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Emotions And Precedent, Emily Kidd White
Emotions And Precedent, Emily Kidd White
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The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of legal reasoning. …
Images Of Reach, Range, And Recognition: Thinking About Emotions In The Study Of International Law, Emily Kidd White
Images Of Reach, Range, And Recognition: Thinking About Emotions In The Study Of International Law, Emily Kidd White
Articles & Book Chapters
There is much critical potential in bringing together the philosophy of emotion and the study of international law. Narratives about legitimate political and legal authority have tended to either assume that it is possible to extricate emotions from political judgement, or to rest upon uncomplicated (and wholly demystified) assumptions about the legibility of emotions over time and place. Philosophers interested in emotion have regularly grappled with questions concerning an emotion’s reach and range (insofar that the emotion in question bears an intersubjective component), and recognition (comprehensibility) of emotions beyond one’s own social and political communities (or even beyond one’s self). …
Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White
Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White
Articles & Book Chapters
Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …
Rethinking The Ken Through The Lens Of Psychological Science, Jason M. Chin, William E. Crozier
Rethinking The Ken Through The Lens Of Psychological Science, Jason M. Chin, William E. Crozier
Osgoode Hall Law Journal
Canadian courts regularly exclude psychological expert evidence that would explain the factors that produce mistaken eyewitness identifications and false confessions (two significant sources of wrongful convictions). Courts justify these exclusions on the basis that the evidence is not beyond the ken of the trier of fact—the psychologist would simply be describing an experience shared by the judge and jury. In this article, the authors suggest this reasoning rests on two fundamental misunderstandings of psychology: unconscious neglect and dispositionism. In other words, judges mistakenly assume the trier of fact understands the unconscious situational forces that distort memories and cause innocent people …
Judicial Choice And Disparities Between Measures Of Economic Values, David Cohen, Jack L. Knetsch
Judicial Choice And Disparities Between Measures Of Economic Values, David Cohen, Jack L. Knetsch
Osgoode Hall Law Journal
An important idea, which characterizes law in society, is a reluctance to move from the status quo. In general, one can argue that legal institutions and legal doctrine are not engaged in the redistribution of wealth from one party to another. This paper explores a possible explanation for that principle. The authors' research suggests that, across a wide range of entitlements and in a variety of contexts, individuals value losses more than foregone gains. The paper argues, as a matter of efficiency, that law and social policy might have developed in a manner consistent with this valuation disparity. Furthermore, this …