Numbers and Values in Regulatory Decision Making

Blog contributor 
Graduate Student

In his recent talk at ISPS, Harvard Law School professor and former director of the White House Office of Information and Regulatory Affairs, Cass Sunstein, made particular note of an element of Executive Order 13563 which, he said, for the first time enshrines seemingly unquantifiable considerations of “equity, human dignity, [and] fairness” into the regulatory review process.

Sunstein described this change as a near-revolution in regulatory policy, and in new working paper, Sunstein calls the order “a document of signal importance in the Obama Administration, indeed a kind of mini-Constitution for the regulatory state.”

The Order does make for fascinating reading—a claim perhaps hard to believe about a government document on regulatory policy. In a brief 3 pages, the president lays out a series of “general principles of regulation” and a set of goals which effective regulation should aim to achieve, including “public participation,” “integration and innovation,” “flexible approaches,” and “scientific integrity.”

Such aims may seem at odds with standard conceptions of regulatory review through cost-benefit analysis, with its transformation of seemingly invaluable human life and health into dollars and cents. But as Sunstein argues in his paper, in areas as diverse as prison rape prevention policy and regulations on restroom access for the disabled, government agencies have been able to use the order to make cogent arguments as to why dignity and fairness were important—even deciding—considerations in whether or not to push ahead with regulatory efforts.

We often hear complaints about the burdens of regulation, and indeed, Executive Order 13563 mandates that “each agency…tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account…the costs of cumulative regulations.” Proponents of smart regulation tend to argue that good regulations can have benefits that exceed their costs, often relying on quantitative analysis to make their case. Sunstein is reminding us is that such technical arguments need not be the last word—our ideals can be just as relevant in regulatory decision making as they are in democratic debate.