Who's afraid of law and the emotions?

Minnesota Law Review

Volumn 94, Issue 6, 2010, Pages 1997-2074

  Abrams, Kathryn ^a   Keren, Hila ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b HEBREW UNIVERSITY OF JERUSALEM   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79551490580     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (473)

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. For a thoughtful article heralding the emergence of the field which defines it in somewhat different terms
2. see Terry A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field, 30 LAW & HUM. BEHAV. 119 (2006) (arguing that law and emotions scholarship is organized around six approaches: emotion-centered, emotional phenomenon, emotion theory, legal doctrine, theory of law, and legal actor).
3. See, e.g., Symposium on Law, Psychology, and the Emotions, 74 CHI.-KENT L. REV. 1423 (2000).
4. In their interdisciplinary exploration of dimensions of cognition that are not exclusively rational, these bodies of scholarship share common substantive ground with law and emotions work. They are not coterminous, however, in that some work within both behavioral law and economics and law and neuroscience analyzes forms of judgment, decisionmaking, cognition, or attributes of the mind which do not specifically involve emotion. Moreover, behavioral law and economics has, in some cases, a distinct normative project of moving human beings whose decisionmaking is impaired by flawed heuristics back in the direction of greater rationality. In noting the differential reception of these related bodies of work, our point is not to critique them. We use behavioral law and economics scholarship in this paper, as well as in our individual work. Similarly, one of us is a faculty participant in the MacArthur Foundation's Law and Neuroscience Program and the other has used particular neuroscience works in her law and emotions writings. Our argument is, however, that these valuable bodies of work should not be taken to stand for the entire field of inquiry-into affective response or other departures from classically defined rationality-in mainstream legal scholarship. This pattern, as we contend below, is the product of a persistent dichotomizing of emotion and reason, and a prioritizing of rationality as a normative goal. See infra Part II.
5. See Jeremy A. Blumenthal, Emotional Paternalism, 35 FLA. ST. U. L. REV. 1, 2-3 (2007). According to Blumenthal: At least two bodies of legal scholarship have recently challenged the primacy of the traditional rational-actor, law and economics approach to law and policy. The first, taking a cognitive- psychological or behavioral economics approach, focuses on mental heuristics and biases that lead to departures from optimal or rational decisionmaking. This literature is voluminous and increasing. A second line of legal scholarship focuses on the role of emotion in legal judgment and decisionmaking, whether by judges, juries, bureaucrats, legislators, or citizens. Although somewhat less developed than the first, this line of writing, and the empirical social science research it often seeks to incorporate, has likewise demonstrated departures from the traditional conception of a rational decisionmaker.
6. See On Amir & Orly Lobel, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, 108 COLUM. L. REV. 2098, 2099 (2008) (book review) ("By understanding the ways in which individuals are susceptible to biases and flawed decisionmaking, law and policy can help improve individual and group behavior.").
7. 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, 86 MICH. L. REV. 1835 (1988). This attribute of mainstream legal scholarship has been the subject of trenchant and inventive critique.
8. See, e.g., Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167 (1990);
9. Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801 (1991);
10. Pierre Schlag, Stances, 139 U. PA. L. REV. 1059 (1991);
11. Steven L. Winter, Contingency and Community in Normative Practice, 139 U. PA. L. REV. 963 (1991);
12. Steven L. Winter, Without Privilege, 139 U. PA. L. REV. 1063 (1991). Although we concur in some dimensions of this critique, our point is that one need not embrace it in order to see value in emerging law and emotions work: this work reflects more conventional forms of legal normativity as well.
13. 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 infra Part III. C.
14. See, e.g., DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE: WHY IT CAN MATTER MORE THAN IQ 33-39 (1995) (explaining how "other characteristics", such as the ability to empathize with others are gaining increasing recognition).
15. See Daniel Kahneman, Maps of Bounded Rationality: Psychology for Behavioral Economics, 93 AM. ECON. REV. 1449, 1457 (2003) ("Utility cannot be divorced from emotion, and emotions are triggered by changes. A theory of choice that completely ignores feelings such as the pain of losses and the regret of mistakes is not only descriptively unrealistic, it also leads to prescriptions that do not maximize the utility of outcomes as they are actually experienced...."). Kahneman received the Nobel Prize in Economic Sciences in 2002.
16. Id. at 1449 n. †.
17. 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. Some theorists, for example, define emotion as the body's response to an "exciting fact." According to this understanding, fear is the lightning-quick retreat that follows the sight of a bear, and sadness is the tears that follow bad news. See generally KEITH OATLEY et al., UNDERSTANDING EMOTIONS 4-8 (2d ed. 2006) (discussing theories by Charles Darwin and William James). Such theories, which focus on a physiological response, somewhat decrease the gap between behavioral law and economics, in which the focus is on behavior, and law and emotions, in which the focus is on feelings. However, 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."
18. See, e.g., Jeffrey J. Rachlinski, The "New" Law and Psychology: A Reply to Critics, Skeptics, and Cautious Supporters, 85 CORNELL L. REV. 739, 740 (2000) (using the term "behavioral decision theory" (BDT) and explaining that BDT research has been used to identify "cognitive decision-making processes"). Among these processes, Rachlinski notes the use of mental heuristics, which "can be useful, but sometimes produce cognitive illusions that result in errors or biases in judgment." Id. An exception that may prove the rule is the engagement of behavioral law and economics with the emotion of regret, which stands at the core of the status quo bias.
19. See Russell Korobkin, Behavioral Economics, Contract Formation, and Contract Law, in BEHAVIORAL LAW AND ECONOMICS 116, 117 (Cass R. Sunstein ed., 2000) (arguing that the known status quo bias should be understood in light of people's efforts to avoid the emotion of regret, which they suspect may arise from attempting to change the status quo). Another exception is Cass Sunstein's work on fear.
20. See CASS R. SUNSTEIN, LAWS OF FEAR (2005). Jeremy Blumenthal, who contributes to both bodies of work and takes a special interest in the emotions, has recently underscored the gap between behavioral law and economics and the emotions. Interestingly, for purposes of our focus, Blumenthal shares the belief that legal interventions with the emotions present special difficulty.
21. See Blumenthal, supra note 4, at 5-6.
22. 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.
23. See Rachlinski, supra note 10, at 742 ("If [behavioral decision theory] is to have a future in the law, law professors must find it to be a useful tool to address meat-and-potatoes legal issues....").
24. See infra notes 44, 46-53 and accompanying text.
25. See infra notes 46, 60-62 and accompanying text.
26. See, e.g., Angela P. Harris & Marjorie M. Shultz, "A (nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 STAN. L. REV. 1773, 1774 (1993) ("[W]hen emotions are acknowledged and rigorously examined, they can serve as a guide to deepening intellectual inquiry....").
27. See, e.g., id. at 1775 ("Law schools operate at the junction of the academy and the legal profession. Both realms tend to polarize reason and emotion and to elevate reason. ").
28. In this Article, 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." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 21 (11th ed. 2003). This is not, of course, the only way one could define "affect."
29. See, e.g., Oatley et al., supra note 10, at 29 (defining "affective" as comprehending a larger domain including emotions, moods, and dispositions).
30. See Harris & Shultz, supra note 14, at 1776 (noting that Christopher Columbus Langdell, "the father of modern legal education", treated law as a science and legal reasoning as a deductive process).
31. See Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. CAL. L. REV. 1877, 1882-84 (1988) (arguing that judges have always valued impartiality and independence, even when sovereigns sought judicial favor).
32. See id. at 1885 ("If freed from having to engage personally with what occurs subsequent to their judgments, judges may be enabled to impose rulings that would otherwise be too painful to pronounce.").
33. Owen M. Fiss, Reason in All Its Splendor, 56 BROOK. L. REV. 789, 799 (1990) ("Often, but not always, our passions seem directed toward, or attached to, particulars....").
34. See Harris & Shultz, supra note 14, at 1774 ("[E]motions can never successfully be eliminated from any truly important intellectual undertaking, in the law or elsewhere.").
35. See generally id. (advocating for an acknowledgement of emotion in the law school setting). Other critiques of the law school classroom made similar methodological or epistemological points, but organized them as a critique of the gendering of the law school classroom, rather than as a critique of its impoverished rationality.
36. See, e.g., Catherine Weiss & Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1300 (1988) (noting differences in the ways in which men and women experience law school).
37. Harris & Shultz, supra note 14, at 1799.
38. See, e.g., id. at 1792 (discussing an example of a male student's use of an expletive during a law seminar in an exchange about reproductive decisionmaking and abortion).
39. See id. at 1786 ("[E]motions embody some of our most deeply rooted views about what has importance." (quoting MARTHA C. NUSSBAUM, LOVE'S KNOWLEDGE 42 (1990))).
40. Lynne Henderson, for example, discusses the empathic presentation of clients' claims and lives in the lawyers' briefs in cases such as Brown v. Board of Education, and Shapiro v. Thompson. See Lynne Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1596-607, 1612-17 (1987). Justice Brennan discusses the effect on his decisionmaking process of the appellees' brief in Goldberg v. Kelly.
41. See William J. Brennan, Jr., Reason, Passion, and "The Progress of the Law", 10 CARDOZO L. REV. 3, 21 (1988).
42. See, e.g., Fiss, supra note 20, at 790 ("Given its deliberative character, the judicial decision may be seen as the paragon of all rational decisions, especially public ones.").
43. Richard A. Posner, Emotion Versus Emotionalism in Law, in THE PASSIONS OF LAW 311 (Susan A. Bandes ed., 1999). Resisting the siren song of affect has been viewed as crucial because of emotion's inevitable intertwinement with particulars: judges, as Owen Fiss has argued, must eschew responses that draw them toward specific individuals or motivations, and resolve cases in a detached and impartial spirit, "on the basis of reasons accepted by the profession and the public."
44. Fiss, supra note 20, at 801.
45. 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, 76 CAL. L. REV. 465, 504 (1988) (book review) (arguing that "liberal" heirs to legal realism have "recreate[d] significant elements of formalist reasoning").
