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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