The LA Times reports that some liberal activists are concerned about President Obama's decision to nominate Harvard law professor (and one-time VC guest blogger) Cass Sunstein to be the administration's "regulatory czar" as head the Office of Information and Regulatory Affairs within the Office of Management and Budget. While Sunstein is quite liberal on some issues, and inflamed some on the right with his attacks on "extreme right-wing" judges, his work on administrative law and regulatory issues is more moderate and quite well-respected. From the LA Times:
Though he is generally described as left of center, Sunstein's academic interests in regulation have led him to raise questions about the constitutionality of liberal favorites such as workplace safety laws and the Clean Air Act. He has embraced a controversial "senior death discount" that calculates the lives of younger people as having a greater value than those of the elderly.The Center for Progressive Reform, a non-profit institute "working to protect health, safety, and the environment through analysis and commentary," was among the first to express concerns about the Sunstein nomination, and today they released a report critical of his approach to regulatory policy. CPR President Rena Steinzor says the group won't support or oppose confirmation as "because we’re not in that business," but they will likely be a source of ammunition for any who do decide to oppose Sunstein's confirmation, and several CPR member-scholars opposed the confirmation of Bush OIRA nominee John Graham.Until recently such debates have taken place largely in the world of legal scholarship. But now that Obama has named Sunstein to serve as his regulatory czar, environmentalists and labor activists are digging into his voluminous body of work -- and wondering what policies might emanate from a man so dedicated to calculating the dollar value of every regulation. . . .
"If a Republican nominee had these views, the environmental community would be screaming for his scalp," said Frank O'Donnell, president of Clean Air Watch, a Washington-based advocacy group.
Instead, the response has been muted, as environmental and labor groups question the wisdom of criticizing the nominee of a popular president who has promised to support their agenda.
My own view is that pro-regulatory groups have little to fear from Sunstein's confirmation. Whatever questions Sunstein may have raised about the desirability (or even constitutionality) of various regulatory programs, I cannot think of anything he has written that challenges the idea of an aggressive regulatory state. Sunstein's administrative law expertise and analytical rigor is likely to translate into greater regulatory authority for this administration, particularly insofar as he is able to goad federal agencies to strengthen the analytical and legal justifications for their proposed regulatory initiatives. In this respect, Sunstein could make the Obama Administration's regulatory initiatives more formidable and less vulnerable to judicial review, and that is an outcome I would think environmental activists and their allies would cheer.
I have to ask: are those the two options where an academic might find himself? "liberal" and inflaming the right vs. moderate and well-respected? Or is there something to the right of moderate and well-respected?
You can also be a libertarian, but then your opportunities to be a law professor is limited to U of Chicago and George Mason. Long ago, there was a species of law professors known as "conservatives," but if any such breed ever existed most believe it is now extinct. (Though some claim to have spotted conservative law professors in the wild near Northwestern University).
I know many, many counterexamples to this statement.
Has he ever written anything that changed someone's thinking? Made someone think? Each time I finish one of his pieces, I realize that I just wasted 2-3 minutes of my life. I'm now training myself that when I see his byline, I turn the page.
He's the journalistic/legal equivalent of styrofoam peanuts.
Maybe if he goes to Washington he'll be forbidden to do freelance journalism.
PosnerMalcolm Gladwell...Do you want your mom (or grandmom) to die because Sunstein has decided that her life is worth less than yours?
I think it's possible to salvage some ideas from the precautionary principle (PP) as well as rely in some measure on cost-benefit analysis (CBA) in regulatory decision-making. But either alone is clearly inadequate and yet even more modest and combined employment of modified versions of both PP and CPA will probably not satisfy the contending parties, including various academic and corporate scientific communities, the educated public, environmental activists and ethicists, administrators and bureaucrats, legislators and policymakers....
As for Sunstein himself, I think he's well-suited for the position, in spite of the aforementioned observations.
Much appreciation for the thoughtful post. Somehow I suspect that most support for the Precautionary Principle is far less thoughtful and far more primal. Not surprising that its popularity correlates well with present status, as you note. Those looking for a real "Right Wing" wouldn't go far wrong it noting its strongest advocates.
I think the prevalence of cost/benefit analysis is due more to its de facto default status as "better than no analysis at all" or "it's a good starting point" than epistemological hubris. Note that "no analysis at all" is often easier politically.
