Research Handbook on Law and Emotion

634 Pages·2021·3.518 MB·English

by  Susan A. Bandes, Jody Lyneé Madeira, Kathryn D. Temple, Emily Kidd White

RESEARCH HANDBOOK ON LAW AND EMOTION
RESEARCH HANDBOOKS IN LEGAL THEORY
Research Handbooks in Legal Theory are designed to provide original and sophisticated dis-
cussions from an international and expert range of contributors. The volumes in this important
series cover key topics within the field as well as major schools of thought, and also explore
the application of legal theory to different areas of law. Comprising specially commissioned
chapters from leading academics each Research Handbook brings together cutting-edge ideas
and thought-provoking contributions and is written with a wide readership in mind. Equally
useful as reference tools or high-level introductions to specific topics, issues, methods and
debates, these Research Handbooks will be an essential resource for academic researchers and
postgraduate students.
Titles in this series include:
Research Handbook on Feminist Jurisprudence
Edited by Robin West and Cynthia Grant Bowman
Research Handbook on Critical Legal Theory
Edited by Emilios Christodoulidis, Ruth Dukes and Marco Goldoni
Research Handbook on Natural Law Theory
Edited by Jonathan Crowe and Constance Youngwon Lee
Research Handbook on Private Law Theory
Edited by Hanoch Dagan and Benjamin C. Zipursky
Research Handbook on Modern Legal Realism
Edited by Shauhin Talesh, Elizabeth Mertz and Heinz Klug
Research Handbook on Law and Emotion
Edited by Susan A. Bandes, Jody Lyneé Madeira, Kathryn D. Temple and Emily Kidd White
Research Handbook on Law and
Emotion
Edited by
Susan A. Bandes
Centennial Professor of Law Emeritus, DePaul University College of Law,
USA
Jody Lyneé Madeira
Professor of Law and Louis F. Niezer Faculty Fellow, Maurer School of Law,
Indiana University, USA
Kathryn D. Temple
Professor of Law and Culture, Department of English, Georgetown
University, USA
Emily Kidd White
Assistant Professor, Osgoode Hall Law School, York University, Canada
RESEARCH HANDBOOKS IN LEGAL THEORY
Cheltenham, UK • Northampton, MA, USA
© The Editors and Contributors Severally 2021
Cover image: Paweł Czerwiński on Unsplash.
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or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.
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Edward Elgar Publishing Limited
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Edward Elgar Publishing, Inc.
William Pratt House
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A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2021930673
This book is available electronically in the
Law subject collection
http://dx.doi.org/10.4337/9781788119085
ISBN 978 1 78811 907 8 (cased)
ISBN 978 1 78811 908 5 (eBook)
6
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Contents
List of contributors viii
Acknowledgements xvi
Introduction 1
Susan A. Bandes, Jody Lyneé Madeira, Kathryn D. Temple and Emily Kidd White
PART I FOUNDATIONS
PSYCHOLOGY
1 Lay conceptions of emotion in law 15
Terry A. Maroney
NEUROSCIENCE
2 The evolving neuroscience of emotion: challenges and opportunities for
integration with the law 27
Maria Gendron
PHILOSOPHY
3 Law’s sentiments 44
Robin West
PEDAGOGY
4 “Whose body is this?” on the role of emotion in teaching and learning law 62
Gillian Calder
PART II EMOTIONS
5 When souls shudder: A brief history of disgust and the law 80
Carlton Patrick
6 Retribution: Not anger but respect for dignity 94
Jeffrie G. Murphy
7 Closure in the criminal courtroom: The birth and strange career of an emotion 102
Susan A. Bandes
8 The aptness of anger 119
Amia Srinivasan
v
vi Research handbook on law and emotion