46. See generally MARY FIELD BELENKY et al., WOMEN'S WAYS OF KNOWING (1986) (demonstrating the incompleteness of the linear, hierarchical model of normative reasoning by highlighting contextual reasoning emphasizing social station in some subjects, particularly girls and women);
47. CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982).
48. See generally A MIND OF ONE'S OWN: FEMINIST ESSAYS ON REASON AND OBJECTIVITY (Louise M. Antony & Charlotte Witt eds., 1993);
49. FEMINISM AND METHODOLOGY: SOCIAL SCIENCE ISSUES (Sandra Harding ed., 1987);
50. SANDRA HARDING, WHOSE SCIENCE? WHOSE KNOWLEDGE?: THINKING FROM WOMEN'S LIVES (1991). These philosophers and historians of science mounted a broader challenge to objectivist epistemology, which highlighted the partiality even of ostensibly objectivist approaches, and emphasized the value of reasoning positionally, through so-called standpoint epistemologies.
51. See, e.g., Harding, supra, at 136-37 (discussing feminist standpoint theory).
52. 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, 79 CAL. L. REV. 971 (1991);
53. Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989);
54. William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994);
55. Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. MIAMI L. REV. 511 (1992).
56. These academic developments also coincided with broader currents, from the migration to American shores of the varied cultural challenges of postmodernism, see, e.g., JEAN-FRANĆOIS LYOTARD, THE POSTMODERN CONDITION: A REPORT ON KNOWLEDGE (Geoff Bennington & Brian Massumi trans., Univ. of Minn. Press 1984), to the surge of interest in those emotional aspects of "intelligence", which were poorly measured by traditional indices such as IQ tests.
57. See, e.g., Goleman, supra note 8.
58. See Brennan, supra note 26, at 20 ("Goldberg can be seen as injecting passion into a system whose abstract rationality had led it astray."). Other jurists, such as Wisconsin Supreme Court Justice Shirley Abrahamson, explained publicly that the particularity of their own experiences, with their attendant emotional resonances, had been a salutary factor in their decisionmaking. See Resnik, supra note 18, at 1928-29 ("All my life experiences-including being a woman-affect me and influence me...." (quoting Shirley S. Abrahamson, The Woman Has Robes: Four Questions, 14 GOLDEN GATE U. L. REV. 489, 492-94 (1984))).
59. See Henderson, supra note 26, at 1576 (arguing that empathy aids processes of legal justification and decisionmaking in ways that reason cannot).
60. See Resnik, supra note 18, at 1879 ("The tensions between stated expectations and practice lend an air of unreality to the articulated demands for impartiality.").
61. See Martha Minow & Elizabeth V. Spelman, Passion for Justice, 10 CARDOZO L. REV. 37, 45 (1988) (noting that institutions and sympathies of judges cannot be confined to categorizations of emotion or reason, but rather combine elements of both).
62. See Martha Minow, Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors, 33 WM. & MARY L. REV. 1201, 1201 (1992) [hereinafter Minow, Bias and Impartiality] (quoting Clarence Thomas during his Senate Judiciary Committee confirmation hearing, in claiming that he "stripped down like a runner" to prepare for the task of judging). The widespread skepticism about Clarence Thomas's claim may be viewed as evidence of this conclusion.
63. See, e.g., Martha Minow, The Supreme Court, 1986 Term, Foreword-Justice Engendered, 101 HARV. L. REV. 10, 36 & n. 120 (1987) [hereinafter Minow, Justice Engendered] (highlighting the author's view of objectivity and adjudication, without explicit reference to the emotions, but including an argument for an imaginative identification with "the other"). Minow's argument is also similar to what Lynne Henderson describes as "empathy."
64. See Henderson, supra note 26, at 1576.
65. See Minow & Spelman, supra note 36, at 56-59 (noting the insulation from consequences afforded to judges by not having to carry out orders made pursuant to their judicial power); Resnik, supra note 18, at 1922 (describing her Senate testimony criticizing Supreme Court nominee Robert Bork for remaining purposefully distant from facts relating to the concrete circumstances of litigants). These authors argue that a detached, objectivist stance enables judges to insulate themselves from moral intuitions or anxieties that might inform their decisionmaking process. On this point, Henderson, Minow, and Spelman point to a telling insight of Robert Cover's: for judges asked to enforce the fugitive slave law, a belief that legality required them to put aside individual moral qualms enabled many to enforce laws which they would have reviled, as a matter of private judgment.
66. See Henderson, supra note 26, at 1590-91
67. (citing ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975));
68. Minow & Spelman, supra note 36, at 48 (same).
69. Two of the most influential of these works, Passion for Justice, by Minow & Spelman, and On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, by Resnik, took their bearings explicitly from these judicial revelations. See Minow & Spelman, supra note 36; Resnik, supra note 18.
70. Minow & Spelman, supra note 36, at 37.
71. Legal academics-along with members of the public-came to recognize that judges had lives and commitments which inevitably exerted a torque on their decisionmaking. See Minow, Bias and Impartiality, supra note 37, at 1203 ("[W]e want... judges to have, and to remember, experiences that enable their empathy and evaluative judgments.").
72. Eric Posner's treatment of the emotions as temporary departures from rationality that erupt in the lives of human subjects, for example, reflects this position. See Eric A. Posner, Law and the Emotions, 89 Geo. L. J. 1977, 1979 (2001) ("Emotions are usually stimulated by the world, either via the mediation of cognition or through a more primitive stimulus-response-like neurological mechanism.").
73. See THE PASSIONS OF LAW 311 (Susan A. Bandes ed., 1999).
74. Susan A. Bandes, Introduction to THE PASSIONS OF LAW, supra note 43, at 1.
75. Id. at 7 ("The essays in this volume move beyond the debate about whether emotion belongs in the law, accepting that emotional content is inevitable. They focus on the important questions: how do we determine which emotions deserve the most weight in legal decision making and which emotions belong in which contexts?").
76. See id. ("The essays begin from the premise that law needs to incorporate the widely shared insights developed in other fields.").
77. See id. at 2 ("The law, as [the essays] illustrate, is imbued with emotion. Not just the obvious emotions like mercy and the desire for vengeance but disgust, romantic love, bitterness, uneasiness, fear, resentment, cowardice, vindictiveness, forgiveness, contempt, remorse, sympathy, hatred, spite, malice, shame, respect, moral fervor, and the passion for justice.").
78. See id. ("In the conventional story, emotion has a certain, narrowly defined place in law. It is assigned to the criminal courts.").
79. See id. (noting that emotions are most visible in criminal courts, especially when the death penalty is a possible outcome).
80. See, e.g., David A. Bright & Jane Goodman-Delahunty, Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making, 30 LAW & HUM. BEHAV. 183 (2006) (studying the ways in which gruesome photographic and verbal evidence influences juror verdicts).
81. See, e.g., Theodore Eisenberg et al., But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 CORNELL L. REV. 1599 (1998) (studying the role of remorse in capital sentencing);
82. Austin Sarat, The Cultural Life of Capital Punishment: Responsibility and Representation in Dead Man Walking and Last Dance, 11 YALE J. L. & HUMAN. 153, 161 (1999) (analyzing representations of the death penalty in film and the connections to legal subjectivity and the legitimacy of state killing).
83. Bandes, supra note 44, at 3 (noting the emotional nature of the initial legislative question of what to criminalize).
84. See, e.g., Dan M. Kahan, The Progressive Appropriation of Disgust, in THE PASSIONS OF LAW, supra note 43, at 63, 70-71 (citing a public official's statement expressing disgust for a particular offender and his crime, and describing public expressions of disgust as one of the functions of hate crime legislation).
85. See Bandes, supra note 44, at 7 (drawing on an interdisciplinary range of fields such as philosophy, classics, psychology, religion, ethics, and social thought, in addition to law).
86. See WILLIAM IAN MILLER, THE ANATOMY OF DISGUST (1997).
87. 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. See id. at 243-47.
88. See, e.g., id. at 17, 27, 29 (noting variations by culture of what constitutes disgust and citing authors such as Freud and Sartre).
89. See Martha C. Nussbaum, "The Secret Sewers of Vice": Disgust, Bodies, and the Law, in THE PASSIONS OF LAW, supra note 43, at 19, 23, 33-34 (discussing research by Paul Rozin on food and disgust as well as Walt Whitman's Song of Myself). Nussbaum also juxtaposed the resulting conception of disgust to philosophical accounts of anger and indignation to determine how each functioned as an expression of collective moral judgment. See id. at 26-28, 55.
90. See id. at 28 (discussing the listener's "musical experience" of the "cry of disgust" in the third movement of Mahler's second symphony).
91. See Dan M. Kahan, The Anatomy of Disgust in Criminal Law, 96 MICH. L. REV. 1621, 1631 (1998) ("The desire to separate [others such as sexual deviants or sadistic criminals] from the rest of us... motivates individuals to lash out against them in violence, and communities to punish them in appropriately severe and expressive ways.").
92. This normative legal work was previewed by work in philosophy, and elsewhere, which suggested that emotions could be produced, modified, channeled, or scripted by law, among other institutional and cultural forces. Robert Solomon argued, for example, that law could serve the salutary social function of cooling, rationalizing, and satisfying the powerful emotion of vengeance.
93. See Robert C. Solomon, Justice v. Vengeance: On Law and the Satisfaction of Emotion, in THE PASSIONS OF LAW, supra note 43, at 123, 131 ("If one purpose of law is to rationalize and satisfy the most powerful social passions, then vengeance must be considered first and foremost among them."). 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.
94. See Cheshire Calhoun, Making Up Emotional People: The Case of Romantic Love, in THE PASSIONS OF LAW, supra note 43, at 217, 218 ("The deep difference between homosexuality and heterosexuality is in part socially constructed by imputing to gays and lesbians a psychology that makes them incapable of romantic love....").
95. See generally MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE (1998) (examining legal recourse taken by societies after periods of mass violence).
96. See also Laurel Fletcher, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, 19 BERKELEY J. INT'L L. 428, 429 (2001) (reviewing Minow, supra) ("The dominant view among transitional justice scholars is that trials and truth commissions are state-sanctioned models to heal the wounds of mass violence.").
97. See Kathryn Abrams & Hila Keren, Law in the Cultivation of Hope, 95 CAL. L. REV. 319, 323 (2007) ("In some situations, particularly where despair has taken over, it may be impossible for people to conceive alternative futures for themselves, or see themselves as capable of creating such futures.... It may be necessary to cultivate hope through institutional interventions, including those secured by law.").
98. See Clare Huntington, Repairing Family Law, 57 DUKE L. J. 1245, 1246 (2008) (arguing that family law should anticipate and reflect the full range of human emotions);
99. Solangel Maldonado, Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce, 43 WAKE FOREST L. REV. 441, 441 (2008) (advocating for a conception of family law that "cultivate[s] forgiveness between divorcing parents").
