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Abstract:
This paper analyzes cost-benefit analysis from legal, economic, and philosophical perspectives. The traditional defense of cost-benefit analysis is that it maximizes a social welfare function that aggregates unweighted and unrestricted preferences. We follow many economists and philosophers who conclude that this defense is not persuasive. Cost-benefit analysis unavoidably depends on controversial distributive judgments; and the view that the government should maximize the satisfaction of unrestricted preferences is not plausible. However, we disagree with critics who argue that cost-benefit analysis produces morally irrelevant evaluations of projects and should be abandoned. On the contrary, cost-benefit analysis, suitably constrained, is consistent with a broad array of appealing normative commitments, and it is superior to alterative methods of project evaluation. It is a reasonable means to the end of maximizing overall welfare when preferences are undistorted or can be reconstructed. And it both exploits the benefits of agency specialization and constrains agencies that might otherwise evaluate projects improperly.

Abstract:
This paper analyzes cost-benefit analysis from legal, economic, and philosophical perspectives. The traditional defense of cost-benefit analysis is that it maximizes a social welfare function that aggregates unweighted and unrestricted preferences. We follow many economists and philosophers who conclude that this defense is not persuasive. Cost-benefit analysis unavoidably depends on controversial distributive judgments; and the view that the government should maximize the satisfaction of unrestricted preferences is not plausible. However, we disagree with critics who argue that cost-benefit analysis produces morally irrelevant evaluations of projects and should be abandoned. On the contrary, cost-benefit analysis, suitably constrained, is consistent with a broad array of appealing normative commitments, and it is superior to alternative methods of project evaluation. It is a reasonable means to the end of maximizing overall welfare when preferences are undistorted or can be reconstructed. And it both exploits the benefits of agency specialization and constrains agencies that might otherwise evaluate projects improperly.

Abstract:
Cost-benefit analysis is routinely used by government agencies in order to evaluate projects, but it remains controversial among academics. The standard defense appeals to the Pareto standard or the Kaldor-Hicks standard, and assumes that agencies should respect people's actual preferences, as opposed to informed or otherwise restricted preferences. This paper argues that cost-benefit analysis is best understood as a welfarist decision procedure, and its most plausible defense is that use of cost-benefit analysis is more likely to maximize overall well-being than is use of alternative decision-procedures. The paper focuses on the problem of using cost-benefit analysis when preferences are "distorted." A person's preferences are distorted when their satisfaction does not enhance that person's well-being. Preferences typically thought to be distorted in this sense include disinterested preferences, uninformed preferences, adaptive preferences, and objectively bad preferences; further, preferences may be a poor guide to maximizing aggregate well-being when wealth is unequally distributed. We argue that government agencies currently recognize these problems but respond to them in an ad hoc way, and that a more systematic treatment of these problems is warranted. The paper describes conditions under which agencies should (or should not) correct for distorted preferences, for example, by constructing informed or non-adaptive preferences, discounting objectively bad preferences, and treating people differentially on the basis of wealth. Institutional and political constraints - the inability of agencies to make lump sum transfers, the need for transparency - are also considered.

Abstract:
Risk assessment is now a common feature of regulatory practice, but fear assessment is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as costs for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so on - are often the focus of popular fears. Even more puzzling is the virtual absence of economics scholarship on the pricing of fear and anxiety, by contrast with the vast literature in environmental economics on pricing other intangible benefits such as the existence of species, wilderness preservation, the enjoyment of hunters and fishermen, and good visibility, and the large literature in health economics on pricing health states.

This Article makes the case for fear assessment, and explains in detail how fear and anxiety should be quantified and monetized as part of a formal, regulatory cost-benefit analysis. I propose, concretely, that the methodology currently used to quantify and monetize light physical morbidities, such as headaches, coughs, sneezes, nausea, or shortness of breath, should be extended to fear. The change in total fear-days resulting from regulatory intervention to remove or mitigate some hazard - like the change in total headache-days, cough-days, etc. - should be predicted and then monetized at a standard dollar cost per fear-day determined using contingent-valuation interviews.

Part I of the Article rebuts various objections to fear assessment. Deliberation costs are a worry, but this is not unique to fear, and can be handled through threshold rules specifying when the expected benefits of fear assessment appear to outweigh the incremental deliberation costs of quantifying and monetizing fear. Other objections reduce to the deliberation-cost objection, or are misconceived: irrational as well as rational fears are real harms for those who experience them; fear can be quantified; worries about uncertainty and causality reduce to deliberation costs; the possibility of reducing fear through information rather than prescription means that agencies should look at a wider range of policy options, not that they should evaluate options without considering fear costs; the concern that the very practice of fear assessment will on balance, increase fear by creating stronger incentives for fear entrepreneurs seems overblown; and fear is a welfare setback, whether or not it flows from political views.

Part II argues for what I call the unbundled valuation of fear. A given hazard may cause a package of harms for each individual exposed to it: the fear of the hazard, an incremental risk of death, and perhaps other harms. Why not, then, price the harms as a package? In particular, why not predict the deaths caused by a given hazard and avoided by regulatory intervention, and multiply those deaths by a value of statistical life (VOSL) number designed to incorporate a fear premium? For reasons explored in Part II, the bundled valuation of fear and death, through fear premia attached to VOSLs or in other ways, is misguided. Rather, these two kinds of harms should be separately quantified and monetized. Parts III and IV consider how agencies should monetize fear states. How should the price of a fear-day be determined? Part III argues that contingent-valuation techniques are more appropriate, here, than revealed-preference techniques. Part IV discusses the design of contingent-valuation interviews for pricing fear. The instrumental as well as intrinsic costs of fear may need to be accounted for; the respondents to these interviews should, optimally, be calm rather than fearful; and interviews designed to secure a QALY valuation of fear can also be useful, but only if the QALY scale is understood as a welfare scale and calibrated in an inclusive way.

