Beyond Cost-Benefit Analysis: A Pragmatic Reorientation

82 Pages Posted: 30 Jan 2008 Last revised: 28 Dec 2014

See all articles by Sidney A. Shapiro

Sidney A. Shapiro

Wake Forest University School of Law

Christopher H. Schroeder

Duke University School of Law

Abstract

The weaknesses of cost-benefit analysis (CBA) are apparent for all to see. The theoretical underpinnings of positivism and rational choice methodologies have been dealt a significant blow in the post-positivist literature in science, political science and policy studies. Likewise, the performance of CBA itself has been the subject of a significant and persuasive challenge in the legal literature. This article critiques specifically the current federal form of regulatory impact analysis (RIA), centered institutionally in OIRA and centered methodologically in CBA. One of reasons for the continuing dominance of a CBA-centered RIA is the success of its proponents in maintaining that there is no viable alternative. As a general matter, this argument has been discredited in a substantial policy science and post-positivist literature that is based on Harold Laswell's ideas and ambitions for a policy sciences of democracy. Until now, however, no specific proposal for an alternative to a CBA-centered RIA process has been put forward in the legal literature. Our preference for a Laswellian approach to regulatory analysis is pragmatic - it will work better in informing decision-makers and citizens about the actual issues that must be resolved. In our alternative to CBA, the RIA process is problem-oriented, normative, discursive, and transparent. This reorientation eschews the use of CBA, except where it is legally required, because it is unnecessary and irrelevant in other contexts, it lacks sufficient accuracy if relevant, and it pursues a normative vision of regulation that is inconsistent with the tilt towards protecting people and the environment that Congress adopted.

Keywords: cost-benefit analysis, regulatory impact analysis, pragmatism

JEL Classification: A12, A13, D61, K23, K32

Suggested Citation

Shapiro, Sidney A. and Schroeder, Christopher H., Beyond Cost-Benefit Analysis: A Pragmatic Reorientation. Harvard Environmental Law Review, Vol. 31, 2008, Wake Forest Univ. Legal Studies Paper No. 1087796, Available at SSRN: https://ssrn.com/abstract=1087796

Sidney A. Shapiro (Contact Author)

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

Christopher H. Schroeder

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7096 (Phone)
919-613-7231 (Fax)

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