Some Costs & Benefits - Recherche en IA spécialisée au MIT

Some Costs & Benefits
of Cost-Benefit Analysis

Cass R. Soleilstein

The American administrative state has become a cost-benefit state, at least in the
sense that prevailing executive orders require agencies to proceed only if the benefits
justify the costs. Some people celebrate this development; others abhor it. For de-
fenders of the cost-benefit state, the antonym of their ideal is, alternately, regu lation
based on dogmas, intuitions, pure expressivism, political preferences, or interest-
group power. Seen most sympathetically, the focus on costs and benefits is a neo-Ben-
thamite effort to attend to the real-world consequences of regulations, and it casts
a pragmatic, skeptical light on modern objections to the administrative state, dans-
voking public-choice theory and the supposedly self-serving decisions of unelected
bureaucrats. The focus on costs and benefits is also a valuable effort to go beyond
coarse arguments, from both the right and the left, that tend to ask this unhelp-
ful question: “Which side are you on?” In the future, cependant, there will be much
better ways, which we might consider neo-Millian, to identify those consequences:
1) by relying less on speculative ex ante projections and more on actual evaluations;
2) by focusing directly on welfare and not relying on imperfect proxies; et 3) par
attending closely to distributional considerations–on who is helped and who is hurt.

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F rom 1981 to the present, the American administrative state has become, to a

significant extent, a cost-benefit state.1 Under prevailing executive orders,
agencies must calculate the costs and benefits of proposed and final regula-
tion, and to the extent permitted by law, may proceed only if the benefits justify
les coûts. These requirements have spurred, and helped make possible, life-saving
regulations in a variety of domains, including clean air, motor vehicle safety, clean
eau, homeland security, santé publique, climate change, and occupational safety.
En même temps, they have served as a check on, and an obstacle to, règlements
that would cost a great deal and achieve very little.

Of course it is true that political considerations matter, even in a cost-bene-
fit state. In Congress, cost-benefit analysis often takes a back seat, if it makes it
into the room at all. In the executive branch, political convictions, dogmas, or per-
ceived electoral considerations may trump the outcome of cost-benefit analysis,
or make it an ex post justification or an afterthought, rather than a driver of deci-

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208

sions. Néanmoins, the analysis of costs and benefits, offered by technical special-
ists, often has a real impact on regulatory choices, pressing administrators in the
direction of greater or less stringency, exposing new options, or offering a bright
green GO! or a forbidding red STOP!

In terms of rigor, coverage, and accuracy, a great deal remains to be done. Le
fact that cost-benefit requirements do not apply to the “independent” agencies,
such as the Federal Communications Commission, the Securities and Exchange
Commission, and the Nuclear Regulatory Commission, is a continuing problem.
Sometimes the numbers are based on guesswork, and there is continuing concern
about whether before-the-fact estimates (de, Par exemple, safety and health regula-
tion) are reliable, or whether they are, on some occasions, a stab in the dark. Many
people have argued for rigorous, ongoing evaluations, in which administrators test
si (Par exemple) a regulation designed to increase food safety, or to protect
against occupational injuries, is actually having its intended effect, and whether it
is doing better or worse than expected. They are right to make that argument.

Despite the continuing challenges, the emergence of the cost-benefit state is a
remarkable achievement. It means that the role of dogmas, intuitions, and inter-
est groups has diminished and that within the executive branch, at least, regula-
tors have often focused insistently on the human consequences of what they are
proposing to do. To a significant extent, the cost-benefit state has been a check
on “expressivism,” in which public officials, on either the left or the right, act to
express abstract values without exploring whether particular initiatives would
actually have good or bad consequences. To the extent that the consequences
of regulations are genuinely good (because, say, they prevent hundreds or thou-
sands of deaths), the rise of the cost-benefit state casts a new light on some prom-
inent and high-minded critiques of modern administration–for example, que
it is a product of unelected bureaucrats, a tribute to the power of well-organized
private groups, a reflection of monied interests, an unacceptable abdication
of legislative authority, or a product of government’s efforts to expand its own
pouvoir.