In arguing for fear assessment as a component of cost-benefit analysis, this Article contributes to the literature on cost-benefit analysis and also stakes out a novel position in scholarly debates about risk regulation. One standard view (call it the simple technocratic view) argues that popular fear should play no role in determining regulatory choice; instead, regulators should focus on minimizing or achieving technologically feasible or cost-justified reductions in death, illness and injury. A standard opposing view (call it the populist view) is that popular perceptions of the riskiness of hazards, in turn substantially influenced by how feared or dreaded the hazards are, should be determinative. The account presented in this Article is technocratic, not populist; risk regulators should seek to maximize social welfare, and cost-benefit analysis is a technocratic tool for doing just that. Yet technocratic risk regulation need not focus narrowly on mortality and morbidity. It should focus (prima facie) on all constituents of welfare, including fear and anxiety. Although popularly perceived risk should not determine risk regulation, since the fear and anxiety that drives popular risk perception is simply one welfare impact among the multitude of costs and benefits flowing from hazards, neither should risk regulation reduce to counting deaths or injuries - to a crude minimization of physical impacts or a simplistic balancing in which death- and injury-reduction are the sole regulatory benefits that are seen to counterbalance compliance costs.

risk, fear, health, safety, environment

Abstract:
"Individual risk" currently plays a major role in risk assessment and in the regulatory practices of the health and safety agencies that employ risk assessment, such as EPA, FDA, OSHA, NRC, CPSC, and others. Risk assessors use the term "population risk" to mean the number of deaths caused by some hazard. By contrast, "individual risk" is the incremental probability of death that the hazard imposes on some particular person. Regulatory decision procedures keyed to individual risk are widespread. This is true both for the regulation of toxic chemicals (the heartland of risk assessment), and for other health hazards, such as radiation and pathogens; and regulatory agencies are now beginning to employ individual risk criteria for evaluating safety threats, such as occupational injuries. Sometimes, agencies look to the risk imposed on the maximally exposed individual; in other contexts, the regulatory focus is on the average individual's risk, or perhaps the risk of a person incurring an above-average but nonmaximal exposure. Sometimes, agencies seek to regulate hazards so as to reduce the individual risk level (to the maximally exposed, high-end, or average individual) below 1 in 1 million. Sometimes, instead, a risk level of 1 in 100,000 or 1 in 10,000 or even 1 in 1000 is seen as de minimis. In short, the construct of individual risk plays a variety of decisional roles, but the construct itself is quite pervasive.

This Article launches a systematic critique of agency decisionmaking keyed to individual risk. Part I unpacks the construct, and shows how it invokes a frequentist rather than Bayesian conception of probability. Part II surveys agency practice, describing the wide range of regulatory contexts where individual risk levels are wholly or partly determinative of agency choice: these include most of the EPA's major programs for regulating toxins (air pollutants under the Clean Air Act, water pollutants under the Clean Water Act and Safe Drinking Water Act, toxic waste dumps under the Superfund statute, hazardous wastes under RCRA, and pesticides under FIFRA) as well as the FDA's regulation of food safety, OSHA regulation of workplace health and safety risks, NRC licensing of nuclear reactors, and the CPSC's regulation of risky consumer products.

In the remainder of the Article, I demonstrate that frequentist individual risk is a problematic basis for regulatory choice, across a range of moral views. Part III focuses on welfare consequentialism: the moral view underlying welfare economics and cost-benefit analysis. I argue that the sort of risk relevant to welfare consequentialism is Bayesian, not frequentist. Part IV explores the subtle, but crucial difference between frequentist and Bayesian risk. Part V moves beyond cost-benefit analysis and examines nonwelfarist moral views: specifically, safety-focused, deontological, contractualist, and democratic views. Here too, I suggest, regulatory reliance on frequentist individual risk should be seen as problematic. Part VI argues that current practices (as described at length in Part II) are doubly misguided: not only do they focus on frequentist rather than Bayesian risk, but they are also insensitive to population size.

In short, the Article provides a wide ranging, critical analysis of contemporary risk assessment and risk regulation. The perspective offered here is that of the sympathetic critic. Risk assessment itself - the enterprise of quantifying health and safety threats - represents a great leap forward for public rationality, and should not be abandoned. Rather, the current conception of risk assessment needs to be reworked. Risk needs to be seen in Bayesian rather than frequentist terms. And regulatory choice procedures must be driven by population risk or some other measure of the seriousness of health and safety hazards that is sensitive to the size of the exposed population - not the risk that some particular person (whatever her place in the exposure distribution) incurs.

Abstract:
The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, "The Concept of Law," by arguing that law derives from a social rule, the so-called rule of recognition. But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts.

But which group's practices ground each legal system? In particular, which group's practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the recognitional community (my term): the group whose rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law.

This Article grapples with the tension between the positivist's official- or judge-centered account of the recognitional community and the popular constitutionalism now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position deep popular constitutionalism.

Indeed, it turns out that Dworkin's account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists.

My solution to this disagreement - to the debate between deep popular constitutionalists and deep official or judicial supremacists - is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group's norms, yet socially inappropriate relative to another's. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism.

Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his-recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a shared cooperative activity (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that law functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory - in particular, for popular constitutionalism.

Constitutional Law, Jurisprudence

Abstract:
A growing body of research on happiness or subjective well-being shows, among other things, that people adapt to many injuries more rapidly than is commonly thought, fail to predict the degree of adaptation and hence overestimate the impact of those injuries on their well-being, and, similarly, enjoy small or moderate rather than significant changes in well-being in response to significant changes in income. Some researchers believe that these findings pose a challenge to cost-benefit analysis, and argue that project evaluation decision-procedures based on economic premises should be replaced with procedures that directly maximize subjective well-being. This view turns out to be wrong or, at best, premature. Cost-benefit analysis remains a viable decision-procedure. However, some of the findings in the happiness literature can be used to generate valuations for cost-benefit analysis where current approaches have proven inadequate.

happiness, subjective well-being, SWB, cost-benefit analysis, CBA, social welfare

Abstract:
"Welfarism" is the principle that social policy should be based solely on individual well-being with no reference to "fairness" or "rights." The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the "ex ante/ex post" problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a social preference for equality. If the policymaker is not a utilitarian, but rather has a "social welfare function" that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?

In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding social welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.

Social Welfare, Welfarism, Fairness, Utilitarianism, Consequentialism, Inequality, Equity, Uncertainty, Ex Post Social Welfare, Ex Ante Social Welfare, Cost Benefit Analysis, Pigou-Dalton Principle, Sure Thing Principle, Time Inconsistency, Compensation, Insurance

Abstract:
Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and the risk of premature death
are often too small to justify the large compliance costs that these laws create.

