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Abstract:
This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision. Specifically, it asks why prosecutors become loyal to a particular version of events - the guilt of a particular suspect - even when that version of events has been discredited. The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor's office. It then considers the prosecutor's divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system. Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one's beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.

Criminal law, psychology, prosecutors, wrongful conviction

Abstract:
Legal scholars as well as laypeople are fascinated by the question of how criminal lawyers can defend people accused of heinous crimes. This topic is commonly addressed as part of a well-established discourse about the morality and ethics of criminal defense. A separate conversation needs to occur. Its topic is how, in an emotional sense, one defends people accused of terrible crimes, and what toll such defense takes, both professionally and personally. This article first explores the defense mechanisms employed by criminal defense lawyers, and how these mechanisms affect lawyers both as advocates and as people whose work is comfortably integrated into their lives. Second, it suggests that the mechanisms and strategies discussed are not unique to defense attorneys, but are common in legal practice generally. Finally, it argues that the legal profession needs to overcome its aversion to acknowledging and addressing the emotional aspects of lawyering, and suggests some possible paths toward this goal.

Criminal law, legal profession, psychology, emotion and law

Abstract:
The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated, and how deeply entrenched they are. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.

capital punishment, death penalty, punishment, emotion, cognitive bias

Abstract:
This article is concerned, most generally, with the judicial tendency to anecdotalize governmental misconduct - to view instances of misconduct as isolated rather than systemic. More specifically, it is concerned with the impact of this phenomenon in the context of systemic police brutality. It argues that police brutality is permitted to flourish by a series of interlocking institutions that characterize brutal acts as isolated and anecdotal, and it focuses particularly on the courts' role in this acquiescence. The courts permit and even implicitly condone police brutality through a number of substantive and procedural doctrines that fragment patterns of misconduct. The article argues that although it is important to study each of these doctrines individually, the tendency to anecdotalize police misconduct has more basic explanations that transcend particular doctrinal devices.

Part I examines the phenomenon of police brutality, with particular attention to the ways in which patterns are masked. Section A takes a detailed look at one pocket in which police brutality and even torture have long thrived: Chicago's Area Two Violent Crimes Unit. Section B asks whether the story told about Area Two is itself anecdotal, or is representative of a larger pattern, and describes more generally the attributes of police brutality as practiced in the United States, with attention to, among others, the Louima and Diallo cases in New York.

Part II seeks to understand the pattern of fragmentation that characterizes the judicial reaction to police brutality. Section A suggests that the literary notion of anecdote, with its concerns about irrelevant detail, the linkages among seemingly disparate acts, and the problem of judging representativeness, can help us think about the patterns of governmental misconduct and why they are so often ancedotalized. It suggests that judicial decisions about what details are connected, relevant or representative are not merely mechanical, but are informed by cultural, social and political assumptions. Section B posits several such assumptions that may lead judges to view patterns of governmental misconduct as a series of disconnected events. These include: the assumption that the status quo is coherent and just; the use of selective empathy; the fear of destabilization and chaos; the need for individual stories of motive, fault and blame; reliance on the common law paradigm; and the preference for judicial insulation. The article illustrates the effect of these assumptions in the police brutality context.

police brutality, judges, torture, literary theory, representativeness

Abstract:
The concept of closure, almost unknown two decades ago, has had a meteoric rise. It has been enthusiastically embraced by the legal system not only as a legitimate psychological state, but as one that the criminal justice system ought to help victims and murder survivors to attain. In the death penalty context, the concept of closure has changed the way we talk about the rationale for capital punishment, it has changed the shape of the legal process, and it has even changed what both survivors and jurors in capital cases expect to feel. Yet, as I will illustrate, the term closure in fact connotes several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. For example, depending on how closure is understood, it might require a chance to give public testimony, an opportunity to meet with the accused, a more expeditious trial, a sentence of death, or an execution. Yet there is inadequate evidence on whether any of these institutional processes or outcomes can actually contribute to a state of closure for survivors.

