Who's Afraid of Law and the Emotions?

By Kathryn Abrams & Hila Keren. Full text here.

Law and emotions scholarship has reached a critical moment in its trajectory. It has become a varied and dynamic body of work, mobilizing diverse disciplinary understandings, to analyze the range of emotions that implicate law and legal decisionmaking. Yet mainstream legal academics have often greeted it with ambivalence. They have not predictably viewed it as a resource for addressing questions within their substantive fields; it is often treated as a novel academic pastime rather than an instrument for addressing practical problems. This reception contrasts sharply with that accorded to two fields that have also challenged dominant notions of (legal) rationality: behavioral law and economics, and the emerging field of law and neuroscience.

In this Article, we examine the ambivalent reception of this promising body of work. We conclude that it may reflect the persistence of a rationalist tendency in law, and an incomplete grasp of the benefits of understanding these essential constituents of human cognition and motivation. We contend that the best answer to such resurgent doubt is to demonstrate the pragmatic potential of this scholarship. Notwithstanding the breadth of its epistemological challenges, law and emotions scholarship can contribute to the familiar normative work of the law—revising and strengthening existing doctrine, improving decisionmaking, and informing new legal policies. Moreover, it can facilitate the less familiar but nevertheless valuable task of using law to improve people’s affective lives. We elaborate the pragmatic potential of law and emotions by identifying three dimensions of this scholarship: its capacity to illuminate the affective features of legal problems; its ability to investigate these features through interdisciplinary analysis; and its power to integrate that understanding into practical, normative proposals. In demonstrating the utility of law and emotions scholarship, we also respond to some of the explicit concerns that have been raised about purposive legal intervention in the emotions.

This examination reveals law and emotions scholarship to be a vital endeavor, which can improve the operation of law, through a pluralistic, multidisciplinary understanding of emotions, not simply as defects of rationality but as affirmative modes of apprehending and responding to the world.