Emotional regulation and judicial behavior

California Law Review

Volumn 99, Issue 6, 2011, Pages 1485-1555

  Maroney, Terry A ^a  

^a VANDERBILT UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 80051489141     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (245)

1. State v. Hutchinson, 271 A.2d 641, 644 (Md. 1970).
2. Andrew Malcom, Sotomayor Hearings: The Complete Transcript, Part 1, TOP OF THE TICKET, (July 14, 2009, 9:57 AM), http://latimesblogs.latimes.com/ washington/2009/07/sonia-sotomayor-hearing-transcript.html.
3. See, e.g., In re Duckman, 898 A.2d 734(2006) (describing how trial judge admitted being very angry at lawyer who refused order to consult with client before withdrawing plea).
4. See, e.g., Kennedy v. Louisiana, 128 S. Ct 2641, 2646(2008) (reciting horrifying medical evidence of effects of child rape).
5. * 4 (Cal. Ct. App. Mar. 19, 2002) ("It's sad [that the defendant] started out very young and God knows there was nobody there to tell him right from wrong... [I]t's sad and it makes the court sad.....").
6. Carrington v. United States, 503 F.3d 888, 899 (9th Cir. 2007) (Pregerson, J., dissenting) ("[S]ometimes... [t]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn't know what to do about it, and it makes him feel sad... Sometimes he even gets angry about it")
7. (quoting Gerry Spence, Of Murder and Madness: A TRUE Story 490(1983)) (first alteration and last omission in the original).
8. Adam Liptak, No Argument: Thomas Keeps Five-Year Silence, N. Y. TIMES, Feb. 13, 2011, at A1 (quoting Thomas as saying, "I tend to be morose sometimes.... There are some cases that will drive you to your knees.");
9. see also Benjamin Weiser, Judge Recalls Rationale for Imposing 150-Year Sentence, N. Y. TIMES, June 28, 2011, at A1 (describing interview with Judge Denny Chin, in which he reported being "particularly moved" by story of a widow whose late husband's savings, along with her own, were stolen by Bernard Madoff in massive Ponzi scheme).
10. See, e.g., JAMES L. NOLAN, REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 99-104(2001);
11. Deborah Chase & Peggy Fulton Hora, The Best Seat in the House: The Court Assignment and Judicial Satisfaction, 47 FAM. CT. REV. 209(2009).
12. See, e.g., Interview by Susan Swain, C-SPAN, with the Hon. Antonin Scalia (June 19, 2009), available at http://supremecourt.c-span.org/assets/pdf/ AScalia.pdf (transcribing interview in which Justice Scalia describes how he does not enjoy writing but enjoys "having written," and finds it "more fun" to write dissents).
13. Unites States v. Ballard, 322 U. S. 78, 93-94(1944) (Jackson, J., dissenting) (attaching that description to "dispassionate judges").
14. Terry A. Maroney, The Persistent Cultural Script of Judicial Dispassion, 99 CALIF. L. REV. 629, 630(2011) (defining "judicial dispassion" synonymously with "emotionless judging"); see also id. at 636 & n. 27 (showing how the twin meanings of dispassion, "emotionless and impartial," came to be linked).
15. THOMAS HOBBES, LEVIATHAN 203 (A. R. Waller ed., Cambridge Univ. Press 1904) (1651)
16. quoted in Dan Simon, A Psychological Model of Judicial Decision Making, 30 RUTGERS L. J., 1, 40(1998).
17. Karl Georg Wurzel, METHODS OF JURIDICAL THINKING (1904), translated in SCIENCE OF LEGAL METHOD: SELECTED ESSAYS 298 (Ernest Bruncken & Layton B. Register eds., 1917) ("[A]bsence of emotion is a prerequisite of all scientific thinking," including judging); see also Maroney, supra note 11, at 635 (explaining how Wurzel's vision cohered with the Langdellian concept of "law as science").
18. Maroney, supra note 11, at 634-36 (citing, inter alia, JAMES MADISON, THE FEDERALIST NO. 49, at 317 (Clinton Rossiter, ed., 1961) ("It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.");
19. see also Kathryn Abrams & Hila Keren, Who's Afraid of Law and the Emotions?, 94 MINN. L. REV. 1997, 2005(2010) (describing judges' "paradigmatic status," which has been understood to require "the separation of legal reason from emotion").
20. Maroney, supra note 11, at 657-58 (citing William J. Brennan, Jr., Reason, Passion, and "The Progress of Law," 10 CARDOZO L. REV. 3(1988)).
21. Maroney, supra note 11, at 636-40. One senator declared that judicial emotion puts "nothing less than our liberty" at stake; id. at 638 & n. 34 (quoting Senator Orrin Hatch). Numerous political stakeholders and commentators insisted that it tends in the direction of subjectivity and irrationality; see id. at 637-39; see also id. at 631 & n. 5 (citing commentator who in 2010 characterized accusation of empathic judging as "radioactive"); Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B. U. L. REV. 1049, 1065(2006) [hereinafter Posner, The Role of the Judge] (asserting that a judge would be criticized if he were to explain a decision in terms of his emotions).
22. Handbook of Emotion Regulation, at xi-xiv & fig. P.l (James J. Gross ed., 2007) (noting that academic citations to "emotion regulation" have increased dramatically since 1991);
23. Sander L. Koole, The Psychology of Emotion Regulation: An Integrative Review, 23 COGNITION & EMOTION 4, 5(2009) ("[O]ne of the most vibrant areas in contemporary psychology").
24. James J. Gross, Antecedent-and Response-Focused Emotion Regulation: Divergent Consequences for Experience, Expression, and Physiology, 74 J. PERSONALITY & SOC. PSYCHOL. 224(1998) [hereinafter Gross, Antecedent-and Response-Focused];
25. see also Iris B. Mauss et al., Culture and Automatic Emotion Regulation, in REGULATING EMOTIONS 39, 40 (Marie Vandekerckhove et al. eds., 2008) (defining emotion regulation as "deliberate or automatic changes in any aspect of the emotional response, including the eliciting situation, attention, appraisals, subjective experience, behavior, or physiology").
26. James J. Gross & Ross A. Thompson, Emotion Regulation: Conceptual Foundations, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 3, 7-8;
27. Daniel Goleman's bestselling Emotional Intelligence: Why It Can Matter More than IQ has spawned an industry devoted to cultivating "EQ." See generally DANIEL GOLEMAN, http://www.danielgoleman. info (last visited Sept. 16, 2011). The concept also has gained traction in academic psychology.
28. See also PSYCHOLOGY OF EMOTION: INTERPERSONAL, EXPERIENTIAL, AND COGNITIVE APPROACHES 162 (Paula M. Niedenthal et al. eds., 2006);
29. Nicola S. Schutte et al., Antecedent-Focused Emotion Regulation, Response Modulation and Weil-Being, 28 CURRENT PSYCHOL. 21, 23(2009)
30. ("emotional intelligence" includes "managing emotion in the self) (citing John D. Mayer et al., Emotional Intelligence: Theory, Findings, and Implications, 15 PSYCHOL. INQUIRY 197(2004)).
