Reconciling Cost-Benefit Analysis with the Principle That Safety Matters More Than Money
Professor of Law, New York University. B.A., 1980, Lewis & Clark College; M.A., 1981, University of Pennsylvania; J.D., 1989, Ph.D., 1990, Columbia University.
Some health and safety laws emphasize safety over cost considerations by invoking the principle that safety matters more than money. Other laws rely on cost-benefit analysis (CBA) that equates safety and money. In this Article, Professor Mark Geistfeld argues that, despite their apparent inconsistency, the two regulatory approaches can be reconciled. He first explains why the safety principle most plausibly stands for a distributive claim that in the context of nonconsensual risk impositions, the safety interests of potential victims deserve greater weight than the ordinary economic interests of potential injurers. Although this claim seems to be inconsistent with CBA, Professor Geistfeld analyzes cost-benefit tort rules to demonstrate how potential victims are inadequately compensated for certain types of nonconsensual risks threatening death, an inequity that can be quantified with cost-benefit methodology. He shows that the inequity is defensibly remedied by altering the duty of care to give safety interests greater weight than economic interests (the weighting sanctioned by the safety principle), which ultimately yields a well-defined decision rule that modifies CBA for certain types of nonconsensual risks threatening serious physical injury. Subsequently, he contends that modified CBA (1) satisfies the requirements of modern welfare economics, (2) can accommodate a wide range of normative concerns, and (3) closely conforms to important tort practices, suggesting that it implements a version of the safety principle closely corresponding to the version adopted by the tort system. Finally, Professor Geistfeld concludes that the value of modified CBA is illustrated by the structure it gives to the precautionary principle, a vague regulatory approach based on the safety principle that has become increasingly important and controversial in international law.