100. See Abrams & Keren, supra note 63, at 363-77 (analyzing the affective impact of Head Start).
101. See Peter H. Huang, Emotional Impact Analysis in Financial Regulation: Going Beyond Cost-Benefit Analysis 6 (Temple Univ. Legal Studies Research, Paper No. 2006-21, 2006) [hereinafter Huang, Beyond Cost-Benefit Analysis], available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=870453 (discussing securities regulations and advocating for the use of Affective Cost-Benefit Analysis in regulation promulgation);
102. Peter H. Huang, Regulating Irrational Exuberance and Anxiety in Securities Markets, in THE LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR 501, 503 (Francesco Parisi & Vernon L. Smith eds., 2005) [hereinafter Huang, Regulating Irrational Exuberance] ("Most U. S. federal securities laws focus on the cognitive form and content of certain information. In contrast, many investors respond emotionally to both the form and content of information....").
103. See Calhoun, supra note 61, at 217, 218 (discussing romantic love in the context of same-sex marriage).
104. See Minow, Justice Engendered, supra note 37, at 14-24 (exploring the law's interaction with the contrasting emotions of vengeance and forgiveness);
105. see also Huntington, supra note 64, at 1300 (discussing forgiveness in family law);
106. Maldonado, supra note 64, at 441 (suggesting that cultivated forgiveness can reduce acrimony in family law).
107. See Abrams & Keren, supra note 63, at 344-77 (using case studies including litigation vindicating the rights of migrant workers and the establishment of the Head Start program to demonstrate that law has the potential to cultivate hope).
108. See Brennan, supra note 26, at 3 ("[J]udging could not properly be characterized as simply the application of pure reason to legal problems...."). Another interest-generating moment was the debate between Martha Nussbaum and Dan Kahan over the role of disgust in criminal law. Compare Nussbaum, supra note 58, at 19, 45 (arguing that disgust does not provide a prima facie case for legal regulation)
109. with Kahan, supra note 53, at 63 (arguing that in the law, disgust is "indispensible" in some situations). Yet this pattern may be attributable as much to the visibility of the principals as to the appeal of the innovation offered by the larger theory.
110. See Brown v. Bd. of Educ., 347 U. S. 483, 494 (1954) ("To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."). This pattern reflects a rejection among scholars, not only of the larger antisubordination theory within which this affective account is nested, but more specifically of an affective exploration of the phenomenon of group-based subordination.
111. But see Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N. Y. U. L. REV. 1003, 1007 (1986) (advocating for the adoption of anti-subordination as the dominant principal in equal protection disputes);
112. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 108 (1976) (arguing in favor of the group-disadvantaging principle rather than the more formalist antidiscrimination principle as the proper standard in equal protection cases).
113. See Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1279-308 (2000) (offering a highly nuanced behavioral analysis of adaptations of people of color in mainstream work settings which does not explicitly address emotional labor);
114. see also Tristin K. Green, Race and Sex in Organizing Work: "Diversity", Discrimination, and Integration, 59 EMORY L. J. (forthcoming 2010) (manuscript at 18-19, on file with authors) (noting the additional time expenditures required of women and people of color in supporting institutional commitments to diversity by employers). This emphasis may be different, however, in fields outside the law.
115. See, e.g., Sociologists Explore "Emotional Labor" of Black Professionals in the Workplace, WOMEN'S HEALTH WKLY., Aug. 21, 2008, at 504 (reporting the results of a sociological study which concluded that black professionals who attempt to conform to their white co-workers' expectations in the workplace tend to feel "isolated, alienated, and frustrated").
116. An interesting exception to this pattern, which dates back to the early years of law and emotions scholarship, may be found in certain examples of critical race feminism, which relate the experience of women of color in elite institutions, highlighting the often agonizing emotions that emerge in that context. See, e.g., Margaret Montoya, Mascaras, Trenzas, y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women's L. J. 185, 197-98 (1994) (describing the elaborate practice of "masking" that permits people of color to assimilate into elite educational institutions and referring to shame that infuses those moments when the mask "drops"). This work largely predates the interdisciplinary inquiry into particular emotions, and therefore, does not undertake that form of analytic labor; but it vividly describes the affective costs of assimilation.
117. See Kathryn Abrams, Barriers and Boundaries: Exploring Emotion in the Law of the Family, 16 VA. J. SOC. POL'Y & L. 301, 307 (2009) (quoting Melissa Murray as remarking, ironically, that scholars in a highly gendered field like family law who engage in affective discourse "might as well be sitting around braiding each other's hair"). Recently, however, a younger generation of family law scholars appears to be moving beyond this reservation.
118. See, e.g., Symposium, Family Law and Emotion, 16 VA. J. SOC. POL'Y & L. 301 (2009) (including articles by legal scholars Clare Huntington and Solangel Maldonado).
119. See Univ. of Chicago Law School, Fault in Contract Law, http://www.law.uchicago.edu/node/1277 (last visited Apr. 25, 2010) (announcing a conference sponsored by the University of Chicago Law School and the John M. Olin Center for Law and Economics at the University of Michigan, which brought together scholars working from a variety of disciplines and perspectives). According to its announcement, the conference included many "other views-some of which are strongly opposed to the economic approach", but which did not appear to include the law and emotions perspective. Id.
120. See Harvard Law School, At HLS, a Conference on the Free Market Mindset, http://www.law.harvard.edu/news/2009/03/17-free-market.html (last visited Apr. 25, 2010) (announcing a conference sponsored by Harvard Law School's Program on Law and Mind Science which included perspectives from behavioral economics and psychology, social psychology, and sociology, but which does not appear to have included any perspectives drawn from the study of emotions).
121. See, e.g., Margaret M. Blair & Lynn A. Stout, Trust, Trustworthiness, and the Behavioral Foundations of Corporate Law, 149 U. PA. L. REV. 1735, 1736 (2001) ("[T]he experimental evidence on trust sheds light on how corporate law works, by suggesting that judicial opinions in corporate cases influence corporate officers' and directors' behavior not only by altering their external incentives but also by changing their internalized preferences.");
122. see also Huang, Beyond Cost-Benefit Analysis, supra note 66, at 4 (advocating for the SEC to go beyond cost-benefit analysis, "to consider emotional impacts of regulations");
123. Peter H. Huang, How Do Securities Laws Influence Affect, Happiness and Trust, 3 J. BUS. & TECH. L. 257, 261-73 (2008) (analyzing the potential impacts of securities regulation on three important emotions and advocating for an "accounting, inclusion, measurement, and quantification" of such impacts);
124. Peter H. Huang, Trust, Guilt, and Securities Regulation, 151 U. PA. L. REV. 1059, 1075-88 (2003) (finding that securities regulations creating fiduciary relationships between broker-dealers and clients create an affective deterrent to breaching trust).
125. See infra notes 118-19 and accompanying text (discussing the work of Eva Illouz and Arlie Hochschild).
126. See Gonzales v. Carhart, 550 U. S. 124, 128-29 (2007) ("Whether to have an abortion requires a difficult and painful moral decision, which some women come to regret.") (citation omitted).
127. See Terry Maroney, Emotional Common Sense as Constitutional Law, 62 VAND. L. REV. 851, 853-54 (2009) ("The Carhart Court explicitly prefaces its comments by noting that it has 'no reliable data to measure the phenomenon' of post-abortion regret; instead, it presents its observations about women's emotional experiences as 'unexceptionable' and 'self-evident.'" (citing Carhart, 550 U. S. at 159)).
128. See Chris Guthrie, Carhart, Constitutional Rights, and the Psychology of Regret, 81 S. CAL. L. REV. 877, 903 (2008) ("[T]he bulk of the empirical evidence on the operation of regret... strongly suggests that most women fare quite well following abortion. For these reasons, the Court was wrong to invoke the prospect of postabortion regret in Carhart....").
129. Feminist constitutional scholars have, however, analyzed Carhart's threat to women's dignity or autonomy. See, e.g., Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L. J. 1694, 1701 (2008) ("[T]he gender-paternalist justification for restricting abortion [in Carhart] is in deep tension with the forms of decisional autonomy Casey protects."). Yet only those already engaged in work on the emotions have reflected on what appears to be a concerted effort-by advocates of woman-centered anti-abortion analysis, if not by the Court's majority-to script women's emotions in the area of abortion.
130. See, e.g., Kathryn Abrams, Tribute to Professor Melvyn R. Durchslag: Exploring the Affective Constitution, 59 CASE W. RES. L. REV. 571 (2009);
131. Clare Huntington, Family Law's Textures: Social Norms, Emotion, and the State, 59 EMORY L. REV. (forthcoming 2010).
132. A related pattern may be that of scholars doing law and emotions analysis yet not connecting their analysis with that body of work. See, e.g., Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 750 (2007) (providing an illuminating example of law and emotions scholarship, yet refraining from mentioning law and emotions as one of the bodies of work to which they see their article as contributing). In this work, the authors describe the various literatures to which they aim to contribute, including "tort law literature on hedonic damages", "the wider literature on adaptive preferences", and "behavioral realism", apparently overlooking the fact that their discussions of pity, happiness, and pleasure place them squarely within the ambit of law and emotions analysis. Id.
133. See Posner, supra note 42, at 1978 ("[P]eople's 'calm' preferences-that is, the preferences that they have when they are not emotionally aroused-differ from their 'emotion state' preferences, which are skewed toward the stimulus that provokes the emotion. ").
134. For a small slice of this capacious literature, see generally RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH AND HAPPINESS (2008);
135. Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471 (1998); (Pubitemid 128421723)
136. Jeffrey J. Rachlinski, Cognitive Errors, Individual Differences, and Paternalism, 73 U. CHI. L. REV. 207 (2006). For a lucid and lively review of behavioral law and economics with an eye to its prescriptive applications, see Amir & Lobel, supra note 5.
137. See Nussbaum, supra note 58, at 22 ("[T]he specific cognitive content of disgust makes it always of dubious reliability in social life, but especially in the life of the law.");
138. cf. Dan M. Kahan, Two Conceptions of Emotion in Risk Regulation, 156 U. PA. L. REV. 741, 749 (2008) (assessing varying conceptions of the relationship between reason and emotion and concluding that the empirical data could support either an "irrational weigher" or a "cultural evaluator" viewpoint).