31. All psychological studies, of course, should be applied to law with care. The external validity of most relevant research, including in emotion regulation, is not fully certain, as many (but not all) such studies take place in laboratories and as virtually none have used judges as subjects. See Frederick Schauer, Is There a Psychology of Judging?, in THE PSYCHOLOGY OF JUDICIAL DECISION MAKING 103 (David Klein & Gregory Mitchell eds., 2010). Further, emotion-regulation research historically has focused on so-called "negative" emotions, such as fear, disgust, and anger, and regulation of so-called "positive" emotions (such as happiness) is less well understood.
32. See James J. Gross, Emotion Regulation: Past, Present, Future, 13 COGNITION & EMOTION 551(1999). The model herein explicated proceeds with these caveats firmly in mind, seeking to apply to law lessons as to which there is a relatively strong scientific consensus.
33. Renata M. Heilman et al., Emotion Regulation and Decision Making Under Risk and Uncertainty, 10 EMOTION 257(2010) (discussing empirical evidence that "different regulation strategies could have different decision implications").
34. See David Klein, Introduction, in PSYCHOLOGY OF JUDICIAL DECISION MAKING, supra note 31, at xv (noting absence of attention to role of emotion, despite its promise as "an important area of inquiry for students of judges").
35. W. Kip Viscusi, How Do Judges Think About Risk?, AM. L. & ECON. REV. 26, 36(1999).
36. John C. Anderson et al., Evaluation of Auditor Decisions: Hindsight Bias and the Expectation Gap, 14 J. ECON. PSYCHOL. 711(1993);
37. Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777(2001);
38. Marianne M. Jennings et al., Outcome Foreseeability and Its Effects on Judicial Decisions (unpublished manuscript). Judges' damage awards in hypothetical cases are concretely influenced by anchoring their thoughts to an irrelevant dollar amount. See Guthrie et al., supra, at 787-94;
39. see also Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571(1998). Their faulty risk assessments also cause personal injury damage awards to deviate from cost-benefit models. See Viscusi, supra note 37, at 26. (Pubitemid 128443620)
40. Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feeling 7(1983).
41. Id. at 153 (arguing that professionals "supervise their own emotional labor by considering informal professional norms and client expectations"); id. at 52-53 (stating that the "art" of emotional labor is passed "from judge to law clerk, professor to graduate student, boss to rising subordinate"); id. at App. C; see also Sharyn Roach Anleu & Kathy Mack, Magistrates' Everyday Work and Emotional Labour, 32 J. L. & SOC'Y 590, 614(2005) (asserting that judges' emotional labor also is monitored by the public and lawyers, and sometimes by higher courts);
42. Alicia A. Grandey, Emotional Regulation in the Workplace: A New Way to Conceptualize Emotional Labor, 5 J. OCCUPATIONAL HEALTH PSYCHOL. 95(2000).
43. Vanda L. Zammuner & Cristina Galli, The Relationship with Patients: "Emotional Labor" and Its Correlates in Hospital Employees, in EMOTIONS IN ORGANIZATIONAL BEHAVIOR 251, 254 (Charmine E. J. Härtel et al. eds., 2005).
44. *36 (Ohio Ct. App. Jul. 22, 2009) (Delaney, J., concurring) ("I am saddened by the tragic loss of life this case presents and sympathize with the families of all involved. But, when I put on the robe as judge, I must not let my feelings, my emotions,... influence my review and application of the law."); Commonwealth v. White, 910 A.2d 648, 658 (Pa. 2006) (reporting statement by trial judge that he must set aside the fact that a juvenile defendant's "life circumstances make my heart weep").
45. Heather Conway & John Stannard, The Honours of Hades: Death, Emotion, and the Law of Burial Disputes (2010) (unpublished manuscript) (citing a variety of such cases in Ireland, England, and Australia); see also Berman Swartz, Comment, Properly-Nature of Rights in Dead Bodies-Right of Burial, 12 S. CAL. L. REV. 435, 436(1939) ("Judges beneath the juridical robes react more or less as do average citizens.... We are here concerned with a field of law wherein human emotions, sentiment and a feeling of morality are more apt to play an important part.....").
46. Irving J. Kaufinan, The Anatomy of Decisionmaking, 53 FORDHAM L. REV. 1, 16(1984).
47. Richard A. Posner, FRONTIERS OF LEGAL THEORY 245(2001); see also Maroney, supra note 11, at 659-61
48. (discussing Posner's account of judicial emotion in, inter alia, RICHARD A. Posner, How Judges Think (2008) [hereinafter Posner, How Judges Think] and Frontiers of Legal Theory); Posner, How Judges Think, supra, at 119 ("[P]erhaps few judges are fully inoculated against the siren song of an emotionally compelling case."); id. at 106 ("The character of an emotional reaction, at once gripping and inarticulable, does not make emotion always an illegitimate or even a bad ground for a judicial decision. ").
49. United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993).
50. Chief Judge Kozinski discussed this case, though with less attention to its emotional aspects, in Alex Kozinski, Teetering on the High Wire, 68 U. COLO. L. REV. 1217(1997).
51. See California v. Brown, 479 U. S. 538, 542-43(1987) (approving of "anti-sympathy instruction");
52. Saffle v. Parks, 494 U. S. 484, 493(1990) (same).
53. See FED. R. EVID. 403(1999).
54. See Carey v. Musladin, 549 U. S. 70, 76(2006) (noting that lower courts have "diverged widely" in treatment of emotional displays in the courtroom, but declining to establish any standards);
55. see also Terry A. Maroney, Emotional Common Sense as Constitutional Law, 62 VAND. L. REV. 851(2009).
56. See Mary Lay Schuster & Amy Propen, Degrees of Emotion: Judicial Responses to Victim Impact Statements, 6 LAW, CULTURE & HUMAN. 75(2010).
57. Robert C. Solomon, Philosophy of Emotions, in HANDBOOK OF EMOTIONS 3, 3 (Michael Lewis et al. eds., 3d ed. 2008).
58. Maroney, supra note 11, at 676 (describing that explosion and consequent availability of a new emotional epistemology); Terry A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field, 30 LAW & HUM. BEHAV. 119(2006) (noting substantial uptick in research on emotion, and analyzing its relation to legal theory);
59. see generally THE OXFORD COMPANION TO EMOTION AND THE AFFECTIVE SCIENCES (David Sander & Klaus R. Scherer eds., 2009) (compiling much contemporary emotion theory from various disciplines).
60. Marie Vandekerckhove et al., Regulating Emotions: Culture, Social Necessity, and Biological Inheritance, in REGULATING EMOTIONS, supra note 25, at 1, 1 ("Research on emotions in the past 20 years has increasingly portrayed emotions as highly functional phenomena of crucial evolutionary significance and biological grounding-in individual as well as in social and cultural terms.");
61. Arvid Kappas, Psssst! Dr. Jekyll and Mr. Hyde are Actually the Same Person! A Tale of Regulation and Emotion, in REGVLATING EMOTIONS, supra note 25, at 15, 18.
62. Robert W. Levenson, Human Emotion: A Functional View, in THE NATURE OF Emotion: Fundamental Questions 123, 125 (Paul Ekman & Richard J. Davidson eds., 1994); see generally Maroney, supra note 11 (explicating contemporary view of emotion).
