tag:blogger.com,1999:blog-6329595.post8001727152881197206..comments2024-03-19T01:36:13.744-05:00Comments on Althouse: The "empathy" exam.Ann Althousehttp://www.blogger.com/profile/01630636239933008807noreply@blogger.comBlogger55125tag:blogger.com,1999:blog-6329595.post-82726778544737899172009-06-24T14:18:19.604-05:002009-06-24T14:18:19.604-05:00The political capital required to appoint a Suprem...The political capital required to appoint a Supreme Court Justice. Obama will replace a liberal with a liberal , so this won't be interesting until we got names. Justice Souter, appointed by President George H. W. Bush in 1990.<br /><br />Thanks,<br />Amanda<br /><a href="http://www.asiarooms.com/" rel="nofollow">my site</a>Unknownhttps://www.blogger.com/profile/14889191327194375719noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-50178820598756273942009-06-15T11:35:31.839-05:002009-06-15T11:35:31.839-05:00Plyler won for good reason.
And the disastrous re...Plyler won for good reason.<br /><br />And the disastrous results of Plyler (which are, for obvious reasons, more obvious to those of us on the Mexican border than those of you on the Canadaian) show decisively that empathy is a terrible reason to make decisions based (nominally) on the Constitution.<br /><br />It's bad enough when ordinary legislators make decisions on "empathy", but when our robed masters do it, and the inevitable disaster follows, there is no recourse.David Rogershttps://www.blogger.com/profile/06893690215814298857noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-67393799268945159132009-06-15T10:10:37.489-05:002009-06-15T10:10:37.489-05:00Flexo,
I agree with all your characterizations of...Flexo,<br /><br />I agree with all your characterizations of Buck v. Bell. It is perhaps the most undercited due process case for obvious reasons. I had the pleasure of hearing Michael Crichton challenge a meeting of the skeptics society of that decisions and the progressive ideals it embodies.<br /><br />That said, I think it is overly semanticized to suggest that Holmes is working from 'empathy' as it is understood in this discussion which is as favoring the little guy.<br /><br />So citations to Kelo and conservative empathy have propriety, but I think Holmes ruling is out and out policy preference. It doesn't disguise itself as empathetic. Of course Holmes has empathy for those who agree with the outcome, but I think it pushes the point a hair.<br /><br />FWW,<br /><br />Brianoccidental touristhttps://www.blogger.com/profile/11141534990110411903noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-62288831131175663192009-06-15T09:46:04.759-05:002009-06-15T09:46:04.759-05:00No pulling OT.
I think it pretty clear that those...No pulling OT.<br /><br />I think it pretty clear that those who would use empathy as a standard for judicial decisionmaking tend to go hand-in-hand with those who advocate eugenics. To be sure, Holmes' whole judicial philosophy of "legal realism" is an exercise in judicial empathyism. Make no mistake, Holmes ranks right up there with Taney as one of the greatest evils of the Court. And his contemptuous remark, "three generations of idiots is enough!" is hardly an expression of objective constitutional interpretation.<br /><br />There is a place for empathy. That should not be denied. But the place for empathy is in equity, not at law. The day that they started merging the law courts and the equity courts was the day that law, as such, went right out the window and everything was subject to being decided on the judge's whim, even if wrapped in nice precedential clothing.Benderhttps://www.blogger.com/profile/09322135500288738561noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-82230481801442155362009-06-15T06:52:44.723-05:002009-06-15T06:52:44.723-05:00Downtownlad -
"Conservatives ignore the &qu...Downtownlad -<br /><br /><br />"Conservatives ignore the "just compensation" clause, and want the government to be forbidden from taking property under any scenario. Via activist judges to boot."<br /><br />conservatives have been the only ones acknowledging the existence of the "just compensation" clause for years -- Lucas, Nollan, Dolan , etc.<br /><br />Now I do you think you can make out a case that there is a conservative empathy that animates discourse in this arena. This is the conservative little guy vs.the system meme.<br /><br />Think any of the inverse condemnation cases in which Scalia beats up the government for infernal delay and multiplicity of overlaying jurisdictions and procedural frustrations.<br /><br />Other commentors have capably pointed out that the question in Kelo was not compensation -- which conservatives favor -- but "public use" which they want tested more vigrously.<br /><br />You can make out a case that Kelo was rightly decided, but the poster's point wasn't to reargue the case. Rather they indicate the man bites dog residence of the empathy in that proceeding.<br /><br />I'd say you've got a fairly wide chip on your shoulder regarding this case and the widespread approbation of the result that makes it the Plessy of our age -- elevating social concerns and structure over individual liberty and dignity.<br /><br />Flexo -<br /><br />If you're still there I'm wondering if I am recalling Holmes's terse prose correctly or if you are pulling our leg placing Buck v. Bell in the empathy column.<br /><br />Brian<br /><br /><br /><br />I think your response proves up the preceding comment, that "fairness" is another way of saying "I just want to get my way". Meaning to say that Obama's appeal to empathy has no objective content.occidental touristhttps://www.blogger.com/profile/11141534990110411903noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-33950383319196124072009-06-15T03:55:33.107-05:002009-06-15T03:55:33.107-05:00former law student said...
