President Obama’s 2011 Executive Order 13,563 on cost-benefit analysis (CBA) authorizes agencies to consider “human dignity” in identifying the costs and benefits of proposed regulation. The notion of incorporating dignity into CBA, this Note points out, highlights the importance of choosing between different conceptions of CBA: one that aims to derive a monetary figure for dignity, and one that seeks to take dignity into account in unmonetized form. This Note illuminates the stakes of the choice between monetized and unmonetized CBA by drawing attention to various ways in which dignity might be incorporated into CBA.
The Note then argues that CBA can and must include dignity in unmonetized form. In doing so, agencies should embrace “qualitative specificity,” which involves elucidating in qualitative terms the nature and gravity of dignitary considerations in a particular regulatory context. Qualitative specificity, the Note indicates, enables agencies more transparently to assess the positive and negative consequences of government regulation, and it facilitates public participation in the process of defining the nature of dignity in the senses relevant to the effects of government regulation. In response to the critique that qualitative specificity is indeterminate and fails to constrain administrative discretion, the Note contends that qualitative specificity provides only as much determinacy as is actually available; this approach is preferable to monetization that emerges with a determinate number but fails to accommodate the complex and malleable nature of dignity.Bayefsky concludes
Agencies incorporating dignity into CBA at times portray dignity as a monetizable value and at times emphasize the unmonetizable nature of dignity (sometimes within the same RIA). This combination of ways to treat dignity does not necessarily reflect a direct contradiction. OMB guidance, after all, instructs agencies to “monetize quantitative estimates wherever possible.” Agencies may consistently decide that certain dignitary values can be monetized, while others “cannot be quantified due to methodological and data constraints.” The “monetize whenever possible” approach may also be on display in Sunstein’s work. Sunstein takes the example of the disability rule to promote building access for people in wheelchairs, which would reduce stigmatic harm and humiliation. According to Sunstein, the agency could believe that a $25 million shortfall in monetized benefits is “not fatal, because nonquantifiable values are involved. Those values may well be sufficient to justify the regulation.” This suggests that dignity as an unmonetized benefit is being weighed against monetized costs, and winning. But as Sunstein further explicates this model, he tends towards monetization of dignity:
Suppose that the regulation would benefit relatively few people—that the number of disabled people who would have access to bathrooms, as a result of the regulation, would be around 200 per year. If so, the question would be whether it would be worthwhile to spend over $46 million annually for each. Recall that some studies suggest that the value of a statistical life ranges around $7-$8 million; in that light, a $46 million annual expenditure would seem difficult to defend.
After “200 per year,” Sunstein has reached Quantitative Monetization (Option 2). After “whether it would be worthwhile to spend over $46 million annually for each,” Sunstein has reached Cost Monetization (Option 3). But in order to resolve the question of whether to spend $46 million, he turns to studies on the value of a statistical life, such as those based on wage differentials in risky jobs, which are commonly used in conventional CBA. These techniques constitute monetization in the sense of Full Monetization (Option 4).
Sunstein, like the authors of the PREA Rule, is not necessarily being inconsistent. He is plausibly read as pointing out that unmonetized dignitary benefits could serve as a “finger on the scale” in a case in which the monetized costs and benefits were fairly close, but that these unmonetized dignitary benefits cannot serve the same role when the gap between monetized costs and benefits is high, since doing so would implicitly value dignitary benefits several times higher than the value of a statistical life. In Sunstein’s view, therefore, dignity could be seen as monetizable as a matter of scale—not as precisely monetizable. The idea of providing an implicit valuation of dignity by comparison to the value of a statistical life nevertheless suggests that dignity can be monetarily valued at least within a certain range, and potentially that the effort to derive a range of monetary values for dignity is the ideal for agency CBAs even if it cannot always be realized. It remains to be seen whether a robust commitment to incorporating unmonetized values in CBA can operate alongside a preference for approximate monetization. This Note seeks to build on Sunstein’s approach and push this approach in an even more clearly unmonetized direction.
More broadly, the decision to portray dignity as monetizable in some RIAs (such as the disability rule) raises certain difficulties. The most important is that monetization of dignity is undesirable as a general matter, as I argue in the next Part. Another is that because not all dignitary benefits are susceptible to monetization (as the next Part contends), there is a risk that those dignitary benefits that are monetized will be taken more seriously (whether by regulators or the public) than dignitary benefits left unmonetized. The favor shown in OMB guidance towards monetization reflects a general interest among those conducting CBA in producing “hard numbers.” Partial monetization, therefore, may result in agencies’ focusing primarily on the harms that can be monetized. But the fact that there happen to exist monetary figures for dignity in a particular context (such as usage figures for dial-a-ride versus adapted transit, or the value of a statistical life for comparative purposes) does not provide sufficient reason to weight dignity in this context more heavily than in others.
The overall point is that greater self-consciousness about the choice whether or not to monetize dignity would be beneficial. Dignity is a highly context-specific value, and the proper conception of dignity for the purposes of one regulatory program may legitimately diverge from the appropriate conception of dignity for the purposes of another. However, divergences in agency treatment of dignity should reflect a considered decision to draw on context-specific understandings of dignity. In the next Part I explain the way in which qualitatively specific descriptions of dignity can achieve this task. ... Another feature of most current allusions to dignity in agency CBAs is their fairly general nature. For instance, in three separate paragraphs, the RIA for the prison rape rule refers to “loss of dignity,” “our country’s deepest commitments to human dignity and equality,” and prison rape victims’ “loss of dignity and privacy.” In one brief paragraph, the RIA for the air toxics standard indicates that air-pollution-related deaths can be more protracted, “involving prolonged suffering and loss of dignity and personal control.” The health privacy rule discusses, at somewhat greater length though still tersely, “the impossibility of monetizing the value of individuals’ privacy and dignity, which we believe will be enhanced by the strengthened privacy and security protections, expanded individual rights, and improved enforcement enabled by the rule.” The age discrimination RIA indicates that “[r]educing discrimination against older individuals promotes human dignity and self-respect, and diminishes feelings of exclusion and humiliation.”
The relative generality of these statements about dignity limits the public’s ability to ascertain the basis on which a given regulation is being defended. For instance, what exactly does “loss of dignity” mean in the context of a death from air pollution? Without greater elaboration it is difficult to gain a sense of the agency’s concerns and to evaluate their validity. “Dignity” risks becoming an abstract term that agencies can draw on without providing a clear sense of what is at stake. Such an outcome may increase administrative opacity and decrease the likelihood that agencies will give meaningful reasons for their actions to the public. The unavailability of these reasons, in turn, hampers the public’s ability to participate in and inform agency regulation.
The regulations considered in this Part—regarding age discrimination, disability, and prison rape, for example—have genuine dignitary benefits. Agencies should therefore be considering dignity when assessing the benefits and drawbacks of regulation. The prevalent form of such a consideration is currently CBA, and I argue in the next Part that we should understand this practice to include examination of dignity in unmonetized form. One possible response to the concern about transparency, in particular, is to urge the monetization of dignity to the greatest extent possible to ensure that agencies must work with “hard numbers” and pursue clear goals.A student has meanwhile pointed me to Richard Mohr's statement that:
The chief problem of the social institution of the closet is not that it promotes hypocrisy, requires lies, sets snares, blames the victim when snared, and causes unhappiness—though it does have all these results. No, the chief problem with the closet is that it treats gays as less than human, less than animal, less even than vegetable—it treats gays as reeking scum, the breath of death.