With Regard for Persons

86 Law & Contemporary Problems 101 (2023)

UCLA School of Law, Public Law Research Paper No. 24-9

32 Pages Posted: 11 Mar 2024

Date Written: March 8, 2024

Abstract

This Article is part of a symposium on Regulatory Managerialism and Public Governance. It argues that the formal, quantitative approach to risk in health, safety, and environmental law has operated first and foremost as a key technique of managerialism intended to discipline and constrain environmental decision-making rather than as a tool for revealing truths about the world. The premise of the Article is that managerialism does much of its work on the front end in the ways that it defines and frames problems for investigation, often under the guise of making them tractable for certain kinds of regulatory interventions. Much of this upstream work, of course, is not transparent or reviewable and not subject to existing forms of public accountability, such as notice-and-comment rulemaking or citizen suits. But it is these upstream knowledge practices that make problems into objects of governance in the first place, setting in motion all manner of calculative practices and simplifications that then get reified in regulatory practice. Consistent with recent work investigating the relationship between neoliberalism and bureaucracy, the Article also illustrates how regulatory managerialism has driven a proliferation of new bureaucratic practices that further constrain and undermine the ability of government to deliver on basic responsibilities. Understanding the mechanisms and techniques by which this has been accomplished and the legacies it has created is critical for any effort to rebuild a more responsive, protective, and empathetic state. To that end, the Article also offers series of interventions intended to recenter harm and regard for persons in health, safety, and environmental law. The goal in all of this is to turn risks back into harms and harms back into matters of public concern—to make clear that the actual harms inflicted on real people living real lives in real places have both a moral and a legal significance that has been largely forgotten in clever arguments about the reciprocal nature of harm and in the formulas and balancing acts we have allowed to colonize the practice of environmental protection.

Keywords: environmental law; administrative law; bureaucracy; knowledge practices; regulatory science; regulatory managerialism; risk assessment; precautionary approach; toxic harms; pollution; public health; occupational health; neoliberalism; law and political economy

Suggested Citation

Boyd, William, With Regard for Persons (March 8, 2024). 86 Law & Contemporary Problems 101 (2023), UCLA School of Law, Public Law Research Paper No. 24-9, Available at SSRN: https://ssrn.com/abstract=4753186

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