Judges can do the most good by following the law: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.Read the whole thing.
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.
Geoffrey Manne comments:
Good idea!The point, derived from Bastiat, is extraordinarily powerful, and, as Hasnas notes, the lesson is as important for economists as it is for judges (and for everyone else). Making decisions on the basis of only the most visible effects of behavior under scrutiny is always a recipe for bad decision-making. I’d also add that taking advantage of the relative obscurity of broader effects is the essential root cause of the depredations of politics and politicians, who never miss an opportunity to demagogue about a favored interest or idea to the exclusion of the (usually far greater) broader and longer-term effects.
Someone should write a book about the importance of this one idea.
4 comments:
Taking into account the broader consequences is always the best policy.
Too bad the Bush presidential administration failed to do that and in fact remains the poster child for such failure, whether it be Iraq, torture, their zeal for non-regulation of the financial sector, etc.
If one wants to consider really long term affects, Nobel prize winner Paul Krugman has an excellent piece in today's NYT about how changes during the Reagan era helped produce the problems we are experiencing today with the economy.
Let's also consider global warming...there it's far better to engage in long term thinking and consider the environmental impact of economic policy.
It should also be noted that sometimes the best overall policy is indeed the one whereby the most visibly impacted are taken into account, and sometimes even when a little compassion or empathy is shown.
Thank goodness we have a presidential administration that is a quantum leap above the previous one in their intellectual capacity and ability to think things through.
Thinking, two points. First, only time will tell if the current administration is doing a better job of thinking things through. Second, you were every bit as big a supporter of Bush and his policies (including Iraq) through two elections as you currently are of Obama and did much more than most to try to get Bush elected. (In Florida in 2000 I might add!) What makes you so sure your sense of judgment about politicians is any better now?
One of the points the article is trying to make is that no one has the ability to understand all of the consequences of their decisions, policy changes, or legal changes. That's why small, incremental steps tend to be best in most situations. That's part of the genius of the American political and legal system -- it makes it very difficult for any one individual or group to make swift, radical changes to law or policy. That adds a great deal of stability to our legal and political system and is an important factor in why America is so prosperous.
Two of the policy areas you mention -- global warming and financial regulation are great examples of areas that politicians should tread carefully because it is nearly impossible to realize the full impact of policy changes up front and both could have long-lasting, negative economic effects. That doesn't mean politicians should do nothing, but it does mean decision makers should be extremely careful and need to have great humility on these issues.
For the record, I agree with the notion that it is not the job of a judge to let compassion and empathy sway their decisions. It is their job to apply the law. That's where the notion of justice being blind comes from. As soon as you start deviating from that principle, you have the rule of man rather than the rule of law. If you want for the laws to accomplish compassionate or empathic ends, that is the job of the legislature, not the judiciary to bring about.
Dr Bri: you are correct in my past support of Bush, a decision that has been proven empirically to be a poor decision. I regard it as one of the greatest mistakes of my life.
Obviously, no one knows the exact outcome of the Obama policies, but I do know this: this administration and its leader think more...they value thinking and reasoning and data far more...they are far more intellectually engaged. I believe that has to count for something.
Once again, on the empirical merits, I have to compare the past 2 administrations...Clinton and Bush...and of the results, there is no contest: the Clinton administration produced far superior results. And I would have to say that the Obama administration is far closer to the Clinton administration than the Bush administration.
Of course all those in positions of influence have capacity to do much harm, and thus need to tread carefully. Incrementalism has its place, and has served America well.
In retrospect, I wish the Bush administration had been far more restrained in its execution of tragically failed policies. I wish many of the same conservative commentators raising their objections re Obama had applied the same sensibilities to the Bush policies and decisions.
But bold action also has its place in our history. Indeed, the very act of breaking away from Great Britain and starting the country was an act of great risk and daring, and many argued at the time a very foolish move. Our great acquisitions of land, the end of slavery, the reforms of Teddy Roosevelt, the New Deal of FDR, the mobilization to fight WWII, the Marshall Plan, the Civil Rights movement, the Space Program...all were bold actions in American history. Incrementalism alone could not have gotten us where we are today as a nation, and we have many bold leaps forward which are rightfully celebrated in our history.
Geoffrey Manne makes many good observations, but unlike him, I cannot just blame the politicians for focusing on short term gains. Politicians are motivated by incentives too, and those incentives come in the way of votes. If the electorate focused more on broader, longer term effects then the politicians would as well. Politicians only demagogue because often the electorate lets the get away with it.
For the record, I would say that Pres Obama agrees with you re respect for rule of law.
In his remarks on the retirement of David Souter and what he would look for in a replacement, he stated:
"I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."
I would also argue that when discussing deviation from the rule of law, unfortunately the most egregious example of recent times concerns the Bush administration policy of torture. Sadly, most Republicans and conservative commentators still defend that policy. Until the Republicans admit their moral error on this, they do not deserve my vote.
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