Judges, Decision Making and Empathy

Northern Ireland Legal Quarterly

J udges are human beings; human beings have emotions; ergo, judges have emotions. The simplicity, even banality, of this syllogism belies its potentially revolutionary nature. In legal theory and popular opinion, the judge's humanity has long been either ignored or regarded as a necessary evil, an unfortunate consequence of having to populate the legal system with fallible, biased, real people. Emotion traditionally has been counted among the primary sources of fallibility and bias. The task of the legal system, under this view, is to systematically reduce the opportunities for judicial emotion to insert itself; the task of the good judge is to prevent emotion from exerting any influence wherever such opportunities remain. Understood through the lens of these negative value judgments, the simple syllogism provides a rationale for vigilantly policing and suppressing judicial emotion. But what if those judgments were to change? If we were appropriately to value both the judge's humanity and the role of emotion in human life, the syllogism's implications would be profoundly different. We would seek not to police and suppress judicial emotion in all instances but, rather, to acknowledge, examine and sometimes even welcome it. Revolutionary though it may be, this is the correct objective. The traditional devaluation of judicial emotion is both misguided and destructive. As other contributors to this special issue have no doubt demonstrated, contemporary law and emotion studies have sought systematically to expose the assumptions about human emotion underlying legal theory and practice, and then to examine those assumptions in light of a sophisticated understanding of emotion itself. 1 The aim of this short article is to show how applying that methodology compels a dramatic shift in how we think about judges and their emotions. I have explored these themes in a series of prior articles; 2 I synthesise them here. I first trace the development of the ideal of dispassionate judging and argue that it conflicts with virtually everything we know about emotion and its value. Having dislodged that ideal from its comfortable post, I suggest that the proper stance toward judicial emotion is not elimination but regulation. Judicial emotion regulation provides a flexible structure within which emotion may be examined, accepted, changed, or simply lived with. I then discuss the particular case of judicial anger. Anger can be either

The European Journal of Psychology Applied to Legal Context, 2014

The current study investigated the effects of state and trait empathy in legal judgments and tested the relationship between trait and state emotion in one hundred and fifty eight students aged 18-59. Assessments were taken of participants' trait empathy and then state empathy was induced in half the sample. Following this all participants read a trial transcript and made judgments regarding: the verdict decision; the defendant's responsibility for the offense; what would be an appropriate punishment; the likelihood that the offender would offend in the future; and whether the defendant felt remorse for committing the offense. Findings showed that both trait and state empathy predicted attributions of offender remorse. State empathy also predicted judgments of offender responsibility and agreement with verdict decisions in a lenient direction. Findings also showed that state and trait empathy did not interact. The results indicate that trait and state empathy work independently to influence legal judgments and that inducing empathy in decision-makers can impact on trial outcomes above and beyond the facts of the case.

Critical Review of International Social and Political Philosophy

Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion-understood as a skill in cognitivist terms-constitutes a problem for justice.

Mexican law review, 2022

Emotional intelligence is vital for the proper development of the personality. In the case of judges, the behavior and process of the administra-tion of justice are fundamental to the rule of law. However, little attention has been paid to the issue of the emotional conditions of judges, which directly or indirectly affect individuals and court administrative personnel. Several health institutions have demonstrated the connection between people’s mental and physical health, which not only implies the absence of disease, but also a healthy and suitable lifestyle to perform their work properly. In this specific case, this article aims to show how judges ́ good or bad emotional health can affect the decisions made in their courts and the importance of their effects on the people who need to abide by such rulings. It is imperative to continue requesting that the judicial authorities have the necessary resources to ensure they can do their work properly and the judgments issued are not hampered by health factors. Finally, it should be mentioned that this article also analyzes judges’ behavior and thus raises awareness about the effects of mental and physical health, as it has an impact on the jurisdictional processes to which judges are party.

