Friday, September 28, 2012
Andrea L. McArdle has just posted an excellent article on empathy and judging.
Abstract: The questions of what empathy is, how it may function in judicial decisions, and its relationship to concepts of emotion, identity, and experience, continue to challenge thinking about how and why a capacity for empathy may matter in judging. Drawing on the framework for narrative analysis developed in Anthony Amsterdam and Jerome Bruner’s Minding the Law, this article seeks to elucidate what the addition of empathy — a multifaceted concept including both emotional and cognitive dimensions — can offer to judging. I use a narrative analysis to illuminate the workings or absence of empathy in two Supreme Court opinions decided in the same term of the Rehnquist court — DeShaney v. Winnebago County Department of Social Services and Michael H. v. Gerald D. Both cases required the Court to address the scope of “liberty” under the Due Process Clause, and both presented compelling facts implicating family relationships involving judicial review of (in DeShaney) a state’s failure to intervene in, and (in Michael H.) a failure to entertain, a father-child relationship.
Using a narrative lens, I first consider the DeShaney majority’s efforts to neutralize what it characterized as the “tragic” facts of parental abuse with a flat narrative of the law that drew a bright line between the Department of Social Services’ challenged failure to act and legal liability (an approach that Amsterdam and Bruner would refer to as "category-centered"). I consider the differences in narrative perspective between the majority opinion and Justice Brennan’s dissent, and the alleged emotionalism of Justice Blackmun’s separate dissenting opinion. These dissents, I argue, offer a distinct “due process” narrative about the choices entailed in judicial interpretation. They illuminate the link between a capacity for empathy and what Amsterdam and Bruner would describe as a more context-sensitive, situation-centered mode of interpretation. I then turn to the plurality and principal dissenting opinion in Michael H. v. Gerald D. Applying the tools of narrative analysis, I consider how an exercise of empathy evident in Justice Brennan’s more situation-centered dissent could have contributed to the plurality’s category-centered understanding of Michael H.’s efforts to formalize a parental relationship with a child who, under a presumption of legitimacy, was recognized as the child of another.
Both cases illustrate the divisions in interpretive frameworks that existed within the Court at that time, divisions that were reflected in part in the widely diverging narratives of the main and dissenting opinions. If both situation-centered and category-centered judges use narratives to convey their legal rationales and interpretive approaches, I conclude that the quality of the narratives, marked by differences in the level of attention to detail and the capacity to imagine and capture different perspectives, will offer evidence of the extent to which empathy is at work, for whom, and to what end.
Comment: Evolutionary psychologists have demonstrated that emotions are a central part of human thinking and morality. Consequently, empathy should be central to judging.