[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by Xin Dai and Yun-chien Chang to two replies to their article, The Limited Usefulness of the Proportionality Principle.]
We appreciate the two insightful replies authored by Professor Anne Peters and Professors Cristóbal Caviedes and Francisco J. Urbina. Both replies acknowledge that the proportionality principle (PP) has its shortcomings but reject our proposal that cost-benefit analysis (CBA) does better what proportionality purports to do. In this rejoinder, we briefly address key issues raised by these replies in order to bolster the case for CBA as a better procedure than PP for legal analysis in many, if not all, institutional contexts. Our core message is that even in the constitutional review context, where not all considerations should be taken into account by courts, PP is still not the most ideal decision-making tool.
- Quantification is never required but is usually helpful
CBA requires comprehensive balancing but not necessarily quantification of values, which both replies view as implausible and meaningless. As Profs. Caviedes and Urbina rightfully suggested, we could have spelled out that by CBA we referred very generally to the type of rational, consequentialist, all-considered decision-making procedure. The critical superiority of CBA over PP, as we have argued in the original essay, is that CBA enables decision-makers to “balance all relevant considerations,” which is what many proponents believe that PP does (it does not). The major advantage in making decisions by first identifying all thinkable pros and cons (with or without quantification) is that such a procedure helps overcome the human tendency of attending to only a subset of relevant factors when making difficult decisions. A structured decision procedure such as PP, as we explained, reinforces exactly such a tendency and, as a result, is a crippled, under-inclusive CBA.Read the rest of this entry…