The Expressiveness of Regulatory Trade-Offs

Abstract

Trade-offs between a sacred value — like human life — against a secular one — like money — are described as taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate it. Yet, the last decades have witnessed the rise of the cost-benefit state. Most of the 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 attention to costs and benefits as an element of rational regulation. The cost-benefit revolution is a technocratic coup, however, if citizens see regulatory trade-offs as a symbolic denial of the values they hold dear.

This Article presents three experiments evaluating responses to a cost-benefit justification for regulatory policy. Across a range of conditions, the studies uncovered no evidence of diffuse hostility towards a consequentialist approach to saving lives. The last of these studies found, however, that telling subjects that they were expected to vindicate the sanctity of life resulted in them doing so. This third experiment demonstrates the malleability of norms and expectation surrounding regulatory trade-offs.

Taken together, the data suggest that people do not normally perceive regulatory trade-offs as symbolic affronts that call for an expressive defense of the value of life. While these results do not imply the normative desirability of the cost-benefit paradigm, they 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 not, regulation that pre-empts the common law of torts might help temper the tangible costs of symbolism.