Rethinking cost-benefit analysis

Yale Law Journal

Volumn 109, Issue 2, 1999, Pages 165-246

  Adler, Matthew D ^a   Posner, Eric A ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0013065921     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797489     Document Type: Article

References (315)

1. See sources cited infra notes 10-18.
2. See Exec. Order No. 12,866, 3 C.F.R. 638, 639 (1993), reprinted in 5 U.S.C. § 601 (1994); Exec. Order No. 12,291, 3 C.F.R. 127 (1981), revoked by Exec. Order No. 12,866. Clinton's order qualified Reagan's order a bit but essentially endorsed the use of CBA.
3. See Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 6-7 (1995).
4. See Edward R. Morrison, Judicial Review of Discount Rates Used in Regulatory Cost-Benefit Analysis, 65 U. CHI. L. REV. 1333, 1333 (1998) (citing statutes requiring cost-benefit analyses).
5. See Richard D. Morgenstern & Marc K. Landy, Economic Analysis: Benefits, Costs, Implications, in ECONOMIC ANALYSES AT EPA: ASSESSING REGULATORY IMPACT 455, 461-62 (Richard D. Morgenstern ed., 1997) [hereinafter ECONOMIC ANALYSES AT EPA].
6. See AJIT K. DASGUPTA & D.W. PEARCE, COST-BENEFIT ANALYSIS: THEORY AND PRACTICE 12-13 (1972) (discussing the Flood Control Act of 1936, ch. 688, § 1, 49 Stat. 1570, 1570 (codified as amended at 33 U.S.C. § 701a (1994)), which held that projects should be approved if "the benefits to whomsoever they may accrue are in excess of the estimated costs") (emphasis added).
7. For a brief history, see THEODORE M. PORTER, TRUST IN NUMBERS: THE PURSUIT OF OBJECTIVITY IN SCIENCE AND PUBLIC LIFE 148-89 (1995). See also David Pearce, Cost-Benefit Analysis and Environmental Policy, 14 OXFORD REV. ECON. POL'Y 84, 88-91 (1998) (discussing the history of CBA).
8. For a brief history, see THEODORE M. PORTER, TRUST IN NUMBERS: THE PURSUIT OF OBJECTIVITY IN SCIENCE AND PUBLIC LIFE 148-89 (1995). See also David Pearce, Cost-Benefit Analysis and Environmental Policy, 14 OXFORD REV. ECON. POL'Y 84, 88-91 (1998) (discussing the history of CBA).
9. See Robert H. Nelson, The Economics Profession and the Making of Public Policy, 25 J. ECON. LITERATURE 49, 52-54 (1987).
10. See id.
11. See DASGUPTA & PEARCE, supra note 5, at 12-13. In addition, private companies had independently developed techniques for evaluating their investment decisions, and these techniques could be transferred to the public sector. See id. at 14.
12. See I.M.D. LITTLE, A CRITIQUE OF WELFARE ECONOMICS 84 (2d ed. 1957). One could alternatively date modern welfare economics - or at least the Anglo-American version - to Lionel Robbins's attacks in the 1930s on the older "material welfare school," which focused on the material well-being of individuals (as opposed to their utility, in the modern sense), and held that the material well-being of individuals is comparable. See Robert Cooter & Peter Rappoport, Were the Ordinalists Wrong About Welfare Economics?, 22 J. ECON. LITERATURE 507, 520-21 (1984).
13. See I.M.D. LITTLE, A CRITIQUE OF WELFARE ECONOMICS 84 (2d ed. 1957). One could alternatively date modern welfare economics - or at least the Anglo-American version - to Lionel Robbins's attacks in the 1930s on the older "material welfare school," which focused on the material well-being of individuals (as opposed to their utility, in the modern sense), and held that the material well-being of individuals is comparable. See Robert Cooter & Peter Rappoport, Were the Ordinalists Wrong About Welfare Economics?, 22 J. ECON. LITERATURE 507, 520-21 (1984).
14. See, e.g., J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Harold Hotelling, The General Welfare in Relation to Problems of Taxation and of Railway and Utility Rates, 6 ECONOMETRICA 242 (1938); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). A useful discussion of these tests can be found in LITTLE, supra note 10, at 88-96.
15. See, e.g., J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Harold Hotelling, The General Welfare in Relation to Problems of Taxation and of Railway and Utility Rates, 6 ECONOMETRICA 242 (1938); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). A useful discussion of these tests can be found in LITTLE, supra note 10, at 88-96.
16. See, e.g., J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Harold Hotelling, The General Welfare in Relation to Problems of Taxation and of Railway and Utility Rates, 6 ECONOMETRICA 242 (1938); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). A useful discussion of these tests can be found in LITTLE, supra note 10, at 88-96.
17. See, e.g., J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); Harold Hotelling, The General Welfare in Relation to Problems of Taxation and of Railway and Utility Rates, 6 ECONOMETRICA 242 (1938); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939). A useful discussion of these tests can be found in LITTLE, supra note 10, at 88-96.
18. See J. DE V. GRAAFF, THEORETICAL WELFARE ECONOMICS 169-71 (1957).
19. See, e.g., John S. Chipman & James C. Moore, The New Welfare Economics 1939-1974, 19 INT'L ECON. REV. 547, 548 (1978) (calling modern welfare economics a "failure"). This view is briefly discussed in DASGUPTA & PEARCE, supra note 5, at 15.
20. See, e.g., John S. Chipman & James C. Moore, The New Welfare Economics 1939-1974, 19 INT'L ECON. REV. 547, 548 (1978) (calling modern welfare economics a "failure"). This view is briefly discussed in DASGUPTA & PEARCE, supra note 5, at 15.
21. See D.W. PEARCE & C.A. NASH, THE SOCIAL APPRAISAL OF PROJECTS: A TEXT ON COST-BENEFIT ANALYSIS 3-4 (1981); R. Shep Melnick, The Politics of Benefit-Cost Analysis, in VALUING HEALTH RISKS, COSTS, AND BENEFITS FOR ENVIRONMENTAL DECISION MAKING 23 (P. Brett Hammond & Rob Coppock eds., 1990) (attributing hostility toward CBA to populist politics).
22. See D.W. PEARCE & C.A. NASH, THE SOCIAL APPRAISAL OF PROJECTS: A TEXT ON COST-BENEFIT ANALYSIS 3-4 (1981); R. Shep Melnick, The Politics of Benefit-Cost Analysis, in VALUING HEALTH RISKS, COSTS, AND BENEFITS FOR ENVIRONMENTAL DECISION MAKING 23 (P. Brett Hammond & Rob Coppock eds., 1990) (attributing hostility toward CBA to populist politics).
23. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
24. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
25. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
26. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
27. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
28. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
29. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
30. A large legal literature addresses the related question whether legal rules in general, and the common law in particular, do or should reflect efficiency concerns. See, e.g., Symposium on Efficiency as a Legal Concern, 8 HOFSTRA L. REV. 485 (1980). This literature is of limited usefulness for our purposes. It does not address CBA, for the most part, and much of it is concerned about the role of common-law judges. Otherwise it resembles earlier discussions in the economics literature. More recent treatments in the legal literature include MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 114-50 (1987); David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545 (1997); Lewis A. Kornhauser, Wealth Maximization, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998); and Richard S. Markovits, Duncan's Do Nots: Cost-Benefit Analysis and the Determination of Legal Entitlements, 36 STAN. L. REV. 1169 (1984). There is also a burgeoning legal literature on "incommensurability," which, among other things, is typically critical of CBA. See, e.g., Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MlCH. L. REV. 779 (1994); infra note 192 (responding to the incommensurability critique); see also Laurence H. Tribe, Policy Science: Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66 (1972) (criticizing "policy science," including CBA).
31. See, e.g., David Copp, The Justice and Rationale of Cost-Benefit Analysis, 23 THEORY & DECISION 65 (1987).
32. See, e.g., Charles Blackorby & David Donaldson, A Review Article: The Case Against the Use of the Sum of Compensating Variations in Cost-Benefit Analysis, 23 CANADIAN J. ECON. 471 (1990).
33. For the sake of completeness, we should note that there is a vein of critical scholarship about CBA within the political science and policy-analysis literature. See, e.g., JAMES T. CAMPEN, BENEFIT, COST, AND BEYOND: THE POLITICAL ECONOMY OF BENEFIT-COST ANALYSIS (1986); Steven Kelman, Cost-Benefit Analysis: An Ethical Critique, REGULATION, Jan.-Feb. 1981, at 33; Lester Lave, Benefit-Cost Analysis: Do the Benefits Exceed the Costs?, in RISKS, COSTS, AND LIVES SAVED: GETTING BETTER RESULTS FROM REGULATION 104 (Robert W. Hahn ed., 1996) [hereinafter RISKS, COSTS, AND LIVES SAVED]. This literature largely overlaps in its critical thrust with the philosophical, economic, or legal scholarship already mentioned.
34. For the sake of completeness, we should note that there is a vein of critical scholarship about CBA within the political science and policy-analysis literature. See, e.g., JAMES T. CAMPEN, BENEFIT, COST, AND BEYOND: THE POLITICAL ECONOMY OF BENEFIT-COST ANALYSIS (1986); Steven Kelman, Cost-Benefit Analysis: An Ethical Critique, REGULATION, Jan.-Feb. 1981, at 33; Lester Lave, Benefit-Cost Analysis: Do the Benefits Exceed the Costs?, in RISKS, COSTS, AND LIVES SAVED: GETTING BETTER RESULTS FROM REGULATION 104 (Robert W. Hahn ed., 1996) [hereinafter RISKS, COSTS, AND LIVES SAVED]. This literature largely overlaps in its critical thrust with the philosophical, economic, or legal scholarship already mentioned.
35. For the sake of completeness, we should note that there is a vein of critical scholarship about CBA within the political science and policy-analysis literature. See, e.g., JAMES T. CAMPEN, BENEFIT, COST, AND BEYOND: THE POLITICAL ECONOMY OF BENEFIT-COST ANALYSIS (1986); Steven Kelman, Cost-Benefit Analysis: An Ethical Critique, REGULATION, Jan.-Feb. 1981, at 33; Lester Lave, Benefit-Cost Analysis: Do the Benefits Exceed the Costs?, in RISKS, COSTS, AND LIVES SAVED: GETTING BETTER RESULTS FROM REGULATION 104 (Robert W. Hahn ed., 1996) [hereinafter RISKS, COSTS, AND LIVES SAVED]. This literature largely overlaps in its critical thrust with the philosophical, economic, or legal scholarship already mentioned.
36. This seems to have been the suspicion of the court in Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1222-23 (5th Cir. 1991), which criticized EPA for using inconsistent valuations of life across regulations.
37. See 42 U.S.C. § 300g-1 (1994).
38. See Ronnie Levin, Lead in Drinking Water, in ECONOMIC ANALYSES AT EPA, supra note 4, at 205, 216-22.
39. See id. at 224-25.
40. See id. at 225. For the regulation, see Drinking Water Regulations, 56 Fed. Reg. 26,460 (1991) (codified at 40 C.F.R. pts. 141-142).
41. See Levin, supra note 21, at 228-30.
42. For the original law, see Act of June 25, 1947, ch. 125, 61 Stat. 163 (codified as amended at 7 U.S.C. §§ 136-136y (1994)).
43. See Louis P. True, Jr., Agricultural Pesticides and Worker Protection, in ECONOMIC ANALYSES AT EPA, supra note 4, at 303, 314-15.
44. See id. at 315-16.
45. See id. at 321-22.
46. Id. at 322 tbl.2.
47. See id. at 323; Worker Protection Standard, 57 Fed. Reg. 38,102, 38,105 (1992) (codified at 40 C.F.R. pts. 156, 170).
48. See True, supra note 26, at 325.
49. Id. at 328.
50. See id. at 324.
51. See Eloise Trabka Castillo et al., Great Lakes Water Quality Guidance, in ECONOMIC ANALYSES AT EPA, supra note 4, at 419, 438-39.
