Democratic Risk Management

Abstract

This Article compares and contrasts cost-benefit analysis with “collaborative analysis” in agency decision-making. While mathematical models drive cost-benefit analysis, ongoing stakeholder negotiations drive collaborative analysis. Cost-benefit analysis relies on economists inputting numerical values into a model, whereas collaborative analysis relies on the diverse perspectives of groups and individuals affected by an agency’s decision. Administrative law scholars have exhaustively researched cost-benefit analysis while overlooking widespread agency reliance on collaborative analysis. This Article advances the novel observation that legislatures and courts sometimes treat collaborative analysis and cost-benefit analysis as interchangeable. Administrative law scholars might find it unorthodox, even irresponsible, to equate the deliberative process of average citizens with numerical calculations performed by economists. Yet, collaborative analysis works well in several contexts when numerical analysis does not: where data are scarce, burdens are unevenly distributed, normative values are at stake, and conditions are changing. Under such circumstances, agency officials report that collaborative analysis creates better outcomes, secures ex ante social approval of policies, provides adaptive decision- making, and reduces conflict and litigation risk relative to alternative tools. Despite the benefits of collaborative analysis and its surprisingly widespread use, its potential remains largely untapped. In identifying and defining collaborative analysis for the first time, this Article provides agencies, stakeholders, and courts the tools necessary to understand collaborative analysis and tap into its benefits.