Appraisal Theory: Old and New Questions

I describe my current thinking on two old questions—the causal role of appraisals and the relationship of appraisal theories to basic emotions theories and constructivist theories, and three (sort of) new questions—the completeness of appraisals, the role of language, and the development of automaticity in emotional responses

Legal Reasoning

For more than a century, lawyers have written about legal reasoning, and the flow of books and articles describing, analyzing, and reformulating the topic continues unabated. The volume and persistence of this unrelenting discussion (Simon, 1998, p. 4) suggests that there is no solid consensus about what legal reasoning is. Legal scholars have a tenacious intuition - or at least a strong hope - that legal reasoning is distinctive, that it is not the same as logic, or scientific reasoning, or ordinary decision making, and there have been dozens of attempts to describe what it is that sets it apart from these other forms of thinking. These attempts generate criticism, the critics devise new formulations that generate further criticism, and the process continues. In this chapter, I describe the primary forms of legal reasoning, the most important schools of thought about legal reasoning, and some of the major differences between legal reasoning and scientific reasoning

Levels of Thought and Levels of Emotion

I am not talking about unconscious emotions. If we have emotions that never ripple the surface of consciousness, they are beyond the scope of this discussion. I am talking about times when we are aware of emotional feelings, whether or not we can give these feelings a name. Even for conscious emotional states, I think it is impossible to specify a set of minimal cognitive prerequisites. In some ways it is analogous to the attempt to specify the defining features of mental illness. Some people are delusional but not unhappy, some experience debilitating panic attacks even though they know there is nothing to be afraid of, some are racked with physical pain that has no identifiable physical cause. The history of attempts to define insanity in a way that bears some relation to reality is testimony to the futility of seeking necessary and sufficient causes

Unpleasant Facts: The Supreme Court\u27s Response to Empirical Research on Capital Punishment

Slowly at first, and then with accelerating frequency, the courts have begun to examine, consider, and sometimes even require empirical data. From 1960 to 1981, for example, use of the terms statistics and statistical in Federal District and Circuit Court opinions increased by almost 15 times.1 Of course, citation rates indicate only that a topic is considered worthy of mention, not that it is taken seriously, or even understood. Nonetheless, in a number of areas, such as jury composition and employment discrimination, the courts have come to rely on empirical data as a matter of course. In the last 25 years, empirical research has been central to most major challenges to the constitutionality of capital punishment. The research involved has covered an enormous range of methods, from surveys to simulations, from econometric analyses to laboratory experiments, and the presentation of the research to the courts has generally been both comprehensive and sophisticated. There is probably no other area of criminal law in which the Supreme Court has been faced with such well-organized and wide-ranging empirical demonstrations. It is quite likely that comparable empirical data about some other issue would be persuasive to the Court; when the issue is the death penalty, however, the Court is not persuaded. In case after case, the majority of the Justices have been faced with empirical research that supports an outcome they do not want. Three major empirical questions have been brought before the Court in relation to capital punishment. The first is the issue of deterrence: Is the death penalty more effective than life imprisonment as a deterrent to murder? The second is the issue of discrimination: Are decisions about which criminals should be executed and which should be allowed to live based in part on the race of the person accused or on the race of the victim? The third is the issue of the fairness of capital juries: Does the common practice of removing strong opponents of capital punishment from the jury create juries that are biased toward a guilty verdict? The Court has dealt with the data on each of these issues somewhat differently-sometimes by calling them inconclusive, sometimes by calling them irrelevant, and sometimes by evading them. I shall examine the Court\u27s use of the data presented on each of these three questions, the first two briefly, and the third at greater length

Legal Reasoning

For more than a century, lawyers have written about legal reasoning, and the flow of books and articles describing, analyzing, and reformulating the topic continues unabated. The volume and persistence of this unrelenting discussion (Simon, 1998, p. 4) suggests that there is no solid consensus about what legal reasoning is. Legal scholars have a tenacious intuition - or at least a strong hope - that legal reasoning is distinctive, that it is not the same as logic, or scientific reasoning, or ordinary decision making, and there have been dozens of attempts to describe what it is that sets it apart from these other forms of thinking. These attempts generate criticism, the critics devise new formulations that generate further criticism, and the process continues. In this chapter, I describe the primary forms of legal reasoning, the most important schools of thought about legal reasoning, and some of the major differences between legal reasoning and scientific reasoning

Jury Reform at the End of the Century: Real Agreement, Real Changes

Complaints about the jury system and calls for its reform are nothing new-they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971\u27; in 1905 William Howard Taft decried the contemporary tendency to exalt the jury\u27s power beyond anything which is wise or prudent .... ,2 Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their families. Any of them may try to tell their stories to the public, and journalists fan the flames of discontent

Legal Reasoning and Scientific Reasoning

In my presentation for the 2010 Meador Lectures on Rationality, I chose to compare legal reasoning and scientific reasoning. Both law and science pride themselves on the rationality of their intellectual methods and believe that those methods are designed to analyze questions and reach the correct conclusions by means of reason, free from cognitive or emotional biases. Of course, both law and science often fall short of this ideal at all levels, from the decisions about individual legal cases or scientific studies to the acceptance of general theories. In many ways, the biases that mislead legal and scientific thinkers are similar. But in other ways they are not. Training to think like a lawyer is not quite like training to think like a scientist, and, more important, the circumstances and constraints faced by lawyers and scientists when they undertake the task of solving a problem are quite different

Are Twelve Heads Better Than One?

The jury\u27s competence, unlike that of the judge, rests partly on its ability to reflect the perspectives, experiences, and values of the ordinary people in the community - not just the most common or typical community perspective, but the whole range of viewpoints

Are Twelve Heads Better Than One?

Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,\u27 with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community opinion.2 The jury\u27s competence, unlike that of the judge, rests partly on its ability to reflect the perspectives, experiences, and values of the ordinary people in the community-not just the most common or typical community perspective, but the whole range of viewpoints. Representativeness is important not only for ensuring the essential nature of the jury as a tribunal embodying a broad democratic ideal, 3 but because it affects the jury\u27s competence directly. Failure to assure that any given group has a fair chance of participation deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.