A little empathy would ...former law student said...<br /><i>A little empathy would be good for the Court's balance. In Caperton v. Massey Coal, Scalia recently went on record saying that fairness was not to be found in the Constitution, so why bother looking?</i><br /><br />I really hope you're a <b>failed</b> former law student, because it seems rather clear that logic and reason are beyond you.<br /><br />Because if you were capable of either, you would understand that claims of "fairness", like claims of "empathy", are entirely driven by ones personal beliefs and desires. you and I are highly unlikely to agree on what is "fair", because you and I disagree on basic standards of right and wrong.<br /><br />When someone claims that they just want "fairness", what they're really saying is "I just want to get my way." Or, to put it another way: "I dont' care what the law says, I want an outcome that makes me happy."<br /><br />And no, the Constitution does not guarantee that you will be happy with properly determined decisions.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6329595.post-82770895624114421862009-06-14T22:41:13.987-05:002009-06-14T22:41:13.987-05:00From the Volokh Conspiracy,another one who needs t...From the Volokh Conspiracy,another one who needs to "think harder":<br /><br />Mahan Atma (mail):<br />I'm sorry, but that is a ridiculous question for a con law exam.<br /><br />Not that there's anything wrong with it. Discovering a judge's "empathy" is a great tool for a litigator. It give one insight to the prejudices deeply held and can help frame arguments and strategy. But, as a desired and open quality for a judge it is obscene. <br /><br />The question is better suited for some trial practice class.<br /><br />On that note, I will foreswear further encroachment on the fair, young professor's exam.Mark Ohttps://www.blogger.com/profile/15884518441515988550noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-56082038208829874352009-06-14T22:02:33.802-05:002009-06-14T22:02:33.802-05:00Dred Scott. Taney's opinion was full of consi...<i>Dred Scott.</i> Taney's opinion was full of consideration for the feelings and sentiments of white people who would feel jeopardized and threatened in the event that blacks were allowed the full benefits of citizenship.Robhttps://www.blogger.com/profile/00161511448938342839noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-77154629794756787912009-06-14T21:48:56.900-05:002009-06-14T21:48:56.900-05:00Gonzales v. Carhart (2007):
"Respect for hum...Gonzales v. Carhart (2007):<br /><br />"Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The [Partial Birth Abortion] Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. <br /><br /> In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. <br /><br /> It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."Jason Mazzonehttps://www.blogger.com/profile/03911667913450439360noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-5332252397920175972009-06-14T21:41:18.822-05:002009-06-14T21:41:18.822-05:00Another reason for hating Law School.
What is the...Another reason for hating Law School.<br /><br />What is the answer to the question Prof?Fat Manhttps://www.blogger.com/profile/09554029467445000453noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-57819533807257711422009-06-14T16:49:35.944-05:002009-06-14T16:49:35.944-05:00Alito's dissent in Kennedy v Louisiana -- the ...Alito's dissent in Kennedy v Louisiana -- the section on compassion for child rape victims.Adamhttps://www.blogger.com/profile/02113168955236758821noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-7976569652975673182009-06-14T08:38:58.877-05:002009-06-14T08:38:58.877-05:00Korematsu? ;)Korematsu? ;)Patrickhttps://www.blogger.com/profile/04264741258281954513noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-51304260085240671812009-06-14T07:32:11.827-05:002009-06-14T07:32:11.827-05:00The empathy case that started them all: Brown v Bo...The empathy case that started them all: Brown v Board of Education.paul a'bargehttps://www.blogger.com/profile/08854004347728185047noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-73442746362357641842009-06-14T07:30:24.956-05:002009-06-14T07:30:24.956-05:00The last time I had an empathy exam, my proctologi...The last time I had an empathy exam, my proctologist administered it.paul a'bargehttps://www.blogger.com/profile/08854004347728185047noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-29652400779351070502009-06-13T23:49:49.694-05:002009-06-13T23:49:49.694-05:00At least not at the U.S. Supreme Court, Cruzan was...At least not at the U.S. Supreme Court, Cruzan was not an "empathy" case, but was instead grounded entirely on a reading of the Due Process Clause and holding that Missouri's requirement of a high evidentiary standard for a surrogate to withdraw food and water did not violate procedural due process.<br /><br /><i>"Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its in terest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States, indeed, all civilized nations, demonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. [n.8] We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically-able adult to starve to death. <br /><br />But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. . . . Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."</i> <br />--<a href="http://www.law.cornell.edu/supct/html/88-1503.ZO.html" rel="nofollow">497 U.S. 261</a><br /><br />Now, it is true that, on remand, the state court suddenly accepted "new and additional" evidence, and thereafter allowed the withdrawal of food and water, leading to Nancy's death.