The Expressiveness of Regulatory Trade-Offs

Trade-offs between a sacred value—like human life—against a secular one—like money—are considered taboo.People are supposed to be offended by such trade-offs and topunish those who contemplate them. Yet the last decades in theUnited States have witnessed the rise of the cost-benefit state.Most major rules promulgated today undergo a regulatoryimpact analysis, and agencies monetize risks as grave as thoseto human life and values as abstract as human dignity.Prominent academics and lawmakers advocate the weighing ofcosts and benefits as an element of rational regulation. Thecost-benefit revolution is a technocratic coup, however, ifcitizens view regulatory trade-offs as a symbolic denial of thevalues they hold dear.This Article details three experiments that evaluateresponses to a cost-benefit justification for regulatory policy.Across a range of conditions, the experiments revealed noevidence of diffuse hostility toward a consequentialist approachto saving lives. The final experiment found, however, thatinforming participants that they were expected to vindicate thesanctity of life resulted in them doing so.

This resultdemonstrates the malleability of norms and expectationssurrounding regulatory trade-offs.Taken together, the experiments suggest that peoplenormally do not perceive regulatory trade-offs as symbolicaffronts that call for an expressive defense of the value of life.While these results do not conclusively establish the normativedesirability of the cost-benefit paradigm, they do suggest theabsence of any broad opposition to consequentialism in public life. These findings have implications for the democraticlegitimacy of the administrative state and its institutionaldesign. They also bear on the relationship between tort andregulation as mechanisms for risk control. Insofar as tortjudgments are expressive and regulatory decisions are not,regulation that preempts the common law of torts might helptemper the tangible costs of symbolism.