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Doctrinally Relevant Empathy and Doctrinally Irrelevant Empathy:
I wonder if the discussions about "empathy" that we're likely to have in the next few months might be advanced a bit by distinguishing doctrinally relevant empathy from doctrinally irrelevant empathy.

  In some areas of law, the relevant legal test absolutely requires judicial empathy. The applicable legal standard may call on the judge to try to assess the real-world impact of a particular practice on a person or group of people, and judges cannot do that successfully without putting themselves in the shoes of the person who might be impacted. We might label this "doctrinally relevant empathy." It's a sort of worldliness that allows a judge to apply the law in a realistic fashion. Everyone agrees that this sort of empathy is not just good, but absolutely necessary.

  We might distinguish this from what we could call "doctrinally irrelevant empathy." In this setting, empathy is not directly relevant to the rule or standard to be articulated or applied by the court. The relevant legal question does not provide a standard by which empathy is implicated. Instead, empathy is a quality rooted in a normative sense of justice or fairness that helps the judge articulate or apply a rule in a way that achieves a more fair or more just result. This latter kind of empathy is the kind of empathy that is controversial.

  My sense is that a lot of discussions about empathy and the judicial role mix up these two categories. One side will say empathy is bad, thinking of the second category; another will say empathy is absolutely necessary, thinking of the first. I think keeping these two categories somewhat distinct might be helpful; perhaps it will keep the two sides from talking past each other.

  I realize that the distinction I'm suggesting here isn't a simple one. The line between doctrinally relevant empathy and doctrinally irrelevant empathy can be difficult to draw, as there are many legitimate sources of legal interpretation and they may make empathy relevant in some ways and irrelevant in others. But I think it's a modestly helpful distinction that can at least someone lessen the confusion over the debate of empathy's role in legal interpretation.

  UPDATE: It occurs to me that an example might be helpful, so here's a highly stylized one that can at least focus the debate a bit (although I'll make up the hypo in a way design to keep the debate going, not end it).

  Imagine a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is "very painful," but that claims seeking to avoid the method of execution must be filed more than 48 hours before the scheduled execution occurs and are defaulted if they are filed later. Two prisoners facing the same method of execution file their petitions. Prisoner A files his petition seeking to avoid the method of execution 72 hours before his scheduled execution. Prisoner B files his petition seeking to avoid the method of execution 47 hours before his scheduled execution, 1 hour late.

  I think everyone would agree that judges would need empathy to evaluate Prisoner A's claim accurately. Empathy is legally relevant here: Judges would have to learn all about the setting of the execution, and to imagine how painful the method of execution would be from the standpoint of the condemned. This is doctrinally relevant empathy, and it's not controversial. Of course, there could be controversies over what empathy requires, with different people reaching different conclusions about what methods of execution are "very painful." But no one disagrees that empathy is relevant and necessary to decide the case.

  On the other hand, the role of empathy in deciding whether to hear Prisoner B's claim despite being filed an hour late is genuinely controversial. Empathy isn't directly relevant to the legal issue, at least as I have framed it: The only issue is the timing of when the claim was filed. But different people will have different views about whether it is appropriate for judges to take into account what they may see as injustice — drawn, perhaps, from their views of the death penalty and the fact that the claim was filed just one hour late — to look particularly hard at whether they can fashion a rule that allows the claim despite being filed too late.
David Matthews (mail):
Thank you. Here's what I just posted on Ilya's thread:

I think there's a necessary level of empathy whenever a judge, or Justice, is required to apply a "reasonable person" standard.

I remember a case I read about here at VC, where Justice Scalia's opinion of what a "reasonable person" would know or do when ordered to do something by a cop, was just totally out of whack. He argued that a "reasonable person" would know that they didn't need to obey the cop under this or that circumstance.

I'm a pretty reasonable person. I haven't the faintest clue when I don't need to obey a cop. I pretty generally err (if it is err) on the side of doing whatever the cop tells me to. While Scalia was of course correct that technically the person in question didn't, in this situation, have to obey the cop, he was wrong in thinking that some generic "reasonable person" would automatically know that.

I think that there's some level of empathy, or at least some connection with reality, that has to be available to a Justice. Clarence Thomas has availed himself of just such an understanding in several of his opinions, most notably his dissent in Kelo.


I'm guessing that those would be examples of "doctrinally relevant empathy."
5.28.2009 7:12pm
Tugh (mail):
Orin,
I think you misspoke when you said "One side will say empathy is bad, thinking of the first category; another will say empathy is absolutely necessary, thinking of the second."
Shouldn't it be vice versa? If I get you right, your argument is that everyone agrees about the first category "doctrinally relevant empathy" but not everyone agrees about the second one.
5.28.2009 7:15pm
Tugh (mail):
On a substantive note, I am not sure that many people are confused by the two types of empathies. As you said, everyone agrees that there are situations when the empathy is required by the law. I don't know anyone who seriously argues to the contrary. On the other hand, I think the root of the disagreement is whether judges should sometimes use their normative sense of justice or fairness when the dry letter of the law doesn't say so. The example would be the Ledbetter case. It seems to me that both sides' arguments are pretty clear, but maybe I am overestimating the level of clarity on this issue.
5.28.2009 7:19pm
GV:
I wonder which type of empathy Justice Alito was talking about here?
5.28.2009 7:21pm
rick.felt:
Extraordinarily pedantic question (sorry):

In what way is sympathy for the downtrodden an insufficient quality for a Supreme Court justice to possess, such that only those with empathy for the downtrodden are considered worthy? Can we construct a hypothetical case in which a sympathetic judge arrives at the wrong conclusion, but an empathetic judge arrive at the correct conclusion?
5.28.2009 7:22pm
OrinKerr:
Tugh -- you're right, will correct. Thanks.
5.28.2009 7:23pm
JB:
Considering the recent strip-search case, I should hope that future Supreme Court Justices have more empathy for 13-year-old girls, whatever the demographics of the justices themselves.
5.28.2009 7:23pm
Steve H (mail):
I think this is a very interesting idea, and I look forward to watching it get fleshed out in comments and possibly follow-ups.

I hope this puts paid to the argument that judicial empathy is a bad thing because "judges should just follow the law."
5.28.2009 7:28pm
Gramarye:
I've been waiting for someone to make this point for a while now. Good to see that I wasn't crazy--or at least, that I was no crazier than Prof. Kerr.

Of course, the Supreme Court also has some latitude, particularly in areas where the law may not yet be fully settled, to articulate when "empathy" should be held "doctrinally relevant," i.e., when choosing to articulate standards signaling the trial courts to take characteristics of a party into consideration. One might assume that Sotomayor would be friendlier towards such standards than a more rule-oriented justice would be.

