Annurev Lawsocsci 102811 173825

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Annu. Rev. Law Soc. Sci. 2012. 8:161–81 Keywords

The Annual Review of Law and Social Science is affect, cognition, deliberation, moral reasoning, social norms
online at lawsocsci.annualreviews.org
This article’s doi: Abstract

10.1146/annurev-lawsocsci-102811-173825
The field of law and emotion draws from a range of disciplines in the sci-
Copyright c 2012 by Annual Reviews. ences, social sciences, and humanities to shed light on the emotions that
All rights reserved
pervade the legal system. It utilizes insights from these disciplines to il-
1550-3585/12/1201-0161$20.00 luminate and assess the implicit and explicit assumptions about emotion
that animate legal reasoning, legal doctrine, the behavior of legal actors,
and the structure of legal institutions. In light of law’s focus on influ-
encing social norms and on structuring effective and just institutions,
one development that holds enormous promise is the growing inter-
disciplinary interest in collective decision making and in the emotional
dynamics of groups. Work in the affective sciences on how emotion
and cognition interact is another rich vein for legal scholars interested
in the assessment of responsibility and blame, the role of morality in
law, and a host of other areas. Another important frontier is exploration
of concrete solutions to the problems identified by law and emotion
scholars.
161
THE PROJECT IN BRIEF it rejects the fiction of pure, emotionless

rationality and explores precisely how
The field of law and emotion draws from a range
emotion and cognition interact. On the
of disciplines in the sciences, social sciences,
normative level, it explores the appropri-
and humanities to shed light on the emotions
ate role of emotion in the identification
that pervade the legal system. It utilizes insights
and implementation of legal norms and
from these disciplines to illuminate and as-
in the deliberative process for juries,
sess the implicit and explicit assumptions about
judges, and other legal actors.
emotion that are found in every area of law. By
reevaluating legal doctrine and policy in light 2. Second, at the level of specific doctrine,
of these insights, law and emotion scholarship law rests on myriad assumptions, both
contributes to a more informed, realistic, and explicit and implicit, about how emotion
effective framework for refining legal doctrine influences behavior and about how to
and reforming legal institutions. channel emotion to influence decision
The study of law and emotion is, in one re- making in desirable ways. Law and
spect, simply one of many interdisciplinary ef- emotion scholarship scrutinizes these as-
sumptions in light of evolving knowledge
forts to bring a measure of behavioral realism

to the legal realm. Yet the field faces a chal- about the role of emotion in decision
lenge that sets it apart from other law and social making across a range of disciplines.
science endeavors. Although the debate about 3. Finally, the field increasingly focuses on
the relationship between emotion and reason emotion not only as an internal and indi-
dates back to ancient times, there is a hardy folk vidual phenomenon but also as an essen-
knowledge portraying emotions as quick, hot, tial component of social and institutional
irrational bursts of feeling that short-circuit ra- dynamics. It thus sheds light on collective
tional deliberation and that are impervious to decision making, on the conditions that
study or correction (Maroney 2009). In the le- lead to legal change, and on the dynamics
gal realm, the term has long functioned as a of institutional behavior and institutional
catchall category for much of what law aspires reform.
to avoid or counteract: that which is subjec- This review begins with a brief history of
tive, irrational, prejudicial, intangible, partial, the field, followed by a definition of emotion
and impervious to reason. Therefore, one re- and some caveats about terminology. We then
curring task of law and emotion theorists is to turn to a necessarily selective overview of the
counter the misconception that acknowledging current range of scholarship. Finally, we sug-
and investigating the role of emotion in law is gest directions for future study.
an illegitimate endeavor and one that will have
a destabilizing effect on the rule of law (Bandes
2009c, pp. 491–95; Abrams & Keren 2010). A SHORT HISTORY
Law and emotion scholarship enriches un- The emergence of modern law and emotion
derstanding of the law on multiple overlapping scholarship was fueled by several interrelated
levels: trends. First, beginning in the 1980s and early
1. First, it poses a challenge to standard 1990s, the topic of emotion began attracting
accounts of rational deliberation and renewed scholarly attention in fields such as
legal reasoning.1 On the descriptive level,
when emotionally salient issues such as the role of fear in risk

assessment are at issue (Moran 2002). Given that emotions
1
Even the cognitive psychological literature on judgment un- help shape the heuristics and other cognitive tools that are es-
der uncertainty and the behavioral law and economics work sential to the task of information processing (Forgas & East
that grew out of it make little reference to emotion, except to 2003, Englich & Soder 2009), the literature would benefit
identify it generally as a distorting influence. This is so even from greater attention to emotional dynamics.
162 Bandes · Blumenthal

philosophy (Murphy & Hampton 1990, Nuss- ciplines more generally, see Hochschild (1983,
baum 1990), psychology (Clore et al. 1994), and pp. 201–22) and Kagan (2007, pp. 10–20).
sociology (Thoits 1989). Second, legal scholar- From an early focus on rehabilitating certain
Affective sciences:
ship took an interdisciplinary turn—rejecting positive emotions, on the field of criminal law, an emerging
the notion that all its questions could be an- and on the insights of psychology and philoso- interdisciplinary field
swered internally and seeking to incorporate phy, the scope of law and emotion scholarship composed of
insights from other fields. Finally, epistemolog- has expanded considerably. It now covers the psychologists,
neuroscientists,
ical challenges to notions of judicial objectivity range of positive and negative emotions;2 doc-
anthropologists, and
first raised by the legal realists were renewed trinal areas such as securities (Huang 2003), risk other researchers
and extended by feminists, critical race theo- regulation (Kahan 2008), foreclosure (White concerned with the
rists, and other scholars (Abrams & Keren 2010, 2010), family law (Huntington 2008), and role of emotion in
pp. 2005–6). Feminist jurisprudence in partic- trademark (Bradford 2008); and the insights of human behavior and
decision making
ular was an important force behind emergent a wide range of disciplines, including political
law and emotion scholarship, arguing that law science, sociology, and anthropology. One gal-
tended to privilege a version of reason that ex- vanizing development has been the growth of
iled important qualities such as empathy and the affective sciences in the wake of unprece-
compassion—qualities that were traditionally dented scientific access to the neural underpin-
dismissed as feminine and therefore not suffi- nings of social cognition and human emotions.
ciently rigorous (Henderson 1987, Minow &
Spelman 1988).
The necessary next steps in developing the DEFINITIONAL ISSUES: WHAT
field, as Bandes (1996) argued, were to move IS EMOTION? WHAT
beyond the rehabilitation of certain emotions, ARE EMOTIONS?
clarify that no particular emotional stance is One continual challenge of this emerging field
likely to be uniformly desirable or undesirable, is defining its central term: emotion (see gen-
and turn to a more specific consideration of erally ISRE 2007). Ideally, those who deploy
the value of emotions, whether positive or the category “emotion” or terms describing
negative, in defined contexts. As Maroney emotions in the legal realm will clarify their
(2006, p. 122) described it: “[T]his stage of working definitions, the context in which the
the movement reached a high-water mark terms are being used (Kagan 2007, p. 41), and
with The Passions of Law (Bandes 2000), which what legal consequences flow from the use of
brought together scholars from several corners the terms. Clarity about working definitions is
of the academy. . .with a series of essays on the a more achievable goal than attempting to gen-
relationship between law and a select group erate abstract universal definitions for complex,
of emotions, ranging from disgust to romantic elusive, and nonstandardized concepts. With
love. . . . Passions. . .prompted several book that caveat in mind, here is a provisional def-
reviews, the first publications in legal journals inition, distilled from current research across
to describe the emerging field as such, as well several disciplines: Emotions are a set of eval-
as multiple conferences and symposia on law uative and motivational processes, distributed
and emotion.” Such symposia have become throughout the brain, that assist us in apprais-
increasingly common (see symposia listed in ing and reacting to stimuli and that are formed,
the Related Resources section at the end of interpreted, and communicated in social and
this article; specific symposium articles are cultural context. They influence the way we
also cited throughout). For more in-depth
histories, see Maroney (2006, pp. 120–23),
2
Bandes (2009c, pp. 506–9), Abrams & Keren There has been a recent resurgence of interest in the positive
emotions and in their application to policy (see, e.g., Huang’s
(2010, pp. 2003–8); for excellent summaries of 2010 overview of happiness studies and legal policy; see also
the development of emotion studies across dis- Abrams & Keren 2007, Huang & Blumenthal 2009).
www.annualreviews.org • Emotion and the Law 163

