Of Moral Outrage in Judicial Opinions

Abstract

Moral outrage is a substantive and remedial feature of our laws, and the Article addresses three questions overlooked in the scholarly literature. What do judges mean when they currently express moral outrage in the remedies portion of their opinions? Should judges express such moral outrage at all? If so, when? Relying on a branch of legal philosophy known as hermeneutics that deals with the interpretation and understanding of texts, the Article argues that in interpreting and understanding cases judges should express moral outrage when faced with individuals from communities whose voice has historically been at risk, is currently at risk, or is likely to be at risk of being silenced. The Article draws from water law, tort law, employment discrimination, property, and family law, among others, to offer the core insight that moral outrage should be its own emphatic remedy, and a philosophically informed approach to judicial interpretation requires expressions of moral outrage from the bench to address ongoing injustice or the threat of injustice directed at vulnerable communities such as women and religious minorities in the current political climate in the United States.