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Administrative Law

Notice and Comment Symposium on Reviving Rationality by Livermore & Revesz

An extended symposium engaging with an important new book on the use and misuse of cost-benefit analysis in regulatory review.


The Yale Journal on Regulation's Notice & Comment blog is hosting an online symposium discussing the book Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health by law professors Michael Livermore and Richard Revesz.

Here is Professor Christopher Walker's introduction to the symposium. Contributions will be posted over the next week or so, and indexed here.

My own contribution is "Cost as the Ultimate Regulatory Restraint." Here is a taste:

Much of Michael Livermore and Richard Revesz's Reviving Rationality is devoted to critiquing the Trump administration for its ill-grounded and poorly executed deregulatory initiatives. Many (though not all) Trump administration deregulatory actions were undertaken with insufficient analytical grounding and without regard for relevant legal constraints and procedural requirements. As a consequence, the administration lost early and often in federal court. The Environmental Protection Agency, in particular, suffered numerous early defeats in court and ultimately accomplished little in the way of lasting accomplishments, deregulatory or otherwise.

The authors' detailed critiques of several Trump administration initiatives are forcefully presented and often compelling. Some of the authors' broader claims about the role of regulatory review and cost-benefit analysis are less powerful and are less likely to persuade those who do not share the authors' progressive outlook and regulatory sympathies. It is one thing to excoriate the Trump Administration for its disregard of the legal and administrative norms governing regulatory agency activity. It is another to brush aside concerns for aggregate regulatory burdens or suggest that ex ante cost-benefit assessments should be the central focus of regulatory policy. . . .

Like many critics of the Trump administration's regulatory policies, the authors note the federal government's poor record defending Trump-directed initiatives. Such critiques are fair. (I have made some myself.) Going forward it will be interesting to see whether such legal failures were an artifact of the Trump administration, or are signs of larger problems within the administrative state, including Congress's failure to update and revise the statutes delegating agencies the authority to act. If the Biden Administration likewise struggles in court, it may be a sign of deeper rot, and not something that was particular to Trump.