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Understanding the Point at Issue in the Judicial Empathy Debate:

Orin's recent post helpfully clarifies some of the relevant issues in the debate over judicial "empathy." I completely agree with Orin that some cases require judges to be aware of a litigant's mental state. For example, a case alleging illegal intentional race discrimination requires judges to assess evidence indicating whether or not the defendant really did intend to discriminate. As Orin notes, hardly any one denies this.

I. Empathy Goes Beyond Merely Understanding a Litigant's Mental State.

Many of those advocating "empathy" as a tool for judicial decision-making define the term far more broadly. "Putting oneself in another's shoes" - the conventional metaphor for empathy - entails a lot more than simply knowing what the other person thinks or feels. For example, I am aware that a committed anti-Semite hates and fears Jews. In that very limited sense, I might be said to empathize with him. However, I cannot feel his emotions as if they were my own, because they diverge too much from my worldview. Although I can understand the content of his beliefs, I cannot really put myself in his shoes.

To take a more immediately relevant example, consider the Lily Ledbetter case, which many advocates of judicial empathy point to as the paradigmatic instance of insufficient empathy by the conservative justices. Surely those justices understood that Ledbetter felt frustrated and perhaps angry when judges ruled that her sex discrimination claim was barred by the statute of limitations. They also likely realized that she believed she was the victim of an injustice. One would have to be a fool not to see these things.

When critics of the Ledbetter decision claim that the conservative justices lacked "empathy" for the plaintiff, they mean not that the conservative justices were unaware of her feelings, but that they failed to identify with them sufficiently. As Barack Obama recently put it, "the quality of empathy" he looks for in judges includes "understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes" [emphasis added]. Advocates of judicial empathy claim not only that judges sometimes must determine the mental states of litigants, but also show sympathetic "identification" with them. At the very least, they want judges to put themselves in litigant's shoes to a far greater extent than merely knowing what the litigants think or feel. And they want that kind of empathy to be a basis for judicial decisions in some important cases.

It is this position that I consider vulnerable to the objections I raised in my Los Angeles Times exchange with Erwin Chemerinsky. In my view, reliance on empathy tends to introduce dangerous biases and often leads to less accurate assessment of relevant empirical questions than the use of more analytical methods. I consider it inevitable that most judges - and most people - feel greater empathy for those most like themselves. Thus, abjuring reliance on empathy is essential if judges are to make impartial decisions, as is their duty in a legal system based on the rule of law.

II. Empathy and the Assessment of "Real-World Impact."

Finally, I may disagree somewhat with Orin's claim that the use of empathy is needed in cases where "[t]he 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." If Orin means merely that such assessments sometimes require knowledge of those people's mental states, I don't think there is any dispute between us. But, as discussed above, that is not the kind of "empathy" that Obama and others have in mind.

"Assessments of real-world impact" do not require the use of empathy in the broader sense meant by Obama. To the contrary, such assessments are better conducted by means of systematic analysis that abjures personal identification with the litigants as much as possible. For example, social scientists often conduct rigorous studies that usefully analyze the effects of policies on people whom they do not know and have little empathy with. By contrast, as I tried to explain in the LA Times debate, relying on empathy is likely to actually blind judges to the less immediately obvious indirect effects of a decision.

In sum, no serious commentator denies that judges sometimes need to be aware of the mental states of litigants. The question is whether they should base important decisions on a form of "empathy" that goes well beyond that.

UPDATE: Just to be clear, it is not my purpose to defend the Ledbetter decision. I don't know enough about the relevant legal issue to have any strong opinion on whether it was correctly decided. I do think that it should have been decided without relying on empathetic identification with either side.

OrinKerr:
, Ilya swrites:
"Assessments of real-world impact" do not require the use of empathy in the broader sense meant by Obama. To the contrary, such assessments are better conducted by means of systematic analysis that abjures personal identification with the litigants as much as possible. For example, social scientists often conduct rigorous studies that usefully analyze the effects of policies on people whom they do not know and have little empathy with. By contrast, as I tried to explain in the LA Times debate, relying on empathy is likely to actually blind judges to the less immediately obvious indirect effects of a decision.
I would fall back on my suggested distinction between doctrinally relevant and doctrinally irrelevant empathy. The identity of a litigant -- taken as something separate from the facts of the dispute or the nature of the claim -- is not generally relevant to legal doctrine. As a result, it would be an example of doctrinally irrelevant empathy to be influenced by the identify of the party apart from the legal doctrine at issue in the case. (Indeed, that's why we have recusal rules -- judges can't judge in the case if they would be impartial based on the party involved.)
5.29.2009 1:09am
SMatthewStolte (mail):
I am curious what role you think emotion plays in making judgments. Do you believe that it is a mere datum which the non-emotional mind can examine?

