The Volokh Conspiracy - Empathy for the Unseen:

John Hasnas had a very good op-ed in the WSJ a few days on empathy, the "seen" and the "unseen." Here's a taste:

Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that? . . .

As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen." . . .

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge.

(link)

Anderson (mail):

while the good judge takes into account both the effects that can be seen and those that are unseen

IOW, the bad judge looks only to the parties before the court, whereas the good judge remembers that she is making policy?

Got it -- thanks!

6.2.2009 8:50am

A.C.:

It's just as likely that the good judge follows policy that was put into place by somebody who did have the resources or scientific expertise to look at system-wide effects. That's why you might want courts to defer to, say, environmental agencies, unless the agency position is arbitrary and capricious.

6.2.2009 9:07am

gjjhks:

Pretty dumb comment, Anderson. As A.C. points out, the good judge isn't making policy, but enforcing the law -- which is policy made by someone else, usually the elected branches of government. You don't have to make policy to be cognizant of its effects. Obviously.

6.2.2009 9:29am

ShelbyC:

Hey! I linked to that days ago! no props?!? :-)

But seriously folks, That's one of the greatest essays of all time. I'm suprised it doesn't get more play.

6.2.2009 9:38am

DiverDan (mail):

IOW, the bad judge looks only to the parties before the court, whereas the good judge remembers that she is ~~making~~ applying policy that has been adopted by the duly elected political branches?

There, Anderson, fixed that for you.

6.2.2009 9:47am

corneille1640 (mail):

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. T

Why are "abstract rules" more likely to account for unforeseeable (by the judge) consequences than concrete rules?

One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment.

Don't at least some cases--e.g., antitrust cases, corporate bankruptcy cases--involve considerations of effects on consumers, on output, or on employment decisions? It seems to me that a superficial reading of Mr. Obama's argument for empathy by judges includes empathy for both parties in a suit, including the "corporate defendant." In these kinds of cases, don't the "corporate defendants" sometimes couch their defense in terms of the broader effects an adverse decision might have on the economy or society?

No, I don't have a cite, but I seem to recall the president saying some such thing in touting Ms. Sotomayor's reputed experience in the private sector. And yes, I realize that may just be stage fire for claiming she'll empathize with everyone while really believing she'll empathize only with the poor, and downtrodden, etc. My only point is that "empathy" can potentially often include what the writer of this op-ed claims is "unseen."

Eric Rasmusen (mail) (www):

Here's my favorite writing on sympathy. It's about a king (Charles II of England and Scotland), but the principle applies even better to judges:

It is creditable to Charles's temper that, ill as he thought of his species, he never became a misanthrope. He saw little in men but what was hateful. Yet he did not hate them. Nay, he was so far humane that it was highly disagreeable to him to see their sufferings or to hear their complaints. This, however, is a sort of humanity which, though amiable and laudable in a private man whose power to help or hurt is bounded by a narrow circle, has in princes often been rather a vice than a virtue. More than one well disposed ruler has given up whole provinces to rapine and oppression, merely from a wish to see none but happy faces round his own board and in his own walks. No man is fit to govern great societies who hesitates about disobliging the few who have access to him, for the sake of the many whom he will never see. The facility of Charles was such as has perhaps never been found in any man of equal sense. He was a slave without being a dupe. Worthless men and women, to the very bottom of whose hearts he saw, and whom he knew to be destitute of affection for him and undeserving of his confidence, could easily wheedle him out of titles, places, domains, state secrets and pardons. He bestowed much; yet he neither enjoyed the pleasure nor acquired the fame of beneficence. He never gave spontaneously; but it was painful to him to refuse. The consequence was that his bounty generally went, not to those who deserved it best, nor even to those whom he liked best, but to the most shameless and importunate suitor who could obtain an audience.

6.2.2009 9:58am

Tony Tutins (mail):

One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

Nonsense. Employees/owners of large law firms naturally develop empathy for their corporate clients, as they grow to understand and anticipate their needs. Lawyers whose work enforcing corporations' property rights have bought them condoes, Porsches, and "bottle service" are keenly attuned to the benefits corporations confer on society.

