Pooh’s Think

… with comments

Excellence in Adjudicative Practice, Part 2

Richard Posner is I believe one of the most prolific active judges. Despite some of his controversial views, he is a seasoned and intelligent judge, a master within the craft-bound excellence of adjudication. In “Emotion versus Emotionalism in Law” (in The Passions of Law 1999) Posner writes:

The other emotion that is important for the judge to feel when faced with a case that cannot be decided by purely formalistic reasoning is empathy or fellow feeling. This point is easily misunderstood as inviting the judge to show partiality to whichever party to the case tugs harder on his heartstrings. My point is virtually the opposite. The importance of judicial empathy is to bring home to the judge the interests of the absent parties, or in other words (the words of cognitive psychology) to combat the ‘availability heuristic.’ This is the tendency to give too much weight to vivid immediate impressions, such as sight over narrative, and hence to pay too much attention to the feelings, the interests, and the humanity of the parties in the courtroom and too little to absent persons likely to be affected by the decision. The operation of the availability heuristic is illustrated by the debate over abortion. Before ultrasound images of early fetuses became common, the heuristic favored the proponents of abortion rights, because they could tell vivid stores and even show photographs of women killed by botched illegal abortions, whereas the abortion ‘victim,’ the fetus, was hidden from view. Ultrasound, by making the fetus visible, canceled the rhetorical advantage that the proponents of abortion rights had enjoyed by virtue of the heuristic. (my emphasis)

December 8, 2006 - Posted by | Uncategorized

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