By Mark D. White

The final two posts at the "Cost-Benefit Analysis at the Crossroads" symposium at the LPE Project are more practical, focusing on the impact of CBA techniques in health care and the environment. (Kudos to the LPE Project for this fascinating and provocative collection of essays.)

In "The 'Value of a Statistical Life': Reflections from the Pandemic," Mark Silverman (Franklin & Marshall College) questions the validity of the concept of willingness-to-pay (WTP) on which most CBA calculations are based, especially insofar as they are taken to reflect risk-reward trade-offs, which are at the center of policymaking during the pandemic. He identifies two specific problems in particular:

The first is specific to the notion of worker rates of substitution between income and risk. In the pandemic-induced recession of 2020, with a restricted range of job opportunities, and little publicly provided material support, newly-acknowledged “essential” workers had little choice to but to accept increasingly risky jobs with little or no hazard pay. In fact, the worse the bargaining position for workers, the less they will “value” their lives – lest they risk their livelihood.

The second criticism focuses on the endogeneity of the underlying preferences. Even assuming away the question of worker bargaining power, we are still left with the question of whether, as a matter of policy, our social willingness to pay for mortality risk should be defined exclusively in terms of agents’ WTP as revealed by the market.

In "The Shaky Legal and Policy Foundations of Cost-Benefit Orthodoxy in Environmental Law," Amy Sinden (Temple University) surveys the numerous difficulties with using CBA to screen environmental policies, given the difficulty of quantifying (or monetizing) environmental improvements. Sinden lays out the implications of this failure:

If important benefits are left out of the equation the vast majority of the time, then CBA operates at best as an informal screening tool, telling us, if we’re lucky, whether the benefits of a regulation in a rough sense exceed the costs. (When you’re not so lucky and your partial benefits estimate comes out lower than your cost estimate, it doesn’t tell you much of anything.) 

Once demoted from a formal optimization tool to a rough screening tool, CBA loses its normative pedigree in welfare economics and joins the ranks of the other perhaps less theoretically beguiling but highly pragmatic cost screening tools that Congress has so often relied on in crafting our environmental statutes. These are the scrappy, street-smart tools of regulatory decision-making, like feasibility analysis, cost-effectiveness analysis, and multi-factor balancing—tools that arguably make up for in pure pragmatic effectiveness what they lack in theoretical elegance. Once your goal is no longer to reach the mythical state of economic efficiency, but rather to ensure that costs are not in some general sense unreasonable, these other tools may actually get you there more quickly, easily, and—dare I say—efficiently. 

She concludes that, rather than doubling down on CBA, the federal government should defer to individual agencies, who

should decide how to most appropriately account for costs and benefits by choosing among the wide array of tools available. This choice should be tailored to the particular context in which the rulemaking arises, giving particular attention to the feasibility of quantifying and monetizing relevant costs and benefits, along with the agency’s statutory mandates.

By Mark D. White

Talk about the gift that keeps giving: The "Cost-Benefit Analysis at the Crossroads" symposium at the LPE Project has posted several new entries which collectively focus and intensify the critical look at CBA in the earlier contributions. In this post, I'll look at three that highlight the failures of inclusivity at the heart of CBA.

In "Modernizing Regulatory Review Beyond Cost-Benefit Analysis," Melissa Luttrell (University of Tulsa College of Law) and Jorge Roman-Romero (Equal Justice Works) write that:

Cost-benefit analysis (CBA) is inherently classist, racist, and ableist. Since these are foundational problems with CBA, and are not simply issues with its implementation, they can never be fixed by mere methodological improvements. Instead, the ongoing modernization of centralized regulatory analyses must focus on “moving beyond” CBA, and not on fixing it or improving it.

In response, they suggest a more comprehensive and holistic approach to regulatory review that incorporates values outside of CBA, partly by inviting the input of experts other than economists:

A comprehensive and just approach to regulation that properly balances economic considerations with deontological factors is possible in a post-CBA world. In the context of risk regulation, the regulatory review process should prioritize deontological interests, particularly when controlling statutes don’t provide for a welfarist blueprint, and are, instead, more concerned with protecting rights or promoting equity—as most of them are.