52. See Leland Deck, Visibility at the Grand Canyon and the Navajo Generating Station, in ECONOMIC ANALYSES AT EPA, supra note 4, at 267.
53. See, e.g., Morgenstern & Landy, supra note 4, at 462.
54. See Albert L. Nichols, Lead in Gasoline, in ECONOMIC ANALYSES AT EPA, supra note 4, at 49, 78 ("[A] week of lead is like a millennium of radionucleotides . . . .").
55. See Exec. Order No. 12,866, 3 C.F.R. 638, 639 (1993), reprinted in 5 U.S.C. § 601 (1994); Exec. Order No. 12,291, 3 C.F.R. 127 (1981), revoked by Exec. Order No. 12,866. For a more detailed account, see THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY 271-79 (1991).
56. See Exec. Order No. 12,866, 3 C.F.R. 638, 639 (1993), reprinted in 5 U.S.C. § 601 (1994); Exec. Order No. 12,291, 3 C.F.R. 127 (1981), revoked by Exec. Order No. 12,866. For a more detailed account, see THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY 271-79 (1991).
57. This was confirmed strikingly in the recent case American Trucking Ass'ns v. United States EPA, 175 F.3d 1027 (D.C. Cir. 1999), in which the court struck down rules governing the emission of particulate matter and ozone. The court held that EPA's construction of the Clean Air Act violated the nondelegation doctrine because it did not provide an "intelligible principle" for applying the statute. Id. at 1034. The opinion discussed a number of alternatives to EPA's unacceptable standard, and noted in passing that CBA is not available because of prior decisions construing the Clean Air Act to prohibit EPA from taking account of costs. The implication is that CBA could be the intelligible principle EPA was looking for, were it not for the fact that prior decisions had held that it was foreclosed by the statute.
58. See Robert W. Hahn, Regulatory Reform: What Do the Government's Numbers Tell Us?, in RISKS, COSTS, AND LIVES SAVED, supra note 18, at 208.
59. See, e.g., John F. Morall III, A Review of the Record, REGULATION, Nov.-Dec. 1986, at 25.
60. See Lisa Heinzerling, Regulatory Costs of Mythic Proportions, 107 YALE L.J. 1981, 1984-85 (1998); see also Morrison, supra note 3, 1336-37 (discussing inconsistency in dicounting across agencies); Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 COLUM. L. REV. 941 (1999) (analyzing discounting in cost-benefit analyses of environmental regulations).
61. See Lisa Heinzerling, Regulatory Costs of Mythic Proportions, 107 YALE L.J. 1981, 1984-85 (1998); see also Morrison, supra note 3, 1336-37 (discussing inconsistency in dicounting across agencies); Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 COLUM. L. REV. 941 (1999) (analyzing discounting in cost-benefit analyses of environmental regulations).
62. See Lisa Heinzerling, Regulatory Costs of Mythic Proportions, 107 YALE L.J. 1981, 1984-85 (1998); see also Morrison, supra note 3, 1336-37 (discussing inconsistency in dicounting across agencies); Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 COLUM. L. REV. 941 (1999) (analyzing discounting in cost-benefit analyses of environmental regulations).
63. See GENERAL ACCOUNTING OFFICE, GAO/RCED-98-142, REGULATORY REFORM: AGENCIES COULD IMPROVE DEVELOPMENT, DOCUMENTING, AND CLARITY OF REGULATORY ECONOMIC ANALYSIS (1998).
64. Thomas McGarity comes to similar conclusions from his study of regulations issued by EPA, and also by the Department of Agriculture, the Department of Transportation, and the Occupational Safety and Health Administration. See MCGARITY, supra note 38, at 174-75.
65. For examples of textbook treatments, see ROBIN BOADWAY & NEIL BRUCE, WELFARE ECONOMICS 26-27, 292-328 (1984); DASGUPTA & PEARCE, supra note 5; and E.J. MISHAN, COST-BENEFIT ANALYSIS (1976).
66. For examples of textbook treatments, see ROBIN BOADWAY & NEIL BRUCE, WELFARE ECONOMICS 26-27, 292-328 (1984); DASGUPTA & PEARCE, supra note 5; and E.J. MISHAN, COST-BENEFIT ANALYSIS (1976).
67. For examples of textbook treatments, see ROBIN BOADWAY & NEIL BRUCE, WELFARE ECONOMICS 26-27, 292-328 (1984); DASGUPTA & PEARCE, supra note 5; and E.J. MISHAN, COST-BENEFIT ANALYSIS (1976).
68. See C. Edwin Baker, The Ideology of the Economic Analysis of Law, 5 PHIL. & PUB. AFF. 3, 47-48 (1975) (arguing that proposals based on welfare economics promote capitalist ideology and the status quo distribution of wealth rather than welfare or freedom).
69. See Tibor de Scitovsky, A Note on Welfare Propositions in Economics, 9 REV. ECON. STUD. 77 (1941). Our example is taken from YEW-KWANG NG, WELFARE ECONOMICS: INTRODUCTION AND DEVELOPMENT OF BASIC CONCEPTS 59-66 (1980). See also BOADWAY & BRUCE, supra note 45, at 96-101.
70. See Tibor de Scitovsky, A Note on Welfare Propositions in Economics, 9 REV. ECON. STUD. 77 (1941). Our example is taken from YEW-KWANG NG, WELFARE ECONOMICS: INTRODUCTION AND DEVELOPMENT OF BASIC CONCEPTS 59-66 (1980). See also BOADWAY & BRUCE, supra note 45, at 96-101.
71. See Tibor de Scitovsky, A Note on Welfare Propositions in Economics, 9 REV. ECON. STUD. 77 (1941). Our example is taken from YEW-KWANG NG, WELFARE ECONOMICS: INTRODUCTION AND DEVELOPMENT OF BASIC CONCEPTS 59-66 (1980). See also BOADWAY & BRUCE, supra note 45, at 96-101.
72. Indeed, UPCs may cross multiple times under plausible assumptions about preferences. See LITTLE, supra note 10, at 106-08.
73. This is a common view. See, e.g., MISHAN, supra note 45; A. Harberger, Three Basic Postulates for Applied Welfare Economics: An Interpretive Essay, 9 J. ECON. LITERATURE 785, 785-86 (1971); Kaldor, supra note 11, at 549-52; supra text accompanying notes 7-11.
74. This is a common view. See, e.g., MISHAN, supra note 45; A. Harberger, Three Basic Postulates for Applied Welfare Economics: An Interpretive Essay, 9 J. ECON. LITERATURE 785, 785-86 (1971); Kaldor, supra note 11, at 549-52; supra text accompanying notes 7-11.
75. This is a common view. See, e.g., MISHAN, supra note 45; A. Harberger, Three Basic Postulates for Applied Welfare Economics: An Interpretive Essay, 9 J. ECON. LITERATURE 785, 785-86 (1971); Kaldor, supra note 11, at 549-52; supra text accompanying notes 7-11.
76. This is a common view. See, e.g., MISHAN, supra note 45; A. Harberger, Three Basic Postulates for Applied Welfare Economics: An Interpretive Essay, 9 J. ECON. LITERATURE 785, 785-86 (1971); Kaldor, supra note 11, at 549-52; supra text accompanying notes 7-11.
77. See Louis Kaplow & Steven Shavell, Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income, 23 J. LEGAL STUD. 667, 667 (1994).
78. See Neil Bruce & Richard G. Harris, Cost-Benefit Criteria and the Compensation Principle in Evaluating Small Projects, 90 J. POL. ECON. 755 (1982).
79. For a clear statement of this point, see Blackorby & Donaldson, supra note 17, at 490-91. Some economists simply argue that a project should not be approved when approval would lead to a Scitovsky paradox. See, e.g., LITTLE, supra note 10, at 112 (requiring a distributive criterion); Scitovsky, supra note 52, at 86-87. This approach does not remove all difficulties: It can produce intransitivities or indeterminacies. See BOADWAY & BRUCE, supra note 45, at 99-100.
80. For a clear statement of this point, see Blackorby & Donaldson, supra note 17, at 490-91. Some economists simply argue that a project should not be approved when approval would lead to a Scitovsky paradox. See, e.g., LITTLE, supra note 10, at 112 (requiring a distributive criterion); Scitovsky, supra note 52, at 86-87. This approach does not remove all difficulties: It can produce intransitivities or indeterminacies. See BOADWAY & BRUCE, supra note 45, at 99-100.
81. For a clear statement of this point, see Blackorby & Donaldson, supra note 17, at 490-91. Some economists simply argue that a project should not be approved when approval would lead to a Scitovsky paradox. See, e.g., LITTLE, supra note 10, at 112 (requiring a distributive criterion); Scitovsky, supra note 52, at 86-87. This approach does not remove all difficulties: It can produce intransitivities or indeterminacies. See BOADWAY & BRUCE, supra note 45, at 99-100.
82. For a clear statement of this point, see Blackorby & Donaldson, supra note 17, at 490-91. Some economists simply argue that a project should not be approved when approval would lead to a Scitovsky paradox. See, e.g., LITTLE, supra note 10, at 112 (requiring a distributive criterion); Scitovsky, supra note 52, at 86-87. This approach does not remove all difficulties: It can produce intransitivities or indeterminacies. See BOADWAY & BRUCE, supra note 45, at 99-100.
83. For the sake of brevity, we do not address several other objections to CBA that have been influential in the literature. These objections include criticisms of CBA's treatment of (1) risk, (2) the discounting of future benefits, and (3) valuation of life and other hard-to-measure goods. For discussions see, for example, W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK (1992) (valuation of life); Richard Layard & Stephen Glaister, Introduction to COST-BENEFIT ANALYSIS 1 (Richard Layard & Stephen Glaister eds., 1994) (discounting); and Herman B. Leonard & Richard J. Zeckhauser, Cost-Benefit Analysis Applied to Risks: Its Philosophy and Legitimacy, in VALUES AT RISK 31 (Douglas MacLean ed., 1986) (risk).
84. For the sake of brevity, we do not address several other objections to CBA that have been influential in the literature. These objections include criticisms of CBA's treatment of (1) risk, (2) the discounting of future benefits, and (3) valuation of life and other hard-to-measure goods. For discussions see, for example, W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK (1992) (valuation of life); Richard Layard & Stephen Glaister, Introduction to COST-BENEFIT ANALYSIS 1 (Richard Layard & Stephen Glaister eds., 1994) (discounting); and Herman B. Leonard & Richard J. Zeckhauser, Cost-Benefit Analysis Applied to Risks: Its Philosophy and Legitimacy, in VALUES AT RISK 31 (Douglas MacLean ed., 1986) (risk).
85. For the sake of brevity, we do not address several other objections to CBA that have been influential in the literature. These objections include criticisms of CBA's treatment of (1) risk, (2) the discounting of future benefits, and (3) valuation of life and other hard-to-measure goods. For discussions see, for example, W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK (1992) (valuation of life); Richard Layard & Stephen Glaister, Introduction to COST-BENEFIT ANALYSIS 1 (Richard Layard & Stephen Glaister eds., 1994) (discounting); and Herman B. Leonard & Richard J. Zeckhauser, Cost-Benefit Analysis Applied to Risks: Its Philosophy and Legitimacy, in VALUES AT RISK 31 (Douglas MacLean ed., 1986) (risk).
86. Notable exceptions include Sen and Harsanyi. See AMARTYA SEN, CHOICE, WELFARE AND MEASUREMENT 84-106 (1982); John C. Harsanyi, Game and Decision Theoretic Models in Ethics, in 1 HANDBOOK OF GAME THEORY WITH ECONOMIC APPLICATIONS 669, 703-04 (Robert J. Aumann & Sergiu Hart eds., 1992). Although both scholars appear to support CBA, at least under certain conditions, neither of them has attempted to reconcile his views with the traditional approach to CBA.
