The ‘Unseen’ Deserve Empathy, Too by John Hasnas

Today’s article of the day comes from the Wall Street Journal:

While announcing Sonia Sotomayor as his nominee to the Supreme Court, President Barack Obama praised her as a judge who combined a mastery of the law with “a common touch, a sense of compassion, and an understanding of how the world works and how ordinary people live.” This is in keeping with his earlier statement that he wanted to appoint a justice who possessed the “quality of empathy, of understanding and identifying with people’s hopes and struggles.”

Without casting aspersions on Judge Sotomayor, we may ask whether these are really the characteristics we want in a judge.

Clearly, a good judge must have “an understanding of how the world works and how ordinary people live.” Judicial decision-making involves the application of abstract rules to concrete facts; it is impossible to render a proper judicial decision without understanding its practical effect on both the litigants and the wider community.

But what about compassion and empathy? Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another’s emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

Frederic Bastiat answered that question in his famous 1850 essay,What is Seen and What is Not Seen.” There the economist and member of the French parliament pointed out that law “produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.” Bastiat further noted that “[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.”

This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about — that is, for those who are “seen.”

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge. For this reason, let us hope that Judge Sotomayor proves to be a disappointment to her sponsor.

Published in: on May 29, 2009 at 6:38 pm  Leave a Comment  
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The 2000 Election Bailout?

Almost anyone who was anyone remembers the Florida recount after the Presidential election in the year 2000 between Former Veep Al Gore (now beloved Nobel Prize Winner and Activist) and Former Governor George W. Bush (now President).

When you think about government and like I, was reading Plato’s Republic on democracy and tyrants, you begin to wonder about how were we able to so peacefully transition with a contested election. Had this been a Roman election there would have been blood or the very least mysterious deaths. When Plato mentions what it takes to get a democracy, which he believes is revolution, he also mentions what it takes to get a dictator. This is what Plato has to say:

“When a democracy which is thirsting for freedom has evil cupbearers presiding over the feast, and has drunk too deeply of the strong wine of freedom, then, unless her rulers are very amenable and give a plentiful draught, she calls them to account and punishes them, and says that they are cursed oligarchs.”

With current bailout, we treat Wall Street like a bunch of drunken fools “too deeply of the strong win of freedom.” We allow Secretary Paulson to rise and “calls them to account and punishes them, and says that they are cursed oligarchs.”

But is it democracy that is becoming a bunch of drunken fools who have taken their freedom to regulate us and regulate these industries that need to be called out and punished? I would say yes, very much so.

That begs the question that no one will ever answer and no one will ever ask. Lucky for you, I will. Do we need a tyrant to kick down the door and tell Bush, Paulson, Pelosi, and others to get out of the way? Had Bush or Gore been a tyrant and seized power would we be in this situation today?

Of course, my answer is no. We do not need a tyrant but we do need a leader. We need someone who will stand up to the American people and stop playing games of politics and actually do what is right. We need someone who knows economics and believes in small government.

We must do it through the means that are necessary, which is without government. Will that lead us to ruin? Maybe, so. No, democracy has lasted forever and there is a reason for that. It has something to do with tyrants who take over for the good and turn. But it also has something to do with the people.

Back to the 2000 election, did the Supreme Court act as a bailout of our democracy? Had all the votes been counted, we would have had Bush still. But the Supreme Court intervened and we stayed peaceful, not that there was a threat of the opposite. It was just insuring the just in case moment. Of course, Gore is a lot more popular than Bush now a days.

It is just funny to think the American people have been burned by a dictator not so long ago, but yet we forget what small government was like and we have become much bigger than the government in which we broke away from. Democracy can be just as corrupt as a dictator.


Published in: on October 8, 2008 at 11:25 am  Comments (1)  
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On Fannie Mae and Freddie Mac…

Since most everyone has offered their opinions which are spread throughout the Internet, I am going to put some quotes and articles up here and comment on them. I hope this presents the biggest financial government intervention in a long time and sums it all up for you. If nothing else, it can serve as a reference.

The Wall Street Journal on this:

“Mr. Paulson’s weekend announcement represented one of the most sweeping interventions in financial markets since the Depression, essentially putting the government in charge of helping finance American mortgages. Fannie and Freddie are vital cogs in the housing market, backing three-quarters of all mortgages being made in the U.S. now that bruised Wall Street banks have withdrawn from that market. They hold or back more than $5 trillion in mortgage debt. But as the housing market cratered, investors grew nervous about the companies’ capital positions and their ability to weather the storm.”

