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Empathetic Judging and the Rule of Law

By Alliance Alert

SSRN: "This short essay addresses the contention that empathy in judging is inconsistent with the rule of law. It first argues that empathy, defined as the ability to take the perspective of another, is an essential judicial attribute. Some of those who argue against empathy are in fact taking issue with the notion of sympathy for particular litigants or classes of litigants. Empathy aids a judge in grasping the stakes for all the litigants. However, it does not help resolve whose claims should prevail. The essay then explores the more difficult question that follows: if empathy for all litigants is desirable, does President Obama?s expressed desire to appoint judges with 'the empathy to recognize what it?s like to be a young teenage mom' and empathy for other historically disadvantaged groups conflict with rule of law values?"

Full post as published by Constitutionally Correct on July 17, 2009 (boomark / email).