Risk in the Republic

Duke Environmental Law and Policy Forum

Volumn 8, Issue 1, 1997, Pages 1-21

  Wiener, Jonathan Baert ^a,b  

^a DUKE UNIVERSITY   (United States)

^b Soc Risk Anal Res Triangle C

Author keywords

[No Author keywords available]

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EID: 7844240880     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (65)

1. See Symposium, Beyond the Balance of Nature: Environmental Law Faces the New Ecology, 7 DUKE ENVTL. L. & POLICY FORUM 1 (1996).
2. See COMPARING ENVIRONMENTAL RISKS: TOOLS FOR SETTING GOVERNMENT PRIORITIES (J. Clarence Davies ed., 1996). Even critics of CRA agree that some form of comparison is inevitable and that it must be done constructively; they object to a purely quantitative version of CRA that omits attention to qualitative attributes. See Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Donald T. Hornstein, Paradigms, Process, and Politics: Risk and Regulatory Design, in WORST THINGS FIRST? THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 147 (Adam M. Finkel & Dominic Golding, eds., 1994).
3. See COMPARING ENVIRONMENTAL RISKS: TOOLS FOR SETTING GOVERNMENT PRIORITIES (J. Clarence Davies ed., 1996). Even critics of CRA agree that some form of comparison is inevitable and that it must be done constructively; they object to a purely quantitative version of CRA that omits attention to qualitative attributes. See Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Donald T. Hornstein, Paradigms, Process, and Politics: Risk and Regulatory Design, in WORST THINGS FIRST? THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 147 (Adam M. Finkel & Dominic Golding, eds., 1994).
4. See COMPARING ENVIRONMENTAL RISKS: TOOLS FOR SETTING GOVERNMENT PRIORITIES (J. Clarence Davies ed., 1996). Even critics of CRA agree that some form of comparison is inevitable and that it must be done constructively; they object to a purely quantitative version of CRA that omits attention to qualitative attributes. See Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562 (1992); Donald T. Hornstein, Paradigms, Process, and Politics: Risk and Regulatory Design, in WORST THINGS FIRST? THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES 147 (Adam M. Finkel & Dominic Golding, eds., 1994).
5. See the essays by Ann Bostrom and Howard Margolis in this symposium issue.
6. See STEPHEN G. BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 21 & Table 4, 34 & Table 6 (1993) (citing studies by EPA and by Paul Slovic). Citing EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987), Breyer reports that the public ranks hazardous waste sites #1 whereas experts rank them "medium-to-low," and the public ranks indoor radon #25 whereas experts rank it "high." Id. at 21 & Table 4. Citing Paul Slovic, Perception of Risk, 236 SCIENCE 280, 281 (1987), Breyer reports that the public ranks nuclear power #1 whereas experts rank it #20, and the public ranks x-rays #22 whereas experts rank it #7. Id. at 34 & Table 6.
7. See STEPHEN G. BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 21 & Table 4, 34 & Table 6 (1993) (citing studies by EPA and by Paul Slovic). Citing EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987), Breyer reports that the public ranks hazardous waste sites #1 whereas experts rank them "medium-to-low," and the public ranks indoor radon #25 whereas experts rank it "high." Id. at 21 & Table 4. Citing Paul Slovic, Perception of Risk, 236 SCIENCE 280, 281 (1987), Breyer reports that the public ranks nuclear power #1 whereas experts rank it #20, and the public ranks x-rays #22 whereas experts rank it #7. Id. at 34 & Table 6.
8. See STEPHEN G. BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 21 & Table 4, 34 & Table 6 (1993) (citing studies by EPA and by Paul Slovic). Citing EPA, UNFINISHED BUSINESS: A COMPARATIVE ASSESSMENT OF ENVIRONMENTAL PROBLEMS (1987), Breyer reports that the public ranks hazardous waste sites #1 whereas experts rank them "medium-to-low," and the public ranks indoor radon #25 whereas experts rank it "high." Id. at 21 & Table 4. Citing Paul Slovic, Perception of Risk, 236 SCIENCE 280, 281 (1987), Breyer reports that the public ranks nuclear power #1 whereas experts rank it #20, and the public ranks x-rays #22 whereas experts rank it #7. Id. at 34 & Table 6.
