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58 South Carolina Law Review 415 (2006)


This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a reasoned and moral response to pain, although it is this subjective response to pain that courts find most threatening. Not only do emotions such as empathy have cognitive and social roots, the anti-empathic Stoic philosophical tradition which informed the conception of the rule of law is incompatible with contemporary social conceptions of justice. Part IV shows how law incorporates subjectivity into personal injury litigation by creating an intensely moral consequence for plaintiffs who falsely claim to be in pain: the assignment of a malingering label. This Essay concludes in Part V that recognizing the relational connections made possible through the expression of pain is essential in a disjointed cultural present that is suffused by pain-full imagery.