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A Pathetic Reading of Empathy | | |
What President Obama Said | |
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< | In referencing the Lilly Ledbetter pay discrimination case, Obama stated that empathy was an "essential ingredient from arriving at just outcomes and decisions. Not surprisingly, his comment triggered a number of responses, mostly from conservatives and “textualists”, that empathy has no place in judging. Instead, these critics cited the well-worn metaphor of judges as umpires—disinterested parties who adhere to clear, rigid rules—as the paragon of legal arbiters. Of course, the metaphor unravels quickly when you ask someone to point to the MLB rule that describes the strike zone (hint: It doesn’t exist.) | >
> | Referencing the Lilly Ledbetter pay discrimination case, Obama stated that empathy was an "essential ingredient from arriving at just outcomes and decisions." Not surprisingly, his comment triggered a number of responses, mostly from conservatives and “textualists”, that empathy has no place in judging. Instead, these critics cited the well-worn metaphor of judges as umpires—disinterested parties who adhere to clear, rigid rules—as the paragon of legal arbiters. Of course, the metaphor unravels quickly when you ask someone to point to the MLB rule that describes the strike zone (hint: It doesn’t exist.) | | | | |
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< | Amid these clichéd analyses of judicial qualifications, I stumbled upon Stanley Fish’srecent piece in the New York Times, which discusses Obama’s “invocations of empathy”. While the overall message of the piece was both clear and predictable (precedent and established legal principles=good; decisions based on outcomes=bad), I was struck by two aspects of the piece. First, Fish invoked Felix Cohen’s Transcedental Nonsense, which was pretty cool, but unexpected for an op-ed piece in 2009. Second, and more importantly, Fish completely bastardized the theory underlying Cohen’s piece, in the hopes of drawing a connection between Cohen’s view of law and Obama’s. | >
> | Amid these clichéd analyses of judicial qualifications, I stumbled upon Stanley Fish’srecent piece in the New York Times, which discusses Obama’s “invocations of empathy”. While the overall message was quite predictable (precedent and established legal principles=good; decisions based on outcomes=bad), I was struck by two aspects of the piece. First, Fish invoked Felix Cohen’s Transcedental Nonsense, which was pretty cool, but unexpected for an op-ed piece in 2009. Second, and more importantly, Fish completely bastardized the theory underlying Cohen’s piece, in the hopes of drawing a connection between Cohen’s view of law and Obama’s. | | | Before beginning, I should define what I mean by the words “empathy” and “consequentialism”. I define empathy as “an ability to understand the feelings of another, possibly because of shared experience.” Consequentialism means “the process basing one’s judicial decisions, in large part, on the impact that the decision may have on present parties and those in the future.” | | | What Cohen Actually Said | |
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< | This, of course, is inaccurate. Instead Cohen’s point is to account for decision-making by identifying the types of things judges are likely to consider. Cohen’s judge is not unconcerned with traditional legal analysis: s/he asks 1) what forces will tend to conform judicial conformity; 2) what forces will tends to evoke new treatment for the transaction in question and 3) How have these courts dealt with the transaction in the past. All of these questions clearly indicate that any judge should be prepared to grapple with precedent. But Cohen’s larger point—which the umpire analogy misses, and Fish overstates—is that judging is about determining which rules should be regarded as “worthy of being extended or restricted” and those judgments, at least in hard cases, are ethical ones, not logical ones. That judges may use ethical judgments is factual, not required or preferred. | >
> | This, of course, is inaccurate. Instead Cohen’s point is to account for decision-making by identifying the types of things judges are likely to consider. Cohen’s judge is not unconcerned with traditional legal analysis: he believe judges should ask 1) what forces will tend to conform judicial conformity; 2) what forces will tends to evoke new treatment for the transaction in question and 3) how have these courts dealt with the transaction in the past. All of these questions clearly indicate that any judge should be prepared to grapple with precedent. But Cohen’s larger point—which the umpire analogy misses, and Fish overstates—is that judging, at least in hard cases, involves making ethical decisions, not logical ones. That judges rely on their ethical views to decide cases is a factual statement, not a stated preference. | | | | |
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< | Nowhere in the essay does Cohen mention “empathy” or “feeling” or “understanding” (at least as between judges and parties. He does propose that lawyers and the legal professions study judicial decision-making, suggesting that this might be a more useful scientific endeavor than constructing a hair-splitting machine. But surely, arguing that we should take the ethical values of judges seriously does not mean, by extension, that Cohen supported empathy; it does mean that he recognized that judges might have it. | >
> | Nowhere in the essay does Cohen mention “empathy” or “feeling” or “understanding” (at least as between judges and parties. He does propose that lawyers and the legal profession study judicial decision-making, suggesting that this might be a more useful scientific endeavor than constructing a hair-splitting machine. But surely, arguing that we should take the ethical values of judges seriously does not mean, by extension, that Cohen supported empathy; it does mean that he recognized that judges might have it. | | | Conclusion | |
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< | Rather than thinking about Cohen’s piece as a foil describing an undisciplined approach to the law, Fish (and others who have weighed in the matter) would do far better to recognize the difference between discussing how judges should decide cases and how judges do decide cases. In the end, Cohen’s approach gives us more to consider, more to build on, and a more sensible alternative to mere balls and strikes. | | | \ No newline at end of file | |
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> | Rather than thinking about Cohen’s piece as a foil describing an undisciplined approach to the law, Fish (and other critics) would do far better to recognize the difference between discussing how judges should decide cases and how judges do decide cases. In the end, Cohen’s approach gives us more to consider, more to build on, and a more sensible alternative to mere balls and strikes. |
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