I hope we can all agree on the following basic, general
assessment of the merits and limitations of cost-benefit analysis (CBA). I’m not that well informed about CBA issues,
but this all makes sense to me.
Limitations of CBA
1. CBA is not scientifically objective. Its conclusions are not “knowledge,” though
it can provide us with knowledge, such as by revealing certain trade-offs or
valuations that were formerly implicit in a regulatory scheme. CBA depends on value judgments, because values
determine what counts as a cost or a benefit, as well as how costs and benefits
should be quantified. So CBA is not “self-justifying,”
though I think its justifications are extremely powerful.
2. CBA should not necessarily be used to determine how a law
or regulation should be enforced. I’m not sure how exactly we should go
about deciding when CBA is acceptable or required, but certain laws and
regulations are clearly not based on consequentialist reasoning and therefore
should not be enforced at the direction of a consequentialist tool. The
law is not a thoroughly consequentialist enterprise. For example, the Americans With Disabilities
Act contains certain “reasonable accommodations” requirements. It may be
the case (I’m not sure about this) that the reasonableness of requiring an
accommodation is clearly not meant to be determined based on CBA, but rather
should be based on a common-sense, reasonable-person-type analysis, even if
this results in the provision of inefficient accommodations that are theoretically
suboptimal. (For the avoidance of doubt, this is not to suggest that the
ADA is a bad law: it may be the case that it was the only politically viable
option and is preferable to having done nothing or to having waited for more
favorable political circumstances. I
wouldn’t know.)
In addition, there are probably situations in which CBA is not worth the candle, in that the cost of engaging in CBA is higher than the marginal expected value it would provide compared to a readily available alternative, such as a common-sense, bright-line rule.
In addition, there are probably situations in which CBA is not worth the candle, in that the cost of engaging in CBA is higher than the marginal expected value it would provide compared to a readily available alternative, such as a common-sense, bright-line rule.
3. CBA isn’t easy. It
is difficult to quantify costs and benefits in a way that is both consistent
and in accordance with our values. For
example, when should people’s willingness to pay to avoid a cost be used as a
basis for quantifying that cost? If some
sort of average willingness-to-pay is used, how should it be calculated? (Which people should count towards the
average, etc.?) When should
cost-of-mitigation be used instead? Each
of these measures is an imperfect proxy, and each is imperfect in different
ways.
4. Relatedly, CBA is not the be-all, end-all of regulatory
decisions. It only tells us what the
overall costs and benefits of a proposed policy are – though the quantification
of costs and benefits may be, and perhaps should be, influenced by distributive
and positional concerns. It doesn’t tell
us how exactly to implement the policy. And perhaps the potential means of
implementation should in some cases influence how the costs and benefits are
calculated – for example, if the policy decision in question is where to place
a garbage-processing facility, perhaps separate CBA calculations should be done
with respect to the differently situated residents of the particular neighborhoods
under consideration.
5. CBA may be more vulnerable to political abuse than “command-and-control”
alternatives. I am highly skeptical of
this view, but the argument is that courts have much more discretion to strike
down CBA-based regulations than regulations that are specified in the governing
statute itself, and courts are highly politicized; therefore, CBA opens the
door to effective regulation by corrupt quasi-dictators. I am skeptical of this, because (i) courts’
corruption is decently mitigated by various factors, including the need to
publicly justify most decisions, whereas legislative corruption is out of
control, tends to happen behind closed doors, and often comes into play when regulated companies and industries lobby
for better treatment, and (ii) judicial review of CBA-based regulations is a
fairly formalistic exercise that is not designed to facilitate a court’s
substitution of its own CBA judgments for those of the regulator, but rather is
designed to ensure that the regulator properly engaged in the process of CBA, so it isn’t that easy
for courts to deviously reach politically motivated conclusions (cf. Scalia
doesn’t always vote for the result he wants, because his political capital is
limited, and I believe he is known for deviating from his politics more so when
it comes to technocratic cases, where its harder to handwave and the political
stakes are not particularly high, at least compared to hot-button cases such as
those involving gay rights and universal health care); moreover, the very
structure of judicial review of administrative decisions limits courts’ ability
to usurp regulators’ authority, because courts can’t affirmatively make
regulations, but rather can only strike them down and direct the agency to try
again in accordance with certain procedural requirements. I’m not saying courts are great; I’m saying
Congress sucks more and has more regulatory power.