139. See Neel P. Parekh, Theorizing Behavioral Law and Economics: A Defense of Evolutionary Analysis and the Law, 36 U. MICH. J. L. REFORM 209, 210 (2002) ("[Behavioral law and economics]'s empirical data show that in fact people often do not choose the path to the highest expected payoff." (emphasis added)).
140. See THALER & SUNSTEIN, supra note 84, at 3 (suggesting that the law should engage in "choice architecture", i.e., implementing legal measures that correct for human deviations from rationality).
141. See Gregory Mitchell, Tendencies Versus Boundaries: Levels of Generality in Behavioral Law and Economics, 56 VAND. L. REV. 1781, 1811 (2003). Such concerns emerge both from skepticism about the ability of legal measures to correct biases, given the limitations of the legal system, and from anxiety that normative efforts will put behavioral law and economics at risk of "becom[ing] a political movement rather than a scientific endeavor-and its lifespan will probably be quite short." See id.
142. See, e.g., Russel Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV. 1227, 1228-29 (2003) (describing the endowment effect, wherein a subject assigns an economic value to an object she already possesses that is higher than what she would be willing to pay for it were she to seek to purchase it in the market).
143. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 382 (1990) (discussing the "Economic man", a human subject who embodies the assumptions relied upon by classical economists);
144. cf. THALER & SUNSTEIN, supra note 84, at 6-8 (providing a particularly evocative comparison between the behavior of the average person and the behavior of an ideal type they describe as "Econ"). Thaler and Sunstein's goal is to use law to reduce the difference in behavior between the average person and Econ. See id. at 8.
145. The focus of normative behavioral law and economics work on behavior aims to vindicate the traditional vision of law as targeting assessable human activities; it therefore appears to be concerned with verifiable, objective indicia. However, a closer examination suggests that many of the proposed interventions in this literature are in fact efforts to influence the processes of decisionmaking of human subjects. As such, they have the character of intervening in processes that could readily be described as subjective and internal-and therefore more comparable to motives, thoughts, or emotions.
146. The "Law as Science" perception is usually attributed to Christopher Colombus Langdell. See Grant Gilmore, The Death of Contract 109 n. 22 (1974) ("'It was indispensable to establish at least two things; first that law is a science; secondly, that all the available materials of that science are contained in printed books.'" (quoting Christopher Columbus Langdell, Address at the Meeting of the Harvard Law School Association on the 250th Anniversary of the Founding of Harvard University (Nov. 5, 1886))). As one of the founding fathers of American jurisprudence, the admired Dean of Harvard Law School, and the author of the first modern case book, Langdell was highly influential in implementing the idea. For an analysis of the connection between this approach and the rejection of emotions in the context of contract law, see Hila Keren, Considering Affective Consideration, 40 GOLDEN GATE U. L. REV. (forthcoming 2010) (manuscript at 14-17, on file with authors).
147. See, e.g., Terry Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAME L. REV. 89, 101 (2009) (discussing the criminal responsibility of minors);
148. Peggy Sasso, Criminal Responsibility in the Age of "Mind Reading", 46 AM. CRIM. L. REV. 1191, 1193 (2009) (discussing the criminal responsibility of adults).
149. See, e.g., Stephen O'Hanlon, Towards a More Reasonable Approach to Free Will in Criminal Law, 7 CARDOZO PUB. L. POL'Y & ETHICS J. 395, 397 (2009) (discussing the free will dilemma).
150. See, e.g., Jane Campbell Moriarty, Visions of Deception: Neuroimages and the Search for Truth, 42 AKRON L. REV. 739, 758-61 (2009) (discussing the new technologies that arguably can detect deception and arguing against their immediate legal adaptation).
151. While the difference in the breadth of subjects can certainly be explained by the fact that this literature is still its formative stages, it may also be attributed to the fact that the most obvious legal use of the neurosciences stems from its technology, which appears to lend itself to legal procedures aimed at detecting the truth. However, there has been controversy, even within this emerging literature, about whether brain scans and other visual representations stemming from neuroscience technology represent any kind of "truth" readily accessible by the legal system.
152. See, e.g., Henry T. Greely, Law and the Revolution in Neuroscience: An Early Look at the Field, 42 AKRON L. REV. 687, 707 (2009) ("People studying the ethical, legal, and social implications of neuroscience have to walk a tightrope.... We must always worry about how well this technology works now, under what circumstances, for what kinds of people, with what degrees of accuracy and confidence, and how we know those answers."). There is also a related set of questions about whether triers of fact can accurately interpret and use brain scans and other neuroscientific images that may be entered into evidence. See infra notes 106-07 and accompanying text.
153. The work of Elisabeth Phelps is a prime example. See, e.g., Elizabeth A. Phelps et al., From Fear to Safety and Back: Reversal of Fear in the Human Brain, 28 J. NEUROSCIENCE 11, 517, 11, 517-25 (2008) (using brain scans to assess how the brain becomes conditioned to reacting with fear to certain stimuli);
154. Elizabeth A. Phelps & Tali Sharot, How (and Why) Emotion Enhances the Subjective Sense of Recollection, 17 CURRENT DIRECTIONS PSYCHOL. SCI. 147, 147-52 (2008) (arguing that emotional experiences may distort our subjective sense of the accuracy of our recollections). Interestingly, Phelps's bias research has been identified as having a possible connection to law. See Greely, supra note 95, at 698 ("Could a lawyer introduce an fMRI analysis of the defendant in an employment discrimination case to show bias? Could criminal defense counsel compel an fMRI examination of the arresting police officer on the basis of the defendant's assertion of bias? Will we allow, or even require, neuro-voir dire?").
155. But see Robert E. Emery, Anger Is Not Anger Is Not Anger: Different Motivations Behind Anger and Why They Matter for Family Law, 16 VA. J. SOC. POL'Y & L. 346, 347 (2009) (relying in part on neuroscience research to show that being emotionally hurt creates pain that is reflected by brain activity which is identical to that of physical pain and, like physical pain, may trigger anger);
156. Keren, supra note 92 (manuscript at 50-51) (discussing neuroimages which shed light on altruistic behavior that results from feelings of empathy).
157. Although it may be too early to judge, the comparatively modest interest of legal scholars in brain research that focuses on emotions may itself support our argument that mainstream legal scholars are skeptical about work engaging the emotions. Neuroscientists, as opposed to legal scholars, are showing growing interest in researching the emotions.
158. See, e.g., Joëlle Anne Moreno, The Future of Neuroimaged Lie Detection and the Law, 42 AKRON L. REV. 717, 725 (2009) ("[T]he science of cognitive neuroscience is far from clear.");
159. Moriarty, supra note 95, at 758-61 (arguing that researchers have not established the reliability of fMRI results to a threshold that would pass the evidentiary standards for admissibility in federal court). However, many legal works express high appreciation and even excitement about the potential of the neurosciences to change what we know about reality.
160. See Greely, supra note 95, at 689 (discussing the rapid development of the neurosciences and arguing that "knowing more about brains-and as a result being able to know more about minds and mental states-may fundamentally change, in important ways, the legal system of the United States and every other country in the world");
161. Robert Robinson, Daubert v. Merrell Dow Pharmaceuticals and the Local Construction of Reliability, 19 ALB. L. J. SCI. & TECH. 39, 41 (2009) ("Over the next few decades, it is conceivable that scientists will be able to 'see' the genesis of a thought.").
162. See David M. Eagleman, Neuroscience and the Law, 45 HOUS. LAW. 36, 38-40 (2008) (predicting eight points of intersection);
163. Greely, supra note 95, at 689 (suggesting five points of intersection).
164. Greely, supra note 95, at 699.
165. See Jane Campbell Moriarty, Foreword to the Neuroscience, Law and Government Symposium, 42 AkRON L. REV. 681, 681-82 (2009) (describing the September 2008 Neuroscience, Law and Government Symposium as a legal response to the rapidly growing body of research done by neuroscientists);
166. see also Annabelle Belcher & Walter Sinnott-Armstrong, Neurolaw, 1 WILEY INTERDISCIPLINARY REVIEWS: COGNITIVE SCI. 18, 18 (2010), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/123216877/PDFSTART (discussing the debate within law and neuroscience as to its meaning and uses).
167. For additional examples of how law and neuroscience works, see generally Owen Jones et al., Brain Imaging for Legal Thinkers: A Guide for the Perplexed, 2009 STAN. TECH. L. REV. 5;
168. Amanda C. Pustilnik, Violence on the Brain: A Critique of Neuroscience in Criminal Law, 44 WAKE FOREST L. REV. 183 (2009);
169. Symposium, Neuroscience, Law and Government, 42 AKRON L. REV. 681 (2009);
170. see also Maroney, supra note 93, at 100 n. 47 (citing some leading works).
171. See, e.g., Jeffrey Rosen, The Brain on the Stand, N. Y. TIMES, MAR. 11, 2007, (Magazine), at 49-53, 70, 77, 82, 84 (reporting on numerous legal battles involving the introduction of neuroscience evidence, and speculating about the implications).
172. The John D. and Catherine T. MacArthur Foundation has established the Law and Neuroscience Project, committing $10 million over the first three years, to bring together faculty participants in the fields of law, philosophy, psychology, and neuroscience from twenty-five universities across the country.
173. See The Law and Neuroscience Project, http://www. lawandneuroscienceproject.org (last visited Apr. 25, 2010). In addition, a number of prominent law schools, including Harvard, Stanford, and Vanderbilt, have established centers to support research at this intersection.
174. See The Project on Law and Mind Sciences at Harvard Law School, http://isites.harvard.edu/icb/icb.do?keyword=k13943&pageid=icb.page63708 (last visited Apr. 25, 2010) (Harvard);
175. The Center for Law and the Biosciences, http://www.law.stanford.edu/ program/centers/clb/#overview (last visited Apr. 25, 2010) (Stanford);
176. Law & Human Behavior Program, http://law.vanderbilt.edu/academics/ academic-programs/index.aspx (last visited Apr. 25, 2010) (Vanderbilt).
177. See Greg Miller, fMRI Evidence Used in Murder Sentencing, SCIENCEINSIDER, Nov. 23, 2009, http://news.sciencemag.org/scienceinsider/2009/11/fmri-evidence- u.html (reporting that defense lawyers for an Illinois man convicted of raping and killing a ten-year-old girl used the scans to argue that their client should be spared the death penalty because he has a brain disorder). In connection with the Law and Neuroscience Project, Professor Susan Wolf is currently working on a database that compiles reported criminal law cases from 1994 to 2009, which reference neuroscience evidence, testimony, or argument. See Susan Wolf, Presentation at Law and Neuroscience Project Meeting (Jan. 8, 2010) (on file with the authors). Professor Hank Greely is collecting information and documents about every California criminal case from 2006 through 2009 where neuroimaging evidence about the defendant was introduced, or sought to be introduced. E-mail from Hank Greely, Director, Center for Law and the Biosciences at Stanford University, to Kathryn Abrams, Professor, University of California at Berkeley School of Law (Mar. 10, 2010) (on file with authors).
