A Field Evolves: Introduction to the Special Section on Law and Emotion

Law and Emotion: A Field Emerges

Over the course of the last two decades the traditional narrative casting law as a bastion of pure reason has begun to crumble. As it crumbles we are freed to explore the deep interconnectedness of emotion and cognition in the theory and practice of law.

The suffocating narrative of law-as-reason, now under full attack, previously had been slightly dented. The early-20th-century Legal Realists in the United States rebelled against the then-prevalent idea of law as a science, a concept steeped in the unrealistic—one is tempted to say caricatured—notions of scientific objectivity that then prevailed (Maroney, 2011a). Continental theorists such as Paul Scholten similarly insisted that law contained a human element that could not be reduced to algorithmic formulae. ¹

Emotion formed an important part of these counternarratives. As U.S. Supreme Court Justice Benjamin Cardozo wrote in The Nature of the Judicial Process, even judges—those tasked with keeping law dispassionate—were inescapably emotional:

Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge. (Cardozo, 1921, p. 167)

Borderline heretical, such assertions were largely plowed over by the mid-century ascendance of behaviorism. The study of emotion in other disciplines starved at the roots during that period, and so too did the recognition of emotion in law. When emotion research began its current renaissance in the last decades of that century, the study of emotion in law did as well. It is to that field that this special section on law and emotion is devoted. The articles gathered herein offer a taste of the diversity and reach of a fast-developing, and increasingly international, literature.

The Contours of the Field

Law and emotion interact on multiple levels. Events that call for a legal response—violent crime, property theft and damage, environmental destruction, and government infringements on personal liberty, to name a few—evoke powerful emotional responses. The dramatis personae of law—police, legislators, lawyers, judges, and jurors—experience emotions of their own. Law sometimes varies according to the existence, sincerity, and depth of emotion. For example, in determining whether a search was unreasonable under the U.S. Constitution, we look to whether a person was frightened or humiliated; a similar inquiry attends the law of workplace sexual harassment. Sometimes law has to put a price on emotion, as in determinations of emotional damages. People have emotions about law itself, ranging from revulsion to reverence.

Abrams and Keren set forth a helpful frame within which to understand this constellation of interactions. Law and emotion scholarship seeks to illuminate the affective features of legal problems; investigate these features through interdisciplinary analysis; and integrate resulting understandings into practical, normative proposals (Abrams & Keren, 2010). Take, for example, the excited-utterance exception to the hearsay doctrine, which allows in-court introduction of statements made under extreme stress because (as the theory goes) they are likely to be truthful. One might illuminate the fact that this point of doctrine relies on assumptions as to how people think and communicate in conditions of extreme fright or other distress; investigate the accuracy of those assumptions by recourse to, say, experimental psychology; and integrate resulting insights into a proposal for how doctrine could be more psychologically well-grounded (Brown, 2012).

Rather than focus on discrete points of doctrine, law and emotion scholarship may revolve around the legal treatment of particular emotions, such as disgust or love. It instead may investigate how law treats psychological phenomena with affective components, such as empathy. The emotions of legal actors, like judges, represent another important focus. Law and emotion work further may interrogate the implications of emotion research for theories of law, such as law and economics, or might explore the legal implications of a theory of the emotions, such as appraisal theory (Maroney, 2006).

All approaches take as their bedrock the same notion: emotion shapes law, and law needs to get emotion right in order to function well. The dynamic also runs in the other direction: law shapes emotion (Abrams & Keren, 2010). Recognizing a right to same-sex marriage can foster pride and support romantic and parental love, while denying the right can foster shame and hatred (Obergefell v. Hodges, 2015). If a court restricts abortion access on the theory that women are likely to experience postabortion regret, it devalues (and arguably stigmatizes) other emotional experiences such as postabortion relief (Maroney, 2009). Criminal proceedings work to channel anger, indignation, fear, and disgust; rehabilitative programs encourage hope. Law both revolves around and sculpts emotional experience, both individual and collective.

If outdated models of legal rationality posited law as a strong-arm tool for emotion suppression (or at least minimization), emerging models recognize law as a flexible, context-driven mechanism for reflecting, managing, nurturing, or (dis)incentivizing specific emotions in specific situations for specific purposes (Maroney & Ackerman-Lieberman, 2014; Maroney & Gross, 2014).