David: I agree that the application of the reasonable person standard is one area where there's some minimal level of empathy required of a judge. Another common such situation arises when the applicable legal standard requires balancing competing interests or equities.
5.28.2009 7:29pm
Officious Intermeddler:
I appreciate this clarification, but I'm not sure how useful it is. Good faith interlocutors already grant the distinction, while the Erwin Chemerinskys of the world will continue setting up and knocking down straw men regardless of how many times you explain it.
5.28.2009 7:32pm
Gramarye:
Oh, another classic that appears pretty much across the oeuvre of American common law: "totality of the circumstances."

Telling a judge to just apply the law as written when that's the law as written gets nobody anywhere.
5.28.2009 7:33pm
Patent Lawyer:
Good post, Prof. Kerr. I was trying to think of a good way to distinguish Virginia v. Black (where I think Thomas's dissent is right to draw on his experience as a black man re: cross-burning) and Goodyear v. Ledbetter (where I think it's wrong to let empathy matter in interpreting the construction of a statute of limitations provision.) This is the distinction I was looking for.
5.28.2009 7:35pm
OrinKerr:
Good to see that I wasn't crazy--or at least, that I was no crazier than Prof. Kerr.

Gramarye, glad you and I can take on these people who say the Earth is round together.
5.28.2009 7:35pm
Steve:
I still think some people are having trouble distinguishing empathy from sympathy. Empathy doesn't mean you ignore the law because you feel sorry for the litigant. It just means you're able to put yourself in their shoes and understand where they're coming from with their claims.

In the case of Prisoner B, empathy is obviously irrelevant to the result because the statute sets a jurisdictional deadline - and I'd suggest that anyone who believes Obama wants judges who will apply "empathy" in a case like this to reach a different outcome is assuming too much. I do think empathy might have some relevance to how the opinion is drafted - for example, if a litigant is going to face very harsh consequences because of the operation of a bright-line rule, a judge who appreciates that fact may make an effort to explain and justify the result in the course of issuing their ruling.

Maybe it makes no difference to someone who is being executed in 47 hours, but in many of my cases, even if my client loses they appreciate an acknowledgment that the court at least understood their point of view and took it into account, even if it was rejected in the end.
5.28.2009 7:36pm
Nick056:
Orin,

A thoughtful and fine post. I appreciate it especially given that you abjure the label of "mechanistic" judging but took that label to be a somewhat self-evident diversion, e.g, saying even Robert Bork has no time for it.

This provides an accessible distinction that differentiates the "anti-empathy position" from the (possibly elusive) mechanistic position.

But let me ask you, why are so many people talking past each other in this case? Given the apparent need for doctrinally relevant empathy, would you care to opine on the comments that reject all empathy out of hand with an air of absolutism? Is it that they never think of the first category of empathy as being properly called empathy, or that they're certain it's not the intended meaning? (I mean press and politicians' comments, not VC comments.)

It's banal, but I think the assumption of bad faith in this question is stone-heavy enough that you'd need many, many thumbs on the scale to balance out the tone of the discussion.
5.28.2009 7:38pm
Tugh (mail):
Orin,

Thank you for the example. but again, I am not entirely sure this is particularly helpful one. Here, the statutory language is clear that Prisoner's B claim is defaulted. I doubt that any serious person will argue that empathy requires to accept Prisoner's B claim (with the possible exception if the delay was not his fault). It is possible, of course, that someone will argue that the statute itself is inherently unconstitutional, but this is a totally different issue, having to do with the Constitution's interpretation.

I think the more on point example would be the Ledbetter-type statute, e.g. where the language of the statute could be reasonably interpreted both ways, but where one interpretation would preclude most claims for relief, while the other one would allow such claims. The distinction between the two arguments, seems to me, is whether a sense of fairness should inform one's interpretation of such a statute.

Thanks.
5.28.2009 7:38pm
David Matthews (mail):
Patent Lawyer,

Excellent examples.
5.28.2009 7:40pm
OrinKerr:
Steve on empathy:
In the case of Prisoner B, empathy is obviously irrelevant to the result because the statute sets a jurisdictional deadline - and I'd suggest that anyone who believes Obama wants judges who will apply "empathy" in a case like this to reach a different outcome is assuming too much.
Steve, is it really that obvious? I used the example of a filing deadline because that is President Obama's favorite example:
I said earlier that I thought empathy was an important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you.

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.
5.28.2009 7:40pm
Tugh (mail):
Orin,

In Ledbetter case, it was fairly clear that Congress did not intend for the statute to be interpreted the way the Court did and the language was ambiguous. Court's interpretation would preclude most claims which was most likely not the intent of Congress. The fact that Congress clarified the statute and overruled the Court bolsters this argument, in my view. In your example, in contrast, the language is very clear and there's no evidence of any contrary intent.
5.28.2009 7:44pm
Steve:
Goodyear v. Ledbetter (where I think it's wrong to let empathy matter in interpreting the construction of a statute of limitations provision.)

Here's a good example to talk about. Empathy in the context of the Ledbetter case doesn't mean the judge thinks "oh, that poor woman was discriminated against, let's find a way to grant her relief." That's sympathy rather than empathy.

Empathy simply means that a judge, drawing upon life experiences, intuitively understands that it is unusual in daily life for people to know what their coworkers get paid, and that it can be difficult to find out that information. And then that understanding can be factored into the analysis of what Congress intended in enacting the statute of limitations.

Now of course, I understand there are people who believe the statute of limitations in Ledbetter was crystal-clear and only susceptible of one interpretation (and it seems there are more such people now that the case has become a political football). If you feel that way, then obviously none of this matters. But if you believe the statute is ambiguous, then it's certainly relevant for a judge to consider which interpretation makes more sense in the context of everyday life.
5.28.2009 7:44pm
Gramarye:
Steve:

This is true. The much larger question, though--and, for the Supreme Court, the case that will fall into one of that most-salient 5% of cases that Obama mentioned when explaining his vote against Chief Justice Roberts' confirmation--is going to be the question of whether the death penalty itself is unconstitutional under the Eighth Amendment.

So let me frame this issue this way: Should empathy with those condemned to death factor into a justice's consideration of whether the death penalty is "cruel and unusual?"
5.28.2009 7:45pm
OrinKerr:
Nick056 writes:
But let me ask you, why are so many people talking past each other in this case? Given the apparent need for doctrinally relevant empathy, would you care to opine on the comments that reject all empathy out of hand with an air of absolutism? Is it that they never think of the first category of empathy as being properly called empathy, or that they're certain it's not the intended meaning? (I mean press and politicians' comments, not VC comments.)
Good question!

