Well-being and the state

Harvard Law Review

Volumn 107, Issue 6, 1994, Pages 1303-1327

  Sunstein, Cass R ^a,b,c  

^a UNIVERSITY OF CHICAGO   (United States)

^b HARVARD COLLEGE   (United States)

^c HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 12044255414     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341845     Document Type: Article

References (105)

1. "The functioning of . . . competition . . . depends, above all, on the existence of an appropriate legal system . . . . In no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other." FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM 38-39 (1944).
2. See Joseph M. Bessette, Deliberative Democracy: The Majority Principle in Republican Government, in How DEMOCRATIC IS THE CONSTITUTION? 102, 114 (Robert A. Goldwin & William A. Schambra eds., 1980).
3. See SHANTO IYENGAR, IS ANYONE RESPONSIBLE? How TELEVISION FRAMES POLITICAL ISSUES 127-43 (1991) (describing the distorting effects of television news coverage); cf. STEPHEN REYER, BREAKING THE Vicious CIRCLE 21, 34 (1993) (showing that public assessment of the riskiness of many activities diverges widely from expert assessments).
4. See SHANTO IYENGAR, IS ANYONE RESPONSIBLE? How TELEVISION FRAMES POLITICAL ISSUES 127-43 (1991) (describing the distorting effects of television news coverage); cf. STEPHEN REYER, BREAKING THE Vicious CIRCLE 21, 34 (1993) (showing that public assessment of the riskiness of many activities diverges widely from expert assessments).
5. See e.g., KIKU ADATTO, SOUND BITE DEMOCRACY 4 (1990).
6. See, e.g., THE FEDERALIST No. 10, at 77-78 (James Madison) (Clinton Rossiter ed., 1961) (discussing the nature, cause, and effects of faction).
7. In the law of free speech, for example, it is crucial to know whether an "actual malice" regime for libel law in fact alters press behavior as compared with a negligence regime - and whether the alterations lead to more or less information about public issues. In administrative law, it is important to know whether stringent judicial review actually improves agency performance.
8. See U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 437 (113th ed. 1993) [hereinafter STATISTICAL ABSTRACT 1993].
9. 9 Search of NEXIS, Curnws library (Feb. 16, 1994).
10. Media attention is often focused on the "leading economic indicators," including average weekly hours, housing starts, and the money supply. These too are only crudely connected with and economic welfare, for reasons that will emerge in the course of the discussion.
11. See A.C. PIGOU, THE ECONOMICS OF WELFARE 12 (4th ed. 1962) ("[T]here is no guarantee that the effects produced on the part of welfare that can be brought into relation with the measuring-rod of money may not be cancelled by effects of a contrary kind brought about in other parts, or aspects, of welfare; and, if this happens, the practical usefulness of our conclusions is wholly destroyed. . . . The real objection then is, not that economic welfare is a bad index of total welfare, but that an economic cause may affect non-economic welfare in ways that cancel its effect on economic welfare.").
12. See UNITED NATIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 1993, at 135 (1993) [hereinafter HUMAN DEVELOPMENT REPORT 1993].
13. See Ray Moseley, Among Rich Nations, U.S. Has Highest Child-Poverty Rate, CHI. TRIB., Sept. 23, 1993, § 1, at 4.
14. See id.
15. See Luisella Goldschmidt-Clermont, Measuring Households' Non-Monetary Production, in REAL-LIFE ECONOMICS 265, 265 (Paul Ekins & Manfred Max-Neef eds., 1992); MARILYN WARING, IF WOMEN COUNTED 2 (1988).
16. See Luisella Goldschmidt-Clermont, Measuring Households' Non-Monetary Production, in REAL-LIFE ECONOMICS 265, 265 (Paul Ekins & Manfred Max-Neef eds., 1992); MARILYN WARING, IF WOMEN COUNTED 2 (1988).
