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.

Mary Magdalene (Addition to "The Apology Box")

            Mary Magdalene’s Apology

Though fathers of the church might not recall,
I was his favored ally over all--
Though I had awful moments I admit.

I saw the seven horrid faces of

The demons driven out.  Pride lurched out first.

It smirked as it looked back at me.  It kissed

Its gilded mirror, dropped its glass, then spread

Its filthy, gaudy tail.  It stretched its wings

And took its pompous exit on the breeze.

Then Envy slithered out, a serpent scaled

With eyes instead of plates.  Each lens scanned round

From different angles not to miss a grudge.

Its filthy fangs were always poised to strike

With venom ever dripping.  Thus, the snake

Ingested greater poison than its prey.

Then Gluttony with well-worn teeth chewed its

Way out of me and tumbled on the ground

To roll away in its growing sphere of flesh.

Then Idleness crawled out.  Its wrinkled robes

Were stained and filthy.  It could barely hold

Its head upright until it found a bed.

Then heaving-breathing Avarice crawled out

So loaded down with precious things it could

Not stand. Despite the wealth it bore, its clothes

Were worn and fit it poorly.  Sweating, it

Crawled off distraught--it never hauled enough.

Then lion-headed Wrath leapt out of me.

Its awful roar was followed by a spray

Of blood its flailing limbs slung as it ran.

Then last of all sprang hairy Lust.  (Perhaps

I’m most remembered for the last since it

By chance became the final one to leave.)

O Lord, I tremble still to think about

Those awful spectacles as each came out.

And yet once freed of seven demons, I

Could kneel to wash my master’s feet.  I could

Anoint his head with oil and laud him well.

Then when his fortunes changed, I could as well

Stand by him as they nailed him up.  And when

Some armored angels swept him up from Hell

I could run out and spread good news to all--
I was his favored ally after all.           

© Harold Anthony Lloyd 2016

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

P.S. In the Rhetoric to Lettie, I speculate on how Christ might have confided in his favorite disciple:

    Jesus Confides in Mary Magdalene

The kingdom is within.  Search for it there.

The sinner is the one who in despair

Awaits the day his chariot should come.

The kingdom is not coming.  It is here.

There are no portents, earthquakes, storms to fear

Before arrival.  Simply look within.

Tell others that the kingdom is within,

That first it’s small like seeds or leaven in

The dough but has its powers to expand.

Be mindful of the present or you’ll miss

Brief miracles of leavens such as this.

Live in the “am,” not in the “will” or “was”

And revel in the kingdom found within.

There can be no forgiveness for the sin

Of self-rejection.  Broken can’t be right.

Commit yourself at once, do not delay

To act on what you’ve found.  Though others say

That faith suffices, fruit defines the tree.

Embrace your enemy and do no deed

You’d not have others do to you.  Once freed

From difference, inner light uncovered shines.

Be humble and be open as a child.

Be curious and never be beguiled

By rules or “prophets” that snuff out the light.

For light will show whenever two are one,

Whole mountains can be moved.  Division gone,

Whole mountains cannot claim their former place.

Know rules serve us.  When bending must be done,

Bend rules to light, not light to them.  Don’t sin

By elevating Sabbaths over light.

Though I must leave you soon, I still shall shine:

My light remains in you as yours in mine,

And therefore separation never comes.

Split any piece of wood and I am there.

Lift any rock and you will find me there.

Set any table.  You will find me there.

Have bread and wine in common to recall

The need to share both food and drink with all—

And do this for your fellow flesh and blood.

As I have done, reach out to heal the sick—

Though not just those with fevers.  Heal heartsick

And troubled spirits, too.  Do miracles.

Though I have set upon a painful course,

I choose it freely--right could never force

A faultless one to pay another’s fine.

No innocents are sacrificed though I

Am willing for the sake of truth to die.

That’s what the Cross should symbolize for you.

I’m neither Paul, nor Pope, nor Protestant.

I am before they came, before they went.

I am before their Sabbaths as are you.

 © Harold Anthony Lloyd 2016