87. Notable exceptions include Sen and Harsanyi. See AMARTYA SEN, CHOICE, WELFARE AND MEASUREMENT 84-106 (1982); John C. Harsanyi, Game and Decision Theoretic Models in Ethics, in 1 HANDBOOK OF GAME THEORY WITH ECONOMIC APPLICATIONS 669, 703-04 (Robert J. Aumann & Sergiu Hart eds., 1992). Although both scholars appear to support CBA, at least under certain conditions, neither of them has attempted to reconcile his views with the traditional approach to CBA.
88. This view is implicit in Kaldor, supra note 11, which argues that economists should not concern themselves with the distributive consequences of projects, since distribution is essentially a political issue. The implication is that if an "efficient" policy produces Losers, the government can compensate them if the outcome is distributively objectionable.
89. See A. Mitchell Polinsky, Probabilistic Compensation Criteria, 86 Q.J. ECON. 407 (1972) (formalizing this idea, which goes back to Hicks, supra note 11).
90. See A. Mitchell Polinsky, Probabilistic Compensation Criteria, 86 Q.J. ECON. 407 (1972) (formalizing this idea, which goes back to Hicks, supra note 11).
91. See MISHAN, supra note 45, at 393.
92. One path around this objection might be to conceptualize individuals as choosing ex ante between CBA and other procedures under a veil of ignorance - without knowing what their wealth, preferences, and welfare-affecting characteristics will turn out to be. But it is hardly clear that the rational choice, ex ante, under broad uncertainty, is to choose the world where government uses CBA. Harsanyi has argued famously that the rational choice, under such circumstances, is to choose the world where overall well-being is higher. See Harsanyi, supra note 59, at 694-96. Insofar as CBA and overall well-being diverge - as we argue they do - the introduction of uncertainty into an ex ante perspective does not secure the Pareto defense of CBA.
93. See LITTLE, supra note 10, at 120-28.
94. See, e.g., MISHAN, supra note 45, at 382-402; Harberger, supra note 54, at 785. A textbook discussion can be found in DASGUPTA & PEARCE, supra note 5, at 57.
95. We avoid two complications. First, the Kaldor-Hicks standard actually refers loosely to two separate standards, the Kaldor standard and the Hicks standard. The choice between Kaldor and Hicks parallels the choice between CV and EV, and introduces further indeterminacy. Second, we ignore the debate about whether the hypothetical transfer should be considered costless or should be understood to require the costly redistributive instruments at the government's disposal - a debate that, in our view, is idle.
96. See, e.g., Blackorby & Donaldson, supra note 17, at 472.
97. See Robin W. Boadway, The Welfare Foundations of Cost-Benefit Analysis, 84 ECON. J. 926 (1974).
98. We are not persuaded by the argument that Kaldor-Hicks is justified on the basis of hypothetical consent. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980). But see, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509 (1980) (criticizing Posner). Nor are we persuaded that it is consistent with people's moral intuitions. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979). But see, e.g., Ronald M. Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 191 (1980) (criticizing Posner). Other contributions to this debate can be found in Symposium on Efficiency as a Legal Concern, supra note 15.
99. We are not persuaded by the argument that Kaldor-Hicks is justified on the basis of hypothetical consent. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980). But see, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509 (1980) (criticizing Posner). Nor are we persuaded that it is consistent with people's moral intuitions. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979). But see, e.g., Ronald M. Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 191 (1980) (criticizing Posner). Other contributions to this debate can be found in Symposium on Efficiency as a Legal Concern, supra note 15.
100. We are not persuaded by the argument that Kaldor-Hicks is justified on the basis of hypothetical consent. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980). But see, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509 (1980) (criticizing Posner). Nor are we persuaded that it is consistent with people's moral intuitions. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979). But see, e.g., Ronald M. Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 191 (1980) (criticizing Posner). Other contributions to this debate can be found in Symposium on Efficiency as a Legal Concern, supra note 15.
101. We are not persuaded by the argument that Kaldor-Hicks is justified on the basis of hypothetical consent. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980). But see, e.g., Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509 (1980) (criticizing Posner). Nor are we persuaded that it is consistent with people's moral intuitions. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979). But see, e.g., Ronald M. Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 191 (1980) (criticizing Posner). Other contributions to this debate can be found in Symposium on Efficiency as a Legal Concern, supra note 15.
102. See, e.g., & NASH, supra note 14, at 26-27. Pearce and Nash do not themselves accept this approach. See id.
103. See L.W. SUMNER, WELFARE, HAPPINESS, AND ETHICS 84-85 (1996).
104. See Cooter & Rappoport, supra note 10, at 510-12.
105. See DASGUPTA & PEARCE, supra note 5, at 25.
106. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (1951).
107. Arrow's impossibility result can be avoided by assuming the possibility of interpersonal comparability. See ANANDARUP RAY, COST-BENEFIT ANALYSIS: ISSUES AND METHODOLOGIES 33 (1984).
108. See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 43 ECON. J. 635 (1938). For a discussion and criticism of Robbins's position, see LITTLE, supra note 10, at 55-66. A recent article states that "most economists think interpersonal welfare comparisons are nonsense." Robert A. Pollak, Welfare Comparisons and Situation Comparisons, 50 J. ECONOMETRICS 31, 31 (1991). However, Pollak, who is himself agnostic on the matter, see id. at 39, does not supply citations, and we have not found recently published work that makes such a strong claim.
109. See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 43 ECON. J. 635 (1938). For a discussion and criticism of Robbins's position, see LITTLE, supra note 10, at 55-66. A recent article states that "most economists think interpersonal welfare comparisons are nonsense." Robert A. Pollak, Welfare Comparisons and Situation Comparisons, 50 J. ECONOMETRICS 31, 31 (1991). However, Pollak, who is himself agnostic on the matter, see id. at 39, does not supply citations, and we have not found recently published work that makes such a strong claim.
110. See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 43 ECON. J. 635 (1938). For a discussion and criticism of Robbins's position, see LITTLE, supra note 10, at 55-66. A recent article states that "most economists think interpersonal welfare comparisons are nonsense." Robert A. Pollak, Welfare Comparisons and Situation Comparisons, 50 J. ECONOMETRICS 31, 31 (1991). However, Pollak, who is himself agnostic on the matter, see id. at 39, does not supply citations, and we have not found recently published work that makes such a strong claim.
111. See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 43 ECON. J. 635 (1938). For a discussion and criticism of Robbins's position, see LITTLE, supra note 10, at 55-66. A recent article states that "most economists think interpersonal welfare comparisons are nonsense." Robert A. Pollak, Welfare Comparisons and Situation Comparisons, 50 J. ECONOMETRICS 31, 31 (1991). However, Pollak, who is himself agnostic on the matter, see id. at 39, does not supply citations, and we have not found recently published work that makes such a strong claim.
112. See Pollak, supra note 76, at 37-43, for a discussion of the difficulties.
113. See infra Subsection V.A.1 (criticizing direct implementation of the criterion of overall well-being).
114. See PEARCE & NASH, supra note 14, at 27. A powerful critique can be found in LITTLE, supra note 10, at 120-27.
115. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
116. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
117. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
118. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
119. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
120. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
121. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
122. Most textbooks on CBA recommend distributive weighting and discuss various methods. See, e.g., BOADWAY & BRUCE, supra note 45, at 271-91; PEARCE & NASH, supra note 14, at 31-37; RICHARD O. ZERBE, JR. & DWIGHT D. DIVELY, BENEFIT-COST ANALYSIS IN THEORY AND PRACTICE 236-53 (1994). However, they do not show that the weighting systems are practical, and indeed many textbooks express doubts about their practicality. See, e.g., MISHAN, supra note 45; RAY, supra note 75, at 22-31; ROBERT SUGDEN & ALAN WILLIAMS, THE PRINCIPLES OF PRACTICAL COST-BENEFIT ANALYSIS 206-07 (1978). So the literature leaves one in doubt about what a proper CBA entails. As mentioned in the text, agencies do not appear to use explicit distributional weightings of the sort recommended by textbooks, although they may engage in such weightings surreptitiously or informally. See supra text accompanying note 33 (discussing pesticide regulation). Some scholars argue that the economist should not use distributive weights, but should disaggregate the costs and benefits of a project for particular groups, and allow the policy maker to decide whether its distributional consequences are acceptable. See, e.g., A.R. Prest & R. Turvey, Cost-Benefit Analysis: A Survey, 75 ECON. J. 683, 701-02 (1965).
123. See Alan Williams, Cost-Benefit Analysis: Bastard Science? and/or Insidious Poison in the Body Politick?, 1 J. PUB. ECON. 199 (1972). Some scholars have proposed alternatives. See, e.g., G. Munda et al., Information Precision andMulticriteria Evaluation Methods, in EFFICIENCY IN THE PUBLIC SECTOR: THE THEORY AND PRACTICE OF COST-BENEFIT ANALYSIS 43 (Alan Williams & Emilio Giardina eds., 1993); V. Kerry Smith, A Conceptual Overview of the Foundations of Benefit-Cost Analysis, in BENEFITS ASSESSMENT: THE STATE OF THE ART 13, 27-31 (Judith D. Bentkover et al. eds., 1986). We discuss these and other alternatives in Part V.
124. See Alan Williams, Cost-Benefit Analysis: Bastard Science? and/or Insidious Poison in the Body Politick?, 1 J. PUB. ECON. 199 (1972). Some scholars have proposed alternatives. See, e.g., G. Munda et al., Information Precision andMulticriteria Evaluation Methods, in EFFICIENCY IN THE PUBLIC SECTOR: THE THEORY AND PRACTICE OF COST-BENEFIT ANALYSIS 43 (Alan Williams & Emilio Giardina eds., 1993); V. Kerry Smith, A Conceptual Overview of the Foundations of Benefit-Cost Analysis, in BENEFITS ASSESSMENT: THE STATE OF THE ART 13, 27-31 (Judith D. Bentkover et al. eds., 1986). We discuss these and other alternatives in Part V.
125. See Alan Williams, Cost-Benefit Analysis: Bastard Science? and/or Insidious Poison in the Body Politick?, 1 J. PUB. ECON. 199 (1972). Some scholars have proposed alternatives. See, e.g., G. Munda et al., Information Precision andMulticriteria Evaluation Methods, in EFFICIENCY IN THE PUBLIC SECTOR: THE THEORY AND PRACTICE OF COST-BENEFIT ANALYSIS 43 (Alan Williams & Emilio Giardina eds., 1993); V. Kerry Smith, A Conceptual Overview of the Foundations of Benefit-Cost Analysis, in BENEFITS ASSESSMENT: THE STATE OF THE ART 13, 27-31 (Judith D. Bentkover et al. eds., 1986). We discuss these and other alternatives in Part V.
126. See supra text accompanying note 50.
127. See supra Subsections III.B.1, III.B.2.
128. See supra note 66 and accompanying text.
129. Actually, this is just a first cut at our position. More precisely, CVs should be defined either as welfare equivalents or as WTP/WTA to the extent the latter measure tracks welfare equivalents with sufficient accuracy and is cheaper, more transparent, more reliably implemented, and so forth. See infra text accompanying note 154.
130. For overviews of the philosophical literature on well-being, see JAMES GRIFFIN, WELLBEING 7-72 (1986); DEREK PARFIT, REASONS AND PERSONS 493-502 (1984 );
131. For overviews of the philosophical literature on well-being, see JAMES GRIFFIN, WELLBEING 7-72 (1986); DEREK PARFIT, REASONS AND PERSONS 493-502 (1984 );
132. and SUMNER, supra note 71, at 45-137. Sometimes the trichotomy of welfare theories is drawn a bit differently from the way we have just drawn it: as a trichotomy of desire-based theories, objective-list theories, and mental state theories, with the last category in turn given two subcategories, (1) hedonic theories and (2) mental state theories (such as Sidgwick's) that define welfare in terms of desirable mental states rather than positive feeling tones. See SUMNER, supra note 71, at 91 (discussing Sidgwick's view). Since we are trying to draw a sharp distinction between welfare theories that rest upon desires and theories that do not, we include the Sidgwickian variant within our category of desire-based theories.
133. On the importance of comparisons for justified choice, see generally Ruth Chang, Comparison and the Justification of Choice, 146 U. PA. L. REV. 1569 (1998).
