President Obama’s 2011 Executive Order 13,563 on cost-benefit analysis (CBA) authorizes agencies to consider “human dignity” in identifying the costs and benefits of proposed regulation. The notion of incorporating dignity into CBA, this Note points out, highlights the importance of choosing between different conceptions of CBA: one that aims to derive a monetary figure for dignity, and one that seeks to take dignity into account in unmonetized form. This Note illuminates the stakes of the choice between monetized and unmonetized CBA by drawing attention to various ways in which dignity might be incorporated into CBA.
The Note then argues that CBA can and must include dignity in unmonetized form. In doing so, agencies should embrace “qualitative specificity,” which involves elucidating in qualitative terms the nature and gravity of dignitary considerations in a particular regulatory context. Qualitative specificity, the Note indicates, enables agencies more transparently to assess the positive and negative consequences of government regulation, and it facilitates public participation in the process of defining the nature of dignity in the senses relevant to the effects of government regulation. In response to the critique that qualitative specificity is indeterminate and fails to constrain administrative discretion, the Note contends that qualitative specificity provides only as much determinacy as is actually available; this approach is preferable to monetization that emerges with a determinate number but fails to accommodate the complex and malleable nature of dignity.