63. See Jennifer S. Beer & Michael V. Lombardo, Insights into Emotion Regulation from Neuropsychology, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 69 ("free expression is [not] always adaptive");
64. That traction is particularly strong in legal culture. Kathryn Abrams, The Progress of Passion, 100 MICH. L. REV. 1602, 1602(2002) (book review of THE PASSIONS OF LAW (Susan A. Bandes ed., 1999)) (noting that the "dichotomy between reason and the passions," like "an abandoned fortress... casts a long shadow over the domain of legal thought").
65. See, e.g., Tanja Wranik et al., Intelligent Emotion Regulation: Is Knowledge Power?, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 393-407, 393 (invoking popular conceptions of "emotional intelligence," including ability to recognize and manage emotion in light of context and goals). Artistotle, too, said as much: [F]ear and... anger and pity... may be felt both too much and too little, and in both cases not well; but to feel them at the right times, with reference to the right objects, towards the right people, with the right motive, and in the right way, is what is both intermediate and best, and this is a characteristic of virtue.
66. James R. Averill, Anger and Aggression: an Essay on Emotion (1982)
67. (quoting Aristotle, Nicomachean Ethics 1106b20, in the Basic Works of Aristotle 958 (R. McKeon ed., 1941)).
68. Beer & Lombardo, supra note 102, at 69; see also John A. Bargh & Lawrence E. Williams, The Nonconscious Regulation of Emotion, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 429, 434 ("[I]f we were seemingly not concerned over a threat to the community or group, these would signal that our goals are not the same as the others', and this would threaten our standing within our group. ").
69. Maya Tamir et al., Business or Pleasure? Utilitarian Versus Hedonic Considerations in Emotion Regulation, 7 EMOTION 546, 546(2007).
70. PSYCHOLOGY OF EMOTION, supra note 29, at 157-58.
71. PSYCHOLOGY OF EMOTION, supra note 29, at 158.
72. Richard J. Davidson et al., Neural Bases of Emotion Regulation in Nonhuman Primates and Humans, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 47, 47;
73. see also DANIEL M. Wegner, white Bears and Other Unwanted Thoughts: Suppression, Obsession, and the Psychology of Mental Control 122-24(1989).
74. Gross, supra note 31, at 551-73 (arguing that emotional regulation can resolve conflicts between emotional and cognitive judgments, as in moral problems requiring choice between utilitarian and nonutilitarian outcomes; ultimatum games; and intertemporal choice); Samuel M. McClure et al., Conflict Monitoring in Cognition-Emotion Competition, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 204, 204-05 (offering, as a stylized example, TV character Jack Bauer's conflict between saving from terrorists either one person to whom he is emotionally tied or millions of unknown persons).
75. See Susan D. Calkins & Ashley Hill, Caregiver Influences on Emerging Emotion Regulation: Biological and Environmental Transactions in Early Development, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 229.
76. Batja Mesquita & Dustin Albert, The Cultural Regulation of Emotions, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 486, 487 (suggesting that cultural norms commonly are dichotomized into feeling rules-what one is supposed to feel-and display rules-what emotion one is supposed to communicate, and how).
77. Gross & Thompson, supra note 26, at 10. Another common emotion regulation strategy is to alter one's subjective and physical state through use of drugs and alcohol. Josh M. Cisler et al., Emotion Regulation and the Anxiety Disorders: An Integrative Review, 32 J. PSYCHOPATHOLOGY & BEHAV. ASSESSMENT 68, 75(2010). Because this tactic is so obviously off-limits to judges when in their professional role, this Article does not discuss it.
78. There is no single agreed-upon taxonomy of regulation strategies. Koole, supra note 24, at 11-12. The binary categorization proposed herein is useful because it groups together individual strategies that proceed from a similar set of metacognitions and motivations. Cf. George Loewenstein, Affect Regulation and Affective Forecasting, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 180-203, 181 (suggesting two categories, "those that involve altering one's appraisal of a situation, and those that involve distraction or suppressing of thoughts or feelings");
79. Brian Parkinson & Peter Totterdell, Classifying Affect-Regulation Strategies, 13 COGNITION & EMOTION 277(1999) (adopting approach/avoid distinction).
80. Gross & Thompson, supra note 26, at 13; Gal Sheppes & Nachshon Meiran, Divergent Cognitive Costs for Online Forms of Reappraisal and Distraction, 8 EMOTION 870, 871(2008); Loewenstein, supra note 126, at 190.
81. See Gross & Thompson, supra note 26, at 14. Anticipatory suppression is here distinguished from Gross's concept of reappraisal, discussed in the following Section. Barnaby D. Dunn et al., The Consequences of Effortful Emotion Regulation When Processing Distressing Material: A Comparison of Suppression and Acceptance, 47 BEHAV. RES. & THERAPY 761, 764 n. 2(2009) (classifying antecedent commitment to nonemotionality as a form of emotion suppression).
82. William Shakespeare, Macbeth act 1, sc. 7.
83. See, e.g., Mauss et al., supra note 25, at 40-41 (defining denial as cognitive disengagement); Phillip R. Shaver & Mario Mikulincer, Adult Attachment Strategies and the Regulation of Emotion, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 446-65, 452 (characterizing denial as one way to keep emotional systems "deactivated").
84. See Wranik et al., supra note 104, at 397 ("[F]ear/anxiety is thought to be associated with evaluating the situation as threatening; sadness with helplessness in an undesirable situation where there is little or no hope of improvement; anger with blaming someone else for an undesirable situation; and guilt with blaming oneself."); Richard S. Lazarus, Universal Antecedents of the Emotions, in THE NATURE OF EMOTION: FUNDAMENTAL QUESTIONS, supra note 101, at 163, 164 (asserting that all emotions can be reduced to such "core relational themes").
85. Nico H. Frijda et al., The Influence of Emotions on Beliefs, in EMOTIONS AND BELIEFS: HOW FEELINGS INFLUENCE THOUGHTS 1, 1 (Nico H. Frijda et al. eds., 2000) (explaining that under cognitive appraisal theory emotions "result from how the individual believes the world to be, how events are believed to have come about, and what implications events are thought to have"); Koole, supra note 24, at 13.
86. See PSYCHOLOGY OF EMOTION, supra note 29, at 169-70.
87. see also PSYCHOLOGY OF EMOTION, supra note 29, at 163, 169 (giving further examples);
88. Oliver P. John & James J. Gross, Individual Differences in Emotion Regulation, in HANDBOOK OF Emotion Regulation, supra note 24, at 351, 353 (presenting evidence that people report trying to control their emotions by changing the way they think about the emotion-provoking situation).
89. Bernard Rimé, Interpersonal Emotion Regulation, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 467.
90. see also Expressive Writing with Feedback, THE ONLINE RESEARCH CONSORTIUM, http://www.utpsyc.org/Write (last visited Sept 16, 2011) (setting forth experimental "expressive writing" project in the laboratory of James Pennebaker, University of Texas-Austin Department of Psychology).
