Monday, May 25, 2009

Judging, Empathy and the Law: Part II

If you are going to pursue truth, you have to be prepared to change your mind!

[Judging, Empthy and the Law: Part I]

In some areas of law, the law itself requires judges to exercise empathy

Judging is far more than application of set mechanical rules, twisting wrenches and tweaking fits.

Laws regulate human interactions: in serving us through making judgments, judges are in the thick of the human activity being regulated, applying an immense range of skills. We owe it to them to not inadvertently dismiss their work as no more than the application oft vice grips and hammers, and fine tuning with the torque wrench.

Some people, primarily conservatives, have challenged the idea that judges, such as Supreme Court judges, should have empathy; they argue that judges should just “interpret the law” (and that “empathy” is just a code word for “activist.”)

But, some areas of law not only allow judges to exercise their powers of empathy, they require judges to exercise their powers of empathy in making their decisions.

The required judicial power of empathy is illustrated in two ‘recent’ Supreme Court cases regarding school search and seizure programs, in opinions written by Justice Scalia, in Vernonia v. Action, 1995 (“Vernonia”), and Justice Thomas, in Pottawatomie Cty. V. Earls , 2002 (“Earls”). The cases involved the Fourth Amendment search and seizure provisions.

Such cases, involving prospective programs of searches and seizures, require three determinations:
(1) the degree of invasion of the subjects’ privacy,
(2) the degree of the state’s interest in the searches, and
(3) the degee of effectiveness of the class of searches under review.

The third can be determined by relevant studies; the second by studies and understanding of the state’s public policies and the state’s interest in regulating students’ private and public activities.

The first factor, however, judging the degree of invasion of privacy, requires the judges to exercise their powers of empathy.

In Vernonia, Justice Scalia wrote:

“School sports are not for the bashful. They require "suiting up" before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.”

The court’s decision hinged completely on the judges’ degree of empathy for the affected students’ privacy feelings and expectations.

Similarly, In Earls, Justice Thomas (despite a need arising from the different facts in the case to minimize the expectation of privacy leg of the "decisional 3-legged stool") also used his own powers of empathy to declare:

“We therefore conclude that the students affected by this Policy have a limited expectation of privacy.”

Empathy: "the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another" ( is a necessary quality in those people entrusted to judge us in our day to day lives

Law and Judging

People often envision law and legal analysis as little more than finding the appropriate rule, sub-rule, or sub-sub rule exception to the sub-rule... or rule.

Lawyers call such a construct “black letter law.” And there are many legal questions involving black letter law: to referee student sports in State X, you must hold required certificate Y; when driving you must stop at red-lights (unless you are an emergency vehicle on a run and sounding your siren and pulsing your emergency lights, etc.)

But, especially for cases which end up before a judge, there is no clearly applicable black letter law: the facts are such that we need a neutral party to judge them. (The easy, black letter law cases usually don't end up in court: few want to pay high legal expenses where the outcome is certain and courts have various powers to avoid wastes of their time.)

When real controversies arise for the courts, determinations as (i) what the law is and (ii) how it should apply to a given fact situation require far more than simply knowing the potentially applicable rules, sub-rules, and sub-sub exceptions to the sub-rules.

Worthwhile determinations also require judges to understand and apply the underlying rationale for the rules, the precedents set by earlier cases, and the intent of the law makers (such as representatives when they legislate.

Because we are a common law legal system where, through precedent, the decisions made by one court can control or persuade later cases, legal determinations also require judges to anticipate how their decisions will affect future activities and decisions of the public at large.

Good judging requires far more that simply deciding which rule applies or knowing how to merely“interpret”a rule. Those are necessary and important qualities, but they are only the start. To suggest they are sufficient qualities for a judge is to inadvertently dismiss the many skills needed and used by that particularly valuable species of public servant.

Often, the law itself requires judges to exercise their power of empathy.

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