134. What these goods are is a matter for further debate, within the family of objective-list theories, but typically they are taken to include such goods as knowledge, personal relationships, play, the experience of beauty, the accomplishment of worthy goals, and physical fitness. For some specific lists of objective values, see JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 85-90 (1980); GRIFFIN, supra note 86, at 67-68; and GEORGE SHER, BEYOND NEUTRALITY: PERFECTIONISM AND POLITICS 199-201 (1997).
135. What these goods are is a matter for further debate, within the family of objective-list theories, but typically they are taken to include such goods as knowledge, personal relationships, play, the experience of beauty, the accomplishment of worthy goals, and physical fitness. For some specific lists of objective values, see JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 85-90 (1980); GRIFFIN, supra note 86, at 67-68; and GEORGE SHER, BEYOND NEUTRALITY: PERFECTIONISM AND POLITICS 199-201 (1997).
136. What these goods are is a matter for further debate, within the family of objective-list theories, but typically they are taken to include such goods as knowledge, personal relationships, play, the experience of beauty, the accomplishment of worthy goals, and physical fitness. For some specific lists of objective values, see JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 85-90 (1980); GRIFFIN, supra note 86, at 67-68; and GEORGE SHER, BEYOND NEUTRALITY: PERFECTIONISM AND POLITICS 199-201 (1997).
137. On prepositional attitudes, see JAEGWON KIM, PHILOSOPHY OF MIND 13-14 (1996); on the "valencing" of prepositional attitudes, see RICHARD B. BRANDT, A THEORY OF THE GOOD AND THE RIGHT 24-45 (1998). By contrast with Brandt, however, we think that valence need not be defined in terms of choice. For example, I might retrospectively endorse some state of affairs involving myself, even though I did not choose it, and even though I endorse it just because it happened to me serendipitously rather than through my choice. Cf. SUMNER, supra note 71, at 122-37 (discussing retrospective endorsement).
138. On prepositional attitudes, see JAEGWON KIM, PHILOSOPHY OF MIND 13-14 (1996); on the "valencing" of prepositional attitudes, see RICHARD B. BRANDT, A THEORY OF THE GOOD AND THE RIGHT 24-45 (1998). By contrast with Brandt, however, we think that valence need not be defined in terms of choice. For example, I might retrospectively endorse some state of affairs involving myself, even though I did not choose it, and even though I endorse it just because it happened to me serendipitously rather than through my choice. Cf. SUMNER, supra note 71, at 122-37 (discussing retrospective endorsement).
139. On prepositional attitudes, see JAEGWON KIM, PHILOSOPHY OF MIND 13-14 (1996); on the "valencing" of prepositional attitudes, see RICHARD B. BRANDT, A THEORY OF THE GOOD AND THE RIGHT 24-45 (1998). By contrast with Brandt, however, we think that valence need not be defined in terms of choice. For example, I might retrospectively endorse some state of affairs involving myself, even though I did not choose it, and even though I endorse it just because it happened to me serendipitously rather than through my choice. Cf. SUMNER, supra note 71, at 122-37 (discussing retrospective endorsement).
140. On the nature of preference, see, for example, S.L. HURLEY, NATURAL REASONS: PERSONALITY AND POLITY 55-83 (1989); Richard J. Arneson, Liberalism, Distributive Subjectivism, and Equal Opportunity for Welfare, 19 PHIL. & PUB. AFF. 158, 161-64 (1990); and Arthur Ripstein, Preference, in VALUE, WELFARE AND MORALITY 93-111 (R.G. Frey & Christopher W. Morris eds., 1993). A recent anthology of technically sophisticated papers is PREFERENCES (Christoph Fehige & Ulla Wessels eds., 1998). For a full analysis of the related concept of a "want," see ROBERT AUDI, ACTION, INTENTION, AND REASON 35-55 (1993).
141. On the nature of preference, see, for example, S.L. HURLEY, NATURAL REASONS: PERSONALITY AND POLITY 55-83 (1989); Richard J. Arneson, Liberalism, Distributive Subjectivism, and Equal Opportunity for Welfare, 19 PHIL. & PUB. AFF. 158, 161-64 (1990); and Arthur Ripstein, Preference, in VALUE, WELFARE AND MORALITY 93-111 (R.G. Frey & Christopher W. Morris eds., 1993). A recent anthology of technically sophisticated papers is PREFERENCES (Christoph Fehige & Ulla Wessels eds., 1998). For a full analysis of the related concept of a "want," see ROBERT AUDI, ACTION, INTENTION, AND REASON 35-55 (1993).
142. On the nature of preference, see, for example, S.L. HURLEY, NATURAL REASONS: PERSONALITY AND POLITY 55-83 (1989); Richard J. Arneson, Liberalism, Distributive Subjectivism, and Equal Opportunity for Welfare, 19 PHIL. & PUB. AFF. 158, 161-64 (1990); and Arthur Ripstein, Preference, in VALUE, WELFARE AND MORALITY 93-111 (R.G. Frey & Christopher W. Morris eds., 1993). A recent anthology of technically sophisticated papers is PREFERENCES (Christoph Fehige & Ulla Wessels eds., 1998). For a full analysis of the related concept of a "want," see ROBERT AUDI, ACTION, INTENTION, AND REASON 35-55 (1993).
143. On the nature of preference, see, for example, S.L. HURLEY, NATURAL REASONS: PERSONALITY AND POLITY 55-83 (1989); Richard J. Arneson, Liberalism, Distributive Subjectivism, and Equal Opportunity for Welfare, 19 PHIL. & PUB. AFF. 158, 161-64 (1990); and Arthur Ripstein, Preference, in VALUE, WELFARE AND MORALITY 93-111 (R.G. Frey & Christopher W. Morris eds., 1993). A recent anthology of technically sophisticated papers is PREFERENCES (Christoph Fehige & Ulla Wessels eds., 1998). For a full analysis of the related concept of a "want," see ROBERT AUDI, ACTION, INTENTION, AND REASON 35-55 (1993).
144. On the nature of preference, see, for example, S.L. HURLEY, NATURAL REASONS: PERSONALITY AND POLITY 55-83 (1989); Richard J. Arneson, Liberalism, Distributive Subjectivism, and Equal Opportunity for Welfare, 19 PHIL. & PUB. AFF. 158, 161-64 (1990); and Arthur Ripstein, Preference, in VALUE, WELFARE AND MORALITY 93-111 (R.G. Frey & Christopher W. Morris eds., 1993). A recent anthology of technically sophisticated papers is PREFERENCES (Christoph Fehige & Ulla Wessels eds., 1998). For a full analysis of the related concept of a "want," see ROBERT AUDI, ACTION, INTENTION, AND REASON 35-55 (1993).
145. See DASGUPTA & PEARCE, supra note 5, at 22-25, for a discussion. Perhaps a more plausible formulation is one that defines preference as a disposition to choose (A prefers P over S if and only if A chooses X rather than Y when A believes that X leads to P and Y leads to S, and no other preferences are in play) rather than as an actual choice (A prefers P over S if and only if A chooses P over S). See, e.g., DANIEL M. HAUSMAN & MICHAEL S. MCPHERSON, ECONOMIC ANALYSIS AND MORAL PHILOSOPHY 28 (1996) ("We regard Q's preference ranking as a subjective state of Q that, along with Q's beliefs, explains her choices."). This is not the same as saying that Q's preferences are "revealed" in her choices, since, for example, Q's beliefs may be mistaken. See id. (criticizing the revealed preference view). For our purposes, we need not decide whether the conceptual connection between preference and choice is properly captured by a "revealed preference" view or in some other way.
146. See DASGUPTA & PEARCE, supra note 5, at 22-25, for a discussion. Perhaps a more plausible formulation is one that defines preference as a disposition to choose (A prefers P over S if and only if A chooses X rather than Y when A believes that X leads to P and Y leads to S, and no other preferences are in play) rather than as an actual choice (A prefers P over S if and only if A chooses P over S). See, e.g., DANIEL M. HAUSMAN & MICHAEL S. MCPHERSON, ECONOMIC ANALYSIS AND MORAL PHILOSOPHY 28 (1996) ("We regard Q's preference ranking as a subjective state of Q that, along with Q's beliefs, explains her choices."). This is not the same as saying that Q's preferences are "revealed" in her choices, since, for example, Q's beliefs may be mistaken. See id. (criticizing the revealed preference view). For our purposes, we need not decide whether the conceptual connection between preference and choice is properly captured by a "revealed preference" view or in some other way.
147. For a general presentation of the standard, economic view of well-being, see MISHAN. supra note 45. Critical discussions of the link within welfare economics between preference and well-being are provided by HAUSMAN & MCPHERSON supra note 91, at 71-83; SUMNER, supra note 71, at 113-22; and Tyler Cowen, The Scope and Limits of Preference Sovereignty; 9 ECON. & PHIL. 253 (1993). We do not necessarily endorse all of the criticisms voiced by these authors, but instead focus specifically on the point that well-being is not equivalent to the satisfaction of unrestricted preferences. See infra text accompanying notes 93-94, 98.
148. For a general presentation of the standard, economic view of well-being, see MISHAN. supra note 45. Critical discussions of the link within welfare economics between preference and well-being are provided by HAUSMAN & MCPHERSON supra note 91, at 71-83; SUMNER, supra note 71, at 113-22; and Tyler Cowen, The Scope and Limits of Preference Sovereignty; 9 ECON. & PHIL. 253 (1993). We do not necessarily endorse all of the criticisms voiced by these authors, but instead focus specifically on the point that well-being is not equivalent to the satisfaction of unrestricted preferences. See infra text accompanying notes 93-94, 98.
149. For a general presentation of the standard, economic view of well-being, see MISHAN. supra note 45. Critical discussions of the link within welfare economics between preference and well-being are provided by HAUSMAN & MCPHERSON supra note 91, at 71-83; SUMNER, supra note 71, at 113-22; and Tyler Cowen, The Scope and Limits of Preference Sovereignty; 9 ECON. & PHIL. 253 (1993). We do not necessarily endorse all of the criticisms voiced by these authors, but instead focus specifically on the point that well-being is not equivalent to the satisfaction of unrestricted preferences. See infra text accompanying notes 93-94, 98.
150. For a general presentation of the standard, economic view of well-being, see MISHAN. supra note 45. Critical discussions of the link within welfare economics between preference and well-being are provided by HAUSMAN & MCPHERSON supra note 91, at 71-83; SUMNER, supra note 71, at 113-22; and Tyler Cowen, The Scope and Limits of Preference Sovereignty; 9 ECON. & PHIL. 253 (1993). We do not necessarily endorse all of the criticisms voiced by these authors, but instead focus specifically on the point that well-being is not equivalent to the satisfaction of unrestricted preferences. See infra text accompanying notes 93-94, 98.
151. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
152. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
153. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
154. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
155. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
156. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
157. We are hardly the first to articulate the point that the satisfaction of unrestricted preferences should not be conflated with welfare. Others who have made the same point include SUMNER, supra note 71, at 134-35; John Broome, Choice and Value in Economics, 30 OXFORD ECON. PAPERS 313 (1978); Allan Gibbard, Interpersonal Comparisons: Preference, Good, and the Intrinsic Reward of a Life, in FOUNDATIONS OF SOCIAL CHOICE THEORY 165, 173-75 (Jon Elster & Aanund Hylland eds., 1986); Mark Carl Overvold, Self-interest and the Concept of Self-Sacrifice, 10 CANADIAN J. PHIL. 105 (1980); Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); and David Sobel, On the Subjectivity of Welfare, 107 ETHICS 501 (1997). See also David Sobel, Well-Being as the Object of Moral Consideration, 14 ECON. & PHIL. 249, 250 (1998) [hereinafter Sobel Well-Being] ("The second [preference-based] model [of well-being], now dominant in philosophy . . . typically allows that some of one's informed preferences, for example, moral preferences, have no special connection to one's well-being." (citations omitted)).
