Reviews of Judicial Emotion as Vice or Virtue

Perspectives both Ancient and New
by Terry Maroney
(3 reviews)

Review by Susan Bandes on 30-01-2017

Review of Terry Maroney, Emotion as a Judicial Virtue

This article poses the research question: Is emotion a judicial vice or a judicial virtue? This is a normative question, and one that turns on how one defines “emotion.” The author argues that contrary to Western post-Enlightenment norms, and consistent with an Aristotelean approach, modern psychology establishes that emotions play an integral role in decision-making, including legal decision-making. In Aristotle’s framework, more recently expanded upon in the legal context by Martha Nussbaum and other prominent legal philosophers, emotions carry cognitive appraisals. The author points out that even those who agree with this general approach often assume it does not apply to judicial decision-making; that judges somehow rise above or operate outside of the normal dynamics of decision-making (what the author has often termed “the persistent script of judicial dispassion”). She argues that, to the contrary, judges are not exempt from the reality that emotions are inextricably intertwined with the reasoning process, for better or for worse.

Drawing on her substantial body of work on the topic, she then focuses on the particular emotion of anger. This is a useful lens through which to examine how emotion can help or hinder the decisional process, depending on the legal context and on how the judge manages and expresses (or declines to express) her angry feelings. The author uses a series of concrete examples drawn from actual cases to illustrate the uses and misuses of judicial anger.

This is an excellent contribution. The article is written in a lucid, jargon-free style, using language that should be readily accessible across disciplines and to readers from a range of linguistic backgrounds. It is remarkably efficient in its ability to provide readers with a nutshell introduction to the disparate philosophical strands underlying the debate about whether emotion should inform legal decision-making, as well as an introduction to the emergence of the field of law and emotion.

Having provided readers with this effective capsule summary, the piece then turns to its appropriately narrow research question. In a short span, it lays out a number of useful distinctions that need to be made to evaluate when judicial anger is vice and when it is virtue.

I might suggest that the title of the article provides a bit of misdirection. The author’s argument about judicial emotion is that it is neither vice nor virtue, as an inherent quality. Rather, it is inevitable. The real issue the author tackles is whether judicial anger is vice or virtue. That question is squarely tackled.

I have just one additional small suggestion for change. In the section discussing whether judicial anger rests on accurate premises, the author gives the example of a judge who ordered a group of jurors jailed and strip searched because he mistakenly thought they had failed to appear when ordered to. She treats this solely as an issue of mistaken premises, and does not mention it again, but surely it is also a case in which anger is manifested too violently. It is difficult to imagine a situation in which jailing and strip searching jurors is appropriate, no matter what the source of anger. I would make that clear.

In sum, I thought very highly of the piece and believe it meets the criteria set forth. I do recommend the author address the two small suggestions for melioration.