In this Article, I consider the harmfulness of death, and of
the risk of death, in a philosophically rigorous way. The analysis is complicated, since a variety of plausible theories of welfare have been proposed, and since risk too is a multifaceted concept. A given person P's "risk" of death might be risk in a Bayesian sense (some person's subjective probability that P will die), or risk in the frequentist
sense (the objective frequency with which persons like P die
prematurely as a result of the kind of threat to which P is exposed). These two conceptions of risk are very different, yet too often are not distinguished in legal or policy-analytic writing about risk. As for the harmfulness of death: this raises knotty philosophical problems, problems that have prompted some contemporary philosophers to deny that the dying person is worse off than she would have been had she continued to live.

I ultimately conclude that death is a first-person welfare
setback - common sense is vindicated here, I argue - as is risk in the Bayesian sense, but that risk in the frequentist sense is not. This conclusion has implications for a range of regulatory practices - specifically, for cost-benefit analysis, risk-risk analysis, the interpretation of statutes that create health or safety thresholds, environmental justice policy, and comparative risk analysis - and also for tort and criminal law. These implications are explored, at length, in the final section of the Article. In particular: the widespread use of frequentist risk measures as a determinant of regulatory choice is misguided. EPA, OSHA, FDA and other federal and state agencies
typically determine how stringently to regulate some toxin by looking (at least in part) to the frequentist risk imposed by the toxin on the maximally exposed, highly exposed, or representative individual. Similarly, environmental justice analysis is often keyed to the distribution of frequentist risks. And some propose that regulatory priority-setting (so-called comparative risk assessment) also take into consideration frequentist risk. This regulatory focus on frequentist risk was encouraged by the Supreme Court's seminal decision in the "Benzene" case (Industrial Union Dept v. American Petroleum Institute, 1980), and is endorsed by the risk assessment community. But the practice has no normative basis, and should be abandoned. Similarly, risk-imposition in the frequentist sense should be neither tortious nor criminal - at least if harmfulness is a precondition for liability in these domains, as it may well be.

Abstract:
Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision of Article II, Section 2), has no legal existence. A judge who disclaims the power of judicial review nevertheless "enforces" Article I, Section 7 when he finds that a putative statute is (or is not) an enactment of Congress that he must take account of. We contrast existence conditions with "application conditions" that limit the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law. For example, absent payment of just compensation, the Takings Clause would block the application of an otherwise valid statute such as the Endangered Species Act to a privately owned parcel of land if the impact of that application were to destroy all economically viable use of the parcel. Judicial enforcement of application conditions is not entailed by the enforcement of ordinary sub-constitutional law, even though judicial non-enforcement of application conditions might be unwise. After setting forth the conceptual distinction between existence and application conditions, we argue that many familiar constitutional provisions and doctrines - including the scope of enumerated powers and some individual rights - are best read as existence conditions and are thus necessarily judicially enforced. We then reconcile that observation with a variety of doctrines - including the political question doctrine, the enrolled bill doctrine, and the rational basis test - that seem to authorize the courts not to enforce or to "under-enforce" existence conditions. We argue that these doctrines should be understood in some instances as granting epistemic deference to non-judicial interpreters of the Constitution and in other instances as reflecting the fact that some constitutional provisions and doctrines are "perspectival" - that is, they have different content for different addressees.

Abstract:
Normative scholarship about regulation has been dominated by two types of theories, which I term "Neoclassical" and "Proceduralist." A Neoclassical theory has the following features: it adopts a simple preference-based view of well-being, and it counts Kaldor-Hicks efficiency as one of the basic normative criteria relevant to the evaluation of regulatory programs. A Proceduralist theory is concerned, not solely with the quality of regulatory outcomes, but also with the governmental procedures that produce these outcomes: it gives intrinsic significance to the procedures that regulatory bodies follow. (One example of a Proceduralist theory is the civic republican theory of regulation advanced by Mark Seidenfeld; another is the collaborative governance theory advanced by Jody Freeman.)

In this article, I criticize both Proceduralist and Neoclassical theories of regulation and then defend a different kind of theory, "Welfarism." Welfarism is close in its spirit to Neoclassicism, but significantly different in its details. Welfarism rejects the simple preference-based view of well-being ? which makes preference-satisfaction both necessary and sufficient for welfare-enhancement ? and adopts instead a novel view, Sophisticated Preferentialism, that makes preference-satisfaction necessary but insufficient. Welfarism also rejects the normative significance of Kaldor-Hicks efficiency, and claims instead that overall well-being is relevant to the evaluation of regulatory programs and projects. (Note that an inefficient project can increase well-being, and that an efficient project can decrease it.) Finally ? and by contrast with Proceduralism ? the Welfarist accords only instrumental, not intrinsic, significance to regulatory procedures. Civic-republican style deliberation, "collaborative governance," participatory procedures, and other approaches to regulatory decisionmaking defended by Proceduralists are valuable only insofar as they produce good regulatory outcomes. A "good regulatory outcome" need not be a welfare-maximizing outcome ? distributive and perhaps perfectionist criteria are also relevant here ? but welfare-maximization is a significant part of what matters, normatively speaking, about regulatory outcomes.

Abstract:
This Article draws a distinction between two types of norms of rational choice: basic rationality norms, and strengthened rationality norms. Basic rationality norms take as given the agent's context of choice ("choice situation") and evaluate a choice as rational, relative to a specified such context. A given choice situation includes a particular set of possible actions and a particular informational base upon which the agent is predicating her choice. In effect, a basic rationality norm asks: Was this choice rational, given the agent's information and the other alternatives being considered? Strengthened rationality norms seek to evaluate the choice situation itself. For example, ought the agent to have considered additional options, or a different set of options entirely? Ought she to have gathered more information before making the choice?

Cost-benefit analysis (CBA), in its standard form, is employed as a basic rationality norm. The analyst intuitively generates a set of possible first-order options and gathers information through some information-gathering process which is not, itself, the product of a threshold cost-benefit choice. CBA is then used to determine which of the given first-order options is best - specifically, which one maximizes the sum of compensating variations. However, one can imagine cost-benefit techniques, or other techniques, for evaluating choice situations themselves. For example, a threshold choice of information-gathering processes, or processes for generating possible options, might be made using CBA or expected utility analysis. The process chosen at the threshold would then be used to generate the first-order options that the agent would evaluate using standard CBA, standard expected utility theory, or following some other basic rationality norm; and this choice would be guided by information produced through the information-gathering process rationally chosen at the threshold.

