Wednesday, May 15, 2019

Cold Cognition, Hot Emotion, and the Training of Lawyers

Are emotions part of lawyering and learning?

Cold Cognition, Hot Emotion, and the Training of Lawyers by Steven I. Friedland.

Abstract: "Recent advances in neuroscience have shown that cognition and emotion often work interdependently, operating as if emerging from a single faucet. This means that the stereotypes of a divided “cold cognition” and “hot emotion” are overly simplistic and inaccurate. The outdated but influential Langdellian approach to law, lawyering and legal education still places cognitive legal reasoning as the centerpiece. Instead, the cognition-emotion conceptualization should be revised so that positive emotion is expressly accepted, used, and managed within legal systems. Students and lawyers should be taught how to successfully feel and act like lawyers, as well as think like them."

Here are a couple of interesting nuggets:

"Emotion can be seen as a strategic tool for the survival of the organism—'Emotions are the way that evolution has built long-term goals into the structure of the brain to give an organism the best chance of surviving and reproducing.'"

"Why should “heat of passion” manslaughter exist as a legitimate crime alternative and justify a reduced conviction because a person became emotionally distraught?212 On the one hand, this doctrine recognizes that a person is not acting reasonably and thus is not subject to exoneration. On the other hand, it still conflates cognition and emotion in a perplexing fashion—as if there can be a “reasonable unreasonable” person. If managing cognitive emotion is to be expected of adults in American society—particularly their “fight or flight” response—then the minimally accepted standards of behavior should be placed along “adult” emotional lines when determining which response is appropriate. This means that the classification of provocation manslaughter—or as it is known, “heat of passion”—should be modified. No longer should a person be excused for losing control when seeing a spouse in bed with another or escalating a battery into a situation where deadly force is entertained.213 The emotional excess ought to be evaluated as beyond the realm of acceptability; not a situation where a conviction is reduced.214"

(Scott Fruehwald)

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