Raw Thought

by Aaron Swartz

Cass Sunstein, Concern Troll

[cross-posted to Open Left]

Remember when President Bush tried to put more arsenic in our drinking water? Lots of people got outraged — it seemed like a classic example of a deregulator-in-chief helping his corporate friends at our expense. Not Cass Sunstein, a prominent (and nominally-liberal) law professor.

Sunstein, working for and with right-wing deregulatory think tanks, published a piece called “The Arithmetic of Arsenic”, arguing that everyone needs to stop being so emotional about these things. We can’t decide whether arsenic should be in our water based on fuzzy-wuzzy arguments about not killing people. No, we need to be hard-headed realists and decide exactly how much a human life is worth and whether filtering arsenic is worth the cost. In short, we have to do cost-benefit analysis.

As fellow law prof Tom McGarity pointed out, Sunstein continued to hold this view despite the fact that Sunstein’s own research into the subject showed that there was so much uncertainty around the issue that just using different previously-published estimates could result in whatever conclusion you like. And there was no obvious way to decide which estimate to trust.

All of this would be just another story in the annals of out-of-touch intellectuals — a law professor who gets off on killing people to save money, actual facts be damned — except for one frightening fact: Barack Obama just put this law professor in charge of cost-benefit analysis for the whole government.

The Office of Information and Regulatory Affairs (OIRA) was set up by Ronald Reagan to allow him veto power over any federal regulation. If the EPA wanted to stop companies from poisoning fish, if the DOJ wanted to stop businesses from discriminating, if OSHA wanted to protect miners’ lungs, OIRA could intervene and double-check their cost-benefit analysis. They could rejigger the numbers to make it so that the regulation got killed or if they failed at that they could just demand more and more research from the agency, delaying the regulation it was finally abandoned.

OIRA was one of Reagan’s most powerful tools for keeping the Federal Government from doing its job. And now someone who’s a strong fan of its mission has been put in charge. It’s a scary thought, especially as you’re going to get a glass of drinking water.

You should follow me on twitter here.

January 16, 2009


Aaron, grow up. What you just wrote is juvenile drivel of the lowest order.

Cost-benefit analysis is essential everywhere, even with respect to human lives - and you yourself make these decisions every day. Every time you get on a bus, get into a car, ride a bicycle, you’ve made a decision that it’s worth risking your life to save a few precious seconds over the alternative, carefully creeping along the sidewalk on all-fours (in case you fall) all wrapped up in protective gear (in case you get sun cancer, or a cut from some glass on the ground).

Should I ask if you are all in favour of the current fear-mongering and over-hyped security in airports? (I hope you know what I’m talking about, since you could hardly be willing to fly with your apparent attitude.)

Are you all in favour of security cameras on every street corner? After all, they might save a single life, and that’s far more important than any loss of liberty, or the vast cost of instituting such a regimen.

posted by Barry Kelly on January 16, 2009 #

Barry, when you get into a car or ride a bike, do you attempt to calculate the value of your life and then the cost of creeping? Of course not; if you did, you’d never get anywhere. I don’t see why it’s any different with regulation. Sure, it’s always a good idea to double-check our intuitions, but I think we should be able to start taking arsenic out of drinking water without years and years of economic analysis.

I’m not sure what any of this has to do with airports and security cameras. The alternative to cost-benefit analysis isn’t paranoia; it’s using judgment.

posted by Aaron Swartz on January 16, 2009 #

Aaron, the issue is not “should we take arsenic out of drinking water?” (because you can’t, it’s always going to be present at some level), it’s “what is the acceptable level of arsenic?”. And to make that decision, you have to know what the cost of achieving that level is, because you have to decide whether to spend that money on water purification or on something else that might save lives. Not performing CBA would be choosing to be willfully ignorant of whether you could have done more good elsewhere.

posted by mark on January 16, 2009 #

It could be worse.

It could be Richard Posner.

