Reading Notes--mostly précis and summary!
Adam Kissel

It is clear that a completely emotionless rationality, the mere "rule of law," no longer prevails in law (if it ever did). Human logic itself draws on the passions. Law encodes various "emotional variables" (369-70). But which emotions and empathetic narratives ought we include in journals and the courtroom? Can we make any requirement regarding which ones to count, without exercising arbitrary tyrannical power? Any emotionalism "can be used to argue for undesirable outcomes" (391). "We can show that certain emotions are generally more desirable than others through the development of external normative criteria" via reasoning upon our values (372).

Empathy, for example, as "the facility to perceive the humanity of another person ... is an unmitigated good" (374; cf. Singer). (It is interesting that Bandes wants to make this emotion normative and move it out of the definition of emotion--but this is exactly the kind of thing she argues against.) A judge's empathy need not go so far as altruism on behalf of a party in court; recognition of the perspective of all parties is enough. The goal of empathy in a legal context is "actual political equality" (382).

It has been made clear that law is a kind of narrative and storytelling, inherently political on some level. Some stories seem to have been unfairly excluded from law. But other stories that seem to be about law really are not part of law--how do we determine how to exclude the stories that really have no bearing on law? The stories that seem to be a natural part of law should be reconsidered as to their place in the law, too.

Emotions have a cognitive component and seem to be educable and therefore hierarchical. Mercy, for instance, seems higher than vengeance. Victim impact statements tend to make too much of bitter emotions against the defendant (rather than describe mere sadness and the economic impact, which evoke compassion for the victim). Victim impact statements also implicitly weight human life unequally (but the notion that every life is exactly equal is based, at least partly, on emotional values that have not been recognized here) and serves to dehumanize the defendant. Therefore these statements are disproportionately emotional. (Bandes argues further that we cannot trust jurors to differentiate useful emotional testimony from unfair emotional testimony.) Victim impact statements that are disproportionately emotional should be considered as outlawed outsider narratives. Emotional defenses of the defendant and his character, however, give jurors a humanizing empathy for him which they otherwise may not have, so these emotions should be allowed to continue, Bandes says.