Lisa Heinzerling

Quality Control: A Reply to Professor Sunstein

Unless cost-benefit analysis finds room for the nonquantifiable and nonmonetizable benefits of regulation, it will skew systematically against government action to address social problems that have significant nonquantifiable and nonmonetizable dimensions. In The Limits of Quantification-drawn from the 2013 Brennan Center Jorde Symposium at Berkeley Law-Professor Cass R. Sunstein looks for a way out of this quandary.1 But the solutions he explicitly or implicitly embraces-a meaningful recognition of qualitative benefits like human dignity, a redoubled effort to quantify and monetize regulatory benefits, and breakeven analysis-fall short. Breakeven analysis is too selectively deployed to be the neutral tool Sunstein seeks. Fitting qualitative values, like dignity, into the cost-benefit mold can be both legally gratuitous and conceptually confused. Monetizing heretofore nonmonetized regulatory benefits-like preventing prison rape-entails a complete redefinition of the problem at hand. The limits of quantification remain severe, undermining claims that cost-benefit analysis can play an evenhanded role in the evaluation of agency rules.