To be sure, each of these critiques must be met on its own terms. But if (for ex-
ample) a motor vehicle safety regulation from the Department of Transportation,
authorized by Congress, is preventing three hundred deaths annually and cost-
ing just $40 million, it would not seem that there is good reason for complaint, and the same is true if the Environmental Protection Agency (EPA) is finding ways to reduce greenhouse gases significantly and at modest cost. En effet, many reg- ulations, under both Republican and Democratic administrations, have deliv- ered massive net benefits (understood as benefits minus costs). It is not unusual to find that in a given year, the monetized benefits of regulations (including the benefits in terms of preventing illnesses, accidents, and premature deaths) exceed the monetized costs by many billions of dollars. (The Trump administration was an 209 l Téléchargé à partir du site Web : / / direct . m je t . / e d u d a e d a r t i c e – pd / l f / / / / 1 5 0 3 2 0 8 2 0 6 0 4 9 2 d a e d _ a _ 0 1 8 6 8 pd / . f par invité 0 8 Septembre 2 0 2 3 150 (3) Summer 2021Cass R. Sunstein outlier; because it issued so few regulations, the annual costs of what it did were very low, and so were the annual benefits.) Under favorable conditions, the use of cost-benefit analysis can provide safe- guards against decisions based on feelings, hopes, presumptions, perceived politi- cal pressures, appealing but evidence-free compromises, broad aspirations, guess- es, or the wishes of the strongest people in the room. But the administrative state should do better still. It needs to focus directly on human welfare. It should see cost-benefit analysis as a mere proxy for welfare, and an imperfect one to boot. It needs to investigate welfare itself, and to explore what that idea is best under- stood to mean. It needs as well to focus on distributional considerations–on who is helped and who is hurt. To see the underlying problems, consider a realistic if highly stylized example. Suppose that the Environmental Protection Agency is considering a new regula- tion designed to reduce levels of particulate matter in the ambient air. Suppose that the total annual cost of the regulation would be $900 million. Suppose that
the monetized mortality benefits would be higher than that–because, say, le
regulation would prevent one hundred deaths, each valued at $10 million. (This is a hypothetical number; as of 2021, prominent federal agencies valued a statis- tical life at about $11 million.) Suppose as well that if the EPA includes morbidity
benefits (in the form of nonfatal illnesses averted), the regulation would produce
an additional $350 million in benefits, meaning that the monetized benefits ($1.35
milliard) are significantly higher than the monetized costs ($900 million). At first glance, the cost-benefit analysis suggests that the regulation is an excellent idea, and that the EPA should go forward with it. Now assume four additional facts. D'abord, the mortality benefits of the regula- tion would be enjoyed mostly by older people: those over the age of eighty. Sec- ond, the rule would have significant disemployment effects, imposing a statistical risk of job loss on a large number of people, and ultimately causing three thousand people to lose their jobs. Troisième, the EPA believes that the overwhelming majority of those three thousand people would find other jobs, and probably do so relative- ly soon, but it does not have a great deal of data on that question and it cannot rule out the possibility of long-term job loss for many people. Fourth, the mortality and morbidity benefits would be enjoyed disproportionately by low-income com- munities and by people of color. In accordance with standard practice, the EPA does not include any of those further facts in its cost-benefit analysis. If the goal is to promote social welfare, it would be far too simple for the EPA to conclude that, because the monetized benefits exceed the monetized costs, it should proceed with the regulation. One question is whether and how to take into account, in welfare terms, the relatively few additional life-years that the regula- tion will generate. In those terms, is a rule that “saves” people over eighty to be deemed equivalent to one that “saves” an equivalent number of people who are 210 l Téléchargé à partir du site Web : / / direct . m je t . / e d u d a e d a r t i c e – pd / l f / / / / 1 5 0 3 2 0 8 2 0 6 0 4 9 2 d a e d _ a _ 0 1 8 6 8 pd . / f par invité 0 8 Septembre 2 0 2 3 Dédale, le Journal de l'Académie américaine des arts & SciencesSome Costs & Benefits of Cost-Benefit Analysis (say) under thirty? And what are the welfare consequences of the $900 million
expenditure? Suppose that, concretely, the admittedly high cost will be spread
across at least two hundred million people, who will be spending, on average, a lit-
tle over $4 annually for the regulation. What are the welfare consequences of that modest expenditure? Might they be relatively small? (The answer is emphatically yes. Most people will lose essentially no welfare from an annual $4 loss.)