178. See supra notes 17-18, 92 and accompanying text (describing the genesis of the concept of "law as a science").
179. Some research suggests, however, that legal actors may be inclined to accord findings based on such technology more probative value than they deserve, at least given the current state of technology. See, e.g., Teneille Brown & Emily Murphy, Through a Scanner Darkly: Using Functional Brain Imaging as Evidence of a Criminal Defendant's Past Mental State 56-72 (Feb. 12, 2009) (unpublished manuscript, on file with authors). In addition, some research suggests that people may defer to brain images over their own evaluation of facts and values in a courtroom setting.
180. See Anne Beaulieu, Images Are Not the (Only) Truth: Brain Mapping, Visual Knowledge, and Iconoclasm, 27 SCI. TECH. & HUM. VALUE 53, 73 (2002) (distinguishing the scientific purpose of fMRI images and how the public will interpret them);
181. Joseph Dumit, Objective Brains Prejudicial Images, 12 SCI. IN CONTEXT 173, 174 (1999) ("The persuasiveness of these images might be operating on levels supplementary to the logic of expert argumentation. And if this is the case, then a strong argument can be made for their visual exclusion from courtrooms.");
182. Adina L. Roskies, Are Neuroimages Like Photographs of the Brain?, 74 PHIL. SCI. 860, 861 (2007) ("It is imperative that the dangers inherent in naïve public consumption of brain images become widely recognized."). Factfinders may also accord more credit to statements by designated "experts" in trial-like situations, when those statements are accompanied by brain scan images. But preliminary findings in a research project undertaken by Michael Saks in conjunction with the Law and Neuroscience Project suggest that brain scan images may not have the biasing effect on jurors that other work has ascribed to them.
183. See Michael Saks, Professor of Law, Arizona State University, Presentation at the Law and Neuroscience Meeting (Jan. 8, 2010). A rich literature has, more generally, demonstrated the powerful effect of visual images on juror evaluation of evidence. See generally Bright & Goodman-Delahunty, supra note 50. For a thought-provoking discussion of the "visuality" of law
184. see generally Carol Sanger, Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. REV. 351 (2008).
185. Cf. Susan A. Bandes, Repellent Crimes and Rational Deliberation: Emotion and the Death Penalty, 33 VT. L. REV. 489, 492 (2009) ("[I]t has become much easier to talk about emotion itself now that cognitive neuroscience has begun to study it. Brain imaging has given the fuzzy concept of emotion a comforting materiality."). As we note above, however, the neuroscience work that examines the emotions has not been the focus of significant analysis among law and neuroscience scholars.
186. See supra note 97 and accompanying text.
187. See Rosen, supra note 102, at 49 ("To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn't functioning properly could be absolved of responsibility."). For a less breathless account of this challenge by a pair of leading neuroscientists
188. see Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 PHIL. TRANSACTIONS OF THE ROYAL SOC'Y B: BIO. SCI. 1775, 1784 (2004) ("Free will as we ordinarily understand it is an illusion generated by our cognitive architecture.").
189. But see Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 OHIO ST. J. CRIM. L. 397, 397 (2006) (labeling exaggerated claims about the moral and legal ramifications of neuroscience Brain Overclaim Syndrome).
190. In fact, increasing numbers of scholars may view themselves as participating in law and emotions analysis, as well as one of these neighboring fields. Legal scholars such as Jeremy Blumenthal, Peter Huang, Dan Kahan, and Terry Maroney might fit in this category.
191. See Carol Sanger, The Role and Reality of Emotions in Law, 8 WM. & MARY J. WOMEN & L. 107, 111 (2001) ("[A] convicted and guilty defendant can put on a great show of remorse and be rewarded for the display. All of the players now understand the 'proper' emotional response and each can act accordingly.");
192. Austin Sarat, Remorse, Responsibility, and Criminal Punishment, in THE PASSIONS OF LAW, supra note 43, at 168, 169 (noting skepticism about whether legal decisionmakers can distinguish feigned from genuine remorse).
193. See Melvin Aron Eisenberg, The World of Contract and the World of Gift, 85 CAL. L. REV. 821, 847 (1997) ("[M]uch of the world of gift is driven by affective considerations like love, affection, friendship, gratitude and comradeship. That world would be impoverished if it were to be collapsed into the world of contract.").
194. In contrast, it has been our observation that law and emotions scholars tend to take a broad or inclusive view of what counts as "law." One can see this tendency reflected in our discussion of "integration", where we discuss the variety of interventions that have been proposed or contemplated by legal scholars deploying this methodology. See infra Part III. C.
195. See, e.g., Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L. J. 2117, 2154-61 (1996) (analyzing Reconstruction-era cases in which courts declined to enforce criminal laws against abusive husbands on marital privacy grounds).
196. See, e.g., Jill Elaine Hasday, Intimacy and Economic Exchange, 119 HARV. L. REV. 491, 493, 499-507 (2006) (arguing that scholars on both sides of the normative debate over the extent of state regulation of economic exchanges between intimates underestimate how the state shapes such exchanges). For a critique of Hasday's analysis from a feminist perspective
197. see Hila Keren, Can Separate Be Equal? Intimate Economic Exchange and the Cost of Being Special, 119 HARV. L. REV. F. 19 (2005), http://www.harvardlaw review.org/issues/119/december05/forum-337.php.
198. See, e.g., Fiss, supra note 20, at 800;
199. Posner, supra note 28, at 324.
200. See supra Part I.
201. Sociology is not unique in its exploration of the ongoing social structuring of the emotions. See, e.g., Calhoun, supra note 61, at 220 (describing the ways in which the emotion of (romantic) love is philosophically scripted by practices from marriage laws to popular culture).
202. ARLIE RUSSELL HOCHSCHILD, THE MANAGED HEART: COMMERCIALIZATION OF HUMAN FEELING 137 (1983).
203. See EVA ILLOUZ, COLD INTIMACIES: THE MAKING OF EMOTIONAL CAPITALISM 4-5, 109 (2007);
204. cf. id. at 16 (observing that the intimate sphere has been penetrated and transformed by a rationalist mentality traditionally associated with the public areas of life and noting that "never has the private self been so publicly performed and harnessed to the discourses and values of the economic and political spheres").
205. See Susan A. Bandes, Group Conflict Resolution: Sources of Resistance to Reconciliation: Victims, "Closure", and the Sociology of Emotion, 72 LAW & CONTEMP. PROBS. 1, 11-13 (2009) (arguing that expressions of grief structured by the formal public setting of the courtroom may be experienced differently by families of murder victims than expressions of grief offered in private or therapeutic settings).
206. See Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. ILL. L. REV. 991, 1011 (discussing the concern for the "psychological" health of women seeking abortions).
207. See Gonzales v. Carhart, 550 U. S. 124, 159 (2007);
208. see also infra text accompanying notes 129-30.
209. See Siegel, supra note 121, at 999.
210. Id. at 1009 (describing this development for legal audiences and theorizing the factors that render it constitutionally problematic).
211. Operation Outcry, http://www.operationoutcry.org/pages.asp?pageid=27784 (last visited Apr. 25, 2010) ("Operation Outcry is the ministry of the Justice Foundation to end the pain of abortion by exposing the truth about its devastating impact on women, men and families.") The Justice Foundation offers pro bono legal support for conservative political litigation.
212. See The Justice Foundation, http://www.thejusticefoundation.org/pages. asp?pageid=22827 (last visited Apr. 25, 2010).
213. Contra A. Kero et al., Wellbeing and Mental Growth-Longterm Effects of Legal Abortion, 58 SOC. SCI. & MED. 2259, 2259-60 (2004) (citing a range of studies most of which found a prevalence of positive emotions, such as relief or a sense of responsibility, following abortion).
214. See Operation Outcry, supra note 125 (describing the use of evidence of the "tragic and harmful effects of abortion" in legal cases).
215. See, e.g., Siegel, supra note 121, at 1027 n. 150 (describing an informed consent statute in South Dakota supported by David Reardon that was submitted to the legislature, which was "[a]n Act to define the applicable standard of care in regard to screening of risk factors for all abortions except in the case of a medical emergency, to provide civil remedies, and to exempt medical emergencies from the requirements of this Act"). The Reardon bill was later tabled in favor of the ban statute.
216. See id. at 1024 n. 137.
217. Gonzales v. Carhart, 550 U. S. 124 (2007);
218. see also Brief of Sandra Cano et al. as Amici Curiae in Support of Petitioner, Carhart, 550 U. S. 124 (No. 05-380) [hereinafter Cano Brief] (using Operation Outcry narratives and similar woman-centered argumentation);
219. Posting of Jack Balkin to Balkinization, The Big News About Gonzales v. Carhart-It's the Informed Consent, Stupid, http://balkin. blogspot.com/2007/04/ big-news-about-gonzales-v-carhart.html (Apr. 19, 2007 14:50 EST) (referring to the constitutional prioritizing of postabortion regret as "the big news" about the case).
220. Carhart, 550 U. S. at 159
221. (citing Cano Brief, supra note 128, at 22-24).
222. See Planned Parenthood v. Casey, 505 U. S. 833, 971-76 (1992).
223. See Carhart, 550 U. S. at 181-83 (Ginsburg, J., dissenting) (observing that if legal actors were genuinely concerned about women's regret, they would try to enhance the informational grounding of women's choice, rather than depriving them of such choice).
224. Cf. Nancy E. Adler et al., Psychological Factors in Abortion: A Review, 47 AM. PSYCHOL. 1194, 1198 (1992) (noting that while women respond to abortion with mixed emotions, "relief and happiness" are the most frequently reported emotions);
225. Kero et al., supra note 125 (citing relief and a sense of responsibility as primary affective responses to abortion).
226. See Carhart, 550 U. S. at 159 ("Respect for human life finds an ultimate expression in the bond of love the mother has for her child."). The maternalism implicit in this quote can be better appreciated by reflecting on the fact that it is being offered in the context of a discussion of abortion, a setting in which the woman exercising her reproductive choice does not wish to become a mother, and may not consider the fetus she has chosen to abort to be "her child."
