The University of Chicago Law School Faculty Blog

Susan Bandes on "Emotions, Values, and the Construction of Risk"

The University of Pennsylvania Law Review's PENNumbra site has published a response by Visiting Professor of Law Susan Bandes to "Two Conceptions of Emotion in Risk Regulation," a recent article by Dan M. Kahan. Kahan's article is itself part of a longer debate with Cass Sunstein; with this response, Bandes enters the discussion. She writes: 

Are emotions subversive of reason or essential constituents of it?  This is the broad question posed by Dan M. Kahan in Two Conceptions of Emotion in Risk Regulation, a welcome addition to his ongoing inquiry into how emotional appraisals of value influence decision making. Much of Kahan’s recent work has focused on a particular aspect of policymaking: the study of risk perception. Two Conceptions continues a useful exchange between Kahan and Cass Sunstein about the differences between their prominent approaches to risk regulation: Kahan’s cultural cognition approach and Sunstein’s heuristics and biases approach, which focuses on the cognitive mechanisms that shape perceptions about risk. Kahan illuminates the issues at stake with his customary passion and clarity.

A major contribution of Kahan’s work has been its insight into the pervasiveness of emotional influences on the decision-making process. The recognition that emotion pervades decision making raises a difficult normative question: how to distinguish the influences that contribute to good judgment from those that distort judgment. This normative question in turn gives rise to a difficult practical question: how to address the influences that cause distortion. In this brief Response, I argue that tackling this evaluative task requires avoiding mirror impulses: emotions should neither be privileged as inherently desirable nor marginalized as inherently irrational. They should be judged based on what they contribute to the cognitive task at hand.

The task at hand, as the Kahan/Sunstein debate defines it, is determining how government should regulate risk. In exploring the question of how this task is best approached, I will also raise a question about how it is defined. I suggest that the very act of framing issues of government policy in terms of risk regulation reflects certain assumptions about how issues present themselves and what sorts of cognitive processes might be required to address them.

Bandes on Framing Wrongful Convictions

Visiting Professor of Law Susan Bandes has posted a paper on SSRN entitled "After Innocence: Framing Wrongful Convictions." The abstract is below and you can download the whole paper here.

After Innocence: Framing Wrongful Convictions

SUSAN A. BANDES
DePaul University - College of Law; University of Chicago Law School
Utah Law Review, 2008

Abstract:    
Concern over wrongful convictions has led to an innocence movement that has managed to bridge ideological divides, rouse the public to action, and achieve unprecedented success in reforming the operation of the death penalty. This movement is now at a critical juncture. Exonerations based on DNA evidence are beginning to decline, and the public's attention is beginning to stray. Yet there is an enormous amount of work left to be done. In this short essay, written as part of the symposium Beyond Biology: Wrongful Convictions in a Post-DNA World, I explore the debate over the content of the category wrongful convictions. The definition of persons who should be considered wrongfully convicted is hotly contested by both supporters and opponents of capital punishment. Delineating the category also raises another highly controversial issue: how to characterize the governmental conduct that leads to these miscarriages of justice.

I consider whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. Does framing the problem in this way help or hinder the larger debate about what is wrong with the death penalty and how to fix it? I suggest that though we should learn from the successes of the wrongful convictions movement, we need to look beyond innocence and find ways to evoke outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is sometimes essential to identify and condemn intentional misconduct, the focus on malice and intent can be ineffective and even counterproductive.

The challenge is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness. As we consider the evolving shape of the death penalty reform effort, we should explore why certain ways of framing injustice have so much power.

Susan Bandes Enters the Latke-Hamantash Fray

The 61st Annual Latke-Hamantash Debate, a University of Chicago tradition, will take place on Tuesday, November 20 at 7:30 pm in Mandel Hall. This year's debate features Visiting Professor of Law Susan Bandes, along with Professors Austan Goolsbee (GSB), Matthew Stopler (Oriental Institute), and Alberto Simpser (political science). Each distinguished scholar will present an analysis from the perspective of his or her discipline addressing the question of which Jewish holiday food is superior, the latke or the hamantash. No word yet as to which treat Professor Bandes has decided to defend.

Contact the Newberger Hillel Center for more information.

Susan Bandes Mentioned on Sentencing Law and Policy

Douglas Berman's Sentencing Law and Policy blog links today to a paper by Susan Bandes, who is a visiting professor at Chicago this year, called "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty." See what folks over at SL&P are saying about her paper here.

Update: Lawrence Solum's Legal Theory Blog has also picked it up.