Review by André Verburg on 30-01-2017

Review of “Emotion as a Judicial Virtue” by Terry Maroney: more light than heat, but nevertheless, Aristotle is overcharged
“Emotion as a Judicial Virtue” can be viewed as a multi-layered exposition of Aristotelian insights. (a) Starting off with the assertion that emotions are quite necessary to come to any decision at all, the reader is then invited to (b) acknowledge that emotions and rational reasoning are not opposites but can be seen as interacting constructs. Emotions are ‘cognitive appraisals’. When digging into the matter of the emotions of the judge, illustrated by anger, the reader is furthermore invited to distinguish four aspects: (c1) the question whether the emotion is justified or not, i.e. based on a correct assessments of the facts at hand (c2) the question of the propriety of the expression of the emotion, i.e. is the expression relevant in the light of the aspects of the case at hand, (c3) the for the author most important question whether the anger reflects the sort of beliefs and values that are proper for a judge in a democracy, and (c4) finally, the question of the Aristotelian view that virtue is in the middle: to throw off more light than heat, emotion regulation, to show nor too much, nor too little the anger the judge experiences.
The points made in Maroney’s article are valid and useful. Nevertheless, I think the selection of a special focus is called for. Admittedly, many judges do tend to shun away from emotions, so the article presents an interesting message for them, but on the other hand, for any reader with his copy of the Nicomachean Ethics on his nightstand, the article offers no real new insights. The article in its present form gives us rather general insights on all six aspects mentioned above; I would like to see an article more T-shaped: general insights on four or five aspects and a special in-depth emphasis on one or two of the six aspects. Now, Aristotle has to do all the work: we see Aristotle at work in the way the judge searches for her approach and decision (a & b), in the way the judge shows that emotion to the parties involved (c1-3) and in the way the judge is either virtuous or not in the manner she shows that emotion (c4). With Paul Scholten in mind, I would be most interested in the way the judge needs emotions to come to her decision, emotions as a trigger to ask certain questions, to dig into the case more extensively than normal, etc (i.e. a & b).
(a) Heuristics
Elaborating on the ideas presented here of S.C. Justice Brennan, I would be interested to learn from the author what she supposes the phases the judge goes through in her decision-making process are. The somewhat older framework by Amos Tversky and Daniel Kahneman is a useful tool when thinking about the process of judicial deliberation. Their heuristic theory shows that a short-cut decision-making process (system 1), driven by emotions (“at first glance”), takes place and a more deliberative process (system 2) can take over, when triggered. For instance, the question whether the system-2-deliberations are still influenced by the system-1-emotions would be relevant for the findings in this article.
(b) Emotions as cognitive appraisals
A relevant study in the Dutch context is Floris Bex’s PhD thesis on criminal law. He distinguishes bare fact assessments from “making stories”: when the judge is reading briefs in a certain case and learns about an Asian looking woman, walking in the street, holding the hand of a white boy, aged approximately 5 years old, these are the bare facts, but while reading this, she can’t help but envisioning a “story” and “sees” an au pair, with a child entrusted to her care. When, on the other hand, reading briefs showing the facts of a white woman, walking in the street, holding the hand of an Asian looking boy, aged approximately 5 years old, she would probably envision the “story” of a mother with her adopted child. Although this example is not specifically related to the discussion of anger, it raises the important question at which points in the judicial appraisal emotions influence the approach of the case and the outcome, and how.
Furthermore, I do not think presenting the Aristotelian view of emotions and the insights of contemporary affective psychologists as one and the same in this manner is justified. As one can see in for instance Iris van Domselaar’s PhD study (discussing the issue of the judge as a “civic friend”), what we call “emotions” in the 21st century would be rather comical to Aristotle. To put it more bluntly: he would think us all sissies. The reference of the word “emotion” appears to be quite different now from the reference 2500 years ago.
(c1&2) Factual basis and propriety
Another important distinction not made in the article is the way the judge acts out the anger. Of course integrity (in its classical sense: being whole) comes into play. On the one hand, a judge can feel anger and act upon that feeling (asking more questions during the hearing, scrutinizing the details more extensively, appointing judicial experts to give their view, etc., things she might not have done without the arousal of her anger), and, on the other hand, that judge can show that anger to the parties involved. Two settings, both influenced by emotions, but totally different in their outcomes and appearances. I think this distinction would afford a richer discussion of the topic.
Like I said before, I am more interested in elaboration on the aspects a & b.
(c3&4) Relevancy and emotion regulation
In the continental tradition these questions are, of course, even more important than in the Anglo-American tradition. And I think there is a relationship to (c1&2). In the purest continental tradition the written decision is nothing but a syllogism. Lasser convincingly tells us that in the French tradition the reduction of the written decision to a pure syllogism, sets free the minds of the judges to give way to their emotions in deliberation. Now, I would be curious to learn whether the experience of an emotion by the judge on the one hand, and the showing of that emotion in court proceedings or in the ruling on the other, is relevant for the conclusions of the article.
In conclusion, I am most interested in the way emotions influence the judge to come to her approach and decision, so what triggers me to this question is focused on the freedom the judge feels to give way to her emotions to reach her decision. I, as a judge, completely adhere to the author’s idea of transparency during hearings: when the judge senses an emotion, she should show that emotion in a proper way, but, as said before, the Paul Scholten project calls for a focus on the way the judge needs emotions to come to her approach and decision.

1. e.g. “Extensional versus intuitive reasoning: The conjunction fallacy in probability judgment”. Tversky, Amos; Kahneman, Daniel, Psychological Review, Vol 90(4), Oct 1983, 293-315.
2. F.J. Bex, Evidence for a good story. A hybrid theory of reasoning with arguments, stories and criminal evidence (PhD Groningen), University of Groningen 2009.
3. I. van Domselaar, The Fragility of Rightness. Adjudication and the Primacy of Practice (PhD Amsterdam University of Amsterdam), Amsterdam: University of Amsterdam 2014, e.g. p. 244-249 and p. 258-263.
4. M. de S.-O.-l’E. Lasser, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy, Oxford: Oxford University Press 2009 (originally 2004). This is a comparative analysis of the judicial traditions of the Supreme Court (U.S.), the Cour de Cassastion (France) and the Court of Justice (EU).

Review by author's response on 30-01-2017

The reviews are insightful and helpful. I have made some small revisions to address the two discreet issues Bandes identifies:
- The abstract, the title, the introduction and the beginning of section 3.2.2. have been revised to include the possibillity of emotion as a vice.
- In section 3.2.2. also the following sentence is added to the passage about judges who perceive in the manner people talk back to them challenges to their authority: “Similarly, the judge who ordered jurors jailed (as a result of which they were strip-searched) for allegedly defying orders to appear was not just operating on mistaken premises, but reacting in a shockingly extreme fashion to a perceived affront.”

The insightful comments from Verburg are more in the nature of wanting an expanded focus and additional research (with which I agree, just not in this short piece). Therefore these comments didn’t lend themselves here to specific revisions. I am glad to have read the comments though.

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