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Unformatted text preview: gth to walk away without inflicting some corporal punishment." The judge's reaction was the one that came most easily--prereflective and self-referential. The judge starkly demonstrated his inability to diverge from his patterned, preconscious response to the situation. The useful response would have been the more difficult one-an effort to understand or experience the viewpoint most unlike his own. The Baltimore case is unusual because the easy identification for the judge was with the defendant. This, unfortunately, is more often true in cases of rape and domestic violence, in which predominantly male judges find it easier to make the empathetic link with male defendants, than in cases of other crimes. More often, the difficulty for the trier of fact is in making the empathetic link with the defendant, in seeing the defendant's shared humanity. In either situation, though, the real importance of empathy lies in its counternarrative aspect--it enables the trier of fact to imagine himself in the place of another. Before we can empathize in this way, we must realize that the dominant perspective, or one's own perspective, or any particular perspective, is not universal. Judges in particular must understand this. Whereas the juror and the attorney receive constant reminders that their perspectives are partial, the judge is encouraged by every trapping of the judicial role to believe that his own perspective is truly universal--a grave danger indeed. Although the judge ostensibly speaks in his own voice, in order to appear authoritative he must project a larger, more transcendent persona. He does this by speaking declaratively, in the language of certainty. As Robert Ferguson explains, the judicial opinion (particularly the majority opinion) seeks to achieve the rhetoric of inevitability, a rhetoric which admits of no freedom of choice on the part of the judge. According to Robert Cover, this rhetoric must give the "impression . . . of bowing . . . to the inexorable force of crystal clear demands," so that regardless of his decision in any case, the...
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- Fall '13