Risk Equity: A New Proposal

What does distributive justice require of risk regulators? Various executive orders enjoin health and safety regulators to take account of “distributive impacts,” “equity,” or “environmental justice,” and many scholars endorse these requirements. But concrete methodologies for evaluating the equity effects of risk regulation policies remain undeveloped. The contrast with cost-benefit analysis--now a very well developed set of techniques --is stark. Equity analysis by governmental agencies that regulate health and safety risks, at least in the United States, lacks rigor and structure. This Article proposes a rigorous framework for risk-equity analysis, which I term “probabilistic population profile analysis” (PPPA). PPPA is both novel, yet firmly grounded in the social-welfare-function tradition in welfare economics. The PPPA framework conceptualizes both the status quo, and possible policies, as probability distributions across population profiles -- where each population profile is, in turn, a concatenation of lifetime health-longevity-income histories, one for each member of the population. A utility function transforms each such profile into a utility vector. An equity-regarding social welfare function (SWF) is then specified. Policy analysts can employ the equity-regarding SWF both (1) to determine how policies compare purely as a matter of equality; and (2) to determine how they compare all-things-considered, considering both equality and overall welfare. The proposal may seem utopian, but is not. Scholars in the field of optimal tax policy already use SWFs to evaluate policies. Characterizing policies as distributions across population health-longevity-income profiles builds on existing risk assessment and general-equilibrium-modeling techniques. Utility functions can be specified through survey research and, in the interim, by building on standard functional forms. Plausible normative axioms considerably narrow the possible forms of the SWF, and survey research or thought experiments narrow the field further. Part I of the Article describes and criticizes existing approaches to risk equity that have been proposed in the scholarly literature: the environmental justice conception of risk equity; “individual risk” approaches; QALY-based equity analysis; incidence analysis; inclusive equality measurement; and cost-benefit analysis with distributive weights. Part II describes and defends PPPA. PPPA has many virtues. It recognizes that well-being is multidimensional, a function of both income and health/longevity; furnishes a metric for inequality; provides a framework for making tradeoffs between equality and overall well-being; and understands that distributive justice includes (but is not limited to) inequalities between high and low-status social groups

Well-Being, Inequality and Time: The Time-Slice Problem and its Policy Implications

Should equality be viewed from a lifetime or sublifetime perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as progressive or regressive, should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a function of her current state - meaning that someone who is badly nourished, badly housed, or in pain at present has a strong claim on our aid regardless of whether this is a chronic or transient state? Should we think of the aged as a suspect class, a low-well-being group? From the sublifetime perspective, the aged are indeed a kind of suspect class, because they tend to have low current incomes and health and to be socially isolated. But the aged have lived for many years and are therefore, as a matter of lifetime well-being, relatively rich compared to the rest of the population. This Article addresses the time-slice question. I use the framework of welfarism and the formal apparatus of social welfare functions to sharpen analysis. The first half of the Article argues for the lifetime perspective. The second half surveys the implications of that perspective for a host of legal and policy issues: the measurement of equality; the measurement of poverty; the design of redistributive taxes; the question whether non-tax instruments, such as environmental regulations or tort law, should also be used for redistribution; and how the suspect class framework and other distributively sensitive policy tools should be structured. Above all, the Article aims to raise the profile of a foundational question which has been insufficiently discussed - a question that anyone who cares about equality should grapple with

Justice, Claims and Prioritarianism: Room for Desert?

Does individual desert matter for distributive justice? Is it relevant, for purposes of justice, that the pattern of distribution of justice’s “currency” (be it well-being, resources, preference-satisfaction, capabilities, or something else) is aligned in one or another way with the pattern of individual desert? This paper examines the nexus between desert and distributive justice through the lens of individual claims. The concept of claims (specifically “claims across outcomes”) is a fruitful way to flesh out the content of distributive justice so as to be grounded in the separateness of persons. A claim is a relation between a person and a pair of outcomes. If someone is better off in one outcome than a second, she has a claim in favor of the first. If she is equally well off in the two outcomes, she has a null claim between the two. In turn, whether one outcome is more just than a second depends upon the pattern of claims between them. In prior work, I have elaborated the concept of claims across outcomes, and have used it to provide a unified defense of the Pareto and Pigou-Dalton axioms. Adding some further, plausible, axioms, we arrive at prioritarianism. Here, I consider the possibility of desert-modulated claims—whereby the strength of an individual’s claim between two outcomes is determined not only by her well-being levels in the two outcomes, and her well-being difference between them, but also by her desert. This generalization of the notion of claims suggests a new axiom of justice: Priority for the More Deserving, requiring that, as between two individuals at the same well-being level, a given increment in well-being be allocated to the more deserving one. If individual desert is intrapersonally fixed, this new axiom, together with a desert-modulated version of the Pigou-Dalton principle, and the Pareto axioms, yields a desert-modulated prioritarian account of distributive justice. Trouble arises, however, if an individual’s desert level can be different in different outcomes. In this case of intrapersonally variable desert, Priority for the More Deserving can conflict with the Pareto axioms (both Pareto indifference and strong Pareto). This conflict, I believe, is sufficient reason to abandon the proposal to make claim strength a function of individual desert on top of well-being levels and differences. If distributive justice is truly sensitive to each individual’s separate perspective—if the justice ranking of outcomes is built up from the totality of individual rankings—we should embrace the Pareto axioms as axioms of justice and reject Priority for the More Deserving. In short: desert-modulated prioritarianism is a nonstarter. Rawls was right to sever distributive justice from desert

