JV. REFORMULATION
Rule 2 Rule 2 would also involve significant administrative costs. A judge would be required to distinguish between welfare-maximizing behavior
(including both Simple Welfare Maximizing and Welfarerrort Balancing behavior) and other behavior. This would likely involve consideration of numerous factors, among them: (l) the language of the authorization under which the acting official made any decision; (2) the entity's authority to consider broad policy questions; (3) the nature of the position held by the employee responsible for any crucial decision or action; (4) the existence of any governmental cost-benefit studies discussing the class of damage in- volved in the suit; (5) the existence of any debate or public hearings on the decision to risk the damage; (6) the tone of internal memoranda dealing with the possibility of damage; and (7) public statements as to governmental motivation (though these may have to be taken with a grain of salt).
81This list suggests a time-consuming, costly, and difficult inquiry when relevant
~-iriformation=isavailable:-
Where information relevant to a Rule-2 inquiry is unavailable, the government will be unable to meet its burden of showing welfare-maximizing behavior. Consequently, Rule 2 would yield the same result as would Rule l.
Even if such information would generally be available, however, Rule 2 is preferable to Rule 1 only if there are so many Welf arerrort Balancers that an immunity-provided efficiency gain compensates for the greater administra- tive costs Rule 2 would entail.
82Although no empirical evidence is available regarding the frequency of Welf arerrort Balancing behavior,
83and procedur-
81. Cf. Note, Tht Discrtlionary Function Exctption of tht Ftdtral Tort Claims Act. 66 HARV. L. REv. 488, 491-94 {1953) (listing factors relevant to analysis of "discretionary function").
82. This Note assumes that if there are very few Welfarerrort Balancers, then the cost of the inquiry in Rule 2 will exceed the loss due to the Welfarerrort Balancers' changed productive behavior.
83. It may be possible, through some appropriately worded and widely distributed ques- tionnaire, to generate some data as to frequency. The survey's costs may be substantial.
however, and since the people who respond to the questionnaire will not often understand the underlying concern of the survey, its results may be untrustworthy.
al devices such as presumptions could reduce administrative costs under certain circumstances,
84administrative costs seem to tip the scales in favor of the simpler, easier to apply, Rule I.
852. Fairness as a Constraint
Considerations of fairness serve two distinct functions within the framework of this analysis. First, fairness is an independent criterion by which an immunity rule is selected for those models of governmental behavior that do not lend themselves to rigorous economic analysis. Second, fairness is a
84. The administrative costs associated with the inquiry into welfare-maximizing behavior can be reduced hy using legal presumptions. Assume that some preliminary gathering of relevant data is affordable. but that a full inquiry is much more expensive. Certain legal presumptions may be developed in response. Given a preliminary set of facts in which the government is negligent, either immunity or suability may be the correct judicial response according to the economic analysis, depending on the type of bureau involved. According to the probabilities of immunity or suability (given the preliminary set of facts). it may be appropriate to grant immunity, deny immunity, or proceed to a full inquiry into the government's behavior. For example, suppose that in 99'il- of the spark-ignited wheat fires the government was acting as a welfare maximizer, while in 99% of the cow/train accidents the government was acting as a Fixed-Job Cost Minimizer. In response, one may create a pair of presumptions which are based only upon the accident's preliminary facts. If the tort involves a wheat fire, then the government is presumptively immune from tort suit, but if the tort involves a cow/train collision, then the government is presumptively suable. Analogous presumptions may be found elsewhere in tort law. For example, the doctrine of res ipsa loquitur allows a court to presume negligence from a preliminary set of facts. A set of sufficient conditions are
(I) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the
~----~--~-~--~-~~ __ ~ __ ~-__~c:;;~;;_;;-ch:rsive--mntrol---ohhc--defendant~(-3-)-it~must-not-have~bcen-due-to.afl-y .. \'oluntar.) .. ' ---~--~---~-~
aciionor coiili'ioiiticfr\ on the part· of-the-plaintiff; -- -
W. PRossFR. supra note 2, at 214. Su gtntrally id. at 208-11. Whenever a set of preliminary facts conforms to all three elements of this description, it is very likely that the defendant was negligent. Therefore, the court may prtsume the defendant's negligence.