158. As Overvold puts it: [S]uppose we accept the prevailing account of self-interest or personal welfare. Then we will have to say that any act that is voluntary and informed is thereby in the agent's self-interest. But self-sacrifice requires that the act be voluntary, informed, and contrary to the agent's self-interest. Thus accepting the prevailing account of self-interest makes the concept of self-sacrifice incoherent by making it logically impossible that there are ever genuine instances of self-sacrifice. Mark Carl Overvold, Morality, Self-Interest, and Reasons for Being Moral, 44 PHIL. & PHENOMENOLOGICAL RES. 493, 499 (1984).
159. SUMNER, supra note 71, at 106; see also KIM, supra note 89, at 13 (distinguishing between "sensations" and "prepositional attitudes").
160. The sophisticated hedonist might try to solve these counterexamples by specifying mixes of pleasures so as to take account of considerations of balance, excessiveness, and so forth: Three parts gustatory pleasure and three parts sexual arousal are better than ten parts gustatory pleasure and two parts sexual arousal. Yet this more refined hedonic theory is still open to the objection that it fails to respect A's point of view. Imagine that A better realizes the specified mix of pleasures in the project world, but he nonetheless prefers, judges, endorses, and otherwise desires the status quo. (This is a conceptual possibility because, again, "pleasures" are nonpropositional. For the pleasures that go into a hedonic theory, it is no entailment of A's experiencing such pleasures that he also desire them.) In this sort of case, we propose, A is not better off with the project. Perhaps he would be better off if the project also brought with it an adaptive desire, a desire for the project-induced mix of pleasures; but if it does not, then the project does not improve A's welfare. At most he is comparatively neither better nor worse off, as between the project and status quo.
161. By "project," here, we mean technically a complete world history rather than merely a discrete state of affairs that is one part of a complete world history. If project is taken in the first sense, then it is plausible that A's actually desiring the project over the status quo, at some point in time, is a necessary condition for the project to benefit her. Alternatively, if "project" is understood as a discrete state of affairs that is one component of a larger world history, then our claim concerns intrinsic rather than instrumental benefit: It is a necessary condition for A to be intrinsically benefited by a project (thus understood) that she actually desire the project at some point in time. (By contrast, discrete projects can be of instrumental benefit even without a matching desire by A. For example the discrete project of depriving A of a poison pill, which she desires because she mistakenly believes it to be a vitamin tablet that will bring her health, can benefit A by leading to the satisfaction of her desire for health even if she never comes to realize that the pill was poisonous.)
162. Mark Overvold has made a sustained attempt to provide a noncircular account of the restriction. See Overvold, supra note 94, at 499-501; Mark Carl Overvold, Self-interest and Getting What You Want, in THE LIMITS OF UTILITARIANISM 186 (Harlan Miller & William Williams eds., 1982); Overvold, supra note 93, at 117-18 n.10. It is far from clear whether he succeeds. See Sobel, Well-Being, supra note 93, at 266-69 (criticizing Overvold's account).
163. Mark Overvold has made a sustained attempt to provide a noncircular account of the restriction. See Overvold, supra note 94, at 499-501; Mark Carl Overvold, Self-interest and Getting What You Want, in THE LIMITS OF UTILITARIANISM 186 (Harlan Miller & William Williams eds., 1982); Overvold, supra note 93, at 117-18 n.10. It is far from clear whether he succeeds. See Sobel, Well-Being, supra note 93, at 266-69 (criticizing Overvold's account).
164. Mark Overvold has made a sustained attempt to provide a noncircular account of the restriction. See Overvold, supra note 94, at 499-501; Mark Carl Overvold, Self-interest and Getting What You Want, in THE LIMITS OF UTILITARIANISM 186 (Harlan Miller & William Williams eds., 1982); Overvold, supra note 93, at 117-18 n.10. It is far from clear whether he succeeds. See Sobel, Well-Being, supra note 93, at 266-69 (criticizing Overvold's account).
165. Mark Overvold has made a sustained attempt to provide a noncircular account of the restriction. See Overvold, supra note 94, at 499-501; Mark Carl Overvold, Self-interest and Getting What You Want, in THE LIMITS OF UTILITARIANISM 186 (Harlan Miller & William Williams eds., 1982); Overvold, supra note 93, at 117-18 n.10. It is far from clear whether he succeeds. See Sobel, Well-Being, supra note 93, at 266-69 (criticizing Overvold's account).
166. See SUMNER, supra note 71, at 128 (discussing the importance of experience).
167. See David Sobel, Full Information Accounts of Well-Being, 104 ETHICS 784, 792 n.15 (1994) (noting that "[a] truly impressive and diverse list of contemporary ethicists have found [a] full information [desire-based] account of well-being congenial," and citing Brandt, Hare, Griffin, Rawls, Gauthier, Darwall, and Harsanyi).
168. See SUMNER, supra note 71, at 138-56 (discussing the importance of affect).
169. Cf. id. at 163-64 (discussing, but not endorsing, a hybrid view that includes objective values).
170. See supra note 47 and accompanying text (providing traditional definitions of CV and WTP/WTA).
171. See supra text accompanying notes 71-78.
172. See STEPHEN DARWALL ET AL., Toward Fin de Siècle Ethics: Some Trends, in MORAL DISCOURSE AND PRACTICE: SOME PHILOSOPHICAL APPROACHES 3 (1997) (providing an overview of contemporary metaethics).
173. See. e.g., Daniel Hausman, The Impossibility of Interpersonal Utility Comparisons, 104 MIND 473, 475-77 (1995).
174. See supra text accompanying notes 73-74.
175. Hausman, supra note 106, at 474. For "interpersonal comparisons are an ineliminable part of human life." Id. at 489; see also John C. Harsanyi, Morality and the Theory of Rational Behaviour, in UTILITARIANISM AND BEYOND 39, 49 (Amartya Sen & Bernard Williams eds., 1982) ("In everyday life we make, or at least attempt to make, interpersonal utility comparisons all the time."); Ruth Weintraub, Do Utility Comparisons Pose a Problem?, 92 PHIL. STUD. 307, 307 (1998) ("[C]an we find ourselves being persuaded of the ethical need to compare utilities of different individuals, yet unable to do so because the comparisons cannot be warranted? I shall argue that the problem cannot arise: no plausible moral principle will invoke magnitudes which are inscrutable.").
176. Hausman, supra note 106, at 474. For "interpersonal comparisons are an ineliminable part of human life." Id. at 489; see also John C. Harsanyi, Morality and the Theory of Rational Behaviour, in UTILITARIANISM AND BEYOND 39, 49 (Amartya Sen & Bernard Williams eds., 1982) ("In everyday life we make, or at least attempt to make, interpersonal utility comparisons all the time."); Ruth Weintraub, Do Utility Comparisons Pose a Problem?, 92 PHIL. STUD. 307, 307 (1998) ("[C]an we find ourselves being persuaded of the ethical need to compare utilities of different individuals, yet unable to do so because the comparisons cannot be warranted? I shall argue that the problem cannot arise: no plausible moral principle will invoke magnitudes which are inscrutable.").
177. Hausman, supra note 106, at 474. For "interpersonal comparisons are an ineliminable part of human life." Id. at 489; see also John C. Harsanyi, Morality and the Theory of Rational Behaviour, in UTILITARIANISM AND BEYOND 39, 49 (Amartya Sen & Bernard Williams eds., 1982) ("In everyday life we make, or at least attempt to make, interpersonal utility comparisons all the time."); Ruth Weintraub, Do Utility Comparisons Pose a Problem?, 92 PHIL. STUD. 307, 307 (1998) ("[C]an we find ourselves being persuaded of the ethical need to compare utilities of different individuals, yet unable to do so because the comparisons cannot be warranted? I shall argue that the problem cannot arise: no plausible moral principle will invoke magnitudes which are inscrutable.").
178. More precisely, the agency would need to sort all persons into Winners, Losers, and Neutrals, where Neutrals are those who are neither better off nor worse off. This in turn means either that they are precisely as well off in both world-states or that they are incomparably well off as between the states. Neutrals would then be ignored at the second stage of the interpersonal comparison. The possibility of Neutrals is a technical issue that need not be further discussed here because that possibility does not bear on the key problem of interpersonal comparisons, namely, how to compare Winners' gains to Losers' losses.
179. See generally Peter J. Hammond, Interpersonal Comparisons of Utility: Why and How They Are and Should Be Made, in INTERPERSONAL COMPARISONS OF WELL-BEING 200 (Jon Elster & John E. Roemer eds., 1991); Hausman, supra note 106.
180. See generally Peter J. Hammond, Interpersonal Comparisons of Utility: Why and How They Are and Should Be Made, in INTERPERSONAL COMPARISONS OF WELL-BEING 200 (Jon Elster & John E. Roemer eds., 1991); Hausman, supra note 106.
181. For an overview of such constructs, see Hausman, supra note 106.
182. l, is quite simple: Determine the numerical difference between the two outcomes on each person's zero-one index, and aggregate. Isbell's proposal is discussed in Hammond, supra note 110, at 215-16; Hausman, supra note 106, at 479-82; and Weintraub, supra note 108, at 317-118. See also 1 KEN BINMORE, GAME THEORY AND THE SOCIAL CONTRACT: PLAYING FAIR 282-96 (1994) (providing an overview of interpersonal comparisons of utility).
183. l, is quite simple: Determine the numerical difference between the two outcomes on each person's zero-one index, and aggregate. Isbell's proposal is discussed in Hammond, supra note 110, at 215-16; Hausman, supra note 106, at 479-82; and Weintraub, supra note 108, at 317-118. See also 1 KEN BINMORE, GAME THEORY AND THE SOCIAL CONTRACT: PLAYING FAIR 282-96 (1994) (providing an overview of interpersonal comparisons of utility).
184. l, is quite simple: Determine the numerical difference between the two outcomes on each person's zero-one index, and aggregate. Isbell's proposal is discussed in Hammond, supra note 110, at 215-16; Hausman, supra note 106, at 479-82; and Weintraub, supra note 108, at 317-118. See also 1 KEN BINMORE, GAME THEORY AND THE SOCIAL CONTRACT: PLAYING FAIR 282-96 (1994) (providing an overview of interpersonal comparisons of utility).
185. l, is quite simple: Determine the numerical difference between the two outcomes on each person's zero-one index, and aggregate. Isbell's proposal is discussed in Hammond, supra note 110, at 215-16; Hausman, supra note 106, at 479-82; and Weintraub, supra note 108, at 317-118. See also 1 KEN BINMORE, GAME THEORY AND THE SOCIAL CONTRACT: PLAYING FAIR 282-96 (1994) (providing an overview of interpersonal comparisons of utility).
186. l with certainty.
187. l with certainty.
188. GRIFFIN, supra note 86, at 116-17 (emphasis added). For a similar construct, albeit within the context of a more objectivist view of well-being, see Thomas M. Scanlon, The Moral Basis of Interpersonal Comparisons, in INTERPERSONAL COMPARISONS OF WELL-BEING, supra note 110, at 17, 39-44.
189. GRIFFIN, supra note 86, at 116-17 (emphasis added). For a similar construct, albeit within the context of a more objectivist view of well-being, see Thomas M. Scanlon, The Moral Basis of Interpersonal Comparisons, in INTERPERSONAL COMPARISONS OF WELL-BEING, supra note 110, at 17, 39-44.
190. See GRIFFIN, supra note 86, at 7-72; SUMNER, supra note 71, at 122-37 (identifying Griffin as a prominent informed-desire theorist and discussing Griffin's views).
191. On Neutrals, see supra note 109.
192. SHELLY KAGAN, THE LIMITS OF MORALITY 5 (1989).
193. See id. at 64-70 (distinguishing between moral reasons and moral requirements).
194. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974).
195. The constraint against killing, as proposed by the libertarian, is not a consequentialist requirement, because it violates the constraint even if that violation serves to prevent more killings. For an accessible overview of the consequentialism/deontology distinction, see SHELLY KAGAN, NORMATIVE ETHICS 59-77 (1998). For a more technical discussion, see, for example, David McNaughton & Piers Rawling, Agent-Relativity and the Doing-Happening Distinction, 63 PHIL. STUD. 167 (1991).