How does this relate to law? The law currently contains quite broad basic-rationality constraints on governmental choice. One example is CBA, as required by Executive Order 12866 and various statutes and judicial doctrines. Another is the minimum rationality required by Due Process and Equal Protection doctrine. There is no comparable, generic, legal constraint limiting the threshold governmental decisions (often quite intuitive and arbitrary) concerning the priority that various problems should be given, the range of alternative possible actions to address a given problem, and the informational base for choosing between these options. Why not? Why not impose legal constraints requiring (some kind of) strengthened rationality from governmental officials? Relatedly, why should the current nonconstitutional legal constraints on basic rationality (CBA) be stronger than the current constitutional constraints (Due Process and Equal Protection rationality)? In short, does the Constitution require basic or strengthened public rationality? This Article addresses that important question, merging the literatures on rational choice and constitutional law.

Abstract:
An "expressive theory of law" is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause.

This article attempts to provide a precise conceptualization of an "expressive theory of law." On virtually any moral theory, the linguistic meaning of a legal official's action might have moral significance. (For example, within a utilitarian theory, the linguistic meaning of official action might affect overall well-being.) What, then, is the special significance that an "expressive theory of law" attributes to linguistic meaning? After addressing such conceptual and definitional problems, this article provides a critical overview of expressive theories. I focus first upon expressive theories of punishment, constitutional law, and regulation, and then set forth a general argument why expressive theories (as I have defined them) are unpersuasive.

The article is part of a scholarly exchange with Professors Elizabeth Anderson and Richard Pildes. In their own, substantial article, abstracted below, Anderson and Pildes criticize my article and defend expressivism. Elizabeth S. Anderson and Richard H. Pildes, "Expressive Theories of Law: A General Restatement," 148 University of Pennsylvania Law Review 1503 (2000). I then attempt to address their criticisms in a brief reply. Matthew D. Adler, "Linguistic Meaning, Nonlinguistic 'Expression,' and the Multiple Variants of Expressivism: A Response to Professors Anderson and Pildes," 148 University of Pennsylvania Law Review 1577 (2000).

Abstract:
An "expressive theory of law" is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause.

This paper attempts to provide a precise conceptualization of an "expressive theory of law." On virtually any moral theory, the meaning of a legal official's action might have moral significance. (For example, within a utilitarian theory, the meaning of official action might affect overall well-being.) What, then, is the special significance that an "expressive theory of law" attributes to legal meaning? After addressing such conceptual and definitional problems, this paper provides a critical overview of expressive theories. I focus first upon expressive theories of punishment, constitutional law, and regulation, and then set forth a general argument why expressive theories (as I have defined them) are unpersuasive.

Abstract:
Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to "The Concept of Law," clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means convention in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense - specifically, by figuring in a shared cooperative activity (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong way: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to mesh their conceptions of legal validity, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text).

Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm.

Abstract:
This Article presents a new, welfarist defense of the use of QALYs (quality adjusted life years) in policy evaluation. It challenges both the conventional wisdom among health economists that QALY-based analysis is dominated by traditional cost-benefit analysis (i.e., the sum of willingness-to-pay amounts) as well as the standard view of public health researchers that QALYs should function as the effectiveness metric in a cost-effectiveness analysis. Instead, the Article defends a nontraditional form of cost-benefit analysis, where QALYs are multipled by a conversion factor, for example $100,000 per QALY, and added to the monetized non-health effects of a policy. Part I of the Article surveys the current literature on QALYs. Part II shows that QALYs can be a more accurate measure of overall well-being than WTP amounts, under certain conditions, and argues that cognitive difficulties interfering with the measurement of WTP amounts can be circumvented by QALYs. Part III describes the limitations of QALYs. Part IV discusses the role that QALYs should play in welfarist policy analysis, given their strengths and limitations. In particular, it presents a pragmatic approach to determining the QALY-to-dollar conversion factor, and sheds new light on the controversy about pricing whole lives versus life-years.

cost-benefit analysis, life years, well-being, policy analysis

Abstract:
Decision theory seems to offer a very attractive normative framework for individual and social choice under uncertainty. The decisionmaker should think of her choice situation, at any given moment, in terms of a set of possible outcomes, that is, specifications of the possible consequences of choice, described in light of the decisionmaker's goals; a set of possible actions; and a "state set" consisting of possible prior "states of the world." It is this framework for choice which provides the foundation for expected utility theory, as demonstrated in the work of Leonard Savage.

Problems arise, however, when the decisionmaker is boundedly rational: when the mental process of thinking about outcomes, actions, and states is itself expensive and time consuming. In the case of the unboundedly rational decisionmaker, decision theory enjoins her to employ maximally specific outcomes; to consider all possible actions; and to use a set of mutually exclusive and collective exhaustive states, each of which is sufficiently finely specified so that each action, together with each state, yields one and only one maximally specific outcome. In the case of the boundedly rational decisionmaker, this procedure is either infeasible or, if feasible, irrational.

This paper presents the problem of bounded rationality. It surveys possible solutions, none of which are found to be attractive. And it concludes by discussing the difficulties that the problem of bounded rationality poses for the welfarist program for legal scholarship presented by Louis Kaplow and Steven Shavell in their book, Fairness versus Welfare.

decision theory, bounded rationality, social welfare, heuristics and biases, optimal search, expected utility theory, legal scholarship

Abstract:
Should equality be viewed from a lifetime or "sublifetime" perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as "progressive" or "regressive," should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a function of her current state - meaning that someone who is badly nourished, badly housed, or in pain at present has a strong claim on our aid regardless of whether this is a chronic or transient state? Should we think of the aged as a "suspect class," a low-well-being group? From the sublifetime perspective, the aged are indeed a kind of "suspect class," because they tend to have low current incomes and health and to be socially isolated. But the aged have lived for many years and are therefore, as a matter of lifetime well-being, relatively "rich" compared to the rest of the population.

