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Published online by Cambridge University Press: 24 April 2015
Judge Noonan's book, Persons and Masks of the Law, written a decade before he became judge, stirred up both hope and skepticism. On the one hand, readers felt drawn to what today might be called a kinder, gentler vision of judging. It is a vision that insists on viewing people in their full and connected humanity, rather than as the abstracted and partial legal constructs that filter through the laws of evidence and trial court decisions to the briefs and arguments that appellate judges see. On the other hand, some readers expressed concern that the richer contextualization Noonan had modeled could not, by itself, determine particular outcomes. Those contextualizing facts require interpretation and ordering. Furthermore, for every detail seeming to point in one direction, another detail pointing to an opposite outcome is likely to be available. In other words, contextualization risks either endless regression or arbitrary truncation. Despite the polite controversy—some of the politeness no doubt due to the fact that at the time Noonan was a professor and in no danger of wreaking any contextualist havoc on the Rule of Law—his book did ensconce the trope of “empathy.”
1. Noonan, John T. Jr., Persons and Masks of the Law (Farrar, Straus & Giroux, 1976)Google Scholar.
2. Compare, Bush, George, Our Work Is Not Done; Our Force is Not Spent, The Wash Post, A28 (08 19, 1988)Google Scholar (In his speech accepting the Republican presidential nomination, George Bush called for “a kinder, gentler nation.”); see also Ward, Cynthia V., A Kinder, Gentler Liberalism? Visions of Empathy in Feminist and Communitarian Literature, 61 U Chi L Rev 929 (1994)CrossRefGoogle Scholar.
3. See, for example, Henderson, Lynne N., Legality and Empathy, 85 Mich L Rev 1574 (1987)CrossRefGoogle Scholar (arguing that “Noonan, like others troubled by the lack of humane responses in the law, could do no more than raise a cry against legality's denial of persons. He never developed a coherent approach to help us avoid the tendency of legality to abstract the problems of persons to the point of denying persons altogether.”); Yudof, Mark G., “Tea at the Palaz of Hoon”: The Human Voice in Legal Rules, 66 Tex L Rev 589, 619–620 (1988)Google Scholar (arguing that “Judge Noonan's explanation of the power and utility of his case study [Pal-sgraf] is pretty weak stuff. In what sense are the facts deemed irrelevant by Cardozo actually relevant to the judicial process if Noonan believes they are irrelevant to the disposition of the case?”).
4. See, for example, Henderson, 85 Mich L Rev (cited in note 3); Massaro, Toni M., Empathy, Legal Storytelling and the Rule of Law: New Words, Old Wounds? 87 Mich L Rev 2099 (1989)CrossRefGoogle Scholar; Delgado, Richard, Rodrigo's Eleventh Chronicle: Empathy and False Empathy 84 Cal L Rev 61 (1996)CrossRefGoogle Scholar.
5. Three thousand is the rough estimate that Judge Noonan offered for the first decade of his tenure in a discussion on March 23, 1996 at the Celebration of the Tenth Anniversary of his investiture, San Francisco, CA. Of those opinions, we can estimate that he wrote approximately a third, given that a panel of three judges decides most Ninth Circuit cases. Unlike many judges, however, Judge Noonan writes his opinions himself, rather than delegating the writing to judicial clerks. In analyzing his opinions we therefore obtain a purer and, across time, more consistent insight into his approaches, concerns and style than is available for the opinions of many other judges.
6. For present purposes, I use “feminism” broadly to embrace concerns with and strategies for emancipating women from all forms of subordination.
7. Noonan, , Persons and Masks at 60Google Scholar (cited in note 1).
8. Judge Noonan, however, does not wholly agree with Robert Cover's famous statement that “Judges are people of violence.” Cover, Robert M., The Supreme Court 1982 Term — Forward: Nomos and Narrative, 97 Harv L Rev 4 (1983)CrossRefGoogle Scholar. Judge Noonan contends, “Judges only occasionally have to apply force, and when lawful force is employed, it is distinguishable from the unregulated brutality that the term ‘violence’ suggests.” John T. Noonan, Jr., Horses of the Night: Harris v. Vasquez, 45 Stan L Rev 1011, 1022 (1993).
9. 248 NY 339, 162 NE 99 (Ct App, 1928).
10. Noonan, , Persons and Masks at 112Google Scholar (cited in note 1).
11. See Yudof, , 66 Tex L Rev at 619Google Scholar (cited in note 3) (“Even in the Palsgraf example, [Noonan] is hesitant to say that facts amassed about persons should influence the ways in which judges decide cases. He removes the mask of detachment only to demonstrate that it can be removed.” (citation omitted)).
