Challenges to Legal Rationality (K. Abr*ms, H. Ker*n)

This seminar will interrogate the assumption that legal decisionmaking – and indeed legal thought – is the domain of reason, understood as a series of logical operations undertaken from a posture of objective, dispassionate distance from the objects of one’s ratiocination. The seminar will begin with an examination of this premise, as it emerged in Langdellian efforts to assimilate law to the precepts of a science, as well as in the work of such contemporary legal thinkers as Owen Fiss, Richard Posner, and Guido Calabresi. We will then consider a series of challenges to this vision of legal thought, initiated first by the legal realists, and extended through the feminist and critical race challenges to legal objectivity, and the behaviorial challenge to law and economics.

The most important focus of the course, however, will be on a growing body of scholarship examining the role of emotion in law. We will take up early examples of this work, such as feminist analysis of the role of empathy in legal decisionmaking, and criminal legal scholars’ inquiry into negative emotions such as vengeance, indignation, and disgust. We will then focus on recent developments, such as scholarship highlighting the normative role of the law in supporting the emergence of positive emotions, such as hope and forgiveness. The seminar will also explore the issues raised for legal decisionmakers by the ability to produce visual images of cognitive and affective processes, through neuroscience technology such as the fMRI. We will conclude by asking how these varied conceptual challenges have changed, and might change, the dominant models of legal decisionmaking and legal thought.