I suspect it's because President Obama is the leading proponent of the issue, and his favorite example is the Ledbetter case, involving filing deadlines. That looks to a lot of people like an example of legally irrelevant empathy, and critics seem to be assuming that's what he means. (I should add that it's entirely possible to make the argument in a way that turns it into legally relevant empathy -- the result is so bad that Congress couldn't have possibly intended that result -- but that's not really the way Obama has expressed the point.) So then Obama's opponents react against Obama's example, but do so using language that is too broad; Obama's allies respond by picking counterexamples of the other kind of empathy, etc. That's my best sense of the dynamic, anyway.
5.28.2009 7:46pm
Steve:
I used the example of a filing deadline because that is President Obama's favorite example

I think the example of an unambiguous, 48-hours-or-you-lose statutory deadline really doesn't come to grips at all with the issue in Ledbetter. A better example might be the SC decision from the last year or two where the criminal defendant missed a jurisdictional deadline because the court inadvertently put the wrong date in its order - but even then, there's at least something of an argument. You've postulated a situation where there's literally no other way to grant relief other than by ignoring the statute out of a sense that "injustice" is being done.
5.28.2009 7:49pm
OrinKerr:
Steve,

I appreciate your responses, although there are a number of things that you appear to see as obvious that a lot of other people find quite controversial and difficult. For example, you write:
But if you believe the statute is ambiguous, then it's certainly relevant for a judge to consider which interpretation makes more sense in the context of everyday life.
The problem is that some people agree with that and others don't; that's part of what this debate is about.
5.28.2009 7:51pm
Tugh (mail):
I completely agree with Steve. Orin's example is as unambiguous as it gets, while the language at issue in Ledbetter was much less clear. And Obama's position is that the Court "misinterpreted the law", not that the Court should have simply ignored the law and substituted empathy. If one is worried that Obama proposes to substitute empathy for the law, one should not worry too much.
5.28.2009 7:51pm
Nick056:
Orin,

Supposing there was relevant precedent that allowed for exceptions to the 48-hour deadline, crafted in respose to a tardy filing. That correctness of that precedent is contested. A judge relies on it to advance Petitioner B's claim. Is he relying on precedent, or empathy, or a relevant precedent that, it's been said, was derived more from empathy than any statute? In the third case, is it fair to say the judge was informed by his empathetic sense or that he followed applicable law?
5.28.2009 7:52pm
OrinKerr:
Steve,

Please feel free to substitute your example, or any other example that in your view is more helpful. (I have found that no one example can satisfy everyone in a debate like this; my hope is that the example was somewhat helpful, but I concede it was not perfect. That's why I ended it as "to look particularly hard" at fashioning a rule, not actually doing so, although of course that may not have been a cure for the problem.)
5.28.2009 7:54pm
Tugh (mail):
Orin says, quoting Steve,

"But if you believe the statute is ambiguous, then it's certainly relevant for a judge to consider which interpretation makes more sense in the context of everyday life"

The problem is that some people agree with that and others don't; that's part of what this debate is about.


Yes, I think this is exactly where the distinction between the two competing theories lies. I think (I may be wrong) that there is not much confusion about this.
5.28.2009 7:54pm
Anon321:
I agree that the distinction is a useful one. I suspect that few people take issue with the use of empathy in cases where it's doctrinally relevant. I'm also tempted to say that few people believe that empathy is relevant when the relevant statute or constitution speaks clearly to the legal question (though your hypo might prompt some people to make exceptions for extreme cases).

The real debate, though, seems to be over the use of empathy in cases where it's neither doctrinally relevant nor clearly doctrinally irrelevant (i.e., cases where the issue is clearly settled by a statute or constitution). For example, set aside Supreme Court precedent for the time being and imagine a case in which a criminal defendant says that, after he was arrested, he told the police that he wouldn't answer any questions without a lawyer. Over the course of the next several hours, the police would check in every 15 minutes and say, "Are you ready to talk to us now?" When the defendant asks for water, the police ask if the defendant is ready to talk, in a way that might suggest that his answer will determine whether he can have a drink or not. The defendant eventually says that he'll answer questions, and confesses to the crime. He then challenges his confessions as a violation of his Fifth and Sixth Amendment rights. If a judge concludes that the constitutional text is insufficiently determinative, can he use empathy as a partial basis for deciding whether the defendant's rights were violated?
5.28.2009 7:54pm
Steve:
The problem is that some people agree with that and others don't; that's part of what this debate is about.

Well, hang on. If we have a genuinely ambiguous statute, where there are two plausible interpretations of the text and there's no clear indication of which one was intended by the legislature, there are people who don't think the court should be allowed to say "well then, gee, which interpretation makes more sense"?

In one of Ilya's threads a commentor played a little gotcha by accusing him of engaging in empathy himself (I forget the context). And Ilya said well, I'd be more inclined to just call it common sense. My reaction was to think, "Common sense is what we call the sort of empathy that's okay!"

My common sense and your common sense may view an issue differently, of course. But if we're trying to interpret an ambiguous statute, and your common sense tells you that it would be silly to read it a certain way, I certainly don't see how I could call that an illegitimate mode of analysis.
5.28.2009 8:01pm
RPT (mail):
I think that Profs. Kerr, Carpenter and Volokh, as well as the periodic guests should be the only posters. In the alternative, the others should adopt the same reasoned, snark and propaganda free style that they use. There is a clear difference between these two and the rest.
5.28.2009 8:04pm
OrinKerr:
Steve writes:
Well, hang on. If we have a genuinely ambiguous statute, where there are two plausible interpretations of the text and there's no clear indication of which one was intended by the legislature, there are people who don't think the court should be allowed to say "well then, gee, which interpretation makes more sense"?
Well, yes. I believe I wrote a post addressing this issue last week.
5.28.2009 8:09pm
Steve:
Please feel free to substitute your example, or any other example that in your view is more helpful.

An example of what? I'm fine with your example, I just don't think it's a particularly hard case for most people. That's why I suggested that the most empathy can do in such a case is guide the court in justifying the ostensibly harsh result to the losing party.

I think there are definitely dueling strawmen in this debate. On the one hand, there's the view that if you don't believe in "empathy," you think judging is an entirely robotic process. On the other hand, there's the view that if you do believe in empathy, you think clear rules should be disregarded whenever the judge feels sorry for a litigant. Very few people actually adhere to either of these extreme viewpoints.

I don't disagree with the distinction you're drawing in this post, but I'm just pointing out that the second example comes a little too close to the second strawman I just identified to be particularly instructive. If we want to talk about Ledbetter, well then, the question of whether empathy is "doctrinally relevant" depends in large part on whether you think the statute was ambiguous or not. Few if any of Ms. Ledbetter's adherents are arguing, "Congress clearly foreclosed her claim, but the courts should allow it anyway because she's a sympathetic victim of discrimination." Rather, they generally believe "There were two ways to read the statute, and the one chosen by the Court is silly and defies common sense."
5.28.2009 8:11pm
David Welker (www):
Hi Orin,

I think your distinction is somewhat helpful. But I would make a different distinction, because your distinction has a serious chicken and egg problem.

What is doctrinally relevant is, to some extent, determined by the judiciary. Legal doctrines include judge made precedent.

