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Generally Valid Rules versus Case-by-Case Judgments
Although it might seem preferable to make case-by-case judgments that would closely track underlying principles, generally valid rules may be superior. As the abortion example demonstrates, it is not always feasible to make case-by-case assessments, and one can often achieve better results by employing generally valid rules.
By way of further illustration, it will be helpful to look more closely at the arguments in favor of both individualized judgments and generally valid rules.I will begin with an important advantage of individualized assessments. Case-by-case judgments can ensure that the full range of relevant considerations is taken into account for each decision. When a liver is available for transplantation, for example, physicians can look at the severity of the patient's liver failure, the proximity of the patient to death, the likelihood that transplant surgery would be successful, and the life expectancy of the patient with a transplant.
In contrast to individualized judgments, rules take into account some important differences but necessarily neglect other important differences. For example, assume that organ allocation policy is designed to maximize the length of time that recipients benefit from their transplant. Assume further that, to foster that policy, an allocation rule gives priority for kidney transplantation to the potential recipient with the best tisue match to the donor kidney. The rule would generally increase the number of years between the date of transplant and the date on which the kidney is rejected by the recipient. And the rule would take into account very important differences among patients in terms of their tissue matching. However, a rule based purely on tissue matching would ignore the fact that other considerations affect the length of time during which a transplanted kidney functions. Both the patient's underlying cause of kidney failure and the presence of other medical problems will influence the longterm success of transplantation. In other words, the allocation rule would ignore many relevant differences among patients that affect how long a transplant will last. In short, rules often undermine fairness by treating people alike even when they are different.
To put it another way, rules by their nature are both over inclusive and under inclusive. As Schauer writes, a speed limit of fifty-five miles per hour is overinclusive because it prevents people from driving at higher speeds even when it would be perfectly sate to do so (e.g., when driving on a flat and straight interstate highway, on a clear day, when there is no other traffic nearby). Similarly, a speed limit of fifty-five miles per hour is underinclusive because it permits people to drive that fast when rainy weather means that speeds above forty-five miles per hour are not safe. Rules thus can result in outcomes that are inconsistent with the moral justifications underlying the rules.
Although the greater complexity of case-by-case judgments can be advantageous, so can the greater simplicity of rule-based decisions. Case based decision making can encourage poor decision making, for example by overburdening decision makers with too many factors to weigh.Many scholars oppose "bedside" rationing of medical care, in which physicians make case-by-case allocation judgments, and one important concern is that a physician cannot possibly assimilate all of the data relevant to an individual rationing decision. The physician would need to know the magnitude of the potential benefit for the patient, the likelihood that benefit would be realized, the duration of benefit, the financial cost of thetreatment, and the benefit that would be realized it the treatment were denied and the saved resources used for another patient (or for a non health care service)." Thus, as John Rawls has noted, we might prefer general rules to guide many actions, on the ground that people will not correctly decide the optimal action in particular cases.
Case-by-case judgments are susceptible to error also because they leave room for decision makers to bring their self-interest, their prejudices, and their other unwelcome motivations to their work. The American Medical Association's Code of Medical Ethics, for example, prohibits certain gifts from drug companies to physicians, like airline tickets to conferences or cash payments to attend company-sponsored presentations, rather than rely on physicians to apply on a case-by-case basis an underlying principle, such as, "Do not accept gifts if acceptance might influence or appear to others to influence the objectivity of clinical judgment. " With such a principle as a guide, many physicians will not give sutfhicient weight to the effects on their judgment of gifts. Similarly, police officers who rely on their individualized judgment may end up pulling over cars driven by African-Americans more often than those driven by whites. To be sure, decision makers may not be aware of the influence of self-interest or other unfair bias. But that does not change the fact that rules may be needed to prevent undesirable biases from infecting decision making. Rules, then, effect an allocation of power, by which decision-making authority is withdrawn or withheld from some people, out of concern that they will not use their authority wisely.
The simplicity of rule-based decision making offers several other advantages. By streamlining the decision-making process, rules save time. They free decision makers from having to undertake a thorough and nuanced investigation and calculation every time a decision comes up. If each organ is given to the patient who has been on the waiting list for the longest time, it is a Simple matter to identify the recipient of each organ. Similarly, as Schauer observes, speed limits can tell us exactly how fast we are able to drive and spare us the need to figure out on our own the maximum safe speed. This is the argument from efficiency.
Related to the argument irOm ermciency is the argument from predicability, or reliance. People can plan their lives much more expansively once they know that they Can rely on the existence and enforcement of rules. Automobile manufacturers would have great difficulty operating their assembly lines it they could not sign contracts for the delivery of parts on future dates, Contracts that they know will be enforced by the rules of contract law. Likewise, people waiting for organs would spend much of their maneuvering for priority in the allocation process if they could not rely on the authority of organ allocation rules to determine who among potential recipients will be chosen for transplantation. When decisions are made on a case-by-case basis, people must accept a good deal of undesirable uncertainty, and rules can address that concern.
In some cases, rules are employed because insufficient information makes more refined judgments impossible. Many medical guidelines reflect this reason for rules. For example, the National Cancer Institute recommends that women receive regular mammograms to detect breast cancer once they reach age forty. Yet some women in their forties, fifties, or older have a very small risk of developing breast cancer, while other women at those ages have a substantial risk. In the future, advances in medical knowledge will probably allow physicians to identify which women age forty or over really need to be screened for breast cancer and which do not need to be screened. For the time being, however, the best cancer experts can do is recommend mammography for all women starting at age forty (or fifty).
In the end, it seems fairly clear that both case-by-case judgments and rule-based decision making have important roles, and many life-and-death decisions are made through a combination of the two methods. For example, the liver allocation guidelines of the United Network for Organ Sharing (UNOS) assign priorities to patients waiting tor a liver transplant, and an available organ is generally given to the first person on the waiting list. Transplant surgeons do not undertake a comprehensive analysis to decide the most appropriate recipient each time an organ becomes available. However, transplant surgeons are given discretion to decide not to transplant a liver into the first person on the waiting list if they do not believe it is appropriate to do so, based on their medical judgment. If the first person's surgeon declines the liver, it goes to the next person on the waiting list (unless that person's surgeon also declines the liver).
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