I'm thinking of some of Nussbaum's arguments on this point.
5.29.2009 1:21am
rlee:
It seems like maybe a distinction is needed between empathy as a tool and empathy as a quality. As a quality, it seems like it could exist in people in different forms, i.e. people are able to empathize with different populations than others. But in this regard, no one lacks empathy--they merely lack it with respect to certain people. In this way, it seems like a good idea to have justices with different empathies. So it's not that the conservative justices _lack_ empathy, they just have different kinds. I guess I'm analogizing this to the Dem responses to GOP concerns that Sotomayor may be unduly influenced by her race, that hey, white people _also_ have a race that affects who they are. This isn't to say I think empathy should be a judicial tool, but I think it's disingenuous to suggest one can abjure empathy--it seems like either you identify with a person, or you don't, regardless of efforts either way.
5.29.2009 1:24am
SMatthewStolte (mail):
Is there a distinction between empathy and sympathy (in the sense of the sympathetic imagination rather than in the sense of feeling sorry for someone)?
5.29.2009 1:36am
Ilya Somin:
This isn't to say I think empathy should be a judicial tool, but I think it's disingenuous to suggest one can abjure empathy--it seems like either you identify with a person, or you don't, regardless of efforts either way.

When I say that judges should abjure the use of empathy, I mean that they shouldn't base judgments on it, not that they shouldn't ever feel empathy for anyone (which would be impossible and undesirable).
5.29.2009 1:48am
Ilya Somin:
I would fall back on my suggested distinction between doctrinally relevant and doctrinally irrelevant empathy. The identity of a litigant -- taken as something separate from the facts of the dispute or the nature of the claim -- is not generally relevant to legal doctrine. As a result, it would be an example of doctrinally irrelevant empathy to be influenced by the identify of the party apart from the legal doctrine at issue in the case. (Indeed, that's why we have recusal rules -- judges can't judge in the case if they would be impartial based on the party involved.)

I agree with most of this. But I think that Orin's concept of "doctrinally relevant" empathy is very different from what Obama and others have in mind when they say judges should rely on empathy to decide certain important cases.
5.29.2009 1:49am
Ilya Somin:
I am curious what role you think emotion plays in making judgments. Do you believe that it is a mere datum which the non-emotional mind can examine?

It depends on the particular judgment and emotion in question. I think emotions of various kinds inevitably influence judgements to some degree. However, I think judges should strive to base decision on reasoned analysis as much as possible.
5.29.2009 1:52am
secade (mail):
Yah, there is a school of thought here. See SSRN dwnld with reference to Sotomayer reasoning in the "Jocks" case. Incredibly, she held that police have no legal duty to consider exculpatory evidence, prior to arrest. She tossed a jury award, that found a cop usurped the law, based on a depraved private motive: injurious retaliation. Her judgment is perverse to the point of subversion.


Abstract

This Article tracks the movement to dismantle the system of tort compensation by attacking trials as the means to fix damages. Many proponents are behaviorial law and economics scholars. They argue that human irrationality justifies removing damages from a populist trial system. Under their approach, bureaucrats would impose their own assessment of compensible risk and the value of intangible losses on the public. The purpose of this Article is to uncover the normative assumptions and real agenda of this movement--especially as they implicate democratic values--by using one example as a focal point. It is the device of comparability review, wherein appellate courts, many of them federal, reverse damages on the sole ground that they do not cohere with amounts given in allegedly similar cases. This flouts a foundational principal of remedies and a background assumption of American political values, i.e., that damages are supposed to be individualized to the particular victim.
------------------
Top-down populism gave us the plagues of the 20th Century: Nazism and Communism. A judicial candidate who is not constrained from producing determinations grounded on elitist whims, is a carrier of an ideological disease. Should Sotomayer get to turn SCOTUS into a sandbox in which she can play robed Behaviorist, those who suffer the delusion that she is a populist, ingrained with public purpose, WILL be unpleasantly surprised. She is unfit.
5.29.2009 2:45am
Christopher M (mail):
The idea that judges are going to perform "systematic analyses" analogous to the "rigorous studies" of social scientists seems rather fanciful. A judge who has to decide, say, where to place the burden of proof for some element of a vaguely-written anti-discrimination statute has neither the resources nor anything remotely resembling the training to do a series of rigorous studies to try to figure out what information different people are likely to know, what the practical power-shifting effect of given legal rules are likely to be, and so on. Indeed, the situation involves so many variables that it's not even clear what kind of study you would do if you had the resources. "Empathy" in the relevant sense just seems to me like the ability to understand and consider a wide range of real-world aspects of the litigants' situations, and the situation of other people who will be affected by the ruling.