9. See his remarks in this issue.
10. Indeed, advocates of expertise in risk policy fully expect and desire that decisions will be made democratically. See BREYER, supra note 4, at 73-78; Alice M. Rivlin, Rationalism and Redemocratization: Time for a Truce, in WORST THINGS FIRST? THE DEBATE OVER RISK-BASED NATIONAL ENVIRONMENTAL PRIORITIES, supra note 2, at 21, 23-26.
11. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965) (political voice systematically over-represents organized groups' special interests and under-represents citizens' diffuse general interests).
12. See their essays in this issue.
13. See her essay in this issue.
14. Often these risk pairs are linked in a risk-risk tradeoff, such that efforts to reduce one risk would induce increases in the other risk. In such cases, some way of comparing and weighing the risks is essential. See RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. Graham & Jonathan Baert Wiener, eds., 1995).
15. See Susan Putnam & Jonathan Baert Wiener, Seeking Safe Drinking Water, in RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT, supra note 10, at 124.
16. As Tardiff noted, other disinfectants might be used instead of chlorine, and their risks need evaluation. See Putnam & Wiener, supra note 11.
17. See his essay Improving Comparative Risk Analysis in this issue.
18. See her essay in this issue.
19. She also noted that experts are not purely quantitative number-crunchers; they also bring their own values, leanings and cognitive approaches to risk evaluations.
20. See Slovic, supra note 4; K.S. SHRADER-FRECHETTE, RISK AND RATIONALITY (1991); Clayton P. Gilette & James E. Krier, Risks, Courts and Agencies, 138 U. PA. L. REV. 1027 (1990).
21. See Slovic, supra note 4; K.S. SHRADER-FRECHETTE, RISK AND RATIONALITY (1991); Clayton P. Gilette & James E. Krier, Risks, Courts and Agencies, 138 U. PA. L. REV. 1027 (1990).
22. See, e.g., George Tolley et al., State-of-the-Art Health Values, in VALUING HEALTH FOR POLICY: AN ECONOMIC APPROACH 323, 339-44 (George Tolley et al., eds., 1994) (people appear to value avoiding death by cancer several times more than they value avoiding an equal quantitative likelihood of death by automobile accident).
23. See his essay in this issue.
24. See his essay Comparative Risk Analysis: an Informal Survey of Experts in this issue.
25. See, e.g., Tolley, supra note 17; Robin Gregory & Sarah Lichtenstein, A Hint of Risk: Tradeoffs Between Quantitative and Qualitative Risk Factors, 14 RISK ANALYSIS 199 (1994); Timothy L. McDaniels et al., Risk Perception and the Value of Safety, 12 RISK ANALYSIS 495 (1992); Ian Savage, An Empirical Investigation into the Effect of Psychological Perception on the Willingness-to-Pay to Reduce Risk, 6 J. RISK & UNCERTAINTY 75 (1993); W. Kip Viscusi, Wes Magat, & Joel Huber, Pricing Environmental Health Risks: Survey Assessments of Risk- and Risk-Dollar Trade-offs for Chronic Bronchitis, 21 J. ENVTL. ECON. AND MGMT. 32 (1991). The observed risk premia (compensating wage differentials) actually demanded by workers to face higher risks on the job are presumably also sensitive to the qualitative attributes associated with different risks, but the literature on worker risk premia does not appear to have attempted to distinguish and measure the WTP for these qualitative attributes. See W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK 51-74 (1992).
26. See, e.g., Tolley, supra note 17; Robin Gregory & Sarah Lichtenstein, A Hint of Risk: Tradeoffs Between Quantitative and Qualitative Risk Factors, 14 RISK ANALYSIS 199 (1994); Timothy L. McDaniels et al., Risk Perception and the Value of Safety, 12 RISK ANALYSIS 495 (1992); Ian Savage, An Empirical Investigation into the Effect of Psychological Perception on the Willingness-to-Pay to Reduce Risk, 6 J. RISK & UNCERTAINTY 75 (1993); W. Kip Viscusi, Wes Magat, & Joel Huber, Pricing Environmental Health Risks: Survey Assessments of Risk- and Risk-Dollar Trade-offs for Chronic Bronchitis, 21 J. ENVTL. ECON. AND MGMT. 32 (1991). The observed risk premia (compensating wage differentials) actually demanded by workers to face higher risks on the job are presumably also sensitive to the qualitative attributes associated with different risks, but the literature on worker risk premia does not appear to have attempted to distinguish and measure the WTP for these qualitative attributes. See W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK 51-74 (1992).