91. Richard Chambers et al., Mindful Emotion Regulation: An Integrative Review, 29 Clinical Psychol. Rev. 560(2009).
92. Chambers et al., supra note 152, at 561. More recently, mindfulness is being conceptualized as a tool for helping children focus and regulate emotion. See Mindful Schools, www.mindfulschools.org (last visited Sept. 14, 2011);
93. Susan Greenland, The Mindful Child: How to Help Your Kid Manage Stress and Become Happier, Kinder, and More Compassionate (2010).
94. See, e.g., U. MICH. Emotion & SELF-CONTROL Lab., http:///selfcontrol. psych.lsa.umich.edu (last visited Sept. 14, 2011) (exploring differences between adaptive and maladaptive iterations of regulatory strategies). For example, distraction can be highly adaptive in a situation where disturbing stimuli cannot otherwise be avoided and where exposure could cause serious trauma. Consider this dialogue from the biographical movie The Blind Side: Leigh Anne: I swore I'd never ask but... how'd you make it out of there, Michael? Michael: When I was little, and something awful was happening, my Mama would tell me to close my eyes. She was trying to keep me from seeing her do drugs or other bad things. And she'd say, "Keep 'em closed till I say so." And then when she was finished or the bad things were over, she'd say, "now when I count to three, you open your eyes and the past is gone, the world is a good place, and it's all gonna be ok." Leigh Anne: You closed your eyes.
95. John Lee Hancock, The Blind Side 125 (Green Rev., Apr. 28, 2009) (script). Such a strategy would, however, become maladaptive for the adult such a child becomes, if that adult finds that the only way he can manage difficult situations is to close his eyes. Similarly, while specifically attending to the specifics of an emotional experience can be highly adaptive, see infra Part III, it can become counterproductive if it hardens into obsessive rumination.
96. See Susan Nolen-Hoeksema et al., Rethinking Rumination, 3 PERSP. ON PSYCHOL. SCI. 400-24(2008).
97. Nancy Eisenberg et al., Effortful Control and Its Socioemotional Consequences, in Handbook of Emotion Regulation, supra note 24, at 287-306, 290 ("[W]ell-regulated people... respond flexibly to the varying demands of experience");
98. James J. Gross, Emotion Regulation: Affective, Cognitive, and Social Consequences, 39 PSYCHOPHYSIOLOGY 281, 289(2002) [hereinafter Gross, Emotion Regulation] (warning of dangers of "inflexibly" and invariably seeking to override emotion).
99. See Laura Campbell-Sills & David H. Barlow, Incorporating Emotion Regulation into Conceptualizations and Treatments of Anxiety and Mood Disorders, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 542, 543 ("[M]any clinical features of anxiety and mood disorders may be considered as maladaptive attempts to regulate unwanted emotions").
100. Corey Kilgannon & Liz Robbins, Flight Attendant Had Long Imagined Escaping Down Chute, N. Y. TIMES: CITY ROOM (Aug. 11, 2010, 4:43 PM), http://cityroom.blogs.nytimes.com/2010/08/1 l/flight-attendant-had-long- imagined-escaping-down-chute-2 (bringing together news reports and video footage related to Slater incident).
101. These costs may be called either decision costs (referring to the harmful impact of emotion regulation strategies on judges' decision making, not to the costs of making decisions) or error costs. See, e.g., ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 166-68(2006).
102. Jane M. Richards & James J. Gross, Emotion Regulation and Memory: The Cognitive Costs of Keeping One's Cool, 79 J. PERSONALITY & SOC. PSYCHOL. 410, 416(2000).
103. See, e.g., Heilman et al., supra note 35, at 258 ("[R]ecent studies offer evidence that the acute use of reappraisal effectively decreases physiological arousal") (citing M. R. Delgado et al., Regulating the Expectation of Reward via Cognitive Strategies, 11 NATURE NEUROSCIENCE 880-81(2008)).
104. Gross, Antecedent-and Response-Focused, supra note 25, at 224 (presenting evidence that strategy decreases emotion experience and behavioral expression with no impact on memory); Gross, Emotion Regulation, supra note 158, at 281; Loewenstein, supra note 126, at 183-84;
105. Jane M. Richards, The Cognitive Consequences of Concealing Feelings, 13 CURRENT DIRECTIONS PSYCHOL. SCI. 131(2004) ("[C]hanging how we think about an event to neutralize its emotional impact[] leaves cognitive functioning intact").
106. PSYCHOLOGY OF EMOTION, supra note 29, at 169
107. (describing R. S. Lazarus & E. Alfert, Short-Circuiting of Threat by Experimentally Altering Cognitive Appraisal, 69 J. ABNORMAL & SOC. PSYCHOL. 195-205(1964)).
108. See Loewenstein, supra note 126, at 184 (discussing Walter Mischel & Nancy Baker, Cognitive Appraisals and Transformations in Delay Behavior, 31 J. PERSONALITY & SOC. PSYCHOL. 419(1975));
109. see also Walter Mischel & Ozlem Ayduk, Willpower in a Cognitive-Affective Processing System: The Dynamics of Delay of Gratification, in HANDBOOK OF SELF-REGULATION 99-129 (Kathleen D. Vohs & Roy F. Baumeistereds eds., 2004); McClure et al., supra note 119, at 212-14.
110. Allen C. Smith III & Sheryll Kleinman, Managing Emotions in Medical School: Students' Contact with the Living and the Dead, 52 SOC. PSYCHOL. Q. 56, 59(1989).
111. HOCHSCHILD, supra note 43, at 49-50.
112. HOCHSCHILD, supra note 43, at 49-51; Smith & Kleinman, supra note 195, at 60, 62 ("[A]natomical and procedural details become personally insignificant but academically significant," and students come to experience "the excitement of practicing 'real medicine,' the satisfaction of learning, and the pride of living up to medical ideals.").
113. Thanks to Chris Guthrie and Phoebe Ellsworth, as well as to faculty members at the Louisiana State University Law Center, for confirming their agreement with this instinct. Cf. Martha C. Nussbaum, Emotion in the Language of Judging, 70 ST. JOHN'S L. REV. 23, 24-25(1996).
114. Randy Cohen, When Med Students Post Patient Pictures, N. Y. TIMES MAG., Feb. 13, 2011, at 21.
115. A search for programs offered by the Federal Judicial Center and the National Center for State Courts revealed no judicial training on emotion; nor does either organization offer any publications on the topic. See NAT'L CENTER FOR STATE COURTS, http://www.ncsc.org (last visited Sept 16, 2011);
116. Fed. JUD. CENTER, http://www.fjc.gov (last visited Sept. 16, 2011). Recent discussions with emotion-research colleagues in Western Europe suggest that this gap may be less pronounced there, where national systems for judicial selection tend to incorporate training beyond law school to a degree unmatched in the United States. This represents a promising site for future research.
117. See generally Jason M. Satterfield & Ellen Hughes, Emotional Skills Training for Medical Students: A Systematic Review, 41 MED. EDUC. 935(2007) (explaining that medical education has paid inadequate attention to development of emotional awareness and skills, and reviewing evidence that such skills can be trained);
118. Daisy Grewal & Heather A. Davidson, Emotional Intelligence and Graduate Medical Education, 300 J. AM. MED. ASS'N 1200, 1200-02(2008) (proposing that medical training would benefit from deliberate inclusion of emotional intelligence training).
