Thursday, August 11, 2022
Daniel A. Farber (University of California), Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, SSRN (2022):
Inequality is a burning issue in our society but plays only a limited rule in the design of regulations. This article rejects arguments in favor of this neglect and forges a vision for moving forward. It argues in favor of features of the existing system that promote inequality: the controversial practice of using uniform valuations of life and health, regardless of income; and the use of disparate impact analysis in rulemaking. Rather than focusing on arguments for using regulation as a possible form of income redistribution or remedy for existing racial disparities, the article argues that justice requires devoting equal resources to prevent equal harms.
The reality is that low-income communities and communities of color often are the ones suffering the greatest harms (and not just by chance). By using far more granular approaches to determining who is exposed to risks and how vulnerable they are to harm, agencies could do far more to implement this principle, identify the needs of disadvantaged communities, and effectively address them.