Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for the Law

Abstract

This Article attempts to clarify legal thinking about emotion in decision making. It surveys evidence from psychology and neuroscience on the extensive role that emotion and related nonconscious cognitive processes play in human behavior, then evaluates the treatment of emotion in three legal views of decision making: rational choice theory, behavioral economics, and cultural cognition theory. The Article concludes that each theory is mistaken to treat emotion mostly as a decision objective rather than a part of the decision-making process and, indeed, to treat it as a force that mostly compromises that process. The Article introduces the view that emotion is a critical behavioral process that plays a role in most if not all decisions and is not readily amenable to accumulation or maximization. The Article discusses broad implications of this view for welfarist legal theory and policy generally and for an ongoing debate on risk regulation between behavioral economists and cultural cognition theorists. It also sketches potential applications in the law of employment discrimination, consumer protection, and criminal law.