Exposure to interdisciplinary emotion research holds obvious benefits for legal theorists and practitioners seeking to calibrate law to human reality and to cultivate a desired set of emotional experiences. No less important is the benefit to emotion researchers of exposure to law. Law offers researchers “a rich occasion to explore emotion as it operates in a complex set of institutions designed to reflect, channel, and educate human behavior” (Bandes & Blumenthal, 2012, p. 174).

The Contributions to This Special Section

This special section demonstrates both the range of law and emotion scholarship and its value for scholars of diverse disciplinary backgrounds. We begin with the ways in which emotion affects the construction and perception of law-relevant facts. Making a binding account of reality is an often overlooked but critical function of law. For example, postatrocity tribunals like those described by Susanne Karstedt (Karstedt, 2016) typically have two goals: truth and reconciliation. Her focus is on the latter, but the former is as important; before any healing can take place in Guatemala or Rwanda we need to know what happened there. Like cognition and emotion, law and facts are intertwined.

It would be difficult to overstate the extent to which law relies on memory. Typically, we know (or think we know) law-relevant facts by listening to, challenging, and verifying human retellings of events stored in memory. Because memory is so vital and yet so fragile, law also regulates how it is handled; we try, for example, to minimize early memory distortions that might later manifest in confident but inaccurate identification of criminal suspects. This is particularly true in recent years, thanks to courts’ increasing openness to scientific insights (State v. Henderson, 2011).

It is against this backdrop that Robin L. Kaplan, Ilse Van Damme, Linda J. Levine, and Elizabeth F. Loftus offer “Emotion and False Memory,” introducing to our mix the perspective of experimental psychology (Kaplan, Van Damme, Levine, & Loftus, 2016). Loftus long has been a prominent voice at the intersection of law and psychology; Levine is an expert in emotion and memory; and their coauthors round out an able team. The findings they describe are disturbing. Though the emotional intensity that often attends legally relevant events—like crime and accidents—can enhance some aspects of memory, it can distort others. Inaccurate memories “are often confidently held, highly detailed, and emotional,” and these attributes can lead legal decision makers to accept their truth value, with “a devastating human toll” (Kaplan et al., 2016, p. 8). Though “testimony should not be given more credibility simply because it is conveyed with emotion,” such is often the case (Kaplan et al., 2016, p. 12). Kaplan et al. propose a framework, focused on the role of motivation, to distinguish situations in which emotion has enhanced memory from those in which it has distorted it.

As Susan Bandes then recounts in “Remorse and Criminal Justice,” legal decision makers in criminal cases rely not only on memory accounts but also on present-day assessments of whether the defendant is properly remorseful (Bandes, 2016). Such assessments drive decisions ranging from parole to term-of-years sentencing, but are nowhere more important than in the (distinctly American) context of capital punishment. Indeed, jurors’ lay assessment of remorse—often based on observation of the defendant’s demeanor as he sits silently in court (as the U.S. Constitution entitles him to do)—is one of the most important determinants of a death sentence. Bandes finds no evidence that remorse can be evaluated accurately in such circumstances, and ample evidence that such evaluations are vulnerable to bias. Reaching one level deeper, she queries whether law can find in remorse what it is looking for: a window on the defendant’s character and a predictive tool with which to gauge dangerousness. Bandes appears to doubt it but holds out for more evidence, issuing an urgent plea for research on remorse and its assessment. Bandes—my coeditor in this special section—is a foundational presence in the law and emotion movement; publication of her edited volume The Passions of Law was a watershed moment and she remains a leading voice. One hopes that her urging finds receptive ears.

We next turn to three explorations of emotion as it is evoked, processed, and managed by the law’s dramatis personae.

Law-relevant facts—some vulnerabilities of which we already have explored—are packaged for legal consumption, typically by lawyers who employ the tools of persuasive rhetoric. No lesser mind than Aristotle taught us that emotion is central to rhetoric, and certainly that is true in the courtroom. Social psychologists Phoebe Ellsworth (a distinguished professor of law and psychology at the University of Michigan) and Adrienne Dougherty explore these topics in “Appraisals and Reappraisals in the Courtroom” (Ellsworth & Dougherty, 2016). They first explain why law and emotion scholars need a solid grounding in psychological theory, and offer a particular focus on appraisal theory. That focus is well-placed given the centrality of appraisal to contemporary affective science, its wide-ranging relevance within legal settings, and its utility in showing the interconnectedness of emotion and reason. Appraisal theory, they assert, helps explain the influential “story model,” which posits that legal decision makers seek to integrate evidence, background belief, and argument into a coherent narrative (Ellsworth & Dougherty, 2016, p. 22). Evocation and manipulation of appraisal are key to persuasive legal storytelling. By differentially engaging novelty, valence, judgments of agency and normative significance, and feelings of certainty and control, attorneys lead jurors and judges to their preferred conclusion. This article both builds on prior law and emotion scholarship grounded in appraisal theory and serves as a welcome reminder that such scholarship succeeds when it reflects interdisciplinary competence.

