Atticus’s life instruction to his daughter, Scout. As he explains, “If you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.” In summer 2009, and again this July, the United States was roiled by debate about Barack Obama’s promise to appoint a supreme court justice who embodies this quality of “empathy”. Scores of critics asserted that judicial empathy is the same as judicial bias; that judges are at their best when they coldly and mechanically apply the law. There is no place for climbing inside anyone else’s skin as a judge. There is only truth and cold fact.

How strange it is, that we have come to a place in the national debate about justice when Atticus Finch’s mild admonition to his daughter to try to walk a mile in someone else’s shoes has become the definition of dangerous judicial activism. While Atticus still has much to teach lawyers about race and violence and prejudice and the rule of law, I have also come to think of him as the patron saint of patient, quiet listening; a quality to which all of us ought to aspire.

What has happened since the 1960s—that watershed decade in modern American history—is the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed. Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer. . . .

By the late 1960s this model was almost a century old and ripe for challenge. The challenges came from two directions, which though opposed to each other turned out to be complementary in their effect on the traditional model. . . .

These challenges to the conventional model of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came a novel emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history, and from the challenge mounted by the Left came a reinforcing skepticism about the capacity of conventional legal analysis to yield intellectually cogent answers to legal questions. These ideologically opposed challenges complemented each other by agreeing that the traditional model was narrow and stale.

The model was largely buried in these twin avalanches, especially in the elite law schools. . . .

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy,or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

Mike Masnick over at techdirt, , writing about the “Permission Culture” (that is, the culture that insists that sampling and quoting should only be done with permission), puts his finger directly on one of the biggest problems — the fear of even frivolous lawsuits, even by big publishing concerns, prevents writers, musicians, and artists from quoting, sampling, and appropriating parts of copyrighted works they don’t need permission to take:

The unfortunate reality these days is that publishers won’t touch such quotes without permission being granted. It’s almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don’t want the liability of a lawsuit. I’ve had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it’s just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use… but his publisher wouldn’t touch it.

I would suggest too that one reason publishers won’t publish books without permission for the use of quotations is that they perceive it to be in their interests not to do so. That way, other publishers will ask and pay for permission to use quotations from their own books. That is why, I am convinced, the music industry never has seriously challenged lower court decisions requiring permission (and, presumably, payment) for the use of any recorded sample — the practice makes each company’s record vault’s sources of income.

The problem, of course is exacerbated considerably because the wealth and of the corporate conglomerates that own so much of our intellectual property. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be:

Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

[W]e are participants in a nation only to the extent that we imagine ourselves to be part of a community or a “people.” Empathy is an important part of what allows us to engage in that imagined sense of linked fate, shared identity, and common purpose. Without empathy we cannot enter into a social contract whereby we are willing to subjugate some of our selfish impulses in order to abide by the rule of law and the dictates of a civil society.  

As Laura E. Little points out in “Adjudication and Emotion,” 3 Florida Coastal Law Journal, 205, 210 ( 2002)  , “Empathy . . . may actually facilitate the process of understanding competing points of view so necesssary to quality adjudication. As Judge Richard Posner argues, empathy enables a judge to integrate into her decsionmaking remote human interests that are not immediately before the judge, but are possibly affectetd substantially by the judge’s decsions. Posner praises empathy for its cognitive character, suggesting that the emotion more likely reflects an evaluation of beliefs, rather than an ungrounded emotional reaction that short-circuits reasoning.” [Citing Richard Posner, “Emotions versus Emotionalism in Law,” The Passions of Law (Susan A. Bandes, ed. 1999).

Another . . . major factor in judicial decisions in the open area [that is, where the language of the law does not prescribe a clear answer] is “good judgment,” an elusive faculty best understood as a compound of empathy, modesty, maturity, a sense of proportion, balance, a recognition of human limitations, sanity, prudence, a sense of reality and common sense. . . . It is another of the means that people have for maneuvering in situations of uncertainy. If law were logical, “good judgment” would not be an admired quality in judges – as it is even by legalists.