9 Remorse: Multi-disciplinary perspectives on how law makes use of
a moral emotion 131
Steven Tudor, Michael Proeve, Richard Weisman and Kate Rossmanith
PART III LEGAL ACTORS
10 Comparing culturally embedded frames of judicial dispassion 147
Åsa Wettergren and Stina Bergman Blix
11 The loyal defence lawyer 165
Lisa Flower
12 Researching judicial emotion and emotion management 180
Sharyn Roach Anleu, Jennifer K. Elek and Kathy Mack
PART IV LEGAL DOCTRINES
13 Family law and emotion 197
June Carbone and Naomi Cahn
14 Debt’s emotional encumbrances 215
Pamela Foohey
15 The emotional dynamics of property law 229
Heather Conway and John Stannard
16 ‘…You don’t pay £100,000 to a lawyer unless you care about
something’: The role of emotion in contract law 248
Emma Jones
17 Engaging head and heart: An Australian story on the role of compassion
in criminal justice reform 268
Lorana Bartels and Anthony Hopkins
PART V LEGAL DECISION-MAKING
18 Emotional evidence in court 288
Hannah J. Phalen, Jessica M. Salerno, and Janice Nadler
19 Emotional dimensions of visual evidence 312
Neal Feigenson
20 Distancing devices and their challenge to judicial emotion realists – so
far, yet so near 327
Lee Marsons
21 The emotional storying of Charles Ssenyonga as an HIV sexual
predator in June Callwood’s ‘Trial Without End: A Shocking Story of
Women and AIDS’ 342
Jennifer M. Kilty
Contents vii
PART VI HISTORY OF LEGAL EMOTIONS
22 Love in the courtroom: The debate on crimes of passion in late
nineteenth-century Italy 359
Emilia Musumeci
23 Lawyerization, providence, and emotion in the eighteenth-century criminal trial 374
Amy Milka and David Lemmings
24 Copping an attitude: Slang and the neglected racial history of fear and
resentment toward law enforcement and legal authority 391
Nicole Mansfield Wright
25 Curiosity and legal affect in Fulbeck’s A Direction or Preparative to
the Study of the Lawe 407
Simon Stern
26 Why the law needs the history of emotions: William Blackstone,
Agamben and form-of-life 421
Kathryn D. Temple
PART VII BEYOND THE COURTROOM
LEGISLATION
27 Soft targets: Emotions in the passage of “stand your ground” legislation 438
Jody Lyneé Madeira and Catherine Wheatley
INTERNATIONAL LAWS AND TRIBUNALS
28 Between micro and macro justice: Emotions in transitional justice 460
Susanne Karstedt
29 How the emotions and perceptual judgments of frontline actors shape
the practice of international humanitarian law 477
Rebecca Sutton
30 Images of reach, range, and recognition: Thinking about emotions in
the study of international law 492
Emily Kidd White
PART VIII CLASSIC ARTICLES
31 Empathy, narrative, and victim impact statements (1996) 514
Susan A. Bandes
32 Law and emotion: A proposed taxonomy of an emerging field 534
Terry A. Maroney
33 Who’s afraid of law and the emotions 566
Kathryn Abrams and Hila Keren
Index 601
Contributors
Kathryn Abrams is Herma Hill Kay Distinguished Professor of Law at UC-Berkeley School
of Law, where she teaches Constitutional Law, Feminist Jurisprudence, and a range of courses
on law and social movements to both law students and undergraduates. Kathy’s early work on
feminist theory and advocacy led to explorations of experiential storytelling, and the ways that
oppressed groups cultivate and express agency under circumstances of constraint. This work
also drew her interest to the role of, and resistance to, emotionally-grounded argumentation
in law. Kathy’s recent work has focused more explicitly on social movements, including their
storytelling and management and manifestation of emotions. She is now completing a book on
the undocumented immigrants’ movement in Phoenix, Arizona. She holds a BA from Harvard
and a JD from Yale Law School.
