Quote of the Day.

HLS's Langdell Hall

BitchPhd‘s M_Leblanc, guest-posting at TAPPED, on the deficit of empathy in the legal profession:

The hyper-intellectual, logic-focused law school environment denigrates feelings. Even when the issues were deeply personal, we were supposed to regard classroom and extracurricular discourse as purely academic. This mentality goes beyond the confines of the university. I am reminded of the ridicule heaped upon Obama when he suggested a Supreme Court justice should have empathy, rhetoric he’s backed away from the second time around.

But empathy has a place in the law, and it needs a more prominent home in law schools.The legal system is built to try to address unfairness and injustice, to make sure everyone gets their due process and fair share. If we didn’t care about the well-being of our fellow citizens, we wouldn’t need justice at all.

It matters how people feel. It matters whether racist arguments are tolerated, and whether other voices rise to their aid. When lawyers go on to serve as judges, senators, policy-makers, prosecutors, and presidents, an e-mail isn’t just an e-mail. The e-mail and the ambivalent response to the odious attitudes expressed in it exemplify the serious empathy deficit in our law schools.

When I look at the product of these law schools — a legal system where if you are poor, black, or both, you simply cannot get a fair shake — I think, is it any wonder? An academic structure that glorifies logic and consistency, and denigrates empathy, will never produce justice.



Gene "G.D." Demby is the founder and editor of PostBourgie. In his day job, he blogs and reports on race and ethnicity for NPR's Code Switch team.
  • And that’s exactly why I’m going to law school.

  • Steve

    We don’t use “empathy” in law school but we do use the term “public policy”.

    So if an outcome deviates from the more expected reading of a law, then we say ” the public policy interests outweigh the other arguments”.

    However, a “policy” argument (basically the result of said law go against some form of social norms, disporportionately affects a group, or creates needless legal burdens) is pretty much at the lowest rung in the totem pole of the hierarchy of legal arguments.

    Usually when you know you have a losing issue, based on interpreting the statute and prior case law, you make a “policy argument”.

    That is “Yes case law is against this and the statute says this but following this rule is against the interest of society”.

    That’s how I see “empathy” as taught in law schools, that is, an understanding that strictly following the rules won’t always reach the best result. However, the policy interest you advocate must be “compelling” and there is a high bar.

    The reason why “empathy” will never become fashionable is because emotions and feelings are generally frowned upon because the idea of the law as a predictable, reliable institution reigns surpreme. Therefore, we look to “policy”.

    “Policy” however, can cut both ways. It’s “bad policy” for certain laws because they affect certain groups who have inadequate access to resources or whatever it may be. It’s also “good policy” to avoid potential constitutional issues when its for the good of society (IE. arguably unconstitutional sex offender registration requirements, or, certain criminal procedure laws).

    I bring this all up to say, the realities of society aren’t wholly overlooked in legal academia, they are just put under the guise of “policy”, there is no way someone would say “empathy” with a straight face.

    This, of course, doesn’t really amount to a defense of law school. Because most of the students have no concrete idea of most “policy” considerations that would affect regular mainstream Americans.

    Final Example: It’s not enough to stop someone for being in a high-crime area. However, a fellow student of mine asked “What reasonably innocent person would just BE in a high crime area?”……………………………….

    My point is, though, that in many institutions, this way of looking at the law is at least put forth and examined, it just might not be accepted.

    If law school could accent their education with some level of concrete policy analysis and social impact, maybe it would help, but the HUGe majority of law students come from a personal background where it would be impossible to teach them such “empathy”.