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Series

2006

Articles by Maurer Faculty

Personal injury

Articles 1 - 3 of 3

Full-Text Articles in Law

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira Jan 2006

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira

Articles by Maurer Faculty

This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a ...


Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira Jan 2006

Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira

Articles by Maurer Faculty

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise ...


Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira Jan 2006

Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira

Articles by Maurer Faculty

Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors' emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the ...