Is Moral Imagination the Cure for Misapplied Judicial Empathy?: Bandes, Bastiat, and the Quest for Justice

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.1It 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.