Category: Jurisprudence


What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice

heart1aThere has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30” side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

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A Right to Be Punished?

From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

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Smart. Smart! Smart?

Oliver Wendell Holmes

Oliver Wendell Holmes

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”

I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.

There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment.  And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest.  Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.


Posner’s Anxiety, Cardozo’s Influence

shackles.jpgHarold Bloom’s The Anxiety of Influence is a theory of ambivalence that “strong poets” feel toward influential predecessors and techniques successors use to fight resulting anxiety of influence. One detects hints of a parallel story in Richard Posner’s encounters with Benjamin Cardozo.

Bloom highlighted Wordsworth’s struggle with Milton. The thesis is that poetic influence is no simple transfer of method from strong predecessors to strong successors. The process makes life difficult for successors when predecessor influence is so hefty that strong successors cannot absorb it passively. They fight to avoid having predecessor’s power subordinate the successor to the status of imitator.

Strong successors fight the anxiety of influence to secure creative space. The fight is hard, given how predecessors influence not only a successor’s world but the successor’s contemporaries, equally under the influence that produces the anxiety. Strong successors cannot ignore strong predecessors but cannot passively absorb them. Strong predecessors must be reread (even misread), revised, undone, and completed—and still their shadow persists.

Posner may be Wordsworth to Cardozo’s Milton, or so I speculate in the conclusion to a draft article called Cardozo and Posner: A Study in Torts (companion to my 1995 Cardozo and Posner: A Study in Contracts). Bloom posits four phases of the process strong successors endure to battle the anxiety of influence against their strong predecessors, that I adapt and rename: (1) revising Cardozo down; (2) completing Cardozo; (3) undoing Cardozo; and (4) the haunting Cardozo.

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The OLC Memos

I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

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The Separation of Church and Market?

Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:

In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws ­ laws not promulgated with the intention of affronting anyone’s conscience ­ the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:

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The Real Face of Shar’ia

800px-IslamicGalleryBritishMuseum3.jpgGenerally speaking, when Americans hear about shar’ia it conjures up images of bearded and turbaned Taliban executioners gleefully stoning women to death in an Afghan soccer stadium. It is an unfair stereotype of a great legal tradition, and it is also one that misses some of the most important issues that shar’ia raises for the modern world. As usual, if you want to find the real action follow the money.

In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about Islamic strictures against usury to do? Islamic law forbids the taking of interest, but certain transactional structures that allow some return in exchange for tying up capital are allowed. For example, a straight out purchase-money loan with interest secured by a mortgage on a the purchased house would violate Islamic injunctions against usury. On the other hand, if the bank buys the house, leases it to the resident for a period of years, followed by the resident’s purchase of the house at the expiration of the lease for a nominal sum, it does not violate the injunction. The game in Islamic finance is to come up with ways of structuring transactions so as to generate an attractive rate of return for investors without running afoul of the strictures of shar’ia. The result has been a cottage industry of banks and lawyers experimenting with various transactional structures and then rushing to find a reputable Islamic legal scholar willing to issue a fatwah validating the deal for Muslim investors.

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I Trust NFL Referees More Than I Trust Federal Judges

Or at least, I have more faith in their neutrality than I do in the neutrality of judges.

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think that these some of these similarities are in areas that do not refelct well on either judges or umpires, and that, when you compare NFL officials and judges, you have a lot more reason to trust the competence of NFL officials than those of judges. And that’s mainly because (unlike Somin) I think judges and umpires have similar incentives and that the incentives of NFL officials are better.

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Originalism and the Virtue of Constitutional Piety

constitutionalconvention.jpgOver the weekend, I loaded my iPod with a lecture by Larry Kramer and listened to him talk popular constitutionalism while I mowed the lawn. At one point, he went out of his way to insist that he was “profoundly anti-originalist,” a statement that he qualified by saying “if by originialist you mean that we should do something just because that is what the founders said or intended.” My first reaction was that Kramer was responding to a straw man. Originalism is not a form of mindless filial piety, it is a theory of textual meaning and adjudication. The notion that the meaning of a legal text is best construed by reference to the times in which it was written, and that judges are bound by rule-of-law values to ground their decisions in that meaning seems like a thoroughly respectable jurisprudential theory. As I emptied the grass clippings into the compost pile, however, I started re-thinking my reaction to Kramer’s throw-away line. Yes, he was responding to a straw man in so far as judicial or academic originalists are concerned, but surely when it comes to popular originalism there is a certain ancestor worship going on. Might there be something to be said in defense of such piety?

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