Human Rights Blog Essay

Examining the Interface Between Rights and Queues

Queues are a mundane and ubiquitous feature of our modern lives. We are all waiting in line for something, at least some of the time, whether in physical places or in virtual environments. We all feel indignant, at least most of the time, when “queue jumpers” cut in. The queue provides an ordered sequence of access to a pool of goods, services, or opportunities. But as social psychologists or operations researchers can tell us, the simple ‘first-come-first-served’ allocation belies complex social systems of waiting and priority, and of access and delay. And when our modern legal rights are shaped and delivered through the mechanism of the queue, it is time for legal theory to line up.

Rights increasingly require the affirmative mobilization of resources that are difficult to provide simultaneously, such as access to courts, ballot boxes, or emergency room doctors. Rights also require resources that are otherwise costly or scarce, such as access to schools, special-education resources, veterans’ medical care, public housing, childcare subsidies, legal aid lawyers, prisoner services, and disability support or services. Even access to other services of a public character, such as Congress or Supreme Court hearings, or (arguably) the internet, are served by lines.

While undertheorized, queues appear in our oldest versions of priority setting for rights. A canonical case of property settles competing claims to a fox on the basis of first occupancy — “first in time, first in right.” In fact, first-in-first-out (FIFO) queues settle many priority conflicts in law, albeit with exceptions, as Ronen Perry and Tal Zarsky’s extensive study reveals. And as technology, bureaucracy and commerce introduce ever more complexity to queues, lawyers would do well to study the phenomenon more carefully.

Let me suggest four functions of queues that demand closer attention in law. First, queues formalize an interest. They allow the state to defer, plan, and budget for its activity, and for the putative rightholder to do these things as well. But as I have shown elsewhere, this is not all that formalization does. Queues tend to channel the politics of rights into a particular, and very narrow, register. Legitimate grievances about access to housing, emergency care, or courts, can become focused on the administration of the queue (how long is the wait? when is it my turn?). But this focus distracts from broader questions of political economy (how much should be spent on society’s interest in housing, health care or the justice system? what other mechanisms can incentivize or provide it?). And it can turn otherwise similarly situated rights claimants into competitors, undermining the potential for solidarity in interactions with the state.

Consider, in this respect, housing rights. In my examination of South Africa’s affirmative right to housing, I observed a politics of “queue talk,” in which those waiting for housing, and government officials, focused attention on the wait list rather than on housing rights. This narrowed the politics of housing and overlooked the broader mechanisms for supporting (or restricting) access, such as zoning, financialization, mortgage subsidies, and developer’s subsidies, as well as rental support, temporary housing, and other interventions. Measuring similar dynamics in the legendary housing assistance queues in the United States — where only one in four on the wait list end up with assisted housing — would be worthwhile. So, too, can one examine these effects in other systems of public provisioning that force eligible applicants to wait, such as health care or immigration.

Secondly, queues establish priority. By establishing a wait list, queues set out each person’s rank in the line. People are quick to defend their own priority against newcomers, or those perceived as behind them. Indeed, social science research tends to suggest that people are more deeply concerned about those who cut in line than about how long they themselves have to wait.

And yet such conceptions may undermine the fuller conceptions of equality and fairness that rights theories offer us. First-come-first-served is, after all, a rough discipline of distribution. More tailored algorithms — which can target need, proximity, urgency or merit — may do better at operationalizing rights. And yet because such algorithms are necessarily recursive (one person’s change in circumstances may alter the order in which they, and others, are served), they undercut rank in provisioning, violating the perceived priority of those who wait.

It is interesting to question why the priority interest takes such a central role in the politics of queues. Perhaps it is the power of metaphor — the shortcuts to human thought and reasoning that connect what we experience with what we think. If this is true, then, one’s place in the queue might be another one of Locke’s “perfect cheats,” moving our passions and misleading our judgment. So much might explain the hold of the priority interest in affirmative action cases. The line to access a place at the University of Texas (and now Harvard) or a promotion in the New Haven Fire Department, is treated as the natural order of things. Those who are provided access to education or employment, in due compliance with equality, are supposedly, even if purely metaphorically, “cutting in.” Evidence collected by sociologist Arlie Hochschild suggests that even those waiting for their claim on the “American Dream” think about first-come-first-served priority in this way.

Thirdly, queues create reliance. Time is literally “spent” by those who rely on the queue, since such lines reward our willingness and ability to wait (rather than, say, our willingness and ability to pay). Time stands in for money, or at least alters that part of the exchange. Indeed, while dynamic pricing, scheduling algorithms, and paid line-standing can limit time spent waiting, such markets are often appropriately kept out of queues for the goods, services, and opportunities related to rights. And even when we supplement the first-come-first-served principle with more tailored algorithms more suitable to rights, queues configure the terms of access and delay.

In delaying access to putative rightsholders in this way, queues thus imply opportunity costs and other waiting costs. On one view, time appears an easy cost for law to measure — all one needs are a clock and a calendar. Ninety days is a rule of thumb for the wait for social security approvals or decisions, for example. In many cases, of course, queues take longer.

Yet, if queues supposedly reward our willingness to wait, they do so crudely. Time has a different value for differently situated applicants — the young or the sick, for example, may experience the burdens of waiting more severely. For some, the effects of rights-deprivation may be irreversible. And our conventional methods for valuing time — foregone opportunities to be productive — may be inadequate to capture such concerns.

Consider a well-documented example of home and community-based services for disability. By the joint operation of Medicaid waivers and the Americans with Disabilities Act, states are required to provide such services for people living with disabilities when doctors recommend such provision outside of institutions, but states may utilize a wait list if resources are presently unavailable. These queues, examined by the Supreme Court in the 1999 Olmstead decision, must move at a reasonable pace. What follows, however, are startling waiting times (Oklahoma appears to average 8 years for each applicant, and Texas includes over 200,000 waiting.) These lists, and many others, create a striking burden for a population that has already proven its vulnerability.

Fourthly, queues require rights realization. In this respect, wait lists or lines are linked to the actual achievement of the right, and thus compel state expenditure. Yet this affirmative obligation to serve — and complete — the queue is, if we take it seriously, difficult for courts to enforce. Courts have been traditionally reluctant to enforce so-called “positive rights.”

Notwithstanding this reluctance, there are examples of how courts link queues with rights realization. South Africa’s housing rights jurisprudence demonstrates how a court may scrutinize a city’s budget and wait list and call out a failure to attend to those waiting. In one case, the Constitutional Court was unpersuaded that limited resources justified a failure to serve those with emergency needs, suggesting a proactive duty to budget for such cases. Such reasoning has also been pursued in some U.S. state courts, following Olmstead, where the failure to budget for disability integration has been held as insufficient to justify long wait lists.

If, on the other hand, we want courts to stay out of enforcing “positive rights”, it is important to acknowledge that the queue lacks a collective mechanism of doing so, given the dynamics laid out above. One solution, employed in Canada, is to compel everyone to participate in the government healthcare queues, thus increasing their accountability, in the full democratic sense. Further analysis is needed to explore how this model withstands the countervailing formalization, priority, and reliance interests asserted by those who wait.

In short, queues have been undertheorized, and often over-caricatured, in law. When queues are used to operationalize rights, we must understand the complex interests that they in turn create.