This Article addresses the time-slice question. I use the framework of welfarism and the formal apparatus of "social welfare functions" to sharpen analysis. The first half of the Article argues for the lifetime perspective. The second half surveys the implications of that perspective for a host of legal and policy issues: the measurement of equality; the measurement of poverty; the design of redistributive taxes; the question whether non-tax instruments, such as environmental regulations or tort law, should also be used for redistribution; and how the "suspect class" framework and other distributively sensitive policy tools should be structured. Above all, the Article aims to raise the profile of a foundational question which has been insufficiently discussed - a question that anyone who cares about equality should grapple with.

equality, poverty, lifetime well-being, lifetime income, welfarism, social welfare function, redistributive taxation

Abstract:
De minimis cutoffs are a familiar feature of risk regulation. This includes the quantitative individual risk thresholds for fatality risks employed in many contexts by EPA, FDA, and other agencies, such as the 1-in-1 million lifetime cancer risk cutoff; extreme event cutoffs for addressing natural hazards, such as the 100 - year - flood or 475 - year - earthquake; de minimis failure probabilities for built structures; the exclusion of low - probability causal models; and other policymaking criteria. All these tests have a common structure, as I show in the Article. A de minimis test, broadly defined, tells the decisionmaker to determine whether the probability of some outcome is above a low threshold and makes this determination relevant, in some way, to her choice.

De minimis cutoffs are deeply problematic, and have been generally misunderstood by scholars. First, they are warranted - if at all - by virtue of policymakers' bounded rationality. If policymakers were fully rational, de minimis cutoffs would have no justification. (This is true, I suggest, across a wide range of normative theories, and for the full gamut of de minimis tests). Second, although it seems plausible that some de minimis tests are justified once bounded rationality is brought into the picture, it is not clear which those are, or even how we should go about identifying them.

De minimis risk, significant risk, risk regulation, natural hazards, probability thresholds, decision theory, policy analysis, bounded rationality

Abstract:
What does distributive justice require of risk regulators? Various executive orders enjoin health and safety regulators to take account of "distributive impacts," "equity," or "environmental justice," and many scholars endorse these requirements. But concrete methodologies for evaluating the equity effects of risk regulation policies remain undeveloped. The contrast with cost-benefit analysis - now a very well developed set of techniques - is stark. Equity analysis by governmental agencies that regulate health and safety risks, at least in the United States, lacks rigor and structure.

This Article proposes a rigorous framework for risk-equity analysis, which I term "probabilistic population profile analysis" (PPPA). PPPA is both novel, yet firmly grounded in the social-welfare-function tradition in welfare economics. The PPPA framework conceptualizes both the status quo, and possible policies, as probability distributions across population profiles - where each population profile is, in turn, a concatenation of lifetime health-longevity-income histories, one for each member of the population. A utility function transforms each such profile into a utility vector. An equity-regarding social welfare function (SWF) is then specified. Policy analysts can employ the equity-regarding SWF both (1) to determine how policies compare purely as a matter of equality; and (2) to determine how they compare all-things-considered, considering both equality and overall welfare.

The proposal may seem utopian, but is not. Scholars in the field of optimal tax policy already use SWFs to evaluate policies. Characterizing policies as distributions across population health-longevity-income profiles builds on existing risk assessment and general-equilibrium-modeling techniques. Utility functions can be specified through survey research and, in the interim, by building on standard functional forms. Plausible normative axioms considerably narrow the possible forms of the SWF, and survey research or thought experiments narrow the field further. Part I of the Article describes and criticizes existing approaches to risk equity that have been proposed in the scholarly literature: the environmental justice conception of risk equity; "individual risk" approaches; QALY-based equity analysis; incidence analysis; inclusive equality measurement; and cost-benefit analysis with distributive weights. Part II describes and defends PPPA. PPPA has many virtues. It recognizes that well-being is multidimensional, a function of both income and health/longevity; furnishes a metric for inequality; provides a framework for making tradeoffs between equality and overall well-being; and understands that distributive justice includes (but is not limited to) inequalities between high and low-status social groups.

risk, equity, distributive justice, inequality, environmental justice, health equity, QALY, social welfare, incidence analysis, cost-benefit analysis, risk assessment

Abstract:
This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart's "rule of recognition" model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods -- such as textualism, originalism, "living constitutionalism," structure-and-relationship reasoning, representation reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear in arguing that one or another interpretive method is legally favored? And can we "make sense" of this body of argument? Is there a model of legal discourse that both accurately describes how U.S. jurists and scholars actually argue about interpretive methods, and that vindicates this discourse (in the sense of seeing these actors as making valid arguments)?

I find that Hart's rule-of-recognition model fails to describe or vindicate how U.S. jurists and scholars argue about interpretive methods. The problem, in a nutshell, is that Hart sees legal argument as asserting or presupposing the social fact of contemporary official acceptance of a rule of recognition. By contrast, jurists and scholars typically point to social facts other than contemporary official acceptance in arguing for the legal status of an interpretive method -- for example, the fact that the method is supported by Framers' intent, or by U.S. culture and tradition, or by precedent. Further, jurists and scholars very often argue that some interpretive method is legally favored even though the method is controversial. On Hart's model, such a claim is problematic -- because, on his model, the content of the rule of recognition is not controversial, but rather a matter of consensus among officials.

The upshot may just be that Hart's model is a failure. However, another possibility is to adopt an "error theory" of U.S. constitutional discourse. It may perhaps be the case that U.S. jurists and scholars often make claims for the favorable legal status of some interpretive method that are inconsistent with the best understanding of the nature of law.

Constitutional law, jurisprudence, H.L.A. Hart, interpretive methods, legal culture, error theory

Abstract:
What is an "equitable" policy for mitigating the impacts of hurricanes, earthquakes, floods, and other natural hazards? Economists tend to see "equity" or "distribution" as irreducibly political and subjective. But, in truth, equity analysis and cost-benefit analysis are on a par. Both require a normative justification. Moreover, normative argument can help us structure equity analysis, just as it can help structure cost-benefit analysis.

This chapter, written for a forthcoming book on natural hazards policy after Katrina, argues that equity is a normative consideration distinct from efficiency or overall well-being. It then argues that equity is: individualistic, not group-based; ex post, not ex ante; that the "currency" for equity consists in the multiple dimensions of well-being, not income or longevity; and that, at a minimum, equity analysis should be concerned to avoid serious deprivations with respect to any well-being dimension. The upshot is an account with a close affinity to an emerging body of scholarship in development economics, inspired by Amartya Sen's work on capabilities and functionings; and a set of concrete recommendations for how equity analysis of natural hazards policy should be structured.

