pageok
pageok
pageok
Concerned about Cass:

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.

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.

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.

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.

Awesome-O:
The left shouldn't worry. He'll be there seven, eight months tops. Then it will be Justice Sunstein.
1.26.2009 3:24pm
martinned (mail) (www):

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.

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?
1.26.2009 3:24pm
Calderon:
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).
1.26.2009 3:40pm
martinned (mail) (www):
@Calderon: Certainly true. I was actually more interested in the world according to Jonathan Adler, than in the world as it is, though.
1.26.2009 3:45pm
Thales (mail) (www):
"You can also be a libertarian, but then your opportunities to be a law professor is limited to U of Chicago and George Mason."

I know many, many counterexamples to this statement.
1.26.2009 4:12pm
Cash:
The bigger problem with Sunstein is that he writes faster than he thinks. He's like Posner -- he can crank out a 500 word piece for the New Republic while a commericial is airing during an NFL game in TV. If only he'd spent that time mulling whether he had anything to contribute. His writing seems utterly pointless.

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.
1.26.2009 4:19pm
Thoughtful (mail):
The Left has nothing to worry about until Sunstein changes the department's name to Office of Information and Nudging...
1.26.2009 4:23pm
Matt_T:
The bigger problem with Sunstein is that he writes faster than he thinks. He's like Posner Malcolm Gladwell...
1.26.2009 4:52pm
paul lukasiak (mail):
Suntein's embrace of the senior death discount is problematic because the laws now state that cost/benefit calculations have to be considered when it comes to environmental regulation. Under that formulation, toxins that are more deadly to older Americans (especially those whose immune systems are suppressed because they are undergoing other treatments) are more likely to be considered acceptable.

Do you want your mom (or grandmom) to die because Sunstein has decided that her life is worth less than yours?
1.26.2009 4:55pm
Patrick S. O'Donnell (mail) (www):
It's Professor Sunstein's vigorous arguments against the use of the precautionary principle for environmental protection while placing cost-benefit analysis in its stead that troubles many environmentalists. Sunstein's faith in the latter seems a bit overwrought and he appears unaware of some of the problems associated with its use in this regard (as raised, for instance, in the work of K.S. Shrader-Frechette). Much of this discussion revolves around assumptions about the nature and pace of technological development and questions intrinsic to the philosophy of technology, as well as the epistemic status of risk analysis. Scientific and popular critics of biotechnology in Europe, for example, have relied on the precautionary principle (first formulated by the philosopher Hans Jonas, if I'm not mistaken) but its scope has considerably widened from its earliest formulations to the point where it does not easily lend itself to consistent employment in regulatory decision-making. As Paul B. Thompson has pointed out, the precautionary principle can lead to a bias in favor of the status quo and is often a rather blunt instrument as a policy tool. Cost-benefit analysis, on the other hand, often lends a veneer of mathematical precision and epistemic confidence or even certainty where neither exists or is possible and, especially with regard to the moral and political reasoning involved in an environmental practice grounded in the science of ecology, should not suffice as the principle of, or foremost criterion for, regulatory assessment and guidance.

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.
1.26.2009 4:57pm
Observer:
This is reminiscent of conservatives like Ann Coulter who strongly opposed John Roberts' nomination.
1.26.2009 5:03pm
David Warner:
Mr. O'Donnell,

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.
1.26.2009 5:28pm
Mac (mail):

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).



The extinction was, no doubt, caused by Global Warming and George Bush.
1.26.2009 5:53pm
ASlyJD (mail):
We have small colony here in Kansas City, but they are definately an endangered species.
1.26.2009 5:58pm
Mac (mail):
paul lukasiak wrote:


that formulation, toxins that are more deadly to older Americans (especially those whose immune systems are suppressed because they are undergoing other treatments) are more likely to be considered acceptable.



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.
1.26.2009 5:58pm
Houston Lawyer:
I believe most people are much more concerned with the environmental effects of toxins on their children than on their parents. Spending money to prolong the life expectancy of someone whose life is near its natural end is not terribly rational. Once the government is in charge of all health care, that will be the first thing to go since the alternative will be to reduce spending on health care for children.

I choose prenatal care over a second bypass operation for grandpa.
1.26.2009 6:09pm
MarkField (mail):

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?


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?
1.26.2009 7:19pm
Kirk:
paul lukasiak,

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.
1.26.2009 7:25pm
Henry (mail):
While Sunstein is quite liberal on some issues ... ,his work on administrative law and regulatory issues is more moderate and quite well-respected.

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.)
1.26.2009 7:43pm
Crunchy Frog:
There is no "middle of the road". Everyone, to some degree, is conservative on some issues, and liberal on others. We all draw our own lines somewhere, and defend them vigorously.

The middle of the road is where, in the immortal words of Mr. Miyagi, "squash like grape".
1.26.2009 8:14pm
therut (mail):
I lost what respect I might have of the man when he was on MSNBC a few weeks ago as a liberal hack. Showed his true colors too much for me. Too much politics like the Turley guy who is always mouthing off. There is no way either of them can hide their disgust of anything center or right. They are political not scholarly or academic. That is if being scholorly or academic is not now just known as being of the left.
1.26.2009 8:16pm
Matt_T:
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?

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.
1.26.2009 8:29pm
LM (mail):
David Warner:

Somehow I suspect that most support for the Precautionary Principle is far less thoughtful and far more primal.

I think the same might be said about cost/benefit analysis, though, I concede, less so.

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.

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.
1.26.2009 9:25pm
frankcross (mail):
Sunstein (and I) have explained how the precautionary principle is anything but precautionary. It almost certainly causes more death than it prevents, because it is precautionary only on one dimension and ignores other risks to life..

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?
1.26.2009 9:51pm
Brian Mac:

I cannot think of anything he has written that challenges the idea of an aggressive regulatory state.

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.

Sunstein (and I) have explained how the precautionary principle is anything but precautionary. It almost certainly causes more death than it prevents, because it is precautionary only on one dimension and ignores other risks to life

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.
1.27.2009 6:50am
JeffS:
Having had Sunstein for admin law, I can say that he is likely to follow a more Breyer-esque path of cost/benefit and rational regulation than a PP approach.

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.
1.27.2009 9:13am
Richard S:
Where does Sunsteain stand on Kelo?
1.27.2009 9:49pm
Mac (mail):
Bijorn Lomborg did an excellent cost benefit analysis on Global Warming in THE AUSTRALIAN, 12/15/2008, titled, "Hot air from Obama". It can be done.

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,

Once the government is in charge of all health care, that will be the first thing to go since the alternative will be to reduce spending on health care for children.


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.
1.27.2009 9:55pm
Graham (mail):
I took a class from Professor Sunstein during my graduate studies at U Chicago. The class was environmental law. Of all the professors I had during those two years, he was the one that wore his ideology on his sleeve the least.

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.
1.27.2009 11:09pm
Kev (mail) (www):
I choose prenatal care over a second bypass operation for grandpa.


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.

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?


Why don't you get back to me on that one when you're 80...
1.28.2009 1:09am
Mac (mail):

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?
1.29.2009 1:33pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.