empathy, judicial decision making, pleading standards, plausibility, probability, heuristics, bias
This Essay argues that empathy does and should play an important, albeit limited role, in a judge’s decision making process. Specifically, empathy is essential for making correct, principled, and unbiased judgments, because empathy is one of the few means we have to understand human motivation. Empathy is a crucial cognitive mechanism that can help compensate for common cognitive bias. As such, empathy, appropriately restricted, should be an accepted and meaningful tool for judges to use in evaluating the sufficiency of complaints, especially as they relate to Iqbal’s plausibility pleading standard.
Darrell A. Miller, Iqbal and Empathy, 78 UMKC Law Journal 999-1013 (2010)