Georgetown Journal of Law & Public Policy
Empathy is the new coverture. Before state legislatures abolished it in the nineteenth century, the plea of coverture nullified any attempts by a married woman to exercise sovereignty over her property. Just as coverture did to married women, the now-well-known call for empathy in our nation's judgments threatens to deny poor borrowers, as a class, the freedom and responsibility to manage their assets. Empathy, as the ideal judge would employ it, would impede the agency of, and thus denigrate, persons within that class. The injustice (and ground for the ultimate abolition) of coverture arose from its failure to respect women in their capacity as responsible agents of legal and moral choosing. Similarly, the class-based adjudication proposals (grounded in empathy) examined below fail to respect poor mortgagors as responsible moral and legal agents.
Judges and scholars are turning general calls for empathy into concrete proposals for granting special rights to some classes of persons, including minorities and the poor. This article demonstrates from two different jurisprudential perspectives that those proposals jeopardize the agency of poor property owners. First, the proposals impede personal responsibility. Any coherent account of property owner sovereignty within the liberal tradition must include recognition of both the freedom and the responsibility entailed in individual choice and action.
Second, the proposals denigrate the dignity of poor borrowers. This article defends the position that property owners exercise sovereignty over their assets by reasoning about ends and purposes and choosing among intelligible reasons for action. The empathy-based rights proposals presuppose that these choices are irrational. Legal doctrines that fail to account for and respect the capacity for freedom, responsibility, and practical reasonableness in a class of persons are not merely unwise, but also are inconsistent with human dignity, and are for that reason unjust.
The empathy proposals are nevertheless helpful because they provide an occasion to examine the rationality of subprime borrowing. It is useful to examine the reasons why mortgagors choose to assume risky mortgage obligations. If these reasons are in fact intelligible, then the law ought to respect the choices that follow from them, even while protecting poor and vulnerable' borrowers from unscrupulous lenders. This inquiry has obvious, continuing importance as the states and Congress fashion policies to govern the real estate lending market going forward.
Despite all of the problems that empathy poses for moral agents, lawmakers, and judges, empathy's close cousin, forgiveness, has a place in law. This article concludes that forgiveness can be consistent with the practical reasonableness and personal autonomy of those whom the law governs. Where the terms on which forgiveness is extended are established by a legislative body ex ante, and the doctrine is available for use by all regardless of socioeconomic class, the law respects the forgiven actor as a responsible agent of legal and moral choosing.
Adam MacLeod, Empathy's White Elephant: Responding to the Subprime Mortgage Crisis without Denigrating the Poor, 9 Geo. J.L. & Pub. Pol'y 283 (2011).