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90 Geo. L.J. 2341 (2001-2002)
Professor Sunstein's Fuzzy Math

handle is hein.journals/glj90 and id is 2363 raw text is: Professor Sunstein's Fuzzy Math THOMAS 0. MCGARITY* INTRODUCTION For many years, Professor Sunstein has been one of academia's most persis- tent and persuasive advocates of federal agency use of cost-benefit analysis in health, safety, and environmental decisionmaking. A cost-benefit balancing approach to governmental decisionmaking squares nicely with civic republican values that acknowledge the important role that government must play in achieving a fair distribution of resources. At the same time, it urges informed and fair-minded professionals to decide, after due deliberation, what is best for the rest of us.' Professor Sunstein has always preached a soft version of cost-benefit analysis that takes an honest stab at quantitative assessment of the costs and benefits of major health, safety, and environmental regulations, but does not necessarily allow the result to dictate the ultimate outcome of any given rulemaking effort. Agencies should, in Professor Sunstein's view, use the knowledge gained from cost-benefit analysis for guidance in setting regulatory priorities and defining the outer bounds of rational decisionmaking. In The Arithmetic of Arsenic,2 Professor Sunstein goes beyond the theory of cost-benefit analysis to examine in some detail an important application of that approach to regulatory decisionmaking in the real world. This altogether com- mendable exercise leads Professor Sunstein to what, apparently for him, is the surprising conclusion that quantitative risk assessment and monetization tech- niques yield a very broad range of plausible benefits for nearly all of the available regulatory options. Rather than shake his faith in the value of quantita- tive cost-benefit analysis as a decisionmaking tool in risk regulation, this revelation leads Professor Sunstein to lessons that are fully consistent with the soft cost-benefit approach that he has always advocated, with the additional caveat that courts should give agencies a great deal of leeway in reviewing health, safety, and environmental regulations. Ultimately, the source of Profes- sor Sunstein's unwillingness to abandon the paradigm altogether is his profound and abiding lack of confidence in the capacity of an uninformed and simple- minded public to make wise decisions about the magnitude of health, safety, and environmental risks, and the steps that should be taken to reduce those risks. Parts I and II of this Response will examine the EPA's arsenic risk assessment and benefits analysis in light of Professor Sunstein's Questions and Doubts about the proper shape of the dose-response curve at low levels and his * W. James Kronzer Chair in Trial and Appellate Advocacy, University of Texas School of Law. 1. I have elaborated on the characteristics of civic republican thought elsewhere. See Thomas 0. McGarity, The Expanded Debate Over the Future of the Regulatory State, 63 U. CHi. L. REV. 1463, 1498-1506(1996). 2. Cass R. Sunstein, The Arithmetic ofArsenic, 90 GEO. L.J. 2255 (2002). 2341

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