Cost Benefit Reasoning and death risks: thoughts for when the courts are called to solve the pandemic dilemma
QIL+4 ABOGADOS, Guatemala City
‘Ni los diluvios ni las pestes, ni las hambrunas ni los cataclismos, ni siquiera las guerras eternas a través de los siglos y los siglos han conseguido reducir la ventaja tenaz de la vida sobre la muerte’ – Gabriel García Marquéz
These words from the Colombian Nobel Laureate convey an audacious truth. There is not a shred of doubt that humanity will overcome our current reality, but what is yet to be answered is when and, in particular, at what cost. These challenging times are not only testing the fortitude of our health systems and the resilience of our economies, but are also putting into question the law as a system of solving disputes when our most treasured and protected constitutional value of human life is in peril.
There is a tension between preserving our health and keeping our economies alive. The notion that choosing between the economy and health poses a ‘false dilemma’ is, in itself, false. The dilemma is real.
Much as public authorities all over the globe will try to balance these concerns, they will eventually and inevitably be called upon to prefer one over the other, tipping the balance even slightly. Even the Swedish approach, well known as the anti-lockdown paradigm, could show that although the benefits of lockdown have been overblown, the costs may have been exaggerated too, as data seems to suggest that Sweden’s levels of economic hardship are comparable to neighbouring nations, while having far higher deaths per capita attributed to Covid-19.
However, in some developing nations it is no understatement that lives are at risk either way. In these countries, deaths from hunger or from exposure to abuse (that is even more dangerous than the disease) have proven to be consequences of the Covid-19 pandemic for street children, when lockdowns and other measures were adopted through African nations. As many as 130 million people could be forced into starvation and deadly diseases such as AIDS, malaria and tuberculosis might gain back lost ground, since resources are focused on the pandemic or grow more scarce because of global supply chain disruptions, prohibitions on work, or simply low economic activity. Unfortunately, putting health and the economy on a balance could just be a proxy for deciding in which way lives will be lost. It seems this has turned into a ‘catch-22’ situation in which the strategy is to minimise your losses.
As politicians decide which death risks are worse, regardless of how they finally side, their decisions will be challenged before the courts. As of mid-May, at least five United States state-level stay-at-home orders have faced challenges, one of which was successful. Similar proceedings have been brought in Canada, South Africa, the United Kingdom and other countries. High profile businesspeople like Elon Musk have initiated acts that amount to ‘corporate civil disobedience’ by deliberately failing to comply with closure orders from local health authorities. Even when lockdowns and orders to close non-essential business are lifted, often they will be promptly reinstated, as has occurred in Germany, Iran, Lebanon, South Korea and Spain. Other more long-term measures are likely to be imposed and lifted in the months ahead and legal challenges to these measures will certainly ensue.
How could the courts answer this dilemma?
When faced with the toughest and most esoteric questions, judges have an advantage. Sophisticated high courts have consistently relied upon proportionality as a sound approach to judicial review when they are confronted with highly complex constitutional queries. Proportionality has been called the ‘ultimate rule of law’ in constitutional adjudication and recognised as a general principal of law by high national courts and international tribunals. Its basic premise is that ‘larger harms imposed by government should be justified by more weighty reasons’. Because this method focuses on whether means chosen to restrict rights are constitutionally justified, proportionality makes a perfect candidate in solving our economy versus health quandary.
At its essence, the structure of proportionality analysis is threefold in reviewing the means of a restriction and assessing its constitutional validity:
- adequacy, that is, whether the means chosen have a causal connection to the aimed purpose;
- necessity, that is, whether there are less restrictive means of achieving the same goal; and
- proportionality per se, that is, whether the benefits of the pursued goal outweigh the costs of interfering with a person’s rights.
