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Full-Text Articles in Law
Is Cost-Benefit Analysis Neutral?, David M. Driesen
Is Cost-Benefit Analysis Neutral?, David M. Driesen
College of Law - Faculty Scholarship
Cost-benefit analysis (CBA) owes much of its appeal to its image as a neutral principle for deciding upon the appropriate stringency of environmental, health, and safety regulation. This article examines whether CBA is neutral in effect, i.e. whether it sometimes makes regulations more stringent or regularly leads to weaker health, safety and environmental protection. It also addresses the question of whether CBA offers either an objective value-neutral method or procedural neutrality. This Article shows that CBA has almost always proven anti-environmental in practice and that, in many ways, it is anti-environmental in theory. It examines the practice of the Bush …
Regulatory Reform: The New Lochnerism?, David M. Driesen
Regulatory Reform: The New Lochnerism?, David M. Driesen
College of Law - Faculty Scholarship
This article explores the question of whether contemporary regulatory reformers' attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value-neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications for modern regulatory reform.
Distributing The Costs Of Environmental, Health, And Safety Protection: The Feasability Principle, Cost-Benefit Analysis, And Regulatory Reform, David M. Driesen
Distributing The Costs Of Environmental, Health, And Safety Protection: The Feasability Principle, Cost-Benefit Analysis, And Regulatory Reform, David M. Driesen
College of Law - Faculty Scholarship
This article offers a normative theory justifying the feasability principle found in many environmental statutes. It then uses this theory to shine light on the regulatory reform debate. The feasability principle precludes widespread plant shutdowns while maximizing the stringency of regulation that does not have this outcome. The feasability principle provides meaningful guidance regarding both maximum and minimum stringency and a reasonable democratically chosen response to distributional concerns. Pollution's tendency to concentrate severe harms upon randomly selected pollution victims justifies the stringency of this approach. Normally, cost concerns cannot justify failure to protect people from death, illness, and ecological destruction. …
Getting Our Priorities Straight: One Strand Of The Regulatory Reform Debate, David M. Driesen
Getting Our Priorities Straight: One Strand Of The Regulatory Reform Debate, David M. Driesen
College of Law - Faculty Scholarship
This article seeks to clarify the conceptual basis for the claim that regulatory priorities are seriously askew, a claim that has played a prominent role in the ongoing regulatory reform debate. It develops a theoretical framework clarifying the meaning of priority setting. It claims that the regulatory reform debate has paid little attention to the information most obviously relevant to determining whether serious priority setting defects exist. And regulatory reformers principle recommendation for improving priority setting, increased use of cost-benefit analysis in regulatory proceedings, has, at best, a tenuous connection with priority setting. Regulatory reformers have conflated concerns about excessively …