University of Chicago Law School
May 9-10, 2008

Emotion in Context:
Exploring the Interaction between Emotions and Legal Institutions

Schedule
Registration Information

The design of legal institutions is based on implicit and explicit assumptions about human behavior, for example assumptions about how people individually or collectively respond to new information, assess risks, or decide whom to trust or fear, about what motivates people to forgive or to seek vengeance, or about how to promote or discourage empathy. The interdisciplinary study of emotion has offered valuable insights into whether these assumptions about human behavior are well grounded. The next step is to explore how generalizable these insights are: that is, whether emotional dynamics remain stable across institutional contexts. For example, rules seeking to promote forgiveness might be workable and desirable in victim-offender mediation involving juvenile offenders, but not in capital litigation, domestic violence court or national truth and reconciliation commissions. Individual risk preferences may vary depending on institutional settings, and these preferences may affect the design of health plans, environmental protections, or contract enforcement mechanisms. The dynamics of emotional contagion in jury deliberations may differ from those in negotiation settings or stratified workplaces.

This conference will bring together scholars working in philosophy, neuroscience, neuroeconomics, sociology, psychology, political science and other disciplines exploring the complex interaction between emotion and social structure to consider both how institutional context affects the experience and expression of emotion, and how emotion norms affect the shape and operation of legal institutions. It will be open to the public. Further information will be posted shortly. Contact Susan Bandes at sbandes@uchicago.edu or Marjorie Holme at mholme@uchicago.edu with any questions.

Emotions and Instituions is sponsored by the University of Chicago Law School, the Gruter Institute for Law and Behavioral Research, the DePaul University College of Law and the John M. Olin Program in Law and Economics at the University of Chicago Law School.

Participants
Scott AndersonAssistant Professor of PhilosophyUniversity of British ColumbiaLaw and Philosophy FellowUniversity of Chicago Law School 2007–8scott.anderson@uchicago.edu

Susan BandesDistinguished Research Professor
DePaul University College of LawVisiting ProfessorUniversity of Chicago Law School 2007–8sbandes@uchicago.edu

Mary Anne CaseArnold I. Shure Professor
University of Chicago Law Schoolmacase@law.uchicago.edu

John DeighProfessor of Law and Philosophy
University of Texas School of Lawjdeigh@mail.law.utexas.edu

Christoph EngelMax Planck Institute for Research on Collective Goodsengel@coll.mpg.de

Richard A. EpsteinJames Parker Hall Distinguished Service Professor of Law
University of Chicagorepstein@uchicago.edu

Oliver GoodenoughProfessor of Law
Vermont Law Schoologoonenough@vermontlaw.edu

Joshua D. GreeneAssistant Professor
Department of Psychology
Harvard Universityjgreene@wjh.harvard.edu

Kevin McCabeProfessor of Neuroeconomics and Law
George Mason University School of Lawkmccabe@gmu.edu

Martha C. NussbaumErnst Freund Distinguished Service Professor of Law and Ethics
University of ChicagoMartha_nussbaum@law.uchicago.edu

Elizabeth PhelpsProfessor of Psychology and Lab Director
New York Universitylizphelps@nyu.edu

Abstracts

Scott Anderson

Susan Bandes
Victims, "Closure," and the Sociology of Emotion
The concept of closure, almost unknown two decades ago, has had a meteoric rise. It has been enthusiastically embraced by the legal system not only as a legitimate psychological state, but as one that the criminal justice system ought to help victims and murder survivors to attain. In the death penalty context, the concept of closure has changed the way we talk about the rationale for capital punishment, it has changed the shape of the legal process, and it has even changed what both survivors and jurors in capital cases expect to feel. Yet, as I will illustrate, the term closure in fact connotes several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. For example, depending on how closure is understood, it might require a chance to give public testimony, an opportunity to meet with the accused, a more expeditious trial, a sentence of death, or an execution. Yet there is inadequate evidence on whether any of these institutional processes or outcomes can actually contribute to a state of closure.
As current research in disciplines including cognitive neuroscience, sociology, psychology, and political science suggests, emotions are dynamic processes that evolve in a reciprocal relationship with social structures. As the legal system becomes increasingly invested in helping victims and survivors achieve closure, we need to take a hard look at the emotional content of this concept, and at how it affects, and is affected by, the institutional framework in which it operates.