2013

A sa Supreme Court Justice once wrote, "dispassionate judges" are "mythical beings," like "Santa Claus or Uncle Sam or Easter bunnies."I Judges have emotions, and emotions influence decision making. These observations may seem obvious, even banal. But their implications are broad-reaching. Judicial emotion is more common than most people-certainly laypeople, and perhaps judges as wellwould like to believe. Further, emotion almost certainly has a substantial impact on judicial decision making and behaviorand that is not necessarily a bad thing. The ideal of the emotionless, "dispassionate" judge has a very long pedigree. More than three centuries ago, Thomas Hobbes wrote in Leviathan that the ideal judge is "divested of all fear, anger, hatred, love, and compassion." 2 To a modern ear such a blunt statement sounds, perhaps, antiquated. To the extent this is so, it is because the Legal Realists of the early twentieth century largely convinced us of the importance of the person wearing the robe. Law is not certain, and judges have discretion, within which space ostensibly "alogical" or "non-rational" forces have room to operate. 3 As the great Benjamin Cardozo once mused, "Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge."4 In our post-Realist world, such frank acknowledgment of judges' humanity is relatively commonplace. As other contributions to this special issue make clear,5 judges are affected by factors as diverse as fatigue and life experiences, and they deploy common (but sometimes misleading) decision-making shortcuts known as heuristics. Judges are likely no better than ordinary humans at multitasking or truth-telling. An entire academic cottage industry is devoted to ascertaining the decisional influence of personal characteristics such as gender and political party. But we still seldom talk about the emotional aspect of judges' humanity. And when we do, we run into a fairly solid wall of opposition. Judicial emotion generally is seen as an unfortunate consequence of having to populate the legal system with fallible, biased, real people. Indeed, emotion traditionally has been counted among the primary sources of fallibility and bias. A Maryland judge expressed this well: "Judges, being flesh and blood, are subject to the same emotions and human frailties as affect other members of the species."6 The task of the legal system, under this contemporary view, is to systematically reduce the opportunities for judicial emotion to insert itself; the task of the good judge is to prevent emotion from exerting any influence wherever such opportunities remain. We saw this view vividly articulated during the 2009 nomination of now-Justice Sonia Sotomayor, who some feared would have an overly "empathic" judging style. One senator implied that judges' emotions posed a threat to liberty; 7 a prominent professor declared that a "compassionate, empathetic judge was very likely to be a bad judge";8 a journalist noted that the mere suggestion that emotion might affect judging was "radioactive."9 Even among Sotomayor's supporters, defense of empathy (or any emotional influence) was tepid at best. She was finally able to put the issue to rest by offering a standard post-Realist narrative: that while judges are not "robots" and do have feelings, a good judge recognizes those feelings and puts them aside.10 Certainly, judges are not robots, so the first half of that story is correct. But what if the latter part is wrong? What if emotion-at least sometimes-offers something of value to judicial decision making? Judge Richard A. Posner has suggested as much, writing that judges ought not try to become "emotionless, like computers," because feelings might sometimes be necessary to good judging." Justice William J. Brennan similarly asserted that good judgment flows from a "dialogue of Footnotes Many of the ideas expressed in this article are explored in much greater depth in my prior works, all of which are available at my Vanderbilt Law School faculty website and on SSRN. See Terry A.

Oñati Socio-legal Series, 2019

The empirical study of judicial emotion has enormous but largely untapped potential to illuminate a previously underexplored aspect of judging, its processes, outputs, and impacts. After defining judicial emotion, this article proposes a theoretical taxonomy of approaches to its empirical exploration. It then presents and analyses extant examples of such research, with a focus on how the questions they ask fit within the taxonomy and the methods they use to answer those questions. It concludes by identifying areas for growth in the disciplined, data-based exploration of the many facets of judicial emotion. El estudio empírico de las emociones en la judicatura tiene un potencial enorme, pero poco explorado, para arrojar luz sobre un aspecto de la profesión judicial poco explorado previamente, sus procesos, resultados y efectos. Tras definir la emoción judicial, el artículo propone una taxonomía teórica de abordajes a su estudio empírico. Después, presenta y analiza ejemplos existente...

The current study investigated the effects of state and trait empathy in legal judgments and tested the relationship between trait and state emotion in one hundred and fifty eight students aged 18-59. Assessments were taken of participants’ trait empathy and then state empathy was induced in half the sample. Following this all participants read a trial transcript and made judgments regarding: the verdict decision; the defendant’s responsibility for the offense; what would be an appropriate punishment; the likelihood that the offender would offend in the future; and whether the defendant felt remorse for committing the offense. Findings showed that both trait and state empathy predicted attributions of offender remorse. State empathy also predicted judgments of offender responsibility and agreement with verdict decisions in a lenient direction. Findings also showed that state and trait empathy did not interact. The results indicate that trait and state empathy work independently to influence legal judgments and that inducing empathy in decision-makers can impact on trial outcomes above and beyond the facts of the case. Keywords: empathy; state; trait; remorse; judgments.

2011

Original draft: No empathy towards empathy (draft prepared in 2010 for presentation at the McMaster conference "The Nature of Law"- available at: http://tnl.mcmaster.ca/conference/papers/Struchiner%20-%20No%20Empathy%20Towards%20Empathy.pdf since january 2011). Also presented as - Título : Just say no to empathy (sometimes): the perils of empathy-based decision-making in law and morality. Autor : Struchiner, Noel. ... Fecha de publicación : 18-nov-2011. Editorial : Universitat de Girona. Departament de Dret Privat. Citación : Struchiner, N. (2011). ...