Cost-Benefit Default Principles

Authors

Cass R. Sunstein, University of Chicago Law SchoolFollow

Abstract

Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to preclude consideration of cost" that we find agencies barred from considering costs. In order better to achieve regulatory goals - for example, to allocate resources so that they save more lives or produce a cleaner environment - regulators must often take account of all of a proposed regulation's adverse effects, at least where those effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation. The rule-implicit valuation of a life is high - about $4 million - but not so astronomical, certainly by regulatory standards, as to call the rationality of the rule seriously into question, especially when we consider that neither Hepatitis B nor AIDS is a disease of old people. These diseases are no respecters of youth; they cut off people in their working years, and thus in their prime, and it is natural to set a high value on the lost years.

Recommended Citation

Cass R. Sunstein, Cost-Benefit Default Principles, 99 Mich. L. Rev. 1651 (2001).
Available at: https://repository.law.umich.edu/mlr/vol99/iss7/2