White on Emotions and Precedent @emilykiddwhite @OsgoodeNews @nyulaw @OxUniPress
Emily Kidd White, Osgoode Hall Law School; New York University School of Law, is publishing Emotions and Precedent in Philosophical Foundations of Precedent (T. Endicott, S. Lewis, and H. Kristjasson, eds., Oxford University Press) (forthcoming). Here is the abstract.
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. It argues that the several distinctive ways that emotions might interact with thick legal concepts pose challenges for any general theoretical account of precedent in legal reasoning. A focus on these different roles that emotions can play in judicial uses of precedent illuminates some of the more subtle ways in which these uses reveal held values, ways of seeing, and political commitments. The chapter finds that in at least some cases where a precedent is invoked to thicken the understanding of a legal concept at issue in a case, variations in the emotional architecture associated with that invocation will come in direct tension with the legal concept under examination, or with other legal values and principles that pertain to equality, and equal treatment under law.
Download the essay from SSRN at the link.