Posted by Orin Kerr:
Doctrinally Relevant Empathy and Doctrinally Irrelevant Empathy:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243552022
I wonder if the many discussions about "empathy" that we're liekly 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 first category; another will say empathy is absolutely
necessary, thinking of the second. 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.
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