I think Orin dislikes the idea because he vastly overestimates the degree to which "legal doctrines" determine the result of the small fraction of appellate cases we're talking about here. Ilya seems to avoid that mistake, but he seems to understand "empathy" as a matter of emotions that tend to cloud judgement; whereas I think Obama and the defenders of "empathy" mean, instead, a primarily intellectual ability to understand how the world actually works for a range of people, especially those outside the elites.
5.29.2009 2:53am
Christopher M (mail):
I should say, rather, that "empathy" for Obama involves a combination of the intellectual ability I described, with an openness to taking the concerns of less powerful litigants seriously, i.e. feeling and experiencing them as important factors to be weighed in the judicial balance. (I.e., "understanding and identifying with people's hopes and struggles.")
5.29.2009 2:56am
David Welker (www):
Ilya,

I think you are probably going misinterpreting Obama. I don't believe Obama is saying that judges should base their decision on their feelings about Lily Ledbetter in particular. That position would imply that it would be okay to come to a different conclusion when a less sympathetic plaintiff comes along with essentially identical facts. That would be pretty unreasonable.

What I think he is saying is to identify with the class of individuals who are impacted, including both business defendants and individuals to determine the effects. So, exercising empathy, one might come to an understanding that in many situations individuals don't typically demand to know the salaries of their coworkers and thus are not in a position to instantaneously detect discrimination. One would assume that Congress would also be aware of that norm, and take it into consideration when considering how to resolve the ambiguity about when the 180-day period starts.

Now, it may be that your definition of empathy is just different than mine and probably Obama's. Under you definition, you may think that identifying and considering a social norm (i.e. the tendency of people to not intrude into their coworker's personal lives with detailed questions about salary) does not require empathy. But, under the definition of empathy that I would employee and probably Obama would employee, consideration of such a social norm is by definition an act of empathy.

What I highly doubt and that you seem to be suggesting is that Barack Obama is actually advocating for favoritism for certain individuals or groups via empathy. If you were right, then Obama would be far outside the mainstream of liberal thought. I don't think Obama is far outside the mainstream amongst liberals. I think it is highly improbable that he believes that actual favoritism is acceptable in judicial decision-making.

Considerations of struggles and aspirations and situations is precisely how one comes to an intellectual understanding of social norms. And understanding social norms is important to understanding consequences. That Obama is talking about understanding struggles and aspirations does not imply that he favors a sort of empathy that degenerates into favoritism.
5.29.2009 3:00am
secade (mail):
See 2:45 AM

Posted SSRN in "link" section. Didn't take.
5.29.2009 3:03am
Malvolio:
When critics of the Ledbetter decision claim that the conservative justices lacked "empathy" for the plaintiff, they mean not that the conservative justices were unaware of her feelings, but that they failed to identify with them sufficiently.
How would it help the situation if they did? For every Lily Ledbetter who would benefit from laxity on statute of limitation, there's a shareholder in Goodyear (or a thousand shareholders) who will suffer financially because Goodyear's lawyers cannot defend against an ancient and possibly spurious charge. Shouldn't the judge also empathize with the defendant?

Yes, the judge is a better person for empathizing with with the litigants, but not a better judge.
5.29.2009 3:17am
David Welker (www):

Shouldn't the judge also empathize with the defendant?


Of course the judge should also empathize with people in the defendant's shoes.

To me, empathy is all about understanding consequences. How can one understand consequences if you do not analyze the situation fully?
5.29.2009 3:24am
NickM (mail) (www):
David - Ledbetter had learned that she was being paid less than male coworkers in the same job several years before she filed suit. The entire idea of tolling statutes of limitation is connected with empathy.
Tolling would not have helped Ledbetter, because she waited more than 180 days after learning of the pay difference before suing.

Nick
5.29.2009 4:36am
deathsinger:
A little help from the attorneys, please.

I thought that in all appellate courts the plaintiff and the defendant were absent. Only the attorneys were present.
5.29.2009 8:49am
rosetta's stones:

whereas I think Obama and the defenders of "empathy" mean, instead, a primarily intellectual ability to understand how the world actually works for a range of people, especially those outside the elites.
5.29.2009 2:53am
(link)Christopher M (mail):
I should say, rather, that "empathy" for Obama involves a combination of the intellectual ability I described, with an openness to taking the concerns of less powerful litigants seriously, i.e. feeling and experiencing them as important factors to be weighed in the judicial balance. (I.e., "understanding and identifying with people's hopes and struggles.")



Christopher,

Should "people's hopes and struggles" matter in the application of the law? If they're in court, we already know they're struggling and hope to win, don't we? Isn't this implicit and already in place? (I think it is, and this "empathy" discussion is actually a veiled call for something else.)

You say that "concerns" should be felt and experienced and then "weighed in the judicial balance". When do those concerns tip the judicial balance away from law, statute, settled opinion, property rights, etc? Can you describe a scenario?

Isn't one of the aims of our as practiced law to establish a baseline, for consistent application? How is it you'll be scaling this weighting process you describe, for a consistent application?
5.29.2009 9:12am
Brian S:

Ilya seems to avoid that mistake, but he seems to understand "empathy" as a matter of emotions that tend to cloud judgement; whereas I think Obama and the defenders of "empathy" mean, instead, a primarily intellectual ability to understand how the world actually works for a range of people, especially those outside the elites.


If that is in fact what Obama means by "empathy", then perhaps the problem over the term is one of communication.

