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Copyright (c) 2002 Georgetown Law Journal
Georgetown Law Journal

ARTICLE: Professor Sunstein's Fuzzy Math

July, 2002

90 Geo. L.J. 2341


Thomas O. McGarity *



For many years, Professor Sunstein has been one of academia's most persistent and persuasive advocates of federal agency use of cost-benefit analysis in health, safety, and environmental decisionmaking. A cost-benefit balancing approach to governmental decisionmaking squares nicely with civic republican values that acknowledge the important role that government must play in achieving a fair distribution of resources. At the same time, it urges informed and fair-minded professionals to decide, after due deliberation, what is best for the rest of us. 1 Professor Sunstein has always preached a "soft" version of cost-benefit analysis that takes an honest stab at quantitative assessment of the costs and benefits of major health, safety, and environmental regulations, but does not necessarily allow the result to dictate the ultimate outcome of any given rulemaking effort. Agencies should, in Professor Sunstein's view, use the knowledge gained from cost-benefit analysis for guidance in setting regulatory priorities and defining the outer bounds of rational decisionmaking.

In The Arithmetic of Arsenic, 2 Professor Sunstein goes beyond the theory of cost-benefit analysis to examine in some detail an important application of that approach to regulatory decisionmaking in the real world. This altogether commendable exercise leads Professor Sunstein to what, apparently for him, is the surprising conclusion that quantitative risk assessment and monetization techniques yield a very broad range of plausible benefits for nearly all of the available regulatory options. Rather than shake his faith in the value of quantitative cost-benefit analysis as a decisionmaking tool in risk regulation, this ...
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