatic potential of law and emotions scholarship vaccines 438, 440–441 Van Oorschot, I. 136 Van Sant, A.J. 393 Vasilyev, P. 109 Vasquez, E.A. 88 victim in criminal justice system 277, 278, 279–80, 282 HIV nondisclosure: victim narrative 353–5, 356 role of 110–111 victim impact evidence/statements 16, 263–4, 297–9, 355, 460, 535, 537, 549, 552, 577, 583 closure 102, 105, 106–7, 110, 113, 116 counternarratives 530–531 empathy, narrative and 514–32 right emotions in wrong contexts 527–8 skewed playing field 528–9 undifferentiated vengeance 525–6 victim 529–30 wrong emotions 524–5 victim impact videos 319, 320, 323 victim-blaming 354, 356 victim-offender mediation 105 victims’ rights movement 103, 274, 530 visual evidence 312–23 civil cases 318–19, 323 gruesome photographs 317–18 color 296, 315, 316, 321 emotional influences on perceptions of 313–14 future research 323 how different 319–21 judgment emotional effects on 314–19 framework 314 metacognition 321–2 methodological observations 322–4 mock jury studies 289, 295–7, 301–2, 315–18, 320 videotaped crime scene 295–6

Index  617 Vroling, M. 331 Walford v. Miles 257 Wanzo, R. 393 Ward, L. 331 Warren, Elizabeth 218 Webb, J. 69, 72, 74 Weeks v. Angelone 20–21 Weil, S. 505 Weinstein, H.M. 592 Weisberg, R. 523 Weisman, R. 135–6 West, R. 497 Westbrook, J.L. 218 Western legal emotional regime see judicial dispassion Wettergren, Å. 153, 193 Whalen, D.H. 539 Wheatle, S.-S. 327–8 White, L.E. 588 White, P. 328, 335 white supremacy/ists 87, 279, 349 Widerberg, Bo 48 Williams, B. 501 Williams, R. 427 Williams, Tennessee 519 wills 240–2 Wilson, J.Q. 201, 202 Wittgenstein, L. 422 Wolfe, Tom 48 women 18–19, 51, 150, 201, 366, 582, 595

abortion and regret 19, 22–3, 576, 587, 588 anger 120–121, 122, 129 ‘battered women’s syndrome’ 543–4 consent, informed 583, 585, 590 defense attorneys 553 disgust 87 embodiment 74 family law 211 children 208–10, 211 marriage 202–3 nonmarriage 206–7, 211 HIV nondisclosure: emotional storying 347–9, 351–6 judicial empathy with defendant 519–20 juries 304 prison for fine default 278 property law 429, 430 society and violence against 275, 280 transitional justice 464 victim impact statements 298 worldview 20–23, 318, 591, 592 Worth, H. 346 Wouters, C. 152 Wu, H.-M. 553 Yudof, M.G. 531 Yugoslavia, former 463, 464 Ziino, Giuseppe 363, 364 Zimring, F. 111