Mary Anne Case
On Liking and Not Liking in the Law of Discrimination Part II: Cultivating an Incest Taboo in the Workplace
My project grows out of a suggestion I made at a Feminism and Legal Theory Workshop, where I was one of a small minority of participants who took the position that sexuality had perhaps been too central in the shaping of feminist theory. I then briefly and tentatively suggested what I now urge in greater detail - that it might be useful, as Margaret Mead once suggested, to think of sexual relations in the workplace in terms of an incest taboo. I see several features of such a taboo as relevant to the analogy: First, such taboos, while often embodied in law, do not rely principally on legal enforcement, but on internalized social norms, for their power. Second, at the core of such taboos is usually sex between people one of whom is hierarchically in a superior position to the other - what is generally prohibited is ancestor-descendant sex, not all sexual relations between family members (in much of the United States first cousins can marry, for example); third, among their other functions, one potentially valuable function of incest taboos is to create a safe space from sexual demands.

At the time I first made it, in 1994, this suggestion was, to say the least, not warmly received. Several other participants took the view that eroticism was central to their personality, that they had few other places than the workplace to express it, and even that eroticism was a vital part of the particular work in which they were engaged, the teacher-student relationship.

The intervening years, filled with relevant scandals from Clinton-Lewinsky to the Aberdeen Proving Grounds have strengthened my resolve to pursue this project notwithstanding its initial reception. It now forms part of a much larger project I'm engaged in on the way in which the law of discrimination does and should handle various forms of liking and not liking, including an examination, from a very different normative starting point, of the so-called third party harassment cases discussed in Janet Halley's recent work.

John Deigh
Cognitivism about Reactive Attitudes
The accounts of moral responsibility in R. Jay Wallace's Responsibility and the Moral Sentiments and Stephen Darwall’s The Second Perso make use of Peter Strawson's discussion of reactive attitudes in his influential essay "Freedom and Resentment." Strawson, in this essay, explained the practice of holding people responsible for injurious conduct as arising from the reactive attitudes that such conduct naturally elicits in its victims, in its agents, and in disinterested members of their community. Strawson's explanation proceeded on a noncognitivist understanding of the reactive attitudes. Wallace and Darwall, by contrast, presuppose a cognitivist understanding of them. In my paper I will examine this difference between the two accounts with the aim of showing that Wallace's and Darwall’s shift to a cognitivist understanding of the attitudes results in accounts of the practice of holding people responsible in which the attitudes have no essential role in explaining the practice. Hence, I will be aiming to show that Wallace’s and Darwall’s accounts of moral responsibility are only superficially similar to Strawson's, and they cannot therefore avail themselves of Strawson's solution to the problem the doctrine of determinism raises for understanding people as morally responsible for their actions.

Christoph Engel
Preponderance of the Evidence vs. Conviction Intime: The Psychology of a Difference between U.S. and European Law
In the U.S., in private law suits, the standard of proof is preponderance of the evidence. In criminal law suits, the standard is "beyond reasonable doubt". Both standards are interpreted as probability measures. The predominant interpretation of the first standard is: given the evidence the probability that the claim holds true is above 50 %. For the second standard to be met, this probability must be much higher. A good approximation is in line with significance tests in statistics: the probability of a materially wrong decision must be below 5 %. French and German law also have a much higher standard of proof for criminal justice. But they interpret it differently. In order to convict, the judge (or jury, if it exists) has to be personally convinced that the defendant is guilty. The judge is asked to take on personal responsibility for convicting.

Empirically, conviction depends on the quality of stories. If the evidence presented by the prosecution leads to a plausible story, and if the defence has not been able to cast serious doubt on a sufficiently important feature of the story, the defendant is convicted. It has been shown that the underlying psychological mechanism aims at consistency maximisation. In the process of assessing the evidence, supportive elements are weighted up, and conflicting elements are weighted down. This happens without conscious control. If a sufficient degree of consistency has been reached, this result is propelled back to consciousness. Arguably, the feeling of "conviction" is generated by an emotion, by a somatic marker. Hence European doctrine (implicitly) has come much closer to what we now know about the underlying mental mechanism.

Richard Epstein
Happiness from an Evolutionary Perspective
In this paper, I expect (and it will change) to ask this one question. Why is it that anyone would expect the maximization of happiness to be a goal that any rational individual might seek to advance. The point here is not to say that happiness has no relationship to individual or group welfare, but that it is a bad proxy for individual psychology because its atomistic focus is inconsistent with the strong central biological tenet that what human beings (and/or their genes) maximize is inclusive fitness, which means that all individuals are in some strong sense preprogrammed to make sacrifices for others in order to advance their (inclusive) definition of welfare. The key elements of this are tradeoffs within families, but it clearly extends beyond that narrow frame. Within this view, it becomes possible to evaluate the relationship between family and personal success, and to take into account problems of celebration (marriage) and grief) death, and to show how our legal institutions (family versus stranger transactions) take that difference into account.