As current research in disciplines including cognitive neuroscience, sociology, psychology, and political science suggests, emotions are dynamic processes that evolve in a reciprocal relationship with social structures. As the legal system becomes increasingly invested in helping victims and survivors achieve closure, we need to take a hard look at the emotional content of this concept, and at how it affects, and is affected by, the institutional framework in which it operates.

closure, death penalty, capital punishment, victims, emotion

Abstract:
In the 1980's hundreds of childcare workers were accused of sexually abusing children in horrific ways. Arnold and Jesse Friedman, whose prosecutions are chronicled in the film Capturing the Friedmans, were among those convicted and sent to prison during this period. Sociologists have called this series of prosecutions a classic moral panic: a widespread, hostile, volatile overreaction to a perceived societal threat. This paper examines the concept of moral panic in the context of the day care sexual abuse prosecutions in general, and the Friedman prosecutions in particular. It begins by exploring the role of the legal system in the construction of a moral panic, asking how a system which styles itself as rational and process oriented becomes the handmaiden of institutionalized hysteria. It then considers whether moral panic is a useful heuristic for understanding how justice was derailed in the Friedman cases and many others, and for determining what ought to be done to address the problem. It argues that the concept is limited in its ability to distinguish normatively between cases of overreaction and cases of institutional denial. Further, it suggests that, to the extent the concept of moral panic misconceives these periods of institutionalized hysteria as a series of isolated phenomena, it does not adequately address the deeply entrenched causes of injustice in cases like the Friedman prosecutions. The paper ultimately concludes that the concept of moral panic is useful because it reminds us of the cultural and historical contingency of notions of criminal justice and criminal deviance. Nevertheless, the concept has limitations that render it inadequate to address the hurdles to justice encountered in the Friedman cases. Most prominently, the concept is hindered by its retrospective nature. Like the question of guilt or innocence, the notion of moral panic is backward-looking, and therefore not well suited to addressing the prospective question of how the justice system can be reformed to dismantle ongoing, systemic hurdles to criminal justice.

Moral panic, law and film, criminal justice

Abstract:
Substantial work has been done on media's coverage of crime, and particularly violent crime. However, very little work has been done on media's relationship to the death penalty, a topic that presents its own set of complex challenges. This article examines the feedback loop between law and media in the capital punishment context. It first discusses the ways in which the perceived requisites of the media, particularly television, shape coverage of capital punishment. These requisites include the need for immediate, discrete and filmic occurrences, the demand for official sources, and the influence of dramatic conventions like stars and villains, a clear moral, and definitive closure. The paper argues that media coverage governed by these requisites gives short shrift to problems of justice and fairness in individual capital cases, and pays even less attention to broader, systemic problems plaguing the American system of capital punishment. The paper then argues that the administration of the death penalty is, in turn, strongly influenced by the media at a number of crucial pressure points. The feedback loop is especially visible at the legislative juncture, when crime control policies are made; at the prosecutorial juncture, when discretion about capital charging is at work; and at the adjudicative juncture, when both judge and jury must make difficult decisions about sentencing.

Abstract:
Victims of horrific crimes, or those who survive those victims, often describe themselves as seeking closure, a way to go on with their lives in the aftermath of unimaginable pain and loss. This article is an attempt to examine the notion of closure in this highly charged context. Looking at the statements of the parents of murdered children in two well known cases - the case of the California Freeway Killer and the Matthew Shephard case - the article notes that different victims (or survivors) may seek closure in different ways. Both forgiveness and the desire for vengeance may play a role in the quest for closure, for example. The question of what victims and survivors need and deserve has a number of components: psychological, philosophical and moral; theoretical and empirical. This article suggests, first, that the notion of closure is complex, and that the needs of victims vary, and that, therefore, we ought to proceed carefully when making assertions about what victims need in order to achieve closure. Second, the article argues that the question of what victims need must be distinguished from the question with which it is often conflated, of what role the state ought to play in assisting victims and survivors in achieving closure.

Abstract:
Dan Kahan's recent article, Two Conceptions of Emotion in Risk Regulation, continues a useful exchange between Kahan and Cass Sunstein about the differences between their prominent approaches to risk regulation: Kahan's cultural cognition approach, which inquires into how emotional appraisals of value influence decision making, and Sunstein's heuristics and biases approach, which focuses on the cognitive mechanisms that shape perceptions about risk. A major contribution of Kahan's work has been its insight into the pervasiveness of emotional influences on the decision-making process. The recognition that emotion pervades decision making raises a difficult normative question: how to distinguish the influences that contribute to good judgment from those that distort judgment. This normative question in turn gives rise to a difficult practical question: how to address the influences that cause distortion. In this brief Response, I argue that tackling this evaluative task requires avoiding mirror impulses: emotions should neither be privileged as inherently desirable nor marginalized as inherently irrational. They should be judged based on what they contribute to the cognitive task at hand. The task at hand, as the Kahan/Sunstein debate defines it, is determining how government should regulate risk. In exploring the question of how this task is best approached, I will also raise a question about how it is defined. I suggest that the very act of framing issues of government policy in terms of risk regulation reflects certain assumptions about how issues present themselves and what sorts of cognitive processes might be required to address them.