Because when I hear the discussion of "empathy", I assume it means something quite different. To use a prosaic example, in a civil case involving someone with extensive injuries suing a manufacturer, I assume that Obama means that a good judge would be one who would "empathatically" find some way to get that plaintiff a damage award so their injuries would be soothed, regardless of the actual extent of malice or negligence on the part of the defendants.
5.29.2009 9:18am
Ben P:

David - Ledbetter had learned that she was being paid less than male coworkers in the same job several years before she filed suit. The entire idea of tolling statutes of limitation is connected with empathy.
Tolling would not have helped Ledbetter, because she waited more than 180 days after learning of the pay difference before suing.


Except it would have because she continued receiving pay checks. The fact that she did or did not file an EEOC complaint on time is irrelevant to the opinion. What is relevant is whether a discriminatory pay decision is a single act or continues as long as the discriminatory pay is being paid out.


We can continue discussing this ad nauseam. In the end all it really proves is that the statute is in fact genuinely ambiguous as to whether the statute tolls in certain situations, and the court acted in a way that would dramatically foreclose claims, (and congress later changed the law.)
5.29.2009 9:32am
Ben P:

I think Obama and the defenders of "empathy" mean, instead, a primarily intellectual ability to understand how the world actually works for a range of people, especially those outside the elites.



This states what I've tried to argue much more concisely than I have.


Because when I hear the discussion of "empathy", I assume it means something quite different. To use a prosaic example, in a civil case involving someone with extensive injuries suing a manufacturer, I assume that Obama means that a good judge would be one who would "empathatically" find some way to get that plaintiff a damage award so their injuries would be soothed, regardless of the actual extent of malice or negligence on the part of the defendants.


What you're describing is sympathy. Empathy and Sympathy are similar in some ways, but are not the same.

If as a litigator I hear a judge is "sympathetic" to my client I think it will help me win a case. You can hardly say that a judge is "sympathetic" without adding a "to X." It necessarily means some form of agreement.

The definition of empathy doesn't necessarily include agreement. Saying I want a judge that's "empathetic" doesn't beg the question "empathetic to what?" whereas saying I want a judge that is sympathetic does beg that question.


What you describe is a judge who's sympathetic to a plaintiff and gives the law a wide interpretation to let the plaintiff survive summary judgment.

Trying to describe empathy in a trial court context is a little more difficult. But the best example I can muster at the moment that's related to yours would probably be in determining the reasonableness of a warning. Let's say your hypothetical case is a failure to warn. The warning was buried on page 42 of a 50 page instruction manual and not in any distinguishing type.

The company contends this is an "adequate" warning of the potential defect in the product, the consumer's counter argument is that it's not sufficient. The statute or relevant caselaw defines adequate as "one which a reasonable person would would see and understand).


The case goes up on appeal as to the meaning of an "adequate warning." I think a judge's ability to intellectually understand how a reasonable person might view a complicated instruction manual is pretty important to the case. Sure some people exhaustively study instruction manuals before even touching the product, others might not look at them at all, most are somewhere in between.

Does a judge necessarily have to bend the law to decide this? does he or she necessarily have to be sympathetic to plaintiffs to think this is a relevant issue?
5.29.2009 10:00am
LipstickPig (mail):
Empathy has NOTHING TO DO with the mental state of a victim.

It has to do with the real experience of victims, not feely ideas about what they THINK about it.

If your loved one is run over while walking in a crosswalk and the DA decides that the killer is not guilty of anycrime, it's not your mental state about it, it is the FACT that your loved one is dead, and the killer was not punished for it.

Empathy is not about how black people feel when they are (yes still) discriminated against, it is the fact that they are discriminated against that we should all be able to empathize with since at some time in almost all people's lives they have had the same EXPERIENCE just in a different context. Thus we can empathize with those mostly rich whites have been ripped of by Madoff.

The Republican show empathy for frozen embroys that get killed and have used the courts to legisate against it.

It is just obvious hypocricy for the Republican judges to pretend that your party is against the use of empathy.

Yet there sure is a lot of evidence that you use it sparingly.

Thus we have Republican judges who reluctantly admitted that the constitution demands public defenders for those who have no money to hire a defender, but then said that doesn't mean that the defender needs to know the law, be sober or even awake.

Again I empathize with the poor defendents, not because they are upset but because it means, as ever in the US, when it comes to going to jail, it's the Golden Rule: those with the gold get off, those without it go to prison.

And thanks to 28 years of republican rule, America has the shame of having the biggest prison population in the world.

Almost all of the increase aimed at low level, black and hispanics drug dealers ,most of whom sell because they are addicted. Limbaugh admitted that whites and blacks commit that same per capita number of drug "crimes" but blacks go to prison for it while whites don't. And then he proved it.

No matter how you slice it that is continuing racism in America, emboldened by your party. I don't care about the mental state of some black drug dealer in prison, I care about EQUAL JUSTICE.

How about you?

Obviously in that case the mental state of the embryo is nill, yet many can empathize with those who think it is wrong to kill a possible future human being.

