Huh... Look At That

I little while ago, in response to all the hoo-hah about Obama's "empathy" comment, I wrote a brief post about empathy and constitutional law. My basic premise was (and remains) that empathy is an appropriate criterion for decision-making insofar as it doesn't increase the indeterminacy of the situation i.e. one should generally make recourse to empathy-based concerns only when the meaning of the law in question has already "run out".

I raised the example of Ledbetter v. Goodyear as a case with an "unfair" outcome which seemed to be pretty clearly dictated by the law under consideration. Lo and behold, here's Obama saying that Ledbetter was wrongly decided, specifically

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Which is exactly what I'm getting on about. I mean, the quote above really sounds like Obama wants empathy to be given the same weight as the actual law itself. Gah... there are so many problems with that position, but they all basically boil down to "What is an `empathtic' outcome?". Empathy is in the eye of the beholder; it's impossible to know the answer to that question ahead of time. As a consequence, if you elevate empathy to the same status as the law itself, the legal system becomes more arbitrary.

I think Obama's shooting himself in the foot on this one, and I find it hard to believe that, being the smart chap that he is, he's not aware of the contradiction. Arbitrary legal systems have not traditionally been the friends of the downtrodden; it only takes a little while for the powerful to figure out how to leverage that arbitrariness at the expense of the powerless. A focus on empathy might see short-term gains for disempowered groups, but at the expense of everyone's long-term well-being.