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51 Washburn L.J. 25 (2011-2012)
Is Moral Imagination the Cure for Misapplied Judicial Empathy - Bandes, Bastiat, and the Quest for Justice

handle is hein.journals/wasbur51 and id is 27 raw text is: Is Moral Imagination the Cure for Misapplied Judicial Empathy? Bandes, Bastiat, and the Quest for Justice John Hasnas* I. INTRODUCTION It is both an honor and a challenge for me to be invited to comment on Professor Susan A. Bandes's Foulston Siefkin Lecture and Article, Moral Imagination in Judging.' It is an honor because Professor Bandes is one of the nation's leading scholars on the judicial craft. It is a challenge because I am not. Although I find judicial decision-making to be a fascinating topic to consider, it is one that is well outside my area of expertise-something that may account for the disconcerting experience I had when reading the lecture. For I found myself in profound agreement with many of Professor Bandes's contentions, while in equally profound disagreement with others. My effort to account for this uncomfortable alternation between Yes, of course and Definitely not convinced me that I needed a better understanding of the fundamental concepts being discussed in order to say anything intelligent on the subject. Hence, to a large extent, this Article merely reflects my quest for understanding. In Section II, I attempt to clarify my understanding of what moral imagination is. In Section III, I make some observations about the role of empathy in the judicial decision-making process. Finally, in Section IV, I apply my newly developed understanding of moral imagination and judicial empathy to suggest that moral imagination can be a corrective for the danger of misapplied judicial empathy. * Associate Professor of Ethics, McDonough School of Business, Georgetown University and Visiting Associate Professor of Law, Georgetown Law Center; J.D. & Ph.D. in Philosophy, Duke University, LL.M in Legal Education, Temple University. The author wishes to thank Professor Susan Bandes and the staff of the Washburn Law Journal for inviting him to participate in this symposium. The author also wishes to thank Ann C. Tunstall of SciLucent, L.L.C., for her insightful comments on a draft of this article and Annette and Ava Hasnas of the Montessori School of Northern Virginia for providing him with firsthand experience of the limitations of empathy. 1. Susan A. Bandes, Moral Imagination in Judging, 51 WASHBURN L.J. 1 (2011). 25

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