The first chapter of this dissertation is printed here with the permission of Southern California Law. An essay defines and explores the strengths and limits of Axiomatic Analysis of Legal/Institutional Issues and then draws guidelines for using axiomatic work in policy papers.
Ethical postulates
Therefore, rather than prescribing suability as a means to maximize consumer satisfaction, the article relies on fairness and comparative utility – much stronger ethical assumptions – to prescribe suability for that model. Prescribing policy recommendations based on an AA The use of an AA to prescribe social policy.
Limitations of the axiomatic approach
Highlighting weaknesses
Therefore, the first and most basic limitation is a writer's reduced ability to slip anything suspicious past a reader. Note that this limitation is dictated by the same considerations that lead to a thoroughly explored model (part of the strength of an AA).
Unsuitable issues
Audience
A thorough treatment of a problem may require the analyst to address aspects of an issue that. It is important to let the understanding of the overall problem determine the scope of a paper.
The formal AA and its recommendation
This note will assess the desirability of sovereign immunity through an examination of the economic consequences of presenting the government and the private citizen with alternative incentive structures. The immunities of the United States government are set forth in the Federal Tort Claims Act, 11 where the federal government is generally liable.
ASSUMPTIONS
This assumption is only needed for a rigorous derivation of the necessary conditions for sovereign immunity. With the change in the rule on governmental immunity, the structure of the game under consideration will also change.
FIVE RATIONAL ACTOR MODELS
- Fixed-Job Cost Minimizer
- Empire Maximizer 51
- Malevolent Entity 61
- Fixed Producer
- Random, Budget Consumer
- PRELIMINARY SYNTHESIS OF AN IMMUNITY RULE
The formal economic analysis of this model is so similar to the analysis of the budget-maximizing product-consumer that it will not be presented in full.. the model will be described briefly. Suppose the person in charge of the hypothetical entity is anxious to expand his empire (area of operation).
JV. REFORMULATION
- SYNTHESIS OF AN IMMUNITY RULE
- Rule 1: The government should be suable in tort for monetary damages
- Rule 1 was the rule originally derived
- Rule 2: The government should be immune from tort suit for monetary
- Rule 3: The government should be immune from tort suit for monetary damages if and only if it demonstrates that it decided, after weighing social
- Administrative Costs
- Rule 2 would also involve significant administrative costs. A judge would be required to distinguish between welfare-maximizing behavior
- Fairness as a Constraint
- The Proposed Rule
Consider a certain bureaucrat who does not believe that he will reduce the amount of damages judgments against his office at the global mallima of the social welfare function. Consider a certain bureaucrat who does not believe that he will reduce the amount of damages judgments against his office on the global maii:ima social welfare functions. Each bureaucrat will adjust the bureau's activity so that the product of the marginal utility of social welfare multiplied by the marginal rate of change in social welfare given each bureau's activity equals zero.
CONCLUSION
Thus, while equity would not preclude the use of Rule 1, it does suggest that Rules 2 and 3 may be inappropriate. After relaxing the assumption of insignificant administrative costs and considering the fairness of the alternative rules, the preferred rule is that the government should be liable for wrongful damages.
Multicriteria Choice Processes: An Application of Public Choice Theory to Bakke, the
FCC, and the Courts*
This article will use public choice theory to show that some administrative decision-making processes cannot have all the properties claimed by the agencies involved or required by law: it also considers the applicability of public choice theory to judicial decision-making. . Bakke,6 the Supreme Court examined procedures that use a set of criteria to select candidates for admission to medical school. In his opinion, Justice Powell found the admissions system at issue to be unconstitutionally discriminatory, but suggested that one such process that still included race as a criterion would be constitutional.7 The four members of the court (in an opinion that follows cited as the "Brennan opinion") attacked Justice Powell's proposals, arguing that his alternative procedure was not fundamentally different because it would merely allow decision makers to reach the same result "in a way that is not immediately apparent to the public."8 public choice theory to alternative methods for selecting medical school classes can offer insight into the selection process proposed by Justice Powell and also demonstrate the utility of the theory for analyzing administrative and legal decision-making processes.
