Environmental, health, and safety advocates, say Richard Revesz and Michael Livermore, have been wrongly hostile to cost-benefit analysis because of a false belief that it is biased against regulation. The bias against regulation, while real, has been the artifact of historical accident -- the domination of cost-benefit discourse by antiregulatory advocates. In fact, cost-benefit analysis, neutrally applied, can easily be proregulatory, especially in health, safety, and environmental regulation. Proregulation types should, therefore, learn to stop worrying and confidently make their case in economic terms.

Dean Revesz’s pitch is partly political: advocates of regulation should use cost-benefit analysis to better achieve their goals, even if those goals come from a moral perspective that rejects economic reasoning. “Cost-benefit analysis,” after all, “is here to stay,” and “[d]ecisions [a]re [m]ade by [t]hose [w]ho [s]how [u]p.” But he’s also speaking on an intellectual level: cost-benefit analysis is not just “inevitable” but also “desirable,” because it correctly tells us which regulations are rational.

On the intellectual level, I believe that Dean Revesz gives short shrift to important theoretical, practical, and normative arguments against cost-benefit analysis: it may not be a coherent enterprise; if it’s coherent, it may not be possible to do it well; and if it’s possible to do it well, it’s not necessarily attractive on moral grounds.

On the political level, cost-benefit analysis can be more attractive: one can happily use theoretically indefensible means to pursue political ends that one desires for other reasons. For Dean Revesz’s intended audience -- regulation advocates who have been historically suspicious of cost-benefit analysis -- his thesis may well be right. But it has a corollary for free-market advocates who are hostile to regulation. Free-market advocates have mostly gone along with cost-benefit analysis because of a belief that it would serve as a brake on regulation. If Dean Revesz is right -- if cost-benefit analysis, neutrally applied, can easily be proregulatory -- perhaps natural-rights libertarians should reconsider their tolerance of cost-benefit analysis and focus more on making their case for deregulation in moral terms.

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.” It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected. Some studies in this category find no effect, but some do find a modest effect. But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work. However, there’s also no strong reason to believe that they don’t work. I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons—what if convicted criminals could choose their prison rather than being assigned bureaucratically?

Under a voucher system, prisons would compete for prisoners, meaning that they will adopt policies valued by prisoners. They would be more flexible as a constitutional matter—faith-based prisons would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights. As far as prison quality goes, the advantages of vouchers would plausibly include greater security, decent health care, and good educational and vocational opportunities—features that are also valued by prison reformers and have rehabilitative value.

The counterarguments are twofold. “Market failure” arguments hold that, because of informational or other problems, prisoner choice would not succeed in improving overall prison quality. “Market success” arguments, on the other hand, hold that prison choice would improve prison quality too well, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison. These counterarguments have substantial force, but it is still possible that these disadvantages are outweighed by the socially desirable improvements.

I conclude with thoughts about the politics of prison vouchers, both before and after their adoption.

Faith-based prisons, as currently constituted, are unconstitutional. Whether the funding mechanism is direct or indirect, they are generally not chosen by a process that is neutral as between religious and non-religious providers; they result in religious indoctrination; they often offer significantly greater benefits to participants (which can qualify as “coercion” under the Establishment Clause); and they delegate governmental power to religious organizations.

In this Article, I propose a novel method of allocating prisoners: a system of “prison vouchers,” by which prisoners would be able to choose which prison to go to, including, where this is available, a pri-vate prison, and even a religious one. I argue that, under such a sys-tem, faith-based prisons would probably be constitutional. By selecting prisons neutrally, without regard to religion, and by allowing prisoners to choose any available prison, the Establishment Clause problems would disappear. In particular, prisoners would have the “genuine and independent private choice” that would bring religious prisons within the protection of Zelman v. Simmons-Harris.

Prison vouchers would offer prisons greater leeway in other ways as well. Private prisons that accept vouchers, like private prisons to-day, would continue to be “state actors” for constitutional purposes, so (unlike schools) a private voucher prison wouldn’t automatically be exempt from constitutional requirements. However, a prison might have the ability to “offer” at least some “constitutionally noncompliant packages” that would be attractive to inmates, to the extent this is allowed under the unconstitutional conditions doctrine.

The standard view that "statutory interpretation matters" -- that different methods can "lead to" different results -- is hard to square with the standard rational-choice account of judicial decisionmaking. Indeed, under the standard model, it is not obvious why a judge should bother to even read the statute.

I show, within the rational-choice account, how the judge can benefit from reading the statute when the preferences of legislators are uncertain. Doing so shows the judge what policy the legislators agreed to in the past, which gives him clues as to legislators' preferences today. Moreover, different assumptions about how the legislature can react to judicial decisions will alter the judge's decisionmaking.

When an override simply takes the form of a "very large penalty" for the judge, he will in general deviate from his ideal point to the median of the distribution of legislators' preferences, in an effort to avoid being penalized.

However, if an override takes the form of an actual change of policy, not all overrides are not created equal. I show that some forms of legislative override do not encourage the judge to read the law, while, surprisingly, other forms of override do encourage the judge to read the law but can actually decrease the extent to which the judge follows the law. The structure of a legislative override thus has more complex effects on judicial behavior than has previously been understood.

I also show that, when more than one possible meaning of the statute is available, depending on the method of statutory interpretation is available, some judges may gravitate toward one or the other method depending in part on their own ideology.

Empirical work must therefore take care to distinguish between the political biases of judges who choose a particular interpretive method and the "true nature" of the method, or what opinions using the method would look like if all judges were constrained to use it.

These are the materials for my course on privatization, and the draft for an eventual casebook.

Response to the Harvard Law Record column by Cliff Ginn available at http://www.hlrecord.org/news/341145.html.

Entry on "externalities" for the Encyclopedia of Libertarianism.