MATRIZ DE IDENTIFICACIÓN DE AFECCIONES AMBIENTALES

As a practical matter, the Utilitarians and strong distributional advocates such as Rawls would opt for similar policies under a great many circumstances, especially where distributional consequences are reasonably neutral. It is, for instance, difficult to maintain that the question of whether to observe the rule of Hadley v. Baxendale has any very powerful distributional implications. In any particular application, such a rule will of course have distributional ramifications for the parties involved, but the rule’s application over the generality of cases does not seem likely to generate any systematic redistributive trends. Indeed, rules that have apparently clear distributional consequences are frequently seen, upon careful economic analysis, to have more diffuse or unexpected results than first impressions suggested. (Consider, for example, the rule determining the rights of subrogors versus those of subrogees in the distribution of “excess” recoveries, a question discussed above.) Where the distributional implications are, for one reason or another, unimportant, a Rawlsian and an extreme Utilitarian stand revealed as very close methodological kinfolk, both depending crucially on an ex ante analysis of prospects.

Whatever its limitations, the criterion of ex ante fairness as a test of justice is an intellectually intriguing notion. The following question sections are designed to reflect how ex ante fairness may be applied in different contexts and, incidentally, how tricky the impression of fairness may be: in each of the scenarios presented, the application of a rigorous formal analysis raises hidden problems, demonstrating that the notion of justice and fairness is not as simple or intuitively clear as it may first seem.

2. FAIR DIVISION SCHEMES: DIVIDE AND CHOOSE

Mrs. Bufforpington is an extremely wealthy widow who knows that she is suffering from a terminal illness. She wishes to divide the large and extremely heterogeneous stock of assets in her estate between her two daughters, Doris and Cloris. The daughters are known to be extremely antipathetic to each other; past treatment at their mother’s hands, however equitable in both intent and practice, has produced frequent bouts of jealousy and animosity. Nonetheless, Mrs. Bufforpington loves both daughters dearly and wishes to distribute the estate in a manner that will minimize eventual recriminations about their respective legacies.

Dividing the cash and other liquid assets of the estate presents no problem. As both sisters are aware, however, the division of certain real property, heirlooms, family jewelry, artwork, etc. involves subjective valuations which are highly variant from person to person. The sisters, not unexpectedly, each have considerable knowledge about each other’s tastes and preferences for various items that are included in the estate. Although one possible solution would be to liquidate all assets and divide the proceeds equally, Mrs. Bufforpington regards the diffusion of many family assets to “outsiders” to be highly objectionable and wants the division of the estate to be physical or in kind ─ i.e., each daughter is to receive a fair share of the land and other personal property.

The troubled woman has previously sought the advice of a “fair division” expert who suggests that Doris be empowered to divide the physical assets into two shares from which her sister Cloris will then be entitled to choose whichever one she wants. Doris, of course, would receive the share not chosen by Cloris.

You are the trusted old family attorney for the Bufforpington family. The mother contacts you and asks for a will to be drafted that incorporates the expert’s proposed fair division scheme. Assume that there are no strictly legal objections to the process proposed. However, she also solicits your opinion as to whether the scheme will achieve the desired result, that is, a division that both sisters will acknowledge as fair.

QUESTIONS

1. In a dazzling exhibition of the cunning of the legally trained mind, you impress the be jabbers out of the old woman by coming up with an explanation of how the process is arguably quite unfair to one of the sisters. Who is placed at a disadvantage, and why?

2. Assume that Mrs. B. nevertheless has her will written according to the original divide-and-choose scheme. When the mother dies, daughter Doris is notified by the executor that she is to be the Divider. The process of dividing is carried out and the moment comes when Cloris is entitled to choose between the divisions of the estate that Doris has made. Just as Cloris is about to choose, the executor rushes in and informs the sisters that a terrible error has been made: due to a misreading of the will, the roles of the sisters have been reversed. Why does Cloris now rejoice, expecting to improve her position as she takes over the role of Divider? (Note that this scenario lays the basis for a generalization and “proof” of the answer to # 1above.)

