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Abstract:
Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship's development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research.

The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal relevance is deserving of close scrutiny. It is organized around the following six approaches:

Emotion-centered: Analyze how a particular emotion is, could be, or should be reflected in law.

Emotional phenomenon: Describe a mechanism by which emotion is experienced, processed, or expressed, and analyze how that phenomenon is, could be, or should be reflected in law.

Emotion theory: Adopt a particular theory (or theories) of the emotions and analyze how that theory is, could be, or should be reflected in law.

Legal doctrine: Analyze how emotion is, could be, or should be reflected in a particular area of legal doctrine.

Theory of law: Analyze the theories of emotion embedded or reflected within a theoretical approach to the law.

Legal actor: Examine how a legal actor's performance of her function is, could be, or should be influenced by emotion.

Any given study within the law-and-emotion rubric will have its primary grounding in at least one of these approaches, but should strive to attend to each. Thus, it should identify which emotion(s) it takes as its focus; distinguish between those emotions and implicated emotion-driven phenomena; explore relevant and competing theories of those emotions' origin, purpose, or functioning; limit itself to a particular type of legal doctrine or legal determination; expose any underlying theories of law; and make clear which legal actors are implicated. Directions for future research include greater attention to: non-criminal law; positive emotions; a wider variety of emotion theories and theories of law; and a broader range of legal actors. Cross-disciplinary collaboration will be particularly useful in this endeavor.

Emotion, cognitive neuroscience, psychology, behavioral economics, empirical, affect, mood, cognition

Abstract:
Adjudicative competence, more commonly referred to as competence to stand trial, is a highly undertheorized area of law. Though it is well established that, to be competent, a criminal defendant must have a rational as well as factual understanding of her situation, the meaning of such rational understanding has gone largely undefined. Given the large number of criminal prosecutions in which competence is at issue, the doctrine's instability stands in stark contrast to its importance.

This Article argues that adjudicative competence, properly understood, asks whether a criminal defendant has capacity to participate meaningfully in the host of decisions potentially required of her. Further, sound assessment of such capacity requires attention to both the cognitive and emotional influences on rational decision-making in situations of personal relevance and risk. The role of emotion has been neglected, both in traditional accounts of decision-making and in assessments of adjudicative competence, and merits particular attention. This Article explores two examples of potentially competence-threatening emotional dysfunction - severe psychiatric mood disorder and organic brain damage - either of which may interfere unreasonably with decision-relevant emotional perception, processing, and expression. Existing legal theory and forensic testing methods, which reflect a predominantly cognitive approach, do not account adequately for such dysfunction. Shifting the adjudicative competence inquiry away from a general search for rationality and toward a more finely-grained examination of the cognitive and emotional influences on rational decision-making processes offers our best hope for giving meaning to rational understanding.

criminal law, criminal procedure, psychology and psychiatry

Abstract:
In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to its holder - but this appearance is misleading.

This Article articulates and evaluates the Court's reliance on emotional common sense in constitutional law. It demonstrates that emotional common sense sometimes imports into law inaccurate accounts of the world. Justices of every ideological orientation invoke it in a manner that comports with their desired ends. Emotional common sense colors interpretation of evidence, manifests in selective perspective-taking, and shapes jurisprudential choices. Common-sense evaluation of the emotions also necessarily embodies underlying beliefs and values; enforcing them on others under the guise of simple truth silently forces a false consensus.

Emotional common sense has a limited place in constitutional law. It may be cautiously embraced where an emotional phenomenon is relatively basic and universal. In all other cases the embrace should be withheld. Evaluating isolated instances in which the Court has looked beyond emotional common sense, the Article shows that a superior path exists.

emotion, common sense, law and psychology, abortion, post-abortion regret, judging

Abstract:
Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims — for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself — for example, individual variation — also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decision-makers’ beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values.

Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors — good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services — that are both more important and subject to greater direct control.

neuroscience, juvenile justice

Abstract:
In a contribution to this Symposium on Law and Emotion: Re-Envisioning Family Law, Phillip Shaver and his co-authors succinctly encapsulate contemporary psychological theory on interpersonal attachment -- primarily parent-child attachment and its role in creating lifelong attachment patterns -- and seek to outline the relevance of such research for both social policy and law.

This Comment demonstrates that many areas of family law already seek to cultivate and reward attachment. But attachment is not and cannot be the sole-or even, perhaps, the most important-factor driving most legal determinations. Recognizing the importance of secure attachment does not answer difficult questions about how best to achieve it, particularly within the context of competing claims. In fact, taking an attachment perspective in isolation might lead to normatively bad outcomes. However, there are instances in which an attachment focus should be legally determinative, for it may sometimes illuminate outcomes that are all upside and no down. The Comment concludes by offering some thoughts about law-relevant social policy implications.

emotion, family law, child welfare, divorce, foster care, adoption, psychology

Abstract:
In this brief Comment, Maroney offers a perspective based in the scientific study of fear and social-group judgment. She discusses research showing that humans display heightened, persistent fear responses to "outgroup" faces, and suggests ways in which such research might inform our assessment of intergroup conflict resolution.

Comment responsive to Douglas H. Yarn & Gregory Todd Jones, A Biological Approach to Understanding Resistance to Apology, Forgiveness, and Reconciliation in Group Conflict, 72 Law & Contemp. Probs. 63 (2009).

emotions, evolutionary biology, racial bias

Abstract:
The 1980s and 1990s witnessed an extraordinary amount of police, legislative, judicial, scholarly, and community activity around hate crime. Such activity was attributable to a new "anti-hate-crime movement," conditions for which were created by the convergence in previous decades of two very different social movements - civil rights and victims' rights. This anti-hate-crime movement has been radiply assimilated into the institutions of criminal justice, with the result that anti-hate-crime measures now reflect the culture and priorities of those institutions.

The civil rights and victims' rights movements created collective beliefs, structural resources, and political opportunities that facilitated the emergence of a social movement organized around hate crime and its victims. Hate crime laws were the most visible manifestation of the movement's legal impact, but represent but one aspect of a larger legal and societal response. Much of the success of the movement is attributable to the fact that anti-hate-crime measures fit easily into the values of the criminal justice system; however, that system remains weighted against hate crime victims and their communities. For target communities, the desire to be free from hate crime is inseparable from the desire to be free. Anti-hate-crime measures too frequently address the former but not the latter. To acheive its goal of systemic transformation of criminal justice, the anti-hate-crime movement must engage in critical self-reflection, invest in movement infrastructure, and recommit to challenging the very institutions of criminal justice with which it now cooperates.

hate crime, hate speech, social movements