screen, categorize, and interpret information; Nussbaum (2000) and Kahan (2000) on the
influence our evaluations of the intentions role of disgust in the law. Nussbaum takes the
or credibility of others; and help us decide view that disgust plays no salutary role in law
Mood: affective state
that tends to be more what is important or valuable. Perhaps most and leads mainly to discrimination against re-
transient and diffuse important, they drive us to care about the viled groups, whereas Kahan argues that dis-
and less attributable to outcome of our decision making and motivate gust helps demarcate areas in which law should
a particular source us to take action, or refrain from taking action, recognize strong moral opprobrium. Their dis-
on the situations we evaluate. agreement rests in part on their different no-
In short, the current consensus across disci- tions of the nature of disgust, which Nussbaum
plines is that emotions are not, as folk knowl- defines, drawing from Rozin & Fallon (1987),
edge would have it, occasional, intense, unpre- as an aversive reaction to animality and bod-
dictable moods that interfere with a steady state ily functions, and which Kahan views as more
of rationality. They are dynamic processes that akin to moral outrage. Readers are aided in
are integral to decision making (LeDoux 1996). this debate by the fact that both authors clarify
Whether and when emotions play a desirable their definitions of the term (Kahan 2000, p. 64;
role in decision making is a separate question, Nussbaum 2000, pp. 24–26).
as discussed below. Conversely, for an example of the legal con-

Terms for particular emotions, such as re- sequences of definitional imprecision, consider
morse, disgust, or fear, likewise elude fixed def- remorse. The legal system tends to behave as
initions, both across and within disciplines. As if remorse is a monolithic property and, more-
Kagan (1998, pp. 14–38) points out, for exam- over, one that can be reliably measured in a legal
ple, a neuroscientist seeking to measure fear re- setting. A perceived lack of remorse may lead
sponses in lab rats, an anthropologist studying to a longer sentence, a denial of parole, or even
fear responses to the approach of strangers, and a death sentence, and yet the legal system has
a child psychologist studying separation anxi- paid scant attention to determining what an ap-
ety all use the term fear but describe different propriate display of remorse ought to look like,
agents, targets, contexts, methodologies, and to evaluating the ability of various fact finders
research goals, and these need to be specified to ascertain whether a defendant is remorse-
to facilitate interdisciplinary interchange. One ful, or to considering how displays and inter-
seductive trap for jurists and legal scholars is to pretations of remorse might vary depending on
deploy such terms as if they have stable mean- age, race, ethnicity, or other variables (Duncan
ings not only within individual disciplines but 2002, Murphy 2007, Weisman 2009).
also when transported to the legal realm (see Scholars must remain alert to the per-
Bandes 2009d, pp. 8–13). Massaro (2000) elo- ils of imprecision in transporting terminology
quently critiques this tendency in her discus- and conclusions from one field to another.
sion of scholarship advocating the deployment Maroney’s (2006) law and emotion taxonomy
of shame to alter undesirable social norms. As provides a valuable organizing framework for
Massaro points out, the psychological literature scholars across the range of disciplines.
on shame “betrays very little consensus, other
than that this emotion is complex and central to
a person’s sense of self ” (p. 84). Nevertheless, as ILLUMINATION,
she argues, the ambiguities and nuances of the INVESTIGATION, AND
literature are “underplayed in the social norm INTEGRATION
model in order to make universal claims about
Illuminating and Investigating Law’s
human behavior” that are then relied upon to
Affective Dimensions
impose legal sanctions (p. 84).
One model of scholarship that avoids this As Abrams & Keren (2010, p. 2033) usefully
definitional pitfall is an exchange between describe, law and emotion scholarship seeks,

