Modern Critiques of Judicial Empathy: A Revised Intellectual History

The role of empathy haunts recent debates about how judges make decisions. Remarkably, however, the intellectual origins of scholarly resistance to empathic judging remain poorly understood. This Article fills that gap. Through historical and theoretical study, it reveals the ways in which the modern anti-emphatic consensus can be seen as a mutated descendent of late-nineteenth century formalism. This Article also marks an irony with significant implications for the empathy debate: Although the anti-empathic view was born offormalism, it has drifted from its source such that it would almost certainly be condemned by the very formalist scholars from whom it is descended. Modern critiques of judicial empathy liberate themselves from an important limitation imposed by those prior theories-they believe that their proposed methods can be applicable beyond the realm ofprivate law, and into public law-but if this is impossible, then these theories have nothing to say about the area in which they are so often employed: constitutional interpretation