Here is a New York Times story about the role (if any) of empathy in adjudication. Have you heard the expression, "Hard cases make bad law"? The word "hard" in this expression doesn't mean difficult or complicated; it means emotional. Suppose someone who has had a difficult life is sued for breach of contract by a wealthy corporation. I may empathize with the unfortunate person, but that must not be allowed to affect my judgment about whether a breach occurred. I must overcome my emotional response and apply the law. If I succumb to my emotions and rule for the unfortunate person, I have "made bad law." I have created a rule that may produce the "right" result in this case, but it will have deleterious consequences in the vast run of cases. Someone on the Senate Judiciary Committee should ask Judge Sonia Sotomayor three questions: first, has she heard the expression?; second, what does it mean to her?; and third, given that meaning, does she agree with it? Wouldn't you love to have me on the Senate Judiciary Committee, or at least on the staff of someone who is?
Law
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