first, to illuminate the affective features of le- harms of workplace humiliation. Blumenthal
gal problems; second, to investigate these fea- (2008, pp. 20–26) argues that abortion jurispru-
tures through interdisciplinary analysis; and fi- dence fails to consider whether the fear or anx-
nally, to integrate understanding into practical, iety generated by informed consent warnings
normative proposals. Here we focus on the il- interferes with autonomous decision making.
lumination and investigation stages of the in- More subtly, assumptions about what counts
quiry, turning in the next section to how law as emotion may influence legal doctrine in ways
and emotion insights might be integrated and that go undetected. For example, appeals for
implemented. mercy may be coded as emotional and off-
In some contexts, the affective dimensions limits, whereas appeals for vengeance or ret-
of a legal problem are at least partially ex- ribution may be coded as garden-variety legal
plicit. Shaming punishments, for example, ex- arguments (Bandes 2009c, pp. 497–98). Much
plicitly seek to invoke the emotion of shame of the importance of the scholarship on law and
(Massaro 2000). Sentencing judges, jurors, and emotion lies in exploring the ways in which
parole boards emphasize the importance of a the categories of reason and emotion are de-
defendant’s display of remorse (Haney et al. ployed and in “challenging the notion of a neu-
1994, p. 163). Anti-sympathy instructions com- tral, emotionless baseline” in legal theory and
mand juries to put the emotion of sympathy practice (Bandes 1996, p. 370).
aside (California v. Brown 1986). Tort law seeks
to measure emotional distress (Madeira 2006). The role of emotion for various legal actors.
Criminal law regards homicides committed in There has long been a robust empirical litera-
the heat of passion as less culpable than cold- ture on jury decision making, albeit one that has
blooded murders (Lee 2003, Finkel & Parrott not had enough to say specifically about juror
2006). emotion (but see Hastie 2001, Sundby 2003,
More often, the affective component of law Kerr 2010) or about how the collective dynam-
is far less transparent. The illumination dimen- ics of the jury room differ from the emotions of
sion therefore includes “the task of highlight- individual jurors (but see Sunwolf 2004, Sundby
ing the unacknowledged ways that emotions are 2005, Lynch & Haney 2011). It is more recently
implicated in a particular legal setting” (Abrams joined by a literature on the role of emotion
& Keren 2010, pp. 2033–34), as described in the in negotiation (e.g., Ryan 2005). Nevertheless,
next section. the question of how emotion ought to figure in
the reasoning process of particular legal actors
The role of emotion in doctrine. Doctrines or legal entities—for example, jurors as a col-
often rest on implicit assumptions about lective entity, legislators (see Sanger 2012), or
emotion. For example, Calhoun (2000) argues judges—is ripe for investigation.
that objections to same-sex marriage rest upon The emotions of judges have generally re-
implicit assumptions about who is capable of ceived scant attention, which is unsurprising
romantic love. Bagenstos & Schlanger (2007) in light of the tenacity of the belief that the
argue that disability law is based on unstated jurist must rise above particular influences to
misapprehensions about the likely level of hap- dispense blind justice. Recently, however, the
piness and enjoyment of life attained by those emotional dynamics of judicial decision making
who become disabled. Or relatedly, doctrines have attracted substantial attention, prompted
may fail to acknowledge emotional effects in part by controversy over the role of empathy
or their consequences. Sanger (2009, p. 414) in judging (Bandes 2009a, Abrams 2010, West
argues that humiliation is the unexamined by- 2012). Scholarship has focused both on how
product of the requirement of judicial bypass judges deliberate (see, e.g., Posner 2008) and on
hearings for minors. Fisk (2001) argues that how the emotional dynamics of judicial delib-
employment law lacks a coherent theory of the eration affect judges (see, e.g., Maroney 2011b,

discussing how judges do and should regulate a discussion of the application of that research
their emotions). to the issue of victim impact statements) and
Scholars have used a variety of methods to work in cognitive science on emotion and moral
investigate the cognitive processes, emotions, decision making, with additional attention to
and intuitions of judges (in addition to the the subject of empathy.
time-honored methods of parsing judicial opin-
ions and reading judicial biography; see, e.g., Emotion and judgment. Substantial empirical
Pillsbury 2000). These methods include inter- evidence shows that emotion affects judgment
views (see Maroney 2011b); paper and pencil in a variety of ways. On the most basic level,
tests administered to test judicial intuitions and emotion helps sort, evaluate, highlight, and pri-
the interaction between intuitive and delibera- oritize information and provides an impetus to
tive thinking (Rachlinski et al. 2007) and also act upon it. It is “like an unseen lens that colors
to test judges’ implicit biases (Rachlinski et al. all our thoughts, actions, perceptions, and judg-
2009); empirical studies of the decisional dy- ments” (Goodwin et al. 2001, p. 10). Studies
namics of three-judge panels (Sunstein et al. show that emotion affects individuals’ percep-
2006); linguistic coding of the emotional tenor tions of probability and risk and their percep-
of Supreme Court justices’ questions at oral ar- tions of fact more generally (e.g., Loewenstein
gument (Black et al. 2011); and, at least po- et al. 2001; Bandes 2008a; Kahan 2008, 2011).
tentially, the use of neural imaging technology Further, affective influences often occur out-
(Maroney 2011b, pp. 678–79). side of conscious awareness, and people tend
to minimize their effects (Haidt 2001). Recent
The role of emotion in the reasoning studies on affective forecasting also suggest that
process. Emotion influences not only “the people tend to inaccurately predict how they or
content of cognition” but also “how people others will be emotionally affected in the future
think” (Forgas 2001, pp. xiv, emphasis in by negative events such as harm or injury or by
original). Cognitive science has progressed in positive events such as a monetary award (see
its understanding of the role of emotion in the Blumenthal 2005b, Bronsteen et al. 2008).
decision-making process by studying patients As part of an extensive body of work on the
with brain abnormalities or injuries that impair role of emotion in assessing legal responsibility
emotional functions (e.g., Damasio 1994, 1999; and blame, Feigenson (2010, pp. 46–47) identi-
Bechara et al. 2000). More recently, the field of fies four ways in which emotions can influence
cognitive neuroscience has employed powerful legal judgments: (a) by affecting people’s strate-
neuroimaging technology to investigate the gies for processing information; (b) by biasing
dynamics of reasoning and emotion’s role the perception, recall, or evaluation of facts in
in the process of judgment (see, generally, a particular direction; (c) by providing informa-
Sinnott-Armstrong 2008a,b and summaries tional cues to proper attribution of blame; and
by Aronson 2010 and Goodenough & Tucker (d ) by anticipating future emotions that might
2010). These new research tools supplement follow from a judgment (see also Feigenson &
existing paper-and-pencil tests, courtroom Park 2006).
mock-juror studies, and laboratory and field Several examples illustrate these paths. Re-
studies on the interplay between emotion and searchers are focusing on distinguishing be-
cognition (see Forgas 2001, pp. 1–23, for a tween the effects of sadness and anger on evi-
summary of foundational research). dentiary judgments (Semmler & Brewer 2002),
The legal literature is mining this rich vein and on the impact of emotion during differ-
to delve more deeply into precisely how emo- ent phases of litigation, for example, assess-
tion influences legal judgment. We highlight ment of blame versus assessment of damages
two strands of this research here: studies of the (Feigenson et al. 2001). More vivid depictions
effects of emotion and mood on judgment (with of trial events (i.e., videotape versus written

presentation) have been linked to increased evidence, accompanied by music and narration,
mood change and to different liability judg- merited reconsideration of its decision to per-
ments (Fishfader et al. 1996). Studies show mit victim impact testimony (Kelly v. California
that gruesome photographic evidence increases 2008). Justices Stevens, Breyer, and Souter
mock jurors’ negative emotional state and usu- would have considered the issue, arguing that
ally leads to increased conviction rates (e.g., the powerful emotional impact of the state-
Bright & Goodman-Delahunty 2006). Edwards ments rendered them especially prejudicial.
& Bryan (1997) have shown that mock jurors Indeed, for Justice Stevens, the only effect of
are unable to disregard emotionally charged ev- the statements was to “rouse jurors’ sympathy
idence when instructed to and that the emo- for the victims[,]. . .invit[ing] a verdict based
tional content of such evidence leads mock on sentiment, rather than reasoned judgment”
jurors to reach more guilty verdicts and im- (pp. 567–68). Justice Stevens thus assumed
pose longer sentences. Blumenthal (2005a,b), both that emotion is irrational and that
Feigenson & Park (2006), and Maroney (2006) emotion in this context has a causal effect on
summarize many other studies of emotion’s im- judgment.
pact on legal judgments. Courts and commentators alike have criti-
cized the use of victim impact statements, ar-

