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Abstract:
Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. Discussion turns on the appropriateness of various emotions for the substantive law, and on attempts to model the place of the emotions in the law.

Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are predictable, manageable, and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'.

Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well.

In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia.

I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.

Law and emotions, psychology, hedonics, subjective Welfare

Abstract:
Legal scholarship on behavioralism and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. Discussion turns on the "appropriateness" of various emotions for the substantive law, and on attempts to model the place of the emotions in the law.

Implicit in some of these theories, however - and explicit in others - is the assumption that emotions are "predictable," "manageable," and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates individuals' inability to accurately predict future emotional states, both their own and others'.

Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well.

In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia.

I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.

Law and emotions, psychology, hedonics, subjective Welfare

Abstract:
Despite recurring interest in the potential for affect to influence "rational" reasoning, in particular the effect of emotion on moral judgments, legal scholars and social scientists have conducted far less empirical research directly testing such questions than might be expected. Nevertheless, the extent to which affect can influence moral decisions is an important question for the law. Watching a certain sort of movie, for instance, can significantly influence responses to opinion polls conducted shortly after that movie. Legislative action based on public opinion as so expressed, or media reports of public opinion based on such polls, could thus inaccurately reflect that public sentiment. This is especially so for social and policy issues that are heavily emotional, such as capital punishment or affirmative action.

Most discussion on law and emotions has been theoretical, addressing philosophical approaches to law and emotion. What psychological data exist are mixed, and virtually none appears in the legal literature. Thus, to bring the legal academic discussion into the realm of the empirical, and to provide further data on the question of affective influences on moral and legal decision-making, I conducted two experimental studies examining mood's influence on moral judgments.

After clarifying what I mean by "moral judgment" and how I measured it, I report the methodologies and results of those studies. Briefly, the data support other empirical research showing that individuals in a positive mood (here, happiness) tend to process information more superficially than those in a negative mood (here, anxiety). I then discuss the results' implications for the legal system, including implications for trials (e.g., victim impact statements or graphic testimony), and implications for public policy-making (e.g., the context of public opinion polls and surveys).

Most broadly, the data contribute to the developing legal literature on the role of emotions in the law. They highlight the importance of conducting empirical research, and of the translation of such empirics to specific legal and policy applications.

law and emotions,moral judgment, capital punishment, public opinion, trial procedure

Abstract:
The use of social science - of psychology in particular - to inform legal theory and practice is fast becoming the latest craze in the pages of legal academia. Despite this increase in research, practitioners in both disciplines have been frustrated, as well. Social scientists and others have viewed the legal system as underusing, misusing, or ignoring their theories and research. At the same time, the law has typically viewed social science as atheoretical, or as not yet having reached sufficient consensus to have anything helpful to say to the legal system.

In the present paper I address a number of these issues: the peculiar relationship between psychology and law; traditional areas that psycholegal scholars have examined and the successes and failures in those areas; evaluation of some of the current trends of incorporating social science work into legal academia (e.g., behavioral law and economics, law and the emotions); and, especially, suggestions for how to ameliorate some of the tension between the two disciplines that has led to frustration on both "sides."

In addition to descriptive accounts of successful and unsuccessful interdisciplinary work by both legal scholars and social scientists, I try to identify ways of addressing some of the tensions between law and social science - some may be irremediable, but for others I suggest concrete ways to resolve them. First, I discuss substantive areas in which interdisciplinary communication can be developed. I also emphasize methodological steps social scientists can take to most usefully present research to the legal system, focusing on meta-analytic techniques in particular.

In the article's final sections I address tensions less conducive to remedy, but I close with optimism about the present and future of law and social science in the twenty-first century.

Law and Social Science, Law and Psychology, Behavioral Law and Economics, Law and the Emotions

Abstract:
The literature on heuristics and biases in decision-making, as well as on emotional influences on judgments, is burgeoning. Commentators reviewing such work have begun to discuss its practical implications for the law. Most recently, they have focused in particular on what the research might suggest for an increased third-party role to help protect individuals from their own biases. That is, the most recent discussion has focused on the findings' implications for the appropriateness and scope of paternalistic policies.

