Tuesday, January 10, 2006


Just Checking In

I thought I would link to this post over at Cafe Hayek and post his eloquent response to Biden's insinuations about the "real world" during the Alito hearings.

Senator, I, too, believe that law is a product exclusively of the real world and should not be divorced from it. I agree with Oliver Wendell Holmes’s observation that law is no “brooding omnipresence.” But Senator, we must be careful about what we take to be the real world. The real world is not limited to the here and now; it’s not limited to the plaintiff and defendant in whatever case happens to be in front of the court. It’s not limited to the people we can see and hear standing before us or shouting behind us.
The real world exists through time and vast space. It includes millions of people whose names and faces we don’t know and will never encounter – but each of whom is as real as you and me. The fact that we – you and me – don’t see these persons and don’t know them doesn’t make them unreal or less-real than the people we do see and hear and touch and smell in our courtrooms and in the lobbies of our legislative halls.
So let’s say we have a statute aimed at preventing employment discrimination against disabled people. I ask: Which disabled people? And I answer: all disabled people. Surely being a man committed to the real world you understand that this country contains many more disabled people beyond the one who sues a company under the statute. If the court grants relief to the plaintiff – the disabled worker who filed the suit demanding (say) that his employer build a special elevator just for his use – that real-world disabled worker might well be helped. But what if the consequence of applying the statute in this way makes it less likely that disabled people will be hired in the future and by other companies?
I realize, Senator, that judges’ scope for making policy decisions is far narrower than that enjoyed by legislators. But please, Senator, don’t insult me or the audience listening to this political spectacle by insinuating that only persons, such as yourself, who focus only on the anecdote, only on a handful of identifiable persons, have a monopoly on caring about the real world. Don’t suggest that those of us who care about rules – who understand that rules are to be judged by their performance over time and space rather than by how they work in any one instance – are less concerned about the real-world than you are.
Indeed, Senator, because I understand that statutes and legal rulings have effects far beyond those which are seen, I dare say that I am more aware of the real-world than are those – such as you, Senator? – who typically judge a rule to be good or bad based exclusively upon how it affects a single or a few identifiable persons.
Senator Biden, the issue isn't whether or not the real world matters. We all agree that it does. What separates you and me, Senator, is that I don’t ignore that part of the real-world that is less visible than that relatively small part that attracts the attention of politicians and the press.

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