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The "Empathy" Exam:

Ann Althouse asked her Constitutional Law students to identify cases that did (or did not) exemplify "empathy" on their exam. Try it for yourself and see how you do.

UPDATE: Here's the "winner."

mike% (mail):
Poor Joshua!
6.14.2009 9:34pm
Rod Blaine (mail):
I suspect that if a judge, especially a Supreme, started to feel "empathy" in the direction of (as the song says) "crying for unborn children", then most (not all) supporters and opponents would switch sides.
6.14.2009 9:40pm
Cato The Elder (mail):
Poor Joseph Wurzelbacher!

(I see no link to any exam, can you clarify?)
6.14.2009 9:46pm
drunkdriver:
mike%'s post made me laugh.

Leave the abortion cases out of it and ask yourself- has there ever been a justice who groveled more openly for the approval of the professors and editorial writers, than Blackmun?
6.14.2009 9:55pm
ruuffles (mail) (www):
Shiavo
6.14.2009 10:09pm
Seth Manapio (mail) (www):
Okay, I'll bite:

Justice Thomas wrote a dissent in Gonzales V. Raich that stated, in part "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."" (quote from wikipedia).

I would argue that Justice Thomas used his own understanding of "daily realities" and how the law is applied to real people in order to illustrate the absurdity of the majority opinion. In combining his understanding of legal theory with his life experience and empathy, Thomas demonstrates the value of the presidents dual criteria of theoretical knowledge and a vision of how practical application would be applied.

As to whether it mattered, of course it did. The majority focused on whether they COULD find any legal loophole to sneak the power of the government through on, focusing on legal theory and dry case law. In doing so, they ignored what they were sneaking through, and the possible ramifications of doing so. In other words, they didn't stop to consider what effects this ruling would have on daily reality, not just of people's lives, but on future decisions.

A similar case could be made about Kelo v. New London, where Justice Thomas wrote "Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities." His focus, again, is on how the law will effect real people, and his particular concern in this case is for poor communities.

This case, again, is an extension of government power, and again, the majority lacked the empathy to consider how that power might be abused and against whom.
6.14.2009 10:12pm
NowMDJD (mail):
Empathy:

Brown v.Board of Ed (Overturned established law based on social science)

Meyer and Pierce (Based on natural law-- no explicit mention of the 14th Amendment, if I recall correctly)

Lack of empathy with reliance on precedent (I'll take a 'liberal' case and a 'consrvative' case):

Raich
Kelo
6.14.2009 10:30pm
Leroy D:
Is Althouse going to let us know what cases she's referring to? Its far from obvious...
6.14.2009 10:36pm
Mahan Atma (mail):
I'm sorry, but that is a ridiculous question for a con law exam.
6.14.2009 11:09pm
HowAbout:
How about Department of Housing and Urban Development v. Rucker? The court unanimously upheld tossing an old woman out of public housing and into the street without a hearing as a result of her grandson's drug activities, of which she was unaware. Of course, as landlord, the government does have the right to decide how its property will be used.

Not a close decision, but surely Ms. Rucker can drum up some amount of empathy. The fact that I might have empathy for an old woman in public housing whether she's involved in a court case or not might suggest that empathy isn't a very reliable tool for adjudicating disputes.

Unless, of course, I'm on a Seinfeld episode and one of the parties is an Andria Doria survivor....
6.14.2009 11:45pm
MQuinn (www):
As a recent graduate, I must say that there is nothing worse than being faced with such an abstract and political exam question after you have spent a semester working 7 days a week, fifteen hours a day learning the law and how to learn and apply the law. I am sure that it gave Althouse great pleasure to ask this (admittedly interesting) question, but this question nonetheless fails to test the legal acumen that Althouse just spent an entire semester instilling.
6.14.2009 11:57pm
DangerMouse:
As a recent graduate, I must say that there is nothing worse than being faced with such an abstract and political exam question after you have spent a semester working 7 days a week, fifteen hours a day learning the law and how to learn and apply the law. I am sure that it gave Althouse great pleasure to ask this (admittedly interesting) question, but this question nonetheless fails to test the legal acumen that Althouse just spent an entire semester instilling.