17. GNP needs to be modified to account for: any depreciation of natural capital stocks, in the same way that net national income is equal to gross national income less estimated depreciation on man-made capital. . . [and] any damage losses accruing to human wellbeing from the extraction, processing and disposal of materials and energy to the receiving environments. DAVID PEARCE, ECONOMIC VALUES AND THE NATURAL WORLD 31 (1993). See also the discussion of adjusted national product - GNP adjusted for depreciation of physical capital - in Øyvind Lone, Environmental and Resource Accounting, in REAL-LIFE ECONOMICS, cited above in note 15, at 239, 253-54; and the discussion of natural resource accounting in Robert Repetto, Earth in the Balance Sheet: Incorporating Natural Resources in National Income Accounts, ENVIRONMENT, Sept. 1992, at 12, 15-17. In 1993, President Clinton directed the Commerce Department's Bureau of Economic Analysis to develop a new measure of GDP, one that incorporates the cost of pollution and the value of environmental amenities. See ROBERT V. PERCIVAL, ALAN S. MILLER, CHRISTOPHER H. SCHROEDER & JAMES P. LEAPE, ENVIRONMENTAL REGULATION 394 (Supp. 1993).
18. GNP needs to be modified to account for: any depreciation of natural capital stocks, in the same way that net national income is equal to gross national income less estimated depreciation on man-made capital. . . [and] any damage losses accruing to human wellbeing from the extraction, processing and disposal of materials and energy to the receiving environments. DAVID PEARCE, ECONOMIC VALUES AND THE NATURAL WORLD 31 (1993). See also the discussion of adjusted national product - GNP adjusted for depreciation of physical capital - in Øyvind Lone, Environmental and Resource Accounting, in REAL-LIFE ECONOMICS, cited above in note 15, at 239, 253-54; and the discussion of natural resource accounting in Robert Repetto, Earth in the Balance Sheet: Incorporating Natural Resources in National Income Accounts, ENVIRONMENT, Sept. 1992, at 12, 15-17. In 1993, President Clinton directed the Commerce Department's Bureau of Economic Analysis to develop a new measure of GDP, one that incorporates the cost of pollution and the value of environmental amenities. See ROBERT V. PERCIVAL, ALAN S. MILLER, CHRISTOPHER H. SCHROEDER & JAMES P. LEAPE, ENVIRONMENTAL REGULATION 394 (Supp. 1993).
19. GNP needs to be modified to account for: any depreciation of natural capital stocks, in the same way that net national income is equal to gross national income less estimated depreciation on man-made capital. . . [and] any damage losses accruing to human wellbeing from the extraction, processing and disposal of materials and energy to the receiving environments. DAVID PEARCE, ECONOMIC VALUES AND THE NATURAL WORLD 31 (1993). See also the discussion of adjusted national product - GNP adjusted for depreciation of physical capital - in Øyvind Lone, Environmental and Resource Accounting, in REAL-LIFE ECONOMICS, cited above in note 15, at 239, 253-54; and the discussion of natural resource accounting in Robert Repetto, Earth in the Balance Sheet: Incorporating Natural Resources in National Income Accounts, ENVIRONMENT, Sept. 1992, at 12, 15-17. In 1993, President Clinton directed the Commerce Department's Bureau of Economic Analysis to develop a new measure of GDP, one that incorporates the cost of pollution and the value of environmental amenities. See ROBERT V. PERCIVAL, ALAN S. MILLER, CHRISTOPHER H. SCHROEDER & JAMES P. LEAPE, ENVIRONMENTAL REGULATION 394 (Supp. 1993).
20. GNP needs to be modified to account for: any depreciation of natural capital stocks, in the same way that net national income is equal to gross national income less estimated depreciation on man-made capital. . . [and] any damage losses accruing to human wellbeing from the extraction, processing and disposal of materials and energy to the receiving environments. DAVID PEARCE, ECONOMIC VALUES AND THE NATURAL WORLD 31 (1993). See also the discussion of adjusted national product - GNP adjusted for depreciation of physical capital - in Øyvind Lone, Environmental and Resource Accounting, in REAL-LIFE ECONOMICS, cited above in note 15, at 239, 253-54; and the discussion of natural resource accounting in Robert Repetto, Earth in the Balance Sheet: Incorporating Natural Resources in National Income Accounts, ENVIRONMENT, Sept. 1992, at 12, 15-17. In 1993, President Clinton directed the Commerce Department's Bureau of Economic Analysis to develop a new measure of GDP, one that incorporates the cost of pollution and the value of environmental amenities. See ROBERT V. PERCIVAL, ALAN S. MILLER, CHRISTOPHER H. SCHROEDER & JAMES P. LEAPE, ENVIRONMENTAL REGULATION 394 (Supp. 1993).