Republicans also have no problem empathizing with very rich corporate officers who might have to accept lower incomes for awhile until they pay back the bailout money.

Not because of the mental state of the CEO's but because they are making less money than they were.
5.29.2009 11:29am
IB (mail):
The choice is not between ignoring or being mindful of the effects legal decisions have on lives. The choice is between entrusting the measure of those effects to legislatures or entrusting that measure to judges. This is an old debate. Congress has certain tools for measuring the effects of its laws that judges lack (which are likely biased). Judges have a visceral proximity to those effects that Congress lacks (also, likely, subject to bias). Which branch has more "empathy" is an open and complicated question (and likely varies across issue).

The point is that by framing this as an issue of appointing judges with "empathy", the Administration has converted a nuanced and familiar constitutional question regarding the balance of power between Congress and the Judiciary into a leading question. While remaining agnostic as to the proper compromise between interpretation and construction, those who favor a deliberative and informed approach to the design of social policy may criticize the rhetoric (while those who appreciate political skill may admire it).
5.29.2009 11:43am
LipstickPig (mail):
Here's an eloquent, EMPATHETIC, and honest statement by Alito.

ALITO: "When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me. And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them. So those are some of the experiences that have shaped me as a person."

Comments from the Republicans please!
5.29.2009 12:03pm
ShelbyC:
It's pretty clear that empathy clouded the judgement of many people in the Ledbetter decision. There was a 180 day statute of limitations from an "unlawful employment practice", which could be an unlawful firing, refusal to hire, or a discriminatory pay decision. Now in any of these situations, you either get a lower paycheck or no paycheck at all every two weeks from then on. Having the SOL reset every to weeks in the first two situations would have been ridiculous because it would have defeated the whole purpose of the SOL. Now it is slightly less ridiculous in the discriminatory pay decision case, because it allows the statute to re-set 180 days after the victim finds another job, or after the compay admits the discrimination and corrects it. But there is no reason to believe that the SOL should be interpreted differently in the third case.

But folks feel so much empathy for poor Lily and other victims of pay discrimination, and they want the SOL to reset so bad so that this discrimination can be addressed, that they're willing to buy into an interpretion of the law that really isn't very plausible.
5.29.2009 12:09pm
Cityduck (mail):
Frankly, these kind of posts cause me to question the author's level of real world litigation experience. I don't know any attorneys with extensive trial and appellate court litigation experience who don't value empathy in a judge. It's an essential trait for a judge who is attempting to assist litigants in settling their disputes. It's an essential trait for a judge acting as a factfinder. It's an essential trait for a judge who wants to run his courtroom in a reasonable fashion. It's an essential trait for a judge who is exercising discretion in attempting to make just sentencing decisions. It's an essential trait for a judge who is fashioning remedies.

Only in the insulated world of legal academia would empathy be viewed as a negative.
5.29.2009 12:11pm
CJColucci:
How many people out there think we have long since passed the point of diminishing returns on this subject?
5.29.2009 12:19pm
levisbaby:
I seem to recall the either Alito or Thomas was also praised by the nominating president for his "empathy".

I wonder why there weren't dozens of post about that comment in the VC at the time?
5.29.2009 12:23pm
Ilya Somin:
I seem to recall the either Alito or Thomas was also praised by the nominating president for his "empathy".

I wonder why there weren't dozens of post about that comment in the VC at the time?


I wasn't blogging at the VC in 2005, when Alito was nominated, and certainly not when Thomas was nominated in 1991 (long before blogging existed at all). If those presidents argued that "empathy" was an important qualification for judges, I am perfectly willing to say they were wrong. However, neither of them claimed that judges should decide numerous important cases on the basis of "empathy" as Obama has said should be done.
5.29.2009 12:44pm
OrinKerr:
I wonder why there weren't dozens of post about that comment in the VC at the time?

I certainly appreciate the efforts to play gotcha, but aren't the examples of Alito pretty clearly of legally relevant empathy?
5.29.2009 12:46pm
Tugh (mail):
Orin:


I certainly appreciate the efforts to play gotcha, but aren't the examples of Alito pretty clearly of legally relevant empathy?


Not to play gotcha, but, in my view, Alito's examples are exactly of the type of empathy that Obama was talking about.
5.29.2009 12:53pm
jukeboxgrad (mail):
OK:

aren't the examples of Alito pretty clearly of legally relevant empathy?


What Tugh said. Also, Alito was making a statement essentially equivalent to SS's much-derided statement.

Also, when Bush I spoke favorably about Thomas's "empathy," Bush said nothing to indicate that he meant only the "legally relevant" kind. Nevertheless, there was a distinct absence of outrage. As far as I can tell, no one even cared enough to ask him if that's what he meant.

All this evidence seems to reflect the following principle: IOKIYAR.
5.29.2009 1:26pm
methodact:
Most people seem acclimated to the incrementalism of the Police State. The discomfiture appears to be at the acceleration curve of the Fascist State.