Agreed. This "question" is stupid and insulting.
6.15.2009 12:02am
U.Va. Grad:
I'm sorry, but that is a ridiculous question for a con law exam.

I think it's okay most of the way through--the discussion of how a student has observed empathy (or the lack thereof) in Supreme Court opinions can be a good way to test understanding of doctrine. But the end just kills it. "What do you think of Controversial Issue X?" is a terrible thing to do to a student on an all-or-nothing exam, especially in a politicized field like Con Law.
6.15.2009 12:06am
Brubaker:
Althouse's exam reeks of a narcissistic and oblivious pedagogical style.
6.15.2009 12:28am
Jim Rhoads (mail):
I suspect that this question was only one of several making up the exam. The current President, a former con law instructor who makes it a point to tout that experience in his resume, has made clear his conviction that "empathy" is a qualification for appointment to SCOTUS.

What better way to test that hypothesis then by having students try to define empathy as a legal concept.

Those who think this is a bad way to test Con Law have a point. Which somewhat undermines empathy as a legitimate qualification for a SCOTUS Justice.
6.15.2009 12:34am
Smitty3L:
I disagree with those saying Althouse's exam question was "ridiculous", "stupid and insulting", or even "narcissistic and oblivious". To give a thoughtful answer to her question you must know the cases very well. If you really put in 15 hours a day, 7 days a week to prepare for a con law exam, then this question would have allowed you to separate yourself from the others that merely studied the black-letter law.
6.15.2009 12:59am
gerbilsbite:
I would think Vokes v. Arthur Murray, Inc. would be the obvious choice.
6.15.2009 1:10am
Stamper:
I would guess that Romer v. Evans and perhaps Cleburne v. Cleburne Living Center were on a number of tests due to the court looking at the animosity they perceived to be the true motivation behind the laws. The fact that rationality review was applied always might tip those cases into the empathy column. I am not saying the cases were decided correctly or incorrectly, just that they could work as answers to this test.
6.15.2009 1:14am
Borris (mail):

I disagree with those saying Althouse's exam question was "ridiculous", "stupid and insulting", or even "narcissistic and oblivious". To give a thoughtful answer to her question you must know the cases very well. If you really put in 15 hours a day, 7 days a week to prepare for a con law exam, then this question would have allowed you to separate yourself from the others that merely studied the black-letter law.


"thoughtful answers" don't get good grades. Playing to the professor's biases does get good grades.
Professors think they are smart. It is human nature to think the people who think like you do are smart.
When taking an exam you should always try to think like the exam writer/grader.

This question is an open invitation to feed the professor's own views back to them.
You have to figure out who Althouse empathizes with, and then explain how a "smart person" would empathize with those people.

The question is "ridiculous", "stupid and insulting", or even "narcissistic and oblivious". Well, it is only "oblivious" if Althouse doesn't recognize it as an ego troll.
6.15.2009 1:39am
Mahan Atma (mail):
"What better way to test that hypothesis then by having students try to define empathy as a legal concept."


I thought the point of a con law exam was to test the students' knowledge, not to test your pet hypotheses. What are they, lab rats?

"Those who think this is a bad way to test Con Law have a point. Which somewhat undermines empathy as a legitimate qualification for a SCOTUS Justice."


What a non sequitur.

Go look at a really well-designed con law exam, if you've never seen one. (Obama himself has written some.) Typically, they are intricate hypos requiring students to apply doctrine in a skillful way that shows an understanding between the facts of cases and the rules they stand for.

I had a con law professor who was a master at it, and it was a joy to take those kinds of exams.

Maybe Althouse has some other questions like that on her exam, but this one strikes me as a throw-away.
6.15.2009 2:49am
STCL 2L (mail) (www):
The question isn't necessarily ridiculous at all. It would be ridiculous only if it were the only question asked on the exam. Sure, we as law students have to learn the black letter law, but it's the application of the law, especially in Con Law, that matters.

