Quality Control: A Reply to Professor Sunstein
10 Pages Posted: 26 Apr 2014
Date Written: April 24, 2014
Unless cost-benefit analysis finds room for the nonquantifiable and nonmonetizable benefits of regulation, it will skew systematically against government action to address social problems that have significant nonquantifiable and nonmonetizable dimensions. In "Nonquantifiable" – presented as the 2013 Jorde Lecture at Berkeley Law School – Professor Cass Sunstein looks for a way out of this quandary. But the solutions he embraces – breakeven analysis, a meaningful recognition of qualitative consequences like human dignity, and a redoubled effort to quantify and monetize regulatory benefits – fall short. Breakeven analysis is too selectively deployed to be the neutral tool Sunstein seeks. Fitting qualitative values, like dignity, into the cost-benefit mold can be both legally gratuitous and conceptually confused. Monetizing heretofore nonmonetized regulatory benefits – like preventing prison rape – entails a complete redefinition of the problem at hand. We do not solve the problem of nonquantifiability by, essentially, changing the subject.
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