emotion, heuristics, bias, risk regulation, cultural cognition

Abstract:
Concern over wrongful convictions has led to an innocence movement that has managed to bridge ideological divides, rouse the public to action, and achieve unprecedented success in reforming the operation of the death penalty. This movement is now at a critical juncture. Exonerations based on DNA evidence are beginning to decline, and the public's attention is beginning to stray. Yet there is an enormous amount of work left to be done. In this short essay, written as part of the symposium Beyond Biology: Wrongful Convictions in a Post-DNA World, I explore the debate over the content of the category wrongful convictions. The definition of persons who should be considered wrongfully convicted is hotly contested by both supporters and opponents of capital punishment. Delineating the category also raises another highly controversial issue: how to characterize the governmental conduct that leads to these miscarriages of justice.

I consider whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. Does framing the problem in this way help or hinder the larger debate about what is wrong with the death penalty and how to fix it? I suggest that though we should learn from the successes of the wrongful convictions movement, we need to look beyond innocence and find ways to evoke outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is sometimes essential to identify and condemn intentional misconduct, the focus on malice and intent can be ineffective and even counterproductive.

The challenge is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness. As we consider the evolving shape of the death penalty reform effort, we should explore why certain ways of framing injustice have so much power.

capital punishment, wrongful convictions, police misconduct

Abstract:
The language of legal theory tends not to welcome or even acknowledge the influence of emotional variables. There exists an established discourse about values, which discusses, for example, the value of autonomy to the way we live our lives. But discussion of love, fear, dependency, intimacy and other emotions which bear on the way we live our lives is not an acceptable part of this discourse. Feminist jurisprudence offers a rich literature on these emotions, their relevance to notions of autonomy, and their impact on the sorts of autonomy women value. However, the insights of this literature are generally cordoned off from mainstream legal thought. The article considers why concepts like autonomy are considered an appropriate subject for mainstream legal discourse, while concepts like love and dependency remain marginalized, and raises questions about the costs of this marginalization.

Abstract:
Standing doctrine erects formidable hurdles for crime victims as well as for others concerned about inconsistent or inadequate enforcement of the criminal laws. Unfortunately, it is difficult to have a reasoned debate about victim standing, both because of the arcane nature of some of the procedural doctrines involved, and because of the polarized nature of the victims' right debate in general. This paper seeks to separate some of the strands of this debate which are too often conflated.

Although many victims' rights initiatives pose dangers to the ability of defendants to receive a fair trial and sentence, there is nevertheless ample room to reform the treatment of victims without diluting defendants' trial-related rights. Many legitimate reforms sought by victims' rights advocates have been thwarted by judicial construction of standing law and related doctrines designed to insulate government, and particularly prosecutors, from any meaningful oversight or accountability.

The thesis of this article is that the sorts of victim initiatives that have been successful have been those, and only those, that advance the prosecution's own agenda, while preserving the prosecution's complete freedom from third-party interference. To the extent victims seek their own standing to litigate or enforce interests that might diverge from the prosecution's, they have been unsuccessful--ending up instead mainly with unenforceable promises and the opportunity to assist (or, some would say, be used by) the prosecution in attaining a harsh sentence.

The victims' rights debate conflates a number of separate issues, which this article seeks to disentangle and examine carefully. First, the abuse of prosecutorial discretion can reach constitutional magnitude, to the extent it singles out protected groups like racial minorities or women, and any discussion of victim standing must recognize the issues raised by such cases. Second, a number of reforms that would be advantageous to victims would not conflict with the rights of the accused. Finally, the assumptions underlying the denial of standing in many of these cases are at best malleable and politically charged, at worst wrongheaded and harmful--to victims and to others as well.

Abstract:
This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is out there and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded activist. Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.

judicial role, popular culture, rule of law

Abstract:
This paper, part of a symposium on Federal Courts and Foreign Affairs, considers a question posed by Carlos Vaszquez: should treaties be treated differently from federal statutes when determining whether they abrogate sovereign immunity? The paper first considers the question in light of current sovereign immunity doctrine, and argues that the question of treaties ought to be considered separately from that of federal statutes, and that this can be done without resort to foreign affairs exceptionalism. The paper then turns to the underlying problems with abrogation doctrine itself, arguing that these problems, while they remain largely hypothetical as to treaties, pose a major threat to the supremacy of federal law as applied to statutes.

