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Animals in Cost-Benefit Analysis
Get PDFFederal agencies’ cost-benefit analyses do not capture nonhuman animals’ (animals’) interests. This omission matters. Cost-benefit analysis drives many regulatory decisions that substantially affect billions of animals. That omission creates a regulatory blind spot that is untenable as a matter of morality and of policy.
This Article advances two claims related to valuing animals in cost-benefit analyses, dubbed the “Weak Claim” and the “Strong Claim.” The Weak Claim argues that agencies typically may value animals in cost-benefit analyses. Usually, no legal prohibitions exist, and such valuation is within agencies’ legitimate discretion. The Strong Claim argues that agencies often must do so if a policy would substantially affect animals. Cost-benefit analysis is concerned with improving welfare, and no argument for entirely omitting animals’ welfare holds water.
Agencies have several options to implement this vision. These options include, most preferably, human-derived valuations (albeit in limited circumstances), interspecies comparisons, direct estimates of animals’ preferences, and, at a minimum, a breakeven analysis. In addition, agencies could deal with uncertainty by conducting sensitivity analyses or combining methods. For any method, agencies should consider what happens when a policy would save animals from some bad outcomes and what form a mandate to value animals should take.
Valuing animals could have impacted many cost-benefit analyses, including those for pet-food safety regulations and a rear backup camera mandate. As a sort of “proof of concept,” this Article shows that even a simple breakeven analysis from affected animals’ perspectives paints the thoroughly investigated policy decision at issue in Entergy Corp. v. Riverkeeper, Inc. in an informative new light
Comment on Chapters 1 and 4: Health AI, System Performance, and Physicians in the Loop
Get PDFAccounts of artificial intelligence (AI) in medicine must grapple, in one way or another, with the interaction between AI systems and the humans involved in delivering healthcare. Humans are, of course, involved throughout the process of developing , deploying, and evaluating AI systems, but a particular role stands out: the human in the loop of an algorithmic decision. In medicine, when an algorithm is involved in a decision , a typical view of the system envisions a human healthcare professional mediating that algorithm - deciding whether and how to implement or react to any recommendation, prediction, or other algorithmic output. This person is the human in the loop, and their role is often central, complicated, and contested
Synthetic Health Data: Real Ethical Promise and Peril
Get PDFModern health research and development faces a dilemma. On the one hand, there is more data than ever — in electronic health records, in lab research, in public datasets, and on the internet — from which to extract potentially transformative scientific insights and to use as the basis for developing breakthrough health care technologies. On the other hand, using this data entails various risks: threats to patient privacy, skewed samples and approaches to analysis that can perpetuate demographic and other biases, and uneven access to data about rare conditions and small patient subgroups. Generating synthetic data has emerged as one promising approach to potentially navigating these challenges
Fall 2024 - Westlaw and Lexis Advanced Search Strategies
Get PDFDo Westlaw and Lexis searches leave you swimming in statutes and cases? Do you wish you could find good law without sifting through mountains of irrelevant law? This program will help you use the tools at your fingertips to search more efficiently and effectively. Upgrade your legal research skills Underground!https://repository.law.umich.edu/legaltechseries/1002/thumbnail.jp
Fall 2024 - Finding Briefs and Other Court Filings
Get PDFThe judicial opinion is the last chapter of a long story. The key to a case’s history is its docket. This program will guide you through the steps to finding complaints, briefs, motions, and other filings by searching and finding court dockets. Get the whole story Underground!https://repository.law.umich.edu/legaltechseries/1000/thumbnail.jp
Unveiling Misconceptions of Tunneling: Market Capitalization-Based Analysis
Get PDFIn internal transactions between affiliated companies, there are two opposite directions of wealth-transfer: (1) in the “forward transfer of wealth” (FTW), the wealth-transfer arises from an affiliated company where a controller’s “economic interest” (i.e., “cash-flow right”) is smaller relative to another affiliated company where the controller’s economic interest is larger; (2) in the “reverse transfer of wealth” (RTW), the wealth-transfer arises from an affiliated company where a controller’s economic interest is larger relative to another affiliated company, where the controller’s economic interest is smaller. This Article puts forward a new finding that the extent of internal-transaction tunneling is affected not only by a controller’s economic interests in the two affiliated companies but also by valuation multiples—such as price earnings ratios (PERs), price-sales ratios (PSRs), and enterprise value / earnings before interest, tax, depreciation, and amortization (EV/EBITDA)—of the two affiliated companies. Accordingly, this Article suggests a new theory that regulatory authorities and courts should pay attention to how changes of market capitalization of the two companies affect the value of shares that the controller holds. More specifically, based on market capitalization-based analysis and PER-adjusted economic interest gap analysis, this Article counterintuitively shows that a controller can sometimes gain private benefits in the RTW internal transaction. Conversely, this Article, contrary to expectations, demonstrates that a controller can sometimes end up with net private costs in the FTW internal transaction. Based on these counterintuitive arguments, this Article provides a new regulatory framework that avoids under- and over-regulation
The Misleading Successes of Cost-Benefit Analysis in Environmental Policy
Get PDFThis Article critically examines the rise of cost-benefit analysis (CBA) in environmental policy and the profound disconnect that has persisted between the actual practice of CBA and its normative grounding. Although CBA is now synonymous with rational decision-making in federal agencies, this has not always been the case. Views about CBA have evolved from bipartisan rejection in the 1970s, to partisan division (Republicans for, Democrats against) during the Reagan-Bush years, to a broad embrace of CBA in the mid-1990s, when centrist legal scholars were instrumental in crafting a new defense of CBA based on a mix of welfare economics and pragmatic institutional claims. The emergence of the new consensus coincided with a string of CBAs prepared by the Environmental Protection Agency (EPA) in which the environmental benefits vastly exceeded the costs. The striking nature of these results bolstered centrist support for CBA and was interpreted as powerful evidence of the potential for new regulatory science to overcome the perceived bias of CBA.
