Cognitive Emotion and the Law

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.”

As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar.

Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions.

The article can be found here.

Ezekiel: The Universe Leaps Over Heart & Head (Addition to "The Apology Box")

Ezekiel’s Double Sonnet

                                                               (A prophet of the exile)
                         I.

A rift ran down the middle of my soul

With halves that tugged perpetually at war

And kept me torn as both a priest and man.

I found that rules and that exceptions can

Be true at once.  Though contradictory,
We must have justice, must have mercy, too,

And must have death although we hear the din

Of dusty bones redressing into skin.

A nation must be punished for its sin,
A nation made of aggregates where one
Thus bears the guilt of all although no one
Is guilty for the deeds another's done:

The father's never guilty for the son
Nor is the child for what the father's done.

                        II.

God's scroll was written to be read. Yet, God
Fed me the message, too.  Sad to the ear
Words somehow tasted honeyed to the tongue.

In honeyed thought, I thought of being young
In Israel again although I knew
That logic stays me.  God, though, had free hand

To seize my hair and whisk me off to stand
Outside the temple walls. I found a hole
Within one wall and peered in where I saw

Beyond facades, beyond exterior awe
To inner awe that dwarfed all things that we
(However wise) have ever felt or said.

The universe leaps over heart and head
Whose terms of course can't curb a universe
Whose essence always brings it back to God.

 © Harold Anthony Lloyd 2016

The current contents of "The Apology Box" can be found here.