Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
spent on, say, better weather forecasting would prevent even more deaths and
injuries?
More generally, critics object to the cost-benefit framework’s use of a monetary
metric to place the pros and cons of an action on a common footing. They complain,
for example, that when a power plant pollutes the air, our gains from the cheap
power thus obtained simply cannot be compared with the pristine view of the Grand
Canyon we sacrifice. . . .
This view has troubling implications. . . . Scarcity is a simple fact of the human
condition. To have more of one good thing, we must settle for less of another.
Claiming that different values are incommensurable simply hinders clear thinking
about difficult trade-offs.
Notwithstanding their public pronouncements about incommensurability, even the
fiercest critics of cost-benefit analysis cannot escape such trade-offs. For example,
they do not vacuum their houses several times a day, nor do they get their brakes
checked every morning. The reason, presumably, is not that clean air and auto
safety do not matter, but that they have more pressing uses of their time. Like the
rest of us, they are forced to make the best accommodations they can between
competing values.
Cass Sunstein articulates a different defense of cost-benefit reasoning, one that focuses on the
architecture of the decision-making process:
Cass Sunstein, Cognition and Cost-Benefit Analysis, 29 J. LEGAL STUD. 1059, 1060 (2000)
[C]ost-benefit analysis is best defended as a means of overcoming predictable
problems in individual and social cognition. Most of these problems might be
collected under the general heading of selective attention. Cost-benefit analysis
should be understood as a method for putting “on screen” important social facts that
might otherwise escape private and public attention. Thus understood, cost-benefit
analysis is a way of ensuring better priority setting and of overcoming predictable
obstacles to desirable regulation, whatever may be our criteria for deciding the
hardest questions about that topic. . . . [T]his method, conceived in a particular way,
might attract support from people with varying conceptions of the good and the right,
including, for example, neoclassical economists and those who are quite skeptical
about some normative claims in neoclassical economics, involving those who do
and who do not take private preferences, and willingness to pay, as the proper
foundation for regulatory policy.
Sunstein’s support of cost-benefit reasoning sees the method as the best—perhaps the
only—tool to make transparent, rational decisions in regulatory agencies and courtrooms. He
claims that cost-benefit analysis actually helps us organize a broad range of value judgments,
whether or not they fit neatly into existing markets.
Sunstein has also used behavioral science research to suggest that our moral intuitions
against utilitarianism, and potentially for alternatives like the precautionary principle, are
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