Unlearning Fear Out-Group Others

Maroney describes a neuroscientific fear-extinction study as preliminary evidence supporting the notion that out-group hostilities might be influenced by biological predispositions. In the fear-extinction study, subjects were conditioned to fear the presentation of black or white faces with the introduction of an electric shock when such faces appeared on a screen. Then the experimenters stopped using the shock when that race\u27s faces appeared on the screen. Subjects\u27 fear was extinguished much more effectively when the subject was conditioned to fear faces of individuals of her own race than when the subject was conditioned to fear faces of individuals of another race

The False Promise of Adolescent Brain Science in Juvenile Justice

Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court’s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims - for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself - for example, individual variation - also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decision-makers’ beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values. Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors - good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services - that are both more important and subject to greater direct control

Angry Judges

Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges\u27 anger should influence their behavior and decisionmaking. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment-precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in the right way. Modern affective psychology, for its part, offers empirical tools with which to determine whether and when anger conforms to Aristotelian virtue. This Article weaves these strands together to propose a new model of judicial anger: that of the righteously angry judge. The righteously angry judge is angry for good reasons; experiences and expresses that anger in a well-regulated manner; and uses her anger to motivate and carry out the tasks within her delegated authority. Offering not only the first comprehensive descriptive account of judicial anger but also the first theoretical model for how such anger ought to be evaluated, the Article demonstrates how judicial behavior and decisionmaking can benefit by harnessing anger-the most common and potent judicial emotion-in service of righteousness

Law and Emotion: A Proposed Taxonomy of an Emerging Field Special Edition

Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship\u27s development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research. The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal relevance is deserving of close scrutiny. It is organized around the following six approaches: Emotion-centered: Analyze how a particular emotion is, could be, or should be reflected in law. Emotional phenomenon: Describe a mechanism by which emotion is experienced, processed, or expressed, and analyze how that phenomenon is, could be, or should be reflected in law. Emotion theory: Adopt a particular theory (or theories) of the emotions and analyze how that theory is, could be, or should be reflected in law. Legal doctrine: Analyze how emotion is, could be, or should be reflected in a particular area of legal doctrine. Theory of law: Analyze the theories of emotion embedded or reflected within a theoretical approach to the law. Legal actor: Examine how a legal actor\u27s performance of her function is, could be, or should be influenced by emotion. Any given study within the law-and-emotion rubric will have its primary grounding in at least one of these approaches, but should strive to attend to each. Thus, it should identify which emotion(s) it takes as its focus; distinguish between those emotions and implicated emotion-driven phenomena; explore relevant and competing theories of those emotions\u27 origin, purpose, or functioning; limit itself to a particular type of legal doctrine or legal determination; expose any underlying theories of law; and make clear which legal actors are implicated. Directions for future research include greater attention to: non-criminal law; positive emotions; a wider variety of emotion theories and theories of law; and a broader range of legal actors. Cross-disciplinary collaboration will be particularly useful in this endeavor

The False Promise of Adolescent Brain Science in Juvenile Justice

Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court\u27s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims — for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself — for example, individual variation — also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decision makers\u27 beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values. Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors — good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services — that are both more important and subject to greater direct control. Reprinted by permission of the publisher

The False Promise of Adolescent Brain Science in Juvenile Justice

Recent scientific findings about the developing teen brain have both captured public attention and begun to percolate through legal theory and practice. Indeed, many believe that developmental neuroscience contributed to the U.S. Supreme Court\u27s elimination of the juvenile death penalty in Roper v. Simmons. Post-Roper, scholars assert that the developmentally normal attributes of the teen brain counsel differential treatment of young offenders, and advocates increasingly make such arguments before the courts. The success of any theory, though, depends in large part on implementation, and challenges that emerge through implementation illuminate problematic aspects of the theory. This Article tests the legal impact of developmental neuroscience by analyzing cases in which juvenile defendants have attempted to put it into practice. It reveals that most such efforts fail. Doctrinal factors hamstring most claims — for example, that persons with immature brains are incapable of forming the requisite mens rea for serious crimes. Limitations intrinsic to the science itself — for example, individual variation — also hinder its relevance and impact. These factors both explain why developmental neuroscience has had minimal effects on juvenile justice in the courts and illustrate why it generally should. Moreover, direct reliance on neuroscience as the metric for juvenile justice policy may jeopardize equality and autonomy interests, and brain-based arguments too frequently risk inaccuracy and overstatement. The cases also strongly suggest that neuroscience does not materially shape legal decision makers\u27 beliefs and values about youthful offenders but instead will be read through the lens of those beliefs and values. Developmental neuroscience nonetheless can play a small role in juvenile justice going forward. Legislatures and courts may regard that science as one source among many upon which to draw when basing policy choices on assumptions about juveniles as a group. To go further is unwarranted and threatens to draw attention away from critical legal and environmental factors — good schools, strong families, economic opportunities, mental health care, humane sentencing regimes, and rehabilitative services — that are both more important and subject to greater direct control. Reprinted by permission of the publisher

