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Emotional Decisions

Forcing the Issue working paper by Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, drew intense and highprofile interest shortly after it was posted on the Social Science Research Network last winter. Ranked as one of the most downloaded SSRN articles in multiple categories and now slated for publication in the European Journal of International Law this fall, “The Power to Kill or Capture Enemy Combatants” cogently spells out how, contrary to many experts’ opinions, combatants should not automatically be subject to lethal force upon discovery, regardless of where they are found. Rather, Goodman said, the modern law of armed conflict (LOAC) requires that “if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury,


they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided.” Goodman stated the matter more bluntly in a February 19 Slate piece, “The Lesser Evil,” in reference to the Obama Human dignity holds administration’s leaked white paper on a central place in hudrones. “The administration claims, in the man rights law, yet white paper, to have conducted an exhaus- the concept itself resists concrete definition, tive review of the laws of war, and to honor complicating efforts to protect it. This state of those standards,” he wrote. “Its portrayal affairs troubles Emily Kidd White LLM ’09, JSD of the rules, however, is incomplete to the ’15, who uses the philosophy of emotion to critipoint of being wrong.” According to the Jus- cally appraise legal theory and practice on rights. tice Department white paper, the governWhite’s dissertation will show how parment has discretion in wartime to choose ticular emotions, such as contempt, disgust, whether to kill an enemy combatant, but pity, or empathy, play an important role in Goodman contests that modern laws of war evaluative judgment. A better understandplace real limits on that choice. He sup- ing of the role of emotion, says White, will ilports his contention by tracing a “lost his- luminate how human dignity is invoked in the tory” of international legal authorities’ past adjudication of rights claims as well as how support for restraints on the use of force, it relates to the procedural and evidentiary calling his claim “consistent with a long laws governing their adjudication. Her work line of some of the most highly respected has won her a three-year, $180,000 Trudeau law of war experts who reached the same Foundation Scholarship. conclusion on this issue.” “Emily brings important insights from the Unsurprisingly, Goodman’s challenge philosophy of the emotions to understand to current conventional wisdom provoked the significance of appeals to dignity in hustrong reactions, both pro and con, from man rights cases,” said University Professor well-known scholars in the field of war- Jeremy Waldron, White’s doctoral supervisor. fare. On the Lawfare blog, Professor Jack “She has been able to show how important Goldsmith of Harvard Law School, former the emotional dimension is for a full-bloodspecial counsel to the Defense Department, ed understanding of what matters in certain called Goodman’s work “timely and impor- kinds of legal argument.” tant.” A series of responses from promiIn legal theory, emotions are typically nent thinkers spurred a point-by-point seen as having a negative effect on legal readebate between Goodman and his critics soning, says White. But she plans to show in several forums. And at least one power- “how the concept of human dignity helps ful military voice took note of Goodman’s rights claimants expose the injustice of a legassertions: in his official blog as the Air islative scheme or government act through Force’s general counsel, Charles Blanchard the admission of evidence detailing suffering, wrote that the vigorous exchange Good- humiliation, and degradation.” man had inspired is “worth a careful read by all of us LOAC wonks.”

Like Baseball, God, and Apple Pie?

W W W. L A W. N Y U. E D U

president john sexton, benjamin f. butler professor of law, published a book in March based on a course he teaches to undergraduates at NYU.


From Baseball as a Road to God: Seeing Beyond the Game: [F]aith is an affirmation of something that cannot be expressed, for it is rooted in another domain of knowledge, one that is beyond what is knowable in scientific terms. There is much that is known today, and even more that is unknown today but that will be known (perhaps even hundreds of years from now). [T]rue with that which is unknowable in the scientific sense but which the believer knows with all of his or her being (the way, in a wonderful marriage, love is known). This is the domain of faith. Therein lies the most powerful connection to baseball, its rhythms and patterns, astonishing feats and mystical charm; it is not necessary to elevate baseball to the level of ultimate concern to notice that, for the true fan, there is sometimes a touching of the ineffable that displays the qualities of a religious experience in the profound space of faith.

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NYU Law Magazine 2013  
NYU Law Magazine 2013  

The annual magazine from NYU School of Law.