Susan A. Bandes is Centennial Distinguished Professor Emeritus at DePaul University
College of Law. Before entering academia, she was staff counsel for the Illinois ACLU. She is
a member of the American Law Institute and a fellow of the American Bar Foundation. Bandes
has published widely in the fields of federal jurisdiction, criminal procedure, capital punish-
ment, and law and emotion. Her interdisciplinary anthology on law and emotion, The Passions
of Law, was published by NYU Press in 2000. She is a cofounder (with Jody Madeira) of the
Collaborative Research Network on Law and Emotion, which is affiliated with the Law and
Society Association. In addition to writing about emotion, she is currently working with psy-
chologists on a series of experiments on the impact of emotionally powerful evidence on jury
decision-making. In addition, she addresses judges, lawyers and other groups on the impact of
emotion and assumptions about emotion on the pursuit of justice.
Lorana Bartels is the Program Leader and Professor of Criminology at the Australian National
University and an Adjunct Professor of Law at the University of Canberra and University of
Tasmania. She is also a Fellow of the Australian Academy of Law and Life Member of Clare
Hall at the University of Cambridge. Her key research interests are therapeutic jurisprudence,
sentencing, corrections, and the treatment of women and Indigenous peoples in the criminal
justice system.
Stina Bergman Blix is Associate Professor of Sociology at Uppsala University. She
researches the role of emotions in professional work, rationality, law, theatre and qual-
itative methods. She is currently principal investigator of an international comparative
project (JUSTEMOTIONS) funded by the European Research Council investigating the
emotive-cognitive process of judicial decision-making. Her work has been published in
journals such as Emotion Review and Qualitative Research and she has written Professional
Emotions in Court: A Sociological Perspective (Routledge, 2018) with Åsa Wettergren.
Naomi Cahn is Professor of Law at University of Virginia. She has written numerous law
review articles on elder law, family law, reproductive technology, and trusts and estates. She
has co-authored various casebooks, and the fifth edition of her co-authored family law case-
book was published in 2019. In addition, she has written numerous books, including – with
viii
Contributors ix
Professor June Carbone—Marriage Markets (OUP 2014) and Red Families v. Blue Families
(2010).
Gillian Calder is an Associate Professor at the University of Victoria’s Faculty of Law. She
holds a Magisteriate in Laws from York University and teaches constitutional law, family law
and related seminars. Her research examines the ways that law shapes our understanding of the
family, through performative, feminist and critical pedagogy lenses.
June Carbone is the Robina Chair of Law, Science and Technology at the University of
Minnesota Law School. She received her J.D. from the Yale Law School, and her A.B. from
the Woodrow Wilson School of Public and International Affairs at Princeton University.
She teaches Property, Family Law, and Assisted Reproduction and the Family. She has
written From Partners to Parents: The Second Revolution in Family Law (Columbia University
Press, 2000), the third, fourth and fifth editions of Family Law with Leslie Harris and the late
Lee Teitelbaum (Aspen, 2005, 2009, 2014), Red Families v. Blue Families (Oxford University
Press, 2010); Marriage Markets: How Inequality is Remaking the American Family (Oxford
University Press, 2014), both with Naomi Cahn.
Heather Conway is a Full Professor of Property Law and Death Studies at the School of Law,
Queen’s University Belfast. She has written articles on emotion in selected aspects of property
law and succession law, and—with her colleague John Stannard—co-edited a volume of
essays entitled The Emotional Dynamics of Law and Legal Discourse (Hart Publishing, 2016).
Professor Conway’s main research expertise lies in bodily disposal laws and the legal frame-
work governing the fate of the recently dead, especially family disputes surrounding funerals,
commemoration and exhumation. She has written and presented extensively in this area, and
is the author of The Law and the Dead (Routledge, 2016).
Jennifer K. Elek, Ph.D., is a Senior Court Research Associate in the Research Division at the
National Center for State Courts. Since joining the National Center for State Courts in 2010,
her work has focused on evidence-based criminal justice policies and practices for courts;
decision-making biases and fairness in the courts; and judicial education and professional
development. Some of her other research includes work on the use of structured risk and needs
assessments to inform decision-making, program evaluations of problem-solving courts, and
judicial performance evaluation in the states.