But, after a quick skim, I do agree you’re taking a superficial view. Though I’d say the article is problematic, but more along the lines of the right-wing argument of regarding science as just one sort of political interest (intellectual lawyers tend to like that analysis, they’re comfortable with warmed-over sociology).

posted by Seth Finkelstein on January 17, 2009 #

Also, if someone wanted to be charitable, it could be argued that Cass Sunstein was attempting to mildly defang cost-benefit analysis in a language and framework that right-wing policy-makers might take seriously. Remember, in the circles he moves in, there’s a severe risk of marginalization to anyone who is a flaming liberal.

posted by Seth Finkelstein on January 17, 2009 #

I am with Aaron on this.

Balancing costs and benefits sounds rational, but if uncertainties are large then it becomes a way to rationalize a pre-defined course of action. Alternatively, as with mark’s comment on the level of arsenic, it becomes a way of postponing a decision.

Any decision can be recast from binary (arsenic in the drinking water? Y/N) to a continuum (what level of As in the water will we tolerate, given the continually changing state of what we know about the dangers of As relative to the dangers and costs of other chemicals, the costs of eliminating As compared to the costs of improving air traffic control, and on and on. It is tempting to claim that the continuum problem is the “real” one, but - speaking as an ex-chemist so I do know about parts per billion - it just ain’t so.

Which is just what Aaron’s post argued anyway.

posted by tom s. on January 17, 2009 #

This is pure trash. If we can’t have any cost/benefit analysis, then what you are essentially advocating is that we spend our entire GDP on removing every atom of arsenic from our water. It would be massively expensive, and it would come at the cost of other more effective things, like say, free health care for all.

posted by Seth McFinklestein on January 19, 2009 #

The choice is not between cost/benefit analysis and spending the entire GDP on eliminating arsenic.

The alternative is to set a reasonable minimum standard, based on reasonable expert judgement (which ain’t me), and to go with it. Isn’t that, as Aaron points out above, what individuals, political movements, businesses - pretty much every group of people - does with the decisions that matter?

Now don’t get me wrong. If someone can draw me a meaningful, reliable, objective pair of curves of costs vs benefits then I’ll take a look. But in most cases I’m not holding my breath waiting.

posted by tom s. on January 20, 2009 #

“a reasonable minimum standard, based on reasonable expert judgment”

The devil is in the details there, which I think is sort of what Sunstein’s article is about.

posted by Seth Finkelstein on January 20, 2009 #

Aaron—would recommend the work of Aaron Wildavsky for a more systemic view of the necessity of cb analysis. See especially “Richer is Sicker vs. Richer is Safer,” in which you’ll no doubt find fault with the model of economic progress, but which nonetheless might attenuate your antagonism toward cba.

Sunstein shares your desire for social justice, so why the rancor?

posted by Ben Moskowitz on January 20, 2009 #

“Sunstein continued to hold this view despite the fact that Sunstein’s own research into the subject showed that there was so much uncertainty around the issue that just using different previously-published estimates could result in whatever conclusion you like.”

To me, the fact that there is such uncertainty about the safety of arsenic levels tells me that asking “what is acceptable” is a valid question. Are you really suggesting that because we don’t “know for sure”, banning the substance from water is the appropriate conclusion? I can’t imagine what kind of world this would create when applied to other vague or gray areas.

Of course, longtime readers know you don’t often operate in any gray areas.

Also, once again, I see no citations. No source I can follow to verify your information about Sunstein, his research, or who Tom McGarity is and why what he thinks matters. You very well could be correct, but without sources, this is nothing but a vague opinion piece of obvious bias.

posted by Nicole on January 20, 2009 #

A little research tells me that both Sunstein and McGarity are big names in environmental regulation law, from Harvard and UT respectively. To save other readers’ time, here are some pertinent links I found in my quest for complete information.

McGarity’s Georgetown Law Journal piece: http://findarticles.com/p/articles/mi_qa3805/is_/ai_n9105571

Other views on the subject: http://gristmill.grist.org/story/2009/1/12/1743/95803 http://michaeldorf.org/2009/01/sunstein-on-risk-reason-and-reviewing.html

I also now notice that you call out Sunstein for “working for and with right-wing deregulatory think tanks,” but don’t mention that McGarity has his own Center for Progressive Reform think tank.

posted by Nicole on January 20, 2009 #

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