80 Indiana Law Journal 155 (2005)
Legal scholarship on "behavioralism" and the implications of cognitive biases for the law is flourishing. In parallel with the rise of such commentary, legal scholars have begun to discuss the role of the emotions in legal discourse. This discussion often addresses the "appropriateness" of various emotions for the substantive law, or attempts to model the place of the emotions in the law. Implicit in some of these theories, however, and explicit in others, is the assumption that emotions are "predictable," "manageable, "and (for some commentators) under conscious control. This assumption is belied by psychological research on affective forecasting that demonstrates people's inability to accurately predict future emotional states, both their own and those of others. Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. Affective forecasting research also demonstrates the implausibility of some theoretical models of law and the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well.
I review here the empirical data demonstrating that individuals predict emotions inaccurately, and spin out the implications of this research for a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience. Contract law is implicated by these findings as well, especially in the context of contracts for surrogate motherhood. Finally, the data are also relevant to the area of health law where, for instance, they apply broadly to the use of advance health directives, and more specifically to the context of euthanasia. I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions. In this discussion I include some of the specific drawbacks to some current theories. I also address the data's implications for the very theories of welfare and well-being that underlie much legal policy, and speculate about implications for paternalistic policy initiatives.
Blumenthal, Jeremy A.
"Law and the Emotions: The Problems of Affective Forecasting,"
Indiana Law Journal:
2, Article 1.
Available at: http://www.repository.law.indiana.edu/ilj/vol80/iss2/1