This paternalism discussion, however, has been incomplete in a number of contexts. First, despite a substantial focus on the implications of the first line of scholarship (documenting cognitive biases), commentators have addressed the implications of emotional biases far less. Second, much of the most recent discussion has been in the context of intervention by private parties (such as a company's conduct encouraging employees to participate in 401(k) plans), rather than addressing potential governmental steps, legislative or judicial, to protect individuals from their errors. Finally, although commentators have recently noted the importance of comparing the costs and benefits of paternalistic interventions, there has been little specification of those costs and benefits. In particular, commentators in this area have largely avoided the question of how difficult it might be to correct such biases, and thus how effective any such interventions might in fact be.

In this Article I evaluate and extend this developing discussion of using social science data to justify paternalism, addressing these three gaps in the literature as well as other issues and examples. After a critical review of the existing literature, including discussion of whether paternalistic intervention is justified in the first place, I move to remedy some of these gaps. I document not only cognitive but emotional biases that people are subject to, including a number that have been little discussed in legal academia. I note the importance of such emotional biases to legal decision-making and illustrate potential legal errors to which they may lead. I also mention implications of such errors for paternalistic intervention by government, both by legislatures and by courts. In the distinct contexts of cognitive and emotional biases, one sort of government intervention may be appropriate where another is not. Finally, I take steps toward evaluating the effectiveness of measures to correct cognitive and emotional biases, a step mentioned but not pursued in discussions of social science and paternalism. Specifically, I draw on empirical social science literature to examine whether effective mechanisms exist to correct various cognitive and emotional biases at the individual level, with implications for policy at the larger interpersonal and societal level. Throughout, I identify potential objections to some of the points I raise, summarizing and concluding with further speculation about the appropriateness of paternalistic intervention by the State.

paternalism, emotion, social science, psychology, contracts, decision-making

Abstract:
Empirical research relevant to legal issues is common in other disciplines, and is once again growing more common in the legal academy. Such research, however, varies widely in theoretical and methodological rigor, and at times yields widely different results. Such disparate findings may bring into question the usefulness of such empirical research, and may render it suspect in the eyes of practitioners, courts, and policy-makers. One approach to helping address such concerns is meta-analysis - the quantitative, rather than simply narrative review of empirical research. Meta-analysis synthesizes the relevant empirical literature, statistically summarizing the results of all empirical work in a particular area; and also identifies moderator variables, aspects of the various studies that might have influenced their findings. In this article I explain the importance of the meta-analytic approach, discussing what it is, why it is useful to members of the legal system, and the straightforward way of conducting a meta-analysis. This primer should be useful to legal academics, policy-makers, courts, and practitioners.

meta-analysis, empirical methdology

Abstract:
The psycholegal study of property law, theory, and doctrine is a new and developing topic area. As one Article in a Special Issue of the Tulane Law Review, this paper serves as a broad introduction and overview to the field. Aimed at both legal academics and social scientists, a primary goal is to encourage interdisciplinary collaboration between the fields in order to promote additional empirical research in the area. Thus, I first identify the important theoretical connections between psycholegal research and property law, theory, and policy. Next, I review what work has been conducted, as well as some contemporary research (including the other Articles in the Issue). Finally, I indicate several under-explored topic areas available to psycholegal scholars, and sketch what a research program taking a psychological perspective on property law might look like in a number of areas. I demonstrate the close relationship between empirical psychological findings and property law and theory, and discuss the potential for more.

property law, psychology, empirical legal studies, behavioral law and economics

Abstract:
In the last forty years, the study of social perceptions of crime in general, and the seriousness of criminal offenses in particular, has been of substantial interest to policymakers, courts, and social scientists. As a matter of criminal justice policy, consensus about how severe a crime is can serve as both a legal and societal foundation for certain criminal justice policy decisions, or about the proper punishment for that crime. From a social psychological perspective, studying individual differences in the perceptions of crime can supply valuable information both for basic knowledge about the thinking of individuals who differ on, for instance, gender, race, age, education, or political ideology, and for applied knowledge that can be used in a judicial or legislative arena. Alternatively, a hierarchy of the perceived seriousness of various criminal offenses can give insight into what is valued in a particular culture.

