Passions and Emotions: NOMOS LIII

11. Anti-Empathy and Dispassionateness in Adjudication

304 11 ANTI-EMPATHY AND DISPASSIONATENESS IN ADJUDICATION BENJAMIN C. ZIPURSKY 1. Introduction Robin West’s depiction of the anti-empathic turn in adjudication1 is credible, detailed, and depressing. Most striking is the contrast she draws between the pervasive historical acceptance of the importance of empathy in a great judge and the prevalence of an anti-empathic jurisprudence today. I agree with West on several of her important claims: that this shift has occurred and that it is unfortunate that it has occurred; that Judge Skelly Wright’s decision in Williams v. Walker-Thomas Furniture Co.2 is defensible and commendable ; that empathy has an important epistemic role in adjudication ; and that moral principles underlie the common law and that a scientistic turn has moved us away from these principles. Nevertheless, there are several junctures at which I disagree with Professor West’s rich and provocative essay, and so I shall begin by setting forth two of my disagreements. The latter part of this commentary highlights two especially valuable contributions of Professor West’s article, aiming to push them further than West has done. In her eagerness to defend the role of empathy in adjudication , Professor West has embraced a sort of rationalism that purports to show why empathy is critical to legal reasoning. While Anti-Empathy and Dispassionateness in Adjudication 305 the first part of this response raises questions about whether empathy is as critical to legal reasoning as she asserts, the latter part suggests that empathy may sometimes be significant in adjudication in legitimate and important ways that should not necessarily count as part of legal reasoning itself. 2. The Role of Empathy in Legal Interpretation West appears to depend upon two different arguments for the epistemological claim that empathy is necessary in adjudication. One is that analogical reasoning requires empathy, and a second is that traditional common-law reasoning is rooted in particularistic, backward-looking reasoning from moral principles and that reasoning of this type requires the utilization of moral sense, which, in turn, requires empathy. Let’s start with analogy. West argues that judges must answer questions about whether there is sufficient similarity between two distinct things in order to engage in analogical reasoning, which is in turn required to answer legal questions like: “Is the doctor’s promise to make the hand whole enough like the manufacturer’s promise that the machine will work that it makes sense to view both of these promises as warranties?”3 In order to do so, she writes, one must also know something about feelings of loss: what does it feel like to lose the use of a hand or to lose even just a slight possibility of years of life? One must know something about pain: what might that injury feel like? How does it feel to be denied something that was promised? One must know something about desire, and need, and frustration: what is the basis of the need or desire to marry, to have one’s intimate relations sanctified by the state as well as by religious authority? How does it feel to be denied something important because of an “immutable characteristic”? One must know something about the subjective feel of promising, and of warranting , and of diagnosing, and of discriminating.4 She then concludes: “Analogous reasoning by definition seemingly requires empathic understanding, at least where it is people’s utterly subjective situations, problems, fears, anxieties, suffering, opportunities, dreams, and foibles from which and to which one is analogizing.”5 306 Benjamin C. Zipursky There are two problems with this argument. First, part of what reasoning by analogy involves is selecting commonalities between two superficially different kinds of things. For better or worse, the commonalities selected are typically objective features. Moreover, the grounds for deeming the commonalities sufficiently similar to warrant the same legal treatment typically involve a principle that engages the diverse scenario in similar ways. It is simply not clear why it is relevant to know what it would feel like to have a damaged hand in ascertaining its similarity to a defective machine. The second problem is greater than the first, for perhaps Professor West simply chose an unfortunate example. Even if we assume that it is important to be able to reflect on what it feels like to have a damaged hand, it is not clear why empathy is required for that. Each judge will likely have had some body...