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Wednesday, August 27, 2014

Bloom, "Against Empathy"

There has been a long debate in law about the role of empathy in judging, a debate that gained new prominence during and after the nomination of Justice Sonia Sotomayor. Those who are interested in that debate may enjoy a new essay in the Boston Review by Paul Bloom titled "Against Empathy." There are a host of responses, with a reply by Bloom. He defines empathy as "the process of experiencing the world as others do, or at least as you think they do." A couple of snippets:

I’ve come to realize that taking a position against empathy is like announcing that you hate kittens—a statement so outlandish it can only be a joke. And so I’ve learned to clarify, to explain that I am not against morality, compassion, kindness, love, being a good neighbor, doing the right thing, and making the world a better place. My claim is actually the opposite: if you want to be good and do good, empathy is a poor guide.

* * * 

Certain features of empathy make it a poor guide to social policy. Empathy is biased; we are more prone to feel empathy for attractive people and for those who look like us or share our ethnic or national background. And empathy is narrow; it connects us to particular individuals, real or imagined, but is insensitive to numerical differences and statistical data. . . . In light of these features, our public decisions will be fairer and more moral once we put empathy aside. Our policies are improved when we appreciate that a hundred deaths are worse than one, even if we know the name of the one, and when we acknowledge that the life of someone in a faraway country is worth as much as the life a neighbor, even if our emotions pull us in a different direction.

I encourage you to read the essay and the responses. I would note one pet peeve of mine about the empathy debate in law: the frequent, implicit assumption that empathy for the plight of another ought to entail legal victory for that claimant. I tend to believe that empathy is useful in judging, both because it may aid in understanding a claim and, sometimes, the wider effects of a legal ruling, and because it may enable the empathetic judge to speak more clearly and effectively to the losing side. But there is no necessary connection between feeling someone's pain and ruling in favor of his or her claim.    

Posted by Paul Horwitz on August 27, 2014 at 01:38 PM in Paul Horwitz | Permalink


Thanks for posting this, Paul. One problem with this piece is that Bloom is assessing empathy using several different metrics: whether it can be accurate about the feelings of others, whether its exercise makes the recipient feel better, whether its exercise is detrimental to the empathic person, whether empathy leads to kindness or the desire to help, and whether empathy should play a role in determining overarching policies (such as distribution of aid). Another problem, as several comments point out, is the usual definitional problem that plagues any discussion of empathy, and that can be addressed only by offering a clear definition and sticking to it, which Bloom doesn’t. Discussing emotional (as opposed to cognitive) empathy, Batson distinguishes among, for example, 1) projecting oneself into another’s situation; 2) imagining how another is feeling; 3) coming to feel the way another feels and 3) feeling distress at the suffering of another. Bloom uses all four interchangeably, but his problem with empathy seems to center mainly on definition 4 (which many people would regard as a definition of sympathy, not empathy). His most important point for the empathy and law debate, imo, is that empathy is often inaccurate, and that it takes real effort to understand those who are different from us. Judges (like other decision makers) are likely to empathize most easily with those they intuitively understand, and may be quite unaware of their selective empathy for one party. Bloom treats this problem as endemic to empathy, but it can be corrected. The fix isn’t to prohibit empathy (not sure how you’d accomplish that), but to build in ways to encourage and enable more reflective, accurate empathy toward all the litigants.

Posted by: Susan Bandes | Aug 27, 2014 3:47:17 PM

In my list of Batson's definitions, "feeling distress at the suffering of another" should have been labeled #4.

Posted by: Susan Bandes | Aug 27, 2014 3:50:09 PM

Paul writes: "there is no necessary connection between feeling someone's pain and ruling in favor of his or her claim."

It's not a necessary connection, but isn't it apparently what President Obama had in mind when he spoke about the role of empathy in Supreme Court appointments and decision-making? As I understood Obama, he was saying that "feeling someone's pain,"or not feeling that pain, is actually the key to how a judge rules in the 5% of cases with no doctrinal answer. Here's what he said in 2007:

I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. That’s one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. [Laughter] You know, he’s good to his dog. [laughter] He’s so well qualified.”

I said, well look, that’s absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges.

I take it that's why the role of empathy includes that assumption.

Posted by: Orin Kerr | Aug 27, 2014 6:12:03 PM

That is certainly what he said; whether and how much it's what he thinks, I can't say. I certainly agree that the idea that in those five percent of cases empathy will make you rule for the little guy is how his statement was intended to be read, although on reading the quote more carefully I'm not sure he actually says that. And I don't agree with such a view, in two respects: I think empathy can be useful in the 95 percent cases as well, and it shouldn't be outcome-determinative in the five percent cases. Of course, he was drawing on an existing set of ideas, and while his statement and the nomination gave the notion greater prominence, it's not original to him or to that event.

Posted by: Paul Horwitz | Aug 27, 2014 6:56:02 PM

Paul, I agree with the concluding paragraph of your post about the utility of empathy in law as a theoretical matter. However, as a practical political matter in discussions about its legal context (see, for instance, the President's remarks quoted in the comment above) those using it the most frequently mean something completely different.

As used in the legal context by progressives empathy is a code word that simply means appointing judges who, in certain limited circumstances, can use empathy to ignore precedent and the Constitution and reach predetermined just (from their perspectives)outcomes. I use the term "limited" because there are certain matters of constitutional interpretation that trump "empathy" as a value for progressives. For instance, in Kelo the liberal justices concluded that a city could force lower-middle class homeowners to sell their residences so that the city could turn their properties over to a large corporation. Why? Because "planning" is a highly valued public good that overcomes any empathy you may have for someone who has lived in their home for decades and does not want to leave it. In Raich the liberal justices declared that a woman living with a painful cancer and using marijuana for medicinal purposes in compliance with her state's laws would still be subject to the enforcement powers of the DEA. Why? Because the highest of all values for progressives, much more important than empathy, is to ensure that the commerce clause can never be construed to limit federal government action. We learn a lot about real priorities when people are faced with choosing between a professed value like "empathy" and their real values. That's why the current discussion of empathy in the legal context is a phony issue about which, other than for rhetorical purposes, I am sure the President is aware.

Posted by: MS61 | Aug 27, 2014 8:49:06 PM

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