Legal Commentary

Fittingly for what is probably my last post on Prawfs for a while, I thought I'd tie together some of the threads that have been running through Prawfsblawg this month, specifically those pertaining to "empathy," the nomination of Sonia Sotomayor to the Supreme Court, and the Court's recent decision in Ashcroft v. Iqbal. I have finally gotten around to reading Iqbal (it's been a busy couple of weeks), and it occurs to me that a pleading standard that demands "plausibility" in a complaint is precisely the sort of case in which, in Marc Blitz's and Orin Kerr's words, empathy is "doctrinally relevant." It seems to me that plausibility as a legal standard -- though it surely makes appearances elsewhere in the law -- inherently calls on the judge to make judgments based on life experiences. Indeed, Justice Kennedy says as much in Iqbal. And you can almost read between the lines to hear him saying, "I have never been a victim of discrimination, and I certainly cannot imagine folks like John Ashcroft and Robert Mueller, folks just like me, engaging in illegal discrimination against Muslims in the wake of 9/11...." A case like Iqbal is the sort of case where a judge like Sotomayor just might view things very differently from Justice Kennedy, Roberts, or the others in the majority, whether we want to attribute that to life experiences due to minority status (see this article from today's NYT) or to some quality of empathy that is perhaps more likely to correlate with minority status, underprivileged upbringing, and the like.