A Moody View of the Law: Looking Back and Looking Ahead at Law and the Emotions

Abstract

Despite burgeoning as a field of study, and despite receiving substantial attention outside of academia – now – Justice Sotomayor’s “empathy” kerfuffle as the most prominent example – law and emotions has received little treatment as a unified field. A book-length treatment a decade ago began to organize the field, but lacked discussion of much empirical work in social science. Only in the last four years have efforts begun to taxonomize the study of law and emotions into a coherent whole, but even such efforts are primarily descriptive.

In the present paper I trace some history of the study of law and emotions, and give some account of where it is today; I then proceed to outline where the study may proceed in the future, laying out specific research agendas that legal and social science academics might profitably pursue. Specifically, I review early empirical research that viewed emotion as a corruptive influence on legal decision-making, and the assumptions that drove such research: assumptions that are largely still present today. I then review some of the current state of law and emotions, focusing on its effect in the contexts of jury decision-making, false memories, and terror management theory.

Finally, I look ahead and identify about a range of potentially fruitful research topics in law and emotion, including happiness, affective forecasting, moral decision-making, property law, paternalism, and several others.

A version of the paper was presented as invited commentary at the Nebraska Symposium on Motivation: Law and Emotion: Psychological Perspectives, Lincoln, NE (Apr. 2008), and will be published in Vol. 56 of the Symposium (2010).

Keywords: emotion, law and emotions, jury decision-making, paternalism, review chapter, affective forecasting, debiasing, happiness, public policy, positive psychology

JEL Classification: C70, C71, C72, C90, C91, C92, D10, D31, D60, D63