The Emotionally Intelligent Judge: A New (and Realistic) Ideal

As a Supreme Court Justice once wrote, “dispassionate judges” are “mythical beings,” like “Santa Claus or Uncle Sam or Easter bunnies.”1 Judges have emotions, and emotions influence decision making. These observations may seem obvious, even banal. But their implications are broad-reaching. Judicial emotion is more common than most people—certainly laypeople, and perhaps judges as well— would like to believe. Further, emotion almost certainly has a substantial impact on judicial decision making and behavior— and that is not necessarily a bad thing. The ideal of the emotionless, “dispassionate” judge has a very long pedigree. More than three centuries ago, Thomas Hobbes wrote in Leviathan that the ideal judge is “divested of all fear, anger, hatred, love, and compassion.”2 To a modern ear such a blunt statement sounds, perhaps, antiquated. To the extent this is so, it is because the Legal Realists of the early twentieth century largely convinced us of the importance of the person wearing the robe. Law is not certain, and judges have discretion, within which space ostensibly “alogical” or “non-rational” forces have room to operate.3 As the great Benjamin Cardozo once mused, “Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.”

(What We Talk About When We Talk About) Judicial Temperament

Judicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and either present a laundry list of desirable judicial qualities without articulating what (if anything) unifies the list or treat temperament as a fundamentally mysterious quality that a judge either does or does not have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need a common vocabulary to guide our discourse on judicial temperament. This Article—the first extended scholarly treatment of the topic—posits that, because judicial temperament is a psychological construct, we ought to draw upon psychology to understand it. It therefore taps a deep well of scientific research to construct a new psycho-legal theory of judicial temperament. It conceives judicial temperament as a deep-seated, relatively stable set of specific personal traits—separable from intellect, training, and ideology—that, in dialectic with specific judicial environments and the predictable demands of judging, drive behaviors that affect how justice is delivered and perceived. The critical trait dimensions of a judge’s temperament are positive emotionality, negative emotionality, kindness, and self-regulation. The combination of these traits determines how well or poorly her temperament will fit with any given judicial assignment. Although judicial temperament is somewhat malleable, potential for change is constrained. This scientifically grounded theory shows why some seldom-mentioned attributes—like courage—are temperamental, and other commonly-cited ones—such as commitments to equality and diversity—are not. This Article provides a principled alternative to the folk-wisdom manner in which judicial temperament traditionally has been defined and assessed. Setting the theoretical terms for empirical testing of its claims—and with the potential to transform processes for judicial selection, evaluation, and support—the psycho-legal theory posited here shows what we should be talking about when we talk about judicial temperament

Emotional Regulation and Judicial Behavior

Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. In the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, yet our legal culture continues to insist that a good judge firmly puts those reactions aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation. This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to “put emotion aside.” While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that our legal culture does nothing to promote intelligent judicial emotion regulation and much to discourage it. An engagement model for managing judicial emotion promises to reverse this maladaptive pattern. It provides concrete tools with which judges may prepare realistically for emotional situations they necessarily will encounter, respond thoughtfully to emotions they cannot help but feel, and integrate lessons from such emotions into their behavior. Importantly, the medical community has begun to pursue just such a program to promote competent emotion regulation by doctors. The engagement model is far superior to all its alternatives. Other regulation strategies, such as avoidance, are fundamentally incompatible with judges’ professional responsibilities. Suppressing the expression and experience of emotion—encouraged by the status quo—is costly and normatively undesirable. Suppression is unrealistic, exacerbates cognitive load, impairs memory, and can paradoxically increase emotion’s influence while rendering that influence less transparent. The judicial-engagement model, in contrast, leverages the best of what the psychology of emotion regulation has to offer. It puts a name to what extraordinary judges already are doing well and makes it available to all judges. By setting aside not judicial emotion but, rather, the crude manner in which we have asked judges to manage it, we stand materially to improve the quality of judging

Judges and Their Emotions

In a contribution to this Symposium on Law and Emotion: Re-Envisioning Family Law, Phillip Shaver and his co-authors succinctly encapsulate contemporary psychological theory on interpersonal attachment -- primarily parent-child attachment and its role in creating lifelong attachment patterns -- and seek to outline the relevance of such research for both social policy and law. This Comment demonstrates that many areas of family law already seek to cultivate and reward attachment. But attachment is not and cannot be the sole-or even, perhaps, the most important-factor driving most legal determinations. Recognizing the importance of secure attachment does not answer difficult questions about how best to achieve it, particularly within the context of competing claims. In fact, taking an attachment perspective in isolation might lead to normatively bad outcomes. However, there are instances in which an attachment focus should be legally determinative, for it may sometimes illuminate outcomes that are all upside and no down. The Comment concludes by offering some thoughts about law-relevant social policy implications