Oliver Wendell Holmes famously wrote in The Common Law,
The life of the law has not been logic; it has been experience.
By that, he meant that the law develops as it plays out in real life, rather than with mathematical certainty based upon axioms. And, indeed, experience in the trenches is that the most fundamental of legal doctrines, no matter how logical, often play out in ways neither intended nor anticipated. So the law adjusts.
But lawprof Harold Lloyd wants to make the divorce between law and logic final and binding, having “published his paper, ‘Cognitive Emotion and the Law,’ on the Social Science Research Network on Aug. 1, 2016.” This might strike some as silly, much like academics writing about due process at the Ministry of Magic, except that the climate is ripe for such tripe.
Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.”
The phrase, “cognitive emotion,” seems to be an oxymoron, which Lloyd dismisses with the blithe “wrongly.” Nobody argues that “emotion plays little or no role in the legal reasoning.” That players in the legal system act upon emotion rather than reason is, and always has been, a factor to be considered, whether in the crafting of laws, judicial holdings or the application of law to fact.
But “cognitive emotion”? Lloyd seeks to elevate emotion to the equivalent of logic, and then replace rationality with law that “feels” right.
The Court concludes that the defendant’s motion is denied, because, well, you know, he’s just such an awful guy and letting him win would be so icky.
Lloyd is one of those academics who really can’t stand the use of Langdell’s case method in teaching law. It’s too science-y, too logical.
As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar.
If only I had trademarked the word “shortchange,” I’d be rich. But repeating a word over and over does not make it so. The unwarranted assumption that lawyers are incapable of “understanding the emotions” that motivate clients is silly. We’re still people, and hopefully, relatively intelligent people capable of grasping the notion that humans have emotions. We have them. Clients have them. Everybody has them. We get it.
If anything, we get it far more than most, since we’re in a position where we get to question clients as to what drove them to engage in conduct that is so outrageously ill-conceived as to bring the wrath of the law down on their heads. But knowing that people react emotionally (“the guy looked at me funny, which really pissed me off, so I took the bat and beat the tar out of him”) doesn’t provide much of a foundation for a system of adjudication.
Try arguing to a judge or jury that, “geez, guys, wouldn’t you want to take a bat to the guy’s head if he looked at you funny? Aw, come on.” What could possibly go wrong, like they respond, “well, no, we don’t quite share your fury about a guy looking at you funny, so how about you go to jail forever, you psycho?”
Lloyd contends that if legal education, and our legal system, was predicated upon emotion rather than logic, we would be more successful.
How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them?
Understanding underlying motivations is a pretty foundational aspect of lawyering. Try cross-examining a witness without having the ability to see cues as to their motives, reactions, feelings. But these are mere weapons in the fight, not the fight itself. We use emotions, prejudice, motivations, to screw with others constantly. If you know a judge tends to favor a position, you fashion your argument to play to his bias. It’s tactical, not because you “feel his pain.”
But eventually, Lloyd gets to the place he really wants to be, given his hatred of Langdell and logic:
How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar.
Some of us have what is required to be lawyers. We’re tough enough not to break down and cry when a judge says “denied,” and still get up the next day to fight again. What is demanded of academics is to give us the tools to not just win the fight, but take the punches and keep on fighting.
An academic’s job is to teach students, not share their feelings. And if their emotions preclude their ability to perform the work for which they’re being changed, then hand them a dime. Your job is to take sniveling emotional wrecks and turn them into lawyers, not validate their feelz. In earlier days, a paper like Lloyd’s would be a joke, unworthy of publication, no less discussion. Today, it’s a serious concern.
If the life of the law is experience, experience teaches that law based on emotion would be a disaster. It’s what the law exists to prevent.