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.
Chen, Benjamin M.
"The Expressiveness of Regulatory Trade-Offs,"
Georgia Law Review: Vol. 55:
3, Article 3.
Available at: https://digitalcommons.law.uga.edu/glr/vol55/iss3/3