12. Resnick, Judith, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S Cal L Rev 1877, 1921 (1988)Google Scholar.
13. See, for example, Henderson, , 85 Mich L Rev at 1653Google Scholar (cited in note 3) (“Empathy cannot necessarily tell us what to do or how to accomplish something, but it does alert us to moral choice and responsibility.”).
14. Noonan, John T. Jr., Heritage of Tension 22 Ariz St L J 39, 42 (1990)Google Scholar (Conference of Association of American Law Schools: Panel on Compassion and Judging).
15. 813 F2d 1432 (9th Cir 1987) (argued June 9, 1986 and decided April 2, 1987).
16. See, for example, Warren, Priscilla F., Women Are Human: Gender-Based Persecution Is a Human Rights Violation Against Women, 5 Hastings Women's L J 281 (1994)Google Scholar; Goldberg, Pamela, Anyplace But Home: Asylum in the United States for Women Fleeing Intimate Violence, 26 Cornell Intl L J 565 (1993)Google Scholar (Symposium; Refusing Refugees: Political and Legal Barriers to Asylum); Kelly, Nancy, Gender-Related Persecution: Assessing the Asylum Claims of Women, 26 Cornell Intl L J 625 (1993)Google Scholar (Symposium; Refusing Refugees: Political and Legal Barriers to Asylum). Lazo-Majano, particularly because it links gendered violence to politics, should probably be regarded as the foundation for the slow evolution in the Immigration & Naturalization Service's treatment of women that, a decade later, resulted in the promulgation of the Gender Guidelines, Coven, US Dept of Justice, Consideration for Asylum Officers Adjudicating Claims from Women (1995), and just recently allowed a woman to obtain asylum on the grounds that her fear of having her genitals mutilated if deported constituted legally cognizable fear of persecution. See In re: Fauziya Kasinga, Interim Dec 3278 (BIA, June 13, 1996) (en banc) (designated as precedent by the BIA); Kelly, , 26 Cornell Intl L J at 637–39Google Scholar (on importance of Lazo-Majano). But see Wheeler, David L., Harvard Program Helps Change Asylum Law for Female Refugees, The Chronicle of Higher Education, A5 (07 5, 1996)Google Scholar (referring to Fatin v INS, 12 F3d 1233 (3d Cir 1933) (feminism as a political opinion) as progenitor of Kasinga).
17. Lazo-Majano, 813 F2d at 1433-36 (cited in note 15) (emphasis added).
18. In this usage “feminist” refers to “asking the woman question.” See Wishik, Heather R., To Question Everything: The Inquiries of Feminist Jurisprudence, 1 Berkeley Women's L J 64 (1985)Google Scholar. Wishik proposes that feminists ask:
(1) What have been and what are now all women's experiences of the “life situation” addressed by the doctrine, process, or area of law under examination? (2) What assumptions, descriptions, assertions and/or definitions of experience— male, female, or ostensibly gender neutral—does the law make in this area? … (3) What is the area of mismatch, distortion, or denial created by the differences between women's life experience and the law's assumptions or imposed structures? … (4) What patriarchal interests are served by the mismatch? … (6) In an ideal world, what would this woman's life situation look like, and what relationship, if any, would the law have to this future life situation … and (7) How do we get there from here?
Id at 72-75.
19. See, for example, Federation for American Immigration Reform, Inc., v Reno, 897 F Supp 595 (DC Cir 1995); Haitian Refugee Center v Baker, 953 F2d 1498 (5th Cir (Fla) 1992); Haitian Refugee Center v Smith, 676 F2d 1023 (5th Cir (Fla) 1982); Haitian Refugee Center v Civiletti, 503 F Supp 442 (SD Fla 1980); Paul v Immigration and Naturalization Service, 521 F 2d 194 (5th Cir 1975).
20. See Pirie, Sophie H., The Need for a Codified Definition of “Persecution” in United States Refugee Law, 39 Stan L Rev 187 (1986)CrossRefGoogle Scholar (arguing that definitional uncertainty has allowed for disparity and manipulation of refugee status determinations by the INS, even as its opinions purport to speak to issues of technical interpretation and definition of the term “persecution”); see, for example, Immigration and Naturalization Service v Stevic, 467 US 407 (1984).
21. See Littleton, Christine A., Feminist Jurisprudence: The Difference Method Makes, 41 Stan L Rev 751, 764 (1989)CrossRefGoogle Scholar (Book Review of MacKinnon, Catherine A., Feminism Unmodified (Harvard U Press, 1987Google Scholar)) (discussing the contention of Catherine MacKinnon (and others) that a critical component of feminist methodology involves “taking women seriously” and “believing women's accounts” for it is these accounts which provide the basis for women (publicly) articulating their experiences as oppressive).