119. Myrle Croasdale, Students Lose Empathy for Patients During Medical School, AM. MED. NEWS (Mar. 24/31, 2008), http://www.ama-assn.org/amednews/2008/ 03/24/prsb0324.htm (noting that emotionally disengaged students scored more poorly on standardized tests of communication skill);
120. Anleu & Mack, supra note 52, at 612; see also POSNER, HOW JUDGES THINK, supra note 67, at 119 ("Just as doctors tend to be callous about sick people, judges tend to be callous about pathetic litigants because they have seen so many of them."); Gross & Thompson, supra note 26, at 9 ("[C]ognitive strategies that dampen negative emotions may help a medical professional operate efficiently in stressful circumstances, but also may neutralize... empathy, thereby decreasing helping.").
121. Grewal & Davidson, supra note 210, at 1200-02; Kant Patel, Physicians for the 21st Century: Challenges Facing Medical Education in the United States, 22 EVALUATION & HEALTH PROFS. 379(1999); Satterfield & Hughes, supra note 210, at 935-41;
122. Anemona Hartocollis, Getting into Med School Without Hard Sciences, N. Y. TIMES, July 30, 2010, at A1;
123. Stacey Teicher Khadaroo, Medical School Reinvented: Adding Lessons in Compassion, CHRISTIAN SCI. MONITOR, Sept. 15, 2009, at 2;
124. Felice Aull, Mission Statement, MED. HUMAN., http://medhum.med.nyu.edu (last visited Sept. 16, 2011);
125. The New Pathway MD Program, HARV. MED. SCH., http://hms.harvard.edu/pme/ newpathways.asp (last visited Sept. 16, 2011).
126. Grewal & Davidson, supra note 210, at 1201 (showing that training improved measurable indicators of emotion skill); Satterfield & Hughes, supra note 210, at 935, 939 ("[E]motion skills, much like physical examination skills, can be regarded as a properly defined, teachable (and measurable) skill set...."). Of course, maladaptive patterns persist, underscoring the reality that reform must be large scale and long term. Consider a recent letter to an ethics column, in which the writer recounted that medical-student friends had posted pictures on Facebook "with captions like 'a 5-foot-9 Hispanic male walks into a bar... ' under a picture of a patient with a piece of rebar piercing his abdomen. " Randy Cohen, When Med Students Post Patient Pictures, N. Y. TIMES MAG., Feb. 13, 2011, at 21, While acknowledging that "battlefield humor" is a coping mechanism, the columnist and a doctor with whom he consulted worried that, "[r]ather than simply giving doctors sufficient emotional distance to function effectively, this sort of horsing around might harden their hearts, making them less able to regard a patient as fully human. Such a transformation is not inevitable, but it is worth considering, particularly in a doctor's training. And many med schools do consider that... " Id
127. See generally Inge Schweiger Gallo et al., Strategic Automation of Emotional Regulation, 96 J. Personality & Soc. PSYCHOL. 11(2009) (presenting experimental evidence of value of formulating an if-then plan for emotion management).
128. PSYCHOLOGY OF EMOTION, supra note 29, at 170
129. (citing T. Kramer et al., Effects of Stress on Recall, 5 APPLIED COGNITIVE PSYCHOL. 483(1991)).
130. Laura Campbell-Sills & David H. Barlow, Incorporating Emotion Regulation into Conceptualizations and Treatments of Anxiety Disorders, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 550 (stating that it is dysfunctional merely to tell oneself something "that is supposed to make them feel better" or to engage in "Pollyanna" thinking or goal-defeating rationalizations).
131. WEGNER, supra note 118, at 64-65 (explaining that severe pain "appears to 'break through' the shield of self-distraction," and therefore people report less pain when they actually focus attention on the painful sensation than when they attempt distraction); Loewenstein, supra note 126, at 197.
132. Pierre Philippot, Aurore Neumann et al., Emotion Information Processing and Affect Regulation: Specificity Matters!, in REGULATING EMOTIONS, supra note 25, at 202.
133. PSYCHOLOGY OF EMOTION, supra note 29, at 184 ("[G]radual confrontation with the unwanted emotional thought may be a remedy against the physiological rebound because it facilitates habituation to the unwanted emotional thought, which also reduces the other concomitant emotional responses (i.e., bodily arousal) over the course of time.").
134. United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993).
135. Cf. Paoul Poder, The Political Regulation of Anger in Organizations, in REGULATING EMOTIONS, supra note 25, at 291-309, 292 ("perceiving anger as exclusively negative could legitimize an overregulation of anger");
136. Phillip R. Shaver et al., Adult Attachment Theory, Emotion Regulation, and Prosocial Behavior, in REGULATING EMOTIONS, supra note 25, at 121, 128 (noting importance of distinguishing between (a) "specific," "functional" expressions of anger and (b) "dysfunctional," "dissociated" ones).
137. See generally James W. Pennebaker, U. TEX., http://homepage.psy.utexas. edu/HomePage/Faculty/Pennebaker/Home2000/JWPhome.htm (last visited Sept 14, 2011) (gathering research on emotion and expressive writing).
138. PSYCHOLOGY OF EMOTION, supra note 29, at 185-87.
139. PSYCHOLOGY OF EMOTION, supra note 29, at 189 (asserting that disclosure has "longterm benefits because it reduces physiological reactivity, and facilitates emotional adjustment due to the repeated confrontation with and reprocessing of the emotional information").
140. Emotional experiences are not walled off into an undesired "not-self," a shame-based dissociation that Freud believed (correctly, as it turns out) to be highly maladaptive. PSYCHOLOGY OF EMOTION, supra note 29, at 185 (explaining how in psychoanalytic tradition the "accumulation of nonexpressed emotions" is thought to be highly negative); Koole, supra note 24, at 27 (arguing that disclosure promotes self-insight).
141. Posner, Role of the Judge, supra note 21, at 1065 (stating that a judge would be criticized for explaining his decision "in terms of an emotion");
142. James Taranto, The "Empathy" Paradox: Sotomayor Rejects Obama's Judicial Philosophy, WALL ST. J. (July 15, 2009), http://online.wsj.com/ article/SB124767724285246273.html ("It would be politically unwise... to say, 'When deciding a case, I follow my heart.'").
143. See Jeffrey Rosen, Sentimental Journey: The Emotional Jurisprudence of Harry Blackmun, NEW REPUBLIC (May 2, 1994, 12:00 AM), http://www.tnr.com/ article/politics/sentimentaljourney.
144. Conversations with Carina G. Biggs, M. D., Assistant Professor of Surgery, Director of Trauma Education, Division of Trauma and Surgical Critical Care, S. U. N. Y. Downstate Medical Center (Oct. 15, 2010 & Jan. 21, 2011). To the limited extent that such discussions are taking place in legal education, it is within the context of clinical programs. See, e.g., Laurel E. Fletcher & Harvey M. Weinstein, When Students Lose Perspective: Clinical Supervision and the Management of Empathy, 9 CLINICAL L. REV. 135(2002);
145. Ann Juergens, Practicing What We Teach: The Importance of Emotion and Community Connection in Law Work and Law Teaching, 11 CLINICAL L. REV. 413(2005);
146. Marjorie A. Silver, Emotional Intelligence and Legal Education, 5 PSYCHOL. PUB. POL'Y & L. 1173(1999);
147. Marjorie A. Silver, Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship, 6 CLINICAL L. REV. 259(1999).
148. For a rare exception, see Grant H. Morris, Teaching with Emotion: Enriching the Educational Experience of First-Year Law Students, 47 San DIEGO L. REV. 465(2010). However, even within clinical education (of which not all law students take advantage) attention to emotion is sporadic.