Maybe I am biased towards being able to think critically on your feet, but to me that's a fundamental aspect of being a lawyer, almost as much as research, writing and knowing the black letter.
6.15.2009 2:55am
Smitty3L:

"thoughtful answers" don't get good grades.


Point taken. In the hyper-competitive environment of law school where grades matter a great deal, I can see how this kind of exam would bother some. But if your standard for learning has room for "thoughtful" engagement (and why wouldn't law school have that?) then this exam question seems legitimate.
6.15.2009 4:14am
Bryan Long:
I thought the point of a con law exam was to test the students' knowledge, not to test your pet hypotheses.

As a law student who never bothered to show up for large lecture classes save the first, in the class that I did attend, I did two things: picked up the syllabus and identified the kooky pet theory I'd have to pander to on the exam.
6.15.2009 6:25am
Bob from Ohio (mail):

15 hours a day, 7 days a week


I walked to school every day in the snow, uphill both ways.

So don't flaunt your study habits at me.
6.15.2009 8:46am
Celia:
"When taking an exam you should always try to think like the exam writer/grader."

When writing almost anything at all (especially as a lawyer) you should try to think like your reader.

At any rate, this exam question does give the law student the opportunity to show thier facility with cases and the concepts of due process/equal protection, which the post says was the class material.
6.15.2009 9:07am
Upend, Coming:
By putting this question on an exam, I can see it becoming a trite exercise in citing Brown v. Board of Ed. on the one hand and some Rehnquistian fourth amendment case (defecate over a bucket, while supervised, to enter into our country? Anyone?) on the other.

As a student, my first inclination is to despise this question. Certainly, I would dislike it if the exam has only enough time to dump half or three quarters of the substantive information. A thoughtful policy question will be short-changed on many exams -- both because of the lack of time to think meaningfully about it and also because it tests memory of cases based on a mood or feeling surrounding case rationale.

For an academic, I can see this as a meaningful categorization or organizational scheme. But like most schemes, the best ones are usually first wrong before they are right. I think this question rewards categorization of this material too late in the semester -- unless this issue was clearly foreshadowed.
6.15.2009 9:14am
Seth Manapio (mail) (www):
You are all missing the point. You can apply this question to ANY supreme court decision and question if you put any effort into it at all.

I don't have any other questions to compare it to for a con law exam, but to me it reads like an essay question on any standard test. It's just an inkblot using catch phrases of the day, and if you know the grader's bias and have a passing familiarity with the course material you can ace it.

That said, since law school is supposed to be hard, I suppose that this is probably a lousy question.

But it doesn't demonstrate anything at all about Obama, criteria for choosing a justice, or quite probably a students actual understanding of the constitution.
6.15.2009 9:24am
iowan (mail):
I have encountered more of my share of students at the top of their class that could recite verbage from text books, do complex computations, etc that had not yet learned to think. I would ask a question like this. As long as the answer was accurate and logical it would recieve full credit regadless of viewpoint. I once encountered a person employed in Agriculture that graduated HS in 3 years and College in 3 years, that did not undestand how to find the linear feet needed on two sides of a square to equal an acre. Educated, NOT a good thinker
6.15.2009 9:35am
Smooth, Like a Rhapsody (mail):
The first comment won the thread.
"Poor Joshua" has been a running gag between me and my best friend from law school since the day we were taught the opinion (which came out when we were in law school).

Brown is an example because of the opinion more than the result.

The best one ever, though, might be Taney's opinion in Dred Scott.
6.15.2009 9:41am
DennisN (mail):
iowan:

I have encountered more of my share of students at the top of their class that could recite verbage from text books, do complex computations, etc that had not yet learned to think.


That's one think I appreciated on the old hand-written Professional Engineer's exam. You were graded on your approach, and were never given enough information to solve the project. You had to assume the missing bits, and label them as assumptions. You were graded, in part, on the appropriateness of your assumptions.

Now we have those machine-graded monstrosities.
6.15.2009 9:47am
Barbra:
"I thought the point of a con law exam was to test the students' knowledge"

Well, then you would not have them write an essay, at all. You test knowledge through multiple choice, fill in the blank, and writing out definitions.