Abstract:
It is often assumed that the anger, outrage and other strong emotions provoked by repellent crimes interfere with rational deliberation. There is some truth to the notion that heinous murders and other shocking crimes place an enormous strain on the criminal justice system, and may exert a destructive influence on institutional process. Nevertheless, the argument that strong emotion interferes with rational deliberation begs the question: what is rational deliberation? This article argues for an understanding of rational deliberation that recognizes its pervasive emotional content. It suggests that the legal system operates on certain misconceptions about emotion that are themselves harmful to institutional process. The most pervasive misconception is that the very attempt to address emotion is destabilizing to the rule of law. Though the legal system rarely incorporates scientific or social-scientific knowledge of emotional dynamics, it nevertheless operates on its own assumptions about how emotions work. It tends to take three approaches to emotion: requiring it to be "set aside" (e.g. the anti-sympathy instruction); permitting it to be "introduced," (e.g. the victim impact statement) and ignoring it (e.g. the refusal to clarify the meaning of life without parole despite evidence that juries misunderstand the term and that clarifying it will affect their sentencing decisions).

I will argue that the legal approach to emotion and rationality is based on three primary misconceptions about the nature of emotion: 1) that emotions are tangible objects with an identity independent of the person they are in, or the institutional context in which they occur; 2) that emotions are private and internal feelings, rather than processes that take shape in a social world; and 3) that emotions are bursts of uncontrollable passion that short-circuit rational deliberation. Using the example of capital punishment, the article illustrates that these misconceptions have serious consequences for the structure and functioning of the capital system.

capital punishment, death penalty, emotion, criminal justice

Abstract:
This short essay addresses the contention that empathy in judging is inconsistent with the rule of law. It first argues that empathy, defined as the ability to take the perspective of another, is an essential judicial attribute. Some of those who argue against empathy are in fact taking issue with the notion of sympathy for particular litigants or classes of litigants. Empathy aids a judge in grasping the stakes for all the litigants. However, it does not help resolve whose claims should prevail. The essay then explores the more difficult question that follows: if empathy for all litigants is desirable, does President Obama’s expressed desire to appoint judges with “the empathy to recognize what it’s like to be a young teenage mom” and empathy for other historically disadvantaged groups conflict with rule of law values? Obama’s remarks can be interpreted as a direct challenge to a particular conception of the rule of law - the notion of the judge as umpire who approaches legal issues with no preconceptions. As the “pop quiz” that begins the article illustrates, judges routinely exercise empathy for particular groups, finding some perspectives more accessible than others. This sort of selective empathy can be ameliorated, to an extent, by judges who are aware of their own blind spots and the limits of individual perspective. More effectively, it can be addressed by aiming for a Court with a range of backgrounds and life experiences. Supreme Court justices, like the rest of us, make better decisions in an atmosphere of lively debate than in an echo chamber.

empathy, judicial decison-making, judges, courts

Abstract:
This is a brief introduction to the symposium "Emotion in Context: Exploring the Interaction between Emotions and Legal Institutions," published in the Vermont Law Review. The conference that led to this symposium took place at the University of Chicago Law School in May 2008, exactly a decade after the first University of Chicago Law School conference on law and emotion. Significant progress has been made during those ten years. The inquiry has shifted from whether emotion plays a role in legal reasoning to how emotion and legal reason interact, and to which emotions ought to play a role in particular legal contexts.

We design our institutions based on assumptions about human behavior, and the interdisciplinary study of emotion has offered valuable insights into whether these assumptions are well grounded. The next step is to explore how generalizable these insights are: that is, whether emotional dynamics remain stable across institutional contexts. The papers in this volume explore the complex interaction between emotion and social structure to consider both how institutional context affects the experience and expression of emotion, and how emotion norms affect the shape and operation of a range of legal institutions. The volume includes articles by Scott Anderson, Susan Bandes, Mary Anne Case, Kevin Claremont, Christoph Engel, Richard Epstein, Oliver Goodenough, and Cass Sunstein.

emotion, cognitive neuroscience, legal institutions

Abstract:
It becomes increasingly apparent that our familiar doctrinal tools - text, history, precedent, public policy - will take us only so far in deciphering the Supreme Court's protective, almost reverential attitude toward the states' sovereign immunity. University of Alabama v. Garrett and other sovereign immunity cases contain numerous signals about the Supreme Court's emotional commitments and blind spots: toward Congress, toward civil rights plaintiffs and civil rights statutes, and toward its own prerogatives. These cases, as they help redraw the boundaries between the Court and Congress, and between federal and state government, are animated by empathy for some actors and failure of empathy toward others, by assumptions about who is worthy of trust, who is likely to act in bad faith, and whose dignity needs protecting. The article suggests we should pay closer attention to the unarticulated emotional commitments at play in Garrett and related federalism cases, so we can better evaluate the vision of constitutional federalism they advance.

