Current Issue

The Limits of Quantification

01 Dec 2014 12:00am Cass R. Sunstein 

The difficulty of quantifying benefits and costs is a recurrent one in both public policy and ordinary life. Much of the time, we cannot quantify the benefits of potential courses of action, or the costs, or both, and we must nonetheless decide whether and how to proceed. Under existing executive orders, agencies are generally required to quantify both benefits and costs, and (to the extent permitted by law) to show that the former justify the latter. But agencies are also permitted to consider factors that are difficult or impossible to quantify, such as human dignity and fairness, and also to consider factors that are not quantifiable because of the limits of existing knowledge. When quantification is impossible, agencies should engage in "breakeven analysis," by which they explore how high the nonquantifiable benefits would have to be in order for the benefits to justify the costs. Breakeven analysis can be used and potentially disciplined in three different ways. (1) Sometimes agencies are able to identify lower or upper bounds, either through point estimates or through an assessment of expected value. (2) Agencies can often make progress by exploring comparison cases in which relevant values have already been assigned (such as for a statistical life). (3) When agencies cannot identify lower or upper bounds, and when helpful comparisons are unavailable, breakeven analysis requires agencies to identify what information is missing and to specify the conditions under which benefits would justify costs ("conditional justification"). In admittedly rare cases, regulators, no less than individuals, might have to "pick" or instead to "opt."    


How to Be an Authentic Indian

09 Dec 2014 08:38pm M. Alexander Pearl 

The mascot and team name of the Washington, D.C. professional football team is making headlines. What do Authentic Indians really think about it? This essay clears the air by replacing the liberal media talking points with an actual viewpoint from Indian Country. This perspective gives an inside view into the significant efforts to maintain longstanding traits of "Indian-ness" against an onslaught of political correctness gone mad.    

In re Sanders and the Resurrection of Stanley v. Illinois

16 Nov 2014 01:40pm Josh Gupta-Kagan 

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care, but for decades family courts would not apply this precedent to non-offending parents in child protection cases. Without even citing Stanley, courts held that finding one parent unfit justified taking the child into foster care -- even when the other parent was fit and sought custody. A Michigan Supreme Court decision this past summer, In re Sanders, suggests that courts are now, more than forty years after it was decided, beginning to apply Stanley to protect fit parents' and children's right to stay together.    

Subsequent History Omitted

04 Nov 2014 01:21pm Joel Heller 

The Supreme Court's decision in Shelby County v. Holder striking down part of the Voting Rights Act of 1965 has sparked debate over voting, race, history, and, surprisingly, footnotes. This Essay examines Westlaw's characterization of the Court's earlier decision upholding the VRA in South Carolina v. Katzenbach as "abrogated by Shelby County v. Holder," and uses that characterization as a lens to consider Westlaw's influence on the development of the law.  Because Westlaw's "abrogated" label is both unwarranted and consequential, that proposed subsequent-history clause should be omitted.     

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