Implementing this post CBA-approach to regulation requires OIRA to diversify its portfolio of career staffers beyond economists, thus avoiding falling into methodological labyrinths that threaten to derail regulatory action with no apparent coherence. By incorporating more areas of disciplinary expertise in the review process, important non-quantifiable considerations like climate resilience, environmental justice, and intergenerational equity would be given predominant weight despite the difficulties associated with assigning a monetary value to the benefits that might accrue from centering them. Moreover, a post-CBA regulatory review that appreciates deontological values should be wary of falling into other reductionist utilitarian frameworks that democratically-enacted statutes do not call for. Recall that the Clinton and Obama administrations both made gestures toward retaining CBA while softening its anti-regulatory effects; these half-measures were ineffective then, as they will be again if CBA is merely “reformed” instead of rejected.

Karen Tani (University of Pennsylvania) follows in the same vein in her contribution, "The Limits of the Cost-Benefit Worldview: A Disability-Informed Perspective," which details two specific objections to CBA in this specific context. First, she highlights who has the power to make decisions and who is subject to them:

In a society that remains inaccessible to many disabled people, some have found it useful to be able to say, “this thing I want (need) is not that costly, especially relative to the benefits, so you should just give it to me.” But as disability law scholars and practitioners would be the first to admit, that same framework carries within it a concession. It suggests that at some point, or for some seekers, cost will be an entirely valid reason for the person who controls access or resources to say “no.” The benefits may be entirely real, but they will not justify the costs.

Surely there are situations in which we don’t want to make that decisional framework available—not because we think we can simply wish away costs, but because of the importance of the interest at stake and because we know just how easy it is to craft compelling narratives of austerity and costliness. To be sure, austerity/cost narratives have counter-narratives—of deservingness, of need, and even of right—but historically, some narrators have received more credence from the American public than others. There is a thumb on a scale against anyone who can plausibly be blamed for their own vulnerability (“welfare mothers” are a prominent historical example).

Second, she questions the ways that different issues are framed, either as costs or benefits:

The second point—again, heard often in the disability community—is about deep structures of exclusion and how easily they escape the notice of policymakers. CBA is particularly unhelpful in this regard. As Martha Nussbaum has argued, in the context of her capabilities work, CBA may help us in answering which of the options in front of us “contains the largest net measure of good,” but it is not an apt tool for naming and questioning the immorality that may be embedded in the set of choices made available. As Nussbaum puts it, CBA foregrounds the “obvious question” and leaves unasked and unanswered the “tragic question” that may be present in the same situation. Thus in the disability context, CBA might help us decide whether and how to make existing public transportation accessible (still a serious problem), but it does not ask why transportation systems were built in ways that excluded so many disabled people in the first place. It might help us make a decision about the pace and nature of deinstitutionalization, but it would not interrogate the morality of a society that has long separated people with intellectual and developmental disabilities from the rest of the community and confined them in warehouse-like settings. More generally, CBA is comfortable casting some people’s needs as the “costs,” and implicitly asking those people show their worth, rather than asking how and why they ended up on that side of the ledger to begin with.

Finally, in "A Post-Neoliberal Regulatory Analysis for a Post-Neoliberal World," James Goodwin (Center for Progressive Reform) echoes the comments of the previous two posts, calling out the undemocratic nature of CBA as well as its neglect of deontological values, and adds an anti-social bias (that will certainly resonate with social economists):

[T]he analysis must recognize and properly account for the complex patterns of social relationships that define and give meaning to each of our lives. Welfare economics-based cost-benefit analysis denies these linkages, viewing individuals in strictly atomistic terms and pretending our existence is little more than the single-minded pursuit of self-interested utility. An analysis lacking a richer understanding of our situated, mutual dependencies is not merely incomplete; it is systematically biased against pro-social policies, such as controls on toxic mercury pollution emissions from fossil-fueled power plants or effective COVID protections for workers in the service industry. Worse still, it rewards and reinforces the cultural disconnectedness at the root of so many of our public policy challenges.