Neal Feigenson is Professor of Law at Quinnipiac University School of Law, where he teaches
torts, evidence, visual persuasion in the law, and civil procedure. He researches and writes
about the cognitive and social psychology of legal judgment and the uses of visual media and
multimedia in legal communication and persuasion. His most recent book is Experiencing
Other Minds in the Courtroom (University of Chicago Press, 2016).
Lisa Flower has a Ph.D. in sociology and has recently published her first book Interactional
Justice: The Role of Emotions in the Performance of Loyalty. She is a lecturer in sociology
and criminology at Lund University. Her most recent research project explores the clash of
emotional expectations between legal professionals and lay participants by studying live
reports in online media.
Pamela Foohey is Professor of Law at the Indiana University Maurer School of Law
and Chair of the Advisory Board to Indiana University’s Center for Law, Society & Culture.
x Research handbook on law and emotion
Professor Foohey’s research centers on bankruptcy, business, consumer finance, and commer-
cial law. She is a co-principal investigator on the Consumer Bankruptcy Project, an on-going,
long-term research project studying persons who file bankruptcy. Her work in business bank-
ruptcy focuses on non-profit entities, with a particular emphasis on how churches and other
religious organizations use bankruptcy. Professor Foohey currently serves on the editorial
advisory board of the American Bankruptcy Law Journal, which is a peer-reviewed academic
law review published by the National Conference of Bankruptcy Judges.
Maria Gendron is an Assistant Professor of Psychology at Yale University. She received her
Ph.D in Social Psychology from Boston College in 2013 and completed a post-doctoral fel-
lowship in Affective Neuroscience at Northeastern University. Dr Gendron conducts research
on the nature of emotion, with a particular focus on the sources of variation in emotional
responses across contexts, individuals, and cultures. Her research incorporates methods and
theory from social psychology, cultural psychology, and affective neuroscience.
Anthony Hopkins is a Senior Lecturer at the Australian National University College of
Law. He is also a criminal defence barrister who began his career in Alice Springs, working
for Aboriginal Legal Aid. Anthony’s research focuses on the criminal justice system, equality
and the importance of understanding the experience of ‘others’. More recently he has focused
on exploring the links between equality, compassion and therapeutic jurisprudence.
Emma Jones is a Senior Lecturer and Director of Student Wellbeing for the School of Law
at the University of Sheffield, UK. Her research interests focus on the role of emotions in
private law, legal education and the legal profession. She undertakes both theoretical and
empirical work. Her monographs include Emotions in the Law School: Transforming Legal
Education Through the Passions. Emma previously qualified as a teacher and practised as
a solicitor, specializing in construction law.
Susanne Karstedt is a Professor in the School of Criminology and Criminal Justice and the
Criminology Institute at Griffith University, Australia. She was among the first to establish
emotion research in criminology (with I. Loader and H. Strang, Emotions, Crime and Justice,
2011), and has written widely on emotions in contemporary criminal justice. Most recent work
focuses on emotion dynamics in genocide and crimes against humanity, and in transitional
justice processes dealing with such crimes. She is a Fellow of the Academy of the Social
Sciences in Australia.
Hila Keren is a Law Professor and the Associate Dean of Research at Southwestern Law
School in Los Angeles, where she teaches contracts and business associations. Her scholarship
is often interdisciplinary and aims at bringing the perspective of the other into legal analysis
in the hope that law can help to foster a more egalitarian world. As part of this aspiration, Hila
writes about the interaction of law and the emotions to enrich conventional legal thinking with
knowledge about human beings and their vulnerabilities. In recent years, Hila’s work includes
in-depth criticism of neoliberalism: the way it took over our lives, including our emotions
and the legal reforms that are badly needed to undo some of the damage. She earned her law
degree and Ph.D. from the Hebrew University of Jerusalem in Israel and completed a two-year
post-doctorate fellowship at UC Berkeley’s Center of Law and Society.
Emily Kidd White is an Assistant Professor at Osgoode Hall Law School. She holds a J.S.D.
and an LL.M. from New York University School of Law. She writes on topics of constitutional