Law in Contemporary Society

What is the role of empathy in law school, if there is one at all?

-- By HilaryRosenthal - 20 May 2017

Motives and being emotionally open in law school

When I realized that I was the most emotionally-open of my law school classmates, I was in shock: I had never been the most emotionally intelligent of my friends. The realization made me reconsider the role of empathy in the law and my decision to come to law school: I aspired to be an advocate for people and natural places that are too often marginalized for economic or other short-term incentives, and felt that these could often be combatted only with a sense of empathy. With current cases such as the Dakota Access Pipeline, it is staggering to me how the law permits ignoring an entire culture’s livelihood in favor of short-term job growth, at best. If my purpose for coming to law school was to use not only logos but also pathos to fight for a client, then what did it mean that in my classes, and concurrently in society, empathy was overlooked?

I find that, either because there is little time offered in law school to actually think of “human beings as containing a person,” or because it is seen as weak to be affected by the pressure of cold-calls, specious exams, and not having a moment to breathe, law school has rarely seemed like a community with emotional support. It has made me wonder how much empathy and emotional intelligence really matter in law when it is not what I am being graded on. The notion that our grades are determined by churning out nearly identical and identity-less exams that do not necessarily evaluate intelligence, grit, or passion- otherwise important qualities in the legal field as I understand it- does not seem to reflect what I came to law school to do, and has left myself and many of my classmates despondent. The pipeline-like path of Columbia students who overwhelmingly head to big firm jobs has little tolerance for but urgently needs empathy.

Why empathy in law school and the legal field matters

Columbia’s own Jamal Greene once explored the role of empathy, or a lack thereof, in the legal field. Jamal Greene, Pathetic Argument in Constitutional Law, 113 Colum. L. Rev. 1389 (2013). In his article, Greene analyzes the role of pathetic argument, the method of persuasion by appealing to the emotions of the reader or listener. Only in very few instances have I found that discourse to be a part of my experience in law thus far.

In my opinion, empathy is one of the most crucial qualities of a lawyer. At the end of the day, a lawyer is responsible for her client, and ultimately, for justice. To consider your client’s wishes, background, and point of view is to be empathetic. Being able to openly and honestly express one’s feelings, and in turn try to understand them from another’s perspective, fosters healthy relationships, a way to deal with stress, and build rapport. As James Scarlett attested, an advocate is stronger when he can use emotion to form a bond with his audience and "[blend] his mind with the minds of the jurors." Waicukauski, Sandler & Epps 2.01, at 12. An attorney can use empathy to associate his case with a listener's values and truly understand where his client, his audience, and even his adversaries are coming from. Id. If we as law students do not make an effort to understand ourselves or others, there may be a vicious cycle of lacking the ability to do so in society at large.

And yet, there is ambivalence toward the appropriate role of emotion in legal discourse. Greene notes that many scholars typically ignore or dismiss emotional appeal as a mode of persuasion in constitutional law, most likely out of a concern that invoking pathos requires a judge to individuate decisionmaking that should be general. As the majority stated in Roe v. Wade, “our task…is to resolve the issue by constitutional measurement, free of emotion and of predilection.” Roe v. Wade, 410 U.S. 116 (1973).

When President Obama nominated Justice Sotomayor for the Supreme Court, declaring that empathy is “a necessary ingredient in the kind of justice we need on the [Court],” then-Senator Jeff Sessions professed that “empathy” is a code-word for prejudice. Greene, Pathetic Argument in Constitutional Law, at 1407. But I see no reason why empathy and impartiality have to be mutually exclusive. Adam Smith himself, seen by many as the founder of modern day economics that bastions rationality over all else, wrote that even economics cannot be free of emotion; human beings are not as logical as our canon of jurisprudence would like to believe. Adam Smith, The Theory of Moral Sentiments (1759).

How to exercise empathy in law school and the legal field

The times when I have most realized I am meant to be here have been when I was empathetically working with others. The few moments that have reaffirmed my enrollment in law school include assisting minors who are seeking asylum in the U.S., sharing personal stories at Wounded Knee after the election, and while participating in a conversation about restorative justice in tribal courts. These events reminded me that perhaps justice can be sought via connecting with other humans. All of these events occurred outside the typical curriculum and I had to take the time and energy out of other activities, such as my classes, to pursue them.

I would not go so far as to say that we are taught that law should be void of emotion; otherwise, policy would have less backbone. However, the pillars of precedent often nudge out conversations about emotional and social impacts of a law. I do think empathy has a place in the law, and it needs a more prominent role in law school. If the legal system is built to try to address injustice, to ensure all have due process, then we need to start with caring about the well-being of ourselves, our fellow students and staff, and our fellow citizens.

Word count: 998

Note to Eben: Regarding your comments on my first draft, I debated for a while the direction in which to take my piece. I ultimately decided that exploring the notion of empathy and the law was a valuable discussion, although I cannot say I have much expertise in the matter- writing about my own personal experience in law school would be easier, but I think you are right when you say it may serve more aptly as a hook. Therefore, I tried revising this essay with the notion in mind that I won't know all there is regarding the history and theory behind empathy and the law, but hope this essay is at least a start and a rumination on the topics I could find and explore.


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r4 - 25 May 2017 - 16:06:45 - HilaryRosenthal
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