21. In 1952, Kuznets attempted to redefine GNP to take leisure into account. See Simon Kuznets, Long-Term Changes in the National Income of the United States of America Since 1870, in INCOME & WEALTH OF THE UNITED STATES: TRENDS AND STRUCTURE 20, 63-69 (Simon Kuznets ed., 1952). Note also that a 1968 study showed a spectacular gain in leisure over the last century. See A. W. Sametz, Production of Goods and Services: The Measurement of Economic Growth, in INDICATORS OF SOCIAL CHANGE 77, 83 (Eleanor B. Sheldon & Wilbert E. Moore eds., 1968).
22. In 1952, Kuznets attempted to redefine GNP to take leisure into account. See Simon Kuznets, Long-Term Changes in the National Income of the United States of America Since 1870, in INCOME & WEALTH OF THE UNITED STATES: TRENDS AND STRUCTURE 20, 63-69 (Simon Kuznets ed., 1952). Note also that a 1968 study showed a spectacular gain in leisure over the last century. See A. W. Sametz, Production of Goods and Services: The Measurement of Economic Growth, in INDICATORS OF SOCIAL CHANGE 77, 83 (Eleanor B. Sheldon & Wilbert E. Moore eds., 1968).
23. See, e.g., EZRA J. MISHAN, THE COSTS OF ECONOMIC GROWTH 122-66 (1967).
24. See Arthur M. Okun, Potential GNP: Its Measurement and Significance, in AM. STAT. ASS'N, 1962 PROCEEDINGS BUS. & ECON. STAT. SECTION 98, 103 (1962) ("[T]he reduction of one point in the unemployment rate means perhaps a 1.8 percent increase in total labor input measured in manhours. Then, to get the 3.2 percent increment in output, manhour productivity must rise by about 1.4 percent.").
25. See ECONOMIC REPORT OF THE PRESIDENT 304 (Poverty 1992) (1994) [hereinafter ECONOMIC REPORT OF THE PRESIDENT 1994]; ECONOMIC REPORT OF THE PRESIDENT 351 (GDP 1970-91), 382 (Unemployment 1970-92), 380 (Poverty 1970-91) (1993) [hereinafter ECONOMIC REPORT OF THE PRESIDENT 1993]; STATISTICAL ABSTRACT 1993, supra note 7, at 444 (GDP 1992).
26. See ECONOMIC REPORT OF THE PRESIDENT 304 (Poverty 1992) (1994) [hereinafter ECONOMIC REPORT OF THE PRESIDENT 1994]; ECONOMIC REPORT OF THE PRESIDENT 351 (GDP 1970-91), 382 (Unemployment 1970-92), 380 (Poverty 1970-91) (1993) [hereinafter ECONOMIC REPORT OF THE PRESIDENT 1993]; STATISTICAL ABSTRACT 1993, supra note 7, at 444 (GDP 1992).
27. See ECONOMIC REPORT OF THE PRESIDENT 304 (Poverty 1992) (1994) [hereinafter ECONOMIC REPORT OF THE PRESIDENT 1994]; ECONOMIC REPORT OF THE PRESIDENT 351 (GDP 1970-91), 382 (Unemployment 1970-92), 380 (Poverty 1970-91) (1993) [hereinafter ECONOMIC REPORT OF THE PRESIDENT 1993]; STATISTICAL ABSTRACT 1993, supra note 7, at 444 (GDP 1992).
28. See UNITED NATIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 1990 at 9, tbl. 1.1 (1990) [hereinafter HUMAN DEVELOPMENT REPORT 1990] (presenting information on Sri Lanka, Jamaica, and Costa Rica). The level of childhood immunizations puts the United States 21st in the world, tied with Pakistan and below India, Bulgaria, North Korea, Indonesia, and Botswana. See Moseley, supra note 13, § 1, at 4.
