Lisa Heinzerling on CPRBlog {Bio}

Cost-Benefit Jumps the Shark: The Department of Justice's Economic Analysis of Prison Rape

Cross-posted from Georgetown Law Faculty Blog.

Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it. Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse. 

Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities.  The rule was required by the Prison Rape Elimination Act ("PREA"), a law passed by a unanimous Congress and signed by President George W. Bush.  In PREA, Congress directed DOJ to set national standards to prevent, detect, and respond to rape and other forms of sexual abuse in federal, state, and local confinement facilities.  PREA did not say that DOJ should do a cost-benefit analysis to decide whether actions to prevent, detect, and respond to rape and sexual abuse in prison are worth it.  On the contrary, the only limit that Congress placed on DOJ's national standards was that the standards were not to impose "substantial additional costs" beyond the present expenditures of the covered facilities.  In its final rule setting the national standards called for by PREA, DOJ easily found that its standards complied with this statutory constraint.   In three quick sentences, DOJ found that even full compliance with DOJ's standards would increase total expenditures by less than 1 percent and that this additional expenditure did not exceed the statutory limit of "substantial additional costs." 

Nevertheless, under an Executive Order issued by President Obama in January 2011, and one issued by President Clinton in 1993 and embraced by Presidents Bush and Obama, DOJ went on to determine whether the benefits of its rule were justified by the costs. In its 168-page Regulatory Impact Analysis, DOJ treats the reader to a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse.

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Antibiotics, Animals, and Agency Discretion

Cross-posted from Georgetown Law Faculty Blog.

When an agency defends over three decades of inaction on an important problem by saying that acting would take too long, one hopes a judge reviewing the agency's inaction will see through the pretense.  This is exactly what happened this week, when a federal magistrate judge in New York ruled that the U.S. Food and Drug Administration had acted arbitrarily in citing time and resource constraints in declining to limit the use of antibiotics in animal feed. 

Some 80 percent of the antibiotics used in the United States are given to animals destined to become part of our food supply.  Most of these drugs are given not to sick but to healthy animals; they are used not to treat disease but to promote animal growth or to prevent bacterial infections from occurring.  Both of these purposes are tied to the industrial nature of animal food production in this country.  The economic imperatives of industrial food production reward faster animal growth, and the microbial realities of the modern animal food production facility -- in which animals are tightly confined in stressful, bacteria-rich (to put it nicely), infection-promoting conditions -- encourage herd-wide administration of antibiotics to prevent infections. 

The widespread administration of antibiotics to food animals for non-therapeutic purposes has contributed to the development and spread of antibiotic-resistant strains of bacteria.  When bacteria become resistant to an antibiotic, that antibiotic will no longer treat the infection the bacteria cause.  Antibiotic resistance is to our wonder drugs what Kryptonite is to Superman.

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