Abstract:
This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same
probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens can diverge from rational officials'. I imagine a simple case in which a single Social Planner structures both transition policy and substantive law in some domain. The legal change that the Planner anticipates she would enact in response to a given set of events, and the legal change that the Planner believes one or another citizen believes she (the Planner) will
enact in response to those events, can differ. And this means, in turn, that there can be incentive costs to a retroactivity regime as well as a prospectivity regime, even if all actors are fully rational. The utilitarian case for retroactivity is more contingent than Kaplow thinks.

Abstract:
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant whose personal rights are not violated by that action (with a special exception for those unusual cases where the "personal rights" requirement is set aside, such as First Amendment overbreadth cases). In this Article, I argue that rule-dependence and the personal rights requirement - these two familiar features of modern constitutional law - are inconsistent. If the purpose of constitutional adjudication were really to vindicate the personal rights of litigants, constitutional doctrine would not be rule-dependent in the way I have just described. (This is true, I claim, on any plausible conception of a "personal right.") Further, I suggest that the tension between rule-dependence and personal rights should be resolved by abandoning the personal rights requirement. Constitutional courts should be seen as oversight bodies whose task is to repeal or amend legal rules that violate constitutional norms; and litigants should be seen as the "private attorneys general" who initiate the enforcement of these norms.

This paper is an extension of arguments first presented in my article "Rights Against Rules: The Moral Structure of American Constitutional Law," 97 Michigan Law Review 1 (1998).

Abstract:
Welfare polls are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent-valuation surveys, QALY surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists. This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the actual and potential uses of welfare polls in government decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and concludes that they can be genuinely informative. Part IV synthesizes the case for welfare polls, arguing against two types of challenges: the revealed-preference tradition in economics, which insists on using behavior rather than surveys to learn about well-being; and the civic-republican tradition in political theory, which accepts surveys but insists that respondents should be asked to take a citizen rather than consumer perspective. Part V suggests new directions for welfare polls.

cost-benefit analysis, contingent valuation, QALY, happiness, well-being, survey, revealed preference, deliberative democracy

Abstract:
We introduce a new "different lives" survey format, which asks respondents to rank hypothetical lives described in terms of longevity, health, happiness, income, and other elements of the quality of life. In this short paper, we show that the format is of policy relevance whether a mental state, preference satisfaction or extra-welfarist account of well-being is adopted and discuss some of the advantages the format has over standard formats, such as contingent valuation surveys and QALY-type methods. An exploratory survey indicates that the format is feasible and that health and happiness might be more important than income and life expectancy.

QALYs, preferences, well-being, utility, welfarism, extra-welfarism

Abstract:
How should agencies and legislatures evaluate possible policies to mitigate the impacts of earthquakes, floods, hurricanes and other natural hazards? In particular, should governmental bodies adopt the sorts of policy-analytic and risk assessment techniques that are widely used in the area of environmental hazards (chemical toxins and radiation)? Environmental hazards policy analysis regularly employs proxy tests, in particular tests of technological "feasibility," rather than focusing on a policy's impact on well-being. When human welfare does enter the analysis, particular aspects of well-being, such as health and safety, are often given priority over others. "Individual risk" tests and other features of environmental policy analysis sometimes make policy choice fairly insensitive to the size of the exposed population. Seemingly arbitrary numerical cutoffs, such as the one-in-one million incremental risk level, help structure policy evaluation. Risk assessment techniques are often deterministic rather than probabilistic, and in estimating point values often rely on "conservative" rather than central-tendency estimates.

This Article argues that these sorts of features of environmental policy analysis may be justifiable, but only on institutional grounds - if they sufficiently reduce decision costs or bureaucratic error or shirking - and should not be reflexively adopted by natural hazards policymakers. Absent persuasive institutional justification, natural hazards policy analysis should be welfare-focused, multidimensional, and sensitive to population size, and natural hazards risk assessment techniques should provide information suitable for policy-analytic techniques of this sort.

natural hazards, risk assessment, environmental policy analysis

Abstract:
Should we remain neutral between our interests and those of future generations? Or are we ethically permitted or even required to depart from neutrality and engage in some measure of intergenerational discounting?

This Article addresses the problem of intergenerational discounting by drawing on two different intellectual traditions: The social welfare function (“SWF”) tradition in welfare economics, and scholarship on “prioritarianism” in moral philosophy. Unlike utilitarians, prioritarians are sensitive to the distribution of well-being. They give greater weight to well-being changes affecting worse-off individuals. Prioritarianism can be captured, formally, through an SWF which sums a concave transformation of individual utility, rather than simply summing unweighted utilities in utilitarian fashion.

The Article considers the appropriate structure of a prioritarian SWF in intergenerational cases. The simplest case involves a fixed and finite intertemporal population. In that case, I argue, policymakers can and should maintain full neutrality between present and future generations. No discount factor should be attached to the utility of future individuals.

Neutrality becomes trickier when we depart from this simple case, meaning: (1) “non-identity” problems, where current choices change the identity of future individuals; (2) population-size variation, where current choices affect not merely the identity of future individuals, but the size of the world’s future population (this case raises the specter of what Derek Parfit terms “the repugnant conclusion,” i.e., that dramatic reductions in the average level of individual well-being might be compensated for by increases in population size); or (3) an infinite population. The Article grapples with the difficult question of outfitting a prioritarian SWF to handle non-identity problems, population-size variation, and infinite populations. It tentatively suggests that a measure of neutrality can be maintained even in these cases.

social welfare function, prioritarianism, discount rate, population ethics, non-identity problem, repugnant conclusion, infinite future, distributive justice, utilitaranism

Abstract:
H.L.A. Hart famously proposed that law in every full-blown legal system derives from a “rule of recognition”: an ultimate criterion of legal validity accepted as such by officials. This claim is central to modern analytical jurisprudence. Subsequent work has either elaborated and refined Hart’s claim, or challenged it (as with Dworkin’s scholarship).

U.S. constitutional theorists have generally paid little attention to Hart’s view or the debates about it. And analytical jurisprudents have discussed the view without much reference to the actual features of legal practice in the United States.