Oliver Goodenough
Cognitive Perspectives on Law and Emotion: A Goldilocks Dilemma
In a strategic interaction, it is often useful to convince someone else that you are reliably likely to carry out some action in response to their possible move. This can be in a productive circumstance (underpinning cooperation) or in an antagonistic circumstance (attack me and I'll defend myself to the death). One way to be convincing is to make some form of commitment to that effect (a binding contract on the productive end; burning your bridges behind your army in the antagonistic circumstances). There is an ongoing debate over the ability to make such a commitment based only on internal human psychology. I argue that values can play such a role (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933012) and have also argued that internal commitments are recognized and supported (externally) in law. See "Law and the Biology of Commitment," in Randolph Nesse, ed., Evolution and the Capacity for Commitment (Russel Sage, 2002). In my presentation, I will explore how this kind of mechanism could be rooted in emotion and may be initially evolvable in the antagonistic context and then transferable to the values context.

Joshua D. Greene
The Secret Joke of Kant’s Soul: Emotion and Cognition in Moral Judgment
There is a longstanding tension between deontological and consequentialist approaches to morality, and to the law more specifically. According to utilitarians like Mill, morality is ultimately about promoting the "greater good." According to deontologists like Kant, right and wrong is ultimately a matter or respecting rights and fulfilling duties that may trump the greater good. Recent advances in the cognitive science of moral judgment suggest that the tension between deontology and consequentialism ultimately reflects a more fundamental tension between separate, and in some cases competing, systems in the brain. More specifically, I will argue that characteristically deontological judgments are driven by intuitive emotional responses while characteristically consequentialist judgments are driven by more controlled cognitive processes. Implications for the law will be discussed.

Kevin McCabe
Two Neural Systems for Trust
Trust is ubiquitous in our lives since it is essential to all forms of social interaction. This talk provides evidence that there are two different neural pathways the brain may use to develop and sustain trust with another person. One pathway, which we call the unconditional trust pathway, uses a unique human skill which psychologists call ‘theory of mind’ present in the normal adult population but missing in people suffering from autism, to evaluate the value of one’s counterpart as a person who can be trusted.  This early evaluation leads to unconditional trust in that person through the activation of a strong social approach/bonding mechanism in the brain that depends on the release of the hormone oxytocin mediated by the septal area. A second pathway, which we call the conditional trust pathway, does not use theory-of-mind as strongly in the early stages, but instead uses experience to develop a situational awareness of when the other person can be trusted. This situational awareness is then used later on by the theory-of-mind system together with a goal directed dopamine system meditated by the ventral tegmental area to evaluate when a partner might be tempted to defect and therefore should not be trusted.  How such systems play out and come to dominate in social interaction may play an important role in determining what forms of economic, social, and political institutions develop within social groups. Unconditional trust will foster strong social networks and a faith in finding the right partners while conditional trust will foster strong institutional controls and a greater faith in finding the right rules of the game.

Martha C. Nussbaum
Compassion: Human and Animal
Most discussions of the relationship between humans and animals, where empathy and compassion are concerned, focus on two things: continuities between human and animal emotion, and good discontinuities, meaning discontinuities in which we humans have something morally valuable that animals don’t have. Thus many discuss the uniquely human capacity for moral agency, but few mention the human corruptions of sympathy that suggest some deep break with nature. In this article, I consider failures of compassion that we would not expect to find in any other animal; cases of horrible human suffering that evoke no compassionate response. I will confine myself to three closely related examples, cases in which it is plain not only that the emotional and moral failure in question is peculiarly human, but also that the failure is at least partly explained by what primatologist Frans de Waal has called "anthropodenial," the pretense, peculiar to our species, that we are not a species of animal. My thesis is that anthropodenial, a peculiarly human tendency, is not simply a pernicious intellectual position: it is a large cause of moral deformity.

Elizabeth A. Phelps
Social Influences on Emotional Learning and Decision-Making
Most studies on emotional learning and decision making emphasize the association of simple stimuli, such as tones and geometric shapes, with punishment and reward. These studies have provided a basis with which to explore the neural circuitry of emotional learning in humans. In this talk, I will explore how brain processes are altered when simple stimuli are replaced with individuals who vary in their social characteristics. I will present evidence indicating that the neural mechanisms and behavioral expression of emotional learning and decisions can be altered by social group membership, as well as prior knowledge of moral character. I will demonstrate how we can use brain science to better understand how social factors might influence choice behavior and discuss the relevance of this research to legal decisions.