27. See, e.g., Tolley, supra note 17; Robin Gregory & Sarah Lichtenstein, A Hint of Risk: Tradeoffs Between Quantitative and Qualitative Risk Factors, 14 RISK ANALYSIS 199 (1994); Timothy L. McDaniels et al., Risk Perception and the Value of Safety, 12 RISK ANALYSIS 495 (1992); Ian Savage, An Empirical Investigation into the Effect of Psychological Perception on the Willingness-to-Pay to Reduce Risk, 6 J. RISK & UNCERTAINTY 75 (1993); W. Kip Viscusi, Wes Magat, & Joel Huber, Pricing Environmental Health Risks: Survey Assessments of Risk- and Risk-Dollar Trade-offs for Chronic Bronchitis, 21 J. ENVTL. ECON. AND MGMT. 32 (1991). The observed risk premia (compensating wage differentials) actually demanded by workers to face higher risks on the job are presumably also sensitive to the qualitative attributes associated with different risks, but the literature on worker risk premia does not appear to have attempted to distinguish and measure the WTP for these qualitative attributes. See W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK 51-74 (1992).
28. See, e.g., Tolley, supra note 17; Robin Gregory & Sarah Lichtenstein, A Hint of Risk: Tradeoffs Between Quantitative and Qualitative Risk Factors, 14 RISK ANALYSIS 199 (1994); Timothy L. McDaniels et al., Risk Perception and the Value of Safety, 12 RISK ANALYSIS 495 (1992); Ian Savage, An Empirical Investigation into the Effect of Psychological Perception on the Willingness-to-Pay to Reduce Risk, 6 J. RISK & UNCERTAINTY 75 (1993); W. Kip Viscusi, Wes Magat, & Joel Huber, Pricing Environmental Health Risks: Survey Assessments of Risk- and Risk-Dollar Trade-offs for Chronic Bronchitis, 21 J. ENVTL. ECON. AND MGMT. 32 (1991). The observed risk premia (compensating wage differentials) actually demanded by workers to face higher risks on the job are presumably also sensitive to the qualitative attributes associated with different risks, but the literature on worker risk premia does not appear to have attempted to distinguish and measure the WTP for these qualitative attributes. See W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK 51-74 (1992).
29. See, e.g., Tolley, supra note 17; Robin Gregory & Sarah Lichtenstein, A Hint of Risk: Tradeoffs Between Quantitative and Qualitative Risk Factors, 14 RISK ANALYSIS 199 (1994); Timothy L. McDaniels et al., Risk Perception and the Value of Safety, 12 RISK ANALYSIS 495 (1992); Ian Savage, An Empirical Investigation into the Effect of Psychological Perception on the Willingness-to-Pay to Reduce Risk, 6 J. RISK & UNCERTAINTY 75 (1993); W. Kip Viscusi, Wes Magat, & Joel Huber, Pricing Environmental Health Risks: Survey Assessments of Risk- and Risk-Dollar Trade-offs for Chronic Bronchitis, 21 J. ENVTL. ECON. AND MGMT. 32 (1991). The observed risk premia (compensating wage differentials) actually demanded by workers to face higher risks on the job are presumably also sensitive to the qualitative attributes associated with different risks, but the literature on worker risk premia does not appear to have attempted to distinguish and measure the WTP for these qualitative attributes. See W. KIP VISCUSI, FATAL TRADEOFFS: PUBLIC AND PRIVATE RESPONSIBILITIES FOR RISK 51-74 (1992).