The example of victim impact statements. guing that the emotion they generate, whether
Twenty years ago, the US Supreme Court re- favorable toward the witness or the victim or
jected an Eighth Amendment challenge to the unfavorable toward the defendant, undermines
use of victim impact testimony (testimony by the capital sentencing process and improperly
family members and others close to the victim) influences capital juries toward a death sentence
in capital trials (Payne v. Tennessee 1991). Victim (Booth v. Maryland 1987, Bandes 1996, Logan
impact statements usefully illustrate both how 1999). But the debate about victim impact
assumptions about emotion lead to concrete le- statements is poorly served by a discourse that
gal consequences and how researchers might either denies the presence of emotion entirely
investigate the validity of these assumptions. (as the Payne decision does in classifying the
In Payne v. Tennessee, the Court assumed statements as merely informational) or equates
that victim impact statements serve an infor- “emotional” with “prejudicial” (as Justice
mational rather than an emotional purpose. It Stevens does in the opinion quoted above). A
found that without such evidence, the victim better approach is to acknowledge that victim
may be turned into a “faceless stranger,” de- impact statements evoke emotion, investigate
priving “the State of the full moral force of its the emotional dynamics they engender, and
evidence and [preventing] the jury from having inquire whether the emotions they evoke are
before it all the information necessary to deter- consistent with the goals of capital sentencing
mine the proper punishment for a first-degree and with constitutional safeguards against
murder” (p. 825). Victim impact statements, arbitrary or unequal punishment. As Salerno
in the Court’s view, provide information about & Bottoms (2009, p. 279) observe in a recent
the uniqueness of the life lost and the impact of review of the literature, “the Court’s assump-
the murder on the family (p. 825). The Payne tions in those decisions are ripe for empirical
Court also assumed that hearing the statements testing, and they have been tested, in a growing
would not encourage jurors to engage in the number of studies that have produced mixed
comparative valuation of victims and would not findings” (see Wevodau & Blumenthal 2009
lead to arbitrary judgments based on legally for a meta-analysis of studies).
irrelevant characteristics of the victim, the More than a decade of empirical research has
victim’s family members, or the defendant shown that victim impact statements increase
(p. 823). More recently, the Court declined to punitiveness in jurors. Studies consistently,
decide whether the use of video victim impact though not invariably, show that hearing these

statements increases the probability of mock 1999, Sundby 2003) to determine whether
jurors rendering a death sentence, at times the statements encourage the comparative
more than doubling the likelihood (Myers valuation of victims and whether selective
& Arbuthnot 1999, Wevodau & Blumenthal empathy toward particular victims or their
2009). The limited study of actual capital juries family members affects sentencing.
also suggests an effect (Aguirre et al. 1999). Significantly—and connecting with our dis-
Whether this punitive effect is a prejudi- cussion of interpersonal emotion below—
cial effect is ultimately a legal question, but virtually no research has traced the effect of
one that should be evaluated in light of social- victim impact statements on the jury and its
scientific findings on how victim impact state- deliberative processes. Only one of the mock-
ments operate in practice. Some scholars (e.g., juror studies (Myers & Arbuthnot 1999) seems
Myers & Greene 2004) suggest that the puni- to have considered jury deliberation, and it
tive effect of victim impact evidence is the is still unclear how group deliberation affects
result of deeper processing, of more consid- individual emotions (Blumenthal 2012). As

ered rational decision making that incorporates Bandes (2009d, p. 18) points out, “given how
emotion, in line with a long line of research much there is to learn generally about group
showing that negative mood is conducive to emotion, there is a particular need to focus on
less superficial thinking than positive or neutral how victim impact statements affect the emo-
moods (e.g., Schwarz et al. 1991). (An important tions of the jury as a collective entity.”
caveat here is the distinction between mood and Finally, victim impact statements in capi-
emotion.) Others suggest, in line with Feigen- tal cases have more recently been defended for
son & Park’s (2006) model discussed above their role in providing closure to victims’ fami-
[and also with Haidt’s (2001) social intuition- lies. This assumption, too, is ripe for empirical
ist model discussed below], that the anger the testing (see Bandes 2009d, pp. 18–19; Madeira
statements arouse in jurors may activate a de- 2010).
sire to impose blame and a biased search for ev-
idence to validate that desire (Nadler & Rose The role of emotion in moral decision making.
2003, pp. 443–48; Salerno & Bottoms 2009, Legal scholars have long debated the role of
pp. 284–85). “moral” emotions and capacities, such as moral
Thus more research is necessary to identify indignation, outrage, disgust, compassion, and
the emotions evoked by victim impact evidence empathy, in norm creation and decision making
and their causal effect on judgment (Myers et al. (Kahan 2000, Nussbaum 2006, Sunstein 2009).
2002, Blumenthal 2009). Researchers should Scientific studies lend increasing support to the
better isolate which emotional experience is conclusion that emotion is integrally involved
at work, such as, for example, sympathy for a in moral judgment, and substantial research is
witness, grief at the loss, or anger or disgust underway on precisely how emotion, cognition,
toward the defendant. In addition, they should and morality interact. Most current theories
explore the differential effects of anger and adopt a version of a dual-process model, in-
sadness on the deliberative process (Lerner volving some combination of quick, intuitive
& Keltner 2000, Blumenthal 2005a) and the judgments and slower, more deliberative judg-
emotional impact of various forms of victim ments. Much of the debate centers on how the
impact evidence (Wevodau et al. 2012). They two processes interact.
should also investigate whether strong negative One pitfall to watch for in the dual-process
emotions toward the defendant interfere with model literature is slippage between the
the jury’s ability to remain open to the defen- concepts of intuition and emotion. Scholarship
dant’s mitigation evidence. Finally, researchers in law, political science, and other disciplines,
should continue to explore the dynamics of to some extent abetted by the neuroscientific
empathy for various types of victims (Greene literature itself, too often displays a tendency