196. The constraint against killing, as proposed by the libertarian, is not a consequentialist requirement, because it violates the constraint even if that violation serves to prevent more killings. For an accessible overview of the consequentialism/deontology distinction, see SHELLY KAGAN, NORMATIVE ETHICS 59-77 (1998). For a more technical discussion, see, for example, David McNaughton & Piers Rawling, Agent-Relativity and the Doing-Happening Distinction, 63 PHIL. STUD. 167 (1991).
197. See KAGAN, supra note 117, at 16.
198. Why does it matter that minimalism is inconsistent with the scope of modern government? Arguably, this bolsters the intuitive case against minimalism: It is counterintuitive that the scope of modern government would need to change radically, as minimalism requires. Further, the inconsistency between minimalism and the scope of modern government means that anyone who launches a critique of CBA without advocating a radical change in the scope of modern government cannot persuasively rely upon minimalism as the basis for his critique.
199. Cf. Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. REV. 249, 262-66 (1996) (arguing that risk imposition is not deontologically wrongful).
200. Cf. NOZICK, supra note 119, at 119 (arguing that in the case of a "dominant protective association" - a contractual association for protective services in the state of nature, with a monopoly element - "[t]he dominant protective association . . . is morally required to compensate for the disadvantages it imposes upon those it prohibits from self-help activities against its clients").
201. The distinction between consequentialism and utilitarianism has been drawn very clearly in the recent philosophical literature. See, e.g., SAMUEL SCHEFFLER, THE REJECTION OF CONSEQUENTIALISM 1-40 (rev. ed. 1994). The position that overall well-being lacks even moral relevance, let alone moral decisiveness, is the limiting point of nonutilitarian consequentialism.
202. See JOHN RAWLS, A THEORY OF JUSTICE 75-83 (1971).
203. See Ronald Dworkin, What is Equality? Part 2: Equality of Resources, 10 PHIL. & PUB. AFF. 283 (1981).
204. See G.A. Cohen, Where the Action Is: On the Site of Distributive Justice, 26 PHIL. & PUB. AFF. 3 (1997).
205. See LARRY S. TEMKIN, INEQUALITY (1993). Strictly speaking, Temkin is not an egalitarian theorist, but rather someone who has developed a very rich account of what equality involves See id. at 5 (denying an intention to defend or attack the ideal of equality).
206. See LARRY S. TEMKIN, INEQUALITY (1993). Strictly speaking, Temkin is not an egalitarian theorist, but rather someone who has developed a very rich account of what equality involves See id. at 5 (denying an intention to defend or attack the ideal of equality).
207. See PHILIPPE VAN PARIJS, REAL FREEDOM FOR ALL: WHAT (IF ANYTHING) CAN JUSTIFY CAPITALISM? (1995). These modern philosophical egalitarians might not describe themselves as consequentialists, but our use of the term "consequentialist" is a fairly thin one. An egalitarian counts as proposing a "consequentialist" standard of equality, in our usage, if that standard has agent-neutral force within the egalitarian's theory - if all agents have (to the same extent) a moral reason to promote the standard. This is in contrast to deontological or agent-relative maxims, which have differential force for the particular referenced agent as opposed to others. (The deontologist thinks you have greater reason that you not directly and intentionally kill than I have that you not directly and intentionally kill.) See KAGAN, supra note 120, at 48-59 (discussing equality as one factor that arguably goes to the moral goodness of outcomes); supra note 120 (citing sources discussing the consequentialism/deontology distinction). A parallel point holds for our description below of the resourcist as proposing a kind of consequentialist standard.
208. See PHILIPPE VAN PARIJS, REAL FREEDOM FOR ALL: WHAT (IF ANYTHING) CAN JUSTIFY CAPITALISM? (1995). These modern philosophical egalitarians might not describe themselves as consequentialists, but our use of the term "consequentialist" is a fairly thin one. An egalitarian counts as proposing a "consequentialist" standard of equality, in our usage, if that standard has agent-neutral force within the egalitarian's theory - if all agents have (to the same extent) a moral reason to promote the standard. This is in contrast to deontological or agent-relative maxims, which have differential force for the particular referenced agent as opposed to others. (The deontologist thinks you have greater reason that you not directly and intentionally kill than I have that you not directly and intentionally kill.) See KAGAN, supra note 120, at 48-59 (discussing equality as one factor that arguably goes to the moral goodness of outcomes); supra note 120 (citing sources discussing the consequentialism/deontology distinction). A parallel point holds for our description below of the resourcist as proposing a kind of consequentialist standard.
209. See PHILIPPE VAN PARIJS, REAL FREEDOM FOR ALL: WHAT (IF ANYTHING) CAN JUSTIFY CAPITALISM? (1995). These modern philosophical egalitarians might not describe themselves as consequentialists, but our use of the term "consequentialist" is a fairly thin one. An egalitarian counts as proposing a "consequentialist" standard of equality, in our usage, if that standard has agent-neutral force within the egalitarian's theory - if all agents have (to the same extent) a moral reason to promote the standard. This is in contrast to deontological or agent-relative maxims, which have differential force for the particular referenced agent as opposed to others. (The deontologist thinks you have greater reason that you not directly and intentionally kill than I have that you not directly and intentionally kill.) See KAGAN, supra note 120, at 48-59 (discussing equality as one factor that arguably goes to the moral goodness of outcomes); supra note 120 (citing sources discussing the consequentialism/deontology distinction). A parallel point holds for our description below of the resourcist as proposing a kind of consequentialist standard.
210. See Dworkin, supra note 127.
211. See Scanlon, supra note 114.
212. See Thomas Nagel, Autonomy and Deontology, in CONSEQUENTIALISM AND ITS CRITICS 142, 145-50 (Samuel Scheffler ed., 1988).
213. See G.A. Cohen, Equality of What? On Welfare, Goods and Capabilities, in THE QUALITY OF LIFE 9, 18-28 (Martha Nussbaum & Amartya Sen eds., 1993).
214. See, e.g., AMARTYA SEN, INEQUALITY REEXAMINED 39-55 (1992); Amartya Sen, Capability and Well-Being, in THE QUALITY OF LIFE, supra note 134, at 30, 30-42.
215. See, e.g., AMARTYA SEN, INEQUALITY REEXAMINED 39-55 (1992); Amartya Sen, Capability and Well-Being, in THE QUALITY OF LIFE, supra note 134, at 30, 30-42.
216. To be sure, some of the just-cited resourcists are also egalitarians, but it is conceptually possible, and for our purposes useful, to distinguish between the resourcist and egalitarian elements in philosophical critiques of welfarism and utilitarianism.
217. Nagel, supra note 133, at 145-46.
218. To put the point another way: On the resourcist view, the fact that a project increases overall well-being without increasing (or otherwise properly distributing) the specified prerequisites or elements of well-being, gives government no reason whatsoever to approve the project.
219. We say "roughly" because the project might cause such a large improvement to A's welfare and such a large setback to B's that A is better off than B in the project world, and by an amount sufficient to make the distribution of welfare in the project world less equal than the distribution in the status quo.
220. One standard variant on maximin is so-called "leximin," which compares P and S by comparing, first, the welfare level of the worst-off group in each world, then the welfare level of the next worst-off group, and so on. See, e.g., JOHN E. ROEMER, THEORIES OF DISTRIBUTIVE JUSTICE 136-37 (1996). For the leximin theorist, as for the maximin theorist, the goodness or badness of a project that increases overall well-being by benefiting A more than it harms B will depend upon the welfare levels of A and B.
221. This inconsistency is relevant, here, for the same reasons that the inconsistency between minimalism and the scope of modern government is relevant. See supra note 122.
222. See, e.g., LESTER LAVE, THE STRATEGY OF SOCIAL REGULATION 8-28 (1981) (describing frameworks for social regulation).
223. See, e.g., KAGAN, supra note 120, at 25-69.
224. GRIFFIN, supra note 86, at 45.
225. Libertarianism, egalitarianism, and resourcism strike us as the most salient ways to contest the moral relevance of overall well-being, given the state of the modern philosophical literature, but they are not the only ways. Two other possible lines of attack that should be mentioned here are (1) the view that the overall satisfaction of persons' interests or goals (taken to be distinct from persons' well-being) is what bears the moral weight typically given to overall well-being, see, e.g., Sobel, Well-Being, supra note 93, and (2) the view that overall well-being must be refined to incorporate considerations of desert - for example, that a welfare loss to a person has no moral bearing if he deserves or is responsible for it, see FRED FELDMAN, UTILITARIANISM, HEDONISM AND DESERT 151-92 (1997). For criticism of the focus on interests or goals as opposed to welfare, see Andrew Moore & Roger Crisp, Welfarism in Moral Theory, 74 AUSTRALASIAN J. PHIL. 598 (1996). For criticism of the idea of desert-adjusted welfare, see Ingmar Persson, Feldman's Justicized Act Utilitarianism, 9 RATIO 39 (1996).
226. Libertarianism, egalitarianism, and resourcism strike us as the most salient ways to contest the moral relevance of overall well-being, given the state of the modern philosophical literature, but they are not the only ways. Two other possible lines of attack that should be mentioned here are (1) the view that the overall satisfaction of persons' interests or goals (taken to be distinct from persons' well-being) is what bears the moral weight typically given to overall well-being, see, e.g., Sobel, Well-Being, supra note 93, and (2) the view that overall well-being must be refined to incorporate considerations of desert - for example, that a welfare loss to a person has no moral bearing if he deserves or is responsible for it, see FRED FELDMAN, UTILITARIANISM, HEDONISM AND DESERT 151-92 (1997). For criticism of the focus on interests or goals as opposed to welfare, see Andrew Moore & Roger Crisp, Welfarism in Moral Theory, 74 AUSTRALASIAN J. PHIL. 598 (1996). For criticism of the idea of desert-adjusted welfare, see Ingmar Persson, Feldman's Justicized Act Utilitarianism, 9 RATIO 39 (1996).
227. Libertarianism, egalitarianism, and resourcism strike us as the most salient ways to contest the moral relevance of overall well-being, given the state of the modern philosophical literature, but they are not the only ways. Two other possible lines of attack that should be mentioned here are (1) the view that the overall satisfaction of persons' interests or goals (taken to be distinct from persons' well-being) is what bears the moral weight typically given to overall well-being, see, e.g., Sobel, Well-Being, supra note 93, and (2) the view that overall well-being must be refined to incorporate considerations of desert - for example, that a welfare loss to a person has no moral bearing if he deserves or is responsible for it, see FRED FELDMAN, UTILITARIANISM, HEDONISM AND DESERT 151-92 (1997). For criticism of the focus on interests or goals as opposed to welfare, see Andrew Moore & Roger Crisp, Welfarism in Moral Theory, 74 AUSTRALASIAN J. PHIL. 598 (1996). For criticism of the idea of desert-adjusted welfare, see Ingmar Persson, Feldman's Justicized Act Utilitarianism, 9 RATIO 39 (1996).
228. Libertarianism, egalitarianism, and resourcism strike us as the most salient ways to contest the moral relevance of overall well-being, given the state of the modern philosophical literature, but they are not the only ways. Two other possible lines of attack that should be mentioned here are (1) the view that the overall satisfaction of persons' interests or goals (taken to be distinct from persons' well-being) is what bears the moral weight typically given to overall well-being, see, e.g., Sobel, Well-Being, supra note 93, and (2) the view that overall well-being must be refined to incorporate considerations of desert - for example, that a welfare loss to a person has no moral bearing if he deserves or is responsible for it, see FRED FELDMAN, UTILITARIANISM, HEDONISM AND DESERT 151-92 (1997). For criticism of the focus on interests or goals as opposed to welfare, see Andrew Moore & Roger Crisp, Welfarism in Moral Theory, 74 AUSTRALASIAN J. PHIL. 598 (1996). For criticism of the idea of desert-adjusted welfare, see Ingmar Persson, Feldman's Justicized Act Utilitarianism, 9 RATIO 39 (1996).