29. See HUMAN DEVELOPMENT REPORT 1990, supra note 21, at 9, tbl. 1.1. The points discussed in the text are connected to a broader debate. Emphasizing some of the problems with accounts inspired by utilitarianism, John Rawls proposes that judgments about well-being might be made by reference to "primary goods." In his latest formulation, Rawls points to "a. basic rights and liberties . . . ; b. freedom of movement and free choice of occupation against a background of diverse opportunities; c. powers and prerogatives of offices and positions of responsibility in the political and economic institutions of the basic structure; d. income and wealth; and finally, e. the social bases of self-respect." JOHN RAWLS, POLITICAL LIBERALISM 181 (1993). This approach is in many respects a considerable improvement over utilitarian accounts and those that rely on an aggregated figure representing the private willingness to pay. In place of primary goods, Amartya Sen has suggested that a good measure of well-being should focus on people's "capabilities" and "functionings." See AMARTYA SEN, INEQUALITY REEXAMINED 79-84 (1993). The term "capabilities" refers to a person's capacity or opportunity to choose among valuable activities or functionings. We might ask, for example, whether someone is able to get access to food, medical care, shelter, education, political participation, and so forth, or whether that person is able to avoid public and private violence, physical pain, and other forms of suffering. Like the list of primary goods, the list of capabilities and functionings is heterogeneous. Its chief advantage is that it enables us to focus on the question why such things as wealth and income are valuable, that is, what they enable people to have and to be.
30. See HUMAN DEVELOPMENT REPORT 1990, supra note 21, at 9, tbl. 1.1. The points discussed in the text are connected to a broader debate. Emphasizing some of the problems with accounts inspired by utilitarianism, John Rawls proposes that judgments about well-being might be made by reference to "primary goods." In his latest formulation, Rawls points to "a. basic rights and liberties . . . ; b. freedom of movement and free choice of occupation against a background of diverse opportunities; c. powers and prerogatives of offices and positions of responsibility in the political and economic institutions of the basic structure; d. income and wealth; and finally, e. the social bases of self-respect." JOHN RAWLS, POLITICAL LIBERALISM 181 (1993). This approach is in many respects a considerable improvement over utilitarian accounts and those that rely on an aggregated figure representing the private willingness to pay. In place of primary goods, Amartya Sen has suggested that a good measure of well-being should focus on people's "capabilities" and "functionings." See AMARTYA SEN, INEQUALITY REEXAMINED 79-84 (1993). The term "capabilities" refers to a person's capacity or opportunity to choose among valuable activities or functionings. We might ask, for example, whether someone is able to get access to food, medical care, shelter, education, political participation, and so forth, or whether that person is able to avoid public and private violence, physical pain, and other forms of suffering. Like the list of primary goods, the list of capabilities and functionings is heterogeneous. Its chief advantage is that it enables us to focus on the question why such things as wealth and income are valuable, that is, what they enable people to have and to be.
31. See HUMAN DEVELOPMENT REPORT 1990, supra note 21, at 9, tbl. 1.1. The points discussed in the text are connected to a broader debate. Emphasizing some of the problems with accounts inspired by utilitarianism, John Rawls proposes that judgments about well-being might be made by reference to "primary goods." In his latest formulation, Rawls points to "a. basic rights and liberties . . . ; b. freedom of movement and free choice of occupation against a background of diverse opportunities; c. powers and prerogatives of offices and positions of responsibility in the political and economic institutions of the basic structure; d. income and wealth; and finally, e. the social bases of self-respect." JOHN RAWLS, POLITICAL LIBERALISM 181 (1993). This approach is in many respects a considerable improvement over utilitarian accounts and those that rely on an aggregated figure representing the private willingness to pay. In place of primary goods, Amartya Sen has suggested that a good measure of well-being should focus on people's "capabilities" and "functionings." See AMARTYA SEN, INEQUALITY REEXAMINED 79-84 (1993). The term "capabilities" refers to a person's capacity or opportunity to choose among valuable activities or functionings. We might ask, for example, whether someone is able to get access to food, medical care, shelter, education, political participation, and so forth, or whether that person is able to avoid public and private violence, physical pain, and other forms of suffering. Like the list of primary goods, the list of capabilities and functionings is heterogeneous. Its chief advantage is that it enables us to focus on the question why such things as wealth and income are valuable, that is, what they enable people to have and to be.