Of course, we do agree that if empathy is doctrinally relevant, it should be considered, as when considering issues concerning the meaning of the Eighth Amendment for example. So, I think whether that empathy being doctrinally relevant is a sufficient condition for empathy to be employed. The question is whether it is a necessary condition.

Well, because of the chicken and egg problem, I would say no. At one time, the insights of the law and economics movement did not have a lot of impact on legal doctrine. But now, there are a lot of legal doctrines that are influenced by it. But the law and economics is all about incentives. And incentives are all about empathy. You have to put yourself in someone's shoes to understand how incentives are likely to affect behavior.

So, the question is, how did the law and economics movement become doctrinally relevant? The answer, of course, is mostly through the exercise of judicial discretion (to the extent that the movement is not reflected in the language of statutes.) That is, judges had to decide that the sort of empathy required for the consideration of incentives was doctrinally relevant.

In general, I would ask two questions before employing empathy or not.

(1) Is empathy doctrinally relevant.
(2) Do a considerations of the consequences (as in formulating a new legal rule) matter?

Note that in your case with the missed one hour deadline, this fits perfectly here. If you answer YES, consequences should be considered, then of course empathy would be appropriate. But if you answer NO, consequences should not be considered, then empathy is irrelevant.

I think that empathy is appropriate whenever you consider consequences, because in most situations empathy is an invaluable information processing tool in understanding consequences.

So, the real debate probably should be whether or not we consider consequences in a particular circumstance.

Anyway, we are having a real conversation here. I should note that I think that many conservatives have been using "empathy" as some sort of new scare word to try to score political points rather than actually dealing with the issue. I am glad that you are a conservative who takes a different approach.
5.28.2009 8:16pm
Gramarye:
RPT: I'm actually disappointed that so many of the comment threads have been closed to discussion from the outset over the past year or so (or at least, I noticed the trend increasing). However, I don't believe this is the time or place for that discussion. This thread has a lot of life left, and I don't think that any of the disagreements in this thread so far qualify as "snarky" or "propagandistic," so I think that warning against degenerating into such folderol is premature.
5.28.2009 8:17pm
Steve:
Well, yes. I believe I wrote a post addressing this issue last week.

I don't think your post is on point at all. I'm talking about using common sense to decide which interpretation of an ambiguous statute seems more plausible, a process which might end up favoring either side depending on the issue. I'm not at all talking about the judge simply putting his thumb on the scale in favor of individuals or corporations according to his personal preference.

In your post, you quote Obama's criticism of Alito, and you go on to suggest that Obama basically wants a judge who analyzes cases just like Alito, except at the end of the day he puts his thumb on the opposite end of the scale than Alito does. I don't think that's a fair interpretation of anything Obama has said, but in any event, it's certainly not what I'm talking about in this thread. I'm talking about ruling for Ledbetter because common sense tells the judge that one interpretation of the statute is plausible and the other is silly, not ruling for Ledbetter because she's an individual versus a corporation.
5.28.2009 8:22pm
Nick056:
Anon321,

To proceed on the assumption that the suspect, in confessing, is acting as a witness against himself, empathy appears to be very helpful. It's not strictly true that interrogation-room confessions constitute "witnessing against oneself" in a criminal case -- in one sense they are not -- but that kind of confession can be viewed as undercutting the Amendment V guarantee if the judge understands through an empathetic reading of the facts that such a confession is sufficiently analogous to courtroom testimony.

I happen think the empathy required to arrive at that determination is entirely appropriate. It might include an understanding of the detrimental and irreversible effects of coerced testimony. In fact, I think the very concept of state coercion as applied to Amendment V might be at the heart of such a ruling. I believe it's difficult to discuss the impact of coercion without empathy for the purportedly coerced, and I have serious problems with a justice system that would foreclose this line of reasoning because it was rooted in empathy for the accused, which in might lead to a purposivist reading of Amendment V and a ruling that protected the essential rights therein.
5.28.2009 8:22pm
Gramarye:
David Welker: While I agree with what you're saying about the doctrinal relevance of judicial empathy being in many respects the product of the judiciary that gets to define the "doctrine" in the first place, I think that you're overselling the role of the law and economics movement here. I think that what Obama would define as "empathy" isn't just a product of the law and economics movement, however, and many of the hard cases Obama has seen coming to the Court in recent years aren't exactly heavily influenced by the law and economics movement.
5.28.2009 8:25pm
OrinKerr:
Steve,

I think we're talking past each other.

In an effort to understand you better, can you unpack what you mean by making a statutory interpretation "plausible"? What does that mean, in your view? Perhaps you are taking an intentionalist view, with the idea that common sense can unlock the intent of the legislature under the assumption that the legislature had an intent and that it would enact a sensible rule over a less sensible rule?
5.28.2009 8:28pm
Steve:
There are many roads that lead to Rome. You can say "I'm going to assume the legislature intended the rule that makes more sense" or you can say "you know what, we have no way of knowing what the legislature intended, so I'm going to put that aside and choose whichever interpretation makes the most sense." I mean, at the end of the day, you do have to pick one. But while choosing the rule that "makes the most sense" (whether as part of an intentionalist process or otherwise) means that the law ends up depending on the length of the chancellor's foot, I still think it's far different from a theory of jurisprudence that says "whenever possible, I'm going to favor the individual over the corporation"!
5.28.2009 8:38pm
Officious Intermeddler:
But let me ask you, why are so many people talking past each other in this case? Given the apparent need for doctrinally relevant empathy, would you care to opine on the comments that reject all empathy out of hand with an air of absolutism? Is it that they never think of the first category of empathy as being properly called empathy, or that they're certain it's not the intended meaning? (I mean press and politicians' comments, not VC comments.)


For my part, it's because thirty years of watching judicial liberals operate has convinced me that they are profoundly unprincipled people. I do not trust anything that comes out of their mouths; people like Erwin Chemerinsky, Jack Balkin, and, yes, Barack Obama could say that the sky is blue and I would look outside my window just to be sure.

As such, when they talk about the desirability of empathy, I think they mean that they want judges to demonstrate the doctrinally-irrelevant flavor no matter how much they may claim that they want judges to demonstrate the doctrinally-relevant flavor. I think they're engaged in rhetorical sleight-of-hand to gull laypeople into thinking they're not really trying to elevate a results-oriented hack to the bench, when in fact that's precisely what they're trying to do.
5.28.2009 8:47pm
David Matthews (mail):
A second, and more practical, question, is of course, which definition of empathy is President Obama using, when he invokes the term.

If, in fact, he is talking about "doctrinally relevant" empathy, then it would be nice to see examples of where Chief Justice Roberts, before his confirmation, could be seen to be so lacking in such empathy that Obama was justified in rejecting his nomination on that ground (which was his sole given justification.)

