Law in Contemporary Society

A Pathetic Reading of Empathy

What I Said

At the end of the semester, I wrote a poorly conceived essay about whether Lord Coleridge would be confirmed as a Supreme Court Justice based on President Obama’s condition that Justice Souter’s replacement, in addition to other relevant qualifications, have empathy. This essay discusses the same topic in a substantially different vein.

What President Obama Said

Referencing the Lilly Ledbetter pay discrimination case, Obama stated that empathy was an "essential ingredient from arriving at just outcomes and decisions." Not surprisingly, his comment triggered a number of responses, mostly from conservatives and “textualists”, that empathy has no place in judging. Instead, these critics cited the well-worn metaphor of judges as umpiresdisinterested parties who adhere to clear, rigid rules—as the paragon of legal arbiters. Of course, the metaphor unravels quickly when you ask someone to point to the MLB rule that describes the strike zone (hint: It doesn’t exist.)

Amid these clichéd analyses of judicial qualifications, I stumbled upon Stanley Fish’srecent piece in the New York Times, which discusses Obama’s “invocations of empathy”. While the overall message was quite predictable (precedent and established legal principles=good; decisions based on outcomes=bad), I was struck by two aspects of the piece. First, Fish invoked Felix Cohen’s Transcedental Nonsense, which was pretty cool, but unexpected for an op-ed piece in 2009. Second, and more importantly, Fish completely bastardized the theory underlying Cohen’s piece, in the hopes of drawing a connection between Cohen’s view of law and Obama’s.

Before beginning, I should define what I mean by the words “empathy” and “consequentialism”. I define empathy as “an ability to understand the feelings of another, possibly because of shared experience.” Consequentialism means “the process basing one’s judicial decisions, in large part, on the impact that the decision may have on present parties and those in the future.”

What Fish Said Cohen Said

While describing Cohen’s work as “ferociously funny”, Fish is dismissive of Cohen’s concern with “human activity, cause and effect, with the past and the future.” In order to link Obama to Cohen, Fish argues that this Cohen’s concern amounts to an analysis of whether rules are or are not socially desirable, which, somehow, is akin to empathy.

After reading this, I was less surprised by Fish using Cohen as a vehicle for empathy—there seem to be some many more obvious and accurate ones available—than the fact that Fish, while arguing that Cohen thought that law was not “pure geometry”, ignored Cohen’s attempt to think about law empirically and scientifically. Part of the aim of Transcendental Nonsense was to eliminate concepts that, while operating under the guise of logic, were merely self-referencing tautologies. In other words, certain legal concepts proved to be faulty building blocks for constructing a coherent legal science; the quixotic jurists of Von Jhering’s dream would do better to recognize the complexity of law than to pretend that those blocks would bond seamlessly by the adhesive of pure logic.

More troubling is Fish’s reduction of consequentialism to empathy. Interestingly, critics of empathy invoke it only to describe empathy for minorities and other traditional losers in the legal process. Fish, opting to use a different definition than mine, calls it “a fellow feeling for those on the wrong end of the stick” (I don’t think that’s actually an idiomatic expression). I’m not sure why Chief Justice Roberts’ decision in Caperton v. Massey isn’t empathy of a different sort—does the reluctance to expand standards of recusal under the Due Process Clause not invoke empathy for judges or, more specifically, for the Court itself? Perhaps judges have traditionally been on the “wrong end of the stick”?

In any event, though there’s some relationship between the two, understanding who the parties are (presumably empathy) is different from thinking about what will happen to them if the rules are applied in some fashion (consequentialism). Fish misses this point, either because he was trying really hard to plug Cohen’s essay or because he extrapolated Cohen’s analysis of how judges make decisions into a process that, by relying on things other than precedent or established principles, should be classified as “empathetic.”

What Cohen Actually Said

This, of course, is inaccurate. Instead Cohen’s point is to account for decision-making by identifying the types of things judges are likely to consider. Cohen’s judge is not unconcerned with traditional legal analysis: he believe judges should ask 1) what forces will tend to conform judicial conformity; 2) what forces will tends to evoke new treatment for the transaction in question and 3) how have these courts dealt with the transaction in the past. All of these questions clearly indicate that any judge should be prepared to grapple with precedent. But Cohen’s larger point—which the umpire analogy misses, and Fish overstates—is that judging, at least in hard cases, involves making ethical decisions, not logical ones. That judges rely on their ethical views to decide cases is a factual statement, not a stated preference.

Nowhere in the essay does Cohen mention “empathy” or “feeling” or “understanding” (at least as between judges and parties. He does propose that lawyers and the legal profession study judicial decision-making, suggesting that this might be a more useful scientific endeavor than constructing a hair-splitting machine. But surely, arguing that we should take the ethical values of judges seriously does not mean, by extension, that Cohen supported empathy; it does mean that he recognized that judges might have it.


Rather than thinking about Cohen’s piece as a foil describing an undisciplined approach to the law, Fish (and other critics) would do far better to recognize the difference between discussing how judges should decide cases and how judges do decide cases. In the end, Cohen’s approach gives us more to consider, more to build on, and a more sensible alternative to mere balls and strikes.

  • A lovely essay, in my view, not least because it achieves seriousness without being serious. I used to think that Stanley would be an ideal teacher for this course, but he elected not to teach it when he visited in the spring of 1995, while I was away somewhere. As you have showed, he'd have learned something by teaching it, as I always do.

  • I also used to think that Stanley kept a mental midget around to do occasional duty writing columns in the Times. (I think of him as being one of the Zapf dingbats, a relative of my friend the Econodwarf, but that's another story.) The essay you so thoroughly take to the cleaners here was puzzling for me, however, because I found it improbable that the midget too had been exposed to Transcendental Nonsense and the Functional Approach. This in turn implied that Stanley had something actual to do with the composition of the essay, which was disheartening, because—as you say—whoever wrote it didn't seem to have the vaguest idea what Felix Cohen actually said. I concluded that the midget had received a light briefing, including some vague references to Cohen's article, and had winged it. The only plausible alternative was that Stanley had phoned it in, with utter disregard for his readership and reputation, without checking anything or bothering to refresh his recollection, almost as though he were Tom Friedman, or Abe Rosenthal.

  • Anyway, you are ascertainably correct on all points, although it seems to me that your conclusion is faint: any conceivable theory of judging, including most wrong ones with almost nothing to recommend them, "give[] us more to consider, more to build on, and [are] a more sensible alternative to mere balls and strikes." The whole point of the umpire comparison, as you of course realize but don't say, is that it bears no relation whatever to judging. It doesn't even bear much relationship to actual umpiring, as you point out. But it does bear a significant relationship to mythology: it consolidates through a homely vernacular image the bullshit idea that law is a realm separate from politics. No one seriously believes this, but it is a very important part of how things necessarily work anyway. (Have you met my friend Thurman Arnold, by any chance? Thurman, Stanley. Stanley, Thurman.) As a statement of creed, it plays a useful and important role as a subsidiary moving part in the machinery by which we prevent one of the cardinal elements of our creed, Equality, from actually meaning anything.


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r8 - 08 Jan 2010 - 22:42:38 - IanSullivan
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