Moral cognition in law and policy
Keywords: Humanities and Sciences.
Political Science.

The essays that comprise this dissertation study how the moral cognition of legal decision-makers (judges, jurors, legislators, litigators, prosecutors, etc.) affects their behavior in the domains of criminal and tort law. The dissertation is inter-disciplinary and draws on research in law, politics, psychology, and philosophy. It proceeds by assembling existing experimental results and theoretical postulates into an original set of testable verbal hypotheses or theories. Chapter One considers criminal sentencing. It argues that, due to regularities in the moral psychology of blame, legal decision-makers are often motivated to use proportionality to choose appropriate prison sentence lengths, but they typically encounter difficulty when they proceed to calculate a proportionate sentence for a given crime. That proportionality is both cognitively intuitive and difficult to apply to prison sentences helps account for data points such as the following: why the original U.S. Sentencing Commission tried to, but did not, base the U.S. Sentencing Guidelines on a retributivist rationale; why sentencing decision-makers are likely to have political-rhetorical flexibility in deciding whether to use the concept of proportionality; and why several federal judges have observed that sentencing decision-makers are susceptible to anchoring. Chapter Two, which turns to tort law, argues that dual-process theory in psychology partly explains tort's justice-efficiency debate: whereas a set of relatively automatic mental representations preferentially supports the "corrective justice" view of tort, a different set of relatively controlled representations preferentially supports the "efficiency" view thereof. Understanding the justice-efficiency debate in dual-process terms partly explains, for instance, why the corrective justice view is historically older than is the efficiency view, why jurors and legal economists often clash in tort suits, and why the debate often takes the form of the question of whether tort doctrine's reliance on moralized language is meaningful or perfunctory. Chapter Three, which continues the dissertation's analysis of tort, argues that judges faced with the difficult task of drawing lines between legally cognizable and non-cognizable harm rely, reasonably, on the physical-emotional distinction to help them complete this task. Understanding tort's physical-emotional distinction as a heuristic that helps judges solve a difficult problem undermines the argument, which some legal scholars have made, that judges who maintain the distinction thereby engage in mind-body dualist or otherwise unscientific thinking. The chapter's analysis has at least three normative implications: users of tort's physical-emotional distinction should clarify that they neither endorse dualism nor depreciate emotional harm; 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, 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.