30. See Gregory & Lichtenstein, supra note 20; Viscusi et al., supra note 20.
31. Previous efforts developing measures of the tradeoff between risk quantities and risk qualities include Gregory & Lichtenstein, supra note 20, and MAUREEN L. CROPPER & UMA SUBRAMANIAN, PUBLIC CHOICES BETWEEN LIFESAVING PROGRAMS: HOW IMPORTANT ARE LIVES SAVED? (The World Bank, Policy Research Working Paper No. 1497, August 1995). But Gregory & Lichtenstein only compared the number of deaths or injuries needed to warrant a new technology (bicycle brakes or plastic cars) by two groups of respondents, one presented with a qualitative description and the other not, rather than asking each respondent to indicate along a sliding scale the incremental number of lives saved that would justify incremental increases in the qualitative attribute. Cropper and Subramanian did ask for the incremental lives that would need to be saved to warrant facing a qualitative attribute, but studied only voluntariness, controllability, seriousness, and personal impact, and did not focus on qualitative attributes such as dread, unfamiliarity and unnaturalness.
32. See Jonathan Baert Wiener, Beyond the Balance of Nature, 7 DUKE ENVTL. L. & POLICY FORUM 1 (1997).
33. See Richard H. Pildes & Cass R. Sunstein, Reinventing The Regulatory State, 62 U. CHI. L. REV. 1, 62 (1995) ("when the differences [in risk evaluation] arise from clashes between the value frameworks of experts and laypeople ... there is no reason to defer to experts; democracies should be responsive to the informed values of their citizens.").
34. See Cass R. Sunstein, Preferences and Politics, 20 PHIL. & PUB. AFF. 3 (1991).
35. See Cass R. Sunstein, Which Risks First? 1997 U. CHI. LEGAL FORUM (forthcoming 1997) (on file with U. CHI. L. REV.). See also Cass R. Sunstein, Bad Deaths, 14 J. RISK & UNCERTAINTY 259 (1997).
36. See Cass R. Sunstein, Which Risks First? 1997 U. CHI. LEGAL FORUM (forthcoming 1997) (on file with U. CHI. L. REV.). See also Cass R. Sunstein, Bad Deaths, 14 J. RISK & UNCERTAINTY 259 (1997).
37. See his essay in this symposium issue. See also Sunstein, Which Risks First?, supra note 26.
38. Public (majoritarian) vs. expert (rationalist) control of government was at the heart of the debate over the structure of the American Constitution, and of the compromise of checks and balances fashioned by Madison. See William Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275 (1988).
39. THOMAS JEFFERSON, Letter to Mr. Jarvis, Sept. 28, 1820, in 7 THE WRITINGS OF THOMAS JEFFERSON 177 (H.A. Washington ed., 1854). See also THOMAS JEFFERSON, Letter to Samuel Kercheval, July 12, 1816, in 15 THE WRITINGS OF THOMAS JEFFERSON: MEMORIAL EDITION 32, 33 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904) ("[G]overnments are republican only in proportion as they embody the will of the people, and execute it."). But see JOSEPH J. ELLIS, THE AMERICAN SPHINX (1997) (arguing that Jefferson was not as pure a populist as is often assumed).
40. THOMAS JEFFERSON, Letter to Mr. Jarvis, Sept. 28, 1820, in 7 THE WRITINGS OF THOMAS JEFFERSON 177 (H.A. Washington ed., 1854). See also THOMAS JEFFERSON, Letter to Samuel Kercheval, July 12, 1816, in 15 THE WRITINGS OF THOMAS JEFFERSON: MEMORIAL EDITION 32, 33 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904) ("[G]overnments are republican only in proportion as they embody the will of the people, and execute it."). But see JOSEPH J. ELLIS, THE AMERICAN SPHINX (1997) (arguing that Jefferson was not as pure a populist as is often assumed).
41. THOMAS JEFFERSON, Letter to Mr. Jarvis, Sept. 28, 1820, in 7 THE WRITINGS OF THOMAS JEFFERSON 177 (H.A. Washington ed., 1854). See also THOMAS JEFFERSON, Letter to Samuel Kercheval, July 12, 1816, in 15 THE WRITINGS OF THOMAS JEFFERSON: MEMORIAL EDITION 32, 33 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904) ("[G]overnments are republican only in proportion as they embody the will of the people, and execute it."). But see JOSEPH J. ELLIS, THE AMERICAN SPHINX (1997) (arguing that Jefferson was not as pure a populist as is often assumed).
