Empathy, Forgiveness, and the Morally Responsible Person in Legal Institutions

Abstract

Empathy is the new coverture. President Obama’s well-known call for empathy in our Nation’s judgments would empower courts to advance the interests of certain classes over others, without waiting for legislative bodies and other policy makers to reform those areas of the law that most affect minorities and the poor, and to reform them on equally-applicable grounds, which are neutral as to class and affluence. Like the common law doctrine of coverture, this proposal demeans an entire class of people. It denies the (1) moral responsibility and (2) practical rationality of poor people, and is thus inconsistent with equal respect for all persons before the law. This article explores the implications of class-based adjudication in the specific context of real estate lending law. Though class-based adjudication proposals (grounded in empathy for a particular class) are inconsistent with the equal dignity of all persons, forgiveness has a longstanding and solid place in many aspects of law. Forgiveness, when extended on equal terms that are established in positive law ex ante, can accomplish many of the goals that Obama and his followers hope to achieve. And it can do so without demeaning a class of citizens.