Dignity as a Value in Cost-Benefit Analysis by Rachel Bayefsky

This very good student note examines how “dignity” has played a role in regulatory impact assessments produced by regulatory agencies. President Obama’s executive order 13,563, which renewed a longstanding requirement that regulators conduct cost-benefit analysis of major regulations, famously introduced a new provision allowing ¬†regulators to consider the effect of a regulation on “human dignity.” Implicitly, at least, regulators were thus authorized to issue a regulation that fails a formal cost-benefit test if it advances this value. (I briefly discuss the order here.)

Many commentators worried (or hoped) that the human dignity requirement would allow regulators to issue expensive rules that failed cost-benefit analysis. Couldn’t the EPA, for example, say that pollution of all types send people to hospitals, where they undergo procedures that violate their dignity? Or could the Department of Transportation impose expensive new safety requirements on cars because people who are maimed in accidents lose their dignity? In fact, Bayefsky cites an EPA analysis that suggested that a pollution regulation would be justified in order to avoid or minimize the indignity of a protracted death “involving prolonged suffering and loss of dignity and personal control.” If such a step were to be taken, there would be little left of cost-benefit analysis.

Yet there are numerous regulations that seem to advance values relating to dignity where the benefits would be hard to quantify. Bayefsky provides a number of examples: regulations that increase access to facilities like bathrooms to people with disabilities (who might otherwise need personal assistance), reduce the incidence of prison rape, and protect patients’ health information. Can the “dignitary” benefits associated with these regulations really be monetized?

Bayefsky says no. I suspect the answer is yes, at least sometimes. The paper is well worth reading for anyone interested in this topic.

(The image is from Wikipedia.)