The difficulty of defining seriousness, however, has led to substantive and methodological critiques of this literature. The present study is the latest to investigate the dimensional nature of perceptions of crime seriousness or severity, through multidimensional scaling techniques (MDS). MDS is a procedure that helps researchers uncover hidden structures in existing data by graphically plotting respondents' perceptions of perceived similarities (or dissimilarities) among various stimuli. When these stimuli are located on a plot based on such perceptions, underlying dimensions that respondents may have used (consciously or not) can be inferred.

In two empirical studies I identify and validate three dimensions underlying perceptions of crime seriousness: amount of harm, infringement or deprivation of autonomy, and recklessness. I discuss implications for psychology, law, and policy.

law and psychology, perceptions of crime, multidimensional scaling, experimental, criminal law

Abstract:
Although abortion jurisprudence under Casey condones State efforts to persuade a woman to forego an abortion in favor of childbirth, the opinion's "truthful and not misleading" language can be read more broadly than it traditionally has. Specifically, even a truthful message may mislead when it inappropriately takes advantage of emotional influence to bias an individual's decision away from the decision that would be made in a non-emotional, fully informed, state. Drawing on the insights of empirical research in the social sciences, I suggest that the sort of emotional information that many States now provide in their "informed consent" statutes can lead to such inappropriate emotional influence, and thus should be examined more closely than heretofore. This broader reading, taking into account empirical research that gives a better idea of individual decision-making, suggests that States' informed consent statutes have the potential to be an impermissible burden on the exercise of a woman's autonomous decision-making about an abortion precisely because they are calculated to bias a woman's free choice, not inform it.

abortion, emotion, decision-making, autonomy, persuasion, constitutional law, gender

Abstract:
States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, our review of empirical research on surrogate decision-making challenges this justification. We find that default surrogate statutes do a reasonable job of capturing majority preferences for health care decision-making processes, but do not ensure that patients receive the treatment they would have selected for themselves if able. Rather, surrogates appointed under default surrogate statutes can be expected to frequently make treatment choices that are inconsistent with patient preferences. Nevertheless, in the absence of better alternatives, default surrogate statutes play an important role in the American health care system. We therefore urge states to consider certain statutory changes that would improve the ability of such statutes to effectuate patient wishes. We also identify several avenues for further empirical research that could help to improve the accuracy of surrogate decision-making.

health care, decision-making, end-of-life, advance directives, psychology, statutory design

Abstract:
This is an entry from a forthcoming book, The Encyclopedia of Positive Psychology, edited by Shane J. Lopez (forthcoming). This volume has as its target audience high school and college library users in addition to consumers, primarily corporate and government professionals, who are educated but desire more information concerning the many topics that are covered. The encyclopedia is also intended as a resource for budding positive psychologists. This encyclopedia will contain more than 250 separate entries from all areas related to positive psychology. This entry provides an overview of the area of positive law & policy.

positive psychology, subjective well-being, legal policy

Abstract:
Social psychological research shows that some individuals ("entity theorists") view others as possessing fixed, unchanging moral traits; some individuals ("incremental theorists") see others' moral traits as malleable and dynamic. Such individual differences in implicit theories reliably predicts people's levels of punitiveness, their endorsement of certain moral theories and punitive philosophies, their likelihood of stereotyping others, and other legally relevant judgments. Empirical legal research on such beliefs relevant to the law, however, is almost non-existent. Accordingly, in three experimental mock juror studies, I investigated the effect of respondents' implicit theory on their capital sentencing decisions. Primary results demonstrate that across samples, (1) incremental theorists are less likely to impose a death sentence; and (2) entity theorists are more willing to impose a death sentence when the defendant is African-American. Policy implications are discussed.

