Moral Commitments in Cost-Benefit Analysis

Article — Volume 103, Issue 8

103 Va. L. Rev. 1809
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The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that welfare loss is through eliciting private willingness to pay. Of course, it is true that some moral commitments cannot be counted in cost-benefit analysis because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about those values. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims raise fundamental issues in legal and political theory about welfarism and its limits, and they also bear on a wide variety of issues, including protection of foreigners, of victims of mass atrocities, of children, of rape victims, of disabled people, of future generations, and of animals.

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  Volume 103 / Issue 8  

Enforcing the FCPA: International Resonance and Domestic Strategy

By Rachel Brewster
103 Va. L. Rev. 1611

Restoring the Lost Anti-Injunction Act

By Kristin E. Hickman & Gerald Kerska
103 Va. L. Rev. 1683

Are Speech Rights for Speakers?

By Leslie Kendrick
103 Va. L. Rev. 1767

Moral Commitments in Cost-Benefit Analysis

By Eric A. Posner and Cass R. Sunstein
103 Va. L. Rev. 1809