This book, with chapters by leading constitutional theorists and jurisprudents, seeks to systematically examine the applicability of the “rule of recognition” model to the U.S. legal system – seeking both to illuminate questions of constitutional theory, and to use the U.S. system as a “test bed” for Hart’s claims. A multitude of topics are addressed, including: the legal status of extratextual sources of fundamental U.S. law; debates about interpretive methods, e.g., originalism versus nonoriginalism; judicial supremacy; the legitimacy of constitutional precedent; “popular constitutionalism”; whether the rule-of-recognition model should allow for a multiplicity of such rules; whether the rule of recognition is duty-imposing or power-conferring; the connection between fundamental law and social practice; and the role of shared plans in constituting a legal system. Contributors include: Matthew Adler, Larry Alexander, Mitchell Berman, Michael Dorf, Richard Fallon, Michael Steven Green, Kent Greenawalt, Kenneth Einar Himma, Stephen Perry, Frederick Schauer, Scott Shapiro, Jeremy Waldron, and Wil Waluchow.

rule of recognition, U.S. Constitution, H.L.A. Hart, Ronald Dworkin, positivism, social practice, judicial supremacy, textualism, originalism, precedent, popular constitutionalism

Abstract:
This book provides a systematic account of CBA as a welfarist decision procedure. We reject the traditional defense of CBA in terms of Kaldor-Hicks efficiency, and argue instead that CBA is a workable proxy for overall well-being. We also modify the preference-based account of well-being to which CBA is traditionally linked, and argue that preferences need to be self-interested and fully-informed to produce welfare. This view has many implications for the actual practice of CBA.

Chapter 1 summarizes and rejects traditional defenses of CBA. Chapter 2 provides the foundations for a new defense. It argues that that preferences must be idealized and self-interested to produce welfare; that interpersonal welfare comparisons are possible; and that overall well-being is morally relevant, if not morally decisive. Chapters 3 and 4 compare CBA with alternative administrative decision-procedures - such as intuitive balancing, safety-maximizing procedures, "feasibility" analysis, and others - and argue that CBA is the welfare-maximizing procedure, given decision costs, accuracy, and the political realities of the administrative state. Chapter 5 discusses possible modifications in the practice of CBA that flow from our account, such as the "laundering" of preferences, the rejection of environmental "existence values," and the use of distributional weights. Chapter 6 responds to standard objections to CBA, involving its insensitivity to rights and distribution; incommensurability; the discounting of future benefits and costs; the WTP/WTA disparity; and the valuation of human life. In considering these objections, it is important to understand that CBA is not itself a bedrock moral criterion, nor a superprocedure, but simply a practicable tool to implement one part of the moral bedrock - overall well-being.

Abstract:
Richard Stewart, in his classic article The Reformation of American Administrative Law, argues that the demise of the transmission belt model of administrative governance has created a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart's skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is at least one morally permissible and justified choice (perhaps a choice that sacrifices democratic legitimacy for the sake of other values).

Abstract:
A governmental decision is "ex ante efficient" if it maximizes the satisfaction of everyone's preferences ex ante, relative to other possible decisions. Equivalently, each affected person would be rational to approve the decision, given her preferences and beliefs at the time of the choice. Does this matter, morally speaking? Do governmental officials - legislators, judges, regulators - have a moral reason to make decisions that are ex ante efficient? The economist's answer is "yes." "Ex ante efficiency" is widely seen by welfare economists to have moral significance, and often appears within law-and-economics scholarship as a criterion for evaluating legal doctrines.

The intuitive attractiveness of ex ante efficiency is grounded, I suggest, in a broader intuition: namely that "rational approvability" has moral weight. Imagine that person P would be rational to approve some particular governmental decision A*, given P's preferences and beliefs at the time of governmental choice. Then it seems plausible that the governmental decisionmaker has a prima facie moral reason to choose A*. Considerations of welfare seemingly come into play here. A governmental decision that P is rational to approve is (seemingly) a decision that enhances her welfare, at least given a preference-based account of welfare and rationality. Consent, too, seems relevant. To say that a governmental decision is rationally approvable by P is just another way of saying that she would consent to it. And the moral force of ex ante efficiency follows quite immediately from the moral force of rational approvability: an ex ante efficient decision is one that everyone rationally approves.

In this Article, I seek to deflate the intuitive case for ex ante efficiency just described. The fact that P rationally should approve some official decision, given her preferences and beliefs at the time of choice, has no moral significance whatsoever for a governmental decisionmaker. Neither welfare, nor consent, nor the fact that governmental decisions are made under conditions of uncertainty (producing a divergence between what's best ex ante and what's best ex post), nor the need for stable governmental decisions, nor other considerations, actually lends moral weight to rational approvability. Choices rationally approvable by P might, unluckily, lead to outcomes that are worse for her welfare. Hypothetical consent is not the same as actual consent; further, the rational approvability by P of some choice implies that she would hypothetically consent to the choice given her current beliefs, not that she would hypothetically consent under full information or under Rawlsian conditions of morally structured ignorance. And the probabilistic beliefs that prompt P's rational approvals can readily deviate from the probabilistic beliefs of the governmental decisionmaker; it is those beliefs or the objective probabilities, not P's beliefs, that determine what the decisionmaker morally ought to do ex ante.

Abstract:
This is a Commentary on Jason Johnston's important article, "A Game Theoretic Analysis of Alternative Institutions for Regulatory Cost-Benefit Analysis." Eric Posner and I have argued in prior work that cost-benefit analysis (CBA) should be understood as a welfarist decision procedure. Our claims are that: (1) CBA and its close cousin, Kaldor-Hicks efficiency, lack intrinsic moral significance but (2) CBA, in many regulatory contexts, is a decisional tool the use of which maximizes overall well-being, relative to other decisional tools. The latter is a contingent and empirical claim, subject to formal modeling and empirical testing. Johnston's article provides a formal model of CBA which illuminates its welfare effects and, in particular, shows that a statutory CBA requirement can reduce welfare, as compared to a "benefits" statute that permits a regulatory agency to pursue some regulatory benefit, such as environmental purity, and ignore costs. Interestingly, Johnston shows that in principle a statutory CBA requirement can be welfare-reducing even if the process of CBA is costless, regulatory agencies do not make mistakes in the application of CBA, agencies do not shirk with respect to the statutory benefit, agencies are generally well-informed about regulatory costs and benefits, and "wealth effects" are not present. Given lobbying and litigation activities by firms, plus epistemically imperfect courts, a benefits regime can induce the agency to "sort" between directives against low- and high-cost firms; and the shift to a CBA regime can shift the regulatory equilibrium to one where the agency issues or fails to issue directives against both types of firms. This Commentary analyzes and to some extent criticizes Johnston's model and suggests future directions for modeling and testing the welfare effects of CBA.