Also, if the discussion, as President Obama has framed it, is referring to "doctrinally relevant" empathy, it is hard to see how a person would be precluded from such empathy, or imbued with such empathy, based purely on questions of ethnicity, gender or background.
5.28.2009 8:48pm
David Welker (www):
Gramarye,

My point is to point at the law and economics movement as one specific example of where considerations of empathy have been used by the judiciary. My point is that to point out that to oppose the use of empathy in judicial decision-making is to really oppose the law and economics movement, at least to the extent that this movement has been introduced via judicial decisions. I am definitely NOT asserting that this is the only context in which empathy is employed.
5.28.2009 8:50pm
Jack B.:
Empathy isn't directly relevant to the legal issue, at least as I have framed it: The only issue is the timing of when the claim was filed.


In this hypothetical, I understand the judge's problem.

But, no matter how the judge tries to twist and turn away on statutory grounds, the Eighth amendment issue has to be decided.
5.28.2009 8:55pm
David Welker (www):

I think they're engaged in rhetorical sleight-of-hand to gull laypeople into thinking they're not really trying to elevate a results-oriented hack to the bench, when in fact that's precisely what they're trying to do.


I think that this quote is a good example of how this debate about empathy is really a debate about whether consequences should be considered in judicial decision-making.

I would suggest that someone who uses the term "results-oriented hack" is at least slightly opposed to considering the consequences in judicial decisions. What such people think judges should do when there is genuine ambiguity in the law if they do not consider consequences is beyond me.
5.28.2009 8:59pm
BGates:
But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.

One would think that a woman who struggled to overcome the Bronx public schools to advance her career in public service would have empathy for someone who struggled to overcome dyslexia to advance his career in public service, even if the latter was a wise Latina and the former was just some white guy. Ironically, Sotomayor's most controversial decision would have gone the other way if she had gone by either a straightforward reading of the law, or by empathy, instead of making a ruling based on identity politics.
5.28.2009 9:04pm
Steve:
One would think that a woman who struggled to overcome the Bronx public schools to advance her career in public service would have empathy for someone who struggled to overcome dyslexia to advance his career in public service, even if the latter was a wise Latina and the former was just some white guy.

Well obviously, if you rule against someone you must not have had any empathy for them. That's of course what the word means. Interesting how "identity politics" led Judge Sotomayor to rule against the Hispanic plaintiff, too.
5.28.2009 9:13pm
cboldt (mail):
-- I would suggest that someone who uses the term "results-oriented hack" is at least slightly opposed to considering the consequences in judicial decisions. What such people think judges should do when there is genuine ambiguity in the law if they do not consider consequences is beyond me. --
.
The "results orient hack" moniker fits when the decision is based on an obvious misread of relevant or determinative precedent. I.e., not on a "close cases" where a significant majority of independent (and honest) second guessers agree the statute or binding precedent admits flexibility.
.
Every interested observer not only considers, but is usually concerned about the consequences.
5.28.2009 9:20pm
David Welker (www):
cboldt,

Maybe the "moniker" (some would call it an epithet) "results-oriented hack" is a reflection of a disagreement about whether ambiguity exists or not.

I tend to think that people can be very selective in their ability to see ambiguity or not. If that is the case, I am not sure if the problem lies with the person who fails to see ambiguity or with the so-called "results-oriented hack."

I should further note that the phrase "results-oriented hack" does seem to imply that there is something wrong with considering results, also known as consequences. Maybe conservatives should come up with a better insult if they too, are concerned with results or consequences. Because, apparently the disagreement is whether a particular case is one in which consequences should be considered, and not whether consequences ever should be considered.
5.28.2009 9:27pm
OrinKerr:
Steve:
There are many roads that lead to Rome. You can say "I'm going to assume the legislature intended the rule that makes more sense" or you can say "you know what, we have no way of knowing what the legislature intended, so I'm going to put that aside and choose whichever interpretation makes the most sense." I mean, at the end of the day, you do have to pick one. But while choosing the rule that "makes the most sense" (whether as part of an intentionalist process or otherwise) means that the law ends up depending on the length of the chancellor's foot, I still think it's far different from a theory of jurisprudence that says "whenever possible, I'm going to favor the individual over the corporation"!
Steve, I very much appreciate your response, although I'm a bit puzzled by your answer.

I gather that in the first part of the answer that you recognize that the intentionalist claim is often a legal fiction -- that is, it's a lawyer's trick covering up a policy call. Stripped of all the legalese, the idea is that the judge does what the judge feels is a good idea, but he then dresses it up as if it were a legal conclusion based on the intent of the legislature. On that, we seem to agree.

You then say that this is different from "whenever possible, I'm going to favor the individual over the corporation!" But why is it different? Is it different because candor is different from dishonesty? Or is it different because you don't think the relevant judge is likely to be as simple minded as *always* favoring the individual over corporations?

Along those lines, I think it's worth noting that there was a recent Supreme Court Justice who did say almost exactly what you suggest no judge would actually say: According to Jeffrey Rosen's book on the Supreme Court, liberal lion Justice Douglas boasted to a friend, "I'm ready to bend the law in favor of the environment and against the corporations." It sounds like that was indeed Justice Douglas's theory of jurisprudence.
5.28.2009 9:27pm
Frater Plotter:
It seems to me that the execution example is strange, and I would expect judicial review to inquire deeply into the intent of the legislature in enacting such a law.

If the purpose of the law is to forbid the state from doing something wrongful, then the 48-hour limit comes across as Kafkaesque. The state in the case of Prisoner B finds itself in the position of saying, "We know that we are doing something wrongful, but we are going to do it anyway because you didn't object before the deadline." The point of the law is to ensure the state doesn't act immorally ... but it gets to do so anyway if a particular procedure is not followed?

That is, the law seems to countenance certain willfully wrong actions on the part of the state. You don't get away with doing wrong just because the other guy didn't tell you it was wrong according to your preferred time frame. And a judge might reasonably find a law that countenanced same to be an affront to morality and a violation of (among other things) the protection from cruel and unusual punishment.

On the other hand, if the purpose of the statute is to ensure that there is adequate time to hear appeals, and that the appeals process cannot be used to indefinitely stay an execution -- which would, after all, be unjust -- then it is entirely reasonable and in accordance with due process.

So it might come down to the way in which the law was framed and discussed. Did it come out of a concern on the part of the people and the legislature that certain means of execution were cruel? Or did it come out of a desire to codify a process for appealing a means of execution?
5.28.2009 9:31pm
cboldt (mail):
-- I should further note that the phrase "results-oriented hack" does seem to imply that there is something wrong with considering results --
.
I disagree.
5.28.2009 9:43pm
David Welker (www):

I gather that in the first part of the answer that you recognize that the intentionalist claim is often a legal fiction -- that is, it's a lawyer's trick covering up a policy call. Stripped of all the legalese, the idea is that the judge does what the judge feels is a good idea, but he then dresses it up as if it were a legal conclusion based on the intent of the legislature. On that, we seem to agree.