Abstract:
This paper was written for a symposium on judicial accountability and independence, in response to Charles Geyh's paper, "Rescuing Judicial Accountability from the Realm of Political Rhetoric." Geyh's article is a valuable and ambitious effort to bring some substance and clarity to the overused, under-theorized notion of judicial accountability. In service of this goal, Geyh suggests a taxonomy for organizing judicial accountability into three categories: institutional, behavioral and decisional. He argues that sanctions for decisional errors may be appropriate in the rare instances in which those errors are not honest mistakes but deliberate usurpations of political power. In this article I raise concerns about both the taxonomy and the defense of sanctions for intentional error. As to the first, I argue that Geyh's proposed taxonomy both overstates the demarcation among the types of accountability it lists, and fails to adequately define the underlying notions of politics and activism so essential to the author's argument. My second concern follows from the first. Without a theory for what counts as political in the sense of inappropriately non-judicial, it is difficult to evaluate whether willful disregard of the law should be characterized as a deliberate usurpation of political power or whether sanctioning such acts will further accountability's proper purposes. I conclude that it is neither possible nor desirable to isolate the category of decisions that are inappropriately political and deserving of sanctions.

judicial accountability, courts

Abstract:
In *Engaging Capital Emotions,* Douglas Berman and Stephanos Bibas argue that emotion is central to understanding and evaluating the death penalty, and that the emotional case for the death penalty for child rape may be even stronger than for adult murder. Both the Berman and Bibas article and the subsequent Supreme Court decision in Kennedy v. Louisiana (striking down the death penalty for child rape) raise difficult questions about how to measure the heinousness of crimes other than murder, and about the role the pain suffered by victims and victims' families should play in this inquiry.

In this Reply, I agree with the authors on the importance of confronting emotion's role in capital punishment, for reasons I discuss in Part A. However, I disagree with their claim that the moral outrage evoked by child rape supports making it a capital crime. Part B explores the difficulties of using the existence of moral outrage as a measure of appropriate punishment. Part C argues that the penal system should not merely reflect moral outrage, but channel and educate it. It suggests that the availability of the death penalty may create an anchoring effect, communicating the message that the death penalty is the proper way to express moral outrage and to honor the worth of murder victims. It explores the consequences of this message. Section II focuses on the role of emotion in deciding whether child rape should be a capital crime. Part A considers the problematic role of victim harm in determining whether the death penalty is appropriate. It explores the question, raised in Kennedy v Louisiana, of whether the effect of a capital trial on child rape victims ought to be part of the calculus. Part B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious effect of anger and empathy, the problem of generic prejudice, and the issue of race.

death penalty, capital punishment, child rape, emotion, moral outrage

Abstract:
This is a review of George Thomas’s important and provocative new book, THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT DEFENDANTS. Thomas argues that protection of the innocent is the primary goal of the criminal justice system, and that the adversary system has proved poorly suited to advancing that goal. In addition, he argues that Warren Court reforms exacerbated the problem, creating a system in which procedural protections have become an end rather than a means toward achieving justice. He argues that our system would do well to adopt many aspects of the inquisitorial system, and particularly the French system. The review gives an overview of the book, and then explores two of its central arguments. First, to what extent are the root causes of wrongful convictions tied to the adversary system, or to the current U.S. version of the adversary system, and to what extent do they transcend national culture? Second, is Thomas correct that protecting the innocent is the primary goal of the criminal justice system, and that the focus on process conflicts with that goal?

comparative law, wrongful convictions, adversary system, actual innocence, criminal procedure

Abstract:
This essay, written for a symposium on the book Crime and Culpability: A Theory of Criminal Law, by Larry Alexander, Kim Ferzan and Stephen Morse, responds to the authors’ argument that the criminal law should not punish negligent behavior. The authors argue that criminal culpability should be measured in light of the level of risk the actor himself perceives, and that we are not morally culpable for taking risks of which we are unaware, even if our lack of awareness is objectively unreasonable. They contend that for the negligent actor, the failure to advert to risk is beyond the actor’s control, and beyond the influence of the criminal law, at the critical moment of action. It follows, they argue, that negligent conduct should not be culpable, since punishing negligence would require holding actors responsible when their failure to advert to a risk, however unreasonable, did not entail a conscious choice.