22. See Copelan, Rhonda, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 Colum Hum Rts L Rev 291 (1994)Google Scholar.
23. See MacKinnon, Catherine A., Rape, Genocide, and Women's Human Rights, 17 Harv Women's L J 5 (1994)Google Scholar; and MacKinnon, Catherine A., Crimes of War, Crimes of Peace, 4 UCLA Women's L J 59 (1993)Google Scholar.
24. Lazo-Majano, 813 F2d at 1435 (cited in note 15).
25. Id at 1437.
26. Id.
27. See Bartlett, Katherine T., Feminist Legal Methods, 103 Harv L Rev 829, 871 (1990)CrossRefGoogle Scholar.
28. See, for example, Lazo-Majano, 813 F2d at 1434-36 (cited in note 15) (seeing the “all too familiar” pattern of the domestic violence victim who lacks the ego-strength to escape or secure help), (taking “judicial notice of reports that persons being deported [to El Salvador] from the United States have been tortured and have been killed”), (the “indignities that everyone sees as persecution”).
29. For example, as Lynne Henderson has argued, Brown v Board of Education, 347 US 483 (1954) “illustrates the existence of empathie understanding in the Supreme Court, leading to a transformation of legal understanding, an opening of opportunity for new legal categories and interpretations.” Henderson, , 85 Mich L Rev at 1593Google Scholar (cited in note 3). See also Kaveny, M. Cathleen, Of Love and Power in Human History, 11 J Law & Relig 203, 221 1994–1995Google Scholar (Symposium in Honor of Judge John T. Noonan, Jr.) contending that:
First and foremost legal argument is advocacy, not only of a particular conclusion or result, but of a certain way of viewing the world which supports and surrounds it. … [A] truly excellent legal brief [or opinion] does not merely compile evidence, but proposes a vision of reality (or at least that portion of reality which is in dispute) that is more complete and compelling than the vision offered by the opposition. It is an exercise in aesthetics as much as in organization, a task for rhetoric no less than logic.
30. 941 F2d 738 (9th Cir 1991).
31. Id at 744.
32. See also, for example, Henderson for Epstein v Mohave County, Ariz., 54 F3d 592, 595 (9th Cir 1995) (Judge Noonan censuring sheriffs who took Henderson's daughter from her despite her having legal proof of her right to custody:
A reasonable policeman would have seen that a court decree dated 1986 trumped a decree of the same court dated 1985. More than a dash of misogyny affected the first two officers, both male, who so stubbornly refused to heed [Ms. Henderson's] explanation or acknowledge [the daughter's] desire to talk to her mother before she was whisked away. … We are well past the wild west stage of this country where strong, silent and totally unsophisticated deputies can override a mother's reasoned attempt to retain custody of her daughter given her by a court order. The exercise of prudence by law enforcement officers demands more than mechanical reliance on a piece of paper. … An officer capable of making … a reasonable determination must be presumed to have the ability to tell when a court decree has been overruled).
Further evidence of the seriousness with which Judge Noonan takes the professional and ethical responsibilities of officers of the law and others is his willingness to publicly censure lawyers even when his colleagues on the bench exhibit reticence. See, for example, Golden Eagle Distrib Co. v Burroughs Corp and Kirkland & Ellis, 809 F2d 584 (9th Cir 1987) (dissenting from the denial of a sua sponte request for en banc hearing in case involving attorney misrepresentations to the trial court).
33. Lazo-Majano, 813 F2d at 1432, 1436 (cited in note 15).
34. 833 F2d 777, 788 (9th Cir 1987) (emphasis added). See also Midler v Ford Motor Co 849 F 2d 460, 463 (9th Cir 1988) (In finding that Ford's impersonation of Bette Midler's voice “pirate[d] her identity,” Noonan claimed that “We are all aware that a friend is at once known by a few words on the phone.” (emphasis added)).
35. Just as men view their (traditionally lockable) brief cases and children their knapsacks.
36. 79 F3d 955, 972 (9th Cir 1996).
37. See Crenshaw, Kimberle, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan L Rev 1241 (1991)CrossRefGoogle Scholar.
38. See, for example, French, Marilyn, Beyond Power: On Women, Men, and Morab 442–95 (Summit Books, 1985)Google Scholar (contending that a few tenets are basically agreed upon by feminists, but then discussing different approaches to realizing feminist agendas).
39. See Fisher, 79 F3d at 955, 972 (cited in note 36).
40. Noonan, Persons and Masks at 167 (cited in note 1).