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Monday, July 06, 2015

More empathy

Paul closed comments on his excellent post on the distinction between empathy and sympathy (and, as a third element, compassion). I will just second Paul's remarks by recommending Thomas Colby's 2012 article in Minnesota Law Review, which I reviewed for JOTWELL. As I wrote here, this exchange between Sen. Kyl and Elena Kagan during Kagan's 2010 nomination hearings both exposed the confusion many have over the terms and had the potential to explain the role empathy actually plays in judging, although I don't think anyone recognized it at the time.

Posted by Howard Wasserman on July 6, 2015 at 10:39 AM in Howard Wasserman, Law and Politics | Permalink


Howard, I don't think the problem during the Sotomayor and Kagan hearings was that "many" people were confused about the distinction between sympathy and empathy. As Colby's excellent article makes clear via extensive discussion of the literature, by 2012 legal scholars had been arguing for at least 25 years that empathy (as you and Colby describe it) plays an important role in judging. As Colby discusses, Lynne Henderson, Toni Massaro, Robin West, Martha Minow, Kim Wardlaw, Kathy Abrams, Terry Maroney and I, among others, have made these arguments, and several have drawn the distinction between sympathy and empathy (see e.g. http://www.cardozolawreview/content/denovo/BANDES_2009_133.pdf). Colby describes the conflation of sympathy and empathy not as a generally shared confusion but as an argument made by politicians opposed to the Sotomayor and Kagan nominations and also by a small group of conservative scholars. The argument against their view was certainly out there prior to the hearings--they just didn't agree with it.

Posted by: Susan Bandes | Jul 9, 2015 12:21:32 PM

And doing so requires a real, deep engagement with and understanding of the legal and factual positions offered by the parties. That's exactly what empathy is.

Posted by: Howard Wasserman | Jul 6, 2015 4:38:33 PM

With all due respect, there is an oath that justices take which obliges them to promise: "I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God."

Their oaths are recounted at this SCOTUS link:


Posted by: Eugene Pekar | Jul 6, 2015 4:35:11 PM

Those who are interested in an empirical assessment of the "empathy in judging" issue should take a look at Wistrich, Rachlinski, & Guthrie, "Heart vs. Head: Do Judges Follow the Law or Follow Their Feelings?," 93 Tex. L. Rev. 855 (2015). The very general answer (the article makes important points about the nuances): Judges are influenced by their feelings about the litigants.

Posted by: Bob Rocklin | Jul 6, 2015 11:58:09 AM

Just a quick note of thanks to Howard, and of explanation. I closed comments on my post because, aside from the fact that I do so much more often these days, I also prefer to leave comments on only when I can keep an eye on them. Views and policies differ on this, but that's my preference. In this case I will be largely occupied by other matters over the next few days and thus decided to close comments to that post. I wasn't trying to be hard-hearted or anything.

Posted by: Paul Horwitz | Jul 6, 2015 11:23:16 AM

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