The consequences that flow from the authors’ initial descriptive assumptions about awareness and choice are significant. The authors declare objective reasonableness standards for evaluating negligent behavior off-limits since objective standards would lead to punishment for a state of mind the actor did not in fact possess. And because the authors assume that negligent behavior lacks the element of choice and therefore falls below the threshold for culpability, they deem it improperly consequentialist to consider whether punishing negligence would promote the penal goal of communicating and enforcing norms for future conduct. The essay raises concerns about this distinction, questioning whether the criminal law's norm-creation and norm-enforcement functions can be readily distinguished from its role in assessing moral desert.

One obvious drawback of doctrines that insulate negligent conduct from criminal liability is that they reward heedless and clueless behavior. The actor who somehow failed to advert to well-know risks is off the hook, while the actor who adverted to such risks and engaged in the risky behavior anyway may be liable. Nevertheless, this essay does not argue that criminal negligence liability is necessarily a matter of good policy. It argues that the authors have taken the policy debate off the table based on contestable assumptions about the nature of consciousness, choice and character. The authors’ normative argument that negligence liability must be rejected as a threshold matter relies heavily on their descriptive assumption that the negligent actor is impervious to influence or correction - an assumption that is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience.

criminal negligence, culpability, cognitive psychology, neuroscience

Abstract:
Although neither blame nor responsibility is a term capable of precise definition, blame is a concept with particular resonances - both moral and emotional. Blame evokes a highly personal expression of the wrongdoer's attitudes or emotions toward the victim, whereas responsibility connotes a professional violation of shared, externalized norms. This article identifies an increasingly pronounced tendency to premise government liability on a demand for blameworthy behavior of a type in which entities rarely engage, rather than on standards of responsibility better suited to measuring the behaviors and duties of governmental entities. It argues that the tendency has had unfortunate consequences for the scope of municipal liability jurisprudence.

Abstract:
Part I of this Article considers the topic of emotion in the law. In large part, it is an appreciation of the current scholar ship, which has laid to rest the notions that law can be an emotionless endeavor and that reason can operate in a sphere untouched by emotion. However, it also identifies the need for a more nuanced exploration of these issues. Specifically, Part I notes that the current scholarship tends to treat emotions as monolithic, unambiguous entities; it has yet to contend with - much less incorporate in any meaningful way - the complex, unruly field of emotion theory.

Part I concludes that the recent scholarly focus on benign emotions such as empathy, compassion, and caring has been crucial in challenging the marginalization of these emotional modes in the legal context. Nevertheless, we must avoid placing undue faith in the power of these benign emotions and ask the difficult questions of what role these emotions ought to play and in which legal contexts they ought to play that role.

Part II follows a similar pattern. It is largely an appreciation of the scholarship on narrative, which has illuminated the pervasive narrative structure of legal discourse. Much of the narrative scholarship has focused on outsider narratives, which might be defined as stories by members of groups usually subordinated in, or excluded from, mainstream legal discourse. These stories both challenge preconscious assumptions about such subordinated or excluded groups and expose the partiality of the dominant narrative - that which masquerades as the universal perspective. Part II argues that the notion of outsider narrative is significant, first, because it provides a crucial normative grounding for narrative scholarship, and second, because in doing so it reveals the limiting principle that explains why more narrative is not always better.

I conclude that neither narratives nor benign emotions such as caring, empathy, or compassion are always helpful or appropriate in the legal arena. Whether a particular narrative ought to be heard, or a particular emotion expressed, depends on the context and the values we seek to advance. Part III applies the normative analysis and the limiting principle developed in Parts I and II in the concrete context of victim impact statements. In Part III, I argue that victim impact statements are narratives that should be suppressed because they evoke emotions inappropriate in the context of criminal sentencing. Specifically, victim impact statements appeal to hatred, the desire for undifferentiated vengeance, and even bigotry. In doing so, they may block the sentencer's ability to perceive the essential humanity of the defendant. More subtly, victim impact statements, in their insistence on evaluating the worth of victims, offend the dignity of the victim as well.

