W. Kip Viscusi

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William & Mary Law Review

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regulation, mortality risks, occupational safety, environmental protection, corporate risk analysis


Consumer Protection Law | Environmental Law | Law


The impact of government policies depends on their design, implementation, and enforcement.! The administrative law literature focuses primarily on matters of regulatory structure.2 Government agencies entrusted with protection of the environment and promotion of health and safety foster these objectives by designing and promulgating regulations that are sometimes quite stringent.' Whether these regulations will in fact generate their intended effects depends on whether they create sufficient economic incentives to discourage risky behavior...

The Article begins by documenting the low values currently placed on life in regulatory enforcement efforts. Part I presents examples involving job safety, food safety, motor-vehicle safety, and environmental quality, which demonstrate that the assignment of low values to fatalities is not an infrequent practice. Why such low values are problematic is the focus of Part II, which outlines the practices used in regulatory impact analyses for prospective regulations and the principles for optimal deterrence. To implement these principles requires changing the current statutory guidance, as the agencies currently are hamstrung by very low caps on allowable penalties." Part III presents the proposed revisions of several representative statutes pertaining to health, safety, and the environment. Once firms begin to face meaningful enforcement sanctions, this enhanced penalty structure will alter their calculation of the costs and benefits of regulatory compliance. As Part IV indicates, establishing penalty levels consistent with law and economic theories of optimal deterrence also will influence the corporate risk analyses used in determining appropriate levels of safety. But realizing the full potential of such changes will require that companies be provided with legal protections for undertaking analyses that balance the competing economic concerns of costs and risks. The concluding discussion summarizes the rationale for rectifying the mismatch between regulatory design and regulatory enforcement.



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