I disagree with you both and think you are both cynics.

Obviously, in many cases there is no way to divine the legislatures intent perfectly. But, one could honestly look at the statute and try to understand what the legislature was doing when it made relevant law covering the same topic and try to fill in the gap in a way that seems consistent with what else the legislature is doing. One need not fill in all ambiguities with pure personal preference.

This whole nihilistic and cynical attitude about legislative intent seems to be very popular since Scalia made very flawed arguments about legislative intent in his book, A Matter of Interpretation. Or maybe this sort of nihilism was popular even before then.

Of course, sometimes the law absolutely does run out and you absolutely have no idea whatsoever what the legislature would do. But, that isn't every case where attempts to use legislative intent is used to fill an ambiguity in the law either. It isn't a totally useless process to look at related laws and the legislative debates surrounding those laws to fill in the gap in a way consistent with those other laws.
5.28.2009 9:47pm
catchy:
Thanks for the post and clearly drawing a distinction I was trying to get at in the comments to Ilya Somin's recent posts.

The distinction seemed implicit to me in some of Sotomayor's speech, e.g.:

"I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

By my read, appropriate = doctrinally relevant cases, and inappropriate = doctrinally irrelevant cases.
5.28.2009 9:52pm
David Welker (www):
cboldt,

There is nothing to disagree about. The phrase "results-oriented" takes two out of three words in the phrase "results-oriented hack" and the word "hack" is substance less. So, the phrase on its face does seem to focus on condemnation of being "results-oriented."

Now, you can argue about what the phrase "really" means when you consider its actual meaning as used. But, you can't really argue that the phrase means from a plain-language perspective.

Basically, the plain language perspective of what the phrase means is not really consistent with the actual substance you have given the phrase. Apparently, what the phrase really means is that it is bad to be results-oriented, except for when it is not. But, it does seem to be, on its face, a blanket condemnation of being results-oriented.
5.28.2009 9:54pm
OrinKerr:
David,

I am not suggesting that *all* reliance on legislative intent is like that; such a position would be foolish, in my view. Rather, I'm just unpacking Steve's view of what he means by "plausible" versus "silly" interpretation.

Put another way, there's an important difference between a judge who is genuinely looking for legislative intent in the legislative materials and a judge who is picking a rule he likes and then arguing that it *must* have been what the legislature intended because surely the legislature would have only enacted a sensible rule.
5.28.2009 9:56pm
David Welker (www):
Orin,

Thanks for the clarification. Then I agree with you on this point.
5.28.2009 9:59pm
Honestly cynical:
But, one could honestly look at the statute and try to understand what the legislature was doing when it made relevant law covering the same topic and try to fill in the gap in a way that seems consistent with what else the legislature is doing.

(Emphasis in original comment.)

An honest look is politically difficult. That's understating it. Politically suicidal.

Our republic's legislature is —as Senator Durbin tells us— owned by the banksters.

Policy on crime and punishment is made with as little regard for common sense and common sentiment as the policy to reward AIG's executives with ~$200 million in bonuses.

In Professor Kerr's hypothetical, the hypothetical legislature was looking to pick up cheap votes—or afraid of looking soft on crime. Afraid of being mugged by paid shills in the print propaganda, and left for dead by talking heads on hit-and-run TV.

The republic won't abide honesty. The optics aren't there.
5.28.2009 10:07pm
Steve:
I gather that in the first part of the answer that you recognize that the intentionalist claim is often a legal fiction -- that is, it's a lawyer's trick covering up a policy call. Stripped of all the legalese, the idea is that the judge does what the judge feels is a good idea, but he then dresses it up as if it were a legal conclusion based on the intent of the legislature.

That's not at all what I was hoping to convey, although of course I acknowledge that some judges are simply results-oriented. Rather, what I meant is that there's more than one theory of statutory interpretation that would allow a judge to consider whether a proposed interpretation comports with common sense. I didn't mean that a specific judge would oscillate between different modes of interpretation, but that multiple judges employing multiple modes would still consider what I see as a normal thing for judges to look at.

Along those lines, I think it's worth noting that there was a recent Supreme Court Justice who did say almost exactly what you suggest no judge would actually say: According to Jeffrey Rosen's book on the Supreme Court, liberal lion Justice Douglas boasted to a friend, "I'm ready to bend the law in favor of the environment and against the corporations."

I'm not surprised, but I hope you would agree with me that Justice Douglas pretty much exemplifies the outer boundary of liberal judicial activism. I mean, the man issued an injunction against the Vietnam War, for heaven's sake.
5.28.2009 10:12pm
cboldt (mail):
-- There is nothing to disagree about. --
.
I disagree with your "the phrase 'results-oriented hack' does seem to imply that there is something wrong with considering results," with either "results-oriented hack" or "results-oriented" being the subject phrase. There is nothing wrong with considering results, per se.
.
I am going to adhere to a blanket condemnation of results-oriented jurisprudence. AFAIK, condemnation of a "results oriented" approach is common. IOW, judges universally deny they have engaged in it. Ergo, condemning a results-oriented approach is hardly controversial.
5.28.2009 10:17pm
Anderson (mail):
The problem with the one-hour-late bit, or the SCOTUS case referenced above where the trial court put the wrong deadline in an order, is that those look like they're purely mistakes the lawyer made, not mistakes attributable to the client.

Hence "excusable neglect" and other doctrines invented to alleviate some of the hardship.

Let's make Prof. Kerr's example perhaps more interesting:

The state in question just enacted the 48-hour-deadline statute in response to problems with last-minute petitions. It hasn't been interpreted yet.

The state's jurisprudence has a doctrine applied re: comparable rules, where if one party misses a deadline, the opposing party has to show prejudice from the delay for the lateness to bar the petition.

Is it "empathetic" to suggest that the doctrine should be applied in this case?
5.28.2009 10:19pm
Quixotic (mail):
I've often thought about how to apply the "shocks the conscience" standard, or the "outrageous conduct" standard, used in several areas of the law. Problem is the peculiarities of my moral character (or semi-moral character, some might say) might make my determinations different that that of the hypothetical reasonable person. So this is an area in which "empathy" might be pertinent - not in the Hallmark Card sense - but in the sense of attempting to understand the moral sensibility of the community.
5.28.2009 10:24pm
Officious Intermeddler:
David Welker: There is simply an enormous amount of daylight between, on the one hand, giving due consideration to prudential factors when textual, historical, functional, and doctrinal modes of decisionmaking are insufficiently determinative and, on the other, starting with the preferred result and working backwards to reach it, if necessary folding, spindling, and mutilating text, history, function, and doctrine along the way.

