Regulatory Analysis the Modern Concept of Law: A Response
16 Pages Posted: 11 Dec 2018
Date Written: December 10, 2018
Regulatory analysis, which includes cost-benefit calculations, is based on a modern conception of law. It can only be understood—and certainly can only be improved—if that conception is fully recognized. In the pre-modern era, law was conceived as a set of normatively-based limits on human behavior designed to maintain public order. In the administrative state, law is treated as a means of implementing consciously-chosen policies designed to achieve public welfare. Regulatory analysis is based on this administrative conception of law. It does not address questions about whether an enactment is a correct interpretation of principle, but rather whether the enactment is likely to achieve some intended public welfare improvement. Professor Cary Coglianese has proposed that two elements of regulatory analysis, namely cost-benefit analysis and evaluation of regulatory consequences, be imposed by statute on independent agencies. This is an excellent suggestion, but the modern concept of law on which it is based suggests that we should go further, for both independent and executive agencies. We should not only require agencies to conduct cost benefit analysis, a component of policy analysis, but also require that they follow, and document, the whole policy analysis approach. We should not only require them to evaluate their regulations, but we should also incorporate funding for evaluation into virtually all budgetary allocations and fund the agency to experiment with different versions of a regulation as part of that evaluative process.
Keywords: Administrative Law, Cost-Benefit Analysis, Independent Agency, Regulatory Analysis, Policy Evaluation
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