Thursday, June 3, 2021
Susan A. Bandes (DePaul; Google Scholar), Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law, 89 Fordham L. Rev. 1 (2021):
Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of “thinking like a lawyer” to lawyers’ well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of “thinking like a lawyer” poses to lawyers’ well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning—and indeed, legal change and reform—actually occur.
This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.