Once and Future Nudges

The nudge – a form of behaviorally-informed regulation that attempts to account for people’s scarce cognitive resources – has been explosively successful at colonizing the regulatory state. This Essay argues that the remarkable success of nudges as a species creates new challenges and opportunities for individual nudges that did not exist ten years ago, when nudges were new. These changes follow from the new fact that nudges must now interact with other nudges. This creates opportunities for nudge versus nudge battles, where nudges compete with other nudges for the scarce resource of public cognition; and for nudge & nudge symbiosis, where nudges work complementarily with other nudges to achieve greater good with fewer resources. Because of the potential for positive and negative interactions with other nudges, modern nudges should be expected to operate differently from ancestral nudges in important ways, and future nudges should be expected to operate more differently still. Policymakers should prepare to manage future positive and negative nudge-nudge interactions

The Cost of Time: Haphazard Discounting and the Undervaluation of Regulatory Benefits

When performing cost-benefit analyses, regulators typically use willingness-to-pay studies to determine how much to spend to avert risks. Because money has a time-value, when a risk is valued is inextricable from how much it is valued. Unfortunately, the studies on which regulators rely are insensitive to this fact: they elicit people\u27s willingness to pay for risk reductions without identifying the time at which the risk reduction will occur. Relying on these time-indeterminate studies has led to a systematic skew in regulatory cost-benefit analysis, toward the undervaluation of risks to human lives. Insofar as cost-benefit analyses inform regulation, this suggests that the current system systematically under regulates against risks to health and safety. Reprinted by permission of the publisher

Quantitative Valuation in Environmental Law

Quantitative valuations of environmental impacts affect and sometimes determine the substance and stringency of many environmental laws. At the same time, a constellation of psychological factors makes environmental impacts unusually difficult for individuals to see, understand, and care about. As a result, the environmental valuations that inform environmental law are particularly vulnerable to contextual cues, small shifts in framing, and methodological choice, and can lead to sincere but wildly varying valuations of the same underlying environmental impacts. These distortions become increasingly apparent when valuations are quantified, and in fact can be used predictably to push quantified valuations “up” and “down” using a toolkit of identifiable contextual and methodological levers. From a practice perspective, it can be helpful for attorneys to be able to recognize and use levers to drive quantitative valuations of environmental impacts up or down, and for judges to understand the mechanisms that will have predictable impacts on quantified valuations of environmental impacts. From a public policy perspective, while it is helpful to recognize that environmental valuations may be particularly sensitive to methodological and contextual choice, it is also important to understand that different uses of quantitative valuations within environmental law are differently sensitive to these kinds of shifts in valuation. Because quantitative environmental valuations will rise and fall based upon engagement with context and valuation methodology, refusal to engage with quantified valuation of environmental impacts—historically engaged in by many with progressive and pro-environmental perspectives, but which has also grown more common in recent years amongst conservative and pro-industry perspectives—is likely to have an outsized impact on the quantified value of environmental impacts, and thus on the substance and stringency of environmental regulation

Allocating Pollution

Law can often be used to reduce or even eliminate the harm from pollution by manipulating exposure allocation, or how pollution is allocated across a target population. Opportunities for exposure allocation arise whenever the relationship between exposure to a pollutant and harm is nonlinear, as is the case for many pollutants. For these pollutants, exposure allocation presents the potential for reducing the harm from pollution even when it is not possible to reduce either the total amount of pollution emitted or the total amount of exposure. After identifying the conditions under which changing exposure allocations can improve health and save lives, this Article identifies legal strategies for managing exposure allocation to minimize the harm caused by pollution

Valuing Foreign Lives

Should government actors allocate scarce domestic resources to protect the lives of foreign persons? This Article argues that foreign life valuation poses distinctive psychological, philosophical, social, political, and economic challenges, and analyzes current U.S. practices of foreign life valuation in light of these challenges. After identifying multiple possible methods of foreign life valuation, we suggest that the best default valuation method would allocate domestic resources according to domestic willingness to pay to protect foreign lives

Reregulation and the Regulatory Timeline

Regulation is often casually conceived of as functioning like a binary on/off switch: as if an area, issue, or industry is either regulated or not. While this binary model of regulation can be useful, it also decontextualizes regulatory decisions from their position in time, and thus obscures important ways in which regulators are constrained and incentivized by past and future decisions. As an alternative, we present a timeline approach to regulation. The timeline approach is particularly helpful in illustrating the ways that earlier regulatory decisions create vestigial effects for later related decisions, and for highlighting the informational advantage that later regulators have over regulators earlier in the timeline. These temporally contextualized qualities are especially important under conditions of reregulation, which arise when a previously deregulated issue is regulated once again. Applying insights from financial option theory, we show how lessons from the timeline approach can be used to enhance regulatory decision-making at all stages on the timeline

On Discounting Regulatory Benefits: Risk, Money, and Intergenerational Equity

There is an elaborate debate over the practice of "discounting" regulatory benefits, such as environmental improvements and decreased risks to health and life, when those benefits will not be enjoyed until some future date. Economists tend to think that as a general rule, such benefits should be discounted in the same way as money; many philosophers and lawyers doubt that conclusion on empirical and normative grounds. The doubts have been countered with the suggestion that a failure to discount would lead to unreasonable or paradoxical results. Both sides frequently neglect a simple point: Once government has converted regulatory benefits into monetary equivalents, what is being discounted is merely money, not regulatory benefits as such. No one seeks to discount health and life, only the money that might be used to reduce threats to these goods. It is nonetheless true that cost-benefit analysis with discounting can create serious problems of intergenerational equity; those problems, involving the obligations of the present to the future, require an independent analysis. A morally adequate response to the underlying problems, not involving the question of whether to discount, is to ensure that future generations receive compensation for any risks that are imposed on them by their predecessors.