<br /><br />It should also be noted that, after he helped lead the charge to end his daughter's life, Nancy's father Joe began to suffer increasing depression, and he eventually hanged himself.Benderhttps://www.blogger.com/profile/09322135500288738561noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-60323202772182663922009-06-13T21:09:43.153-05:002009-06-13T21:09:43.153-05:00At least in recent years, opinions are careful to ...At least in recent years, opinions are careful to conceal that they were influenced by empathy for either side. Yet I can't help feeling that the lone Western sheriffs in U.S. v. Printz, called away from patrolling hundreds of square miles of open land by the all-embracing Federal government, merely to process some gun-buyers' paperwork, without compensation, made the pro-federalism opinion easy to justify.<br /><br />Similarly, although the decision in U.S. v. Morrison seems a mere abstract discussion of the expansion of the Commerce Clause since Wickard, the dissent reels off half a page of (the economic effects of) violence against women.former law studenthttps://www.blogger.com/profile/15196697206046544350noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-27274788938233747092009-06-13T20:52:24.185-05:002009-06-13T20:52:24.185-05:00Seems like a great question; topical and gives the...Seems like a great question; topical and gives the students a chance to show off and make arguments.<br /><br />I think a case showing some empathy would be the Nancy Cruzan case; even though it was not an outright victory for the family, the Court remanded (I believe) and eventually, after another trial, Ms. Cruzan's family was allowed to fulfill her wishes.<br /><br />Brown is the obvious choice for sympathy (but maybe not empathy?)PWShttps://www.blogger.com/profile/00822605429480003567noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-67537273066388931332009-06-13T20:04:07.644-05:002009-06-13T20:04:07.644-05:00Quayle is right--what good is empathy if you empat...Quayle is right--what good is empathy if you empathize with creeps.Davidhttps://www.blogger.com/profile/17424384180201600935noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-68699804706380556762009-06-13T19:13:14.424-05:002009-06-13T19:13:14.424-05:00OK, I'll take a swing at the plate in the majo...OK, I'll take a swing at the plate in the majors, and challange the thinking of anyone that wants to take my argument on:<br /><br />Brown's majority opinion in Plessy v. Ferguson was full of empathy and consideration of the sensibilities of people.<br /><br />Brown is dripping with empathy for humans when he writes: "If the two races are to meet upon terms of social equality, it must the be result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals."<br /><br />Which shows that talking about a judge having empathy and a concern for people only begs the question:<br /><br />empathy for which party - which person?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6329595.post-22222158735296973562009-06-13T19:12:16.195-05:002009-06-13T19:12:16.195-05:00This comment has been removed by the author.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6329595.post-63091524034495508462009-06-13T17:56:39.471-05:002009-06-13T17:56:39.471-05:00Professor Ann wrote:
"Perhaps you haven't...Professor Ann wrote:<br />"Perhaps you haven't thought very deeply about constitutional interpretation. Seriously, reread the question and think a lot harder."<br /><br />I can see why JA Cohen uses the insinuation tactic. Why must Ms. Althouse resort to ad hominem silliness, like suggesting that, perhaps, I'm just too dense to get the genius of her exam question. <br /><br />Yes. Yes. I should think harder. No, I prefer to think quicker, better, clearer. But, none of that relates to my observation. <br /><br />It's just a poorly conceived exam question. In my view. So what? <br /><br />Oh, yeah, I can't think harder. And, you have no idea what I know or don't about Con Law.Mark Ohttps://www.blogger.com/profile/15884518441515988550noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-84343522139720910692009-06-13T17:28:45.348-05:002009-06-13T17:28:45.348-05:00Did anyone write "It's mercy, compassion ...Did anyone write "It's mercy, compassion and forgiveness I lack. Not rationality."<br /><br />Instant A!chuck b.https://www.blogger.com/profile/00882763861745236443noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-47683332926117518282009-06-13T16:39:39.480-05:002009-06-13T16:39:39.480-05:00No, I admit there are correct points about the con...No, I admit there are correct points about the constitution that deviate from my political preferences.John Althouse Cohenhttps://www.blogger.com/profile/11703450281424023177noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-39312552510231861002009-06-13T16:36:05.666-05:002009-06-13T16:36:05.666-05:00Or like John Althouse Cohen!Or like John Althouse Cohen!Palladianhttps://www.blogger.com/profile/01105490715666718993noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-68968387990861178272009-06-13T16:35:48.502-05:002009-06-13T16:35:48.502-05:00"In other words, many people don't know m..."In other words, many people don't know much about law yet are willing to loudly insist that their view of the law (which happens to mesh perfectly with their political preferences) is the correct view."<br /><br />Like Barack Obama!Palladianhttps://www.blogger.com/profile/01105490715666718993noreply@blogger.com