By Mark D. White

There have been some new contributions posted to the symposium at the Yale Journal of Regulation I posted about last week on Livermore and  Revesz's book Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health (Oxford, 2021).

"OIRA the Angel; OIRA the Devil," by Bridget C.E. Dooling

"Reviving More Than Rationality," by Stuart Shapiro

"Cost-Benefit Analysis as Policy and as Dialectics," by Shi-Ling Hsu

While Dooling and Shapiro focus in on the nature and politics of the Office of Information and Regulatory Affairs (OIRA) itself, Hsu's contribution is more abstract, addressing the possibility of alternative values and principles to welfarism in public policy and acknowledging the difficulties with balancing these different conceptions of what is good or right:

Perhaps the most serious objection to a welfarist, cost-benefit state, is that welfarism is just another value. Welfarism should stand alongside, and not above, other values such as equality, nondiscrimination, liberty, or freedom. Welfarism might even be subservient to some of these other values. Even welfarists acknowledge the importance of distributional issues, while they work to incorporate them into welfarist frameworks. President Biden has called for changes to CBA to account for distributional issues. Liberty and freedom are obviously fundamental to Americans, as well as other Western societies, as the Brexit vote may well indicate. So perhaps government isn’t even supposed to maximize welfare. It is supposed to reflect the values of a moral individual.

But this line of thinking then leaves unanswered the difficult and obvious question of what government is supposed to do about conflicts in values. What, indeed, is government to do to balance say, public health and safety against liberty and freedom? Personal responsibility against equality? Fairness against prosperity?

They join the first three entries in the symposium:

"Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health," by Timothy Brennan

"Why this is still an important book after the 2020 elections," by E. Donald Elliott

"Cost as the Ultimate Regulatory Restraint," by Jonathan H. Adler

By Mark D. White

The Law and Political Economy (LPE) Project's "Cost-Benefit Analysis at the Crossroads" symposium, which I blogged about earlier, continues, adding two new contributions.

First, in "Equity in Regulatory Cost-Benefit Analysis," Zachary Liscow (Yale Law School) considers three ways to include distributional effects into CBA—incorporate mesaures of distributional impact in CBA estimates, "cleanse" cost and benefitm measures to account for distributional impacts, and use differential weights in CBA—and acknowledges that, at the end of the day, this is a political decision:

Which of these distributional strategies to adopt ultimately boils down to a political choice. Imposing distributional weights might be controversial politically, not to mention legally. It might be that the public finds explicit weighting quite problematic. We have no direct evidence on this, but the US tends to have strong legal and social norms of formal equality. And explicitly weighting the benefits conferred to some individuals more than others could violate those norms. On the other hand, it could be that the public would pay almost no attention to such procedures of government bureaucrats—or that they would like it if they did pay attention. Ultimately, this choice brings up deep questions of democratic theory: How, if at all, does it matter normatively what the public thinks? Or, alternatively, is this just a question of political feasibility, which depends on the difficult-to-predict reception of a new policy?

Continuing on this theme is "Let's Politicize Cost-Benefit Analysis" by Elizabeth Popp Berman (University of Michigan), author of the forthcoming book Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (a book I'm certain will be a topic of discussion on this blog upon its release in March 2022). Berman reviews the different ways the two major American political parties have used (and abused) CBA for their own ends, but instead of arguing for CBA as an idealized and "objective" evaluative standard, she sees it for what it is,

a convenient fiction that exists to coordinate action and facilitate decision-making. Our methods for estimating, say, the Value of a Statistical Life are arbitrary. They put a patina of rationality on what is essentially a moral choice. We accept them because they give us a consistent way to produce a number that roughly accords with our sense of what is reasonable—but a dozen other numbers could be similarly justified. Our actual estimates of costs and benefits are often lucky to be correct within an order of magnitude. And minor changes in assumptions—for example, about the appropriate discount rate—can lead to dramatically different assessments of the benefits of a project or decision. [Emphasis added.]