The extinction was, no doubt, caused by Global Warming and George Bush.
Mr. Lukasiak,
Could you please be so kind as to identify said "toxins" that are killing older people and provide the scientific source for the toxicity of the toxins?
Thank you.
I choose prenatal care over a second bypass operation for grandpa.
This is a silly question -- the whole concept of "senior death discount" presumes that there are such toxins. If there weren't, there'd be no need for the concept. So if there are such toxins, then the point is worth debating; if not, then why did Sunstein bring it up?
Until we enter The Millenium, we are stuck with cost-benifit analyses of exactly the type you seem to think are unconscionable. What to do? Just saying, "Make everything perfect regardless of the cost" isn't really an option, you know.
It would be better to say "middle of the road" instead of "moderate," because "moderate" expresses a normative judgment, whereas "middle of the road" does not. Someone who is "quite liberal" no doubt considers his own views moderate, and those of the radical left (if there is any such thing anymore) immoderate. (The "quite liberal" person is also middle of the road between the radical left and those to his right, but what is in the middle of the road depends on what is on either side of you, not on anyone's normative judgment.)
The middle of the road is where, in the immortal words of Mr. Miyagi, "squash like grape".
I think the original article is misleading in its structure: Does the "senior deaht discount" even have any conceptual connection to the Clean Air Act or other environmental standards? A quick Google pulls up an article from 2003 connecting it to the EPA but doesn't mention Sunstein. As a rule of general applicability, it's completely reasonable and comports, for instance, with traditional methods of calculating the value of work opportunities lost to injury.
I think the same might be said about cost/benefit analysis, though, I concede, less so.
That it's "better than nothing" doesn't make it better than the Precautionary Principle. I agree that "epistemological hubris" is unfair, though I'm not sure "epistemological laziness and/or insecurity" would be. I suppose if you put a gun to my head, I'd pick cost/benefit analysis as the better starting point of the two, but better still, I think, is to grapple with the messy implications of recognizing the value of starting out with both.
That said, I promise not to be a stick in the mud about Mars.
And it seems pretty obvious that extremely old people should be given less weight than the younger. They are still very valuable, but if you could extend the life of an 80 year old or a 20 year old, all else equal, which would you choose?
Except a few recent articles where he argues that support for the precautionary principle is pathological, and his earlier work on the unintended consequences of risk regulation.
Depends on how it's defined, and how it's applied. Too often critiques of the PP seem more concerned with taking down straw men, than in engaging the debate over how to handle uncertainty and where the burden of proof should lie in risk regulation.
For much regulation (work-place safety/environmental hazards) cost/benefit analysis works well. The amount of deaths caused per year from various hazards is generally known since corporations must keep records and the costs to the corporations of preventing those hazards is easily calculated. On the "unquantifiables" such as the value of human life, I think Sunstein would have a more liberal and not "pro-corporate" view of what values should be used.
As far as regulating global warming, Sunstein, and even traditional conservatives on the University of Chicago faculty such as Judge Posner, view it as a major problem and Sunstein is likely to regulate with that view in mind despite the near impossibility of a cost/benefit analysis for global warming.
My question is not silly regarding "toxins". If it is so silly, you would think someone could come up with just one toxin that effects the health of the elderly.
Those elderly whose immune systems are suppressed would (and do) suffer and die from infection caused by bacteria or viruses. But those are not toxins.
We are living longer and longer, so is it not a tad difficult to prove that some, as yet unnamed, toxin is killing people?
Houston Lawyer wrote,
That is how it has gone in countries with nationalized health care. I would not be so sure it would go that way here. The elderly vote. The young, do not.
Also, I dare say, based on experience, the elderly do not see it that way, nor do their children who are not eager to have papa or mama leave the planet.
I knew we were opposite politically, but could not tell from the way he taught his class.
The course was excellent, I was average, and he is a deeply impressive instructor.
I'd like to be in a position to choose both. It sounds like the government wouldn't let me do that if it were in charge of health care.
Why don't you get back to me on that one when you're 80...
Kev,
I assure you that when he is 80 he will have quite a different opinion.
Also, where does this stop? Do we start killing Down's syndrome babies, the mentally retarded and those with Cerebral Palsey, etc?
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