6.2.2009 10:04am

Oops: work has brought.

Further, inspection of Hasnas's CV suggests his empathy for corporations was developed while he was assistant general counsel for Koch Industries, a conglomerate principally owned by the two sons of its oilman founder. One of the sons ran for VP on the Libertarian Party ticket, according to wikipedia. The Koch Family Foundation supports the Cato Institute.

Or, Hasnas's natural compassion for corporations made him a congenial hire.

6.2.2009 10:19am

Kirk:

The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen.

Another very important part, though unseen here and in Hasnas' editorial, is that having abstract rules of law defined in advance means that we can use them to guide our behavior. This aspect is destroyed by using empathy (or anything else, for that matter) to change the rules ex post facto.

6.2.2009 10:31am

David Schwartz (mail):

Policy is the result of a give and take between many parties, only two of which are in front of the judge.

6.2.2009 11:02am

wolfefan (mail):

Hi -

Indeed, I believe that one of the Koch sons (Charles?) is a founder of Cato. Their father (Fred) was a founder of the John Birch Society, and I spent a college summer in North Manchester, IN pumping gas at a Colonial station owned by Koch Oil. Not all of these are related (or interesting....)

6.2.2009 11:14am

Aultimer:

Perhaps it's mere semantics (although the same could be said for the post), but sympathy and empathy can be applied quite well to the "unseen" and judges do it all the time. The exclusionary rule is a fine example - judges certainly want criminals to be punished (or rehabilitated, if they swing that way) but are sympathetic to the unseen innocents who might have their rights violated if police conduct was judged solely on results.

6.2.2009 11:22am

PLR:

As A.C. points out, the good judge isn't making policy, but enforcing the law -- which is policy made by someone else, usually the elected branches of government. You don't have to make policy to be cognizant of its effects. Obviously.

And if the full dimensions of that policy were self-evident to all, we wouldn't need those expensive Courts of Appeal, would we?

But seriously folks, That's one of the greatest essays of all time. I'm suprised it doesn't get more play.

Take that, all you 18th century British snobs!

6.2.2009 11:39am

byomtov (mail):

One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

Certainly one can feel empathy for all the people mentioned. Why not?

Think about it this way. Surely it is appropriate for legislators to have empathy, and to let that influence their law-making. If Hasnas is correct, then the laws will never be fair to corporations, or the "unseen" or whoever.

6.2.2009 12:29pm

levisbaby:

Remember, the absence of empathy is one of the hallmarks of a sociopath.

6.2.2009 12:30pm

Snaphappy:

The problem is in the first word of the second sentence:

Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel.

It does not follow from the ability "to share the emotions, thoughts and feelings of others" that a judge would base her decisions on "how the people directly affected by the decision would think and feel." The ability of empathy gives the judge more information upon which to base a decision, but does not imply that information will overrule other considerations like the text of statutes, precedent, etc.

6.2.2009 12:44pm

frankcross (mail):

While the editorial makes a good point about invisible effects, it and the commentators rely on a very false premise -- that the abstract law, correctly understood, "strikes a balance between the seen and unseen." I very much doubt that. I can think of no reason to presume that a congressional statute will accurately strike this balance. Now, I would expect that statutes sometimes, perhaps often, favor seen effects, so that judges doing likewise would only exacerbate a bad situation. But there may well be other situations where statutes favor large contributors (who may overweight the side of the unseen effects), so that a bias for seen effects would counteract a bias to the contrary.

6.2.2009 12:50pm

M N Ralph:

The whole premise of the post is nonsense. It simply is not true that one cannot have empathy for those who are not parties to the case but are impacted by judicial decisions, such as corporations' customers and employees. Mr. Hasnas makes the banal observation that judicial decisions effect more than those who are parties to the case. Certainly good judges are also aware of this common sense fact (probably even mediocre and bad judges too it is so blindingly obvious). Thus, to the extent that empathy is ever relevant or good in judicial decision making, empathy for all who are impacted is a good idea. The whole notion posited by Hasnas, however, that this would never occur to a judge, strikes me as silly (or perhaps he's just being disingenuous).