She concludes that, in practice, CBA should (continue to) serve the goals of those using it, and technical improvements to it should be made for the same reasons:

The primary goal of CBA reform should not be to produce the best, most morally defensible analysis. It should be to introduce technical changes that tilt the playing field toward outcomes we think are good. And in areas where CBA seems likely to be irredeemably biased against action, our aim should be to push for alternative forms of evaluation.

Of course, this would negate any independent evidentiary value that CBA may have, but that is Berman's point—it shouldn't be regarded in that way at all. (Again, I eagerly await the publication of her book for more thinking along these lines.)

By Mark D. White

There must be something in the water... a symposium began recently at the Notice & Comment Blog of the Yale Journal of Regulation on Michael Livermore and Richard Revesz's book Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health (Oxford, 2021).

From Christopher Walker's introduction:

Reviving Rationality is the sequel to Livermore and Revesz’s seminal 2008 book Retaking Rationality, which advances a powerful call for progressives to embrace cost-benefit analysis—or at least to take their seat at the table in regulatory policymaking that involves cost-benefit analysis. Retaking Rationality framed much of the debate on regulatory policymaking and centralized White House review of regulations during the Obama Administration.

Reviving Rationality picks up where Retaking Rationality ends, focusing on the process and quality of regulatory policymaking in the Trump Administration. Livermore and Revesz’s bottom line is, unsurprisingly, scathing of the Trump Administration’s approach, with in-depth case studies from a broad range of regulatory actions over the last four years. But Reviving Rationality is also hopeful and optimistic in how it charts the path forward for how the Biden Administration can rebuild the guardrails for economic analysis and revive rationality in regulatory policymaking.

The contributions so far include:

"Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health," by Timothy Brennan

"Why this is still an important book after the 2020 elections," by E. Donald Elliott

"Cost as the Ultimate Regulatory Restraint," by Jonathan H. Adler (previewed here at The Volokh Conspiracy)

Mark D. White

Over at the Association for Social Economics Blog, I talk about my latest edited book, Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, drawn from papers presented at the Allied Social Science Associations (ASSA) and Law and Society Association (LSA) meetings. Below is the table of contents:

Part I: Foundations

Chapter 1: "Towards a Contractarian Theory of Law," Claire Finkelstein

Chapter 2: "Environmental Ethics, Economics, and Property Law," Steven McMullen and Daniel Molling

Chapter 3: "Individual Rights, Economic Transactions and Recognition: A Legal Approach to Social Economics," Stefano Solari

Chapter 4: "Institutionalist Method and Forensic Proof," Robert M. LaJeunesse

Chapter 5: "Retributivist Justice and Dignity: Finding a Role for Economics in Criminal Justice," Mark D. White

Part II: Applications

Chapter 6: "Female Genital Mutilation and the Law: A Qualitative Case Study," Regina Gemignani and Quentin Wodon

Chapter 7: "An Unexamined Oxymoron: Trust but Verify," David George

Chapter 8: "On the Question of Court Activism and Economic Interests in 19th Century Married Women’s Property Law," Daniel MacDonald

Chapter 9: "Divergent Outcomes of Land Rights Claims of Indigenous Peoples in the United States," Wayne Edwards

Chapter 10: "Punitive (and) Pain-and-Suffering Damages in Brazil," Osny da Silva Filho

Mark D. White

Thanks to Jan Henderson's terrific blog The Health Culture, I bring you the latest issue of The Journal of Medicine and Philosophy (39/3, June 2014), which focuses on "Bioethics and Disagreement: Organ Markets, Abortion, Cognitive Enhancement, Double Effect, and Other Key Issues in Bioethics," and includes articles by James Stacey Taylor, Walter E. Block, Rob Goodman, and more. In fact, just check out Henderson's blog for the titles and abstracts--thanks, Jan!

Mark D. White

The Social Economics Blog (the blog of the Association for Social Economics, of which Jonathan B. Wight and I are currently president and president-elect, respectively) is featuring an article from the Forum for Social Economics by Nobel leaurate Vernon L. Smith on Adam Smith, plus comments from three social economics luminaries (including Jonathan himself). The Forum's publisher, Taylor & Francis, has graciously made the Smith-on-Smith article and comments available of free of charge to encourage open and wide discussion.