I regard the former as perfectly natural and acceptable. I regard the latter as results-oriented hackery -- deeply unprincipled and antithetical to liberty. And yet it nonetheless appears to me to be the sine qua non of judicial liberalism, despite various attempts at obfuscation and earnest claims to the contrary.
5.28.2009 10:29pm
cboldt (mail):
-- On the other hand, the role of empathy in deciding whether to hear Prisoner B's claim despite being filed an hour late is genuinely controversial. --
.
Thinking about this a little bit, I see the "courts are barred from considering claims in the last 48 hours" in a similar light as habeas stripping. The courts don't need to have any empathy whatsoever in order to justify asserting their independence as having a right to hear a claim, regardless of a legislative or executive assertion to the contrary. That's a turf battle between the branches.
.
Sotomayor noted a point in her Suffolk piece, on the question of legislative caps on civil damages. She thinks they are inappropriate.
5.28.2009 10:36pm
David Welker (www):
cboldt,

My point is that, on its face, the phrase "results-oriented hack" is unenlightening about what the real objection is. You would have to know about all the social meanings being attached to the phrase "results-oriented" in this context.

I think one could come up with a much more informative insult than taking a neutral phrase "results-oriented" and turning it into an epithet. As you concede, in some decisions, real world consequences will be decisive. In these cases, the decision can be accurately characterized as "results-oriented" (if we remove the baggage you attach to the phrase where only a subset of results-oriented decisions are considered "results-oriented."

Anyway, at the end of the day, I don't really care what insult you prefer for those you disagree with. I just think this one is particularly uninformative.
5.28.2009 10:54pm
D:
I think Anderson hits on a good example — he's basically describing Woodford v. Ngo from a couple years ago. If I remember it right, the issue was that the Prison Litigation Reform Act said that no federal claim about prison conditions could be brought unless available state administrative remedies were exhausted. The word "exhausted," though, could mean multiple things. If cases concerning similar statutes have interpreted exhaustion to include good faith efforts to comply, despite minor procedural mistakes, do you import that interpretation? (I haven't read the case in a while, I might be misstating the issue.) Or do you say exhaustion means 100% compliance?

What's the role of empathy in a case like this? And what's the role of common sense? Are they the same thing? Both sides look to the "purposes of the PLRA"; can you talk about that without resorting to attempting to consider (empathically) the positions of various parties? If so, which parties should the court consider among legislators, prison administrators, and prisoners?
5.28.2009 10:57pm
David Welker (www):

And yet it nonetheless appears to me to be the sine qua non of judicial liberalism, despite various attempts at obfuscation and earnest claims to the contrary.


Of course. Everyone you disagree with must not only be wrong. They must also be liars and deceitful, either to others or to themselves or both.
5.28.2009 10:57pm
D:
A related question: Orin, what do you think of Hart and Sacks' argument that, when statutory text is ambiguous, courts should assume that it is the product of "reasonable persons pursuing reasonable purposes reasonably"?
5.28.2009 11:02pm
cboldt (mail):
-- As you concede, in some decisions, real world consequences will be decisive. --
plonk.
5.28.2009 11:03pm
David Welker (www):
If there is an actual thought behind your use of the word "plonk" perhaps you should actually articulate it.

Of course, perhaps you are unable to articulate anything, which wouldn't surprise me either.
5.28.2009 11:14pm
cboldt (mail):
-- If there is an actual thought behind your use of the word "plonk" perhaps you should actually articulate it. --
.
At your invitation. You have misrepresented what I said, and therefore I choose to consider you a twit and belay acting as though you possess even a smidgen of good faith. Rather that irritate other here with an extended exchange of insults to that effect, I chose the traditional one word response, "plonk" that is conventionally used to express those sentiments.
5.28.2009 11:21pm
Frater Plotter:
As regards "shocks the conscience": This expression originates from Rochin v. California in which police officers had a suspect's stomach forcibly pumped to extract a piece of evidence (namely, two capsules of morphine). The Court held that this conduct was tantamount to torture:
[W]e are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism [...]. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents -- this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.
(Emphasis mine.) However, the case was decided not on the grounds that government agents should not engage in shocking conduct, but rather on the notion that evidence wrested from the body of the suspect was subject to the right against self-incrimination:
"[W]e find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant's body by physical abuse."
That said, another portion of the Court's ruling in Rochin may be more relevant to the present discussion. Citing Malinski v. New York, the Court says:
Regard for the requirements of the Due Process Clause "inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses."
This is -- surprise, surprise -- an appeal to a standard of justice which goes beyond U.S. jurisprudence. It asserts that there are cultural standards of justice shared by "English-speaking peoples", and that these do not countenance torture.
5.28.2009 11:26pm
OrinKerr:
Steve:
I'm not surprised, but I hope you would agree with me that Justice Douglas pretty much exemplifies the outer boundary of liberal judicial activism. I mean, the man issued an injunction against the Vietnam War, for heaven's sake.
I have been repeatedly informed by commenters here that there is no such thing as liberal judicial activism, and that if a question gets to the Supreme Court it must be exceedingly difficult and there isn't a "correct" answer. Given that, I cannot agree that Justice Douglas was a judicial activist: I must believe that whether the courts should enjoin the Vietnam War must have been a close and difficult issue and very very ambiguous.

;-)
5.28.2009 11:46pm
David Welker (www):
cboldt,

First of all, you need to get your position straight. Either I am too foolish to understand you (i.e. a twit) or I am lacking in good faith. I think that, in most cases, if I was lacking in good faith, that would imply an understanding, but one that I refuse to display.

Overall, I am sorry that you do not have the patience to have an adult conversation but prefer to behave in an immature manner. In the real world, you will find that the precise idea that you wish to convey is not always perfectly conveyed even to those you are neither dealing with you in bad faith or fools.

If you don't have time to respond, I think a non-response is preferable to the rudeness you have here displayed.
5.29.2009 12:05am
OrinKerr:
Cboldt, David,

Please play nice. I don't have the time to figure out who started it, so that goes for both of you.
5.29.2009 12:12am
Anynonyno:
It seems to me that the very existence of doctrinally relevant empathy (and the fact that there are lots of areas of the law where it comes into play) is enough to demonstrate that liberals are basically right about the empathy issue.

Is it appropriate, when deciding who to nominate as a judge/Justice, to consider whether they have empathy? Yes, obviously, because there are many instances in which empathy is doctrinally relevant.

So what exactly is conservatives' objection to empathy? It seems to be based on a straw man, pretty much as Orin described it: the idea that "empathy" means bending the law in favor of litigants with whom the judge sympathizes. But it doesn't mean that. Does anyone actually have a quotation from Obama, Sotomayor, or any other relevant person (I'd exclude Justice Douglas as irrelevant) that seriously indicates that judicial liberals use the word "empathy" as code for bending the law? I'm pretty sure the answer is no, because the closest thing I've seen is this quotation from Sotomayor that -- even in Ilya's uncharitable interpretation -- doesn't amount to saying that she'd bend the law.
5.29.2009 12:15am
cboldt (mail):
-- If you don't have time to respond, I think a non-response is preferable to the rudeness you have here displayed. --
.
For future reference, "plonk" itself indicates an intention to avoid interaction, regardless of having time.
5.29.2009 12:30am
MASSACHUSETTS v LAIRD (www):
I cannot agree that Justice Douglas was a judicial activist: I must believe that whether the courts should enjoin the Vietnam War must have been a close and difficult issue and very very ambiguous.