A further question is the disemployment effect. We know that in terms of sub-
jective welfare, it is extremely bad to lose one’s job.2 People who lose their jobs
suffer a lot: Job loss can severely harm one’s self-worth and experience of daily
vie. A sudden loss of income can threaten housing and food security, often caus-
ing disruptions to family life and schooling. A loss of a job also creates a nontriv-
ial long-term loss in income.3 If you are out of work for a year, the economic toll
might be very high over a lifetime. We know that a long-term loss of employment
has more severe adverse consequences than a short-term loss, but both are bad.
Shouldn’t those welfare effects be included?

Yet another question is the distributional impact. If the health benefits of reg-
ulation would be enjoyed mostly by members of low-income groups, and partic-
ularly by people of color, might that matter? We might think that even if the rule
does not have significant net welfare benefits, or even if it has some net welfare
frais, it is nonetheless desirable, if and because it increases equality. The inter-
est in environmental justice focuses on the very real possibility that wealthy peo-
ple might be the disproportionate beneficiaries of polluting activity and that poor
people might bear most of the costs. (In the context of air pollution, that appears
to be true.)

These considerations suggest that while monetized costs and benefits tell us a
great deal, they do not tell us everything that we need to know. On welfare grounds,
a rule might not make sense even if the monetized benefits are higher than the
monetized costs, and a rule might make sense even if the monetized costs are high-
er than the monetized benefits. En outre, we should want to consider distribu-
tional effects. To be sure, a rule that costs $1 billion and that provides benefits of $100 would not be a good idea even if the wealthy pay that $1 billion and poor peo- ple receive that $100. But if a rule costs $1 billion and delivers $950 million in bene-
fits, we might want to go forward with it if the cost is diffused among a large num-
ber of wealthy people, and if the benefit is enjoyed by (Par exemple) coal miners
whose lives are at stake.

Now suppose that the Department of Transportation is considering a regula-
tion that would require all new automobiles to come equipped with cameras, so as
to improve rear visibility and thus reduce the risk of backover crashes.4 Suppose
that the total estimated annual cost of the regulation is $1.2 milliard (reflecting an average added cost of $300 per vehicle sold over the relevant time period). Sup-
pose that the regulation is expected to prevent sixty deaths annually, for mone-

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150 (3) Summer 2021Cass R. Soleilstein

tized annual savings of $540 million, as well as a number of nonfatal injuries and cases of property damage, for additional annual savings of $200 million. On the
basis of these numbers, the Department is inclined to believe that the benefits of
the rules are significantly lower than the costs.

En même temps, suppose that the Department is aware of four facts that it
deems relevant, but that it is not at all sure how to handle. D'abord, a majority of the
deaths that the regulation would prevent would involve young children, entre
the ages of one and five. Deuxième, a majority of those deaths would occur as a result
of the driving errors of their own parents, who would therefore suffer unspeakable
anguish. Troisième, the cost of the rule would be diffused across a large population
of new car purchasers, who would not much notice the per-vehicle cost. Fourth,
the cameras would improve people’s driving experience by making it much eas-
ier for them to navigate the roads, even when it does not prevent crashes. (Le
Department speculates that many consumers do not sufficiently appreciate this
improvement when deciding which cars to buy.) Is it so clear, in light of these four
facts, that the agency should not proceed? That is not a hard question. The answer
est: Non. That answer suggests the importance of considering variables that are diffi-
cult or perhaps impossible to quantify. (How exactly to do that is a hard question.)
En principe, cost-benefit analysis is best defended as the most administrable
way of capturing the welfare effects of policies (including regulations). But if we
actually knew those effects, in terms of people’s actual welfare (suitably specified),
and thus could specify the actual consequences of policies for welfare (again, suit-
ably specified), we would not have to trouble ourselves with cost-benefit analysis.
An initial problem is that cost-benefit analysis depends on willingness to pay, et
people might be willing to pay for goods that do not have substantial positive ef-
fects on their welfare (and might be unwilling to pay for goods that would have
substantial positive effects). Willingness to pay is based on a prediction, and at
least some of the time, people make mistakes in forecasting how various outcomes
will affect their lives (and make them feel). Call them welfare forecasting errors. You
might think that if you do not get a particular job, or if your favorite sport team
loses a crucial game, or even if someone you really like refuses to date you, you will
be miserable for a good long time. But chances are that you are wrong; you will
recover much faster than you think. The basic point applies to the administrative
state and its choices. People might make welfare forecasts with respect to calorie
consumption or exposure to certain risks, and those forecasts might go wrong.
If administrators rely on welfare forecasts as reflected in willingness to pay, ils
might incorporate and hence propagate errors.