juror decision making, mock juror experiment, capital sentencing, law and psychology, implicit theories

Abstract:
I briefly introduce a Special Issue on the psychological study of property law, theory, and doctrine. The Issue builds on a 2008 Panel at the annual American Psychology/Law Society Conference that brought together legal academics, psychologists, and policy-makers working at the crossroads of psychology and property. Our goal is to lay the groundwork for a mutually beneficial relationship between legal psychologists and property scholars. In this Introduction I preview the Issue's four Articles, which review or present original empirical research in four areas: the psychology of "home;" intuitions about first possession and ownership; how individuals see property rights in art; and whether notions of ownership rights change simply because of how "property" is defined. Our goal is to prompt empirical research in four broad areas with implications for property law, theory, and policy: (1) What benefits emerge from a psychological view of property law, and what questions can the law give to empirical researchers? (2) Does property law reflect lay intuitions, and does empirical research support black-letter law? (3) Are views of property and ownership innate? (4) Are those views malleable; if so, with what policy implications?

property, psychology, empirical legal studies, instinct, possession

Abstract:
Forty years of Fourth Amendment jurisprudence has explicitly relied on gauging "expectations of privacy" in helping to evaluate whether a search was reasonable. In making such evaluations, Courts look at a defendant's subjective expectation of privacy, as well as society's more objective understandings of social custom and of what might reasonably constitute an inappropriate interference in that privacy. Surprisingly little empirical research, however, has examined such perceptions of privacy, and most considers "privacy" a unitary, unidimensional construct.

In a pilot study here, we take a different approach to empirical assessing individuals' understandings and expectations of "privacy." To examine what factors enter into lay understandings of privacy, we used multidimensional scaling (MDS), a methodology explicitly designed to help identify underlying factors or dimensions that constitute broader variables, rather than focusing on ranking stimuli along a variable selected a priori. We empirically demonstrate the multidimensional nature of privacy, identifying three dimensions that constitute lay perceptions. Further, we show that both these dimensions, as well as overall perceptions of different types of law enforcement searches, are influenced by stimulus context.

Our findings make multiple contributions. First, we demonstrate the usefulness of another empirical methodology. Second, we discuss ways in which the dimensions we identify might influence Fourth Amendment doctrine. Third, we discuss our own ongoing research, and identify additional areas suggested by the current findings.

criminal procedure, search and seizure, Fourth Amendment, multidimensional scaling, lay perceptions, law and psychology, methodology

Abstract:
May the government use eminent domain to take a private citizen's right to sue? May the government take a citizen's right to sue and exercise it -- or even take the right to sue or a lawsuit and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)? In this Article I explore these questions, examining the Takings Clause implications of considering the right to sue as private property. I show that legal claims are private property for constitutional purposes; I show that government conduct of this sort would likely be acceptable as a "public purpose;" and I discuss what sort of "just compensation" might be appropriate when the government takes a private citizen's lawsuit. Throughout, I discuss various policy implications of considering legal claims as private property.

eminent domain, takings, lawsuits, litigation, private property, just compensation, public use, public purpose, valuation

Abstract:
This is a chapter from a forthcoming book, The 2d edition of the Handbook of Positive Psychology, edited by Shane J. Lopez (forthcoming). This Handbook provides a guide to a burgeoning literature of positive psychology about human strengths and virtues. This Handbook has as its target audience both seasoned professionals and students just entering the field of positive psychology. This 2d edition of the Handbook continues the tradition of the 1st edition to collect in one volume the voice of leading scholars in the emerging field of positive psychology. This chapter provides an overview of the area of positive institutions, law, & policy.