Dignity as a value in agency cost-benefit analysis.

• Author: Bayefsky, Rachel
• Position: IV. Recommendations for Incorporating Dignity into CBA through Conclusion, with footnotes, p. 1764-1782

IV. RECOMMENDATIONS FOR INCORPORATING DIGNITY INTO CBA

1. 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. One way of approaching this issue is to consider the distinction between Cost Monetization (Option 3), which compares monetized costs to unmonetized dignitary benefits, and Full Monetization (Option 4), which compares monetized costs to monetized dignitary benefits. Is there a genuine distinction between these options? After all, if one announces that dignity in the context of the health privacy rule (say) is sufficient to outweigh a certain monetary figure in costs, is this not the same as saying that dignity costs at least as much as this monetary figure?

      I would argue, though, that there is an expressive significance in malting clear that dignity is being weighed against a monetary figure, but is not being priced. (128) One reason is that this statement leaves room for a moral remainder when we make the determination that the promotion of dignity is outweighed by the costs. When commodities are bought and sold in the market, the commodity is presented as equivalent to the price, so that the transaction leaves no "remainder" when it is over. When a trade-off involving dignity is made, however, the fact that dignity has not been assigned a price (under Cost Monetization) allows for the notion that some factor has been left over in the decision that cannot be assigned an exact equivalent. Adopting this attitude towards protections for dignity in the contexts considered in agencies' CBAs for instance, prison rape, disability accommodations, and health information privacy--would be an appropriate way to recognize the importance of dignity to people's lives even when the effort to promote dignity is curtailed because of its costs.

      Another, related reason not to price dignity is that doing so would suggest a failure to value dignity in the appropriate way. As Arden Rowell notes, the uneasiness with pricing apparently unquantifiable values, such as life and health, often stems from a concern about commensurability. (129) We tend to think of certain things as incommensurable with money; it would seem somehow inappropriate to say "I value my child's risk of death at $7-8 million."

      It may be objected that the "incommensurability" critique is too strong. Rowell, for instance, argues that "[m]any of the effects of a regulation may be incommensurable with money, but when those effects are important--as, for example, with the preservation of the life of a child--people are often willing to pay money to secure them." (130) In Rowell's view, regulators can obtain a "partial valuation" of goods that are incommensurable with money by measuring people's willingness to pay, while recognizing that monetary figures will only partially reflect people's valuation of these goods. Agencies should obtain these partial valuations, rather than treating the value of a child's life as something that '"cannot be monetized'--as if people are willing to spend no money at all to extend children's lives." (131)

      The difficulty with Rowell's analysis is that he assumes the unwillingness to monetize is equivalent to "the willingness to spend $o," that is, a monetization in which the willingness-to-pay is $o. The point of being unwilling to monetize is not that one is unwilling to spend money, but that one is unwilling to conceive of a certain good in monetary terms. Rowell seems to acknowledge this point in certain exceptional circumstances, however, and one of them involves dignity. Rowell notes that it is possible that not "all goods can be partially valued in terms of money." (132) For some goods, "there is a social stigma attached to monetization or commodification, such as where the good is defined by reference to its lack of susceptibility to exchange." (133) His examples of this type of good are gifts and dignity, "which could arguably lose [their] value if [they are] exchanged for money." (134)

      Rowell's account is still incomplete. The problem with monetizing dignity is not necessarily that there is a social stigma attached to monetization or commodification, but that this stigma exists for a reason: because constitutive of our relationship with certain goods is the fact we do not monetize them. (135) The uneasiness about pricing dignity reflects the idea that we would not value dignity in the proper way if we measured how much we were willing to pay for it.

      There are at least three ways to understand the incommensurability critique. One is that the monetization of dignity inflicts expressive harm in the sense that someone is insulted, in the way that a person might be insulted if someone came up to a person in the street, pointed at her child, and said "your child is worth no more than $8 million." A second possibility is that monetizing dignity inflicts harm on the world more broadly by leading to greater commodification--that, as Margaret Jane Radin says of the complete commodification of sex, " [w]ith this change in discourse would come a change in everyone's experience." (136) A third possibility--and the basic one that I endorse--is that monetizing dignity involves mismeasurement, or a failure to capture appropriately the value at stake. Mismeasurement is a problem not in the sense that dignity has been assigned too low (or high) a value, but that dignity has been assigned the wrong kind of value. When regulators mismeasure dignity, they fail to understand and transmit the genuine nature of the human good in question. Mismeasurement might have the consequence of insulting people or encouraging commodification, but mismeasurement is a problem in itself, regardless of whether these consequences occur.

      An important objection to the argument against monetization is that juries award damages for death, bodily injury, and numerous other types of harms that might be viewed as incommensurable with money. If these damage awards are acceptable, then why is it problematic to monetize dignity through CBA?

      There are several responses to this concern. First, damages serve purposes other than compensating victims, such as deterring future offenders. The fact that damages are...