Empathy and the Law

Who knew? Not me, and I'm not sure I buy this...

http://fish.blogs.nytimes.com/2009/05/24/empathy-and-the-law/

Empathy and the Law


President Obama wants Supreme Court justices who have empathy. What could be wrong with that, asks Dahlia Lithwick (“Once More, Without Feeling,” Slate.com): “When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering?”

It may not be that simple. Obama’s invocations of empathy combine a concern for the less advantaged with a theory of constitutional interpretation. Speaking to his choice to fill the seat soon to be vacated by Justice Souter, Obama said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

The phrase “just decisions and outcomes” seems beyond reproach (who could object to it?), but many will hear it with suspicion and say, “Just outcomes would be nice and let’s hope we have some, but what courts should deliver is legal outcomes.” You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.

It is possible then that a legal decision, a decision that has a source and a pedigree in the laws that have been formally set down, could offend one’s sense of justice. And, conversely, it is also possible that a decision widely regarded as substantively just — yes, that’s the way things should be — could at the same time be seen as illegal, that is, as not following from the rules and principles of settled law. This is precisely the criticism that has been made of Brown v. Board of Education (most notably by Herbert Wechsler in his influential Harvard Law Review article “Toward Neutral Principles”); yes, the result is good, the critics acknowledge, but where, they ask, is its legal — as opposed to its empathetic — basis? And on the other side it was said, and is still said, that any jurisprudence that cannot accommodate Brown v. Board is a jurisprudence we must reject.

snip//

An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”

And so it goes in an endless round of claims, counterclaims, accusations and dire predictions. My own prediction is that we will hear it all again once Obama announces his nominee and the drama of the confirmation hearings begins. Must-see T.V.

of capital in the present state of legal findings.

And to consider the real purpose of the legal system. Is there or should there be a precedence of human interests over business?

What hand did the business interests play in the decision in Bush vs Gore?

Mr Obama is correct, and his critics are simple minded pedants.

but I would say math determines concrete truth, as opposed to reality. Does that fit your idea?

It elaborates the deductive consequences of postlates, axioms, hypothesis, etc. and rules of inference, deduction, induction, etc. Math has no particular relationship to "concrete reality", though it is plausible to assume - stating it very simplistically -- that "concrete truth" will not violate mathematical truth, or that the two will not contradict each other; so in that sense one could say that "math determines concrete truth". Empirical and observational science study "concrete truth", and they often find math a useful tool in that study, yet it seems true that "concrete truth" encompasses facts and observations that we lack the mathematical tools to deal with assertively, so far.

That is roughly my idea.

always make their arguments in the abstract, or by citing the importance of empathy in situations of human interaction that have little or nothing to do with what Supreme Court justices do?

If they really want to be convincing, how about instead citing 5 or 6 Supreme Court decisions that they feel were decided badly, and which would have been decided better and more properly by the application of empathy than by a more correct, well-grounded, well-reasoned application of the law.

The empaths have a long way to go to convince reasonable people that their view should override the one that says a judge should never care which party wins in their court.

Cite 5 or 6 USSC decisions that you think were badly decided because the judges interpreted law in a way that showed empathy. Absent that sort of argument, I don't see what is wrong with judges that are not robots. If it's all some sort of mechanical process, we could just do away with judges altogether and use computers.

but I'm not the one advocating any change from the position that Supreme Court decisions should be based on interpretation of the written statues, settled case law and established legal principles to the greatest extent possible. The burden is on those who claim that the system would be improved if more empathy were injected to show specifics as to why that's so.

And you've created a rather silly false dichotomy when you argue that Supreme Court decisions could be made as easily by machines as by people if no empathy were involved. Even absent any empathy whatsoever for the specific parties involved in the case, legal reasoning is not remotely robotic or mechanical.

So let's hear your cases, if you have any. Convince us that we need more Supreme Court justices who will approach a decision with more emotional connection to one side's position than another.

You just demanded that other people make an argument for a position that you claim they have advocated. You have not shown that anybody actually advocates the position that you claim they need to support either. Put up or shut up.

This is the position I'm claiming that people are advocating:

That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

And gee, that came from the OP right above you. Yet you say: You have not shown that anybody actually advocates the position that you claim they need to support either. Sorry, but I thought that would be so blindingly obvious that even the most blithering idiot wouldn't have to have it demonstrated to them. If you'd like to look like even more of a fool, I can throw a whole of recent DU threads in your face in which numerous people explicitly support that position.

OK...I've put up...now you.

"Why does everyone on the 'empathy' side of this issue always make their arguments in the abstract" and yet you appear to be arguing yourself in the abstract and arguing that law is an abstract science, and you excuse your own lack of the sort of examples you demand from others by the claim that your view is "blindingly obvious".
:rofl:

You still have not shown that anybody, let alone "everyone" advocates for that position as you claim they do. Mr Obama's statement is taking a position precisely against being too "abstract" in application of the law, is it not? But he is making no argument at all, he is stating his view.

I meant that all of the arguments in all of threads I've seen were arguments that empathy in a general or abstract sense was a desirable quality for human beings to have, and that it was important in many circumstances. What I have never seen, what I asked for, and what you are obviously unable to provide, are examples of why empathy would be important in the specific kinds of situations and decision making that a Supreme Court justice is involved in. Sorry you have so much trouble grasping such a simple concept, but apparently you do.

You demonstrate that empathy has been a bad thing in specific cases, and I will consider whether I need to provide counter-examples to show that empathy is not always a bad thing.

Dred Scott, all Women's Reproductive Freedom issues, injury by drugs, soon to be Equal protection for marriage laws, worker's rights, nearly any social issue which Big Business wishes to quash for profit.

or unlawfully because a judge empathizes with the opposite party. If a poor little old lady suffered a terrible wrong from a wealthy powerful person but the statute of limitations tolled before she filed suit, the case has to be dismissed. If justice is to take sides based on sympathy to one side the rules fall. Next anybody can become the beneficiary of bias by the judge. I think if we go to war over who can get more biased judges in their favor the rich and powerful will win. So the powerless are better off if the rules are followed. Its also just plain wrong to treat someone unfairly just because they have money or power.

But after Obama spoke of empathy as a criteria for his choice he also said, "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 will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."

So Obama didn't mean empathy should replace legal reasoning. Supreme Court case law is full of balancing tests that call for subjective judgement. What is a compelling state interest? Is a punishment cruel? What is excessive force? So there is room within the law, where its up to subjective judgement, for empathy. I think that's all Obama was talking about, not turning the court into a biased advocate for the powerless with no respect for fairness or the law.

That's why they call them "judges", because they are supposed to exercise judgement, about what is fair and reasonable within the bounds set by law.