Logan on Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine @FSUCollegeofLaw @buffalolawrev

Wayne A. Logan, Florida State University College of Law, is publishing Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine in volume 77 of the Buffalo Law Review.

Police officers, like the citizens they serve, often believe that they can accurately and reliably discern emotions from the faces of individuals they encounter on street patrol. An officer, for instance, might interpret a facial expression to infer that an individual is surprised by the officer’s presence, which can serve as a factor justifying a seizure based on reasonable articulable suspicion of criminal activity. Judges, for their part, often defer to the facial emotion recognition (FER) wherewithal of police when assessing the sufficiency of police assertions of reasonable suspicion. There is a major problem, however, with the accepted wisdom: it lacks empirical support. As a growing body of research shows, human faces are not like emojis or emoticons; not only is the purported connection between particular emotions and facial expressions weak, but facial expressions themselves are variously interpreted. Moreover, FER depends on multiple individualized factors such as the viewer’s age, gender, personality traits, life experiences, and emotional intelligence, and whether the viewer and viewed are of the same racial or ethnic background. Worse yet, conventional experimental studies advanced in support of FER suffer from major methodological problems, undercutting its averred accuracy and reliability. This essay aims to explode the myth of FER and urges its judicial disregard in the assessment of whether police have reasonable suspicion to detain an individual. The intervention is as timely as it is important. In the immediate term, allowing continued judicial reliance on an empirically unfounded data point raises obvious constitutional concern. Longer term, reliance on FER is problematic because it is now being combined with artificial intelligence technology, soon to likely include roboticized policing and “emotiveillance” efforts more generally. To neutralize these threats, the essay urges that, like similar pseudo-sciences of the past, such as phrenology and physiognomy, FER should be relegated to the dustbin of history, rather than serving as an accepted basis for police seizures, with all the significant personal and social harms they impose.

Download the article from SSRN at the link.

Patrick and Lieberman on How Disgust Becomes Law

Carlton Patrick and Debra Lieberman, both University of Miami, are publishing How Disgust Becomes Law in The Moral Psychology of Disgust (Nina Strominger and Victor Kumar, eds., Rowman and Littlefield, 2018). Here is the abstract.

This chapter provides a psychological examination of the many ways in which disgust permeates the law. Using an evolutionary lens, the chapter explores the various adaptive functions of disgust, and shows how those functions can be co-opted by psychological systems designed to generate and enforce moral norms. In doing so, the chapter also provides an explanation for why and how many of the behaviors we view as "disgusting" tend to become behaviors we label "wrong."

Download the essay from SSRN at the link.

Psychology and Pop Culture

Lawyers aren't the only professionals who can find fault with the way popular culture portrays them or issues and ideas drawn from their work, as we know. Still, we watch TV and film, and enjoy novels.

From Mental Floss, a short discussion of dissociative identity disorder (DID), how pop culture portrays it, and how it does so incorrectly.

More about pop culture and psychology (drawn from The X-Files) here, from Lawrence Rubin, for Psychology Today.

Peter Romans discusses psychological issues depicted in the show M.A.S.H. here.

Melanie Tannenbaum surveys a number of issues depicted in various shows here, for the blog PsySociety.

David on Love, Law, and the Judeo-Christian Separation-Individuation

Joseph E. David, Sapir Academic College School of Law, has published Love, Law and the Judeo-Christian Separation-Individuation. Here is the abstract.

Borrowed from a psychological theory, the principle of ‘separation-individuation’ refers to a developmental phase in which a subject develops sense of differentiation from her past or present origins and sense of autonomous selfhood and independency. The article suggests viewing the typology of anomist and legalist religions not as a consistent phenomenology but rather in relation to the above principle and the need to differentiate and create a religious self-identification.

Download the article from SSRN at the link.

Lloyd on Cognitive Emotion and the Law @LloydEsq

ICYMI: Harold Anthony Lloyd, Wake Forest University School of Law, is publishing Cognitive Emotion and the Law in the Law & Psychology Review. Here is the abstract.

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.” 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. Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions.

Download the article from SSRN at the link. Scott Fruehwald calls it one of the best legal education articles of 2016.

Taking Popular Culture Seriously: Daniel Hourigan @dphourigan's New Book on Law and Enjoyment

Daniel Hourigan, University of Southern Queensland, is publishing Law and Enjoyment: Power, Pleasure and Psychoanalysis (Routledge, 2016). Here is a description of the book's contents from the publisher's website.

This book advocates, and develops, a critical account of the relationship between law and the largely neglected issue of ‘enjoyment’. Taking popular culture seriously – as a lived and meaningful basis for a wider understanding of law, beyond the strictures of legal institutions and professional practices – it takes up a range of case studies from film and literature in order to consider how law is iterated through enjoyment, and how enjoyment embodies law. Drawing on psychoanalytic theory, this book addresses issues such as the forced choice to enjoy the law, the biopolitics of tyranny, the enjoyment of law’s contingency, the trauma of the law’s symbolic codification of pleasure, and the futuristic vision of law’s transgression. In so doing, it forges an important case for acknowledging and analyzing the complex relationship between power and pleasure in law – one that will be of considerable interest to legal theorists, as well as those with interests in the intersection of psychoanalytic and cultural theory.