149. PSYCHOLOGY OF EMOTION, supra note 29, at 193 ("[A]bility to flexibly adjust the way one regulates one's emotions... is related to... health.") (second omission in original) (internal quotations omitted).
150. Maryland v. Craig, 497 U. S. 836(1990);
151. Coy v. Iowa, 487 U. S. 1012(1988).
152. See, e.g., FED. R. EVID. 403(1999).
153. See, e.g., Carey v. Musladin, 549 U. S. 70, 76(2006).
154. She cannot, for example, shackle the defendant to a table absent clear necessity, much as she might want to. See Deck v. Missouri, 544 U. S. 622(2005).
155. Anleu & Mack, supra note 52, at 604 (discussing findings in ROGER DOUGLAS & Kathy Laster, reforming the people's Court: Victorian Magistrates' Reactions to Change 20(1992)).
156. See generally Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement, 74 NOTRE Dame L. REV. 439, 469(1999);
157. DONALD J. FAROLE, JR. & AMANDA B. CISSNER, CTR. FOR COURT INNOVATION, SEEING EYE TO EYE: PARTICIPANT AND STAFF PERSPECTIVES ON DRUG COURTS 5(2005).
158. Cf. Karen Allen & Jim Blascovich, Effects of Music on Cardiovascular Reactivity Among Surgeons, 272 J. AM. MED. ASS'N 1172(1994) (reporting their findings that surgeons who chose music to play when operating demonstrated both reduced autonomic reactivity and improved performance). Judges may even be able to use some of these techniques in the courtroom on occasion. The retired judge who reached out to this author reported that he did sometimes walk out of his courtroom if something happened to make him "really upset." He would take some time to calm down and think, then walk back in and respond to whatever had happened. That judges cannot practice this sort of momentary avoidance most, or much, of the time does not mean they never can do so. Erlich, supra note 263.
159. Among distance runners there is a saying that captures this idea: "pain is inevitable, but suffering is optional." HARUKI MURAKAMI, WHAT I TALK ABOUT WHEN I TALK ABOUT RUNNING, at vii (2008). Rather than try to ignore pain, runners will pay attention to it (for example, because it might give important information about injury or hydration needs) but disengage from judgment of that pain as negative.
160. See Cnty. of Sacramento v. Lewis, 523 U. S. 833(1998) (adopting the "shocks the conscience" test);
161. Rochin v. California, 342 U. S. 165, 172(1952) (same). Conversely, a family court judge's happiness upon finalizing the adoption of a needy child by a loving family should be regarded positively. That emotion reflects the benefit the judge has rendered, which in turn feeds professional satisfaction and makes less pleasant courtroom moments more bearable.
162. See A. G. Sulzberger, 3 US. Judges Testify in a Death Threat Case, N. Y. TIMES, Mar. 2, 2010, at A28 (detailing the testimony of Seventh Circuit Judges Richard A. Posner, William J. Bauer, and Frank Easterbrook, in a case in which a radio talk show host said each deserved to be killed for upholding Chicago's handgun ban; in explaining why they took the threat seriously, Judge Easterbrook cited "the murders of a federal judge's husband and mother by a man unhappy with a court ruling").
163. Cf. Evan R. Seamone, Judicial Mindfulness, 70 U. CIN. L. REV. 1023(2002).
164. Vanda L. Zammuner, Men's and Women's Lay Theories of Emotion, in GENDER AND EMOTION 48 (Agneta H. Fischer ed., 2000).
165. See supra Subection II. B.3. (showing how simplistic beliefs about emotion drive simplistic regulatory strategies); PSYCHOLOGY OF EMOTION, supra note 29, at 157 (explaining that regulation is affected by whether a person's "knowledge of... emotions is well developed or extensive").
166. People v. Carter, No. C053369, 2009 WL 626113 (Cal. Ct. App. Mar. 12, 2009).
167. Psychology of Emotion, supra note 29, at 172
168. (citing Roy F. Baumeister et al., Ego Depletion: Is the Active Self a Limited Resource?, 74 J. PERSONALITY & SOC. PSYCHOL. 1252(1998)).
169. Id (citing Mark Muraven et al., Self-Control as a Limited Resource: Regulatory Depletion Patterns, 74 J. PERSONALITY & SOC. PSYCHOL. 774(1998)); Kappas, supra note 100, at 26 (noting costs to "cognitive resources" and "impact on social relations").
170. Jane M. Richards & James J. Gross, Personality and Emotional Memory: How Regulating Emotion Impairs Memory for Emotional Events, 40 J. RES. PERSONALITY 631(2006); Richards, supra note 187, at 131; Richards & Gross, supra note 182, at 410.
171. PSYCHOLOGY OF EMOTION, supra note 29, at 171
172. (discussing Richards & Gross, supra note 182, and Jane M. Richards & James J. Gross, Composure at Any Cost? The Cognitive Consequences of Emotion Suppression, 25 PERSONALITY & SOC. PSYCHOL. BULL. 1033(1999)).
173. Psychology of Emotion, supra note 29, at 171
174. (discussing Jane M. Richards et al., Emotion Regulation in Romantic Relationships: The Cognitive Consequences of Concealing Feelings, 20 J. Social & Personal Relationships 599(2003)).
175. Psychology of Emotion, supra note 29, at 171 (discussing Richards & Gross, supra note 182, and Richards & Gross, supra note 313).
176. PSYCHOLOGY OF EMOTION, supra note 29, at 175 (finding that chronic behavioral suppression may "perpetuate the feelings one is concealing"); Chambers et al., supra note 152, at 565 (finding that expressive suppression increases intensity and frequency of sympathetic and cardiovascular activities); Cisler et al., supra note 125, at 71 (finding that behavioral suppression increases physical arousal and startle reflex); Kappas, supra note 100, at 26 (finding that behavioral suppression leads to an increase of physiological activity).
177. PSYCHOLOGY OF EMOTION, supra note 29, at 165.
178. Psychology of Emotion, supra note 29, at 166-67.
179. Craig A. Smith et al., Emotion-Eliciting Appraisals of Social Situations, in AFFECT IN SOCIAL Thinking and Behavior 85, 85 (Joseph P. Forgas ed., 2006);
180. Tom Johnstone & Klaus R. Scherer, Vocal Communication of Emotion, in HANDBOOK OF EMOTIONS, supra note 95, at 220, 223.
181. HOCHSCHILD, supra note 43, at 110-14.
182. Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Geo. L. J. 399(2006) (emotional contagion is a largely unconscious process by which we absorb the emotions of others).
183. Contempt is often characterized as a mix of disgust and anger, accompanied by an evaluation that the person toward whom it is directed is of lower status. See, e.g., ROBERT C. Solomon, the Passions: Emotions and the Meaning of Life (1993);
184. Cendri Hutcherson, The Moral Emotions: A Social-Functionalist Account of Anger, Disgust, and Contempt 7-11 (May 2008) (unpublished Ph. D. dissertation, Stanford University).
