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Passions and EmotionsNOMOS LIII$
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James E. Fleming

Print publication date: 2012

Print ISBN-13: 9780814760147

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814760147.001.0001

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Equity Over Empathy

Equity Over Empathy

(p.315) 12 Equity Over Empathy
Passions and Emotions

Bernadette Meyler

NYU Press

This chapter argues that the set of dichotomies that West proposes conflates empathy with moral judgment and proper judicial reasoning with an assessment of actual, rather than hypothetical, factual scenarios. Moreover, the binary pairs of empathy/scientism and particularism/rules do not always line up with each other in judicial practice. As such, West's generalizations about the effects of the anti-empathic turn on actual judicial approaches do not adhere across the board and, most notably, contrast with the realities of constitutional decision making under the Roberts Court, which has frequently prioritized the more particularized, “as-applied” form of decision making over “facial” constitutionally based challenges. By instead disaggregating empathy from equity and focusing on the latter more than the former, one can recover a form of judicial reasoning that captures many of the virtues of moral judgment while insisting upon a less stark distinction between judging and legislating and between assessments of the past and the future.

Keywords:   empathy, moral judgment, judicial reasoning, judicial practice, Roberts Court, equity

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