229. The distinction between decision procedures and moral criteria is discussed in DAVID O. BRINK, MORAL REALISM AND THE FOUNDATIONS OF ETHICS 216-17 (1989).
230. See generally Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992) (analyzing whether legal commands should be promulgated as rules or standards).
231. See, e.g., BOADWAY & BRUCE, supra note 45, at 262-72; JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 95-132 (1988); HAUSMAN & MCPHERSON, supra note 91, at 93-99; Blackorby & Donaldson, supra note 17; Copp, supra note 16; Dworkin, supra note 69.
232. See, e.g., BOADWAY & BRUCE, supra note 45, at 262-72; JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 95-132 (1988); HAUSMAN & MCPHERSON, supra note 91, at 93-99; Blackorby & Donaldson, supra note 17; Copp, supra note 16; Dworkin, supra note 69.
233. See, e.g., BOADWAY & BRUCE, supra note 45, at 262-72; JULES L. COLEMAN, MARKETS, MORALS AND THE LAW 95-132 (1988); HAUSMAN & MCPHERSON, supra note 91, at 93-99; Blackorby & Donaldson, supra note 17; Copp, supra note 16; Dworkin, supra note 69.
234. That CBA is best understood as a decision procedure is emphasized in Donald C. Hubin, The Moral Justification of Benefit/Cost Analysis, 10 ECON. & PHIL. 169 (1994).
235. See supra text accompanying note 34.
236. See supra note 47 and accompanying text.
237. Indeed, this phenomenon - the deviation between a person's traditionally defined CV and her true welfare equivalent for a project that has a small welfare effect on her, but to which she has a strong moral objection - seems to arise frequently in agency practice. Respondents often react to contingent valuation surveys in ways that seem to reflect their moral views, for example, by providing a very large or small number, or by simply refusing to answer. See ROBERT CAMERON MITCHELL & RICHARD T. CARSON, USING SURVEYS To VALUE PUBLIC GOODS: THE CONTINGENT VALUATION METHOD 30-38 (1989).
238. Cf. Joel Feinberg, Legal Paternalism, in PATERNALISM 3 (Rolf Sartorius ed., 1983) (conceding that paternalist interventions can improve welfare, but arguing against paternalism on grounds of autonomy).
239. As we briefly mentioned in the text above and in the introduction to this Part, the concept of welfare equivalent is an appropriate foundation for CBA even if the correct theory of well-being turns out to be a hedonic or objective-list theory. CBA is no less coherent on these theories than on a desire-based theory, although of course the specific amount of A's welfare equivalent will be different. On a hedonic theory, this amount is the amount that, paid to or by A in the project world, makes her level of hedonic tone there just the same as in the status quo; on an objective-list theory, it is the amount that, paid to or by A in the project world, makes her overall realization of objective welfarist values just the same as in the status quo world. Because we argue in this Article for a desire-based view of well-being, however, we do not further pursue this point. The point that A's WTP/WTA is distinct from her welfare equivalent has been made by Peter Railton Benefit-Cost Analysis as a Source of Information About Welfare, in VALUING HEALTH RISKS, COSTS, AND BENEFITS FOR ENVIRONMENTAL DECISION MAKING, supra note 14, at 55, 71-72. Cf. Pildes & Sunstein, supra note 2, at 82 ("[C]ontingent valuation methods still suffer from the private/public valuation distinction. What people would be willing to pay to eliminate certain conditions for themselves, and how they think public resources should be allocated, remain distinct questions. . . . [W]hat matters are lay valuations about public choices, not those about self-regarding, private choices."). We disagree: In the context of determining overall welfare, what matters are just the "self-regarding," that is, welfare-relevant, impacts of the project on each person. For a recent contribution on all-things-considered versus self-regarding ("citizen" versus "consumer") preferences, with citations to the literature, see Daphna Lewinsohn-Zamir, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 YALE L.J. 377 (1998).
240. As we briefly mentioned in the text above and in the introduction to this Part, the concept of welfare equivalent is an appropriate foundation for CBA even if the correct theory of well-being turns out to be a hedonic or objective-list theory. CBA is no less coherent on these theories than on a desire-based theory, although of course the specific amount of A's welfare equivalent will be different. On a hedonic theory, this amount is the amount that, paid to or by A in the project world, makes her level of hedonic tone there just the same as in the status quo; on an objective-list theory, it is the amount that, paid to or by A in the project world, makes her overall realization of objective welfarist values just the same as in the status quo world. Because we argue in this Article for a desire-based view of well-being, however, we do not further pursue this point. The point that A's WTP/WTA is distinct from her welfare equivalent has been made by Peter Railton Benefit-Cost Analysis as a Source of Information About Welfare, in VALUING HEALTH RISKS, COSTS, AND BENEFITS FOR ENVIRONMENTAL DECISION MAKING, supra note 14, at 55, 71-72. Cf. Pildes & Sunstein, supra note 2, at 82 ("[C]ontingent valuation methods still suffer from the private/public valuation distinction. What people would be willing to pay to eliminate certain conditions for themselves, and how they think public resources should be allocated, remain distinct questions. . . . [W]hat matters are lay valuations about public choices, not those about self-regarding, private choices."). We disagree: In the context of determining overall welfare, what matters are just the "self-regarding," that is, welfare-relevant, impacts of the project on each person. For a recent contribution on all-things-considered versus self-regarding ("citizen" versus "consumer") preferences, with citations to the literature, see Daphna Lewinsohn-Zamir, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 YALE L.J. 377 (1998).
241. As we briefly mentioned in the text above and in the introduction to this Part, the concept of welfare equivalent is an appropriate foundation for CBA
242. The issue is treated at greater length in Matthew Adler, Incommensurability and Cost-Benefit Analysis, 146 U. PA. L. REV. 1371, 1391-98 (1998).
243. See id. at 1401-08 (discussing incomparability).
244. By "rough substitute," we mean this: $Y is a rough substitute, for A, for the move from 5 to P if, paid or paying $Y in P, A is incomparably well off there, as compared to S. "Rough substitute" is the analogue to "welfare equivalent," with incomparability substituted for precise equality: Again, $X is a welfare equivalent, for A, for the move from S to P if, paid or paying $X in P, A is precisely equally well off there, as compared to S.
245. See, e.g., Copp, supra note 16, at 77-79; supra notes 79-80 and accompanying text.
246. See infra text accompanying notes 181-182 (describing multidimensional assessment).
247. Congress can reduce the endowment dependence of projects by arranging for compensation of the Losers. An example is the Trade Expansion Act of 1962, Pub. L. No. 87-794, tit. II, § 232, 76 Stat. 877 (codified as amended at 19 U.S.C. § 1862 (1994)), which lowered tariffs but also provided benefits to workers who lost their jobs as a result of trade liberalization. See ROBERT J. BRENT, APPLIED COST-BENEFIT ANALYSIS 40 (1996). Note that the Act did not produce a Pareto-superior outcome because the workers were paid from general tax revenues, not from the gains to the exporters. By spreading the losses over a larger population, the Act reduced the extent to which WTPs understated welfare losses.
248. Congress can reduce the endowment dependence of projects by arranging for compensation of the Losers. An example is the Trade Expansion Act of 1962, Pub. L. No. 87-794, tit. II, § 232, 76 Stat. 877 (codified as amended at 19 U.S.C. § 1862 (1994)), which lowered tariffs but also provided benefits to workers who lost their jobs as a result of trade liberalization. See ROBERT J. BRENT, APPLIED COST-BENEFIT ANALYSIS 40 (1996). Note that the Act did not produce a Pareto-superior outcome because the workers were paid from general tax revenues, not from the gains to the exporters. By spreading the losses over a larger population, the Act reduced the extent to which WTPs understated welfare losses.
249. For the remainder of this Article, we use "CBA" broadly, to include both traditional CBA and the various refinements to traditional CBA discussed in Section IV.D. See supra text accompanying note 150 (offering a broad definition of CBA).
250. One procedure that we do not discuss in this Part is the procedure proposed by Stephen Coate Coate argues that a project should be approved only if there is no Pareto-superior project that would produce the same distribution as the project under consideration. See Stephen Coate Welfare Economics and the Evaluation of Policy Changes 2-3 (Dec. 1997) (unpublished manuscript on file with The Yale Law Journal). This approach avoids the endowment dependence of CBA but would provide an agency with no guidance for choosing a project in the first place.
251. More precisely, these are the procedures typically employed or proposed as background procedures for use by agencies when statutory and other legal requirements become indeterminate.
252. This stipulation is crucial. We are trying to draw a clean line between direct implementation and procedures that sacrifice accuracy (more precisely, the accuracy that would be achieved by a perfectly reliable and faithful agent) for the sake of reduction in decisional cost, transparency, reliability, and so on. The cleanest way to do this is to define "direct implementation" as the procedure whereby the agent tolerates no sacrifice in epistemic gain for the sake of reduction in decisional cost or other values. The agent takes whatever steps are warranted, by her lights, to produce the most accurate measurement of overall well-being. What about the variant of direct implementation (call it "direct implementation*") in which agencies do not gather information up to the point of zero epistemic gain, but rather are enjoined (1) to take additional epistemic steps, such as information-gathering, only if the agency believes that more likely than not those steps are welfare-improving; and (2) if not, to choose the outcome, project or status quo, that the agency believes, more likely than not, will lead to higher overall well-being? Direct implementation* is more likely to be a welfare-justified decision procedure than direct implementation, and perhaps should be grouped with CBA, direct multidimensional assessment, and QUALY-based assessment as a possible multidimensional procedure for agencies to employ. See infra Subsection V.A.3 (comparing multidimensional procedures). We doubt, however, that direct implementation* will turn out to be attractive - given the difficulty of monitoring agency choices both at the threshold, information-gathering stage and at the stage of project choice - and, unlike CBA, neither direct multidimensional assessment nor QUALY-based assessment has been seriously proposed for agencies. We therefore ignore it in this Article.
253. See supra text accompanying notes 110-116 (discussing these constructs).
254. Discussions in the philosophical literature include HURLEY, supra note 90, at 103-10: Griffin, supra note 113, at 52-56; Hausman, supra note 106, at 477-78; and Scanlon, supra note 114, at 22-38. Discussions in the economic literature include BINMORE, supra note 112.
255. See supra note 88 (citing sources that provide and defend lists of objective values); cf. THOMAS HURKA, PERFECTIONISM 84-98 (1993) (recognizing the multidimensional cast of the assessment of overall human "perfection"): SEN, supra note 135, at 23-26 (recognizing the multidimensional cast of the assessment of equality).
256. See supra note 88 (citing sources that provide and defend lists of objective values); cf. THOMAS HURKA, PERFECTIONISM 84-98 (1993) (recognizing the multidimensional cast of the assessment of overall human "perfection"): SEN, supra note 135, at 23-26 (recognizing the multidimensional cast of the assessment of equality).
257. See supra note 88 (citing sources that provide and defend lists of objective values); cf. THOMAS HURKA, PERFECTIONISM 84-98 (1993) (recognizing the multidimensional cast of the assessment of overall human "perfection"): SEN, supra note 135, at 23-26 (recognizing the multidimensional cast of the assessment of equality).
258. See GRIFFIN, supra note 86, at 58 ("Nor is there a single right balance [of objective goods]. The right balance is very likely to vary from person to person."); HURKA, supra note 167, at 97-98 (making a similar argument with respect to an account of human perfection rather than of welfare).
259. See, e.g., Jay Michaelson, Note, Rethinking Regulatory Reform: Toxics, Politics, and Ethics, 105 YALE L.J. 1891, 1896-1901 (1996) (distinguishing between zero risk and de minimis risk, and discussing EPA's use of a de minimis standard).
260. More precisely, this constraint is not a full decision procedure itself but will lend a nonaggregative element to whatever procedure is employed. On the feasibility constraint, see LAVE, supra note 142, at 14-15.
