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).

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