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« Perplexed--once more--by "emotions in criminal law": Part 1 | Main | Weekend update: Still fooled by non-randomness? Some gadgets to help you *see* the " 'hot hand' fallacy" fallacy »

Changing my mind on "emotions in criminal law"

I sometimes get asked--sometimes in a challenging way--whether I've ever "changed my mind" or "admitted I was wrong" about something.  Hell yeah! Here's an example-- Kahan, D. M. (2011), Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz,In The Political Heart of Criminal Procedure. D. S. Michael Klarman & C. Steiker (Eds.), (pp. 163-176): Cambridge University Press  (working paper version here) , where I shift my views on a number of key points from an earlier paper, Kahan, D. M., & Nussbaum, M. C. (1996). Two Conceptions of Emotion in Criminal Law. Colum. L. Rev., 96, 269. There's more where this came from, too!  

Indeed, I was looking at this particular paper the other day (after I offered it as an example to someone challenging me to show that I've very acknolwedged I was "wrong") & wondering if maybe it's wrong in light of Kahan, D. M., Hoffman, D. A., Evans, D., Devins, N., Lucci, E. A., & Cheng, K. (in press), 'Ideology'or'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment. U. Pa. L. Rev., 164.  There's at least a tension to be explained....Maybe the first paper was right...

Do I like saying I've changed my mind? Sure, if the reason is that I actually managed to figure out something that I didn't know before. If one never had occassion to announce that one had changed his or her mind for that reason, it would mean either (a) one was studying unchallenging, non-complex things (boring); or (b) one wasn't actually advancing in understanding in the course of study & reflection.

Do I worry that, as a result of saying "I think I wasn't right on X," people might not "believe me" when I say think I know something in the future? No. First of all, they ought to be thinking critically about anything I say. Second, they ought to trust me more when they know that if I conclude I was wrong or have to qualify my previous view in some important way, I'll make an effort to tell them! Those who prefer to put their trust in scholars who wouldn't change their minds when they should, or wouldn't tell them when they did, are ones whose confidence I take no particular pride in earning.

Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz

Dan M. Kahan 

This essay examines alternative explanatory theories of the treatment of emotion in criminal law. In fact, it re-examines a previous exposition on this same topic. In Two Conceptions of Emotion in Criminal Law (Kahan & Nussbaum 1996), I argued that the law, despite a surface profession of fidelity to a mechanistic conception of emotion, in fact reflects an evaluative one: rather than thoughtless surges of affect that impair an actor’s volition, emotions, on this account, embody a moral evaluation of the actor that is in turn subject to moral evaluation by legal decisionmakers as “right” or “wrong,” “virtuous” or “vicious,” and not merely as “strong” or “weak” in relation to the actor’s volition. I now qualify this claim—and indeed reject certain parts of it.  I do so on the basis of an alternative conception of the evaluative conception of emotion: whereas the position in Kahan & Nussbaum (1996) treats the evaluative conception as  implementing a conscious moral appraisal on the part of decisionmakers, the alternative sees it, at least sometimes, as a product of decisoinmakers’ unconscious vulnerability to appraisals they themselves would view as subversive of the law’s moral principles, which might well invest volitional impairment with normative significance. I examine the empirical evidence, amassed by various researchers including (without giving this point much thought) by me, for this third view, which I label the “cognitive conception” as opposed to the earlier (Kahan & Nussbaum 1996) “moral conception” of the “evaluative” view of emotions in criminal law.


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