The Wall Street Journal
MAY 29, 2009
The 'Unseen' Deserve Empathy, Too


By JOHN HASNAS
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.

Mr. Hasnas is a visiting professor at Duke University School of Law.

Some thoughts on homeschooling..

5/27: Letters to the Editor
May 27, 2009
Home-schooled children are smart, considerateIn Monday's Sentinel ("Home-schoolers, don't quit system"), Amy Platon argued that parents who home-school their children are creating citizens who will have less compassion for their community, avoid improving the lives of our fellow man and only look out for their own interests.As a professor in Orlando for the past 18 years and father of two home-schooled boys, I think I can respond to her concerns.The home-schooled students who come to my economics classes are, along with their counterparts from India, Russia and China, my best students. They earn the highest grades, have wonderful communication skills and are willing to help their fellow students. In fact, many of our nation's best universities seek out home-schooled students because of their unique life experiences and high SAT scores.In areas where my wife and I are not experts, the free market of ideas has provided experts. We use private-school clubs and programs, free-market educational resources and cooperatives with parents who are specialists in everything from electricity to pottery to provide our sons with an enriched learning experience. Moreover, through music and sports programs, we help our boys function in a society of non-home-schooled children.
Platon should be concerned that America's public schools rank at or near the bottom of international comparisons. If concerned parents want their kids to emerge from this epic recession as viable competitors with Chinese and Indian children, then looking into the home-school option would be a good place to start.Jack Chambless Oakland

Government as car maker...

The moment we have all been waiting for has finally arrived. The United States government is officially in the car business. The same government that has given us the wildly successful post office; public education; American-Indian reservations; the War on Poverty, drugs and terrorism; public housing; forest management and many other highlights in the history of things that don't work, is now poised to give us our future automobiles.

Let's take a moment to review how we got here.

First, the 'Big Three' American companies failed miserably to compete with Japaneses car companies from the early 70's on. With the help of the economically illiterate United Autoworkers union, American companies saw declining market shares, rising costs and inferior quality come home to roost.

Facing bankruptcy, two of the three run to Washington, D.C. to beg for the plundered tax dollars of people who drive Toyotas, Hondas, Hyundais and other cars that are not made by GM or Chrysler. Our government proceeds to hand them billions of dollars and a threat to come up with a better model in a couple of months (to replace what took decades to doom them) or face the pressure of federal intrusions into how to get us from point A to B on the highway.

Of course the beggars from Detroit failed to deliver on this impossible task and the Obama Administration, a.k.a, the "Superior Ones" ostensibly nationalized GM by taking a 50% ownership stake and condemned Chrysler be the certain death of being largely run by that world-class company, Fiat.

Now that the federal government has huge ownership stakes in both companies, the feds get to tell the companies what to do. Naturally, this means the companies will be forced to do things that have not even one remote connection to anything that the laws of supply and demand would insist they do.

In a free market, absent bailouts and takeovers by government, GM and Chrysler would be wise to file for bankruptcy, close every plant in unproductive, union states and move to places like Texas, Florida and other places where you can hire workers for far less than the absurd amounts the UAW workers get. Then, as smaller, leaner companies, GM and Chrysler could go about competing with Toyota and Honda on a playing field that Adam Smith would love.

Instead, on May 18th, GM CEO, Barack Obama announced that he will be determining what course of action the car companies will now face. HE has decided that all cars should get 30% better fuel economy than they do now by the year 2016. HE has demanded that this take place so that we can all fight global warming in smaller, lighter, less roomy death traps on wheels.

Take a look at the data for yourself. When government forces our cars to get better mileage, highway deaths increase.

These cars will cost more (Obama predicts $600 more) and will not have the same power or capacity that our vehicles do at this time.

Our marketplace used to tell car companies very clearly that size and power is what we want most. Now tree huggers and "Save the Polar Bears" activists will tell us what to drive.

With any luck we will get to drive cars like the East German Trabant (see photo) This is the car that gave Communism a bad name. Powered by a two-stroke pollution generator that maxed out at an ear-splitting 18 hp, the Trabant was a hollow lie of a car constructed of recycled worthlessness (actually, the body was made of a fiberglass-like Duroplast, reinforced with recycled fibers like cotton and wood). A virtual antique when it was designed in the 1950s, the Trabant was East Germany's answer to the VW Beetle — a "people's car," as if the people didn't have enough to worry about. Trabants smoked like an Iraqi oil fire, when they ran at all, and often lacked even the most basic of amenities, like brake lights or turn signals.

Road trip anyone???