Of course, any amount of exhaustive analyses with possible different outcomes could be performed, but for practical purposes we will argue that the adequacy and necessity criteria have both been met since lockdown and closures and social distancing enforcements have proven effective in reducing infections and therefore deaths (fulfilling the adequacy prong of proportionality analysis). Although these are not the only means of obtaining that end result, such measures are possibly the only ones that, at this moment, can dramatically reduce the spread of the virus to levels that healthcare systems still have the capacity to manage, particularly in developing nations.
The third prong, the proportionality per se criterion, is usually the most problematic. At its core, this prong is simply a cost-benefit analysis. All cost-benefit issues that rise to the level of Supreme Court question will inherently have tremendous complexities. However, this health-versus-economy question poses particularly severe difficulties because, as mentioned, in many cases its answer will invariably mean loss of life in a very palpable way and not just as a theoretical matter of political discourse.
What are the appropriate standards to determine the costs and benefits regarding the consequences of the prospectively challenged measures? Cass Sunstein, a self-declared advocate of cost-benefit analysis, has questioned in a recent article whether cost benefit could satisfactorily balance the value of more regular levels of economic activity against this public health threat. Sunstein argues that, from a statistical point of view, the US Government (in instances) values a human life at US$10m, which follows from evidence that a worker will demand around US$100 to take a mortal risk of one in 100,000. Neither he, nor I, suggest that human life can be price-tagged. Rather, this is merely a figure used in public policy to value low-probability risks.
However, exclusively for argument’s sake, and never as an appropriate rationalisation, when we use the US$10m figure and multiply it by the estimated 1.1 million American lives that could have been lost to the pandemic if no measures were adopted at all, the monetary estimate of human life loss amounts to US$11tn. On the other hand, one of various rough estimates calculated that the economic impact in the US GDP, which is equivalent to only two months of mitigation measures, could be US$2.14tn. Considering this an admittedly conservative estimate, and that some level of measures will likely be in place for at least the rest of 2020, both human and economic-estimated costs could turn out to be surprisingly similar.
I am fully aware no court would assign a dollar value to human life in a decision or imply that running some numbers could be the proper basis for deciding challenges to measures that have the potential to save many lives but that are burdensome to the economy.
From a policy standpoint, these considerations could soundly drive a court to tilt towards one side or another. However, it seems that this dilemma is so complex that even proportionality, although illustrative and helpful, might not always point to an easy answer.
 ‘Neither floods nor plagues, famines nor cataclysms, nor even the eternal wars of century upon century, have been able to subdue the persistent advantage of life over death.’ This is a quote from Gabriel García Marquez’s 1982 Nobel Prize for Literature acceptance speech entitled ‘The solitude of Latin America’.
 Sam Bowman and Pedro Serodio, ‘Live free and die: Sweden’s coronavirus experience’; The Critic, 26 May 2020.
 Jo Griffin, ‘“Will we die of hunger?”: how Covid-19 lockdowns imperil street children’, The Guardian, 15 April 2020.
 Jennifer Hansler and Nicole Gaouette, ‘Coronavirus pandemic could contribute to surge of other deadly diseases, experts warn’, CNN, 8 May 2020.
 Proportionality analysis or a standard of review that closely resembles it has been employed by the US Supreme Court, the Colombian Constitutional Court, the Canadian Supreme Court, the German Constitutional Court, the Guatemalan Constitutional Court, the Inter-American Court of Human Rights and the European Court of Human Rights, among many others.
 See Vicki Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) The Yale Journal, 124(3094), p. 3096, citing David Beatty in The Ultimate Rule of Law.
 Ibid, p. 3098.
 Cass Sunstein, ‘Coronavirus Is Giving Cost-Benefit Analysts Fits’, www.Bloomberg.com, 12 May 2020. It is worth disclosing that Sunstein suggests in this article that cost-benefit analysis doesn’t seem an appropriate tool in the coronavirus context.
 Christos Makridis and Jonathan Hartley, The Cost of COVID-19: A rough estimate of the 2020 US GDP Impact, Mercatus Center, George Mason University, 6 April 2020.