The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

On Empathy in Judging

Posted by judicialethicsforum on Sunday, May, 24, 2009

President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law.  Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied.  “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says.  “It may also lead to a veritably religious veneration for the rules and their imagined author.  The sovereign and his command may be deified.”  When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law.  The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.

Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:                 

To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence.  The question for the judge is:  “Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?”

Similarly, former N.Y. Chief Judge Judith Kaye observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them. . . .  [A] far greater danger exists that they do not.”

By: Monroe Freedman, Hofstra University School of Law

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