185. Paul Ekman & Karl G. Heider, The Universality of a Contempt Expression: A Replication, 12 MOTIVATION & EMOTION 303(1988).
186. PSYCHOLOGY OF EMOTION, supra note 29, at 166. For this same reason, behavioral suppression can impair interpersonal functioning, as interpersonal interactions are flattened.
187. Emily A. Butler et al., Emotion Regulation and Culture: Are the Consequences of Emotion Suppression Culture-Specific?, 7 EMOTION 30(2007); see generally Gross & Oliver, supra note 149.
188. Paul Ekman has built an industry centered on detection of the such microexpressions. See Paul Ekman, Cutting Edge Behavioral Science for Real World Applications, DR. PAUL EKMAN, http://www.paulekman.com (last visited Sept 17, 2011).
189. Matthew J. Hertenstein & Dacher Keltner, Gender and the Communication of Emotion via Touch, 64 SEX ROLES 70(2011) (reviewing and expanding evidence showing that touch, along with facial expression and vocalization, communicates several distinct emotions).
190. Loewenstein, supra note 126, at 186-88; see also Jeremy A. Biumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 Ind. L. J. 155(2005).
191. Loewenstein, supra note 126, at 187; Biumenthal, supra note 334, at 167-70; John Bronsteen et al., Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516(2008);
192. John Bronsteen et al., Welfare as Happiness, 98 GEO. L. J. 1583(2010).
193. People v. Carter, No. C053369, 2009 WL 626113 (Cal. Ct. App. Mar. 12, 2009). This sort of habituation is an important aspect of professional acculturation to commonly encountered stimuli.
194. See POSNER, HOW JUDGES THINK, supra note 67, at 119 ("the hand of little employment hath the daintier sense")
195. (quoting WILLIAM SHAKESPEARE, HAMLET act 5, sc. 1).
196. See, e.g., Spruill v. Nat'l R. R. Passenger Corp., Civ. A. No. 93-4706, 1995 WL 534273 (E. D. Pa. Sept. 5, 1995) (admonishing lawyer for improper rebuttal: "I really didn't know how to handle the whole thing.... [B]ased on my years of experience as a trial judge, I have never seen anything like it.");
197. Skyler M. v. Brice H., No. B190498, 2007 WL 2109797 (Cal. Ct App. July 24, 2007) ("All my years of sitting here, I don't think I've ever seen a doctor cry on the witness stand....");
198. Caldwell v. Lucas, 13 P.3d 560, 563 (Or. Ct. App. 2000) (weighing evidence that custody-seeking father had serious criminal history of domestic violence but had not harmed his welladjusted children: "It is a tremendous dilemma. I have never seen anything like it."). Similarly, even highly experienced trauma surgeons will encounter a novel situation that provokes intense emotion, as the experience of a doctor who tried to save the life of a nine-year-old Tucson girl-killed in the 2011 assassination attempt on a U. S. Congresswoman-poignantly illustrates. Dr. Randall S. Friese described his experience: "I'm very glad that I didn't meet her parents," he said. "I think I would have had trouble. I would have had emotional..." His voice trailed off. "I would have embarrassed myself," he said. He closed his eyes for just a moment and sighed once more. "I usually don't get upset." He addfed], "I don't know why, it's just tough."
199. Denise Grady & Jennifer Medina, From Bloody Scene to E. R., Life-Saving Choices, N. Y. TIMES, Jan. 15, 2011, at A1 (ellipsis in original).
200. The more precise Freudian label is "defense." Drew Westen & Pavel S. Blagov, A Clinical-Empirical Model of Emotion Regulation: From Defense and Motivated Reasoning to Emotional Constraint Satisfaction, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 373, 377 ("The concept of defense in psychodynamic theory represents what was probably the first theory of emotion regulation. ").
201. See generally Daniel T. Gilbert et al., Of Thoughts Unspoken: Social Inference and the Self-Regulation of Behavior, 55 J. PERSONALITY & SOC. PSYCHOL. 685(1987);
202. see also Daniel T. Gilbert, Thinking Lightly About Others: Automatic Components of the Social Inference Process, in Unintended Thought: The Limits of Awareness, Intention, and Control 189 (James S. Uleman & John A. Bargh eds., 1989). After being made to ingratiate themselves to the rude man (actually one of the experimenters), the subjects were shown politically conservative answers the man had given to a series of questions. They also were told that the experimenters had supplied the man with those answers. The subjects were asked to infer the man's political leanings. Compared with other subjects, the "forced ingratiators" were more likely to conclude that the man was a conservative-even though they knew that his answers were causally unrelated to his political beliefs.
203. See WEGNER, supra note 118, at 81-82.
204. Chris R. Brewin & Laura Smart, Working Memory Capacity and Suppression of Intrusive Thoughts, 36 J. BEHAV. THERAPY & EXPERIMENTAL PSYCHIATRY 61(2005). This study supports the conclusion by showing that greater working memory capacity is associated with greater ability to suppress unwanted negative thoughts.
205. See generally A DICTIONARY OF PSYCHOLOGY 822 (Andrew M. Coleman ed., Oxford 3d ed. 2009) (defining working memory).
206. Matthew S. Shane & Jordan B. Peterson, Self-Induced Memory Distortions and the Allocation of Processing Resources at Encoding and Retrieval, 18 COGNITION & EMOTION 534(2004) ("[M]emory distortions... [d]o not appear limited to clinical populations. Rather, self-induced memory distortions appear to occur regularly in the general population...").
207. WEGNER, supra note 118, at 81-82;
208. PSYCHOLOGY OF EMOTION, supra note 29, at 176 (defining rebound effect as the "ironic and counterproductive effect of active suppression of an unwanted thought");
209. Andrew J. Wistrich et al., Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251(2005) (arguing that ironic effects might magnify influence of evidence a judge vows to ignore).
210. See WEGNER, supra note 118.
211. See, e.g., ERIC RASSIN, THOUGHT SUPPRESSION (2005).
212. Daniel M. Wegner, How to Think, Say, or Do Precisely the Worst Thing for Any Occasion, SCIENCE, July 3, 2009, at 48-50. Edgar Allen Poe called these actions "the imp of the perverse." Id
213. Sigmund Freud, A Case of Successful Treatment by Hypnotism, in 1 THE STANDARD Edition of the Complete Psychological Works of Sigmund Freud 117-28 (James Strachey ed., 1953). Freud believed the effects of repressed emotion to be most likely to emerge when the person was under significant strain. See id. at 127 ("this mechanism is supremely characteristic of hysteria; however, it does not occur only in hysteria").
214. As Freud also asserted, a primary reason people try to suppress thoughts in everyday life (as opposed to in laboratories) is because those thoughts cause, or are associated with, unwanted feelings. WEGNER, supra note 118, at 22
215. Wegner, supra note 357, at 49; see also Michael C. Anderson & Benjamin J. Levy, Suppressing Unwanted Memories, 18 CURRENT DIRECTIONS PSYCHOL. SCI. 189(2009).
