For Alan Lerner, practice professor of law at Penn Law, emotions are just like gravity: an invisible force whose effects can be felt throughout the law. How else can one explain 5-4 and 6-3 splits on the Supreme Court on legal questions such as what constitutes cruel and unusual punishment, or an unreasonable search? If reason and logic were the only factors, then far more court decisions would be unanimous.
As an example of a split decision, Lerner cites Texas v. Johnson, in which the Supreme Court lifted prohibitions on burning the U.S. flag because they violated the right of free speech. Justice Kennedy reluctantly joined the majority because he felt impelled to do so by the Constitution, but wrote that the outcome was “distasteful” because the flag symbolized values held dear by Americans. Justice Kennedy acknowledged an emotional pull in decision-making in his opinion and law school professors need to do the same in their classrooms, said Lerner.
Lerner is researching the role of emotion in modern legal education and proposing that law schools implement curricula that engage with rather than ignore the relevance of emotions.
Lerner’s starting point is that we are all inherently social animals, and that our personal, social and moral decision-making is guided by the region of the brain that processes emotion, not the region that engages in cognitive analysis. The knowledge that the emotional brain uses to influence decisions is learned unconsciously through daily experience, much like how children learn to speak, he said.
Law faculty need to address this implicit knowledge and teach students how to deal with their own and others’ emotions, he said, because students will go on to practice and make decisions in emotional and demanding circumstances.
In clinical practice, Lerner regularly witnesses the shortcomings of legal education that relies on analysis alone and avoids a thorough examination of values. “Students pass ethics exams with flying colors, but miss issues that arise in practice during clinics; the same is true in practice,” he said.
Constructively engaging with emotional issues ultimately has an enormous payoff, said Lerner. In order to feel good about ourselves, we need to believe that we behave morally. Legal education that identifies emotion as both real and appropriate allows students to be effective lawyers without compromising their morality or mental health, he said.