The Regulatory Lookback

24 Pages Posted: 26 Nov 2013  

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: November 26, 2013

Abstract

Technocratic judgments can have a “cooling function.” An insistent focus on the facts, and on the likely consequences of policies, might soften political divisions and produce consensus. Within the federal government, cost-benefit analysis is a prominent example of the cooling function of technocracy. But when undertaken prospectively, such analysis is sometimes speculative and can be error-prone; in addition, circumstances change, often in unanticipated ways. For this reason, retrospective analysis, designed to identify the actual rather than expected effects, has significant advantages. The “regulatory lookback,” first initiated in 2011 and undertaken within and throughout the executive branch, has considerable promise for simplifying the regulatory state, reducing cumulative burdens, and increasing net benefits. It deserves a prominent place in the next generation of regulatory practice. Recent history also suggests that it might well soften political divisions.

Keywords: cost-benefit analysis, retrospective analysis, health and safety

JEL Classification: D02, D73, D78, I18, K23

Suggested Citation

Sunstein, Cass R., The Regulatory Lookback (November 26, 2013). Boston University Law Review Symposium on Political Dysfunction and the Constitution, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2360277

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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