32. Of course there may be harmful social effects from prohibiting the use of money as a basis for exchange, or from providing goods for free. Both of these decisions may mean that there is less wealth upon which to draw. But these are different matters.
33. This is a generalization of the "entitlement approach" suggested in AMARTYA SEN, POVERTY AND FAMINES 45-51 (1981).
34. Economists and others critical of GNP have proposed a number of alternative measures. William Nordhaus and James Tobin, two early critics, suggested that it would be better to attempt to generate a "measure of economic welfare" (MEW). See William D. Nordhaus & James Tobin, Is Growth Obsolete?, in THE MEASUREMENT OF ECONOMIC AND SOCIAL PERFORMANCE 509, 512-13 (Conference on Research in Income & Wealth, Studies in Income & Wealth Vol. 38, Milton Moss ed., 1973). A more recent measure is the Daly & Cobb "index of sustainable economic welfare" (ISEW). See HERMAN E. DALY & JOHN B. COBB, JR., FOR THE COMMON GOOD 401-55 (1989).
35. Economists and others critical of GNP have proposed a number of alternative measures. William Nordhaus and James Tobin, two early critics, suggested that it would be better to attempt to generate a "measure of economic welfare" (MEW). See William D. Nordhaus & James Tobin, Is Growth Obsolete?, in THE MEASUREMENT OF ECONOMIC AND SOCIAL PERFORMANCE 509, 512-13 (Conference on Research in Income & Wealth, Studies in Income & Wealth Vol. 38, Milton Moss ed., 1973). A more recent measure is the Daly & Cobb "index of sustainable economic welfare" (ISEW). See HERMAN E. DALY & JOHN B. COBB, JR., FOR THE COMMON GOOD 401-55 (1989).
36. See ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 8-16 (1993); Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 782-90 (1994).
37. See ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 8-16 (1993); Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 782-90 (1994).
38. The use of GNP creates other difficulties, but because these seem less fundamental and in some ways more complex, I simply identify them here. (a) GNP depends on willingness to pay and thus on existing preferences for various social goods. One could do much worse than to make assessments on the basis of existing preferences; people's well-being is certainly connected with satisfaction of consumption choices. Existing preferences are not, however, an adequate guide to social well-being, because they may depend on unjust background conditions or on simple ignorance. See AMARTYA SEN, COMMODITIES AND CAPABILITIES 48 (Professor Dr. P. Hennipman Lectures in Economics Vol. 7, 1985). (b) As noted, GNP is an important method for making cross-national comparisons. But per capita GNP is an inadequate comparative guide if there are large differences in conditions and hence in needs. If distinctive needs are a product of local circumstances, GNP per capita will be an inadequate proxy for well-being. (c) The existence of positional goods poses a problem for GNP. Positional goods are those that are valuable because only a few people have them. Status symbols of various sorts, including luxury automobiles, are examples. See Richard H. McAdams, Relative Preferences, 102 YALE L.J. 1, 18-19 (1992). If GNP is growing partly because it includes a large number of positional goods, it is not clear that welfare is growing as well.
39. The use of GNP creates other difficulties, but because these seem less fundamental and in some ways more complex, I simply identify them here. (a) GNP depends on willingness to pay and thus on existing preferences for various social goods. One could do much worse than to make assessments on the basis of existing preferences; people's well-being is certainly connected with satisfaction of consumption choices. Existing preferences are not, however, an adequate guide to social well-being, because they may depend on unjust background conditions or on simple ignorance. See AMARTYA SEN, COMMODITIES AND CAPABILITIES 48 (Professor Dr. P. Hennipman Lectures in Economics Vol. 7, 1985). (b) As noted, GNP is an important method for making cross-national comparisons. But per capita GNP is an inadequate comparative guide if there are large differences in conditions and hence in needs. If distinctive needs are a product of local circumstances, GNP per capita will be an inadequate proxy for well-being. (c) The existence of positional goods poses a problem for GNP. Positional goods are those that are valuable because only a few people have them. Status symbols of various sorts, including luxury automobiles, are examples. See Richard H. McAdams, Relative Preferences, 102 YALE L.J. 1, 18-19 (1992). If GNP is growing partly because it includes a large number of positional goods, it is not clear that welfare is growing as well.