Abstract:
In the conventional wisdom, the Constitution is a charter of negative liberties. Governmental inaction is not actionable. The due process clause grants no affirmative rights. These phrases are meant to signal the end of discussion. Yet when conclusory incantations permit harm to flourish unchecked, they ought to be scrutinized with care. This article undertakes that scrutiny. Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.

negative liberty, positive rights, DeShaney, affirmative obligations

Abstract:
In an article in this symposium, Paul Cassell takes issue with the position I espoused in my 1996 article: Empathy, Narrative and Victim Impact Statements (63 University of Chicago Law Review 361 (1996)). In that article I argued that victim impact statements wrongly divert the capital jury from its duty to shift its gaze from the question of the defendant's guilt for a heinous murder to the question of whether this particular murderer ought to be killed or spared. Cassell argues that victim impact statements do not divert sentencers from this focus, but instead provide crucial information to judges and juries about the full harm caused by a murder. He further argues that victim impact statements will not increase the incidence of death sentences, but instead will aid victims in the healing process.

This reply considers the evidence Cassell advances to support his empirical claims. It concludes that Cassell offers no empirical support for his claim that capital juries will receive crucial information from victim impact statements, and instead offers a misleading and dangerous simple test for evaluating the information offered by such statements. Second, it concludes that Cassell's empirical claim that victim impact statements will not increase the incidence of death sentences is contradicted by the available evidence. Finally, it concludes that Cassell offers no empirical proof for his claim that victim impact statements aid victims in the healing process and that the available evidence is inconclusive at best.

Abstract:
This paper critiques the result in the Supreme Court's recent thermal imaging case: Kyllo v. United States. More broadly, it critiques the emphasis in Fourth Amendment jurisprudence on privacy, and the recent emphasis, as embodied in Kyllo, on technological advance as a particular species of Fourth Amendment problem. The paper argues that the focus on technology is problematic because it deflects from the inquiry into the cocnern for abuse of governmental power. For example, Fourth Amendment law took a serious wrong turn when it held police spying to fall outside the parameters of a search. The police spying cases are objectionable because they conflate private with governmental misconduct. Although technological advances have exacerbated the harm of police spying, the harm itself does not depend on technological enhancement. Kyllo's general use requirement, which was adopted to curb the determinal effects of technology on Fourth Amendment law, illustrates the problems with unduly focusing on technology. As the paper argues, this requirement fails to address the problems with technological advance in particular, and the Fourth Amendment more broadly, because it will ultimately diminish privacy, and because it does not adequately address the issue of inequality.

Abstract:
This article reviews Ed Purcell's book, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000). The Review first turns, in Part II, to a discussion of Purcell's historical account of the age leading up to Erie, the creation of the Erie opinion itself, and its subsequent doctrinal evolution under rapidly evolving historical conditions. This Part focuses, in particular, on Purcell's account of the myriad ways in which political, social, and cultural influences affect the scope of the federal judicial power over time. It considers the broad political and social trends, the influence of interest groups - including the bar - and the ways in which certain highly influential jurists, particularly Justices David Brewer, Felix Frankfurter, and Louis Brandeis, and Professor Henry Hart, helped shape the evolution of legal doctrine. Specifically, Section II.A examines the expansion of the federal judicial power during the late-nineteenth-century era of federalizing commercial and industrial interests. This Section also focuses on Justice David Brewer's contribution to the expansion of Swift v. Tyson. Section II.B focuses on Justice Brandeis, his role in crafting the Erie decision, and the influences and constraints affecting that role. Section II.C focuses on the path of the Erie doctrine in the aftermath of the Progressive era, and particularly on the role of Frankfurter, Hart, and the other expositors of the doctrine of neutral principles in recasting the significance of Erie and its conception of federalism. This Part examines these influences in order to pose the question of whether a greater recognition of these influences, and the interactions among them, would enrich and improve upon the conventional ahistorical legal account of the development of doctrine. Part III considers this question. In Section III.A, I posit that although law and history are not entirely congruent in their purposes, history nevertheless can offer valuable insights into the ingredients of a principled legal jurisprudence. As Purcell shows, historical context can shed light on the ways in which, for example, the one true federalism of one era becomes the discredited formalism of the next. In documenting the changing nature of American institutions and of scholars' attitudes toward them, history reminds observers to approach current claims for timeless verities and immutable federal-state ordering with caution. Thus, in Section III.B, I examine the still influential defense of value-neutral federalism that undergirds the doctrine of neutral principles of jurisdictional law. To the extent the doctrine of neutral principles is premised on the desirability of excluding nonlegal considerations from judging, it poses a direct challenge to the argument that historical context can enrich jurisdictional doctrine. Thus, it is important to understand the historical context in which the doctrine itself arose. Here I argue that the doctrine was premised on an undefended and historically contingent belief in the possibility of value-neutral judging that should have little continuing validity. In Section III.C, I argue that this misguided belief in the possibility of a value-neutral, internally coherent body of jurisdictional doctrine has much in common with the brand of formalism that characterizes the New Federalism of the Rehnquist Court. This Section offers a critique of this aspect of the New Federalism, which, I argue, sacrifices concern for substantive justice for a questionable notion of predictability and coherence. Section III.D argues that jurisdictional doctrine, and the doctrine of federalism in particular, would benefit from more explicit recognition of the political and social values that have always shaped them, and that will inevitably continue to do so. It argues that a notion of federalism that acknowledges its social, political, and historical influences holds out the possibility of being more principled - more flexible, more responsive to changing conditions, more concerned with substantive justice, less likely to calcify around an illusion of coherence that has lost its normative hold. It concludes that Purcell is correct in suggesting that Justice Brandeis offers a model for this type of jurisprudence.

