May 21, 2013
Does Empathy Lead to Injustice and Discrimination?
During his first term, Obama talked a lot about the value of judicial empathy, and of empathy in general:
In 2008, Karina Encarnacion, an eight year-old girl from Missouri, wrote to President-elect Barack Obama with some advice about what kind of dog he should get for his daughters. She also suggested that he enforce recycling and ban unnecessary wars. Obama wrote to thank her, and offered some advice of his own: “If you don’t already know what it means, I want you to look up the word ‘empathy’ in the dictionary. I believe we don’t have enough empathy in our world today, and it is up to your generation to change that.”
This wasn’t the first time Obama had spoken up for empathy. Two years earlier, in a commencement address at Xavier University, he discussed the importance of being able “to see the world through the eyes of those who are different from us—the child who’s hungry, the steelworker who’s been laid off, the family who lost the entire life they built together when the storm came to town.” He went on, “When you think like this—when you choose to broaden your ambit of concern and empathize with the plight of others, whether they are close friends or distant strangers—it becomes harder not to act, harder not to help.”
Is this really true, though? The connection between empathy, sympathy (fellow feeling), and willingness to help others doesn't actually work the way the President claims it does. Empathy, it turns out, is not broad based at all, but narrow and specific. People are more willing to help individuals than groups:
The key to engaging empathy is what has been called “the identifiable victim effect.” As the economist Thomas Schelling, writing forty-five years ago, mordantly observed, “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a tear or reach for their checkbooks.”
You can see the effect in the lab. The psychologists Tehila Kogut and Ilana Ritov asked some subjects how much money they would give to help develop a drug that would save the life of one child, and asked others how much they would give to save eight children. The answers were about the same. But when Kogut and Ritov told a third group a child’s name and age, and showed her picture, the donations shot up—now there were far more to the one than to the eight.
The number of victims hardly matters—there is little psychological difference between hearing about the suffering of five thousand and that of five hundred thousand. Imagine reading that two thousand people just died in an earthquake in a remote country, and then discovering that the actual number of deaths was twenty thousand. Do you now feel ten times worse? To the extent that we can recognize the numbers as significant, it’s because of reason, not empathy.
In the broader context of humanitarianism, as critics like Linda Polman have pointed out, the empathetic reflex can lead us astray. When the perpetrators of violence profit from aid—as in the “taxes” that warlords often demand from international relief agencies—they are actually given an incentive to commit further atrocities. It is similar to the practice of some parents in India who mutilate their children at birth in order to make them more effective beggars. The children’s debilities tug at our hearts, but a more dispassionate analysis of the situation is necessary if we are going to do anything meaningful to prevent them.
This is why politicians seek to personalize public policy proposals; we get the Lily Ledbetter Act, or Megan's Law rather than the Equal Pay for Women Act or the Sex Offender Registry Act. The deliberate invocation of a highly personalized narrative effectively short circuits critical inquiry and skepticism. What do you mean, you aren't sure an official list of registered sex offenders is a good idea? Don't you want to prevent what happened to little Megan from EVER HAPPENING AGAIN?
The Editorial Staff couldn't help thinking of this thoughtful critique of judicial empathy:
An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.
This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”
Or as the old saying goes, justice is - or ought to be - blind. For a guy who keeps saying that America should be a place where everyone plays by the same set of rules, a jurisprudence that allows easily manipulated emotions to place a thumb on the scales of justice - whose goal is more sympathy than justice - seems an odd prescription.
June 29, 2012
I Would Kill to Have Written This
This is, hands down, the most thorough, insightful, and informative analysis of yesterday's SCOTUS decision on the individual mandate I've seen.
I agree with every single word of it. Particularly this part:
In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties. Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.
March 30, 2012
The Rape Discount
Don't know how many of you have been following this story, but it's a stunner:
A woman who was sexually assaulted by her husband and then ordered by the court to pay alimony and legal fees to her ex -- once he is released from prison, may get relief from California lawmakers.
Crystal Harris, 39, told the judicial committee of the Calif. State Assembly Wednesday that the judgment, which was handed down in 2010, "amounted to making a rape victim write a check to her own rapist every month."
She described to lawmakers how her husband would choke her and sexually assault her while the couple's two children were upstairs. One of the attacks was caught on tape.
... Crystal Harris, who earns between $110,000 and $120,000 a year as a financial analyst, said she had been supporting her husband, who worked as a car salesman, ever since their first son was born in 2002.
Under normal circumstances, Crystal Harris would have been required to pay $3,000 a month in spousal support after the divorce, but because of the domestic violence she endured, the judge said he would lower that amount to $1,000.
"I call that the rape discount," Harris said. She was also ordered to pay her now ex-husband's $47,000 legal bill. Even if the new law passes in the legislature, Harris will still be on the hook for her husband's legal fees.
She tried appealing the judge's ruling last year, pointing out that her ex-husband will have no expenses while he's in jail.
The judge agreed, but pointed out that California law entitles Shawn Harris to alimony.
It's more typical to hear men complain about alimony, and when they do, they usually characterize it as unfair to men because more men pay alimony than women. But alimony laws in most states are gender neutral - the higher earning spouse has to pay alimony to the lower paying spouse regardless of whether the payer is male or female.
The original purpose of alimony was to compensate non-working spouses (almost always female) for the economic value of their contributions to the marriage. A secondary purpose was to recognize that spouses who stay home are less competitive in the job market - and thus less able to support themselves - than they would have been, had they focused on their careers.
Being a mostly stay at home wife and mother for nearly two decades while our children were growing up, that makes perfect sense to me.
The argument that alimony discriminates against men because men are disproportionately affected by it amounts to a disparate impact argument:
Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.
Questions for the ages: if more men have traditionally paid alimony because women were more likely to stay home with the children and men were more likely to be the high earners even if the wife worked, is this really discrimination against men based on their sex?
Or is it simply the law's attempt to address problems better worked out between the parties?
Do you think alimony should be eliminated? Can you see any unintended adverse consequences?
Finally, what kind of jackwagon refers to this kind of ruling as a rape discount? Note: In the comments Dan pointed out that it was Ms. Harris herself who calls this a rape discount. Thanks so much for alerting me to my mistake!