Friday, March 04, 2016

Does Sympathy Colour (Judicial) Policymaking and the Rule of Law?

Identified Lives versus Statistical Lives

In Andy Weir’s book, The Martian (recently adapted into a Ridley Scott movie, starring Matt Damon), the lead character, an astronaut named Mark Watney, is stranded alone on the planet Mars. Back from planet Earth, the National Aeronautics and Space Administration (NASA) coordinates the rescue effort. Mark Watney wonders: “The cost for my survival must have been hundreds of millions of dollars. All to save one dorky botanist. Why bother?”. Good question! The same hundreds of millions of dollars could have been used in a more cost-effective manner, to save thousands of other lives. The answer is in a classic essay entitled “The life you save may be your own” (1968), where Tom Schelling quipped:
“Let a 6-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths - not many will drop a tear or reach for their checkbooks.”
The 6-year-old brown haired girl is an “identified” life, and the lives of those in the hospitals are “statistical” lives. In other words, the United States Government (and the NASA) fell victim to the identified life bias: where humans are inclined to favour or assist identified lives over statistical lives although the latter may face similar or greater harm. This bias operates at every level of policymaking and social planning, to such an extent that the implications are labelled “statistical murder”. It leads to a focus on treatment instead of prevention, ignorance of high opportunity costs, and sub-optimal allocation of resources. Psychological research has shown that the bias stems from sympathy.

The Identified Life Bias in Litigation

In this essay, I will focus on the application of the identified life bias in litigation, more specifically in cases of social rights enforcement. In a recent book, Identified versus Statistical Lives: An Interdisciplinary Perspective, a chapter on identified lives and statistical lives in US civil litigation by Professor Glenn Cohen argues that doctrines such as standing and ripeness in US procedural law have excluded statistical lives from the litigation space. ‘Standing’ requires the plaintiffs to show that an ‘injury in fact’ has been suffered. In City of Los Angeles v. Lyons, for example, an African-American plaintiff sought an injunction on the use of chokeholds by the police except in cases of imminent danger. The plaintiff had been choke held before; and was seeking an injunction with respect to future cases. The Court held that the plaintiff lacked standing. In other words, although “he was an identified victim of the past chokehold, he was only a statistical victim of the future one”. Same is the result with respect to cases of environmental law protection. The ‘ripeness’ requirement is such that Courts do not adjudicate cases unless the facts have sufficiently matured. This again tends to exclude statistical lives since such cases are usually speculative and probabilistic in nature. Professor Cohen argues that class action suits are a middle-ground where an identified life litigates on behalf of himself or herself, as well as on behalf of a number of statistical lives. The message is simple. The judiciary, also a policymaking institution, is biased in favour of identified lives by virtue of the rules of litigation procedure.

In India, at least in the superior judiciary, the scenario is different. The reason is that rules of standing in the constitutional courts have been significantly relaxed owing to the evolution of Public Interest Litigation (PIL). The evolution of PILs in India have led to relaxed rules of standing, which enables public spirited citizens to file cases on behalf of “marginalized and deprived” sections of society for the enforcement of their fundamental rights. By its very nature, the PIL system brings cases of statistical life into its inclusionary fold.

The Bias as Applied in Social Rights Adjudication

My argument is this essay pertains more specifically to cases of social rights. As opposed to civil-political rights, social rights involve judges making decisions regarding resource allocations. Judges then play a role that is markedly similar to that of a planner and policymaker.  Since the State has only limited resources to be allocated, they must essentially be rationed to all members of the State. In case of constitutionalized or statutory social rights, petitioners can directly approach the constitutional courts to question (or seek) resource allocation decisions. Let us take an example. In Mohd. Ahmed (Minor) v. Union of India, the Delhi High Court was approached by a minor child. The issue was:
“whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, gaucher, is entitled to free medical treatment costing about six lakhs per month especially when […] there is every likelihood of petitioner leading a normal life”.
This is a classic case of a litigation involving an identified life. The Court, being sympathetically moved by the identified life (akin to Schelling’s example of a 6-year-old brown hair girl), is likely to opt for a rescue intervention while disregarding or not considering the high opportunity cost (the same amount can be used for more cost effective preventive measures).[1] This was precisely the result: the Court directed the Delhi Government to provide the treatment free of charge.

This case is illustrative of a broader problem in social rights adjudication. As Cécile Fabre points out, it is “virtually impossible” to determine whether an individual’s social right has been violated: judges are not competent (term of art) to compare different permutations and combinations of resource allocations. Assuming limited availability of resources, the Delhi High Court’s decisions may well have denied another party (not before the Court) the benefit of the directed resources. This problem is profound. As Frank Cross argued, since litigation is costly and time-consuming, the “economics of rights enforcement” is such that “haves” and “repeat players” have a distinct advantage over “have-nots” and “one-shotters”. In such a situation, the identified life bias has the potential to cause deep injustices. Thus, a middle ground solution, as Fabre suggests, would be to allow only group actions[2] in social rights cases. This will ensure that the identified life bias does not cause social rights violation towards the vast statistical lives.

Summing Up

To sum up: the identified life bias affects all humans, including policymakers. Judges are also important policymakers. The procedural rules of litigation compound this bias by excluding statistical lives. In India, PILs have, to an extent, corrected this problem by bringing statistical lives into the litigation fold. This leeway created by PILs may valuably utilized in social rights cases, where the identified life bias is especially bound to cause pervasive (and unseen) injustices.

A general caveat is that this is analysis follows only one analytical approach, and is only one view of the cathedral. I acknowledge that there are several competing considerations that may affect resource allocations.

[1] In the United States of America and the United Kingdom, for instance, there is plenty of debate regarding the funding of cancer death postponing drug Ipilimumab, which costs the Government huge amounts of money.
[2] One alternative would be to allow individual actions, but group remedies or two-track remedies (i.e., individual relief as well as a group remedy). But even this might tie judges to an identified life bias and may affect the given remedies.
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