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The concept of risk is often approached as if it is self-defining. Yet placing an event or activity in the category of “risk” is a categorization with consequences. Framing normatively complex problems like immigration, terrorism, or monetary crisis as risks that require regulating suggests that certain cognitive tools are best suited for analyzing them. It suggests that the problems are measurable or quantifiable, that they lend themselves to utilitarian calculus, and that they have ascertainably correct solutions that require no value judgments. This article employs emotion theory to illustrate the difficulties with approaching normatively complex areas of governmental policy through the framework of risk regulation. It argues that interdisciplinary inquiry into the role of emotion in human behavior sheds light on how risks are assessed, prioritized, and ameliorated, on how the category of risk is constructed, and on how that categorization affects the cognitive tools and approaches we bring to normatively complex problems. The article begins with a brief discussion of behavioral law and economics, which styles itself a corrective to law and economics, but which replicates its fatal flaw: its unrealistic view of human behavior. Next it turns to two more specific problems with the standard notion of risk formulation. First, the standard notion reads out the essential role of emotion in deliberation about risk regulation and overvalues top-down expert knowledge. Second, it reads out the heuristics that erase patterns and maintain the status quo. Finally, the article will focus on two illustrative case studies, the Chicago heat wave of 1995, and Hurricane Katrina.

The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated and how deeply entrenched they are. In this chapter, I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.

This article argues that the economic, political, and cultural spheres of society are not separate but rather mutually embedded in one another. The market is not just an economic phenomenon, but a political and cultural one as well. Markets, in this reframing, include not just the convenient fiction of atomized buyers and sellers but trade and professional associations and a field of public actors including assorted regulators and courts. It is the interaction of these parties that creates a market culture. These cultures exhibit contradictory tendencies that are generated by exchange relations and resolved by power dynamics. The contradictory tendencies reflect the tension between accumulative and regulative norms in market cultures. These include opportunism versus restraint, innovation versus standard practice, and growth versus stability. The resolution of the cultural contradictions of markets is not a natural tendency toward equilibrium, but rather an ideal of public policy to be attained by countervailing power in effective legal and regulatory institutions.

Our legal system has a well-established set of laws and procedures for injured people to seek redress for their injuries. Over the years universalised legal injury narratives have developed. In other words, repeated applications of the law have generated standard, abstract, generalised versions of individual injury narratives. Accordingly, from any particular injury narrative, there can be distilled an “essential or abstract” legal injury narrative which is the same universal narrative that can be distilled from other like cases (Klinck, 1992). It seems likely that there are different versions of the legal injury narrative that have developed due to an accumulation of a large number of similar cases. For example, there is likely to be a version of the legal injury narrative for injuries arising out of each of motor vehicle accidents, workplace incidents, occupier’s liability, medical malpractice or defective products. However, this paper will demonstrate that underlying all of these versions is the generic legal injury narrative with particular and common characteristics. This paper develops the idea of the universal “legal injury narrative” – that is, a legally idealised narrative about injury, based on a number of implicit rules about the way injuries occur and their consequences. The legal injury narrative is the framework by which other injury narratives are judged.