We show that centrist proponents of CBA have drawn the wrong conclusions from this experience because the benefits EPA has calculated for its rules are almost entirely attributable to a single air pollutant—particulate matter (PM)—which accounted for ninety-four to ninety-seven percent of the monetized benefits for the major rules EPA issued during fiscal years 2002 to 2015. In other words, the regulations in which PM benefits figure prominently are the exceptions that prove the rule. PM has a rare combination of characteristics that make it peculiarly amenable to epidemiological study, whereas testing of other pollutants must rely on less direct or much more complex methods. These differences are reflected in EPA’s poor track record of quantifying the benefits from rules regulating hundreds of other pollutants.
The prevailing consensus around CBA is therefore premised on false assumptions about its empirical grounding, its capacity to promote social welfare, and its neutrality in assessing costs and benefits. These inconsistencies are evident in recent controversies over EPA’s heavy reliance on PM co-benefits and federal efforts to estimate the social cost of carbon, which have exposed divisions between conservative and centrist proponents of CBA and stripped away its veneer of methodological objectivity.
Recognizing the shortcomings of CBA opens the door to a broader understanding of decision-making processes informed by the limits that “bounded rationality” places on economic models of welfare maximization. We propose alternative epistemically modest heuristic models for decision-making that are premised on exploiting the available knowledge and information. Many federal environmental laws reflect a similar epistemic pragmatism; yet it is precisely these forms of regulation that CBA’s proponents have challenged and sought to replace. We need to be clear-eyed about the epistemic limits that are endemic to environmental policy. This means designing decision tools to leverage the knowledge and information we have rather than relying on methods that are appealing in theory but require knowledge and data that are often unattainable in practice
Independence Through Judicialization: The Politics Surrounding Administrative Adjudicators, 1929-1949
Get PDFOne front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why?
Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political legal history of legislative proposals between 1929 and 1949 to understand whether, how, and why different actors sought to insulate administrative adjudicators from their agencies or the President. Leading up to and following the enactment of the Administrative Procedure Act in 1946, politicians and interested citizens advanced proposals to increase the independence of the individuals who conducted hearings and served as factfinders in administrative agencies. Then, like now, observers debated administrative adjudicator independence in the context of discussions about the power of administrative agencies. The loudest supporters of independence were anti-New Dealers trying to halt and reverse the growth of administrative power, who were joined by a subset of legal professionals interested in using law to check its operation. These critics attempted to “judicialize” administrative adjudication by increasing the resemblance of administrative adjudicators to the federal judiciary.
What does this history teach? First, it illustrates how actors past and present deploy seemingly apolitical terms like judicial values, independence, or administrative procedure to obtain substantive political ends. Indeed, such terms can take on different meanings at different times, perhaps varying with views of the federal judiciary and active government, the policies and political strength of the President, the issues decided by administrative agencies, or the types of claimants subject to adjudication. Second, it highlights how early supporters of administrative agencies emphasized the diversity among administrative adjudicators, while opponents grouped them together to collectively limit their authority. Today, rather than pursuing one-size-fits-all reforms, I suggest that different rules should apply to different administrative adjudicators depending on the questions and claimants involved. Decisions about ratemaking or regulatory enforcement differ from individualized determinations whether citizens qualify for government benefits or licenses. Claims by business interests might be treated differently from those by more vulnerable groups, such as disability-benefits recipients or noncitizens at risk of removal. In any event, when making policy recommendations, reformers should begin by understanding who administrative adjudicators are and the functions they perform, an understanding that also underscores whether and how politics should animate arguments about adjudicator independence
Shadows or Forgeries? Explaining Legal Normativity
Get PDFLegal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What they have in common is an implicit assumption about the form that normative explanation must take: that it must be a linear, non-reductive explanation. There is an alternative model for normative explanation available, however. That model explains normative notions in terms of the practices and attitudes involved in recognizing, offering, and demanding them. I highlight the potentials, and limitations, of this practice-centered alternative
Penalizing Precarity
Get PDFRetirement policy in America is oriented around 401(k) plans and other employer- sponsored savings plans, which together will receive a whopping 16 billion in hardship withdrawals each year, and the funds go to the most financially precarious households—ones that have fewer assets, lower incomes, and are more likely to be Black or Hispanic. Recognizing the existence of this gap also exposes a fundamental flaw in retirement savings policy: under the existing rules, some workers are made worse off by trying to make use of 401(k) plans. This Article introduces several reforms to protect against penalizing financial precarity by integrating hardship distributions with the early withdrawal penalty regime. We also explore broader reforms to effectively reduce financial precarity among lower-income and lower-asset households