The abstract to Smith's paper, "Adam Smith: From Propriety and Sentiments to Property and Wealth," follows:

“Why return to Adam Smith?” Because we learn that he had fresh-for-today insights, derived from a modeling perspective that was never part of economic analysis. Smith wrote two classics: The Theory of Moral Sentiments (1759; hereafter Sentiments); and An Inquiry into the Nature and Causes of the Wealth of Nations (1776; hereafter Wealth). In Sentiments it is argued that human sociability in close-knit groups is governed by the “propriety and fitness” of conduct based on sympathy. This non-utilitarian model provides new insights into the results of 2-person experimental “trust” and other games that defied the predictions of traditional game theory in the 1980s and 90s, and offers testable new predictions. Moreover, Smith shows how the civil order of “property” grew naturally out of the rules of propriety. Property together with what I call Smith's Discovery Axiom then enabled his break-through in Wealth that defined the liberal intellectual and practical foundation of two centuries of Western economic growth.

Mark D. White

The worst thing to do when I'm trying to write is have Twitter open. Not only is it distracting (obviously), but it can be positively engrossing. So why do I do it? Because it helps me keep me up-to-date on the state of the world and what smart people are saying about important things.

In the last hour, I've seen two articles that pose questions, which I'll take a shot at answering—please feel free to offer your own answers in the comments below.

Question: "Should We Trust Economists?" asks Noah Smith in The Atlantic.

Answer: Yes, but with serious qualifications.

Smith recounts some familiar and valid criticisms of economics and economists, largely focusing on the limitations of economic models and the lack of experimental data with which to test them. He falters, though, when he dismisses alternative approaches, such as Austrian economics, and in a particularly infantile and insulting way. (I'll leave it to my friends at Coordination Problem to address this if they choose.) Except for that piece, Smith gets a lot right. I'll just mention two reservations that Smith fails to address:

a) Economists have a strong ideological and political bent, which consciously or unconsciously influences their work. This may be true of all scientists and researchers, of course, but the arbitrary and heuristic nature of many assumptions in economic models grants economists a great deal of discretion to insert their values and beliefs in their "scientific" models. So when an economists says "my model recommends stimulus" or "my model recommends austerity," keep in mind that this is not an entirely objective statement—nor can it be.

b) Somewhat related to the first point, economists are much better at saying what will happen than what should happen (and that's true even if you're very doubtful about how well they know the former!). When economists say what should happen—that is, what the government should do or what society should aim for—they're assuming a certain goal which is not an economic concept but an ethical or political one, about which economics training lends little specialized insight. So to the extent we should trust economists, we should trust them to recommend ways to get different places, leaving it to our elected representatives, acting through us, to decide where we want to go. (Or, ask a philosopher!)

So should we trust economists? Yes, if we restrict and temper that trust to focus narrowly on what economists do best—trace out the implications of various actions for key economic variables—and keep in mind the limitations of their prescriptions, based on both the limitations of economic science and the inherent ideology of economic models.

Question: "The question libertarians just can't answer," which is: "If your approach is so great, why hasn’t any country anywhere in the world ever tried it?" This comes from Michael Lind at Salon.

Answer: Many reasons, but the most important one is probably the temptation of power and the wealth it artifically creates, which libertarianism minimize. Even if we want to take a more optimistic approach, then I would cite the presumption of some people to think that a) they know what is better for other people and b) they have the right—nay, the responsibility!—to impose this better way of life on them. This is temptaton of a different sort, born of beneficence but grounded in hubris and disrespect. (I trust Bleeding Heart Libertarians will have more to add to this before long!)

Mark D. White (channeling Jonathan B. Wight)

Samuel Fleischacker has a new entry at Stanford Encyclopedia of Philosophy on "Adam Smith's Moral and Political Philosophy." (Thanks to Judicial Philosophy for the news.)