227. See, e.g., Bandes, supra note 44, at 14 ("The essays in this volume make it impossible to think of law as a solely cognitive, emotionless zone again. " (emphasis added)). This suggests some optimism that the tendency to dichotomize law and emotions has eroded.
228. See supra notes 9-10, 57 and accompanying text.
229. See supra notes 86-90 and accompanying text.
230. See supra Part II. B.2.
231. Cf. NUSSBAUM, supra note 25, at 3 (arguing that philosophic inquiry into ethical questions-how we should live our lives-stands to gain from the study of literature). Nussbaum maintains that literature offers a different way of illuminating and exploring conflicts of value: it emphasizes ethical insights gained from emotions, as well as the importance of particulars, uncontrolled happenings, and human relationships in aiding perception and shaping human affairs). Id. Nussbaum's claims about literature as a distinct way of apprehending the world and the normative choices it presents have important overlap with the claims that humanistic law and emotions scholars make for emotion: that it is not a diminished or defective form of rationality, but, on the contrary, that it is capable of supplementing rational insights with different modes of perception and understanding. Id. at 53.
232. Cf. Kenji Yoshino, The City and the Poet, 114 YALE L. J. 1835, 1839 (2005) (drawing from Plato's Republic, Phaedrus, and Laws for the two defenses of the poet's role in the city). Yoshino uses this "Platonic paradigm" to assess the suitability and contribution of certain examples of "law and literature" work to the body of legal scholarship.
233. Id. at 1859-60. The two possible defenses are "ineradicability" , that poetry inevitably reemerges in the city because it is indistinguishable from philosophy and other discourses appropriate to political life, and "virtue", that poetry "has the capacity to serve, rather than merely to subvert, the proper ends of the state."
234. Id. at 1839. This analysis has much to offer the discussion of law and emotions, because, as Yoshino points out, much of the discussion of the defects of poetry in relation to the city concerns the defects of emotion in relation to reason.
235. See id. at 1846-47, 1855-57.
236. See Amy Smith, Not "Waiving" but Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution, 17 B. U. PUB. INT. L. J. 237, 237 (2008).
237. Id.
238. Id. at 238.
239. Id.
240. See id. at 240 ("While some scholars have argued that death row phenomenon, as used in international law, has few or no implications for capital punishment within the United States, others have suggested that its existence may raise constitutional issues. Indeed, there is quite a bit of legal scholarship speculating on the appropriateness and likely success of claims based on 'death row phenomenon. '").
241. See, e.g., Jeremy A. Blumenthal, Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey, 83 WASH. L. REV. 1, 6 (2008) (discussing "fear appeals" in the abortion context).
242. 479 U. S. 538, 545 (1987) (O'Connor, J., concurring). 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).
243. Brown, 479 U. S. at 545 (second emphasis added).
244. See Keren, supra note 92 (manuscript at 3).
245. Guthrie, supra note 80, at 877.
246. See id. at 881.
247. See id.
248. See Huntington, supra note 64, at 1254.
249. See id.
250. See id.
251. See id. at 1260.
252. See id. at 1249.
253. See, e.g., Emery, supra note 97, at 347 (arguing that the insight that a single emotion, such as anger, can have different motivations and serve different goals in different contexts has important implications for family law).
254. Bagenstos & Schlanger, supra note 82, at 778-84 (arguing that by awarding hedonic damages courts are encouraging pity and distracting attention from societal choices that create disability).
255. Id.
256. Id.
257. Carol Sanger, Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law, 18 COLUM. J. GENDER & L. 409, 414 (2009) (describing a regulatory scheme that requires pregnant teenagers who want to obtain an abortion without getting their parents' consent to "convince a judge that they are sufficiently mature and informed to make the decision themselves").
258. Id. at 447.
259. Id.
260. Id. at 497.
261. Maldonado, supra note 64, at 444.
262. See id. at 459.
263. See id. at 479.
264. Id. at 492-95 (describing Healing Divorce Programs and their connection to forgiveness).
265. See Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361, 392 (1996). As Bandes explains: "[c]apital 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." (Pubitemid 126408716)
266. Id. at 390;
267. see also Paul Gewirtz, Victims and Voyeurs: Two Narrative Problems at the Criminal Trial, in LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW 135, 143 (Peter Brooks & Paul Gerwitz eds., 1996);
268. Yoshino, supra note 139, at 1883-84.
269. See Kahan, supra note 85, at 744 (exploring at length philosophical, psychological, behavioral, and cultural meanings of each of these theories).
270. Id. at 760.
271. Id. at 763.
272. Id.
273. See, e.g., Toni M. Massaro, Show (Some) Emotions, in THE PASSIONS OF LAW, supra note 43, at 80 (discussing the relationship between law, emotions, and the literature on social norms).
274. Cf. Posner, supra note 28 (reflecting on scholarship in which investigation was taken to be sufficient, with only passing attention given to the integration task that we see as crucial).
275. See, e.g., Harris & Shultz, supra note 14, at 1773 (writing about legal pedagogy and focusing on the damage that can be produced by the ways "[c]lassical legal education celebrates reason and devalues emotion" by failing to draw upon research pertaining to the emotions that may be relevant to their discussion).
276. Id. at 1786;
277. see also Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 277-78 (1996) (making a similar general point about the cognitive component of the emotions).
278. Bandes, supra note 44, at 14.
279. See Smith, supra note 140, at 252-53.
280. In Professor Smith's case, for example, legal and philosophical work about hope, hopelessness, and despair, in the death penalty context and elsewhere, might have provided a useful foundation.
281. See Smith, supra note 140, at 252-53.
282. See Bagenstos & Schlanger, supra note 82, at 781-88.
283. See Bandes, supra note 44, at 3 (explaining "the need to treat each emotion contextually").
284. 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, supra note 43, at 265-84.
285. MILLER, supra note 55.
286. See Kahan, supra note 60, at 1631. Kahan explains: My aim, however, is not to determine whether Miller gets it right about disgust. Rather, it is to see whether Miller's account supplies a useful remedy for the inattention to disgust in criminal law theory. And for that purpose, it is neither necessary nor sufficient that his account be true in some abstract philosophical sense. The law has its own distinctive purposes and needs. If it doesn't suit these, even an admittedly true account of disgust would be irrelevant or possibly even pernicious. By the same token, the law might be justified in accepting the guidance of an admittedly false account if it could nonetheless be shown to be useful. (first, third, and fourth emphases added);
287. see also Maldonado, supra note 64, at 479-85 (applying Murphy and Hampton's research on forgiveness to the legal context of divorce
288. (citing JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY (1988))).
289. Kahan & Nussbaum, supra note 177, at 277-78.
290. ANTONIO R. DAMASIO, DESCARTES' ERROR xv (1994).
291. Id.
292. See, e.g., NUSSBAUM, supra note 25, at 40;
293. ANDREW ORTNOY, THE COGNITIVE STRUCTURE OF EMOTIONS 1 (1988);
294. Richard Lazarus, Universal Antecedents of the Emotions, in THE NATURE OF EMOTION 163 (Paul Ekman & Richard J. Davidson eds., 1994) (arguing that emotions consist of "motivational, cognitive and coping activities that orient... creatures selectively to relevant features of their environments").
295. See Nussbaum, supra note 58, at 22-25.
296. Jonathan Haidt, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 PSYCHOL. REV. 814, 815 (2001) (explaining how cognition works on two tracks, one that functions instantaneously and intuitively, and another that proceeds through conscious, temporally sustained, logical operations).
297. See OATLEY ET AL., supra note 10, at 24 (describing research undertaken by Alice Isen and her colleagues).
298. Bandes, supra note 44, at 2.
299. Huntington, supra note 64, at 1254-66.
300. Id. at 1245-46 (identifying the role of love, hate, and guilt in intimate relationships within the context of family law).
301. We classify this argument as belonging to the illumination dimension.
302. Huntington, supra note 64, at 1247.
303. Id. at 1260-74 (investigating the dynamic cycle of emotions in the intimate setting as it is described by different scholars in various disciplines).
304. Keren, supra note 92 (manuscript at 3-9);
305. see also Eisenberg, supra note 111, at 849. According to Keren: The world of gift is a world of our better selves in which affective values like love, friendship, affection, gratitude, and comradeship are the prime motivating forces. These values are too important to be enforced by law and would be undermined if the enforcement of simple, affective donative promises were to be mandated by the law.
306. Batson's empathy-altruism hypothesis is a frequently cited explanation for the direct causational connection between emotion and the readiness to help others.
307. See C. DANIEL BATSON, THE ALTRUISM QUESTION (1991) (reviewing the altruism literature and suggesting the empathy-altruism hypothesis).
308. JOSEPH LEDOUX, THE EMOTIONAL BRAIN: THE MYSTERIOUS UNDERPINNINGS OF EMOTIONAL LIFE 105-06 (1996) (emphasis added).
309. Bandes, supra note 44, at 2.
310. See, e.g., Huntington, supra note 64, at 1254-66 (exploring love, hate, and guilt); Calhoun, supra note 61, at 217-40 (exploring romantic love); Abrams & Keren, supra note 63, at 361-71 (exploring the role of law in cultivating hope).
311. 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's work on "closure" in the context of the death penalty.
312. See Bandes, supra note 120. The goal of seeking "closure" for families of victims of murder or mass violence has become an important factor in shaping the penalty phase of capital trials for those defendants charged with the crimes.
313. Id. at 1-4. Bandes draws extensively on psychological and sociological literature to demonstrate that "closure" is not in fact an emotion, id. at 25-26, and the kinds of feelings toward which advocates of "closure" (i.e., victims' rights organizations) aim are not predictably facilitated by expedients-such as victim impact statements or the witnessing by victims' families of defendants' executions-that have been endorsed as means of bringing them about.
314. Id. at 16-26.
315. On the dilemma facing legal scholars who must address complex multidisciplinary research into the emotions
316. see Massaro, supra note 174, at 83-89.
317. JEROME KAGAN, WHAT IS EMOTION? xi (2007) (explaining about his book-writing process that "[b]ecause emotions are an active domain of inquiry, the completion of each chapter resembled the removal of fallen leaves from a vast lawn on a windy day in October"). As the emotions have become active domains of inquiry in many fields, legal scholars who do ongoing work in this area must stay abreast of a rapidly changing base of knowledge.