If you want an expository display of legal reasoning and logic, while demonstrating facility with doctrine and text, you ask an essay question.
6.15.2009 10:06am
common sense (www):
I like footnote 4 as an example, or maybe Lochner. Cases that paved the way for later variations from the Constitution. Griswold, maybe.
6.15.2009 11:18am
[insert here] delenda est:
Frankly, I thought it was an fair enough question because it enabled students to show how much they know, but also whether or not they could usefully package that knowledge on demand.

I just wanted to point out that the answer is up, and you are all wrong (which will doubtlessly not increase your fondess for the test!). Bear in mind that the answer is the case most identified by the students - the 'clear winner' per Althouse.
6.15.2009 11:51am
davod (mail):
"Go look at a really well-designed con law exam, if you've never seen one. (Obama himself has written some.) Typically, they are intricate hypos requiring students to apply doctrine in a skillful way that shows an understanding between the facts of cases and the rules they stand for."

Can you refer me to one of Obama's well designed con law exams.
6.15.2009 12:32pm
Mahan Atma (mail):
Can you refer me to one of Obama's well designed con law exams.


Here you go. Scroll down, on the left.
6.15.2009 1:06pm
Dave N (mail):
Mahan Atma,

I read the exams. Though not an Obama fan, I found his exams both fair and well-written.
6.15.2009 1:58pm
Dave N (mail):
Oh, and I also meant to thank you for the link.
6.15.2009 1:58pm
lesser ajax (mail):
MQuinn,
I have to ask: What were you doing 15 hours a day, seven days a week, for the an entire semester? That seems like more time than is necessary to complete the assigned work. How did the semester turn our for you? I'm not implying anything; I'm just curious.
6.15.2009 2:59pm
Leo Marvin (mail):
I can't tell if she's using her blog as fodder for her classroom or the other way around.
6.15.2009 3:40pm
MQuinn (www):
Smitty:

I disagree with those saying Althouse's exam question was "ridiculous", "stupid and insulting", or even "narcissistic and oblivious". To give a thoughtful answer to her question you must know the cases very well. If you really put in 15 hours a day, 7 days a week to prepare for a con law exam, then this question would have allowed you to separate yourself from the others that merely studied the black-letter law.

I disagree. One can answer such political, touchy-feely exam questions with only a very general understanding of the cases and the Constitution's text. I haven't read Roe v. Wade in two years, but I am convinced that, if faced with this question, I would pick Roe and ramble on about the right to privacy and its lack of support in the Constitution's text. Such an answer would be just a good as the student that learned every nuance of every case studied in the class.

Heck, I suspect that non-lawyers that read this blog could answer Althouse's question and do quite well. After all, there is simply no doubt that the question was referring to the abortion cases, and most savvy Americans (even non-lawyers) are generally aware of the "judicial activist" critiques of those cases.
6.15.2009 4:23pm
MQuinn (www):
lesser ajax:

I have to ask: What were you doing 15 hours a day, seven days a week, for the an entire semester? That seems like more time than is necessary to complete the assigned work. How did the semester turn our for you? I'm not implying anything; I'm just curious.

I was exaggerating somewhat. Given how many people have fixated on to my statement, I definitely regret saying that (my fault!). But, to respond to your question, I was known as one of the harder workers in my class, and I was rewarded with a high class rank.
6.15.2009 4:24pm
NickM (mail) (www):
It probably wasn't taught in her class, but how about Flood v. Kuhn?

Nick
6.15.2009 9:36pm
Barbra:
"After all, there is simply no doubt that the question was referring to the abortion cases"

Really? Since the most popular answer from the students who took the exam was not an abortion case, either they failed or you would have (despite working 25 hours a day).
6.16.2009 8:56am
David M. Nieporent (www):
The winner's interesting. I knew of the case and its holding, but either I never read it or I did so a long time ago. (Re-)reading it now, I see how bad it really is. Ugh.
6.16.2009 2:16pm

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