Also, keep in mind the level at which this political abuse
argument operates: it says that a given
regulation is more abusable by courts if it is the result of administrative CBA
as opposed to legislative specification; this ignores the fact that CBA-based
regulations tend to be much better
than command-and-control-based ones, so even if courts are more corrupt than
Congress, if they can’t always reach the results they want, we're likely better off
under a CBA regime.
Merits of CBA
Cass Sunstein has made a career of setting forth the merits
of CBA, and I’m not that familiar with his work, but the merits of CBA that are
readily apparent to me seem like more than enough to recommend its widespread
use. I’ll keep this section simple.
1. On balance, CBA is unambiguously superior to any other
means of consequentialist decision-making.
This point smacks of tautology – consequentialism is inherently concerned with comparing costs and benefits, broadly speaking – but it is important to keep in mind. Many, if not most, policy decisions are based
on consequentialist reasoning, albeit of a form that is not explicit,
systematic, and transparent about the inevitable trade-offs at stake. CBA minimizes these defects to great
avail. In short, by increasing decision-makers' awareness and understanding of
trade-offs, CBA enables decision-makers to optimize more effectively. Actual CBA is preferable to handwavy
quasi-CBA. As I put it in another forum:
I think the obvious defense of explicit, aboveboard weighing, however speculative, is that there are some valuations that people would reject, and the only way to ensure that we do not implicitly use such valuations is to be clear about our calculations. Also, I think there is something to be said for crude quantifications and modeling in some cases. For example, if everyone agrees that several items being compared are valuable essentially because they each possess the same four qualities, it might be a good idea to quantify the degree to which they do so and/or to rank the importance of these qualities in one’s value calculus, in order to avoid acting inconsistently with one’s actual preferences due to cognitive shortcomings.***Unrigorous explicit valuations may irritate you, but the alternative irritates me – it reminds me of this time in my environmental policy seminar when a student earnestly argued that certain types of environmental values (beauty, biodiversity, and the like) are incommensurable with the other values that one should factor into environmental policy decisions. The class quickly came around to what I regard as the obviously sensible view that any decision implicitly places a value on these “incommensurables,” and that it would be better to crudely quantify them, thereby crudely maximizing people’s preferences, rather than affording them some indeterminate, unrankable value.***I certainly think something should change if a regulation in one industry implicitly valued a human life at $1 million and a regulation in another industry did so at $10 million. Similarly, however we value human life, I think we should do so consistently in different regulatory contexts, so I think it’s worth examining where we can get the most bang for our buck.***Modeling isn’t inherently that costly (for an extreme example, imagine a model that simply ordinally ranked various locales in terms of biodiversity and beauty and weighted these factors 2 to 1), and there are clear benefits to using quantities in cost-benefit calculations. So I think it should be a rare case where we reject quantitative modeling entirely.
2. CBA is superior to non-consequentialist decision-making in the overwhelming majority of regulatory cases. This claim obviously implicates a sprawling,
age-old debate that I have no desire to get into here. But I will make the point that I suspect “the
will of the people” with respect to the vast majority of regulatory decisions
is something vaguely utilitarian. Regulation
tends to be about issues such as safety, which do not, at least not in a
straightforward way, implicate deontological concerns. People may say things like “each human life is
infinitely valuable,” or “every sperm is sacred,” but they don’t actually
believe these things, and it would obviously be suicidal, if not impossible, to
make policies that are in accordance with such statements. What people actually want is a certain amount
of safety that varies with the relevant costs and benefits (which is not to
suggest that people’s purported safety desires or revealed preferences should
always be dispositive of safety policy; for example, people can trade off cost
and safety to some extent in deciding which car to buy, but they can’t meaningfully
do so in deciding which flight to take, and this may very well be a good thing).
So I think CBA is clearly preferable to non-consequentialist regulatory decision-making, which ignores the utilitarian trade-offs that people care
about. I think examples of non-consequentialist regulatory laws, such as my ADA discussion above, are exceptional and unrepresentative of the state's regulatory apparatus.
Conclusion
CBA isn’t perfect. It
isn’t scientifically objective. It isn’t
free of vexing value-judgment calls. But
it’s the best tool for the job. And it
doesn’t inherently purport to be anything more! It doesn’t inherently purport to “generate
objective assessments.” It isn’t inherently
“basically a set of policy preferences dressed up as science.” It is only such things according to its most overzealous defenders.
I recognize that it’s dangerous and irritating to “fetishize”
flawed methodologies such as CBA. CBA
should not be placed on a pedestal with the scientific method (which I do think belongs on a pedestal even if most of our attempts at science fail to do it
justice). But it should indeed be regarded as
the best system we have for making regulatory decisions.