42. EDMUND BURKE, Speech at the Conclusion of the Poll, Nov. 3, 1774, in 3 THE WRITINGS AND SPEECHES OF EDMUND BURKE 64, 69 (W.M. Elofson & John A. Woods eds., 1996). There is room for agreement between these pronouncements of Jefferson and Burke; for example, both might agree that the best instrumental method of "informing the public's discretion" would be for government officials to demonstrate enlightened leadership that, although it diverges from current public opinion, prompts reflection and shapes a new and better public opinion. Cf. R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 10-16 (1990) (successful representatives do not just reflect current public views, but respond to, and help shape, citizens' "potential preferences").
43. EDMUND BURKE, Speech at the Conclusion of the Poll, Nov. 3, 1774, in 3 THE WRITINGS AND SPEECHES OF EDMUND BURKE 64, 69 (W.M. Elofson & John A. Woods eds., 1996). There is room for agreement between these pronouncements of Jefferson and Burke; for example, both might agree that the best instrumental method of "informing the public's discretion" would be for government officials to demonstrate enlightened leadership that, although it diverges from current public opinion, prompts reflection and shapes a new and better public opinion. Cf. R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 10-16 (1990) (successful representatives do not just reflect current public views, but respond to, and help shape, citizens' "potential preferences").
44. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION (1974).
45. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
46. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
47. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
48. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
49. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
50. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
51. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
52. See R. DOUGLAS ARNOLD, supra note 30; Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1 (1991); ARTHUR MAASS, CONGRESS AND THE COMMON GOOD (1983); MARC K. LANDY & MARTIN A. LEVIN, THE NEW POLITICS OF PUBLIC POLICY (1995); James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 363 (James Q. Wilson ed., 1980). See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965); James Q. Wilson, supra note 32, at 366-372; JAMES Q. WILSON, POLITICAL ORGANIZATIONS 327-45 (1973); WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); DENNIS C. MUELLER, PUBLIC CHOICE II (1989).
53. See Sunstein, Preferences and Politics, supra note 24.
54. See BREYER, supra note 4, at 35-38; Howard Margolis's essay in this symposium issue; Roger G. Noll & James E. Krier, Some Implications of Cognitive Psychology for Risk Regulation, 19 J. LEGAL STUD. 747 (1990). See supra text accompanying note 18.
55. See BREYER, supra note 4, at 39.
56. Approaches that seek to maximize the number of lives saved, or of life-years saved, or some other purely physical measure of risk, do not involve benefits valuations, and may be criticized for their failure to link risk data to public evaluations of the different qualitative contexts surrounding different risks. In economic terms, the maximand is the utility of risk reduction, not the physical units of risk reduction.
57. See W. KIP VISCUSI, supra note 20, at 19-21.
58. Applying a one-size-fits all measure of the average value of risk avoidance, such as, say, valuing benefits at $5 million per statistical life saved regardless of the source or setting of the health risk, would obscure the different qualitative factors and different value choices embedded in different risk contexts. Employing more finely disaggregated values of risk avoidance, thereby matching the context of the observed marketplace choice or contingent valuation survey question to the context of the risk policy being examined by the expert, would yield a more qualitatively accurate risk valuation. See VALUING HEALTH FOR POLICY: AN ECONOMIC APPROACH, supra note 17.
59. E.g., CROPPER & SUBRAMANIAN, supra note 22, at 31-32, found that the median respondent traded a life for a life regardless of the qualitative variations. They did find, however, that 20% of the respondents placed nearly infinite importance on the qualitative attributes, refusing to trade any number of quantitative lives to incur the qualitative attributes.
