Benjamin Chen on The Expressiveness of Regulatory Trade-Offs (Georgia Law Review)

"The Expressiveness of Regulatory Trade-Offs"
Benjamin Chen

Georgia Law Review, Volume 55, Issue 3

Published online on 4 May 2021

Abstract: Trade-offs between a sacred value—like human life—against a secular one—like money—are considered taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate them. Yet the last decades in the United States have witnessed the rise of the cost-benefit state. Most major rules promulgated today undergo a regulatory impact analysis, and agencies monetize risks as grave as those to human life and values as abstract as human dignity. Prominent academics and lawmakers advocate the weighing of costs and benefits as an element of rational regulation. The cost-benefit revolution is a technocratic coup, however, if citizens view regulatory trade-offs as a symbolic denial of the values they hold dear.

     This Article details three experiments that evaluate responses to a cost-benefit justification for regulatory policy. Across a range of conditions, the experiments revealed no evidence of diffuse hostility toward a consequentialist approach to saving lives. The final experiment found, however, that informing participants that they were expected to vindicate the sanctity of life resulted in them doing so. This result demonstrates the malleability of norms and expectations surrounding regulatory trade-offs.

       Taken together, the experiments suggest that people normally do not perceive regulatory trade-offs as symbolic affronts that call for an expressive defense of the value of life. While these results do not conclusively establish the normative desirability of the cost-benefit paradigm, they do suggest the absence of any broad opposition to consequentialism in public life. These findings have implications for the democratic legitimacy of the administrative state and its institutional design. They also bear on the relationship between tort and regulation as mechanisms for risk control. Insofar as tort judgments are expressive and regulatory decisions are not, regulation that preempts the common law of torts might help temper the tangible costs of symbolism.