40. The use of GNP creates other difficulties, but because these seem less fundamental and in some ways more complex, I simply identify them here. (a) GNP depends on willingness to pay and thus on existing preferences for various social goods. One could do much worse than to make assessments on the basis of existing preferences; people's well-being is certainly connected with satisfaction of consumption choices. Existing preferences are not, however, an adequate guide to social well-being, because they may depend on unjust background conditions or on simple ignorance. See AMARTYA SEN, COMMODITIES AND CAPABILITIES 48 (Professor Dr. P. Hennipman Lectures in Economics Vol. 7, 1985). (b) As noted, GNP is an important method for making cross-national comparisons. But per capita GNP is an inadequate comparative guide if there are large differences in conditions and hence in needs. If distinctive needs are a product of local circumstances, GNP per capita will be an inadequate proxy for well-being. (c) The existence of positional goods poses a problem for GNP. Positional goods are those that are valuable because only a few people have them. Status symbols of various sorts, including luxury automobiles, are examples. See Richard H. McAdams, Relative Preferences, 102 YALE L.J. 1, 18-19 (1992). If GNP is growing partly because it includes a large number of positional goods, it is not clear that welfare is growing as well.
41. See NORMAN FRUMKIN, GUIDE TO ECONOMIC INDICATORS at xiii (1990).
42. See HUMAN DEVELOPMENT REPORT 1993, supra note 12, at 129-34.
43. A possible exception is the Statistical Abstract, cited above in note 7. The abstract is helpful, but it has many failings as well. Above all, it is so detailed that readers cannot easily get a general picture; the latest edition includes 1433 tables.
44. See FRUMKIN, supra note 28, at 224.
45. See supra p. 1308 (showing the variation in unemployment rates over time).
46. See ECONOMIC REPORT OF THE PRESIDENT 1993, supra note 20, at 391.
47. See id.
48. See FRUMKIN, supra note 28, at 196.
49. See SEN, supra note 24, at 9-23 (discussing possible concepts of poverty).
50. See FRUMKIN, supra note 28, at 196. The "multiplication by three" is of course quite crude. It was based on a 1955 study showing that food consumes one-third of the average household budget. See id.
51. See U.S. DEP'T OF COMMERCE, CURRENT POPULATION REPORTS SERIES P-60, No. 181, POVERTY IN THE UNITED STATES: 1991, at A-6 (Aug. 1992).
52. FRUMKIN, supra note 28, at 195.
53. See ECONOMIC REPORT OF THE PRESIDENT 1993, supra note 20, at 380, tbl. B-28.
54. See id. (showing that the percentage of blacks living in poverty is nearly triple that of whites, and that the percentage of black female householders in poverty is nearly double that of white female householders).
55. See FRUMKIN, supra note 28, at 63.
56. The information in this table was compiled from several sources. The CPI-U figures for all items were drawn from Statistical Abstract 1993, cited above in note 7, at 482, tbl. 756; the CPI-W figures, from Economic Indicators Handbook, cited above in note 8, at 227; CPI DETAILED REPORT, March 1993, at 166, tbl. 6A; and CPI DETAILED REPORT, March 1992, at 167, tbl. 6A. The CPI-U figures up to 1990 for all items excluding energy and all items excluding food and energy, are from Economic Report of the President 1993, cited above in note 20, at 414, tbl. B-58. The CPI-U figures for 1991 and 1992 are from Economic Report of the President 1994, cited above in note 20 at 339, tbl. B-62. CPI-U is the consumer price index for all urban consumers; CPI-W is the CPI for urban wage earners and clerical workers. In 1980, the CPI-U represented 80% of the noninstitutional population, and the CPI-W, 32%. See FRUMKIN, supra note 28, at 63.