3. Parents commonly use a similar scheme to divide a piece of cake between two children. How does this situation differ from the Doris-Cloris scenario?

4. Dividing cake among the children in a larger family requires a more complex process. Suppose there is a rectangular layer cake to be divided among more than two children. A parent proposes to pass a knife over the cake from left to right. At any moment, any child can say “I’ll take it.” A cut is made at the current position of the knife and the child who spoke out gets the piece to the left of the knife. The last child, of course, gets the residual piece. Do you think that this is a fair scheme?

5. Some asset or collection of assets is required to be divided up among n people. It is proposed to create exactly n shares with random ─ and possibly quite disparate ─ composition. Slips of paper with n numbers corresponding to each of the shares are placed in an urn and each beneficiary assigned a share by random selection of a slip. Is this a “fair” scheme? In what sense might it be argued that it is not fair?

3. EQUITABLE DISTRIBUTION OF VOTING POWER a. Pivotal-Voter Measure of Political Power

In a majority-rule voting system, it might plausibly be contended that a voter exercises “power” only when the casting of his vote turns a non- inning coalition into a winning one. In other words, a voter has power only when the casting of the vote tips the result in a direction it would not otherwise have taken. In

several articles, John Banzhaf has proposed that this concept of voting power be used as a bench- mark in assessing the equity and constitutionality of various representation schemes, such as multi-member districts and weighted voting. [See J. Banzhaf, “Weighted Voting Doesn’t Work: A Mathematical Analysis,” 19 Rutgers L.Rev. 317 (1965); “Multi-member Electoral Districts─Do They Violate the ‘One Man, One Vote’ Principle,” 75 Yale L.J. 1309 (1966).] Banahaf suggests that, since the ways in which coalitions of voters will form cannot be predicted a priori, all possible coalitions should be regarded as equally likely. Then, a voter’s power will be measured by the number of winning coalitions in which he is “necessary” divided by the number of all possible coalitions. Basically, this “power index” can be interpreted as the probability that a vote will “matter” as far as the ultimate result is concerned. In turn, a single vote will make a difference to the result when the other voters have divided themselves into two equal-sized coalitions such that the casting of the last vote will break a tie and determine which alternative will win.

QUESTIONS

1. In a system of representative delegations, the power of different delegations ought presumably to be proportional to the populations of their respective constituencies. I.e., the power of a delegation from a district of 300,000 ought to be three times that of one having a population of 100,000 In practice, political “weights” may be attached to districts of different sizes either by actual weighted votes cast by a single member or by multimember delegations. Consider a four-district legislature with district populations of 300,000, 500,000, 700,000, and 900,000. Each district has a representative for every 100,000 constituents. For simplicity, assume that the representatives of each particular district always bloc vote. Is the power of each delegation proportional to its population? [Hint: There are 16 different possible ways the delegations can vote. In how many of these does a particular delegation “make the difference” in forming a winning coalition?] See Morris v. Board of Supervisors of Herkimer County, 273 N.Y.S.2d 929 (1966) in which the Banzhaf analysis is cited as a basis for striking down a weighted representation scheme.

2. Assume that the relative power of each delegation is properly proportional to its constituency size. The next question is the amount of power that any individual voter has over deciding the nature of the delegation. Again, for simplicity assume that each delegation is elected as a “slate.” There are two competing slates running in each district. In a district that has n+1 voters, it can be argued that a voter has power in those cases in which all other voters divide up into two coalitions of identical n/2 size, thus permitting a single voter to break the tie. Banzhaf shows that the proportion of such “tie” combinations is approximately equal to one divided by the square root of two times Pi times the number of voters, i.e., 1/(2Πn)1/2. [Banzhaf, “Multimember Districts * * *”, n. 28] Thus, the probability of being a tie-breaker is not inversely proportional to n, but rather to the square root of n; i.e., an individual’s power over his delegation declines less than proportionally as the size of the constituency increases. Does the Exhibit 2.14 accurately summarize these conclusions?