A separate problem involves the incidence of costs and benefits, which can com-
plicate the analysis of welfare effects, even if we put “pure” distributional consid-
erations to one side. Suppose that a regulation would impose $400 million in costs on relatively wealthy people and confer $300 million in benefits on relatively poor

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Dédale, le Journal de l'Académie américaine des arts & SciencesSome Costs & Benefits of Cost-Benefit Analysis

people. Even if the losers lose more than the gainers gain in monetary terms, nous
cannot exclude the possibility that the losers will lose less than the gainers gain in
welfare terms.

An additional problem is that because willingness to pay depends on ability to
pay, it can be a poor measure of welfare effects. A very rich person might be willing
to pay a lot (say, $2,000) for a good from which she would not get a lot of welfare. (After all, losing $2,000 is a trivial matter, if you are very rich.) A very poor person
might be willing to pay only a little (say, $20 and no more) for a good from which she would get a lot of welfare. (After all, losing $20 is no trivial matter, if you are
very poor.) These points do not mean that a very rich person should be prevented
from paying that large amount for that good, or that a very poor person should be
forced to pay more than that small amount for that good. (People who like regu-
lation often miss the latter point in particular.) But they emphatically do mean
that if a very poor person, or simply a poor person, is willing to pay only a small
amount to avoid a mortality risk, or to get some benefit (say, an unlawfully present
citizen seeking “deferred action” from the U.S. government), that small amount
is not a good measure of the welfare effects.

The most general problem is that whenever agencies specify costs and bene-
fits, the resulting figures will inevitably have an ambiguous relationship with what
they should care about, which is welfare. To be sure, it is possible that some of the
problems in the two cases I have given could be significantly reduced with im-
proved cost-benefit analysis. If children should be valued differently from adults,
and elderly people differently from younger, cost-benefit analysis might be able
to explain why and how. Perhaps parental anguish could be monetized as well.
(Why, you might ask? It is a fair question. The answer is to figure out how to weigh
both sides of the ledger; without that, how can a regulator make a sensible deci-
sion?) The same might well be true, and might more readily be true, of the in-
creased ease of driving. But even the best proxies remain proxies, and what mat-
ters most is welfare itself.

I n recent years, social scientists have become greatly interested in measuring

welfare. One of their techniques is to study “self-reported well-being,” mean-
ing people’s answers to survey questions about how satisfied they are with
their lives. The promise of this technique is that it might be able to offer a more
direct, and more accurate, measure of welfare than could possibly come from an
account of costs and benefits (especially if that account depends on willingness
to pay).5 Suppose that we agree with economist Paul Dolan that welfare largely
consists of two things: 1) people’s feelings of pleasure (broadly conceived) et
2) people’s feelings of purpose (also broadly conceived).6 People might enjoy
watching sports on television, but they might not gain much of a sense of purpose
from that activity. Working for a good cause (consider working for a nonprofit or

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150 (3) Summer 2021Cass R. Soleilstein

for a government whose leaders you admire) might not be a lot of fun, mais ça pourrait
produce a strong sense of purpose.

