The Cultural Script of Judicial Dispassion: Its Origins and Persistence
Judicial Dispassion: An Origin Story
Within it, emotion was thought to be even more primitive and at war with rationality, which, although within the reach of all people, needed active cultivation. Moreover, because emotion was thought to be an unruly and idiosyncratic force, it threatened the judge's ability to maintain his scientific stance. Thus, the judge in a democratic system was enjoined to reflect the dual meanings of dispassion: he had to be both unemotional and impartial, qualities that were seen as necessarily connected'.
The Sotomayor Confirmation Hearings: Evidence of the Script's
Senator Schumer, for example, redefined it as "the opposite of indifference." Thus, while contending political forces may have appeared to take sharply dichotomous positions, they largely agreed on one critical claim: judicial emotion is negative.". cost of sympathy, which Just dismissed as "a narrowly personal emotion." See Just, supra note 40.
The Apparent Futility of the Script of Judicial Dispassion
Emotion and Legal Reason
A Hidden Intellectual History of Dissent
Emotional Realism, Then and Now
Emotion in Early Legal Realism
34;is one of laws through people."124 This estimate allows for the influence of a human element.'2 5 The human element includes all the influences that make the judge who he is - sociological, political, ideological and psychological.126 Finally, emotions are part of the psychological aspect of the human element. See LEITER, supra note 121, at 19 & n.20, 61 (explaining that arriving at a theory of the human element was central to realists jurisprudential concern); Cardozo, supra note 121, at 10 (“[Fidelity to the realities of the legal process . . . is supposed to be, in a special degree their own, the aim and goal of [the realists'] endeavours.”); see also Kaufman , supra note 8, at 15 (urging judges to recognize the "human element" in their decision-making process); Glendon Schubert, Jurisprudence and Judicial Behavior: Introductory Note, in JUDICIAL BEHAVIOR: A READER IN THEORY AND RESEARCH 9, 9-13 , (Glendon Schubert ed., 1964) (emphasizing that realists "shifted the focus of attention away from the law as an impersonal ideological entity to the human judges"). For example, Laura Kalman nowhere mentions realists' theories of emotion in her historical analysis of realism's impact on legal education, although she discusses the role of Freudian theory and the idea of judicial "idiosyncracy." LAURA KALMAN, LEGAL REALISM AT YALE see also LerTER, supra note 121, on discussing emotion nowhere in a careful essay on "Rethinking Legal Realism").
This fundamental realist point is encapsulated in Arthur Corbin's then heretical claim that judge-made law "grows up in the semi-darkness of ignorance and emotion" rather than "in the bright light of pure reason". 29 John Dickinson, giving an example, suggested that a judge's "known enmity". Cardozo observed in 1931 that judges had "talked about ourselves and looked into ourselves, subjecting our minds and our souls to a process of analysis and introspection with a freedom and to a measure which, in the thought of our predecessors, would have been vain and pointless. or even outright inappropriate."33. And it found a significant outlet: the segment of realist thought that drew on psychological theory, especially the work of Jerome Frank.34.
Moreover, even the opponents of realism approved of the move toward frankness about human influences on judgment." Roscoe Pound, for example, recognized that "there is a marked advance in [the realists'] frank recognition of the alogical or non-rational element . in judicial action that the legal science of the nineteenth century tried to ignore." of the individual judge will tell us everything that we could not have learned from jurisprudence before the birth of Sigmund Freud. Other realist thinkers also refused to say how much influence the judicial emotion, except that they had to admit that it was not negligible. . . .'5 6 Cardozo stated that 'lawyers have not been able to agree on how much of the judicial decision-making process is reasoning, and how much is pure emotion.' 157 Thus, the only consensus among realists was that emotion has a greater impact on judgment than previously thought, or considered acceptable to acknowledge.
They failed to provide a sufficiently specific theory to sustain significant scientific development or cultural salience."8 The realist focus on judicial emotion was consequently a "flash and forget insight," a fate Llewellyn hoped that all realist theory would avoid 1 5 9.
The New Emotional Realism of the Late Twentieth Century
34; driven by information," express "an evaluation of that information" and motivate action.'7 3 Having outlined that theoretical basis, Posner undertakes to engage with the fundamental question of whether judges should be "unemotional, as computers." or—if not—how emotion should "enter their judgments." l74. The fact that Posner is commonly identified as a prominent conservative scholar undercuts the popular perception (reinforced in the Sotomayor confirmation debates) that accepting the role of emotions in judgment is by nature "liberal". More critically, they have a meditative character; decision-making tends to require more emotions than just what you need to perform some non-algorithmic task"; further, in "rationally indeterminate" cases "a richer emotional range would be appropriate, or at least inevitable.").