From lawyers we move to jurors, those laypersons charged with this fragile business of fact-finding and to whom persuasive rhetoric is so often directed (at least in systems that rely on juries). Neal Feigenson’s extensive research program on juror decision making explores an impressive range of decisional influences. In “Jurors’ Emotions and Judgments of Legal Responsibility and Blame: What Does the Experimental Research Tell Us?,” he explains that jurors’ emotions can affect their judgments whether those emotions are integral to the decisional task (for example, disgust triggered by evidence) or incidental to it (Feigenson, 2016). Emotions alter information-processing styles; further, jurors interpret information in a direction consistent with the cognitive structure of the emotion, see their emotional state as informative about the target of their judgment, and take into account anticipated emotions. Feigenson points to a complex recursive relationship between emotion and judgment. He further rejects moral intuitionism—the theory that people reach “initial, integral emotional responses to the facts of any case with moral dimensions” in support of which they build post hoc “rational” narratives—as not supported by the evidence, which instead points to a vibrant interaction between reason and emotion in juror decision making (Feigenson, 2016, p. 29).

Then there are the judges, those supposed bastions of dispassion. As I have insisted elsewhere, the myth of dispassion veils the rich emotional lives of judges, who are tasked not only with responding to the emotions of others—crying witnesses, feuding lawyers, fearful defendants—but with managing their own (Maroney, 2011b). Indeed, a recent quantitative study shows that the affect heuristic plays at least some role in judicial decision making (Wistrich, Rachlinski, & Guthrie, 2015). The emotional palette of judging is, however, far more complex than can be explained by the affect heuristic (Maroney, 2015). Adding important dimension to our understanding of that palette are two qualitative empirical studies underway in Australia and Sweden (Anleu, Bergman Blix, & Mack, 2015), the latter under the direction of Stina Bergman Blix and Åsa Wettergren.

In “A Sociological Perspective on Emotions in the Judiciary” Bergman Blix and Wettergren ask how judges experience and express emotions in an environment that denies their relevance (Bergman Blix & Wettergren, 2016). In beginning to answer that question they introduce the reader to extant perspectives, including the timely debate on judicial empathy; present excerpts from their research, which incorporates both observations of and interviews with judges; and bring to bear a sociological focus on structure and power relations. Bergman Blix and Wettergren also highlight the importance of cultural variability. The emotion regime within which Swedish judges work is one characterized by very subtle displays—particularly when contrasted with the dramatic displays one sees in the United States (Maroney, 2012). Cultural variability requires cultural competence: a U.S. researcher might go into a Swedish court and wrongly conclude that no emotions are operative. These scholars’ careful qualitative work holds promise for both building a theory of emotion in judging and demonstrating a methodology by which to investigate its operation.

We began with law’s construction and consumption of facts and moved one concentric circle outward to emotional influences on the people who bring that process to life. Of course, the last group in our human triptych—judges—concern themselves not just with facts but also with legal doctrine, the evolving set of rules determining the consequences that attach to facts. We move more squarely into legal doctrine in our next article, “Property and Emotions” (Conway & Stannard, 2016). Heather Conway and John Stannard of the Queen’s University Belfast School of Law have been integral to the invigoration of law and emotion studies in the United Kingdom (Schweppe & Stannard, 2013). Here they catalogue how property law recognizes—or fails to recognize—our emotional attachments to nonhuman objects. We imbue objects with emotion (think of wedding rings or Nazi paraphernalia) and use objects to enact interpersonal emotional dynamics (think of inheritance disputes). “Proprietary emotions,” Conway and Stannard imply (Conway & Stannard, 2016, p. 38), ought to more systematically inform legal doctrine, which presently is built on a jumble of unexplored assumptions about how people do and ought to feel about objects.

