Friday, May 1, 2009

McClain on Guinier on Justices, Empathy and Social Change

Linda C. McClain, Boston University School of Law, has posted a new essay, Supreme Court Justices, Empathy, and Social Change: A Comment on Lani Guinier's Demosprudence Through Dissent. It appears in the Boston University Law Review (2009). Here's the abstract:
That controversial decisions by the United States Supreme Court can spur dissenting citizens to action is, by now, a familiar idea. But what about the catalytic role of dissenting opinions? This Essay examines Professor Lani Guinier’s recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call “demosprudence.” The Essay relates this current interest in the role of dissent and the role of biography in spurring dissents to earlier legal scholarship about the importance of empathy in judicial decision making and as a spur to social change. It also considers the emphasis on life experience and the capacity for empathy in President Obama’s statements about appropriate judicial qualifications. It concludes by contrasting Guinier’s project with other perspectives on the institutional capacity of the Supreme Court to spur social transformation better to realize constitutional goals and values.