318. See Bandes, supra note 44, at 7.
319. RICHARD S. LAZARUS, EMOTION AND ADAPTATION 287-88 (1991) (observing the overlap and the need to clarify the confusion among sympathy, empathy, pity, and compassion).
320. Bandes, supra note 120, at 18-25.
321. Id. at 4-8.
322. Id. at 16-25.
323. Guthrie, supra note 80, at 882-902.
324. See id. at 898-902 (documenting regret aversion and regret learning).
325. For example, some studies demonstrate that young children cannot experience regret, because they have difficulties retrieving the past and relating it to the present. Most likely because this otherwise important information regarding regret was remote from the context of adult decisions about abortion, Guthrie did not include it in his law and emotions analysis.
326. Compare id., with KAGAN, supra note 206, at 30 (documenting children's difficulty in experiencing regret).
327. See, e.g., THALER & SUNSTEIN, supra note 84;
328. Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291 (2003);
329. Kahan & Nussbaum, supra note 177;
330. Jolls et al., supra note 84.
331. See David J. Arkush, Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory, 2008 BYU L. REV. 1275, 1365.
332. See Blumenthal, supra note 4, at 36-38 (discussing the crucial role of the emotions in the context of spousal notification laws).
333. Keren, supra note 92 (manuscript at 80-81).
334. In a fascinating forthcoming article, Clare Huntington undertakes an inquiry that has some intersection with the one we pursue here. Huntington, supra note 81. Huntington is interested in the relation between emotions, social norms, and the law, and in particular she is interested in the way that the state, when it undertakes "norm entrepreneurship"-the process of fostering or redirecting social norms-acts through the emotions. Several of the relations between law and emotions that we describe below occur in the context of norm generation, or have the effect of fostering or shifting social norms: particularly the relations of expression and scripting. Also, we suspect that some of the inadvertent legal effects on emotions may occur in contexts where the primary goal is some form of norm generation. However, while we find Huntington's project to be highly valuable and illuminating, our focus is different-one could say both narrower and broader-in that we are interested in the variety of ways in which law engages the emotions: this means that we will examine contexts in which norm generation is not at issue or is more incidental (say, in the management or destruction of emotion, and in some contexts of redirection or cultivation), and that in contexts in which norm generation may also be occurring, our focus will be trained more specifically on emotional effects.
335. 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, supra note 53, at 63, 69-73. The law's expression of disgust toward perpetrators of hate crimes is designed not only to articulate what Kahan views as a morally sound response, but to encourage a response of disgust for the perpetrators of hate crimes (and correspondingly a diminution of such crimes) in the population subject to this type of articulated prohibition. Id.
336. Some legal expression of emotion may be inadvertent, or may proceed differently than anticipated.
337. See Bandes, supra note 169, at 395-98 (arguing that victim impact statements, aimed at allowing victims to express grief or loss following from the violent death of a loved one, actually enable victims to express vengeance or disgust toward the perpetrators). 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.
338. Blumenthal, supra note 145, at 27-38.
339. Id. at 20-26.
340. Id. at 36-38.
341. Bandes, supra note 169, at 392-93.
342. 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 304-06 and accompanying text.
343. See, e.g., Christine Jolls et al., A Behavioral Approach to Law and Economics, in BEHAVIORAL LAW AND ECONOMICS, supra note 10, at 14 (arguing that describing the differences between homo economicus and "real people" is the main task of behavioral law and economics, and adding that the differences can be described "by stressing three important 'bounds' on human behavior, bounds that draw into question the central ideas of utility maximization, stable preferences, rational expectations, and optimal processing of information").
344. Id. at 32-46.
345. SUNSTEIN, supra note 10, at 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
346. see William Ian Miller, Fear, Weak Legs, and Running Away: A Soldier's Story, in THE PASSIONS OF LAW, supra note 43, at 241, 241-64.
347. Audio tape: Interviews from Monterey Death Penalty Conference (Feb. 2007) (on file with authors).
348. C. Lee Harrington, A Community Divided: Defense Attorneys and the Ethics of Death Row Volunteering, 25 LAW & SOC. INQUIRY 849, 850-54 (2000).
349. See Charles N. W. Keckler, Life v. Death: Who Should Capital Punishment Marginally Deter?, 2 J. L. ECON. & POL'Y 51, 95 (2006).
350. Cf. Jeffrey L. Kirchmeier, The Undiscovered Country: Execution Competency and Contemplating Death, 98 KY. L. J. 263, 263 (2009-2010) (noting that a large number of death row inmates have mental difficulties that may be aggravated by the contemplation of an impending death).
351. See Solomon, supra note 61, at 131-37.
352. See MINOW, supra note 62, at 52-90.
353. See Calhoun, supra note 61, at 217-20.
354. Id. at 220-22.
355. 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 id. at 217-22.
356. Id. at 223-25. An interesting question in this respect may be whether legalizing gay marriages may enable gays and lesbians to satisfy the originally heterosexual script. If so, it may offer an affective basis for efforts to bring about legal reform.
357. See id. at 236 (arguing that allowing same-sex marriage may impose a threat on "the institution" of marriage). However, this change would still produce a category of emotional outlaws: those gays and lesbians (and perhaps those heterosexuals) who do not follow culturally prescribed patterns for romantic love-i.e., serial monogamists, the polyamorous, and others who do not want to live in long-term, committed, monogamous couplings.
358. See Tucker Culbertson & Jack Jackson, Proper Objects, Different Subjects and Juridical Horizons in Radical Legal Critique, in FEMINIST AND QUEER THEORY: INTIMATE ENCOUNTERS, UNCOMFORTABLE CONVERSATIONS 135-40 (Martha Albertson Fineman et al. eds., 2009).
359. Gonzales v. Carhart, 550 U. S. 124, 159 (2007).
360. Id. Legal scripting can run the gamut from completely intended to largely incidental. The example of scripting Calhoun offers is implicitly acknowledged or understood by those legal actors taking part in it, even where it may not be the primary or explicit goal of legal action. See Calhoun, supra note 61, at 234-36. Most people would acknowledge that pro-life advocates who focus on women's guilt or regret aim to induce a particular affective response in a woman contemplating abortion, though opinion might be more divided among members of the Carhart Court.
361. See Guthrie, supra note 80, at 877-82.
362. However, scripting can also be nonpurposive or incidental. One recent controversy about nonpurposive scripting concerns the legal doctrine of sexual harassment. There has been a longstanding debate about whether dominance feminism, and the sexual harassment doctrine it has helped to create, generate scripts for women that cast them as diffident, emotionally vulnerable-and thereby marginal-denizens of the workplace.
363. Compare KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM ON CAMPUS 85-113 (1993) (suggesting that political correctness on campus has resulted in the label "sexual harassment" becoming overinclusive)
364. with Kathryn Abrams, Songs of Innocence and Experience: Dominance Feminism in the University, 103 YALE L. J. 1533, 1534 (1994) (reviewing Roiphe, supra) (suggesting that Roiphe's subtext is "that sexualized oppression is mainly a problem inside women's heads"). It seems unlikely that this was a goal of those who formulated the doctrine. More recently, some feminists and queer theorists have argued that sexual harassment doctrine has scripted not only the subordination of sexuality, but all forms of sexual desire out of the workplace, casting those who exercise sexual desire at work in any way-be it subordinating or mutually enjoyable-as emotional outlaws.
365. See Vicki Schultz, The Sanitized Workplace, 112 YALE L. J. 2061, 2063-72 (2003);
366. see also Janet Halley, Sexuality Harassment, in LEFT LEGALISM/LEFT CRITIQUE 80, 80-104 (Wendy Brown & Janet Halley eds., 2002). Halley's argument draws on poststructural social theories which bracket the question of the intentionality of decisionmakers; thus, she might not endorse the continuum of purposiveness or intentionality we advance here. Id.
367. Peter Drahos, Trading in Public Hope, 592 ANNALS AM. ACAD. POL. & SOC. SCI. 18, 24-30 (2004).
368. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of 20, 25, and 42 U. S. C.).
369. Cf. Anita F. Hill, A History of Hollow Promises: How Choice Jurisprudence Fails to Achieve Educational Equality, 12 MICH. J. RACE & L. 107, 137-40 (2006) (describing the expectations associated with the Act).
370. See MINOW, supra note 62, at 52-90.
371. See Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 HUM. RTS. Q. 573, 597-601 (2002).
372. Abrams & Keren, supra note 63.
373. Id. at 345-71.
374. Maldonado, supra note 64, at 492-94.
375. For a timeline of restrictive legislation affecting Jews in the first years of Hitler's dictatorship, see United States Holocaust Museum, Examples of Antisemitic Legislation, 1933-1939, http://www.ushmm.org/wlc/article.php?lang= en&ModuleId=10007459 (last visited Apr. 25, 2010).
376. See also Nuremberg Laws on Citizenship and Race, September 15, 1935, http://frank.mtsu.edu/~ baustin/nurmlaw2.html (last visited Apr. 25, 2010).
377. Id. 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. The letter describes "the position of the German Jewry [as] intolerable"; yet it also avows that "[t]he Orthodox Jewry is unwilling to abandon the conviction that it is not the aim of the German Government to destroy the German Jews." It states that if the Government was "willing to maintain moral Jewry", the community would "not demand of the Government overnight the cancellation of all the regulations affecting Jews", as the community did "not wish to create difficulties for the national government." 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 59-63 (Yitzhak Arad et al. eds., 1981) [hereinafter Orthodox Community Memorandum]. Although this posture of extreme deference may be a product of the authoritarian structure of German society at the time, it may also reflect the abjection and sense of powerlessness produced in the Jewish community by the regulations. We thank Deb Wood for this reference, and this insight.
378. 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 (noting that posting of Magen David symbols on all Jewish businesses was "intended as a brand, a sign of contempt" and exhorting Jews to resist it by displaying the symbols with pride).
379. See also Orthodox Community Memorandum, supra note 250, at 59-63 ("[T]he position of the German Jewry must be perceived as altogether desperate by the most objective of observers the world over."). Recent legal efforts to enact shamebased 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.
380. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 632-33 (1996).
381. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 4-7 (2007).
382. See id. at 75.
383. See id. at 260-61.
384. See Bagenstos & Schlanger, supra note 82, at 748-52.
385. Chris Guthrie's recent article on regret in the context of abortion seems to ascribe this goal to the Court in Carhart.
