Sunstein - Valuing life : humanizing the regulatory state

CASS R. SUNSTEIN

VALUING LIFE

Humanizing the Regulatory State

The University of Chicago Press

Chicago and London

CASS R. SUNSTEIN is the Robert Walmsley University Professor at Harvard Law School.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

2014 by The University of Chicago

All rights reserved. Published 2014.

Printed in the United States of America

23 22 21 20 19 18 17 16 15 14 1 2 3 4 5

ISBN-13: 978-0-226-78017-7 (cloth)

ISBN-13: 978-0-226-12942-6 (e-book)

DOI: 10.7208/chicago/9780226129426.001.0001

Library of Congress Cataloging-in-Publication Data

Sunstein, Cass R., author.

Valuing life : humanizing the regulatory state / Cass R. Sunstein.

pages cm

Includes bibliographical references and index.

ISBN 978-0-226-78017-7 (cloth : alk. paper) ISBN 978-0-226-12942-6 (e-book)

1. Administrative procedureSocial aspectsUnited States. 2. Administrative agenciesSocial aspectsUnited States. 3. United States. Office of Management and Budget. Office of Information and Regulatory Affairs. I. Title.

JK468.P64S958 2014

306.20973dc23

2013035153

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

For Amartya Sen

The world of costs and benefits (which includes taking note of the badness of nasty actions and of violations of freedom and rights) is quite a different decisional universe from the sledgehammer reasoning of consequence-independent duties and obligations.

AMARTYA SEN

The peculiar character of the problem of a rational economic order is determined precisely by the fact that the knowledge of the circumstances of which we must make use never exists in concentrated or integrated form but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess.... Or, to put it briefly, it is a problem of the utilization of knowledge which is not given to anyone in its totality.

FRIEDRICH HAYEK

CONTENTS

INTRODUCTION

Franklins Algebra

Governments should focus on the human consequences of their actions. Whether the decision involves environmental protection, occupational safety, smoking, foreign aid, immigration, gun control, obesity, education, immigration, or military intervention into another nation, they should ask, What would be the effects of acting or of not acting? If lives would be saved, how many? If people would be burdened, by how much, and with what effects? And who, exactly, is being helped, and who is being hurt?

To answer these questions, governments should have a wide rather than narrow viewscreen. They should seek a method to allow them to make sensible comparisons and to facilitate choices among values that are difficult or impossible to quantify, or that seem incommensurable. And in doing this, they should draw not merely on the knowledge of public officials, but on that of citizens as well.

In 1772, Benjamin Franklin wrote an illuminating letter to an acquaintance who was faced with a hard decision:

When these difficult Cases occur, they are difficult chiefly because while we have them under Consideration all the Reasons pro and con are not present to the Mind at the same time; but sometimes one Set present themselves, and at other times another, the first being out of sight. Hence the various Purposes of Inclinations that alternately prevail, and the Uncertainty that perplexes us. To get over this, my Way is, to divide half a Sheet of Paper by a Line into two Columns, writing over the one pro, and over the other Con. Then during three or four Days Consideration I put down under the different Heads short Hints of the different Motives that at different Times occur to me for or against the Measure.

When I have thus got them all together in one View, I endeavour to estimate their respective Weights; and where I find two, one on each side, that seem equal, I strike them both out: If I find a Reason pro equal to some two Reasons con, I strike out the three. If I judge some two Reasons con equal to some three Reasons pro, I strike out the five; and thus proceeding I find at length where the Balance lies; and if after a Day or two of farther Consideration nothing new that is of Importance occurs on either side, I come to a Determination accordingly. And tho the Weight of Reasons cannot be taken with the Precision of Algebraic Quantities, yet when each is thus considered separately and comparatively, and the whole lies before me, I think I can judge better, and am less likely to make a rash Step; and in fact I have found great Advantage from this kind of Equation, in what may be called Moral or Prudential Algebra.

With his moral or prudential algebra, Franklin tried to capture a wide range of variables and to ensure that none of them were neglected or ignored. In this respect, Franklin was an early practitioner of cost-benefit analysisan approach that attempts to catalog the benefits and costs of various courses of action, to compare them with one another, and to see how to proceed so that the benefits justify the costs. Of course Franklin did not ignore qualitative differences. He did not think that it was possible to make choices with the precision of algebraic quantities. Nonetheless, he emphasized the necessity of seeking to identify all relevant considerations, and of seeing if competing variables might be offsetting and commensurable.

In government, as in personal life, difficult cases frequently arise. Should the government require cars and trucks to have greater fuel economy? How much greater? Should new regulations be issued to protect food safety? What should they look like? Should the government require refrigerators and clothes washers to be more energy efficient? How much more? Public officials cannot answer such questions without trying to ensure that all the reasons pro and con are brought present to the mind at the same time, and without trying to estimate their respective weights. If officials do that, they will be far more likely to judge better and less likely to take a rash step. Some kind of political algebra would help. To be sure, the effort might impose serious information-gathering demands on officials, and they need to find ways to respond to or minimize that problem.

From 2009 to 2012, I was privileged to serve in the Obama Administration as Administrator of the White House Office of Information and Regulatory Affairs (OIRA), sometimes described as the nations regulatory czar. The term regulation is a broad one, and it is not self-defining. As I use it here, it refers principally to legal controls (authorized by legislatures and implemented by executive officials) that limit or authorize public or private conduct in order to promote some social goal. That goal might be worker safety, cleaner air, increased homeland security, reduction of food-borne illness, nondiscrimination on the basis of disability or sexual orientation, greater privacy, better control of national borders, or a reduced risk of a financial crisis. Regulation includes some of the most important actions that a government can takeand those actions affect peoples lives every day of every year.

Fortunately, the idea of a regulatory czar is a wild overstatement. The United States has no czars. But the term does provide a clue to the extraordinary range of the OIRA Administrators responsibilities. The Administrator helps to oversee regulation in a dazzling variety of areas, including national security, immigration, energy, environmental protection, occupational safety, food safety, education, and much more. In 1981, President Ronald Reagan, emphasizing the need for some kind of political algebra, made cost-benefit analysis central to OIRAs mission, and both Republican and Democratic Administrations have affirmed the central approach.