The thing about those with appetites for Gulags in America, the dungeons, is that their hunger proves insocient, insatiable, it just cannot be satisfied. Their real interest is probably more about how much they can do to the People without an actual revolt, as opposed to genuine human empathy for those they torture and kill.

Once again, I would commend people to Andrew M. Lobaczewski's POLITICAL PONEROLOGY, a science on the nature of evil adjusted for political purposes, 330 pages.
5.29.2009 1:40pm
OrinKerr:
Tugh, JBG,

Can you explain why you conclude that? I think Obama is a highly articulate person with a deep knowledge of law who has chosen his words very carefully, and his words seem pretty inconsistent with your characterization.
5.29.2009 1:56pm
Angus Lander (mail):
Ilya,

You identify two types of empathy: (1) empathy whereby the empath can know what the mental states of the empathized would be (in a range of circumstances) and (2) empathy whereby the empath feels the same concerns as the empathized (i.e. identifies with him and shares his hopes and struggles, etc.). You say type-(1) empathy is a good quality for a judge to have, whereas type-(2) empathy is not (and, moreover, a judge who exercises type-(2) empathy and then bases his rulings, in part, on the empathetically acquired concerns is more likely to rule poorly than one who doesn't).

I certainly agree that it is bad for a judge to base (even in part) his rulings on concerns acquired by exercising type-(2) empathy. But I disagree that a judge's exercising type-(2) empathy never helps him reach the (legally) correct ruling. Instead, exercising type-(2) empathy can help him ascertain that a crime has been "insidiously" committed. For example, whether an utterance counts as "fighting words" depends on the precise context (and community of speakers) in which it is spoken. If that community of speakers is quite alien, then it may be helpful to exercise type-(2) empathy on them - share their hopes and struggles - in order to see just what sorts of words would be sufficiently goading. Here, type-(2) empathy is exercised in order to ascertain a (key) fact, not to generate the concerns on which the judge will base his rulings. It is therefore used appropriately.

Conceivably (perhaps even probably) exercising type-(2) empathy may, in a number of cases, be the only way to determine whether a crime has been insidiously committed. If so, then Obama is right that it is "an essential ingredient for arriving at just decisions and outcomes."
5.29.2009 2:05pm
ShelbyC:
There's an op/ed in the wsj referencing Freddie B's Ce que on voit and talking about how empathy helps us favor Ceux qu'on voit over Ceux qu'on ne voit pas
5.29.2009 2:12pm
runape (mail):
I think the VC's explanations of empathy (both Ilya's and Orin's) have missed an important category of cases that I believe Obama was trying to capture with his discussion of "emphathy" (a word he has stopped using, incidentally).

A good example is domestic violence. Cases involving DV - whether cases seeking restraining orders, custody, or divorce - are frequently decided against women because male judges perceive either (a) that the woman had it coming, or (b) that, even if the man committed acts of domestic violence, he should not be deemed a threat to the woman or children in the future, and so should be entitled to continued visitation or custody.

Anyone who practices in family court knows this. And they also know that such cases are not doctrinally uncertain - the law is clearly in the woman's favor, and yet she loses. And much of the point of "empathy" is an understanding of power dynamics, which male judges frequently lack in such cases.
5.29.2009 2:17pm
ShelbyC:

And they also know that such cases are not doctrinally uncertain - the law is clearly in the woman's favor, and yet she loses. And much of the point of "empathy" is an understanding of power dynamics, which male judges frequently lack in such cases.



In your example it sounds like the judges are deciding the cases based on emphathy instead of the law.
5.29.2009 2:24pm
M. Gross (mail):
I admit, the common use of "empathy" when they really mean "sympathy" drives me nuts.

A judge should possess abundant empathy, but not necessarily sympathy. In that manner, I agree with Ilya.
5.29.2009 2:29pm
Suzy (mail):
Unless we are sociopaths, we have empathy in all of the relevant senses described above. If we tend to empathize more with one party in a case than another, as judges, this can create a bias. It is important--an essential ingredient--to be able to empathize with various positions so as to achieve an accurate understanding of all the relevant factors for judgment.
5.29.2009 2:32pm
A. Non E. Mouse (mail):
With The Wise Latina, I would question how fair her empathy would be. Would she be empathetic to firefighters who worked hard and studied for promotion exams that were written in a non-race-based way, according to the requirements of the job, as a fair hiring and promotion process should be? We've seen her answer on that and if she is confirmed she may get to rule on the appeal of her own case. It's a crooked decision.

Would The Wise Latina side with the court liberals in the Kelo decision--against the homeowners? Would it make a difference if it were a Latino neighborhood?

I think the misuse of her empathy in these cases makes her a racist and unfair and unjust. Justice is peeking out from under her blindfold. The Wise Latina doesn't seem so wise to me.
5.29.2009 3:00pm
secade (mail):
So nobody read Richard Posner's recent Slate article, where he repudiated his former un-empathetic, zero-regulation views? He has already replied good-regulation redux views in Jones v Winerman.

