Who shall receive legal services when not all can?

Triage and Justice for All, Pt. 2

As Erika discussed in a previous blog post, triage is integral to the delivery of legal services, and yet there is no research that demonstrates how to triage well in law. Triage is always important (because resources are always finite). But it is absolutely critical when resources are scare and stakes are high. Decades ago, James F. Childress, in the provocatively titled “Who shall live when not all can live,” laid out the moral and logical arguments for different conceptualizations of triage.

989px-wounded_triage_france_wwiChildress was concerned with Scarce Life-Saving Medical Resources (SMLR), for example with the administration of penicillin during war time. How were doctors to decide who should receive this miraculous drug when it was in such limited supply? Give the drug to those who would benefit from it but not return to the battlefield, or give it to those who would return to the battlefield to fight (and perhaps die) there? Childress wasn’t impressed with a critical application of social values in determining triage- considering the biases and multitude of regional, religious, and other cultural differences within an area.

What Childress proposes we take more seriously is randomization. He acknowledges criticisms of such triage, “Many reject randomness as a surrender to non-rationality when responsible and rational judgments can and must be made,” as well as the position of Edmond Cahn (author of “The Moral Decision: Right and Wrong in the Light of American Law”) who doubted that randomness or chance are appropriate in drastic situations. Cahn thought, “The crisis involves stakes too high for gambling and responsibilities too deep for destiny,” capturing the natural reactions of many towards the concepts of randomness or chance in triage situations. All of us think to some extent that, even with limited information, we must know what’s best. And from that (over)confidence comes the need to apply personal, human judgment to difficult triage decisions, supposedly to respect the dignity of those in need of help. Childress argues that randomness has a place in the debate about triage, when considering a broader context of this morality.

Serious study would, I think, point toward its implementation in certain conflict situations, primarily because it preserves a significant degree of personal dignity by providing equality of opportunity. Thus it [randomness or chance] cannot be dismissed as a ‘non-rational’ and ‘non-human’ procedure without an inquiry into the reasons, including human values, which might justify it.” Childress notes that in the absence of an equalizing tool like randomization or chance, troubling social values and functions seep into a determination of worth for each individual- denying everyone’s equal right to be saved.

Childress quotes Paul Freund: “randomness as a moral principle deserves serious study.” Unsurprisingly, we think triage as a whole in the legal profession deserves serious study, and that randomized controlled trials (RCTs) are the best tools through which to study this. For example, in our Intimate Partner Violence Triage Study, we are hoping to learn through RCTs how legal services can most appropriately choose cases and add value to those cases.

But as Childress teaches us, there are strong moral arguments for randomization in triage, separate and apart from what we might learn from using it.

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