to equate intuitive with emotional and de- entific findings offer insights into long-standing
liberative with reasonable, replicating the philosophical and jurisprudential puzzles about
problematic dichotomy between emotion and the nature of reason and emotion (see, e.g.,
Affect: general term
reason. Not all quick, intuitive judgments are Goodenough & Tucker 2010, p. 76) and raise a subsuming emotion
emotional in nature, and emotion influences host of questions as well. As Blumenthal (2010, and mood
slow, deliberative judgments in addition to p. 203) notes, they raise “at least two vital re-
quick intuitive ones (Bandes 2008a, 2012). search questions for law and emotion scholars.”
In Haidt’s (2001) social-intuitionist theory, First, which sorts of legal judgments fall into the
moral decision making is intuitive, fast, un- intuitive category? (See, e.g., Darley et al. 2000,
conscious, and automatic. According to this Darley 2009, arguing that notions of just pun-
approach, moral judgments are like aesthetic ishment are intuitive and tend to be retributive
judgments—stimuli lead to instant, affect-laden in nature; and see MacCoun 2012, exploring the
feelings of moral approval or disapproval—and role of disgust and moral outrage in the forma-
involve a causal link: “Moral intuitions (includ- tion of attitudes toward drug policy and other
ing moral emotions) come first and directly policies involving risky behaviors.)
cause moral judgments” (p. 814). Second, what is the connection between
In contrast, moral grammarians (e.g., “neuron-level moral judgments and legal judg-
Hauser 2006, Mikhail 2007) suggest that indi- ments” (Blumenthal 2010, p. 204)? For exam-
viduals have innate templates that establish the ple, if Greene is correct that moral reasoning in
potential for a variety of moral systems. The personal decisions triggers a different and more
precepts and rules guiding these moral systems emotional cognitive process from moral rea-
yield judgments of stimuli’s moral rightness soning in decisions regarded as abstract and im-
or wrongness, just as language rules identify personal, this conclusion has interesting impli-
whether a particular sentence is grammatically cations for jury decision making in general, for
proper. As in Haidt’s approach, these moral more specific issues like the use of videotaped
judgments (like linguistic judgments) are auto- testimony, and for the validity of mock-jury
matic and unconscious; unlike in Haidt’s model, studies, among other issues. If Haidt is correct
however, they do not involve emotion—indeed, that moral judgment comes first, followed by
they generate emotions (Hauser 2006). a reasoning process that is designed to explain
Greene and colleagues (e.g., Greene et al. rather than revise the initial intuition, his model
2001, p. 2106) suggest that some moral deci- has, at minimum, important descriptive impli-
sions “engage emotional processing to a greater cations for our understanding of how judging
extent than other[s], and these differences in and other deliberative processes occur. It may
emotional engagement affect people’s judg- also have prescriptive implications. Along these
ments” (see also Ugazio et al. 2012). They argue lines, Sunstein (2009) has explored the emotion
that emotion automatically and unconsciously of moral indignation as a species of intuitive
influences personal but not impersonal moral processing that provides valuable information
decisions. They suggest that fast, automatic, in- to the legal system but that often needs to be
tuitive moral responses tend to involve retribu- tempered by more reflective reasoning, and has
tive reasoning, though that retributive reason- considered how various legal institutions and
ing may be subsequently revised or overridden processes (including homicide trials, adminis-
by slower, more controlled processing. trative and legislative risk regulation, and puni-
The implications of powerful neuroimaging tive damage assessments) ought to be structured
techniques such as fMRI and PET scans and to ensure that both intuition and deliberation
other cognitive psychology and neuroscience play their appropriate roles.
findings for law are the subject of lively de- Moreover, Haidt (2001), Bloom (2010), and
bate (for a thorough, somewhat skeptical re- others argue that moral judgment flourishes not
view, see Pardo & Patterson 2010). Neurosci- in splendid isolation but in situations of social

interchange, particularly with those who hold sentiment or a sentiment directed solely at
different perspectives. The implications of this those less fortunate, but a tool that is in constant
model for the structure of deliberative institu- (albeit not always accurate) use in legal decision
tions such as the jury and the judicial system are making. Once empathy is understood in this
well worth exploring (see, e.g., Bandes 2011, light, it becomes possible—and essential—to
discussing implications for judging). investigate how empathy is employed in a
variety of legal contexts. For example, studies
Empathy. A related research area is the cogni- suggest not only that juries have difficulty
tive science of empathy, which sheds light on empathizing with defendants from other racial
how individuals understand the minds, desires, and demographic backgrounds (Haney 2005,
and motivations of others (for an excellent com- pp. 189–209; Lynch & Haney 2011) but also
pendium, see Decety & Ickes 2009). The role that juries in homicide cases tend to feel more
of empathy in law has been much discussed empathetic toward some homicide victims than
recently, specifically in the judicial context, as others and that this selective empathy influ-
mentioned above. The debate has been bedev- ences their verdicts (Sundby 2003). The science
iled by definitional ambiguities (Bandes 2009a), and social science of empathy also point the way
ambiguities that are not unique to law. Neu- toward the possibility of addressing empathy
roscientific studies of empathy are helping to deficits or selective empathy; empathy appears
disambiguate the neural underpinnings of vari- to be a capacity that is eminently trainable
ous types of empathy, some of which also go by (Goleman 2006, pp. 314–15; Feshbach &
such names as sympathy and compassion (Bat- Feshbach 2009).
son 2009). For example, “among philosophers,
coming to feel as the other feels has often been
called ‘sympathy,’ not empathy. . . . Among psy- Implications for Implementation
chologists, it has been called ‘emotional conta- and Reform
gion,’ ‘affective empathy’ and ‘automatic emo- As the foregoing discussion illustrates, the re-
tional empathy. . .’” (p. 6). lationship between law and emotion is multi-
These definitional ambiguities are relevant faceted. Therefore, the reforms to which in-
to legal and political debates over the role of sights from law and emotion scholarship point
empathy in judging. For example, some con- may take many forms, including revising doc-
cerns about judicial use of empathy are based trine, reconsidering the design of legal insti-
on the notion that empathy entails a sentimen- tutions or the allocation of institutional roles,
tal attachment to—or a desire to offer assistance revisiting policy objectives or their means of
to—one of the parties in a controversy and is implementation, and rethinking means of com-
thus inconsistent with impartiality. This con- munication and persuasion. Abrams & Keren
cern may be well-founded if empathy means an (2010, pp. 2049–68) present a thorough analy-
“impulse to respond with sensitivity and care to sis of these approaches; we offer some examples
the suffering of another” (Batson 2009, p. 9). here.
However, if empathy consists of understanding Doctrinal revision is the most straightfor-
the thoughts and feelings of another (Batson ward type of reform, at least in theory. Where
2009, p. 4), then it is, arguably, an essential ca- legal doctrine relies on erroneous assump-
pacity for judges (Posner 2008, p. 117; West tions about emotions or emotional dynamics,
2012). it ought to be reconsidered. For example,
Moreover, the dynamics of empathy are shaming sanctions are meant to deter and re-
relevant to law in much broader contexts. If habilitate, and if it turns out that they not only
empathy is the capacity to understand the serve neither purpose but also actually stig-
thoughts and feelings of another, it becomes matize and marginalize offenders in a way that
clear that it is not an occasionally employed interferes with both these goals, then shaming

