Senior Research Seminar

Professor Susan Bandes

Spring 2007

Emotion and the Law

Course Description:

Over the last ten years or so, the field of law has taken increasing cognizance of the role
of emotion in every aspect of legal theory and practice. In many respects, this interest in
emotion is paralleled by developments in other fields, including philosophy, psychology,
philosophy, sociology, and most recently, neuroscience. The emerging field of emotion
theory lies at the intersection of these disciplines. Emotion theory explores questions
about the role emotion plays in decision-making, in moral and ethical development, and
in the creation and development of social and institutional structures.

An initial important issue is the question of what constitutes emotion. We will spend one
class discussing this issue through various disciplinary lenses, but always with the
consequences for the legal system as the focus of the inquiry.

We will then consider a number of ways in which emotion theory helps illuminate legal
decision-making and legal institutions. The most obvious and explicit examples come
from criminal law, and particularly, from the role of the jury in the criminal case.
However, emotion pervades not just criminal but civil law, and not just the jury room but
the judiciary, the legislature, the actions of attorneys, and even the structure of legal
institutions themselves. The “invisible” emotions, those that are not explicitly recognized
or labeled as emotional, are particularly crucial to study. Likewise, the emotions that
drive and influence legal actors who are not usually labeled “emotional,” including
judges and legislators, are essential to study as well. Indeed emotion is deeply implicated
in decision-making generally. The questions that need to be discussed involve how to tell
which emotions belong in which legal contexts, and how to channel or even educate
emotion (if it is educable) to improve the quality of justice.
 Syllabus

Assignments

All assignments are in The Passions of Law (Susan Bandes ed.) or articles posted on
Blackboard.

1) Emotion and Reason in the Legal Realm

Susan Bandes, The Passions of Law, introduction (Susan Bandes, ed. NYU Press 2000).

Owen Fiss, Reason in All its Splendor, 56 Brooklyn L. Rev. 789 (1990).

William J. Brennan, Jr. Reason, Passion, and the “Progress of the Law,” 10 Cardozo L.
Rev. 3 (1988).

Jonathan Haidt, The Emotional Dog and its Rational Tail: A Social Intuitionist Approach
to Moral Judgment, 108 Psychological Review 814 (2001).

2) What is an Emotion?

Amelie Rorty, Explaining Emotions, in Explaining Emotions (1980).

Terry Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field, 30 Law
and Human Behavior 119 (2006).

Arlie Hochschild, The Managed Heart: Commercialization of Human Feeling (1983)—

appendix A at pages 22201-222.

3) Empathy

Lynne Henderson, Legality and Empathy, 85 Mich. L. Rev. 1574 (1987).

Susan Bandes, Empathy, Narrative and Victim Impact Statements, 63 U. Chi. L. Rev. 361
(1996).

Haegerich and Bottoms, Empathy and Jurors’ Decisions in Patricide Trials Involving
Child Sexual Assault Allegations, 24 Law and Human Behavior 421 (2000).

4) The Criminal Law

Susan Bandes, Repression and Denial in Criminal Lawyering, 9 Buffalo Criminal Law
Review 341 (2006).
Susan Bandes, The Prosecutor and Tunnel Vision, 49 Howard Law Journal 475 (2006).

Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment,

74 Cornell L. Rev. 655 (1989).

5) Disgust

Dan Kahan article (in Bandes)

Martha Nussbaum article (in Bandes)

Peter Huang and Christopher Anderson, A Psychology of Emotional Decision Making:

Revulsion and Saving Face in Legal Theory and Practice, 90 Minn. L. Rev. 1045 (2006).

6) Love

Calhoun article (in Bandes)

Jeffire Murphy, Law Like Love, 55 Syracuse L Rev 15 (2004).

Bandes, What’s Love Got to Do With it?, 8 William and Mary Journal of Law and
Feminism 291 (2001).