57. See ECONOMIC REPORT OF THE PRESIDENT 1994, supra note 20, at 320, tbl. B-45; ECONOMIC REPORT OF THE PRESIDENT 1993, supra note 20, at 396, tbl. B-42.
58. See id.
59. The 1986-1991 figures are derived from the Statistical Abstract of the United States, which uses a slightly different definition of "after-tax" income than Norman Frumkin's Guide to Economic Indicators. See FRUMKIN, supra note 28, at 75, tbl. 15 (presenting the income before and after taxes for 1974-85); STATISTICAL ABSTRACT 1993, supra note 7, at 463, tbl. 722. (presenting the figures for income before and after taxes in 1991); U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 462, tbl. 731 (112th ed. 1992) (presenting the figures for income before and after taxes in 1990); U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 449, tbl. 724 (110th ed. 1990) (describing income before and after taxes for 1986).
60. See Robert W. Hahn & John A. Hird, The Costs and Benefits of Regulation: Review and Synthesis, 8 YALE J. ON REG. 233, 249, 253 (1991).
61. See id. at 253.
62. See Dale W. Jorgensen & Peter J. Wilcoxen, Environmental Regulation and U.S. Economic Growth, 21 RAND J. ECON. 314, 315 (1990).
63. See BREYER, supra note 3, at 24-27, tbl. 5.
64. See STATISTICAL ABSTRACT 1993, supra note 7, at 189-90.
65. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFORM CRIME REPORTS FOR THE UNITED STATES 1992, at 58, tbl. 1 (1992).
66. HUMAN DEVELOPMENT REPORT 1990, supra note 21, at 9.
67. See id. at 11-13.
68. See id. at 12.
69. See UNITED NATIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 1991, at 90 (1991).
70. See HUMAN DEVELOPMENT REPORT 1990, supra note 21, at 12.
71. See HUMAN DEVELOPMENT REPORT 1993, supra note 12, at 135, tbl. 1.
72. 60 Compare HUMAN DEVELOPMENT REPORT 1990, supra note 21, at 129 (listing adult literacy rate in the U.S. for 1985) with HUMAN DEVELOPMENT REPORT 1993, supra note 12, at 135, tbl. 1 (listing adult literacy rate in the U.S. for 1990).
73. See HUMAN DEVELOPMENT REPORT 1993, supra note 12, at 136, tbl. 1.
74. See id. at 135-36.
75. See id. at 18.
76. See id.
77. See id. at 16.
78. See id. at 196, tbl. 34.
79. See id. at 192, tbl. 30.
80. See id.
81. See id.
82. See id.
83. See id.
84. In addition, there is a degree of crudeness in the choice of the three indicators. It might make sense to include poverty level, access to food, employment figures, and more. Moreover, educational attainment is not adequately measured by mean years of schooling. Literacy is a form of educational attainment, but it sets a low floor, and in any case it is far from clear that, in assessing educational attainment, we should count literacy for two and mean years for one in some aggregate figure. Perhaps a composite figure could be developed on the basis of a more precise inquiry into relevant factors. Cf. PARTHA DASGUPTA, AN INQUIRY INTO WELL-BEING AND DESTITUTION 77-78 (1993) (noting the absence of attention to civil and political liberties in conventional measures of well-being, such as the HDI).
85. The report does, however, try to take distribution into account by using adjusted tables. See HUMAN DEVELOPMENT REPORT 1903, supra note 12, at 17, tbl. 1.4.
86. See Robert Erikson, Descriptions of Inequality: The Swedish Approach to Welfare Research, in THE QUALITY OF LIFE 67, tbl. 1 (Martha C. Nussbaum & Amartya Sen eds., 1992).
87. It would be possible to have a purely subjective account, but such an account would be subject to distortions. See Ian Miles, Social Indicators for Real-Life Economics, in REAL-LIFE ECONOMICS, supra note 15, at 283, 287-88; see also SEN, supra note 27, at 22 (rejecting as inadequate a measure of well-being based on happiness or desire-fulfillment).
88. See Erik Allardt, Having, Loving, Being: An Alternative to the Swedish Model of Welfare Research, in THE QUALITY OF LIFE, supra note 74, at 88, 88-89.