261. See, e.g., id. at 15-17; Cass R. Sunstein, Health-Health Tradeoffs, 63 U. CHI. L. REV. 1533 (1996); W. Kip Viscusi, Economic Foundations of the Current Regulatory Reform Efforts, 10 J. ECON. PERSP. 119, 129-31 (1996).
262. See, e.g., id. at 15-17; Cass R. Sunstein, Health-Health Tradeoffs, 63 U. CHI. L. REV. 1533 (1996); W. Kip Viscusi, Economic Foundations of the Current Regulatory Reform Efforts, 10 J. ECON. PERSP. 119, 129-31 (1996).
263. See, e.g., id. at 15-17; Cass R. Sunstein, Health-Health Tradeoffs, 63 U. CHI. L. REV. 1533 (1996); W. Kip Viscusi, Economic Foundations of the Current Regulatory Reform Efforts, 10 J. ECON. PERSP. 119, 129-31 (1996).
264. See infra text accompanying notes 181-182 (describing different kinds of direct multidimensional assessment).
265. See Robert Fabian, The Qualy Approach, in VALUING HEALTH FOR POLICY: AN ECONOMIC APPROACH 118 (George Tolley et al. eds., 1994); Arti Kaur Rai, Rationing Through Choice: A New Approach to Cost-Effectiveness Analysis in Health Care, 72 IND. L.J. 1015, 1048-52 (1997).
266. See Robert Fabian, The Qualy Approach, in VALUING HEALTH FOR POLICY: AN ECONOMIC APPROACH 118 (George Tolley et al. eds., 1994); Arti Kaur Rai, Rationing Through Choice: A New Approach to Cost-Effectiveness Analysis in Health Care, 72 IND. L.J. 1015, 1048-52 (1997).
267. See, e.g., GRIFFIN, supra note 86, at 26-31.
268. Project gains along even a relatively unimportant dimension of human well-being, if large enough, can outweigh the welfare cost of premature death. See Alastair Norcross, Comparing Harms: Headaches and Human Lives, 26 PHIL. & PUB. AFF. 135 (1997). And, of course, sometimes longevity is simply not at issue. The project and status quo could involve the same number of premature deaths - and be counted by risk-risk as equally good - but differ along various other dimensions.
269. A more sophisticated approach would be to assign different unidimensional procedures to different agencies or statutory schemes. But multiple dimensions, other than the dimension tracked by the assigned procedure, might still be implicated by each agency's choices. Cf. Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 TEX. L. REV. 469, 473-81 (1985) (describing how statutes typically authorize or require agencies to consider multiple values).
270. ROBERT ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 167 (1991) (emphasis omitted).
271. But see Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697 (1996).
272. This need not be generally true of nonaggregative procedures. For example, we doubt that the elastic criteria of "customary practice" and "technological feasibility" are cheaper, more transparent, and easier to implement correctly than CBA.
273. On the President's ability to monitor agencies, including through the use of oversight bureaus, see, for example, Terry M. Moe & Scott Wilson, Presidents and the Politics of Structure, LAW & CONTEMP. PROBS., Spring 1994, at 1. For a somewhat more skeptical view of OMB, see MCGARITY, supra note 38, at 271-91.
274. On the President's ability to monitor agencies, including through the use of oversight bureaus, see, for example, Terry M. Moe & Scott Wilson, Presidents and the Politics of Structure, LAW & CONTEMP. PROBS., Spring 1994, at 1. For a somewhat more skeptical view of OMB, see MCGARITY, supra note 38, at 271-91.
275. Scanlon, supra note 114, at 41 (footnote omitted).
276. Pildes & Sunstein, supra note 2, at 65 (footnote omitted); see also LAVE, supra note 142, at 18 ("[R]egulators would be enjoined to balance the general benefits of a proposed regulation against its general risks. This framework is intended to be somewhat vague, with all effects being enumerated, but with full quantification and valuation being left to the general wisdom of the regulators.").
277. See Copp, supra note 16, at 75 ("If Rachel and Paula are equally afflicted with asthma, then the clean air project might be of equal medical benefit to them, and this fact could be expressed in terms of the equal breathing efficiency they can expect if the project is implemented. Yet if Rachel is rich while Paula is poor, she may be willing to pay more than Paula for this benefit . . . .").
278. CBA avoids the problem sketched here because its basic building block is the individual CV, not units of overall value or hedonic tone. Decisionmakers can draw a demand curve for the recreational boat market without specifying, or fully specifying, what it is about the boat that makes it good. If CVs are defined in terms of WTP/WTA, then the relevant demand curve is simply the observed market demand curve. If CVs are defined in terms of welfare equivalents, then decisionmakers will need to supplement market data - for example, they may need to provide boat buyers with more information, and determine how much money makes self-regarding buyers indifferent between having and not having the fully described boat-but a complete specification of welfare dimensions may still be unnecessary.
279. See Pildes & Sunstein, supra note 2, at 83-85.
280. See Fabian, supra note 173; Rai, supra note 173, at 1048-52. See generally LAVE, supra note 142, at 19-23 (discussing cost-effectiveness analysis).
281. For example, if the $400 million difference in the above hypothetical were spent on a one-year arts program in the status quo, such that each of 100,000 viewers would experience a .005 increase in the quality of her year, the $400 million difference could be translated into an increment of 500 quality-adjusted life-years for the status quo, relative to the project. Alternately, as some suggest, see Fabian, supra note 173, at 125-27, 133-35, a standard quality year could be monetized, along with other non-health benefits; but this is then just a kind of CBA.
282. On the use of so-called "contingent valuation" surveys to determine CVs, see CONTINGENT VALUATION: A CRITICAL ASSESSMENT (Jerry A. Hausman ed., 1993); MITCHELL & CARSON, supra note 152; and Symposium, Contingent Valuation, J. ECON. PERSP., Fall 1994, at 3, 3-64.
283. On the use of so-called "contingent valuation" surveys to determine CVs, see CONTINGENT VALUATION: A CRITICAL ASSESSMENT (Jerry A. Hausman ed., 1993); MITCHELL & CARSON, supra note 152; and Symposium, Contingent Valuation, J. ECON. PERSP., Fall 1994, at 3, 3-64.
284. On the use of so-called "contingent valuation" surveys to determine CVs, see CONTINGENT VALUATION: A CRITICAL ASSESSMENT (Jerry A. Hausman ed., 1993); MITCHELL & CARSON, supra note 152; and Symposium, Contingent Valuation, J. ECON. PERSP., Fall 1994, at 3, 3-64.
285. A partial solution to this transparency problem is for Congress, the President, or OMB to pre-specify the dimensions that agencies should employ - but, as already noted, there are other serious difficulties with pre-specification. See supra text accompanying note 184.
286. Again, throughout this Section "CBA" is used in a broad sense to include refinements. See supra note 161.
287. Exec. Order No. 12,866, § (3)(f)(1), 3 C.F.R. 638, 639 (1993), reprinted in 5 U.S.C. § 601 (1994).
288. What about the objection that CBA runs afoul of the "incommensurability" of disparate goods? This objection, if good, would weigh in favor of qualitative multidimensional assessment and other procedures that (unlike CBA, QUALY-based assessment, and quantitative multidimensional assessment) do not numerically commensurate different dimensions of welfare. For reasons that one of us has articulated elsewhere, however, we think the incommensurability objection unpersuasive - more precisely, insofar as that objection purports to argue against agency use of CBA even though it is the otherwise best-justified procedure in light ot the welfarist considerations mooted in this Part, that is, accuracy, error costs, shirking costs, direct costs, and other procedural costs. See Adler, supra note 155, at 1409-17. Although it remains possible that CBA is truly welfare-incomparable with other decision procedures, for certain choice situations, see id. at 1401-08, 1411-12, we think it implausible that CBA is globally weltare-incomparable with (or precisely equally good as) the other decision procedures discussed here. The directive "use CBA to assess projects" is not welfare-incomparable with the directive "use qua itative multidimensional assessment" (or any other procedure), but better or worse for overall well-being.
289. Somewhat less clear is whether OMB has genuinely tried to maximize net project benefits, as opposed to pursuing some other presidential agenda (for example, satisfying large campaign contributors or pushing through deregulation at all costs). See MCGARITY, supra note 38, at 285-88 (describing the view of regulatory beneficiaries and others that OMB uses regulatory review to advance substantive policy goals).
290. An additional category of procedural cost, not discussed here, is delay cost: the difference in value between the best option available later (after CBA is performed) and the best option now. See Morgenstern & Landy, supra note 4, at 461-62. Delay costs could warrant an additional exception to our recommended cost-benefit directive; whether they do depends on the size and prevalence of these costs and on whether such an exception can be drafted without giving too much discretion to agencies.
291. We do not recommend an exception for cost-effectiveness analysis, given the difficulties in specifying what counts as a single dimension that should be maximized within the fixed budget. (For example, in QUALY-based cost-effectiveness analysis, there are really multiple dimensions at play - different types of health effects, plus time - that are "single" in the sense that they are feasibly reducible to the single dimension of quality-adjusted life-years.) But this is obviously a point for further debate.
292. See supra Section IV.D.
293. It appears that some agencies are already sensitive to the dependence of CVs on wealth. For example, in the agricultural pesticide case study, EPA refused to conclude that more resources should be devoted to protecting the lives of rich people than the lives of poor people. See supra text accompanying notes 25-34.
294. See supra text accompanying notes 155-157.
295. See supra text accompanying notes 52-53.
296. For example, in none of the case studies contained in a recent study of EPA's use of CBA did that agency end up concluding that the project and status quo could not be ranked by CBA. See ECONOMIC ANALYSES AT EPA, supra note 4.
297. See Deck, supra note 35, at 277-82 (describing how EPA determined CVs for various air-quality levels over the Grand Canyon by using photographs to inform persons of the visibility that would result from a given air-quality level).
298. See BRENT, supra note 160, at 38.
299. See Matthew D. Adler & Eric A. Posner, Implementing Cost-Benefit Analysis When Preferences Are Distorted 12-13, 15-16 (July 20, 1999) (unpublished manuscript, on file with The Yale Law Journal) (discussing existence values and EPA practice).
300. See, e.g., Lave, supra note 18, at 104, 113-15.
301. Cf. Louis Kaplow & Steven Shavell, Fairness Versus Welfare Economics in Normative Analysis of the Law (Feb. 10, 1997) (unpublished manuscript, on file with The Yale Law Journal) (arguing that fairness should count in economic analysis only insofar as fairness is reflected in persons' preferences).
302. On ethical conventionalism, see, for example, BRINK, supra note 146, at 14-36. At best, moral facts reduce to facts about ideally informed preferences, which are still different from facts about what the majority or all of us actually prefer. For an argument that moral facts do reduce to facts about ideally informed preferences, see MICHAEL SMITH, THE MORAL PROBLEM 151-81 (1994).
303. On ethical conventionalism, see, for example, BRINK, supra note 146, at 14-36. At best, moral facts reduce to facts about ideally informed preferences, which are still different from facts about what the majority or all of us actually prefer. For an argument that moral facts do reduce to facts about ideally informed preferences, see MICHAEL SMITH, THE MORAL PROBLEM 151-81 (1994).
304. See, e.g., Harsanyi, supra note 108, at 56.
305. See supra text accompanying notes 93-94, 97-98 (arguing for a restricted-desire account of welfare).
306. On cognitivism, see DARWALL ET AL., supra note 105, at 15-19.
307. See Bernard Williams, A Critique of Utilitarianism, in J.J.C. SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST 77 (1973).
308. See supra note 120 and accompanying text.
309. See supra text accompanying notes 126-130, 139-140.
310. See GEORGE SHER, DESERT (1987).
311. See HURKA, supra note 167; HOLMES ROLSTON III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 126-59 (1988).
312. See HURKA, supra note 167; HOLMES ROLSTON III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 126-59 (1988).
313. See supra text accompanying notes 25-33.
314. See supra note 201 and accompanying text.
315. See supra text accompanying notes 20-24. For additional examples of departure from textbook CBA, see Adler & Posner, supra note 203.