Weinstein on Learning and Lawyering Across Personality Types

Ian Weinstein, Fordham University School of Law, has published Learning and Lawyering across Personality Types at 21 Clinical Law Review 427 (2015). Here is the abstract.

Personality theory illuminates recurring problems in law school teaching. While the roots of modern personality theory extend back to Hippocrates and the theory of the four humors, contemporary ideas owe much to Carl Jung’s magisterial book, Psychological Types. Jung’s work gave us the categories of introvert and extrovert, as it explored what has come to be understood as the cognitive bases for our habits of mind. These are powerful ideas but also complex and sometimes obscure. Applying them to law school teaching and learning (and law practice) can be very fruitful, if we pay careful attention to ourselves and colleagues, the structure of the ideas we convey, the complexity of the skills we aim to sharpen and the settings in which we teach and learn. While the theory has something to say about teaching and learning in large groups, the most widely cited pedagogic notion that flows from personality type theory — the claim that teachers should match their mode of presentation to the learning styles of the students — is not among them. In the large classroom, we might better match our modes of presentation to the structure of the ideas we are conveying than varying our presentations to appeal to a heterogeneous group of personality types. But when we work with individual students and small groups to build problem solving, interpersonal and collaborative skills, personality type theory can be a powerful guide to how we teach as well as a useful set of ideas for our students. This paper discusses Jungian Personality Theory and the lessons it offers in a variety of teaching and learning settings in law school.

Download the article from SSRN at the link.

A Symposium On Narrative & Metaphor In the Law

At Stanford Law School, January 30, 2016, a Symposium on Narrative & Metaphor in the Law.

Scheduled speakers are Linda L. Berger (UNLV, Las Vegas, Law School), Peter Brooks (Princeton), Raymond W. Gibbs (UC Santa Cruz), Michael Hanne (University of Auckland, New Zealand), Lawrence Joseph (St. John's University School of Law), Dahlia Lithwick (Slate Magazine), Bernadette Meyler (Stanford Law School), Greta Olson (University of Giessen), Roberto H. Potter (University of Central Florida), L. David Ritchie (Portland State University), Lawrence Rosen (Princeton University), Michael R. Smith (University of Wyoming College of Law), Kathryn M. Stanchi (Temple University School of Law), Simon Stern (University of Toronto Faculty of Law and Department of English), Meredith Wallis (Stanford University), Robert Weisberg (Stanford University), and Katharine Young (Boston College Law School).


Read more about the event here at its dedicated website.

And the Pursuit of Happiness

Lloyd England, Monash University Faculty of Law, has published Law and the Art of Happiness. Here is the abstract.

Happiness as an abstract concept is interesting to briefly ponder; do we have a right to be happy? If so, what, all the time? Is this a realistic expectation? Tears of happiness are not the only anatomical reason we have tear ducts, so a degree of non-happiness or unhappiness is to be expected, right? The Yin to the Yang? What goes up…?
Happiness is big business, literally. It is the endeavor of serious academic inquiry; there are Happiness Conferences! I bet they’d be fun (come on - you’d hope so). ‘Sex sells’ and so does happiness; when did you last see a Crabby Coke drinker on a billboard? Or a Moody Motorist in his new car on a TV ad? Modern society seems to shun the very thought of ‘non-elatedness’ if advertising is to be believed, but times of occasionally having ‘The Blues’ or down-time from brimming with happiness are, perhaps, part of the natural rhythm of life and only to be expected at some points along our respective journeys. Obviously, persistent and unshakable melancholy is worth seeking advice over from a registered medical practitioner, as it may be symptomatic of an underlying issue and is best to get checked out, if just for peace of mind, but this is a separate thing to what I wish to discuss. I wish to discuss being unhappy if not because of, then during the study of, Law.

Download the paper from SSRN at the link. 

Law and Humanities Institute and Cardozo Law School Sponsor Conference On History of Blood Libel

Upcoming: a fall conference sponsored by the Law and Humanities Institute and the Program on Holocaust Human Rights Studies, Cardozo Law School. Here is the description of the program from the Cardozo website:

On Nov.14-15, the Program on Holocaust Human Rights Studies and the Law & Humanities Institute will sponsor a conference on the tragic history of the "Blood Libel", in which Jews have been accused across the millennia of killing Christian children to use their blood in the Passover ritual. Originating in England early in the second millennium, the libel spread eastward to Russia, and it is not unknown in the United States and Canada. One of the most infamous of these libels was the Mendel Beilis case in the waning days of Tsarist Russia, and it is the 100th anniversary of the near-miraculous acquittal of Beilis that occasionalizes this conference. The scholarly centerpiece of our discussions will be Hannah R. Johnson's influential recent book, BLOOD LIBEL, a complex history of the phenomenon, and Prof. Johnson of the U. of Pittsburgh will speak; the literary centerpiece will be Bernhard Malamud's fictional rendering of the Beilis case,THE FIXER, which will be discussed widely by various speakers. Panelists include the grandson of Beilis and attorney Jeremy Garber, who have a major bone to pick with the novel; Prof. Vivian Curran of the U. of Pittsburgh Law School; Prof. David Fraser of the U. of Nottingham (UK); Prof. Jeffrey Mehlman of Boston U.; Prof. Harriet Murav of the U. of Illinois; Prof. Sanford Levinson of U. Texas Law School; and Prof. Richard Weisberg of Cardozo.
For further details and to reserve for the symposium, contact Johanna Rubbert at johannac.rubbert@gmail.com

If You're Happy and You Know It....

Estelle Derclaye, University of Nottingham School of Law, is publishing What Can Intellectual Property Law Learn from Happiness Research? in Methods and Perspectives in Intellectual Property (G. Dinwoodie ed.; Elgar Publishing, forthcoming). Here is the abstract.

As the description of the 2012 ATRIP congress’s theme highlights, traditionally, scholars have used historical, doctrinal or comparative analyses, law and economics, political economy or philosophy, to discuss intellectual property law. Other methods such as empirical analysis, international relations, and human development are more recent. This paper looks at intellectual property law in a new way namely through the angle of happiness or well-being research.
The field of happiness research is not that recent but strangely, so far, happiness researchers have hardly discussed the relationship between well-being and technology despite the pervasive role of the latter in contemporary society. Likewise, the discussion of happiness is also rare in the legal field (except of course in (mental) health law) and it is absent from intellectual property law , except indirectly through the discussion of the capability approach in the discourse on intellectual property and development. I consciously leave the capability approach for another article but it needs to be noted that there are parallels to be drawn between the application of happiness research on the one hand and the capability approach on the other hand, to intellectual property law. In effect, the two approaches converge or are complementary in many respects.
There is a debate to be had about the value of happiness research for the field of intellectual property law. The discussion is worth having especially to check whether the current basis of intellectual property rights (IPR), and the norms that derive from it, are still up-to-date or else should be revised. This article focuses on the application of happiness research to patents and related rights, by and large designs, utility models and plant variety rights. However, a broader reflection of the relationship between happiness or well-being and other IPR such as copyright and trademarks, is worth pursuing as well. This article is obviously concerned only with one way to increase happiness, namely through the fostering of technology using the intellectual property system. There are many other ways to increase happiness, for instance to promote positive traits in a person, and this often does not need any technology. As Frey says, “[i]n current happiness research, [...] the integration among disciplines often go so far that it is not possible to identify whether a particular contribution is due to an economist, a psychologist, a sociologist or a political scientist.” In addition, many of their findings and recommendations coincide. Therefore, the paper will amalgamate the recommendations of the researchers in each branch (law, economics, political sciences, psychology, sociology and philosophy), only highlighting differences of opinion between the branches if and when they exist.
The article first traces the origin and history of happiness research, it then defines happiness (section 2) and summarises the findings (section 3) and the recommendations (section 5) of happiness research, after having determined that policy-makers should take happiness research into account (section 4). Finally, section 6 explains the relevance of happiness research to intellectual property law and draws from happiness research findings to propose a recalibration of patents and related rights’ goals and substantive law.

Download the essay from SSRN at the link. 

Sally Draper On the Couch

Courtesy of Gwynne Watkins, who explains the Mad Men's teen's possible problems after catching her dad with a neighbor.  From New York Magazine's Vulture blog). Not to mention the adultery, the alienation of affections...

Conference On Law and Psychoanalysis

An announcement of a conference on law and psychoanalysis, to be held from May 16 to May 18, at the Universidade Federal do Parana (Brazil). Information from our colleague Dr. José Calvo González.

Don't Tell Me Who Did It! I Paid a Lot For This Book!

A forthcoming study from two University of California, San Diego academics supports what I've thought for a long time: knowing whodunit in a mystery or thriller doesn't necessarily ruin the experience. I think it explains why some people (like me) re-read mysteries (and no, it's not because I can't remember the endings). Nicholas Christenfeld, one of the study's co-authors (I really like the presentation of his publications here), says the research explains why people actually enjoy knowing the ending. I understand that. They can concentrate on the journey along the way rather than obsess over the problem of the perpetrator.

But some people don't agree. They like the mystery, and that's understandable as well. They like puzzles. That's why they read crime novels, and watch thrillers. This research by Dr. Christenfeld and his co-author Dr. Jonathan Leavitt might also explain part of the debate in magic circles over exposure. Some practitioners say it ruins the performance for the audience, and condemn those magicians (like Penn & Teller) who make a practice of explaining at least some illusions to their audiences. But some magicians say knowing how a magician performs an illusion doesn't really matter. A magician can still amaze with a performance.

More here on the study, which is forthcoming in Psychological Science (available to subscribers).