7) Vengeance

Jeffrie Murphy article (in Bandes)

Robert Solomon article (in Bandes)

Danielle Allen article (in Bandes)

Class Deadlines and Procedures

Topic Selections: All topics must be selected by class three. Please review the list of
suggested topics on Blackboard. (You are free to suggest your own topic not on the list).
You should email me your topic or give it to me during the first two weeks so that I can
provide you with feedback.

Outline: Detailed outlines must be handed in by class five.

First Draft: Due by the beginning of the class immediately before spring break. I will
schedule meetings for the week after spring break to review first drafts.
Final Paper: Due at the beginning of May. This deadline will be treated like a scheduled
exam. Any requests for a later deadline must be made in advance, to Dean White only, and
will be treated like a request for a makeup exam. Failure to meet any of the first three above
deadlines without advance approval of the professor will lead to a reduced grade. The
amount of the grade reduction is within the discretion of the professor and may be
substantial. Failure to meet the deadline for the final paper without prior administrative
approval will result in a grade of FX.

Schedule

January 22: Read assignment one

January 29: Read assignment two

All proposed topics should be emailed to Prof. Bandes by end of the day.

February 5: Read assignment three

All topics must be approved by the end of the day.

February 12: Read assignment four

February 19: Read assignment five

Outlines must be submitted to the professor by the beginning of class
Set up meetings to discuss outlines.

February 26: No class. Individual meetings to discuss outlines will be held this week.

March 5: Read assignment six

Set up meetings to discuss first drafts.

March 12: No class. First drafts are due by Thursday, March 15th at 4 P.M.

March 26: No class. Individual meetings to discuss first drafts will be held this week.

April 9:: Read assignment seven.

April 16: Student presentations

April 23: Student presentations

April 30: Student presentations

May 3: All final papers are due by 4 P.M. either in my office or via email.

Requirements
The requirements for this seminar are the following:

1) Attendance at every class session. Attendance will be excused only by prior emergencies
such as a death in the family or an illness confirmable by doctor's note.

2) Informed and consistent class participation. This assumes that you must do all the
assigned reading.

3) An oral presentation

4) A short “reaction paper,” as assigned.

4) A detailed outline

5) A complete first draft of the paper

6) An analytical paper at least 30 pages in length, double spaced, not including the endnotes.

Grade
The grade will be determined as follows:

75% of the grade will be based on the outline, first draft and final draft of the paper.

25% of the grade will be based on class attendance, class participation, class assignments,
and the presentation.

The Short “Reaction Paper”

During each class, several students will be assigned a short (one or two page) reaction paper,
which should include thoughts on the readings and specific applications of the reading to
one or more areas of legal thought or practice. Each student will be assigned one such paper
for the term. The reaction paper should be emailed to the professor by the night before class.

The Research Paper

75% of the class grade will be based on the paper (including the outline and first draft).

The outline of the paper should be detailed (several pages long) and should cite to the
sources (legal, literary, critical, etc.) the student will rely on in the final paper.
The first draft should be as close to a complete first draft as possible. This will enable me to
give you the most thorough and helpful feedback.

The final paper should be at least thirty pages long, not including endnotes. The endnotes
must conform to bluebook form (Uniform System of Citation). The paper should
demonstrate comprehensive research and sophisticated, in-depth analysis, as well as a clear,
organized, concise writing style. It should be analytical: that is, it should not merely report
or describe what you have read, but should reflect your own synthesis of the material and
your original thoughts on its significance.

Papers will be graded according to depth and quality of research, cogency, thoughtfulness,
originality, analytical rigor, clarity of expression, and soundness of organization.