Despite the use of presumptions, the inquiry mandated by Rule 2 is likely to be very expcmive. Assembling the relevant data on this point is not likely to be a regular function of someone within the bureau. Either an attorney or someone within the bureau who is working with an attorney will have to wade through piles of irrelevant material to assemble the salient information. This process will be repeated in every lawsuit, either to establish immunity in the first place or to rebut and reestablish a presumption on the point. Further, determinations of this issue may be frequently appealed, thereby consuming even more resources.
85. Wherever Welfare/Tort Balancers arc operating under a negligence rule, and juries correctly perceive social welfare maximizing activities as nonnegligent, bureaucratically optimal behavior, with or without immunity, will coincide with socially optimal behavior.
The choice of Rule I also avoids any need to establish, on fairness grounds, an independent compensation agency. The discussion in Section IV .B.2 reduces fairness considerations to access to compensation. Because Rule 2denies the standard avenue of compensation (the courts) whenever a victim is injured by a welfare-maximizing entity. fairness may require the creation of an independent compensation agency to reimburse deserving victims. For example, Congress provicled compensation to the victims denied relief on grounds of immunity in Dalehitc v. United States, 346 U.S. I~ (1953). Act of Aug. 12, 1955, Pub. L. No. 84-378, ch. 864, 69Stat. 707. Rule I would avoid such a need.
4-8
constraint.
86Any rule formulated through economic analysis should be subject to the additional constraint that it be fair. An unfair rule should not be adopted. It is therefore necessary to ex.amine, at this juncture, the fairness of Rule 1.
Before this fairness question can be answered, the nature of the con- straints that operate in this context must be explored. The following
"fairness assumptions" are offered to aid in the exploration:
(1) Fairness considerations for the government do not affect an immuni- ty rule. This fairness examination questions whether the suggested rule deals too harshly with the stochastically selected victims of government activity.
The fact that most governmental activities are for collective benefit means that, in some sense, if a citizen is not the victim then he is the injurer. The question of governmental immunity reduces to whether the class of potential injurers (as represented by the government) should allow the victims access to the courts. It may be legitimate to suggest that the injurers should deny the victims access to the courts for reasons of efficiency. In a society where the normal expectation is that injurers must meet their victims in court, however, the injuring class should not be permitted to frustrate this expectation upon fairness grounds. Therefore, fairness to victims is the only salient concern.
(2) The name of the entity from which the victim recovers is irrelevant.
If fairness demands compensation (or at least access to compensation), then recovery from the railroad is no more or less fair than recovery from general revenue funds. An implication of this assumption is that the victim's urge for revenge is-given:noweight,··AlthC>ugh the victim may want to ''get·back''at-- · the injuring entity by successfully suing it (to the exclusion of all other entities), society should not cater to these primitive desires in the name of fairness.
(3) It is fairer to compensa.te a victim than to force him to bear the Joss himself. Injured parties are victims of activity designed for the collective benefit. Requiring the victim to go uncompensated demands that he contrib- ute more than his proportionate share to societal ventures.
These three assumptions reduce the question off airness to one of general access to compensation. Rule 1 provides access to the standard avenue of compensation (the courts) under al1 circumstances. On the other hand, Rules 2 and 3 would deny such access in some cases, assuming that administrative
86. "Fairness," in this sense, will be used in the same way that Guido Calabresi u~e'>
"justice" in Tht Costs of Accidents. "[J]ustice is a totally different order or goal from accident cost reduction. Indeed, ii . . . is not a goal but rather a constraint that can impose a veto on systems or on the use or particular devices or structures within a given system . . . . " G.
CALABRESI, supra note 1, at 25.