This will obviously create a dependency problem. You must learn that the oven is hot and will burn your hand before you learn not to stick your hand in there. Sometimes you just have to get burned, but the government will not allow that. What happened to the kid in our society who is never disciplined?

The Guardian on this:

“Paulson said shareholders, who will be left with only a small share in the business, will be expected to absorb any further losses before the taxpayer becomes liable. He added that all voting rights would switch to the government and 80% of the common stock “on a fully diluted basis at a nominal price”. Analysts said the combined effect of these policies would in effect wipe out the value of any existing shares in the lenders.”

This article actually uses the word nationalization, this word seems to be avoided by American media and Paulson himself. With a move as big as this, it is hard to say the taxpayer will not pay some of this.

The International Herald on Paulson’s Bazooka:

“But the real question is, did things have to end this way? The answer, many on Wall Street believe, is probably not. Or at least not when they did.

Many people in financial circles can’t quite figure out why Paulson pulled the trigger when he did. He insisted politics had nothing to do with it. Never mind that the news broke just after the Democratic and Republican conventions, but as far away as possible from the November election.”

Interesting argument if we had to even do this at all. My answer is of course no.

Bryan Caplan on the legality:

“Could someone who knows the law explain the legal basis for the Treasury’s takeover announcement? The Wall Street Journal simply describes it as a “seizure.” But the last time I checked, the legal procedure for the U.S. government taking stuff was more complicated than just saying, “Now it’s mine.”

I think this raises an interesting point. Could the Supreme Court cut this down? I think/hope so, but I know it will never happen.

Last, but not least, to give you another Economist’s view. This is from someone who is usually in the middle, Greg Mankiw on this:

“I am saddened whenever any private profit-seeking enterprise gets bailed out, whether it is Chrysler, Long-term Capital Management, Bear Stearns, or the GSEs. Such bailouts sow the seeds of the next financial crisis by fostering expectations of future bailouts and encouraging excessive risk-taking. (And before anyone emails me that the GSE equity holders are not exactly getting a good deal here, let me point out that the debt holders are. In a capitalist system, you want those extending both debt and equity finance to bear the consequences of the risks they undertake. If the taxpayer is chipping in, someone is being insulated from risk.)”

Here are my final comments on this whole ordeal. Congratulations if you made it this far. I think it is important to remember where this problem came from. I have argued before that it was the recession of 2001 that caused the Fed to lower the interest rate. This pushed investment to other things like housing and when the natural rate adjusted, it all came down. This is the classic Austrian Business Cycle.

What I would also like to add is to remember that most of the time when we see a problem the media and the government frame it in the past few years. The problem is much bigger. There has been regulation forever.

Like Robert Murphy in Freeman Magazine once said, some would believe that this is the same as the police moving cars out of the way after an accident. But this is more like the police shooting at traffic and causing the accident and then making all the cars stop while they rush the bankers to the hospital.


A chance to save the Second Amendment

This from the Washington Post:

“The Supreme Court announced yesterday (Tuesday) that it will determine whether the District of Columbia’s strict firearms law violates the Constitution, a decision that will raise the politically and culturally divisive issue of gun control just in time for the 2008 elections.”

This is a very important bill and is a chance to see our new conservative judges at work. Especially considering that this is one of the most important amendments to the Constitution.

People get caught up with this amendment and think that it gives hunters the freedom to hunt. This isn’t even the beginning of the creation of this amendment.

This is what it says:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The founding fathers knew that the government could get out of hand. They lived through a period in which it did. This amendment protect them from that.

This is the quote from the Virginia Declaration of Rights, which was what the Constitution was based off of:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state…”

The part that really sticks out to me is the “safe defense of a free state.” During the Civil War, a free state is a state without slavery. The government can enslave people at anytime. Some argue that we are moving towards that with the Patriot Act and constant regulation. Slavery of their own people. Slavery that we have seen in most governments in history, except for a small few. Even they end in slavery or failure.

A free state to the Virginia Declaration of Rights is a state without restraints on their people. A state in which people are free to do whatever they want. The “free state” here is a state without slavery.

As the government tightens their grip on our freedom, we have the right to tighten our grip on our guns.

We are the checks and balance that you do not learn about in your grammar schools.

If the government gets out of line, shoot it and start over again.

I urge the U.S. Supreme Court to rule that the D.C. gun ban is against the Constitution and I urge the Judges to not hold back in create a standard for all gun cases to come.

We should end all control on our guns.


Published in: on November 21, 2007 at 3:35 am  Leave a Comment  
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