Commonwealth of Massachusetts v Laird (1970):
Mr. Justice DOUGLAS, dissenting.

  . . . .

I would set the motion for leave to file down for argument and decide the merits only after full argument.
5.29.2009 1:02am
OrinKerr:
Anynonyno,

When Souter retired, Presidnet Obama described empathy as the quality of "understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes." Perhaps I am just not thinking of the right doctrine, but I think it is at the very least nonobvious that arriving at a "just outcome" through identifying with a person's "hopes" is doctrinally relevant.
5.29.2009 1:59am
OrinKerr:
Anynonymo,

If I can add a follow up, I'm intrigued by what I take to be a change in voice between your comments last week and now. You will recall that I had written in the comment thread that "when I was a clerk, my judge was not making policy. He was reading cases and deciding disputes on the legal merits in light of the record and standard of review." You responded rather harshly:
Nobody who can describe appellate judging in such a naive or disingenuous way deserves to be a law professor.
In this thread, however, you seem to be coming from a very different school of thought: now judges are strictly following doctrine, and it is unthinkable (a "straw man") that someone would endorse the use of empathy to "bend the law."

It's up to you, of course, but I would be interested in how you reconcile your comments -- the first seems to be dismissive of the idea that judges aren't making policy, and the second seems to be dismissive of the idea that anyone would endorse the idea that judges should make policy.
5.29.2009 2:17am
ohwilleke:
Two thoughts on the one hour late case.

1. The typical standard for relief from deadlines is "excusable neglect" which calls for empathy to a greater extent.

2. Empathy also implicates a proper remedy for a breach. Most litigation defaults are punished with monetary sanctions, not default of the merits of a matter. But, applicable law rarely expressly specifies a specific mandatory sanction even when there are deadlines.
5.29.2009 2:38am
David Welker (www):

For future reference, "plonk" itself indicates an intention to avoid interaction, regardless of having time.


For future reference, absent situations where people have physical access to you in some way (i.e. via IM or your telephone number) the best way to "signal" an intention to avoid interaction is to not interact. It is not as though I was SO excited by your insight that I would have continued to direct comments towards you. In fact, your use of the bizarre term "plonk" has actually increased interactions.

Not only that, but even more significantly, your behavior was rude and immature. I don't necessarily expect you to exhibit the maturity that would be required now to recognize that.
5.29.2009 3:11am
David Welker (www):

President Obama described empathy as the quality of "understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes." Perhaps I am just not thinking of the right doctrine, but I think it is at the very least nonobvious that arriving at a "just outcome" through identifying with a person's "hopes" is doctrinally relevant.


I think there is an important distinction between "people's hopes and struggles" and "a person's hopes." That former could properly be interpreted as coming to an understanding of the social norms that one would then use to identify the likely consequences of choosing one interpretation over another in a case where the law is ambiguous. The latter sounds as though one is prepared to favor a particular litigant -- and I am certain that Obama is not advocating for favoritism in judicial decision-making. He is arguing for understanding of consequences -- which does require an understanding of social norms. And understanding is greater when one can identify with hopes and struggles that are an essential ingredient in social norms.

Finally, I think your "doctrinally relevant" point is missing a whole class of cases where empathy is sometimes appropriate, and that is cases where a gap in the law must be filled (i.e. legal doctrine has run out) and it is important to evaluate real world consequences in order to resolve the case. Of course, in Obama's view such cases are rare. (i.e. 99% of cases can be resolved by reference to conventional legal doctrines). Of course, in my view Obama is understating the prevalence of such ambiguity, especially at the level of the Supreme Court.
5.29.2009 3:21am
OrinKerr:
David,

I think that is the most generous reading of what Obama is saying -- generous at least for the purposes of this debate -- but I don't think it is the most plausible one.
5.29.2009 3:31am
AF:
Orin,

I think your distinction between doctrinally relevant and irrelevant empathy is a good one. I think it sharpens and clarifies the issue in dispute: in what circumstances is empathy doctrinally relevant? However, I don't think it actually resolves any dispute.

As an example of how this does not resolve disputes, I disagree with both of your examples in which you suggest that empathy is not doctrinally relevant. With respect to your deadline hypothetical, it's hard to think of a situation where empathy is more doctrinally relevant, in that as a matter of doctrine courts have always had equitable power to excuse missed deadlines for various reasons.

With respect to Ledbetter, it is perfectly consistent with doctrine to resolve statutory ambiguities with an eye to the practical consequences and purposes of the statute. The dissent in Ledbetter was not putting a finger on the scale of the plaintiff, but choosing the interpretation of the statute that, as a practical matter, was in their view more consistent with the statute's purpose.

The point here is not to reargue these things, but just to show that while your distinction between doctrinally relevant and irrelevant empathy is clarifying, it does not mandate the particular conclusions that you draw.
5.29.2009 11:14am
Officious Intermeddler:
Everyone you disagree with must not only be wrong. They must also be liars and deceitful, either to others or to themselves or both.


Not everyone. Just judicial liberals.
5.29.2009 5:29pm
Leo Marvin (mail):
I think Obama's statements are ambiguous enough to confirm anyone's expectations, so here's my take. It's based on my own empathy, intuition and probably a fair amount of projection:

1. If you think William O. Douglas used empathy in ways that were doctrinely irrelevant and untoward, Obama would probably agree with you.

2. If you think Justice Breyer uses empathy in ways that are doctrinely irrelevant and untoward, you'll probably feel the same way about what Obama has in mind.

3. If you think Justice Kennedy uses empathy in ways that are doctrinely irrelevant and untoward, you've wandered into DangerMouse's nightmare. Run!
5.29.2009 10:36pm
Anynonyno:
Orin,

I'm coming back to this way too late and you may well never read this, but I'll just give a quick response anyway: I don't think the terms "empathy," "bending the law," and "making policy" mean the same thing, so I don't think there's a contradiction between the things I've said.

I think it's simple realism to recognize that CoA judges do a certain amount of policymaking. I don't think this means they act lawlessly. And they do this policymaking whether or not they exercise empathy while doing it. And one hopes that in the course of their decisionmaking they refrain from "bending the law" (although that's probably not a terribly useful term).

Also, I'm kind of flattered that you'd remember an insult that I directed at you some time ago. I belatedly apologize for my tone in that comment.
5.30.2009 9:19pm
OrinKerr:
Thanks for the explanation, Anynonyno. And apology accepted, much appreciated.
5.31.2009 1:08am

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.