216. see also Elke Geraerts et al., Long Term Consequences of Suppression of Intrusive Anxious Thoughts and Repressive Coping, 44 BEHAV. RES. & Therapy 1451(2006) (finding that when asked to evoke and then suppress self-relevant, autobiographical thoughts, participants showed a rebound effect for both positive and anxious thoughts). The rebound effect appears particularly strong for persons who habitually repress emotion. See id. ("[R]epressive coping enables individuals to avoid negative and trauma-related thoughts in the short run, but in the long run,... leads to intrusive thoughts...."). Unfortunately, suppression of emotional thought and suppression of emotional experience seldom are cleanly distinguished. See Loewenstein, supra note 126, at 182 ("skirting" question of whether "if, after committing a gross faux pas, one attempts not to think about it," it is more appropriate to say "one is distracting oneself from one's thoughts or one's feelings").
217. PSYCHOLOGY OF EMOTION, supra note 29, at 178
218. (describing Daniel M. Wegner et al., Ironic Processes in the Mental Control of Mood and Mood-Related Thoughts, 65 J. PERSONALITY & SOC. PYSCHOL. 1093(1993)). These results provide "suggestive support for the idea that the ironic effects under cognitive load were stronger for those who had to suppress their feelings... than those who concentrated on the desired feeling." Id.
219. PSYCHOLOGY OF EMOTION, supra note 29, at 179-81 (discussing, inter alia
220. Peter Muris et al., Suppression of Emotional and Neutral Material, 30 BEHAV. RES. & THERAPY 639(1992)). The working hypothesis for this differential is that people are more likely to be motivated to avoid unwanted emotions than neutral thoughts.
221. See NATURE OF EMOTION, supra note 101, at 235-62 (detailing physiological elements of emotion).
222. Wegner, supra note 357, at 49.
223. WEGNER, supra note 118, at 149 ("[T]rying to suppress an emotion while the emotionproducing stimulus is present yields the same or greater arousal than trying to experience the emotion. ")
224. (citing to Asher Koriat et al., The Self-Control of Emotional Reactions to a Stressful Film, 40 J. PERSONALITY 601(1972));
225. see also PSYCHOLOGY OF EMOTION, supra note 29, at 182 ("The suppression of emotionally exciting thoughts may thus be counterproductive because even though it diminishes the frequency of intrusive thoughts, it causes people to become aroused each time the suppressed thought returns to mind."); Cisler et al., supra note 125, at 72.
226. PSYCHOLOGY OF EMOTION, supra note 29, at 181. Persons instructed to repress emotional experience also have been shown to have a slower physical recovery after being exposed to air enriched with carbon dioxide. Cisler et al, supra note 125, at 70-71
227. (citing to M. T. Feldner et al., Emotional Avoidance: An Experimental Test of Individual Differences and Response Suppression Using Biological Challenge, 41 BEHAV. RES. & THERAPY 403(2003)
228. and Matthew T. Feldner et al., Anxiety Sensitivity-Physical Concerns as a Moderator of the Emotional Consequences of Emotion Suppression During Biological Challenge, 44 BEHAV. RES. & THERAPY 249(2006)).
229. Oxford Companion to Emotion and the Affective Sciences, supra note 99, at 1-2 (noting that such predispositions referred to as "action tendencies").
230. Misdirection is a danger because physiological arousal tends to take a relatively consistent form across emotional states. Consider that both grief and joy can cause tears, and both fear and anger involve elevated heartbeat See NATURE OF EMOTION, supra note 101, at 235-62 (collecting scientific perspectives on whether emotions have distinct physiological patterns). People distinguish between these different states not only on the basis of how they feel in the body but also the thoughts with which they are accompanied. That is, we largely understand our emotions based on the interpretation we give to our arousal. Thus, studies have shown that persons who are unaware of (or out of touch with) the reason for their physiological arousal will search for an explanation in their environment. That explanation may be entirely wrong.
231. WEGNER, supra note 118, at 146-48
232. (discussing classic model of Stanley Schachter & Jerome E. Singer, Cognitive, Social and Physiological Determinants of Emotional State, 69 PSYCHOL. REV. 379(1962));
233. see also A. S. R Manstead, A Role-Playing Replication of Schachter and Singer's (1962) Study of the Cognitive and Physiological Determinants of Emotional State, 3 MOTIVATION & EMOTION 251(1979);
234. Donald G. Dutton & Arthur P. Aron, Some Evidence for Heightened Sexual Attraction Under Conditions of High Anxiety, 30 J. PERSONALITY & SOC. PSYCHOL. 510(1974).
235. Whac-A-Mole, http://www.bobsspaceracers.com/whac-a-mole/html-index.htm.
236. Heilman et al., supra note 35, at 258 (citing Karen Pezza Leith & Roy F. Baumeister, Why Do Bad Moods Increase Self-Defeating Behavior? Emotion, Risk Talcing, and Self-Regulation, 71 J. PERSONALITY & SOC. PSYCHOL. 1250(1996)).
237. Geraerts et al., supra note 361, at 1451; Koole, supra note 24, at 20; Lynn B. Myers & Nazanin Derakshan, To Forget or Not to Forget: What Do Repressors Forget and When Do They Forget?, 18 COGNITION & EMOTION 495(2004) (asserting that emotional repressors are "selfdeceivers"); Westen & Blagov, supra note 345, at 378.
238. Chambers et al., supra note 152, at 564 (noting difficulties that stem from "frequent or automatic attempts to control or suppress emotional experience and expression"); Cisler et al., supra note 125, at 68; see generally Oliver P. John & James J. Gross, Healthy and Unhealthy Emotion Regulation: Personality Processes, Individual Differences, and Life Span Development, 72 J. PERSONALITY 1301(2004).
239. WEGNER, supra note 118, at 9.
240. Though persons who suppress emotion tend to report experiencing less negative emotion, they exhibit not just impaired cognitive and social skills but also greater physiological reactivity. Mauss et al., supra note 25, at 48; see also Ineke Wessel & Daniel B. Wright, Emotional Memory Failures: On Forgetting and Reconstructing Emotional Experiences, 18 COGNITION & EMOTION 449, 453(2004); Shaver et al., supra note 251, at 126, 129 (finding that people who claim to be fully in control show dissociation between that belief and nonconscious measures of emotion); Westen & Blagov, supra note 345, at 378 (defining disjuncture as "illusory mental health").
241. WEGNER, supra note 118, at 15 (noting "seductive" illusion that we can will ourselves to control thoughts, feelings, and behaviors). Overconfidence has its own downsides, perhaps because it discourages self-examination and learning.
242. See, e.g., Stuart Oskamp, Overconfidence in Case-Study Judgments, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 287, 292 (Daniel Kahneman et al. eds., 1982) (stating that overconfidence can manifest in certainty that is "entirely out of proportion to... actual correctness").
243. Mary K. Rothbart & Brad E. Sheese, Temperament and Emotion Regulation, in HANDBOOK OF EMOTION REGULATION, supra note 24, at 331. The medical analogue might be "bedside manner," similarly valued but historically neither welldefined nor adequately trained.
244. Susan Turk Charles & Laura L. Carstensen, Emotion Regulation and Aging, in Handbook of Emotion Regulation, supra note 24, at 307.
245. Wegner, supra note 357, at 50.