Clairvoyant Regulators, Benighted Judges? Judicial Review of Cost-Benefit Analysis Debated

Abstract

This paper will focus on the more general inquiry into the legitimacy, constitutionality, and convenience of admitting judicial evaluation of the Cost-Benefit Analyses carried out by administrative officials. The following sections will explore the main arguments against giving Courts the authority to serve as a check on regulators in matters of CBA, contextualizing the debate within the categories of judicial decisions described above. Section II deals with the manipulability of Cost-Benefit Analyses and the problem of institutional legitimacy given the interpretive leeway in regulatory impact assessments. Section III investigates the Judicial Branch’s capacity to perform the technical duties that CBA entails. Section IV examines the costs of reviewing the regulators’ decisions by Courts. Section V advances the argument of judges’ susceptibility to political motivations. Section VI focus on the procedural protections offered in Court litigation to ensure a balance between the parties and prevent one side from driving the result by virtue of its economic power. Section VII concludes, examining whether it is possible to create an institutional framework that promotes neutrality and independence within the Executive branch, and, if so, whether the Judiciary should still play a role in regulatory rule-making.