Internally Inconsistent Multicriteria Choice Processes- An Explication Focusing on the Bakke Decision
In the Bakke case, Judge Powell held up the Harvard College admissions program as “an illuminating example” of an election process that includes race as a criterion in a constitutionally permissible manner. The Harvard Program does not guarantee racial diversity by a. These criteria are not an exhaustive list; they are taken from the description of the Harvard program in the appendix to Justice Powell's opinion. It also seems clear that, at least in filling the last few spots in the class, the process is to choose additional members one by one from the pool of remaining candidates.15.
A Class of Internally Inconsistent MCCPs
- Axiom IV: The MCCP uses no absolute scales or absolute weights to combine categorical rankings into a choice
- Axiom V: Given any two alternatives A and B, A will be a more
- Axiom VI: No one criterion totally dominates the MCCP
- Axiom VII: For any set of alternatives, the choice process will have the same result whether the choice is made directl)1 from the entire
- Axiom VIII: For ever)' possible set of alternatives, if one member of the set ranks higher than a second member in every criterio11
This axiom states that the world contains at least three minimally qualified candidates, but makes no claims about the number of candidates who are actually alternatives in the selection process.19 A minimally qualified candidate is one who would be chosen if no better candidate were available. . If axiom VI is violated, rankings under a single criterion determine the choice between each pair of candidates.25. The axiom may still apply if the choice within certain categories of candidates is made on the basis of one criterion.
Axiom IX requires that switching a candidate's social security num- ber and other irrelevant characteristics not alter the choice. 30 Most
Analyzing the Harvard Program Under the Nine Axioms
- Harvard's Treatment of Race as a Criterion
- The "Brennan Opinion" Critique
At least in part of the recording process, the program appears to use an MCCP43 that satisfies the axiom. Of the nine axioms, Axiom IV is the only one that is neither explicitly mandated by the Harvard program nor a plausible or desirable characteristic of the admissions process. In the description of the Har\'ard education, however, it is stated that the admissions committee goes "with a number of criteria in mind." 98 p.
The Use of Internally Inconsistent Multicriteria Choice Processes by Administrative Agencies
When an absolute scale or absolute weights underlie an admissions process, discovering the exact nature of the scale or weights is the most important step in deciding whether the process meets constitutional standards. This discussion first describes FCC comparative hearings and then demonstrates that each of the nine axioms previously described are either physical limitations or legal requirements for the hearing process. Since public choice theory states that the trial process cannot obey all the axioms, the second part of this section discusses the probability that the MCCP violates certain axioms and the legal and normative implications of the violations; it concludes by using the analysis previously developed to evaluate several proposals to reform FCC comparative hearings.
FCC Initial Broadcast Licensing Comparative Hearings and the Applicability of the Nine Axioms
- The FCC Initial Broadcast Licensing Comparative Hearing Process as an MCCP
- Different Ways in which the Axioms Can Apply to an Administrative Process
- The Applicability of the Nine Axioms to FCC Comparative Broadcast Licensing Hearings
During the hearing phase, the FCC selects one licensee from this pool of qualified applicants. Whether decisions are made in adjudication or policymaking, a sound basis must be provided.m The United States Court of Appeals for the District of Columbia Circuit, the court with exclusive jurisdiction to hear complaints about FCC comparative hearings,114 stated that. Applicability of the Nine Axioms to Comparative FCC Broadcast Licensing Hearings.
The District of Columbia Circuit has instructed that comparative hearings between two applicants "must reveal which will better" serve the public interest.118 Since two applicants cannot simultaneously serve the public interest "better", the FCC's MCCP must choose exactly one . winning licensee based on substantial "public interest" considerations contained in the criteria. To satisfy axiom Ill, the selection process must be able to consider any conceivable minimally qualified applicant, regardless of the attributes it possesses. 122 Because the FCC states that it will include any minimally qualified applicant in a comparative hearing,1:!3 it appears that this axiom is met in practice.
Axiom IV forbids the use of absolute weights or absolute scales in combining categorical rankings into a choice. 125 The FCC incorporates
Courts of appeals consistently require the FCC to consider all material differences between applicants raised by the parties in a comparative hearing.141. Since the FCC must select only one applicant through its MCCP, it must be able to establish a strict preference between any two applicants. Assuming that the FCC can determine that one of the two applicants will better serve the public interest, one of the agendas will not select this preferred applicant.