Finally, moving yet one more concentric circle outward, we explore the ways in which emotion shapes legal system design. In “Emotions in Constitutional Institutions” (Sajó, 2016), András Sajó revisits arguments from his 2006 Constitutional Sentiments. Sajó, a judge on the European Court of Human Rights, has a unique vantage point, having helped to draft the Ukrainian, Georgian, and South African constitutions. As he explains, not only are constitutions forged through highly politicized processes that both reflect and create intense emotions in decisional elites and the public they represent, but the resulting constitutional regimes shape emotional regimes for future generations. Sajó’s nuanced perspective contrasts with standard accounts of constitutional design and interpretation.

Picking up the theme of collective emotion, in “The Emotion Dynamics of Transitional Justice: An Emotion Sharing Perspective” Susanne Karstedt focuses on fora designed to channel societal responses to mass atrocity (Karstedt, 2016). Karstedt, a comparative criminologist, has criticized criminology’s “cautious and circumspect” attitude toward emotion, which she sees as out of touch with the recent “re-emotionalisation of law” (Karstedt, 2011, p. 1, 3). Continuing that questioning stance, she draws on discouraging reports to ask whether postatrocity tribunals deliver promised emotional benefits. Analyzing structural features that render tribunals more or less likely to facilitate individual and collective healing, Karstedt demonstrates how research from the affective sciences—here, models of social sharing—can enrich legal system design. Seeking to explain transitional justice’s apparent failures in a way that builds up rather than tears down, she suggests that the ways in which transitional justice is operationalized can expand or constrain opportunities for productive emotion sharing.

Rounding out this focus on system design is John Deigh’s “The Emotional Significance of Punishment” (Deigh, 2016). Deigh, a philosopher whose work includes Emotions, Values and the Law (2008), considers the emotional significance of societal decisions to punish. He distinguishes criminal punishment from nonretaliatory responses to wrongdoing, such as fines; when deployed on behalf of the collective, he argues, punishment represents an institutional emotional response. The social reality of punishment also fosters internalization of emotional commitments—ranging from fear to healthy attachment to authority—that stabilize collective life and cement interpersonal trust. Drawing on Nietzsche, Freud, and Rawls, Deigh invites us to conceptualize punishment as more than a reactive infliction of pain.

Law and Emotion, Moving Forward

A decade ago I described the field of law and emotion as emerging (Maroney, 2006). As this special section demonstrates, it has emerged. Just the small sampling we offer here incorporates perspectives from philosophy, criminology, various schools of psychology, sociology, and legal theory. Our subjects range from the everyday processes that drive the law in action to the broad forces that shape our very legal institutions. This diversity reflects the vibrancy that characterizes the law and emotion enterprise.

We have of necessity left out important perspectives. Law and economics scholars increasingly incorporate emotion into their models, and have demonstrated a particular interest in the positive emotions, such as happiness (Bronsteen, Buccafusco, & Masur, 2014; Posner & Sunstein, 2010). We do not here touch on important issues in family law (Huntington, 2014), contract (Keren, 2010), labor and employment, tort, and any number of other doctrinal pastures within which law and emotion scholars might graze. Other disciplinary partners await as well: for example, historians of emotion are expanding their view to encompass law, ² as are other scholars within the humanities (Johnson, 2015), and neuroscientific explorations increasingly implicate law and emotion (Treadway et al., 2014). While our authors hail from the United States, United Kingdom, Australia, and both Northern and Eastern Europe, we lack voices from large swaths of the world, notably Asia and Africa. Fortunately, some of our gaps are filled by other overviews and compendia, and those that are not reflect gaps in the literature that, we hope, soon will be filled by other scholars.

This, then, is the hope that animates this special section: that a wide range of emotion scholars will see law as ripe territory within which to develop their ideas, and that an equally wide range of legal scholars will see the value of drawing on affective insights offered by those other disciplines.

Such interdisciplinariness requires discipline. Bandes has warned against treating one’s nonnative discipline casually, as a “theoretical smorgasbord” from which to choose tidbits of one’s liking (Bandes, 1999, p. 8). Similarly, I have worried that because emotion research is a dispersed enterprise, not rooted in any specific discipline and generally countercultural within the disciplines in which it may be found, and because law encompasses “a breathtakingly large domain of social regulation,” cobbling law and emotion together might result in a wobbly enterprise indeed (Maroney, 2006, p. 136).

Time has so far proven us (largely) wrong, and the future promises to calm our worries even more. When nonlegal scholars take care to get their law right, and when legal scholars take care to get their emotion research right, fantastic things can happen. May this special section spark fantastic things.