sanctions serve no legitimate penal purpose and 2010, pp. 196–98; Kang & Lane 2010).4 It
should no longer be imposed (Massaro 2000).3 appears that people can be educated to make
But the reform implications of law and emo- subconscious operations accessible (Gigerenzer
tion scholarship extend well beyond doctrinal 2007) and that initial automatic reactions can be
revision. Two key points about implementation regulated by higher-order cognitive processes
must be emphasized. First, although much re- (Berkowitz et al. 2001). This work has impor-
mains to be learned about how emotion and tant implications for a range of legal decision
cognition interact, it is clear that the folk con- makers (see, e.g., Rachlinski et al. 2009, dis-
cept of emotions as unknowable and untamable cussing how judges’ implicit biases might be
is incorrect. Not only can emotions be studied, ameliorated; Haney 2005, pp. 189–209, dis-
from the neurobiological to the individual to cussing the role of the capital system in ex-
the interpersonal level, but there is growing ev- acerbating or ameliorating “empathic divides”
idence that they can also be guided, channeled, based on race). However, much remains to be
and educated. learned about the dynamics of bias correction.

On the individual level, numerous studies Once inappropriate or harmful influences on
show that people are able to regulate or man- decision making are identified, the question for
age the emotions they experience, whether by researchers is how the legal system can effec-
reconstructing aspects of a situation, shifting tively address them, correct for them, and guide
attention, reappraising reactions to a situation, decision making into more appropriate chan-
or avoiding situations that might elicit a nels (Blumenthal 2007; see also Jolls & Sunstein
particular emotion altogether (see Maroney 2006).
2011a, reviewing the literature and applying The second key point, discussed in more
it to judicial emotion). Much of the primary detail in the next section, is that the conven-
emotion regulation and management research tional focus across disciplines on emotions as
thus far has developed in the context of coping private, internal feelings has been enormously
strategies and psychological health. Thus, an limiting, both in general and in the legal con-
important avenue for law and emotion research text. Emotions are dynamic processes that are
will be to move this line of research into shaped and guided by social and institutional
decision making generally and legal decision context, and thus it is crucial to pay attention
making in particular. to how legal context affects emotions and
Not only can emotions be managed, they emotional capacities.
can be educated. Emotion-based capacities such Research by Robbennolt (2003) and
as empathy (Feshbach & Feshbach 2009), as Etienne & Robbennolt (2007) provides a good
discussed above, appear to be highly educa- illustration of the importance of attention
ble. There is some evidence that this educa- to context, demonstrating that apologies and
tive capacity exists not only for emotions in their emotional effects can have salutary con-
conscious awareness, but even for intuitive, un- sequences in some situations but not in others.
conscious emotions; implicit biases; and stereo- Robbennolt has shown that in civil litigation, a
types (Goleman 2006, pp. 300–4; Blumenthal full apology from the offender can reduce the
victim’s anger and increase sympathy for the
3 4
We do not suggest that the mere presence of a disconnect The emotional dimensions of bias and prejudice remain
between legal standards and knowledge in the sciences or so- an underexplored aspect of the implicit bias literature.
cial sciences should lead automatically to revision of doctrine Goleman (2006, pp. 298–300) describes the creation of us-
or policy. Law has requisites that may weigh against chang- them categories as heavily influenced by fear, uneasiness, anx-
ing doctrine, including rule-of-law values such as notice and iety, and other emotions and the mutation of subtle biases
predictability. This is a tension that exists in any area of law into full-fledged prejudices as a process in which fear, anger,
informed by knowledge from evolving fields, not a problem and hatred are deeply implicated. See also Parkinson et al.
unique to questions of emotion and law (Blumenthal 2002). (2005, pp. 119–20).

tortfeasor; indeed, a full apology also makes Recently, a number of disciplines have
it more likely that a settlement offer will be begun to focus on emotion in social context.
accepted (Robbennolt 2003). However, in the The sociology of emotion is now a burgeoning
criminal context, Etienne & Robbennolt (2007) field (Lange 2002, Turner & Stets 2005).
found that even though apologies should work Psychologists are increasingly interested in
similarly—reducing anger, ameliorating an emotion and social cognition and emotional
offender’s feelings of guilt, increasing sym- dynamics in group settings (Parkinson et al.
pathy for the offender—the dynamics of plea 2005) and in the interaction between emotion
bargaining in the criminal justice system (e.g., and culture (Niedenthal et al. 2006), an interest
the fact that attorneys negotiate and parties do they share with anthropologists (Lutz & White
not meet face-to-face) nevertheless reduce the 1986). Political scientists are exploring the role
effectiveness of apologies. Wohl et al. (2011) of emotion in democratic deliberation (Marcus
made similar findings regarding the effects of 2002, Westen 2007, Krause 2008, Lakoff 2008,
apology at the intergroup level. Sajo 2011). The emerging field of affective
Just as emotions are shaped by social and in- neuroscience is examining the neural dynamics
stitutional context, institutions are constructed of emotional interchange (Davidson & Sutton
in light of assumptions about emotional dynam- 1995, Goleman 2006). Criminologists are
ics. In the legal realm, as elsewhere, these as- looking at the role of emotion in a variety of
sumptions are ripe for scrutiny in light of a contexts, including the formation of punitive
growing body of interdisciplinary knowledge attitudes, the dynamics of violence, and the
about emotion in group and institutional set- structure of criminal justice institutions such
tings (Bandes 2009b, p. 394), as discussed in as police departments and prisons (Karstedt
the next section. et al. 2011). Viewing emotions in their broader
social and cultural context permits a fuller
understanding of their role in the law and
points the way toward a rich set of questions for
EMOTION IN GROUP AND future scholars in the field of law and emotion:
INSTITUTIONAL SETTINGS
Nearly 30 years ago, sociologist Arlie 1. Emotion and social norms: Emotions
Hochschild (1983, pp. 201–3) identified such as shame, fear, trust, and the desire
the tendency to treat emotions as private for approval are intimately involved in
and internal as one of the major barriers to the development, communication, and
serious inquiry into the nature of emotions. enforcement of the norms animating law.
Nevertheless, until recently, the social sciences Legal scholars have engaged with the
continued to study individual subjects and their emotional aspects of norm creation in a
individual emotions (Bandes 2009d, p. 4 n.12) few discrete areas, notably on the topic
and then assume that the knowledge had broad of why and how we punish (see, e.g.,
application to emotions in diverse contexts, Braithwaite 1989, Garvey 2003, Markel
including settings that involved complex group 2004, Bandes 2008b, Berman & Bibas
and institutional dynamics. For law, with its 2008, Darley 2009). But emotions are
focus on structuring effective institutions to implicated in a wide array of basic social
guide and channel human behavior, this narrow norm questions, such as the creation of
focus on private, individual emotions has been familial norms (see Huntington 2010) or
problematic. Emotions are social processes norms of respect for intellectual property
that arise, in part, through interactions or (see Goodenough 2009, pp. 400–1), or
anticipated interactions with others (Salovey questions of why citizens obey the law
2003). They both influence and are influenced or feel themselves part of a polity (Deigh
by social, cultural, and institutional context. 2000, Dubber 2006, Gewirtzman 2009).