Abstract:
Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications,and limitations. Contributors include Matthew Adler, Gary Becker, John Broome, Robert Frank, Robert Hahn, Lewis Kornhauser, Martha Nussbaum, Eric Posner, Richard Posner, Henry Richardson, Amartya Sen, Cass Sunstein and Kip Viscusi.

Abstract:
Constitutional doctrine is typically rule-dependent. A constitutional challenge is typically viable only if there exists a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Rights against Rules: The Moral Structure of American Constitutional Law, 97 Michigan Law Review 1 (1998), I proposed one model of constitutional adjudication that is consistent with rule-dependence (the Adler Model). Under the Adler Model, the function of reviewing courts is not to vindicate the personal rights of claimants but is instead to repeal or amend constitutionally invalid statutes and other rules. Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000). Fallon suggests that a reviewing court should overturn the application of a constitutionally invalid rule to a given claimant if and only if that rule contains no valid severable "subrule" that includes the claimant; and he criticizes the Adler Model on various counts, in particular for severing the connection between constitutional adjudication and personal rights. In this response to Professor Fallon's article, I reply to Fallon's criticisms and, more generally, attempt to demonstrate that the Fallon Model is not supported by various considerations that might seem to favor it. The Fallon Model is a better account of rule-dependence than the Adler Model only if the Fallon Model better implements constitutional norms, and Professor Fallon has not shown or even tried to show that it does.

Abstract:
In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections v Yeskey, 118 S.Ct. 1952 (1998). We clarify the distinctions that the Court has drawn between permissible and impermissible federal action as sympathetically as possible, but argue that even on the most charitable construction, those distinctions are justified neither by the values of federalism that the Court has invoked in defense of justiciable state sovereignty, nor by an effort to express in law the importance of federalism to national identity.

New York and Printz explicitly recognize three distinctions within the set of federal directives: 1) between "coercive" and non-coercive directives (specifically, directives compliance with which is a condition for federal spending, or for the nonpreemption of state law); 2) between directives that are targeted at state officials, and directives that are "generally applicable" to both state officials and private parties; and 3) between directives addressed to state legislative or executive officials, and directives addressed to state adjudicators.

We argue that the anti-commandeering cases are best interpreted, within the context of wider case law, as permitting the federal government to impose in addition a large and significant category of targeted, coercive duties upon state legislative or executive officials--those that are imposed pursuant to the federal preemption of state law. As we interpret the present case law, federal directives that require inaction by state officials do not constitute commandeering; only directives that require action by state officials can do so. In addition, the cases governing Congress' powers to enforce the Reconstruction Amendments make clear that a statute properly grounded upon these powers can override whatever "state sovereignty" constraints limit federal authority under the Commerce Clause.

In short, the emerging anti-commandeering jurisprudence is constituted by five demarcations, not three: (1) preemption versus commandeering; (2) coercion versus conditional spending or preemption; (3) targeted versus generally applicable federal statutes; (4) state legislative or executive officials versus state judicial officials; (5) the Commerce Clause versus the Reconstruction Amendments. After clarifying these demarcations, we evaluate them in light of the justifications for recognizing state sovereignty as an external limit to national power. Given the values that the Court has invoked to justify the existence of some justiciable federalism constraints upon the national government (values such as tyranny-prevention, political community, innovation, and the responsiveness of government to geographically diverse needs, preferences, and conditions), does it make sense to prohibit federal commandeering but not preemption, coercive but not noncoercive federal directives, and so on? We argue that none of the demarcations in the ani-commandeering jurisprudence except for the Reconstruction-Amendment demarcation is justified and that this one, although justified, is in its current doctrinal form unclear and probably unworkable. We explore, in the alternative, an "expressive" defense of the anti-commandeering jurisprudence, as seeking to impose an "etiquette" of federalism that alerts political actors to the norms of federalism, without directly confronting congressional value choices. We conclude that this defense is also unsuccessful.

Abstract:
Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.

In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against rules. Constitutional reviewing courts operate at the same level of generality as legislatures. Their task is to evaluate statutes and other rules, in light of constitutional criteria, and to repeal or amend the rules that fail those criteria. The strength of the litigant?s personal claim is irrelevant. I defend this view of constitutional rights with specific reference to the case of conduct-regulating rules, and to the provisions in the Bill of Rights that provide the main (substantive) protection against conduct-regulating rules -- namely, the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive component of the Due Process Clause.

My view has wide implications, for a host of problems in federal courts and constitutional jurisprudence. For example, it suggests that classic justiciability doctrines such as "ripeness" and "standing" have no support in the nature of constitutional rights; their justification, if any, must be found elsewhere. It explains why constitutional doctrines are typically framed in terms of "tests" (e.g., narrow-tailoring tests, or anti-discrimination tests) that look to the predicate and history of rules. In particular, the view defended in my Article bears on the problem of "facial" and "as-applied" challenges -- a problem that, in recent years, has provoked considerable controversy at the Supreme Court. If constitutional rights are indeed rights against rules, then all constitutional challenges are "facial" challenges, and properly so. Relatedly, the "overbreadth" doctrine is misconceived; there is nothing unique to the First Amendment about the propriety of challenges by litigants who lack personal claims of constitutional wrong.

Abstract:
Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to challenge the Countermajoritarian Difficulty, by arguing that legislature-centered arguments do not (simply) extend to cover most of the practice of judicial review. Judicial review includes not merely the review of statutes, but also the review of administrative rules, orders and actions, and the statutory pedigree of these rules, orders and actions does not suffice to "translate" legislature-centered arguments into the administrative state. In particular, there is no reason to think that the most important kind of restraintist argument, for constitutional reviewing courts in an administrative state, should be a democratic argument such as the Countermajoritarian Difficulty. Rather, epistemic arguments -- arguments that point to judicial deficits in determining what morality requires -- are at least as promising.