POSNER, supra note 13, at 228 (``[W]e might call a judge ``emotional'' who was so swayed by the horrific injuries of a tort claimant that he was blinded to the other legally relevant features of the case. . . . We expect appellate judges ․ to be less emotional in this sense than trial judges because they are remote from the most emotionally salient features of the case."); id, at 245 (discussing. POSNER, supra note 13, at I thus take the cognitive meaning of emotion so seriously as being unwilling to constitute reason the tribunal that reviews the emotions and decides which law to encourage ... .the basis of many of our moral rules is emotion, not emotion-evaluative reason."). 34;proper emotional state,"18 nor does he specify the content of either this state or "the suite of emotions that one should look for in a judge."'85 Furthermore, as explored in the following section, when his various claims thus drawn together, they often cannot be connected.
Posner admits that his discussion of the "epistemic meaning" of various emotions simply "indicates" the content of this "collection." Id. Nussbaum's most focused treatment of judicial emotions appears in a 1996 lecture, when she responds to Blackmun's criticism that he was too emotional.190 After rejecting the idea that emotions are necessarily irrational,1'9 Nussbaum asked whether traditional the objection may instead reflect a concern that emotions, even when cognitively sound, may lead judges to "inappropriate [only] bold ways of acting."192 She called this a "really interesting concern."93 Based on Adam Smith's Theory of Moral Sentiments, Nussbaum believed that perhaps, as a reader of literature or a concerned friend, one should vividly imagine the emotions of the participants, but filter "that part of anger, fear, and even compassion that focuses on oneself in one's cherished projects."94 Such an attitude would allow the judge to share, for example, participants. Acknowledging that Smith's implications "should be developed much further," Nussbaum offered them as a "promising proposition." 99.
Pillsbury, Harlan, Holmes, and the Passions of Justice, in THE PASSIONS OF LAW, supra note 64, at 351-54 (noting that his "preliminary analysis raises a number of provocative questions"). 34; 'emotionless judging' exaggerates 'the boundary between reason and emotion, and the possibility of keeping reasoning processes free of emotions');
Emotion's Nature and Value: Recurrent Stumbling Blocks
- The Taxonomical Difficulty
- The Normative Difficulty
- The Goldilocks Difficulty
- A New Emotional Epistemology
The proper course is to recognize the necessary existence of this personal element and act accordingly."); see also Kaufman, supra note 8, at 16 ("Our intuition, emotion, and conscience are relevant factors in the legal calculation .The Enlightenment project of disciplined scientific inquiry.253 As Descartes once stated, since "every man has experience of the passions within himself, it is not necessary to borrow one's observations from elsewhere to discover their nature."254 It is far. by surprise, therefore, that the early attacks of the realists.
The study of emotion, of course, had a long pre-Enlightenment history, constituting one of the core focuses of philosophical inquiry (considered something other than . "science"), See RENA DESCARTES, THE PASSIONS OF THE SOL (1649 ), excerpt in WHAT IS AN EMOTION?, supra note 69, at 55. CHARLES DARwin, THE EXPRESSION OF THE EMOTIONS IN MAN AND ANIMALS (1872); see also Calhoun & Solomon, Introduction, in WHAT IS AN EMOTION?, supra note 69, at. Although 'Freud did not develop a theory of emotion as such, his theories "radically changed the whole idea of emotions" and "reshaped our whole 'topography' of the mind." Cheshire Calhoun and Robert C.
It is a curious phenomenon of the twentieth century that so many intellectuals should be so actively engaged in the task of convincing other intellectuals with reason that people are essentially irrational.") ) essay, undertook to explore "the complexity of influence 274. See Schubert, supra note 125, at 12 ("The most enduring theoretical influence on American jurisprudence during this century has come from Freudianism.").
See also Bandes, Introduction, supra note 64, at 5 ("The lack of clarity makes emotion in the civil context hidden, and all the more important to identify by arguing that some expressions of emotion in law are . . . 'invisible' to due to virtue Posner, The Role of the Judge in the 21st Century, supra note 171, arguing that "the role of emotion and intuition as important but inarticulate bases of a judicial decision is obscured" because a judge would be criticized for explaining the decision of his "in the sense of an emotion"). One way in which such a study differs from the "armchair analysis" approach is its methodical application to all arguments and questions, not just those that appear. obviously "emotional. " Cf Pillbsury, supra note 207, at 333 (acknowledging his limited sample size).