Conservatives waren't moved by Enron's "rolling blackout" atrocities, notwithstand documentation of recorded staff amusement of what those would do to grannies (Nobody watched "The Smartest Guys in the Room" which exposed Posner-Friedman' Chicago-Boys sadism, because the current temper dictated derision against the then despised good-regulation gang.

Nobody empathised with small investors whose proxies wasted their future on derivatives of derivatives. Four years ago there was general stupefaction, whenever someone discovered that financial-junk salesmen were motivated to peddle whatever garbage would bring them $10,000,000 in quick profits, and the mansions, yachts and cars and trophy wives that it would bring. Posner et al ran a wrecking-crew that chimped Adam Smith' regurgitate about "hidden hands" that supposedly deliver inevitatble economic progress, while financial resources were bubble-wrapped until these burst.

And Posner had the audacity to uphold the toilet paper verdict in the Conrad Black case. In that tempest, that hitherto champion of executive self-giving, upheld incarceration tack-ons, added because Black communicated by mail rather than the usual means. Now SCOTUS is undoing the dirty work of Posner - elevated to the level of Pound, Cardozo and Wigmore, by some hagiographers - whose ego floats a self-image of a one-man contrition-machine.

A judge is a burned out lawyer, who can't handle the billing circus. Let's not assign a capacity for empathy to elite-centrist, semantic gymnasts.

I challenge anyone who sees genius in judicial declarations, to watch a trial judge at work. Generally, they rarely look at witnesses for demeanor indications; court time is spent writing factual narratives, so they don't have to do the homework. And applications of law are cherry-picked from Briefs submitted by pleaders. Reminder: we pay those "empaths" - at least in the higher courts - for 2 weeks in court and 2 weeks at home each month. So with all that time, why do we wait 3-8 months for legal-determinations? Our robed savages have to look like they are working.
5.29.2009 3:49pm
catchy:
I responded to this post and the general issue of 'empathy' as a criterion for a SCOTUS nominee from the perspective of cognitive science, here:

I argue that Somin runs afoul of a plausible account of how we understand other's mental states, where the account necessarily involves 'putting yourself in another's shoes'.
5.29.2009 4:05pm
Tugh (mail):
Orin,

I will try to post in a greater detail later, but I conclude that both Obama and Alito were talking about the same empathies based on the substance of what they said. Briefly, Alito talked about how experiences of those in his immediate family who experienced some kind of discrimination have shaped him, and that he takes into account, for example, his identifying with immigrants. Obama, too, talked about:


I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.


I don't see how the kind of empathy that ALito talked about is different in any meaningful way from the kind of empathy Obama talked about. To me, it seems that Alito's statement implies what Obama said explicitly: while the rule of law is paramount, laws do not exist in some abstract field; and therefore, it is important for a judge to be able to understand how his/her decisions affect people's lives; and that may be considered in deciding a case.
5.29.2009 6:59pm
jukeboxgrad (mail):
OK:

Can you explain why you conclude that? I think Obama is a highly articulate person with a deep knowledge of law who has chosen his words very carefully, and his words seem pretty inconsistent with your characterization.


Most of what I said here (i.e., everything after the first three words) does not rely on statements by Obama, but rather just looks at statements by SS, Alito, and Bush I.

But by "that," maybe you just meant my first three words ("what Tugh said").
5.29.2009 7:14pm
eyesay:
ShelbyC wrote
It's pretty clear that empathy clouded the judgement of many people in the Ledbetter decision. There was a 180 day statute of limitations from an "unlawful employment practice", which could be an unlawful firing, refusal to hire, or a discriminatory pay decision. Now in any of these situations, you either get a lower paycheck or no paycheck at all every two weeks from then on. Having the SOL reset every to weeks in the first two situations would have been ridiculous because it would have defeated the whole purpose of the SOL. Now it is slightly less ridiculous in the discriminatory pay decision case, because it allows the statute to re-set 180 days after the victim finds another job, or after the compay admits the discrimination and corrects it. But there is no reason to believe that the SOL should be interpreted differently in the third case.
But folks feel so much empathy for poor Lily and other victims of pay discrimination, and they want the SOL to reset so bad so that this discrimination can be addressed, that they're willing to buy into an interpretion of the law that really isn't very plausible.
Shelby, with all due respect, apparently a majority in the U.S. House and Senate in January 2009 consider the idea that the statute of limitations on discriminatory pay resets with every paycheck to be neither "slightly less ridiculous" nor "not very plausible." Au contraire, a majority in the U.S. House and Senate have shown through new legislation that they think that what is ridiculous is the idea that once a company issues an employee a discriminatory paycheck, after 180 days, the company has a legal right to issue discriminatory paychecks to that employee forever. Why do conservatives have so much trouble with this?
5.30.2009 12:00am
David M. Nieporent (www):
Yah, there is a school of thought here. See SSRN dwnld with reference to Sotomayer reasoning in the "Jocks" case. Incredibly, she held that police have no legal duty to consider exculpatory evidence, prior to arrest. She tossed a jury award, that found a cop usurped the law, based on a depraved private motive: injurious retaliation. Her judgment is perverse to the point of subversion.
I read Bazelon's piece in Slate and was ready to be outraged, but all I learned is that I should trust my original instinct: never trust Emily Bazelon. She badly distorted the ruling. Sotomayor did not hold that "police have no legal duty to consider exculpatory evidence prior to arrest."

