Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional distinction should clarify that they neither endorse dualism nor depreciate emotional harm; (2) because judicial expertise may not extend to the task of drawing lines between legally cognizable and non-cognizable harm, judicial performance in this area may be more adequate than critics suggest; and (3) although it may not be possible to determine the optimal way of drawing lines between legally cognizable and non-cognizable emotional harm, moral-philosophical tools such as Rawlsian and Scanlonian contractualism may be able to identify partial or pro tanto considerations for choosing among different ways of doing so.
Research into the cognitive psychology of proportionality—here, the familiar idea that the severity of the punishment should reflect the severity of the crime—can enrich the study of US criminal sentencing and identify new connections between research in law, psychology and philosophy. This article presents a cognitive-psychological model of proportionality and shows how the model helps to illuminate the behaviour of a range of sentencing decision makers. According to this model, the way in which people tend to mentally represent and compute proportionality means that the latter has at least two behaviourally important features: it is both cognitively intuitive and difficult non-arbitrarily to apply to prison sentences, in well-defined senses of those terms. The interaction between these two features helps to account for data points such as the following: (i) why the original US Sentencing Commission tried to, but did not, base the US Sentencing Guidelines on a retributivist rationale; (ii) why sentencing decision makers are likely to have political-rhetorical flexibility in deciding whether to use the concept of proportionality; and (iii) why several federal judges have observed that sentencing decision makers are susceptible to anchoring. Attending to the psychology of proportionality also yields normative implications and suggestions for future research.
This article synthesizes a large body of research in the social and cognitive sciences to develop a distinctly cognitive understanding of political identity. Building on dual-process and computational theories of mind, the article defends three claims about the mental and behavioral implications of identity in political domains: (1) identity-based thinking is people’s default (often fast, automatic, and cognitively inaccessible) way of mentally representing politics and of drawing inferences based on those representations; (2) people are not limited to identity-based thinking and can sometimes learn to override it via slow, volitional, and conscious reasoning; and (3) the cognitive complexity of identity-based thinking is in-between the levels of mental sophistication that the Michigan and Rochester Schools in political science posit. This account of political identity illuminates, inter alia, why even low-information voters can quickly identify their political allies and opponents, why even high-information politicians can misperceive their constituents, why affective polarization has been increasing in the United States in recent decades, and why many normative theories of justice advise people to override identity-based thinking.
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