I wonder if the discussions about "empathy" that we're likely 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 second category; another will say empathy is absolutely necessary, thinking of the first. 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.

  UPDATE: It occurs to me that an example might be helpful, so here's a highly stylized one that can at least focus the debate a bit (although I'll make up the hypo in a way design to keep the debate going, not end it).

  Imagine a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is "very painful," but that claims seeking to avoid the method of execution must be filed more than 48 hours before the scheduled execution occurs and are defaulted if they are filed later. Two prisoners facing the same method of execution file their petitions. Prisoner A files his petition seeking to avoid the method of execution 72 hours before his scheduled execution. Prisoner B files his petition seeking to avoid the method of execution 47 hours before his scheduled execution, 1 hour late.

  I think everyone would agree that judges would need empathy to evaluate Prisoner A's claim accurately. Empathy is legally relevant here: Judges would have to learn all about the setting of the execution, and to imagine how painful the method of execution would be from the standpoint of the condemned. This is doctrinally relevant empathy, and it's not controversial. Of course, there could be controversies over what empathy requires, with different people reaching different conclusions about what methods of execution are "very painful." But no one disagrees that empathy is relevant and necessary to decide the case.

  On the other hand, the role of empathy in deciding whether to hear Prisoner B's claim despite being filed an hour late is genuinely controversial. Empathy isn't directly relevant to the legal issue, at least as I have framed it: The only issue is the timing of when the claim was filed. But different people will have different views about whether it is appropriate for judges to take into account what they may see as injustice — drawn, perhaps, from their views of the death penalty and the fact that the claim was filed just one hour late — to look particularly hard at whether they can fashion a rule that allows the claim despite being filed too late.