Why De Minimis?

De minimis cutoffs are a familiar feature of risk regulation. This includes the quantitative individual risk thresholds for fatality risks employed in many contexts by EPA, FDA, and other agencies, such as the 1-in-1 million lifetime cancer risk cutoff; extreme event cutoffs for addressing natural hazards, such as the 100 - year - flood or 475 - year - earthquake; de minimis failure probabilities for built structures; the exclusion of low - probability causal models; and other policymaking criteria. All these tests have a common structure, as I show in the Article. A de minimis test, broadly defined, tells the decisionmaker to determine whether the probability of some outcome is above a low threshold and makes this determination relevant, in some way, to her choice. De minimis cutoffs are deeply problematic, and have been generally misunderstood by scholars. First, they are warranted - if at all - by virtue of policymakers\u27 bounded rationality. If policymakers were fully rational, de minimis cutoffs would have no justification. (This is true, I suggest, across a wide range of normative theories, and for the full gamut of de minimis tests). Second, although it seems plausible that some de minimis tests are justified once bounded rationality is brought into the picture, it is not clear which those are, or even how we should go about identifying them

Future Generations: A Prioritarian View

Should we remain neutral between our interests and those of future generations? Or are we ethically permitted or even required to depart from neutrality and engage in some measure of intergenerational discounting? This Article addresses the problem of intergenerational discounting by drawing on two different intellectual traditions: the social welfare function (“SWF”) tradition in welfare economics, and scholarship on “prioritarianism” in moral philosophy. Unlike utilitarians, prioritarians are sensitive to the distribution of well-being. They give greater weight to well-being changes affecting worse-off individuals. Prioritarianism can be captured, formally, through an SWF which sums a concave transformation of individual utility, rather than simply summing unweighted utilities in utilitarian fashion. The Article considers the appropriate structure of a prioritarian SWF in intergenerational cases. The simplest case involves a fixed and finite intertemporal population. In that case, I argue, policymakers can and should maintain full neutrality between present and future generations. No discount factor should be attached to the utility of future individuals. Neutrality becomes trickier when we depart from this simple case, meaning: (1) “non-identity” problems, where current choices change the identity of future individuals; (2) population-size variation, where current choices affect not merely the identity of future individuals, but the size of the world’s future population (this case raises the specter of what Derek Parfit terms “the repugnant conclusion,” i.e., that dramatic reductions in the average level of individual well-being might be compensated for by increases in population size); or (3) an infinite population. The Article grapples with the difficult question of outfitting a prioritarian SWF to handle non-identity problems, population-size variation, and infinite populations. It tentatively suggests that a measure of neutrality can be maintained even in these cases

Well-Being, Inequality and Time: The Time-Slice Problem and its Policy Implications

Should equality be viewed from a lifetime or sublifetime perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as progressive or regressive, should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a function of her current state - meaning that someone who is badly nourished, badly housed, or in pain at present has a strong claim on our aid regardless of whether this is a chronic or transient state? Should we think of the aged as a suspect class, a low-well-being group? From the sublifetime perspective, the aged are indeed a kind of suspect class, because they tend to have low current incomes and health and to be socially isolated. But the aged have lived for many years and are therefore, as a matter of lifetime well-being, relatively rich compared to the rest of the population. This Article addresses the time-slice question. I use the framework of welfarism and the formal apparatus of social welfare functions to sharpen analysis. The first half of the Article argues for the lifetime perspective. The second half surveys the implications of that perspective for a host of legal and policy issues: the measurement of equality; the measurement of poverty; the design of redistributive taxes; the question whether non-tax instruments, such as environmental regulations or tort law, should also be used for redistribution; and how the suspect class framework and other distributively sensitive policy tools should be structured. Above all, the Article aims to raise the profile of a foundational question which has been insufficiently discussed - a question that anyone who cares about equality should grapple with

Justification, Legitimacy, and Administrative Governance

Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that sacrifices democratic legitimacy for the sake of other values)