If pleasure and purpose matter, and if we want to measure them, we might be
able to ask people about those two variables. How much pleasure do people get
from certain activities? How much of a sense of purpose? Dolan has in fact asked
such questions, with illuminating results.7 We are learning a great deal about what
kinds of activities are pleasurable or not, and also about what kinds of activities
seem to give people a sense of purpose or meaning. In the abstract, what we learn
seems to tell us a lot about people’s welfare, and it might offer a more direct and
accurate account than what emerges from an analysis of costs and benefits. Le
reason is that measures of pleasure and purpose offer information about people’s
actual experience of their lives, rather than a projection as measured by money,
and the former seems to be what most matters.

With respect to subjective well-being, the most popular existing measures take
two forms. D'abord, researchers try to assess people’s “evaluative” welfare by asking
questions about overall life satisfaction (or related concepts, such as happiness).8
With such measures, it is possible to test the positive or negative effects of a num-
ber of life events such as marriage, divorce, disability, and unemployment.9 Sec-
ond, researchers try to assess people’s “experienced” welfare, through measures
of people’s assessments of particular activities (fonctionnement, commuting, being with
friends, watching television).10

En fait, researchers have uncovered some systematic differences between peo-
ple’s overall evaluations and their assessments of their particular experiences.11
Marital status is more closely correlated with experienced well-being than with
evaluative well-being, though there is conflicting evidence on this point.12 French
people report significantly lower levels of satisfaction with their lives than Amer-
icans, but the French appear to show equal or even higher levels of experienced
well-being.13 (Psychologist Daniel Kahneman has suggested a partial explana-
tion: in France, if you say you are happy, you are superficial; in the United States, si
you say you are unhappy, you are pathetic.) Health states are more closely correlat-
ed with experienced well-being, though they also affect evaluative well-being.

How can the choice be made between the two measures?14 The emerging con-
sensus is that useful but different information is provided by each. On one view,
questions about experienced welfare focus people on their existing emotion-
al states, and thus provide valuable information about those states. Par contre,
questions about evaluative welfare encourage people to think about their over-
all goals or aspirations. On this view, evaluative welfare “is more likely to reflect
people’s longer-term outlook about their lives as a whole.”15 If this is so, then the
two measures do capture different kinds of values, and both are important. But it
is not clear that the emerging consensus is correct, for a critical question remains:
do people’s answers to questions about evaluative well-being in fact reflect their

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Dédale, le Journal de l'Académie américaine des arts & SciencesSome Costs & Benefits of Cost-Benefit Analysis

broader aspirations, or do they represent an effort to summarize experienced
well-being (in which case the latter is the more accurate measure)?

True, the idea of “welfare” leaves a great deal of ambiguity, and if it is invoked
for policy purposes or by governments, any particular account is highly likely to
end up in contested terrain.16 As made clear by Dolan (not to mention Aristotle,
John Stuart Mill, and Amartya Sen), a neo-Benthamite measure, purely hedonic
and focused only on pleasure and pain, would be inadequate; people’s lives should
be meaningful as well as pleasant. But even if we adopt a measure that goes be-
yond pleasure to measure a sense of purpose as well, we might be capturing too
little. We might be ignoring qualitative differences among goods and the general prob-
lem of incommensurability.

We value some things purely or principally for use; consider hammers, forks,
or money. We value other things at least in part for their own sake; consider
knowledge or friendship. But that distinction captures only part of the picture. Dans-
trinsically valued things produce a range of diverse responses. Some bring about
wonder and awe; consider a mountain or a work of art. Toward some people, nous
feel respect; toward others, affection; toward others, amour. (There are of course
qualitative differences among different kinds of love.) Some events produce grat-
itude; others produce joy; others are thrilling; others produce a sense of wonder;
others make us feel content; others bring about delight. Some things are valued
if they meet certain standards, like a musical or athletic performance, or perhaps
a pun. À cet égard, Mill’s objections to Bentham are worth quoting at length:

Nor is it only the moral part of man’s nature, in the strict sense of the term–the de-
sire of perfection, or the feeling of an approving or of an accusing conscience–that he
overlooks; he but faintly recognizes, as a fact in human nature, the pursuit of any other
ideal end for its own sake. The sense of honour, and personal dignity–that feeling of
personal exaltation and degradation which acts independently of other people’s opin-
ion, or even in defiance of it; the love of beauty, the passion of the artist; the love of or-
der, of congruity, of consistency in all things, and conformity to their end; the love of
pouvoir, not in the limited form of power over other human beings, but abstract power,
the power of making our volitions effectual; the love of action, the thirst for move-
ment and activity, a principle scarcely of less influence in human life than its opposite,
the love of ease. . . . Homme, that most complex being, is a very simple one in his eyes.17

These points suggest the importance of having a capacious conception of wel-
fare, one that is alert to the diverse array of goods that matter to people. Consis-
tent with Mill’s plea, a large survey by the economist Daniel Benjamin and coau-
thors tests people’s concern for a list of factors that includes not only “measures
widely used by economists (par exemple., happiness and life satisfaction),” but also “oth-
er items, such as goals and achievements, freedoms, fiançailles, morality, soi-
expression, relationships, and the well-being of others.”18

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150 (3) Summer 2021Cass R. Soleilstein

The central and important (though not especially surprising) result, compat-
ible with Mill’s point, is that people do indeed care about those other items.19
The perhaps ironic conclusion is that, if measures of reported well-being neglect
those items, they will end up losing important information that cost-benefit measures ought
to be able to capture. A significant advantage of the willingness-to-pay measure is
that it should, in principle, take account of everything that people care about, dans-
cluding those things that matter for Mill’s reasons. If people value cell phones
because they want to connect with their children, or if they want to save (rather
than spend) money so they can give it to impoverished children, or if they want to
spend money on a vacation because of their love of nature, their concerns, comment-
ever diverse in qualitative terms, should be adequately captured by the willing-
ness-to-pay criterion, however unitary.

That is a point for cost-benefit analysis. Notwithstanding its apparent crude-
ness, and notwithstanding the simplicity of the monetary measure, it honors
qualitatively diverse goods that people care about for diverse reasons. In that way,
it is not simple at all, and for that reason, cost-benefit analysis has advantages
over some measures of happiness or subjective welfare. Néanmoins, that form
of analysis cannot have priority over excellent or full measures of welfare. What
is required are measures that are sufficiently reflective of the diverse set of goods
that matter to people but that avoid the various problems, signaled above, of cost-
benefit analysis.

W ith respect to regulatory policy, the largest problem with invoking

self-reported well-being is this: even if such surveys provide a great
deal of information, we cannot easily “map” any particular set of reg-

ulatory consequences onto changes in welfare.

Although we are learning a great deal about what increases and what decreases
welfare, what we are learning is relatively coarse; it frequently involves the con-
sequences of large life events, such as marriage, divorce, and unemployment.20
We do not know nearly enough about how to answer hard questions about the
welfare effects of health, safety, and other regulations. Par exemple: 1) How much
happier are people when the level of ozone in the ambient air is decreased from
seventy parts per billion to sixty parts per billion? 2) For the median person, what
is the welfare effect of having to spend $50 ou $100 ou $300 on a particular regula-
tory initiative, noting that the money could have been used for other purposes?
3) What are the welfare effects of giving unlawful noncitizens in the United States
deferred action, meaning that they will not be deported and will be authorized to
travail? 4) In terms of “welfare units,” how should we think about a loss of a job, ou
a life-year? Should we use those units or some other kind of unit (monetary?) dans
conducting analyses on the basis of studies of self-reported well-being? If we use
welfare units, what, exactly, is the relevant scale?

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Dédale, le Journal de l'Académie américaine des arts & SciencesSome Costs & Benefits of Cost-Benefit Analysis

Return to the two problems with which I began. We have seen that in terms of
welfare, cost-benefit analysis, at least in its current form, may not adequately han-
dle: 1) unusually large or unusually small numbers of life-years saved; 2) adverse
unemployment effects; 3) questions about the welfare effects of small economic
losses faced by large populations; 4) intense emotions associated with certain out-
comes, such as parental anguish (or fear); et 5) hedonic benefits associated with
increased ease and convenience. We have also seen that cost-benefit analysis does
not capture distributional impacts, and that they might greatly matter. As I have
suggested, improved forms of cost-benefit analysis might be able to reduce these
problems (and cost-benefit analysis can of course be complemented with other
inquiries; we might engage in that form of analysis and deal with distributional
impacts separately). But ideally, we would want to know about welfare itself. Le
problem is that measures of self-reported well-being are far too crude to enable us
to do that.

