Lashing Reason to the Mast: Understanding Judicial Constraints on Emotion in Personal Injury Litigation

Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors\u27 emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the propriety of empathic identification decreases as the trial action builds to a stage requiring jury deliberation. Numerous judicial constraints upon emotive identification prove to be unnatural or unworkable because they are grounded in a shallow understanding of emotion and its interpersonal propriety that directly contradicts the role of emotion in lay interpersonal relations. Yet, at the same time lay patterns of emotive response are brought into the adjudicative mix by the jury trial model, which relies upon the judgment of lay jurors who are asked to abandon their socio-cultural understandings of emotional response for a substitute logic of emotive form and content that directly contradicts their pre-existing lay socio-cultural practices. Moreover, although jurors are told that evidence, not empathy, is the proper basis for substantive decision making, the personal injury trial is framed within a lay conception of emotive identification. Jurors are picked on the basis of their potential to identify with the plaintiff, and asked to rely upon life experiences in adjudicating the plaintiff\u27s claim. These inconsistencies compel the conclusion that the role of emotive response in adjudication should be reconceptualized, since it is both a natural and rational response to evidence of injury

When It\u27s So Hard to Relate: Can the Legal System Mitigate the Trauma of Victim-Offender Relationships?

This article argues that, in the aftermath of violent crime, a relationship that is both negative and involuntary can form between crime victims and offenders. This relationship fetters the victim to the crime and the criminal, rendering it difficult to recover from the transgression. To illustrate how such a relationship may form and what consequences it may have for victims, this article uses the Oklahoma City bombing as a case study, documenting through the use of original interviews an involuntary relationship in which victims\u27 family members and survivors perceived they were tethered to Timothy McVeigh. This perceived relationship with McVeigh aggravated family members\u27 and survivors\u27 emotional and psychological wounds, delaying their healing. The article further argues that this relationship originated in media coverage of McVeigh that portrayed him as defiant, remorseless, and unemotional, and that it was further developed at trial when family members and survivors were profoundly disturbed by McVeigh\u27s conduct. To minimize the harmful effects of victim-offender relationships, this article proposes that victim services workers educate victims about the possibility of such a relationship, help victims cope with media coverage of the defendant, and assist victims in understanding defendants\u27 behavior during trial. Finally, it recommends that opportunities for voluntary victim-offender mediation be made available to help mitigate the negative consequences of these victim-offender ties

A Constructed Peace: Narratives of Suture in the News Media

In the aftermath of violent crime, survivors are confronted by questions of comprehension, healing, normalcy, accountability, and restoration. These same issues are communicated to audiences via mass media coverage of the crime and ensuing legal proceedings that focuses upon survivors while they are in the public eye - and while those suspected of the crime are in the defendant\u27s chair. Such stories bring a human face to the innocents most affected by the outcome of the proceedings, relaying their involvement in and response to legal developments from arrest to execution. This paper examines these chronicles through the lens of narrative theory, practices integral to human communication and memory. It discusses how the mass media makes use of narrative practices in covering crises, events that in effect demand narration. This paper then focuses upon the suturing potential of narrative, its ability to knit together understandings of crises into beginnings, endings, and points in between. This discussion is illustrated by a content analysis of stories covering Dennis and Judy Shepard, whose son Matthew was brutally slain in 1998, from the time of the murder to the prosecution of the killers and beyond

Woman Scorned?: Resurrecting Infertile Women\u27s Decision-Making Autonomy

Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars\u27 use of a desperate woman stereotype denies women\u27s ability to critically assess the health risks and life benefits of fertility treatments, particularly when similar stereotypes have been met with scorn in the abortion context. These constructions perpetuate emotional paternalism; undermine the dignity, autonomy, and capacityof infertile women; and justify restrictions on decision making in the Assisted Reproductive Technology context. Infertility may well produce emotional distress; however, the construction of infertile women as governed by desperation unnecessarily impugns their capacity for autonomous decision making. To these ends, this Article examines the contributions that emotion can make to autonomous decision making, and the need for a more relational model of autonomy that acknowledges the socially embedded nature of treatment decisions. Because current constructions of desperate infertile women ignore available clinical research and have serious ideological and practical consequences, it is crucial to unmask and reframe them to prevent them from being incorporated into jurisprudence or legislation

Selling ART or Selling Out?: A Response to Selling ART: An Empirical Assessment of Advertising on Fertility Clinics\u27 Websites

Roundtable on Regulating Assisted Reproductive Technology 201

Woman Scorned?: Resurrecting Infertile Women\u27s Decision-Making Autonomy

Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars\u27 use of a desperate woman stereotype denies women\u27s ability to critically assess the health risks and life benefits of fertility treatments, particularly when similar stereotypes have been met with scorn in the abortion context. These constructions perpetuate emotional paternalism; undermine the dignity, autonomy, and capacityof infertile women; and justify restrictions on decision making in the Assisted Reproductive Technology context. Infertility may well produce emotional distress; however, the construction of infertile women as governed by desperation unnecessarily impugns their capacity for autonomous decision making. To these ends, this Article examines the contributions that emotion can make to autonomous decision making, and the need for a more relational model of autonomy that acknowledges the socially embedded nature of treatment decisions. Because current constructions of desperate infertile women ignore available clinical research and have serious ideological and practical consequences, it is crucial to unmask and reframe them to prevent them from being incorporated into jurisprudence or legislation

Recognizing Odysseus\u27 Scar: Reconceptualizing Pain and its Empathic Role in Civil Adjudication

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners\u27 texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise the perspective that legal constructions of pain are intrinsically relational and empathic, this Article proposes a reformulation of pain as a dual construct, at once experiential and expressionistic, that is supported by both semiotic theory and by Wittgenstein\u27s refutation of the private language argument associated with Cartesian dualism. Pain as a dual construct is the most appropriate model for the legal construction of pain in personal injury litigation. This Article then turns to the implications of reformulating pain as a dual construct, examining how its grounding in social practice demands a more complex analysis than the existing model put forth by Elaine Scarry, who posits that imagination enables nonsufferers to access another\u27s suffering; this model is inadequate because pain-full phenomena must instead be grounded in social practice and structured by and through language. Only then is it possible to elucidate the development of an empathic connection between a sufferer and another and the legal consequences of that relation. This Article concludes by describing how the model of pain that law currently adopts in principle (but not in practice) extinguishes pain\u27s interactive potential, demonstrating the necessity of a conscious recognition of interpersonal pain-full reality