2. Emotion cultures: Law is permeated two types of misconceptions. From a de-

with implicit social and cultural expec- scriptive standpoint, the decision making
tations about the feeling and display of of deliberative bodies has too often been
emotion (for discussion generally of emo- approached as merely the aggregate of the
tion cultures, feeling norms, and expres- decision making of a number of individu-
sion norms, see Hochschild 1983, Thoits als. A collective body, however, is an en-
1989, Clark 1998). These include, for ex- tity with its own characteristics (Tavuchis
ample, expectations about who is capable 1991, pp. 99–100; Krause 2008, pp. 144–
of romantic love and therefore marriage 45). Thus, for example, jury studies that
(Calhoun 2000), or about what rape vic- focus on the deliberation of individual
tims or domestic violence victims ought jurors fail to capture the complex emo-
to feel and how they ought to express tional dynamics of the jury room and how
their feelings (Schuster & Propen 2011), such dynamics affect the formation of
or about what pregnant women ought to collective mood. In the realm of political
feel toward their unborn babies (Guthrie science, as Krause (2008, pp. 144–45)
2008). The study of emotion cultures argues in her examination of the role of
also encompasses the culture of particu- moral sentiments in democratic deliber-

lar legal institutions, such as the bench ation, the focus on decision making as an
(Maroney 2011a), the courtroom (Haney aggregation of individual preferences fails
2005), the law school classroom (Harris to capture the dynamics of the “process
& Shultz 1993), and the law firm (Levit of forming common judgments.” From a
& Linder 2010).5 normative standpoint, collective emotion
3. Effects of group dynamics on the and collective judgment have too often
emotions of individuals: What effect been dismissed with pejoratives such
does group participation have on the as mob action, group think, and crowd
emotions of individuals? For instance, dynamics (Bandes 2012) rather than
does jury deliberation increase or de- studied in all their complexity. In a salu-
crease the emotional effect of gruesome tary trend, increasing empirical research
photographic evidence or victim impact is under way on group-level emotion,
statements? The results of the empirical intergroup emotion, and emotional
research are mixed (see Blumenthal contagion (Barsade 2002; Parkinson
2012); for example, some studies suggest et al. 2005, pp. 87–143; Goleman 2006,
that group discussion diminishes nega- pp. 13–26; Smith et al. 2007). One area
tive but not positive mood effects (Forgas of particular relevance to law is research
1990); others suggest that group delib- on the conditions conducive to informed
eration increases punitiveness in jurors deliberation and on the relationship
(Myers & Arbuthnot 1999, pp. 99–100). between informed deliberation and the
The area is ripe for jury researchers. heterogeneity of the decision-making
4. The unique dynamics of group-level body (see, e.g., Sommers 2006).
emotion: The study of group-level or 5. Emotion and institutional structure:
collective emotion has been hampered by Institutions are, inevitably, constructed
in light of assumptions about emotional
dynamics, and these assumptions should
5
The issue of emotion cultures in law school classrooms and be illuminated and evaluated. Knowledge
in the practice of law is an important aspect of the field of of emotional dynamics can be utilized
therapeutic jurisprudence, which is concerned with the ther- to restructure incentive systems (see
apeutic (or countertherapeutic) impact of the legal system
on legal actors, litigants, and others affected by its operation Gigerenzer 2007, pp. 157–58) and con-
(see, e.g., Wexler & Winick 2003). struct more effective legal institutions.

For example, Minow (2000) has examined structures (Goodwin et al. 2001, Turner
the respective roles of divorce courts, & Stets 2005). Conversely, legal devel-
mediation and arbitration tribunals, and opments can create emotional momen-
truth and reconciliation commissions tum that leads to social change (see,
in channeling, educating, exacerbating, e.g., Gould 2001, discussing the mobi-
and responding to emotions. Bandes lizing effect of the US Supreme Court’s
(2006a) has criticized the incentive decision in Bowers v. Hardwick 1986).
structure of some prosecutors’ offices Abrams (2011, pp. 553–62) recently of-
that place a high premium on group fered an “exploratory typology” of is-
loyalty at the expense of accountability sues concerning the relationship between
and respect for the rule of law. Ahmed & emotions and the mobilization of rights.
Braithwaite (2011) have investigated how These include the affective dimension of
institutional management of shame and the initial recognition of injury through
pride affects bullying in the workplace. moral shock; the affective connections
6. Emotion and the role of government: that influence how an injury is understood
Emotion theory offers insight into how and communicated; the anger, grief, or
citizens make essential decisions about other emotions that lead to ascribing re-
health, finance, safety, marriage, family, sponsibility or blame; and the emotions
and other issues related to well-being. that motivate the rights mobilization and
First, what role might government have those that sustain it or cause it to lose
in promoting or discouraging various momentum.
emotions in order to help citizens flour-
ish in these or other areas (Blumenthal
CONCLUSION
2007, Huang & Blumenthal 2009)? Sec-
ond, what role do emotions play in the The law offers an unparalleled opportunity for
shaping and communication of citizens’ emotion researchers: a rich occasion to explore
values on issues of public importance, emotion as it operates in a complex set of in-
such as governance and collective welfare stitutions designed to reflect, channel, and edu-
(Marcus 2002, Westen 2007, Krause cate human behavior. Legal theory and practice
2008, Lakoff 2008)? Finally, what is the stand to benefit tremendously from this body
appropriate role of citizens’ emotional of knowledge, and indeed, we proceed with-
commitments and moral sentiments in out this essential insight into human behavior
shaping governmental (Krause 2008) at our peril, constructing and maintaining legal
and constitutional (Gewirtzman 2009, institutions and crafting legal doctrines that too
pp. 679–81; Sajo 2011) goals and values? frequently rest on unexamined or demonstra-
7. Emotion and the mobilization of bly faulty assumptions about emotion and its
rights: Emotion theory can shed im- effects on human behavior. Law and emotion
portant light on how rights are con- scholarship has often focused on illuminating
ceived, how perceptions of fairness and the role of emotion in law, which is an essen-
unfairness arise, how political persua- tial aspect of the project, but one that must be
sion works (Marcus 2002, Westen 2007, increasingly accompanied by interdisciplinary
Krause 2008, Lakoff 2008), and what investigation, by debate about whether the dis-
drives and sustains legal change and re- connect between assumptions and evidence in-
form. Emotion can bind commitments terferes with the administration of justice, and
to social and legal structures or pro- by concrete proposals for implementation and
voke or sustain a challenge to those reform.