6.2.2009 12:51pm

Also, being able to see something from someone else's perspective doesn't necessarily mean you agree with that person. The ability to put yourself in a particular downtrodden person's shoes may lead you to conclude that that person is a scam artist who made the case up. People are often better at detecting scammers who share their background than those who come from different environments.

In fact, I just had a conversation with another women about women who can manipulate men easily, but who don't fool other women at all. I'm sure there is something similar about members of the same ethnic/racial groups.

6.2.2009 12:57pm

Another "woman." Proofreading is on the fritz.

6.2.2009 12:58pm

TEvanFisher (mail):

Interesting topic. In my Professional Responsibility class, there were many students who thought it would be unethical to represent a bank and bring a lawsuit against a poor old woman who had failed to pay her mortgage. The professor, an experienced civil litigator, admitted that it would be much easier to sue a faceless corporation than a poor old woman.

Should the age, gender, and income of a party play a part in the application of the law? I find the idea absurd.

I was reminded of a parallel to the scenario in the new Sam Raimi movie, Drag Me to Hell, in which a woman is tormented by a demon because she refuses to grant a third loan extension to a poor old woman.

In the aftermath of the housing "crisis" - is it wrong to expect people to repay loans? Is it more wrong to expect women, the elderly, or low-income borrowers to fulfill their loan obligations?

Why is this so confusing?

6.2.2009 1:15pm

SeaDrive:

I have empathy with the situation of Ms. Sotomayor who is the target of all these vacuous attacks due to nothing that she did or wrote, but only repeated comments of the president. If the object is to suggest that she relies too much on empathy as a judge, then at least a mention of an actual opinion is necessary for credibility.

6.2.2009 1:22pm

I really hope women are still obligated to pay back loans. If we aren't for some reason, I don't think I'll be getting many loans in the future. Women fought hard to get credit in our own names. Let's not blow it.

Now, there might be cases where the way you go about enforcing rules might change with the individual. An elderly or sick person might require somewhat more time to vacate, say. A person left in the lurch by a runaway spouse might be treated differently than someone who perpetrated a deliberate scam.

But the rules still can't be completely ad hoc.

6.2.2009 2:06pm

hymie (mail):

If I'm not mistaken, legal concepts such as mootness and ripeness exist precisely to focus the attention of the court only on the issues and persons in front of them, and not on abstract concepts. Doesn't that vitiate the argument?

6.2.2009 3:48pm

but sympathy and empathy can be applied quite well to the "unseen" and judges do it all the time. The exclusionary rule is a fine example - judges certainly want criminals to be punished (or rehabilitated, if they swing that way) but are sympathetic to the unseen innocents who might have their rights violated if police conduct was judged solely on results.

It's very difficult to feel emotional "sympathy" or "empathy" for an abstract individual. It's much more likely that judges are using logic to determine that there would be bad outcomes without the exclusionary rule.

6.2.2009 6:47pm

Laid Off:

I find the choice of Satamayor poor. First, she does not appeal to moderates since she appears to have pretty radical racist ideas. At the same time, she should not appeal to liberals since she is suspect with respect to abortion issues being a Catholic. It is not unlikely that she would vote against constitution protection of abortion. As such, nobody should be extremely happy with this desicion besides some type of carribean nationalists (she is not Hispanic or Latina, but rather Carribean).

6.2.2009 8:21pm

TGGP (mail) (www):

I've been discussing the same issues at my own blog in a post that against Orin Kerr's "doctrinally relevant empathy" argues in defense of judicial ignorance.

Some of you might also be interested in Mario Rizzo's paper distinguishing between "justice" and "benevolence".

6.2.2009 10:41pm

Nobody claimed otherwise. Nor has this to do with the asininity of Anderson's comment, or my comment thereon.

frankcross:

That may be so, but the balance is for the accountable elected branches to strike as best they can (how novel, separation of powers!), not for judges whose institutional role is different and who may in any event be equally mistaken as to the correct balance to strike. I'm sure you're familiar with the arguments.

6.3.2009 11:19am

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