Resource-Based Strategies in Law and Positive Political Theory: Cost-Benefit Analysis and the Like
Emerson H. Tiller
Northwestern University - School of Law
Forthcoming in University Of Pennsylvania Law Review, Vol. 150, 2002
While the notion of decision costs and limited resources as constraints on law and policy making have found their way into recent legal analyses, few scholars have described the broader political control strategies available to institutions using such resource-based approaches. The political control exercised by Congress, the President, and courts through cost-benefit analysis, and similar strategy-laden instruments, allows one or more policy makers to force a competing policy maker to expend valuable, and limited, resources thereby preventing, or greatly compromising, policies desired by the competing policy maker. Resource-based strategies can be exercised horizontally through separated powers games or vertically (upstream and downstream) in court-agency hierarchies. These strategies are revealed in legislation and agency design by Congress, executive orders by the President, and doctrine and other instruments of legal reasoning by the judiciary. Positive Political Theory offers a framework for thinking about these resource-based strategies and the implications are profound. This article solidifies the current understanding of resource-based strategies from the Positive Political Theory (PPT) perspective and presents extensions, including analyses of (1) the differential resource impacts on policy players from the various types of regulation that may be imposed on agencies (benefits statutes and cost-benefit statutes), and (2) the introduction of regulated targets as resource strategizers with public institutions.
Date posted: June 11, 2002
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