Document Type

Article

Publication Date

2011

Abstract

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges and justices.

Somehow, however, this idea, viewed as so utterly mainstream for much of the last century’s worth of writing about judging, has, in the first decade of the twenty first century, become positively toxic, at least in the context of confirmation battles to the Supreme Court. What was once regarded as non-problematically central to good judging is now regarded as antithetical to it. No one challenged this claimed antipathy between empathy and judicial excellence. How did that happen?

The anti-empathy turn currently being expressed or implicitly endorsed by very high ranking judges and justices in our understanding of judicial ideals, I will argue, is part of a larger shift in our paradigm of what good judging should be. That paradigm shift, I believe, is most clearly revealed, not in the Supreme Court confirmation battles that spill over on the front pages of newspapers, but in the pages of law review articles and in the law school classroom. Its consequence, I will argue, is sharply felt, not only or even primarily in the Supreme Court’s handling of the major social and constitutional issues of our time (which are better explained by political ideology), but rather, in scholarly treatment of the common law of contract and tort– areas of law that have for a couple of centuries now formed the core of our understanding of the judicial craft. The anti-empathic turn, I want to argue, is a part of a "paradigm shift"– with apologies for the cliché–in our ideals of good judging, and it's the perhaps unintended consequences of that paradigm shift that I want to explore.

In the first section, I contrast the traditional and more contemporary approach to the unconscionability doctrine, using the iconic case Williams v. Walker-Thomas Furniture Company, and its scholarly treatment, as emblematic. In the second, I briefly explain how, in my view, this shift in the scholarly treatment of Williams v. Walker-Thomas (and related policing doctrines more generally) is reflective of and in some ways masks a larger shift in our guiding paradigm of adjudication–a shift away from a paradigm of moral judging to scientific judging. In the third and concluding section, I will offer some suggestions as to why this new paradigm has taken such a hold on our legal imaginations, and will briefly criticize it, both specifically with respect to the unconscionability doctrine, and more generally. I will urge a return to a more classical understanding–one which rested quite explicitly on the centrality not only of precedent (Blackstone, common law rules and so on) but also of moral passions and moral emotions to the work of judging, of which empathy and sympathy both are sizeable parts. Mostly, though, in this essay I just want to put in the record, so to speak, a piece of evidence for the claim that we have seemingly turned our back on a vision of moral judging that once embraced what Adam Smith dubbed the "moral sentiments" as essential to the work of judgment.

Publication Citation

NOMOS (forthcoming)

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