By Mike Dorf
My latest FindLaw column asks whether the minuscule cancer risk from backscatter X-ray full-body scans is worth worrying about. (Answer: Maybe.) In the course of the column I cite the following calculation from Super Freakonomics: Taking off and replacing shoes at the airport costs the average traveler about a minute, which aggregated over hundreds of millions of passengers wastes the equivalent of 14 lives per year. In the column I note that of course 14 lives spread out this way over hundreds of millions of people in one-minute increments is much less of a harm than actually killing 14 people.
Here I just want to note an oddity. Under the criminal law, killing a person who had a minute to live--someone in his death throes, say--is murder. Thus, if someone were to somehow kill 500 million people one minute before each of them was going to die, that would be 500 million cases of murder. So how come it feels trivial--and the Super Freakonomics calculation seems misplaced--to equate the time wasted with shoes with actual deprivations of life? The difference is not that a minute taken out of the middle of life is different from a minute taken out of the end of life. Rather, the crucial difference is between wasting people's time--even on a massive scale--and depriving people of life. This rather obvious difference suggests that there is something profoundly mistaken about a utilitarian calculus that treats moments of life simply as potentially productive units, such that wasting them is equivalent to extinguishing them.