FUTURE ISSUES
1. Underexplored doctrines: These include First Amendment issues such as the regulation
of offensive speech; the emotional dynamics animating the separation of powers doctrine;
the role of emotional attachment to property in the measure of just compensation or in
adverse possession doctrine; the role of trust in contract law (Hill & O’Hara 2007); and
assumptions about affective bonds undergirding the law of wills and trusts.
2. Underexplored legal actors: Studies of juries should move beyond the focus on individual
jurors and take increasing account of the dynamics of the jury as a collective entity. The
salutary trend toward studying judicial emotion should be expanded to include studies of
how emotion affects decision making by legislators, regulators, attorneys (Smith 2004,
Bandes 2006b), and other legal actors.
3. Emotion and persuasion: Emotion’s role in rhetoric and persuasion is often dismissed
as a form of manipulation or pandering, yet emotion plays an essential role in effective
communication and persuasion. What role does, and should, emotion play in the per-
suasiveness of various forms of legal argument, including judicial opinions and dissents
(Ray 2002), the arguments of advocates, and jury deliberation?
4. Emotion and legislation: In addition to studying legislators, scholars might focus on
the relationship between emotion and legislation. For example, what is the appropriate
role of emotion in providing an impetus for legislation? What is the role of legislation
in acknowledging or giving voice to constituent emotion? [See, for example, Sanger’s
(2012) discussion of legislation requiring the provision of stillborn birth certificates.]
5. Strategies for educating emotion: In light of increasing evidence that institutions can
be structured to promote a range of values and emotional attributes, debate about the
structure and function of legal institutions should encompass the question of which val-
ues and attributes are worth promoting in particular contexts and how to do so. For
example, institutions can be structured to increase participation, to increase awareness of
or empathy for diverse viewpoints, to encourage more thorough and informed deliber-
ation, and to work toward other goals that are consistent with participatory democracy
and informed citizenry. Moreover, there is mounting evidence that emotion cannot be
cordoned off from ethical and moral judgment without impairing both ethical judgment
and well-being; such evidence has broad implications for the teaching and practice of
law.
DISCLOSURE STATEMENT
The authors are not aware of any affiliations, memberships, funding, or financial holdings that
might be perceived as affecting the objectivity of this review.
ACKNOWLEDGMENTS
The authors thank Kathryn Abrams and Terry Maroney for extraordinarily helpful comments on
an earlier draft of this article.

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Behavioral Ethics: Toward a Deeper Understanding
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Substance, Scale, and Salience: The Recent Historiography
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Immigration, Crime, and Victimization: Rhetoric and Reality
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Emotion and the Law
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Law, Environment, and the “Nondismal” Social Sciences
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Bullying
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v
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Regulating Sex Work: Heterogeneity in Legal Strategies

Bill McCarthy, Cecilia Benoit, Mikael Jansson, and Kat Kolar p p p p p p p p p p p p p p p p p p p p p p p p p p 255
History Trials: Can Law Decide History?
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Empirical Studies of Contract
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Sociolegal Studies on Mexico
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Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship
Jon B. Gould and Scott Barclay p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 323
Law’s Archive
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International Human Rights Law and Social Movements: States’

Resistance and Civil Society’s Insistence
Kiyoteru Tsutsui, Claire Whitlinger, and Alwyn Lim p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 367
Law and Economics of Intellectual Property: In Search
of First Principles
Dan L. Burk p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 397
Legal History of Money
Roy Kreitner p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 415
The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive
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LS08CH09-Bandes ARI 9 October 2012 8:9

Annu. Rev. Law Soc. Sci. 2012. 8:161–81 Keywords

This article’s doi: Abstract

THE PROJECT IN BRIEF it rejects the ﬁction of pure, emotionless

forts to bring a measure of behavioral realism

when emotionally salient issues such as the role of fear in risk

162 Bandes · Blumenthal

www.annualreviews.org • Emotion and the Law 163

as discussed below. Conversely, for an example of the legal con-

164 Bandes · Blumenthal

www.annualreviews.org • Emotion and the Law 165

166 Bandes · Blumenthal

cized the use of victim impact statements, ar-

www.annualreviews.org • Emotion and the Law 167

result of deeper processing, of more consid- individual emotions (Blumenthal 2012). As

168 Bandes · Blumenthal

www.annualreviews.org • Emotion and the Law 169

170 Bandes · Blumenthal

and educated. learned about the dynamics of bias correction.

www.annualreviews.org • Emotion and the Law 171

172 Bandes · Blumenthal

2. Emotion cultures: Law is permeated two types of misconceptions. From a de-

also encompasses the culture of particu- moral sentiments in democratic deliber-

www.annualreviews.org • Emotion and the Law 173

174 Bandes · Blumenthal

www.annualreviews.org • Emotion and the Law 175

176 Bandes · Blumenthal

Booth v. Maryland, 482 U.S. 496 (1987)

www.annualreviews.org • Emotion and the Law 177

178 Bandes · Blumenthal

“empathic divide.” Law Soc. Rev. 45(1):69–102

www.annualreviews.org • Emotion and the Law 179

Payne v. Tennessee, 501 U.S. 808 (1991)

KR Scherer, H Goldsmith, pp. 747–51. New York: Oxford Univ. Press

180 Bandes · Blumenthal

www.annualreviews.org • Emotion and the Law 181

Contents Volume 8, 2012

Legacies of Legal Realism: The Sociology of Criminal Law and

Mass Imprisonment and Inequality in Health and Family Life

After Critical Legal History: Scope, Scale, Structure

Regulating Sex Work: Heterogeneity in Legal Strategies

International Human Rights Law and Social Movements: States’

Cumulative Index of Contributing Authors, Volumes 1–8 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 499

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