Comments on: Law and Empathy

By: Other Ezra

Other Ezra — Fri, 29 Feb 2008 18:35:20 +0000

I’ve complained before about the tendency, which I think is at least somewhat more pronounced (or at any rate, more overt) on the left to evaluate legal decisions by asking whether we like the group that benefits from a ruling in a particular case.

Overt is the keystone here. Surely you don’t credit conservative mouthing of the phrase “strict constructionist,” as meaningless a term as any in politics.

An umpire who calls everything for the home team, if asked to explain his reasoning, would like as not echo Justice Roberts’s homily on “balls and strikes.” He might even believe it.

By: Tony

Tony — Fri, 29 Feb 2008 14:36:49 +0000

Your assessment is a well-thought-out version of my initial reaction to Prof. Bainbridge’s concern.

Sen. Obama’s statement is worrisome, but I don’t consider it any less worrisome than legislators taking the exact opposite approach and demanding stiff penalties for any offense against society’s sensibilities. We should punish crime (with a libertarian perspective, of course) but punish with an understanding that an offender’s actions aren’t necessarily caused by an irredeemable unwillingness to get along in society. Three strikes laws are the mirror image of what Prof. Bainbridge doesn’t like about Sen. Obama’s remark.

(I have no idea what Prof. Bainbridge thinks of three strikes laws. I’m claiming nothing more than very few in public life act in any way different than Sen. Obama’s statement.)

By: Hui

Hui — Fri, 29 Feb 2008 04:12:14 +0000

Not sure I see any agreement with Bainbridge here. He seems to think that empathy is never — in any case under any circumstances — necessary or a good thing.

By: Raghav

Raghav — Fri, 29 Feb 2008 02:05:10 +0000

Couldn’t this be just a fluffy way of saying that he would appoint judges who would try to protect “discrete and insular minorities”—the sort of jurisprudence most famously defended by John Hart Ely in Democracy and Distrust?

There’s plenty to disagree with in such a theory of constitutional adjudication, but I don’t think it’s unprincipled in the sense that it directs judges to vote for the same outcome they would as a member of Congress. After all, Ely came out big against Roe.