386. See Guthrie, supra note 80, at 877 (citing Judge Kennedy's reasoning: "While we find 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. Severe depression and loss of esteem can follow."). 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.
387. Robin Toner, Abortion Foes See Validation for New Tactic, N. Y. TIMES, May 22, 2007, at A1 (describing a conservative foundation's attempt to document over 2000 women's accounts of post-abortion regret). We see it is as possible that a specific legal strategy could have more than one relation to, or effect on, particular emotions.
388. Interview with Lis Semel & Ty Alper, Univ. of Cal. Berkeley School of Law Death Penalty Clinic, in Berkeley, Cal. (Nov. 16, 2006) (on file with authors).
389. Smith, supra note 140, at 238.
390. Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G, 38 BUFF. L. REV. 1, 32 (1990).
391. See supra notes 242-43.
392. See Schultz, supra note 240, at 2079-84.
393. See Gonzales v. Carhart, 550 U. S. 124, 132-33 (2007).
394. See supra notes 128-31 and accompanying text.
395. See Solomon, supra note 61, at 127-31.
396. See Kahan, supra note 251, at 605-30.
397. See Abrams & Keren, supra note 63, at 363.
398. This ordering moves from the narrowest and most concrete kinds of legal proposals to the most global or ambitious.
399. E.g., Keren, supra note 114, at 25-27.
400. E.g., Blumenthal, supra note 145, at 1; Guthrie, supra note 80, at 882.
401. See Huang, Beyond Cost-Benefit Analysis, supra note 66, at 6;
402. Huang, Regulating Irrational Exuberance, supra note 66, at 518.
403. E.g., Bagenstos & Schlanger, supra note 82, at 774.
404. See Keren, supra note 92 (manuscript at 12-13).
405. Chris Guthrie argues, similarly, that the Court's decision in Carhart is based on a misunderstanding of the focal emotion of regret.
406. Guthrie, supra note 80, at 877. Regret is, in fact, better avoided, rationalized, and learned from than the Court appears to believe, rendering it a minimal danger to women contemplating reproductive choices.
407. Id. at 881-82. Thus, as Guthrie argues, the flawed reasoning of Carhart should not be extended, either to other abortion contexts, or to other constitutional contexts implicating choice in the exercise of protected rights. Id. at 882. Additionally, Sam Bagenstos and Margo Schlanger argue that the award of hedonic damages in tort cases involving disability misapprehends the affective experience of the recently disabled: most experience a substantial return of their subjective well-being as they adjust to their disabilities.
408. Bagenstos & Schlanger, supra note 82, at 774-75. This revised affective understanding supports the elimination of hedonic damages in the context of tort cases involving the disabled.
409. Id.
410. See Blumenthal, supra note 145, at 11-12.
411. Terry A. Maroney, Emotional Competence, "Rational Understanding", and the Criminal Defendant, 43 AM. CRIM. L. REV. 1375, 1376 (2006).
412. Id. at 1400-25.
413. Id. at 1425-33. In Dusky v. United States, 362 U. S. 402, 402 (1960) (per curiam), 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." Id.
414. Maroney, supra note 275, at 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. These tools can identify competence-affecting emotional disorders stemming from two kinds of problems: depression and related mood-altering psychological conditions and "Gage matrix" disorder stemming from organic brain damage in the area of the frontal cortex.
415. Id. at 1425-31.
416. SUNSTEIN, supra note 10, at 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."
417. THALER & SUNSTEIN, supra note 84, at 81. This architecture involves, for example, selecting defaults that maximize those choices that the government sees as rational or as maximizing citizens' well-being. Id.
418. Kahan, supra note 85, at 749-53.
419. Id. at 750
420. (citing MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS 19 (2001)).
421. Id. at 748-52.
422. Id. at 764-65. According to Kahan: Historically, the view that emotions are "judgments of value" has also been affiliated with the position that emotions can be educated. The type of instruction this approach contemplates, however, consists not in a stoic program of disciplining the mind and strengthening the will to resist the supposedly corrupting influence of emotion on judgment. Instead, it has involved a species of moral instruction that reforms a person's emotional apprehension of the social meanings that unjust or destructive states of affairs and courses of action express.
423. (citing Nussbaum, supra note 281, at 218-20, 233, 425-33).
424. But see Peter Huang, Diverse Conceptions of Emotions in Risk Regulation, 156 U. PA. L. REV. PENNUMBRA 435, 437 (2008), http://www.pennumbra.com/ responses/response.php?rid=40.
425. Doni Gewirtzman, Our Founding Feelings: Emotion, Commitment, and Imagination in Constitutional Culture, 43 U. RICH. L. REV. 623, 625-26 (2009).
426. Id. at 635-44.
427. Id. at 632-35.
428. Id. at 670.
429. Id. at 679-81.
430. See Douglas A. Berman & Stephanos Bibas, Engaging Capital Emotions, 102 N. W. U. L. REV. COLLOQUY 355, 360-61 (2008), http://www.law.northwestern. edu/lawreview/colloquy/2008/17/LRColl2008n17Berman&Bibas.pdf.
431. See, e.g., Kahan, supra note 53, at 70;
432. Nussbaum, supra note 58, at 19.
433. Kahan's "cultural theory of risk perception" is not exclusively an emotional theory. He argues that people assess risks not as rational actors, but as individuals with a particular cultural orientation, which embodies a specific set of moral values and societal aspirations.
434. See Kahan & Braman, supra note 214, at 1294-95. This cultural view of risk is not modified by empirical evidence; rather, one's cultural orientation determines what risks, and what empirical evidence regarding risks, one takes as salient.
435. Id. at 1295-99. However, emotions are directly implicated in the theory because they provide the perceptual cues to what one values; that is, they aid in one's perception of the elements of her cultural orientation.
436. See Kahan, supra note 85, at 744-48. We consider Kahan's theory to be closer to a law and emotions theory than behavioral law and economics because its goal is not to correct decisionmaking behavior so that it more closely resembles that of the rational actor. Rather, it is to transform our understanding of motivation and decisionmaking in a way that makes central those dimensions of self-understanding and choice that reflect a role for affect, and are not readily comprehended by assumptions of rationality.
437. Kahan and Braman rely, for example, on paradigmatic cultural orientations, such as authoritarian, egalitarian, or individualist.
438. See Kahan & Braman, supra note 214, at 1297.
439. Id. at 1324 ("No amount of econometrics or cost-benefit analysis can tell us how to respond to these risk appraisals; only a frank and open discussion of the competing worldviews that sponsor them can. ").
440. Id. at 1318. Kahan and Braman's argument does not revolve around a simple opposition between emotion and rationality: the current, flawed version of the gun-control debate features both unhelpful empirical rationality, and pointless affective mudslinging. 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.
441. Id.
442. Fletcher & Weinstein, supra note 245, at 617-35.
443. Abrams & Keren, supra note 63, at 320-22.
444. Id. at 344-60.
445. Maldonado, supra note 64, at 483.
446. Id.
447. Huntington, supra note 64, at 1303-04.
448. Id. at 1305.
449. Id. at 1304-05. In an even more ambitious work, Huntington argues that a notion of "family flourishing", drawn from the emerging field of positive psychology, should become the metric for assessing a range of contending family law policies.
450. See Clare Huntington, Happy Families? Translating Positive Psychology into Family Law, 16 VA. J. SOC. POL'Y & L. 385, 401 (2009).
451. Another reservation, which Clare Huntington explores, is that such normative initiatives are drawn from interdisciplinary work that is largely descriptive in its focus.
452. See Huntington, supra note 64, at 1258. This appears to be more of an internal critique, raised by those working within the law and emotions field to clarify their enterprise, rather than an external critique, offered to problematize the normative dimension of the project. Huntington tries to answer this critique, suggesting that certain means of deploying such work-for example using the notion of flourishing derived from positive psychology as a metric for assessing broad visions and specific policies within the field of family law-mitigates this problem, at least to some degree.
453. See Huntington, supra note 302, at 387. This appears to be so because this kind of approach uses a (positive) descriptive theory as a standard, rather than translating it into specific normative programs when it is, in and of itself, normatively indeterminate.
454. Richard A. Posner, Rational Choice, Behavioral Economics, and the Law, 50 STAN. L. REV. 1551, 1560-61 (1998).
455. Mitchell, supra note 88, at 1811. Mitchell's arguments presented a challenge to the movement and induced a debate. For a reply to Mitchell
456. see Robert A. Prentice, Chicago Man, K-T Man, and the Future of Behavioral Law and Economics, 56 VAND. L. REV. 1663, 1670 (2003) (arguing that the behavioral law and economics movement "retains great potential to add valuable insights to legal scholarship, despite Mitchell's withering attack" on the movement). Interestingly, Mitchell himself has recently published a coauthored article in which the behavioral law and economics analysis is selfdefined as containing both descriptive and normative arguments.
457. See Adam J. Hirsch & Gregory Mitchell, Law and Proximity, 2008 U. ILL. L. REV. 557, 559.
458. Prentice later wrote about the unenforceability of gratuitous promises in contract law. See Robert A. Prentice, "Law " Gratuitous Promises, 2007 U. ILL. L. REV. 881. He concluded by saying about behavioral law and economics (BLE): "Although BLE analysis makes a very forceful case that the traditional arguments, even as enhanced by economic understanding, cannot justify treating gratuitous promises differently from bargained-for promises, BLE ultimately does not justify overturning the common law's time-honored conclusion that gift promises should not be enforced."
459. Id. at 937.
460. See supra notes 295-306 and accompanying text.
461. See supra note 6 and accompanying text.
462. See supra notes 87-89 and accompanying text.
463. See Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175, 1178 (1997) (arguing against libertarian antipaternalism);
464. see also Blumenthal, supra note 4, at 56.
465. See Kahan, supra note 85, at 774;
466. Nussbaum, supra note 58, at 26.
467. See supra notes 117-20 and accompanying text.
468. See generally Bandes, supra note 120, at 17-22 (describing the effect that the failure to embrace the role of emotion in the law has had on the capital system).
469. Clare Huntington makes the point with respect to state-based norm entrepreneurship that proceeds via the emotions.
470. See Huntington, supra note 81 (manuscript at 40).
471. Sanger, supra note 110, at 111.
472. Sarat, supra note 51, at 159-63.
473. See Rachel F. Moran, The Politics of Discretion: Federal Intervention in Bilingual Education, 76 CAL. L. REV. 1249, 1331-51 (1988). We are grateful to Rachel Moran for bringing this issue to our attention.