Academic journal article The Yale Law Journal

Dignity as a Value in Agency Cost-Benefit Analysis

Academic journal article The Yale Law Journal

Dignity as a Value in Agency Cost-Benefit Analysis

Article excerpt


A. Against Monetization

One potential response to the challenge of incorporating dignity into CBA is to monetize dignity, or at least to attempt to approximate a monetary measure of dignity to the greatest extent possible (the latter may be the most plausible interpretation of Circular A-4's approach). (123) The appeal of monetizing or approximating monetization is that agencies would be forced to translate the apparently "squishy" factor of dignity into concrete numbers. On this account, agencies would not simply be able to appeal generally to an abstract concept to justify a rule that will cost a great deal of taxpayer money. Moreover, the process of monetizing dignity or approximating monetization would ostensibly force agencies to clarify their valuation of dignity and so would help to avoid the transparency problem. (124) Efforts to monetize dignity are misguided for three main reasons. First, dignity's complex and malleable nature makes this concept difficult to monetize for principled theoretical reasons. Second, the attempt to monetize dignity likely results in the failure to value dignity in the proper way. Third, monetized CBA may tend toward trans-contextual valuation, and it is especially important to resist this trend in the case of dignity.

1. The Complexity and Malleability of Dignity

One problem with monetizing dignity is that the complex and malleable nature of dignity makes dignity difficult to monetize. This is partially a practical problem, but it is not a purely technical one, because the practical problem raises fundamental theoretical issues. In particular, dignitary benefits often come along with, and are closely intertwined with, other types of benefits. Consequently, it is hard to disaggregate people's willingness-to-pay for dignity from their willingness-to-pay for other goods. For instance, the disability RIA determines that for a particular type of bathroom, "people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at just under 5 cents per use." (125) Dignity here is listed along with safety and independence (independence may be a dignitary interest, but the agency does not explain whether it is). If the agency found that people are willing to pay more than five cents to be able to use this type of bathroom, this finding would not imply that the price of dignity in the context of disability access is more than five cents, for dignity does not stand on its own.

The "disaggregation" problem with monetizing dignity may apply, to some extent, to several values that are "difficult or impossible to quantify," such as life, health, and environmental goods. But there is reason to think that the disaggregation problem applies with particular force to dignity. (126) These other goods, compared to dignity, may be more readily considered independently. One could, for example, examine how much people donate to keep an area park from destruction and plausibly view the result as a measure of people's willingness to pay for an environmental good. But dignity is so closely wrapped up with other concepts--such as liberty and equality (127)--that contingent-valuation and revealed-preference studies may not be very informative about the value of dignity. The comparison between dignity and other goods is not a hard-and-fast rule. The point is that the practical difficulties in monetizing dignity reflect a deep theoretical issue: dignity is a complex and malleable concept, one that overlaps in intricate ways with other concepts. These features of dignity are ill-suited to the often-blunt tool of monetary valuation and are best dealt with, I indicate below, through qualitative specification.

2. Valuing Dignity in the Proper Way

An even more serious problem with monetizing dignity is that doing so fails to value dignity in the proper way. …

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