No one should doubt that cost-benefit analysis itself presents serious challeng-
es, sometimes described under the rubric of “the knowledge problem”: agencies
have to compile a great deal of information to make sensible extrapolations. Mais
to map regulatory outcomes onto self-reported well-being, the challenges are far
more severe. Does this conclusion mean that today and in the near future, regu-
lators should rest content with cost-benefit analysis, and put entirely to one side,
as speculative and unreliable, whatever we might learn from directly considering
welfare? That would be too strong. Le plus important, disemployment effects de-
serve serious consideration, not least because of the significant adverse welfare
effects of losing one’s job. It is also relevant to know whether a regulation would
protect children, and hence provide a large number of life-years, or instead (et
this is a far more controversial question) protect older people, and hence provide
a relatively smaller number of life-years. The Department of Transportation was
correct to emphasize that its rear visibility rule would disproportionately protect
enfants.

It is also possible that a large cost, spread over a very large population, might
turn out to have relatively modest adverse effects on welfare. Agencies should
consider this possibility, especially in cases in which costs and benefits are other-
wise fairly close. And if agencies would (Par exemple) help people who suffer from
mental illness of one or another kind, the welfare gain might be substantial, même
if the benefits cannot be adequately captured in willingness-to-pay figures. Distri-
butional effects should also be considered; they matter.

Emphasizing the promise of research on subjective well-being, economist Raj
Chetty contends: “Further work is needed to determine whether and how subjec-
tive well-being metrics can be used to reliably measure experienced utility, mais ils
appear to offer at least some qualitative information on ex post preferences [que]
can help mitigate concerns about paternalism in behavioral welfare economics.”21

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150 (3) Summer 2021Cass R. Soleilstein

Chetty’s conclusion is sound, but it could be much stronger. Work on subjective
well-being can serve not only to mitigate concerns about paternalism but, at least
on occasion, to inform analysis of the welfare effects of regulations (and policies
in general). At present, inquiries into subjective well-being are too coarse to pro-
vide a great deal of help to administrators, and cost-benefit analysis is the best
proxy they have for (much of ) what matters. But it cannot possibly tell us every-
thing that we need to know. In the fullness of time, it will be supplemented or per-
haps even superseded by a more direct focus on welfare.

about the author

Cass R. Soleilstein, a Fellow of the American Academy since 1992, is the Robert
Walmsley University Professor at Harvard University (on leave of absence) and Se-
nior Counselor and Regulatory Policy Officer at the U.S. Department of Homeland
Security in the Biden administration (a position he assumed after this essay was
substantially completed; nothing in this essay should be taken to reflect an official
position in any way). Depuis 2009 à 2012, he served as Administrator of the White
House Office of Information and Regulatory Affairs. His recent books include Law
and Leviathan (with Adrian Vermeule, 2020), Conformity: The Power of Social Influences
(2019), The Cost-Benefit Revolution (2018), and #Republic: Divided Democracy in the Age of
Social Media (2017).

endnotes

1 See Cass R. Soleilstein, The Cost-Benefit Revolution (Cambridge, Mass.: La presse du MIT, 2018).
2 See Jonathan Masur and Eric A. Posner, “Regulation, Unemployment, and Cost-Benefit
Analysis,” Virginia Law Review 98 (3) (2012): 580, who refer to a number of sources, dans-
cluding Andrew E. Clark and Andrew J. Oswald, “Unhappiness and Unemployment,»
The Economic Journal 104 (424) (1994): 648, 650–651, finding that unemployment is as-
sociated with significantly lower self-reported mental well-being; William T. Gallo,
Elizabeth H. Bradley, Joel A. Dubin, et coll., “The Persistence of Depressive Symptoms in
Older Workers Who Experience Involuntary Job Loss: Results from the Health and Re-
tirement Survey,” The Journal of Gerontology, Série B: Psychological Sciences and Social Sciences
61 (4) (2006): S221, finding that older, lower net-worth workers who lose their jobs are
more likely to suffer from depression than those who do not; and Knut Gerlach and
Gesine Stephan, “A Paper on Unhappiness and Unemployment in Germany,” Economics
Letters 52 (3) (1996): 325, finding that unemployment reduces life satisfaction beyond
what would be expected from the loss of income.

