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Some members of Congress, the D. Circuit, and the legal academy are promoting a particular, abstract form of cost-benefit analysis for financial regulation: How would CBA work in practice, if applied to specific, important, representative rules, and what is the alternative?
Judicial review of quantified CBA can be expected to do more to camouflage discretionary choices than to discipline agencies or promote democracy. Any errors are mine. For disclosure of financial interests potentially relevant to this Article, see Faculty Disclosures re: Related Outside Interests and Activities, Harv.
Circuit—subsequently held that such quantification is not mandatory, at least when the SEC is required by statute to adopt a rule, and the benefits sought to be achieved are humanitarian and not economic in nature.
This combination of objectives represents a moderate stance, between the polar positions that often characterize debates over CBA; the Article neither rejects it utterly nor embraces it naively.
The results of the exploration not only call into question simplistic efforts to mandate CBA—particularly quantified CBA, and particularly when enforced through judicial review by generalist courts—but also should help those who favor economic analysis of law to appreciate how CBA might advance and clarify policy analysis of financial regulation, rather than retard or obscure it.
Part I analyzes CBA generally, noting that it a can be either a framework for policy analysis or a legal means to discipline agencies and b can consist of either conceptual analysis or efforts at quantification.
Often, CBA is defended in part on the grounds that supposed alternatives—such as expert discretionary judgment—are no better, and often worse, than CBA. Chief among these efforts has been a string of high-profile CBA cases over the last decade in which courts have struck down financial regulations.
More problematically, those cases have also fueled efforts in Congress to give courts an even more expanded role in enforcing a general mandate for the independent agencies to include quantified CBA in rulemaking.
Part IV concludes by reviewing the implications of the case studies. Anyone who supports CBA should agree that CBA should be conducted only to the extent it passes its own test—that is, only if CBA itself will produce more benefits than costs.
These features undermine the ability of science to precisely and reliably estimate the effects of financial regulations, even retrospectively.
Whenever agencies face such sensitive and speculative forecasting abilities, quantified CBA is not capable of disciplining regulatory analysis. It will generate low benefits in the form of reduced agency costs in part by counteracting cognitive biases or increased transparency.
Other arrangements that include CBA—such as the use of conceptual CBA on a voluntary basis by independent agencies—are much more promising.
Each such arrangement deserves its own fact-specific analysis. For example, for any interagency process, one should ask: How much of the interagency dialogue would become part of the public record, available for use in a subsequent judicial challenge?
What real resources could the alternative agency bring to bear on the discussion?
Would that other agency face genuinely different incentives in evaluating a given regulation, and how much value would participation by such an agency add if included in pre-rulemaking discussions? How important is it to achieve uniformity on specific kinds of CBA inputs, and alternatively, how important is it to allow for flexibility in such inputs over time and across agencies?
As a result of the complexity of these questions, the full range of possible alternative institutional arrangements is not analyzed in detail in this Article. The literature on cost-benefit analysis is voluminous and multi-disciplinary. Three distinctions are often elided: Policy Versus Law Lawyers instinctively understand the difference between a norm or a policy, on the one hand, and a law, on the other—even when that law tracks a norm or policy.
They know, for example, that the effects of a law assumed to be justiciable requiring an agency to act reasonably will not simply equate to the actions that an agency, acting reasonably, would take.Intraindividual Variability in Objective and Subjective Sleep and Cognitive Performance in Older Adults with Insomnia.
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