Law and the Emotions: The Problems of Affective Forecasting

94 Pages Posted: 10 Feb 2004

Date Written: February 1, 2004

Abstract

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. Discussion turns on the "appropriateness" of various emotions for the substantive law, and on 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 individuals' inability to accurately predict future emotional states, both their own and others'.

Such inaccuracy has surprisingly broad implications for both substantive and procedural aspects of the legal system. The research findings also demonstrate the implausibility of some theoretical models of the emotions; if these models are flawed, then the normative conclusions drawn from them may be flawed as well.

In this Article I review the psychological data demonstrating inaccuracies in affective forecasting, and spin out their implications in 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, especially in the context of contracts for surrogate motherhood. And the data are relevant to areas of health law as well - for instance, regarding the use of advance directives broadly as well as in the specific context of euthanasia.

I also discuss broader issues, such as the implications of the affective forecasting research for theories of law and the emotions more broadly. In this discussion I include some of the specific drawbacks to some current theories. In addition, I address the data's implications for the very theories of welfare and well-being that underlie much legal policy, as well as some speculations about what the findings might have to say about potential paternalistic policies.

Keywords: Law and emotions, psychology, hedonics, subjective Welfare

JEL Classification: I18, K00, K14, K41

Suggested Citation

Blumenthal, Jeremy A., Law and the Emotions: The Problems of Affective Forecasting (February 1, 2004). Available at SSRN: https://ssrn.com/abstract=497842 or http://dx.doi.org/10.2139/ssrn.497842

Jeremy A. Blumenthal (Contact Author)

Syracuse University - College of Law ( email )

Syracuse, NY 13244-1030
United States
315-443-2083 (Phone)
315-443-5394 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
282
Abstract Views
4,328
Rank
46,434
PlumX Metrics