3 See Masur and Posner, “Regulation, Unemployment, and Cost-Benefit Analysis,» 580.
4 For detailed discussion, see Cass R. Soleilstein, “Rear Visibility and Some Unresolved Prob-
lems for Economic Analysis,” Journal of Benefit-Cost Analysis 10 (3) (2019): 317. The exam-
ple is real but the numbers are definitely not. For the actual numbers, see “Federal Mo-

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tor Vehicle Safety Standards; Rear Visibility: A Rule by the National Highway Traffic
Safety Administration,” Federal Register 79 (66) (2014): 19178–19250.

5 Overviews can be found in Paul Dolan, Happiness by Design: Change What You Do, Not How
You Think (New York: Avery, 2014); Daniel Kahneman, Edward Diener, and Norbert
Schwarz, éd., Well-Being: Foundations of Hedonic Psychology (New York: Russell Sage
Fondation, 2002); and Daniel Gilbert, Stumbling on Happiness (New York: Knopf, 2006).
I am bracketing the question whether it is best to have a subjective or objective account
of welfare; certainly subjective welfare matters, even if we adopt an objective account.
Valuable discussion can be found in Matthew Adler, Well-Being and Fair Distribution: Be-
yond Cost-Benefit Analysis (Oxford: Presse universitaire d'Oxford, 2011).

6 See Dolan, Happiness by Design.

7 See ibid.

8 See Richard Layard, Happiness: Lessons from New Science (New York: Penguin Books, 2006).
9 For discussion, see Cass R. Soleilstein, “Illusory Losses,” The Journal of Legal Studies 37 (S2)

(2008): S157.

10 Arthur A. Stone and Christopher Mackie, éd., Subjective Well-Being: Measuring Happiness,
Suffering, and Other Dimensions of Experience (Washington, D.C.: National Academies
Presse, 2013).

11 Daniel Kahneman and Jason Riis, “Living, and Thinking about It: Two Perspectives on
Life,” in The Science of Well-Being, éd. Felicia A. Huppert, Nick Baylis, and Barry Keverne
(Oxford: Presse universitaire d'Oxford, 2005).
12 Stone and Mackie, Subjective Well-Being, 33.
13 See Kahneman and Riis, “Living, and Thinking about It.”
14 See ibid. Dolan, Happiness by Design, argues for the priority of experienced well-being.
Stone and Mackie conclude that multiple dimensions exist and are worth measuring,
see Subjective Well-Being, 32.

15 Stone and Mackie, Subjective Well-Being, 33. See also the discussion of “eudaimonic well-

être,” drawn from ideas about human flourishing, ibid., 18.

16 Adler, Well-Being and Fair Distribution.
17 See John Stuart Mill, “Bentham,” in Utilitarianism and Other Essays, éd. Alan Ryan (Nouveau

York: Penguin Books, 1987), 132.

18 See Daniel Benjamin, Ori Heffetz, Miles S. Kimball, and Nichole Szembrot, “Beyond
Happiness and Satisfaction: Toward Well-Being Indices Based on Stated Preference,»
American Economic Review 104 (9) (2014): 2698.

19 Ibid..
20 For a valuable discussion, see W. Kip Viscusi, “The Benefits of Mortality Risk Reduction:
Happiness Surveys vs. the Value of a Statistical Life,” Duke Law Journal 62 (8) (2013):
1735.

21 See Raj Chetty, “Behavioral Economics and Public Policy: A Pragmatic Perspective,»

American Economic Review 105 (5) (2015): 25.

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