60. This positivist inference confronts the problem of nonfalsifiability. It is a bit like the approach of observing legislative outcomes, separately observing that certain industry groups benefited from the legislation, and then inferring that these industry groups must have been the key political force driving the adoption of the legislation. Maybe, but maybe not - other variables could have explained the legislative outcome. See Roger G. Noll, Economic Perspectives on the Politics of Regulation, in 2 HANDBOOK OF INDUSTRIAL ORGANIZATION 1253, 1276-1277 (Richard Schmalensee & Robert D. Willig eds., 1989) ("[T]he empirical studies surveyed here are broadly consistent with, but do not really prove, the political theory of regulation ... [There is] the lurking danger of tautology [because it] is impossible to imagine that regulation could be imposed without redistributing income. Hence, a look for winners in the process ... is virtually certain to succeed."). Likewise, it is virtually certain that in hindsight we will be able to point to qualitative differences among differently ranked risks, but that does not necessarily mean that the qualitative differences account for the variations in public concern. Margolis's concern is that other variables could explain the observed public responses to diverse risks, besides the qualitative attributes noticed after the fact by experts.
61. See Howard Margolis's essay in this symposium issue; HOWARD MARGOLIS, DEALING WITH RISK: WHY THE PUBLIC AND THE EXPERTS DISAGREE ON ENVIRONMENTAL ISSUES (1996).
62. Some preference-shaping role for government may be inescapable, insofar as government defines and enforces the terms of market arrangements, rights, and other features of life that influence private endowments, options, and expressed preferences.
63. The normative goal might be to make risk regulation "efficient" in the sense of maximizing social well-being. Critics argue that current risk regulation does not maximize social well-being, because current regulations target many quantitatively small risks and thus miss more cost-effective opportunities to maximize the number of lives saved (or life-years saved). See BREYER, supra note 4; Tammy O. Tengs & John D. Graham, The Opportunity Costs of Haphazard Social Investments in Life-Saving, in RISKS, COSTS AND LIVES SAVED 167 (Robert W. Hahn, ed., 1996). Defenders of current risk regulation may counter that it does maximize social well-being once qualitative values are taken into account. See, e.g. M. Granger Morgan, Quantitative Risk Ranking: More Promise than the Critics Suggest, in WORST THINGS FIRST?, supra note 2, at 133, 137-38 (describing the contention that current risk priorities are ideal once qualitative factors are considered). Cf. Dan M. Kahan, Social Meaning and the Economic Analysis of Crime, - J. LEGAL STUD. - (forthcoming 1998) (criminal law, even if it does not minimize the number of crimes, might be efficient once one takes account of the social meanings (i.e. qualitative attributes) of the condemnatory messages expressed in criminal laws). Certainly optimal risk regulation would maximize the social value of risk reduction, not just the number of lives saved. But the claim that this is already the situation again confronts the problem of nonfalsifiability. See supra note 41 (on potential nonfalsifiability of interest group theory of regulation). It would be too easy to assert that whatever pattern of risk regulation emerges must be socially efficient because it reflects unmeasurable qualitative values. Any regulatory pattern could be explained on this basis, inferring the relevant qualitative attributes in hindsight. On this account, the status quo would always be the best of all possible regulatory worlds. Thus, a more tractable and predictive identification of qualitative attributes, and one that allows the possibility of other explanatory factors for observed regulatory priorities (e.g. heuristic errors and interest group rent-seeking), is needed to address this question. Moreover, even if qualitative attributes - the values of the social meaning of risk - do in fact explain observed regulatory outcomes, this positivist claim does not necessarily warrant the normative conclusion that these qualitative attributes are the proper basis for regulation. Public values may at times be venal, vengeful, or xenophobic. See Frank Cross's essay in this symposium issue. Hence a more coherent normative synthesis is needed to distinguish majoritarian risk regulation from socially ideal risk regulation.