Axiom VIII states that if there exists an applicant, A, who ranks higher than applicant B under every criterion, then applicant B will
To satisfy axiom Vil, the outcome of an MCCP must not be affected by a change in the "agenda" in any particular comparative trial.146 Specifically, the selection from a set of minimally qualified applicants must be the same or the selection be made directly. from the entire set or the set is divided into subsets and an overall winner is selected from the preliminary winners in each subset. There do not appear to be any FCC or court decisions that specifically deal with agenda influences.147 However, Axiom VII is an implicit legal limitation arising from the express legal requirement that the FCC select applicants based on the public interest148 and from the requirement that the FCC would be able to specify which of any pair of minimally qualified applicants would better serve the public interest.149 Suppose that, under one agenda, applicant A would be selected while, under a second agenda, applicant B would be selected. Additionally, courts will overturn an FCC decision if the FCC has not considered all of the public interest criteria raised by the parties.1~3 If the FCC were to select one applicant over another that is superior under each criterion , it would have ignored all the criteria raised in the case.
To violate axioms III, VI, or VIII and avoid judicial discovery, for example, the FCC would probably have to include false information in its opinion. A violation of the axiom means that the FCC does not rely entirely on the MCCP to select an applicant. In some cases, the FCC may use random or legally irrelevant considerations to select a final licensee.
Axioms IV and IX could be violated most easily and with the least chance of detection because either axiom may be violated without any
General Implications of this Analysis
- Implications for Reform Proposals
- Conclusions
- The Use of Internally Inconsistent Multicriteria Choice Pro- cesses by Courts
If axiom V is violated, the process cannot form preferences among applicants based on Many of the reform proposals, while seemingly attractive, will be ineffective unless they are combined with measures that free the FCC from one of the axioms. Third, the Commission should prepare "a schedule of priority categories for ranking applicants based on the points they obtain." Id.
Difficulties in Deciding Whether an MCCP is Used and Whether the Nine Axioms Apply-An Illustrative Example
- Procedural Due Process-Is an MCCP Used?
- Difficulties in Determining Whether Axioms I and II Apply A threshold issue that arises in applying the possibility theorem to
Moreover, even when the possibility theorem can be applied, violations of some axioms have different implications for courts than for administrative agencies. 217 In a procedural matter of due process, it is plausible to assume that alternative procedures are listed by judges under each of the three. Violation of axiom I prevents a demonstration that, by the possibility theorem, an MCCP violates at least one of the most interesting axioms.
- Axiom 3: C (v, ui) is defined 'Vv, 'eful E U
A version of the theorem and its proof that is accessible to the general reader appears in A. However, these three properties are assumed to be properties of the individual preferences considered in the general probability theorem. First, the choice process must be able to work for any particular ranking of alternatives according to the criteria.247 This condition is reflected in axiom lll.
Axiom 3 states that regardless of the set of numbers assigned to the alternatives by the function ut, which establishes rankings under various
This axiom is equivalent to axiom I in the text.266 Both axioms specify that the MCCP selects a single alternative from the set of alternatives under consideration. The first part of this axiom states that E, the set of potential alternatives, contains at least three members. The second part of axiom 2 follows from the definition of potential alternatives as those that will be chosen if there are no other alternatives under consideration.
Axiom 3 follows directly from axiom III in text. 2 69 Axiom III states that the choice process can consider any potential alternative regardless of
- Proof and Application of Arrow's General Possibility Theorem202 I. Definitions
Only the relative magnitude of preferences under any criterion, as opposed to some absolute score for the criterion, will affect the choice. This axiom states that there is no single criterion such that the outcomes on that criterion determine the choice between any two potential alternatives. The inference of the independence of irrelevant alternatives. i) Uniqueness: Uniqueness follows directly from the singular value of the choice function postulated in axiom).:.?So.
- Lemma 5: It must be the case that some criterion, cJ, is almost decisive for some pair, x, y
- Theorem: Axioms 1-9 cannot be simultaneously satisfied
- Axiom I: The MCCP chooses one alternative from a pool of alternatives
- Axiom V: Given any two alternatives A and B, A will be a more desirable alternative than B, or B will be a more desirable al-
- Axiom VI: No one criterion totally dominates the MCCP
- Axiom VIII: For every possible set of alternatives, if one mem- ber of the set ranks higher than a second member in every criterion
By the singular value of the choice function under axiom I and by axiom 5 it must therefore be that yPz.2 0°. However, this contradicts the assumption that 6 is of minimal size and contains more than one measure. This appendix lists the nine axioms used in the text of the article: 298.