She ruled exactly the opposite: that police do have a legal duty to consider exculpatory evidence. What she held was that Second Circuit precedent required her to hold that police have no legal duty to investigate potential exculpatory evidence prior to arrest.



And I have no idea what your SSRN cite is supposed to be about; it cited Jocks solely for the standard of review of jury verdicts, not for any substantive point of law.
5.30.2009 12:20am
David M. Nieporent (www):
Shelby, with all due respect, apparently a majority in the U.S. House and Senate in January 2009 consider
Once again: Congress passes new laws; it doesn't interpret old ones.
5.30.2009 12:24am
eyesay:
David, with all due respect, the only reason Congress passed the Lilly Ledbetter Fair Pay Act of 2009 was that five radical members of Supreme Court contravened what Congress had, up to that point, considered to be the plain meaning of its legislation, so Congress passed the new law to remove any doubt about what it intended in the first place.
5.30.2009 10:50am
CJColucci:
Shelby, with all due respect, apparently a majority in the U.S. House and Senate in January 2009 consider
Once again: Congress passes new laws; it doesn't interpret old ones.


Let's take it from the top. Pre-Ledbetter, different Circuits, composed of reasonable judges of all (confirmable)ideological views had come to different conclusions about whether the statute of limitations runs from the making of the discriminatory pay decision or from the issuance of the discriminatory paycheck. In all probability, no one in the enacting Congress had asked the question, and the language of the statute did not plainly answer it — hardly unusual, since legislative drafters can't be expected to anticipate everything. Anyone who thinks one view or the other was obviously correct and the other obviously wrong has a reading comprehension problem. A slim Supreme Court majority took one of the two views. The line-up broke down, predictably, between those who, generally, have more "empathy" for corporate defendants and those who, generally, have more "empathy" for discrimination victims. And as far as I'm concerned, there's nothing wrong with that, or if there is there's nothing to be done.
Congress, with unusual speed, passed a new statute, taking the position of some Circuits and the Supreme Court minority. I suppose one can interpret Congress's action in either of two ways: (1) they were saying "Oh, we were wrong in 1964 and we're now changing our minds" or (2) they were saying "You morons got it wrong. Is this clear enough for you?" Short of digging up dead Congresscritters and asking them to answer a question they probably never considered, there's as much reason to chose (2) as there is to choose (1). Maybe more.
5.30.2009 11:09am
David M. Nieporent (www):
Congress, with unusual speed, passed a new statute, taking the position of some Circuits and the Supreme Court minority. I suppose one can interpret Congress's action in either of two ways: (1) they were saying "Oh, we were wrong in 1964 and we're now changing our minds" or (2) they were saying "You morons got it wrong. Is this clear enough for you?" Short of digging up dead Congresscritters and asking them to answer a question they probably never considered, there's as much reason to chose (2) as there is to choose (1). Maybe more.
The point is, you ignore the third possibility, which happens to more accurately fit the respective roles of the branches: (3) "We don't care what was intended in 1964. We don't like this outcome. so we're legislating so that it doesn't happen again."

Moreover -- and I'm not sure what makes the speed "unusual" -- you make it sound as if Congress was voting in favor of invading Afghanistan, overwhelmingly in favor. In fact, Congress rejected the new statute the first time it was introduced, and the actual vote was essentially along party lines; it seems exceedingly likely that had Republicans done better in the '08 elections, the new statute would never have been enacted. Could we conclude from that that Congress was telling the Court that the Court had interpreted the '64 law correctly? No. All we could conclude is that a majority of Congress approved of the Ledbetter decision.
5.30.2009 3:06pm
CJColucci:
<i>Congress, with unusual speed, passed a new statute, taking the position of some Circuits and the Supreme Court minority. I suppose one can interpret Congress's action in either of two ways: (1) they were saying "Oh, we were wrong in 1964 and we're now changing our minds" or (2) they were saying "You morons got it wrong. Is this clear enough for you?" Short of digging up dead Congresscritters and asking them to answer a question they probably never considered, there's as much reason to chose (2) as there is to choose (1). Maybe more.

The point is, you ignore the third possibility, which happens to more accurately fit the respective roles of the branches: (3) "We don't care what was intended in 1964. We don't like this outcome. so we're legislating so that it doesn't happen again." </i>

Maybe, but if the Congress that passed the statute over-ruling Ledbetter wanted a statute that mandated that result and thought the existing staute, properly understood, mandated a result it did not want, why wouldn't they have acted sooner?
5.31.2009 1:14pm

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