Plagiarism
Be very careful of this! Not all plagiarism is intentional; and even unintentional plagiarism
is a violation of the honor code and will be reported to the administration. You are
responsible for knowing and abiding by the honor code and for avoiding plagiarism. Please
read the “rules for working with authority” provided by the Institute for Legal Writing, at
the following link: http://www.lwionline.org/publications/plagiarism/workingauthority.asp

In brief, plagiarism is presenting another person's words or ideas as if they were your own.
Every quotation, no matter how short or how long, must have quotation marks and a
citation. Every paraphrase or summary of another person's ideas, no matter how short or
how long, even though not a word for word quotation, must be attributed. It is not enough
that the person's work is cited elsewhere in your notes: every separate use of another
person's work must be acknowledged with a citation. Carelessness, lack of intent or
ignorance are not defenses to a charge of plagiarism.

The Presentation
Each presenter will have about 15 minutes to present his or her work to the class. Do not
read from your paper -- put together a cogent presentation which highlights its major or
most interesting points, and raises topics for discussion. Then identify some discussion
questions for the class.

The presentations will take place during the last three or four classes. Once topic
assignments are complete, I will determine the order of the presentations depending on topic
groupings.

A very partial listing of additional outside readings:

A few articles:
Susan Bandes, When Victims Seek Closure: Forgiveness, Vengeance and the Role of
Government, 5 Fordham Urban Law Journal 1599 (2000).

Susan Bandes, Fear Factor: The Role of Media in Covering and Shaping the Death
Penalty, 1 Ohio State Journal of Criminal Law 585 (2004).

Susan Bandes, Not Enough Blame to Go Around: Reflections on Requiring Purposeful

Government Misconduct, 68 Brooklyn Law Review 1195 (2003) (symposium:
Responsibility and Blame: Psychological and Legal Perspectives).

Susan Bandes, Fear and Degradation in Alabama: The Emotional Subtext of University of
Alabama v. Garrett, 5 University of Pennsylvania Journal of Constitutional Law 520
(2003) (Sparer Symposium at the University of Pennsylvania Law School).

Ruth Colker, Feminism, Theology, and Abortion: Toward Love, Compassion and
Wisdom, 77 Cal. L. Rev. 1011 (1989).

Chris Guthrie, Risk Realization, Emotion, and Policy Making, 69 Missouri L. Rev. 1039
(2004).

Craig Haney, Condemning the Other in Death Penalty Trials: Biographical Racism,
Structural Mitigation, and the Empathic Divide, 53 DePaul L. Rev. 1557 (2004).

Lynne Henderson, Legality and Empathy, 85 Mich. L Rev. 1574 (1987).

Toni Massaro, The Meanings of Shame: Implications for Legal Reform, 3 J. Psych.
Public Policy & Law 645 (1997).

Ruth Ann McKinney, Depression and Anxiety in Law Students: Are We Part of the
Problem and Can We Be Part of the Solution? 8 Legal Writing 229 (2002).

Dan Markel, Against Mercy, 88 Minnesota Law Review 1421 (2004).

Mary Sigler, The Story of Justice: Retribution, Mercy, and the Role of Emotions in the
Capital Sentencing Process, 19 Law and Philosophy 339 (2000).

Benjamin Zipursky, DeShaney and the Jurisprudence of Compassion, 65 NYU L. Rev.

1101 (1990).

A few books:

Antonio Damasio, Descartes’ Error: Emotion, Reason and the Human Brain (1994).

Symposium: Reason, Passion and Justice Brennan , 10 Cardozo L. Rev. 1 (1988).

Craig Haney, Death by Design: Capital Punishment as a Social Psychological System.

New York: Oxford University Press (2005).

Arlie Hochschild, The Managed Heart: Commercialization of Human Feeling (1983).

Susan Jacoby, Wild Justice: The Evolution of Revenge (1983).

William Ian Miller, The Anatomy of Disgust (1997).

Jeffrie Murphy and Jean Hampton, Forgiveness and Mercy (1988).

Jeffrie Murphy, Getting Even: Forgiveness and its Limits (2003).

Martha Nussbaum, Love’s Knowledge: Essays on Philosophy and Literature (1990).

Martha Nussbaum, Upheavals of Thought: The Intelligence of Emotions (2001).