Bench Memos

Sotomayor’s Empathy: Beyond Race

With all the talk about Sonia Sotomayor’s celebrated capacity for empathy and what it might mean for the law, I’m surprised that more attention has not focused on her 2001 ruling in Bartlett v. New York State Board of Law Examiners. The case held that a woman was entitled to double the normal amount of time on the bar exam — to become a licensed attorney in the state of New York — because she wasn’t able to read very well. Or, as Judge Sotomayor put it, she was “substantially limited in the major life activity of reading when compared to most people by her slow reading rate and by the fatigue caused by her lack of automaticity.”

The plaintiff in the case had graduated (barely) with a GPA of 2.32 from Vermont Law School, where she had received substantial accommodations for her professed learning disability. After this, she took and failed the New York bar exam three times. Apparently not believing that the fourth time would be the charm, she decided to sue under the Americans with Disabilities Act, alleging that the state Board of Law Examiners had “discriminated against her . . . by failing to provide her with reasonable accommodations” as required by the law.

       

Now you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker’s lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a “reasonable accommodation.” But that would be a decidedly unempathetic point of view. Such an attitude is in fact “invidious,” according to Sotomayor’s opinion.

At the end of the day, Sotomayor wrote, “plaintiff has convinced me that she needs extra time on tests in order for her true abilities and knowledge to be assessed.” A lawyer’s “true abilities,” of course, are measured by what she is able to achieve when a judge orders that she be given twice the allotted time to complete a legal task. On the basis of this understanding, Sotomayor proceeded to award the plaintiff $7,500 in damages, and mandated that she be allowed four days to take the bar exam instead of the usual two. Thus buoyed by a gust of judicial empathy, the intrepid plaintiff took the test a fourth and final time. And failed it once again.

— Anthony Dick is a student at Stanford Law School.

Most Popular

The Secret Life of Joe Biden

In a classic episode of Seinfeld, Jerry is accused by his new girlfriend, a police officer, of being a fan of the tacky 1990s soap opera Melrose Place. When Jerry lies and denies it, she suggests putting him on a polygraph to find the truth. In an effort to beat the machine, Jerry seeks the advice of his ... Read More

The Secret Life of Joe Biden

In a classic episode of Seinfeld, Jerry is accused by his new girlfriend, a police officer, of being a fan of the tacky 1990s soap opera Melrose Place. When Jerry lies and denies it, she suggests putting him on a polygraph to find the truth. In an effort to beat the machine, Jerry seeks the advice of his ... Read More
Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that "Other than slavery, which was a different kind of restraint, [the pandemic lockdowns ... Read More
Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that "Other than slavery, which was a different kind of restraint, [the pandemic lockdowns ... Read More

Snobs or Mobs?

A   lot of us were feeling pretty good about the future of the media in late September of 2004. Dan Rather and the CBS news division had just tried to derail George W. Bush’s reelection campaign with some genuine fake news — based on fake documents — and, in spite of the manful attempts of ... Read More

Snobs or Mobs?

A   lot of us were feeling pretty good about the future of the media in late September of 2004. Dan Rather and the CBS news division had just tried to derail George W. Bush’s reelection campaign with some genuine fake news — based on fake documents — and, in spite of the manful attempts of ... Read More
Film & TV

The Convictions of Jim Caviezel

‘I didn't get invited by Hollywood to come to this industry,” actor Jim Caviezel says. It was God — not the executives, the talent agents, nor the filmmakers — that gave him his acting talent. “God believed in me, that He wanted me to be an actor. I felt it in my heart very deeply.” A man of deep ... Read More
Film & TV

The Convictions of Jim Caviezel

‘I didn't get invited by Hollywood to come to this industry,” actor Jim Caviezel says. It was God — not the executives, the talent agents, nor the filmmakers — that gave him his acting talent. “God believed in me, that He wanted me to be an actor. I felt it in my heart very deeply.” A man of deep ... Read More