Cost-benefit Analysis versus the Precautionary Principle: beyond Cass Sunstein’s Laws of Fear

Perhaps the quintessential role of government is to protect its citizens from threats of all types: war, global warming, terrorism, disease, toxic substances. This essay provides a review and critique of Sunstein’s innovative contribution to the lively debate over how government should perform this role, a debate that often pits cost-benefit analysis against the precautionary principle. The authors contend that Sunstein’s critique of the precautionary principle has merit, but that his much-discussed Laws of Fear proposals are deficient in several significant respects. Sunstein’s proposals fail to solve problems related to cost-benefit analysis, implementation of deliberative democracy, and incorporation of social values into responses to threats. The essay concludes with a recommendation for reconceptualizing the precautionary principle in a manner that saves it from Sunstein’s critiques.