64. The normative goal might be to make risk regulation "efficient" in the sense of maximizing social well-being. Critics argue that current risk regulation does not maximize social well-being, because current regulations target many quantitatively small risks and thus miss more cost-effective opportunities to maximize the number of lives saved (or life-years saved). See BREYER, supra note 4; Tammy O. Tengs & John D. Graham, The Opportunity Costs of Haphazard Social Investments in Life-Saving, in RISKS, COSTS AND LIVES SAVED 167 (Robert W. Hahn, ed., 1996). Defenders of current risk regulation may counter that it does maximize social well-being once qualitative values are taken into account. See, e.g. M. Granger Morgan, Quantitative Risk Ranking: More Promise than the Critics Suggest, in WORST THINGS FIRST?, supra note 2, at 133, 137-38 (describing the contention that current risk priorities are ideal once qualitative factors are considered). Cf. Dan M. Kahan, Social Meaning and the Economic Analysis of Crime, - J. LEGAL STUD. - (forthcoming 1998) (criminal law, even if it does not minimize the number of crimes, might be efficient once one takes account of the social meanings (i.e. qualitative attributes) of the condemnatory messages expressed in criminal laws). Certainly optimal risk regulation would maximize the social value of risk reduction, not just the number of lives saved. But the claim that this is already the situation again confronts the problem of nonfalsifiability. See supra note 41 (on potential nonfalsifiability of interest group theory of regulation). It would be too easy to assert that whatever pattern of risk regulation emerges must be socially efficient because it reflects unmeasurable qualitative values. Any regulatory pattern could be explained on this basis, inferring the relevant qualitative attributes in hindsight. On this account, the status quo would always be the best of all possible regulatory worlds. Thus, a more tractable and predictive identification of qualitative attributes, and one that allows the possibility of other explanatory factors for observed regulatory priorities (e.g. heuristic errors and interest group rent-seeking), is needed to address this question. Moreover, even if qualitative attributes - the values of the social meaning of risk - do in fact explain observed regulatory outcomes, this positivist claim does not necessarily warrant the normative conclusion that these qualitative attributes are the proper basis for regulation. Public values may at times be venal, vengeful, or xenophobic. See Frank Cross's essay in this symposium issue. Hence a more coherent normative synthesis is needed to distinguish majoritarian risk regulation from socially ideal risk regulation.
65. The normative goal might be to make risk regulation "efficient" in the sense of maximizing social well-being. Critics argue that current risk regulation does not maximize social well-being, because current regulations target many quantitatively small risks and thus miss more cost-effective opportunities to maximize the number of lives saved (or life-years saved). See BREYER, supra note 4; Tammy O. Tengs & John D. Graham, The Opportunity Costs of Haphazard Social Investments in Life-Saving, in RISKS, COSTS AND LIVES SAVED 167 (Robert W. Hahn, ed., 1996). Defenders of current risk regulation may counter that it does maximize social well-being once qualitative values are taken into account. See, e.g. M. Granger Morgan, Quantitative Risk Ranking: More Promise than the Critics Suggest, in WORST THINGS FIRST?, supra note 2, at 133, 137-38 (describing the contention that current risk priorities are ideal once qualitative factors are considered). Cf. Dan M. Kahan, Social Meaning and the Economic Analysis of Crime, - J. LEGAL STUD. - (forthcoming 1998) (criminal law, even if it does not minimize the number of crimes, might be efficient once one takes account of the social meanings (i.e. qualitative attributes) of the condemnatory messages expressed in criminal laws). Certainly optimal risk regulation would maximize the social value of risk reduction, not just the number of lives saved. But the claim that this is already the situation again confronts the problem of nonfalsifiability. See supra note 41 (on potential nonfalsifiability of interest group theory of regulation). It would be too easy to assert that whatever pattern of risk regulation emerges must be socially efficient because it reflects unmeasurable qualitative values. Any regulatory pattern could be explained on this basis, inferring the relevant qualitative attributes in hindsight. On this account, the status quo would always be the best of all possible regulatory worlds. Thus, a more tractable and predictive identification of qualitative attributes, and one that allows the possibility of other explanatory factors for observed regulatory priorities (e.g. heuristic errors and interest group rent-seeking), is needed to address this question. Moreover, even if qualitative attributes - the values of the social meaning of risk - do in fact explain observed regulatory outcomes, this positivist claim does not necessarily warrant the normative conclusion that these qualitative attributes are the proper basis for regulation. Public values may at times be venal, vengeful, or xenophobic. See Frank Cross's essay in this symposium issue. Hence a more coherent normative synthesis is needed to distinguish majoritarian risk regulation from socially ideal risk regulation.