The Quality of 'Empathy'

, New York Law Journal

Jack Edward Bronston, a retired partner with Davidoff Malito & Hutcher, writes: Oliver Wendell Holmes commented in his book "the Common Law," that judicial decisions often originate outside the law in the "inarticulate premises" which judges bring from their life experience to their decisions. Few cases demonstrate this more vividly than this year's Wyeth v. Levine, in which both "liberal" and "conservative" judges abandoned deeply held constitutional views to reach a result which, one may surmise, reflected their underlying "inarticulate" view of the facts, their "empathy" as it were, rather than a strict application of the law.

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