89. See id. at 89-90.
90. See, e.g., UNITED NATIONS CHILDREN'S FUND, THE STATE OF THE WORLD'S CHILDREN 1987, at 128-29, tbl. 1 (1987).
91. See Miles, supra note 75, at 290.
92. See id.
93. See ROBERT V. HORN, STATISTICAL INDICATORS FOR THE ECONOMIC AND SOCIAL SCIENCES 142-44 (1993).
94. Note especially the attempt to integrate liberties and economic variables in DASGUPTA, cited above in note 72, at 108-16. Two efforts at tabulating human rights records in numerical form are FREEDOM HOUSE, FREEDOM IN THE WORLD 572-75, 578-79 (1992); and CHARLES HUMANA, WORLD HUMAN RIGHTS GUIDE passim (3d ed. 1992).
95. See AMARTYA SEN, RESOURCES, VALUES AND DEVELOPMENT 500-03 (1984) (discussing the important role of news media in combatting famines).
96. See id.; see also Amartya Sen, Freedoms and Needs, THE NEW REPUBLIC, Jan. 10 & 17, 1994, at 31, 33-34 (emphasizing the importance of free expression and the press to a government's willingness to address human suffering).
97. See Sen, supra note 84, at 34.
98. See id. at 32. Sen writes: Political rights can have a major role in providing incentives and information toward the solution of economic privation. But the connections between rights and needs are not merely instrumental; they are also constitutive. For our conceptualization of economic needs depends on open public debates and discussions, and the guaranteeing of those debates and those discussions requires an insistence on political rights. Id.
99. See Cass R. Sunstein, Endogenous Preferences, Environmental Law, 22 J. LEGAL STUD. 217, 241-42 (1993).
100. A similar report should be compiled in other nations and be made available for international comparison and review. See Cass R. Sunstein, Information, Please, 2 E. EUR. CONST. REV. 54, 54 (1993).
101. See Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 304 (1991).
102. Amartya Sen writes: Finally, the focus on entitlement has the effect of emphasizing legal rights. Other relevant factors, for example market forces, can be seen as operating through a system of legal relations (ownership rights, contractual obligations, legal exchanges, etc.). The law stands between food availability and food entitlement. Starvation deaths can reflect legality with a vengeance. SEN, supra note 24, at 165-66.
103. See WESLEY A. MAGAT & W. KIP VISCUSI, INFORMATIONAL APPROACHES TO REGULATION 186-88 (1992); Cass R. Sunstein, Informing America: Risk, Disclosure, and the First Amendment, 20 FLA. ST. U. L. REV. 653, 662 (1993); W. Kip Viscusi, Wesley A. Magat & Joel Huber, Informational Regulation of Consumer Health Risks: an Empirical Evaluation of Hazard Warnings, 17 RAND J. ECON. 351, 362 (1986) (concluding, based on empirical study, that warning labels affect consumer behavior).
104. See WESLEY A. MAGAT & W. KIP VISCUSI, INFORMATIONAL APPROACHES TO REGULATION 186-88 (1992); Cass R. Sunstein, Informing America: Risk, Disclosure, and the First Amendment, 20 FLA. ST. U. L. REV. 653, 662 (1993); W. Kip Viscusi, Wesley A. Magat & Joel Huber, Informational Regulation of Consumer Health Risks: an Empirical Evaluation of Hazard Warnings, 17 RAND J. ECON. 351, 362 (1986) (concluding, based on empirical study, that warning labels affect consumer behavior).
105. See WESLEY A. MAGAT & W. KIP VISCUSI, INFORMATIONAL APPROACHES TO REGULATION 186-88 (1992); Cass R. Sunstein, Informing America: Risk, Disclosure, and the First Amendment, 20 FLA. ST. U. L. REV. 653, 662 (1993); W. Kip Viscusi, Wesley A. Magat & Joel Huber, Informational Regulation of Consumer Health Risks: an Empirical Evaluation of Hazard Warnings, 17 RAND J. ECON. 351, 362 (1986) (concluding, based on empirical study, that warning labels affect consumer behavior).