federalism, federal courts, federal jurisdiction, neutral principles, Justice Brandeis

Abstract:
This review critiques the notion that the first principles underlying the Fourth, Fifth and Sixth Amendments are the pursuit of truth and the protection of innocence. In identifying these principles, Professor Amar claims to be describing societal values that are both deeply rooted in history and at the core of contemporary concerns. It is crucial to examine these claims, not only to respond to Amar's thesis, but also because the Supreme Court has increasingly espoused - and relied upon - similar views.

The first part of the article examines the inadequacies and dangers of truth and innocence as animating principles. The second part discusses the ways in which Amar and others tend to treat the criminal procedure amendments as a world apart from the rest of the Bill of Rights. It argues that, despite Amar's desire to identify overarching constitutional principles, he instead advocates a set of principles for criminal procedure that conflict with the substantive and remedial values he elsewhere holds dear.

criminal procedure, Akhil Amar, innocence protection, search for truth

Abstract:
The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore the messages popular culture communicates about Miranda and the conduct of police interrogations. We ask not only what legal norms about police conduct are transmitted through television, but also what role television itself has in creating those norms. We also explore an ancillary question: if so many people know their rights, why don't more people assert them -- both on television and in real life?

Abstract:
The Article III requirement that the federal courts decide only cases and controversies delineates the reach of the federal judicial power. The meaning of the case requirement is thus a primary issue of constitutional interpretation. Nevertheless, there is no overarching definition of a case. The Supreme Court treats the case requirement as a receptacle, filling it with specific doctrines as the need arises. Working from the outside in, the Court seeks to reach the central definitional issue by solving, ad hoc, the problems it poses. Scholars, too, tend to study the case limitation by examining only the doctrines it has spawned. The failure to define an Article III case has atomized the doctrines designed to implement the case limitation. This atomization leads to conflicting, unpredictable decisions and impoverishes the field by treating insights about each doctrinal area as nontransferable. Part I describes how the courts and commentators have failed to formulate a coherent definition of the case requirement. Part II examines the current assumptions underlying interpretation of the case limitation. Part III develops an idea of a case from the premise that the primary role of the federal courts is to enforce the Constitution. It then demonstrates that the resulting public law model produces a coherent vision of a case, and applies that vision to resolve the questions raised in Part I.

case and controversy, federal jurisdiction, standing, justiciability

Abstract:
This anthology of original essays by leading scholars of law, theology, political science, classics and philosophy treats the role that emotions play, don't play, and ought to play in the practice and conception of law and justice. Lying at the intersection of law, psychology, and philosophy, the emergent field of emotion theory raises some of the most profound and interesting questions at the heart of jurisprudence. For example, what role do emotions ranging from disgust to compassion play in the decision-making processes of judges, lawyers, juries and clients? What emotions belong in which legal contexts? Is there a hierarchy of emotions, and if so, through what sources do we identify it? To what extent are emotions subject to change or tutelage? How can we evaluate the role of emotion in such disparate contexts as death sentencing, laws about same sex marriage, hate crime legislation, punitive damages or shaming penalties? The essays in this volume reveal that the role of emotion in these and other legal contexts is much greater than most of us tend to think. The anthology is divided into four main parts: Disgust and Shame; Remorse and the Desire for Revenge; Love, Forgiveness and Cowardice; and The Passion for Justice. Contributors include, among others, Martha Nussbaum, Richard Posner, Bill Miller, Martha Minow, Jeffrie Murphy, Dan Kahan and Austin Sarat.