Valuing Life_ A Plea for Disaggregation

2004] VALUING LIFE 437
C. Harder Cases as Easy Ones, and VSL Again
Is there a reason to treat the harder cases as identical to the easy
ones? Is this absurd? 182
Agencies do not distinguish between them,
although recent guidelines, encouraging agency attention to
distributional issues, might eventually persuade them to do so. 183
A
possible reason for treating the harder cases the same as the easy ones
is the existence of an optimal income tax. If the tax system produced
the right level of redistribution, there would be good reason for
agencies to rely on individualized VSL and not to concern themselves
with whether the beneficiaries of regulation were paying for any or all
of the costs. The hard cases would be treated as the easy ones. For
people who believe that the hard cases must be treated differently, it
is because further redistribution is desirable.
Another reason for treating the harder cases as the easy ones
would be optimism: perhaps everything will balance out in the end.
Perhaps no group will be systematically helped or hurt, and the tax
system will produce appropriate redistribution. In the real-world
cases, regulators might also think that a direct inquiry into welfare,
bypassing WTP, would be extremely difficult or perhaps even
impossible to operationalize. If distributional considerations are
relevant, interest-group warfare may be the consequence, rather than
distribution to those who particularly need and deserve help. 184 More
modestly, it might be concluded that agencies should generally pursue
efficiency, using WTP as the foundation for decisions, but should
allow distributional findings to cut the other way in cases in which
there is compelling reason to do so. In fact this approach is a plausible
Legal Rules Be Used to Redistribute Income?, 70 U. CHI. L. REV. 439, 439 (2003) (“[T]he tax
system is a better tool for redistribution of income than legal rules.”).
182. See John Broome, Cost-Benefit Analysis and Population, 29 J. LEGAL STUD. 953, 958
(2000) (urging that “there are separate reasons why preferences are an unsatisfactory basis for
valuing lives,” including that, “in contexts involving risks, people’s preferences are generally
muddled and incoherent” rather than rational). If preferences are in fact muddled and
incoherent, current practice is of course on thin ground.
183. See OFFICE OF MGMT. & BUDGET, CIRCULAR A-4, REGULATORY ANALYSIS, at 4
(Sept. 17, 2003) (noting that “possible justifications [for regulation] include . . . removing
distributional unfairness”), available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.
184. See, e.g., Viscusi, supra note 10, at 844–45 (describing, as an example of interest-group
warfare, how an affluent suburban neighborhood successfully thwarted the development of a
nearby landfill, resulting in the landfill’s being moved to a “pristine research forest and nature
preserve” belonging to Duke University because the university was located in a neighboring
county and thus possessed less political clout than the suburban neighborhood).