PENNumbra—University of Pennsylvania Law Review

ARTICLE

by John D. Graham

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In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to regulation informed by the main alternatives to BCA. Using his first-hand experience as the Administrator of the Office of Information and Regulatory Affairs (OIRA), Graham suggests that, despite its reputation for antiregulatory bias, BCA is actually an influential tool for protecting or advancing valuable lifesaving regulations. But the Article also pinpoints problems in the “benefit-cost” state, and identifies opportunities for improvement in the process of lifesaving regulation. Graham concludes by suggesting that innovations in analytic practice that would strengthen the efficiency and fairness of federal lifesaving regulation.

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RESPONSES

by Shi-Ling Hsu

Professor Hsu, in his Response, Saving Lives Through Administrative Law and Economics: A Response, takes issue with Graham’s support for the “soft” BCA rule. Instead, he comes to the defense of using BCA as a “procedural” rule, “in which a [BCA] is required of agency actions but is provided for informational purposes only and not intended to be determinative in any way.” Hsu also looks into the potential for the growing field of happiness research to better inform BCA, helping to ensure that BCA best fulfills its informational role.

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by James K. Hammitt

Professor Hammitt, in his Response, Saving Lives: Benefit-Cost Analysis and Distribution, focuses on Graham’s support for using BCA as a “soft” rule, which would allow for considerations of equity along with the more common utilitarian measurements. After exploring the issues of measurement inherent in BCA, Hammitt concludes that BCA helps ease some tensions in regulatory decision making by “providing an integrated framework to account for the consequences of regulation and making estimates of the magnitudes of these consequences explicit and open to review and challenge.” And, by incorporating equity concerns, Hammitt believes that Graham’s test ultimately “should make BCA even more valuable.”

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by E. Donald Elliott

Professor Elliott, in his Response, Only a Poor Workman Blames his Tools: On the Uses and Abuses of Benefit-Cost Analysis in Regulatory Decision Making About the Environment, faults Graham’s argument for falling into “the two conceptual traps that it inherits from the critics: both the ‘fine tuning’ and the ‘selective realism’ fallacies.” If these two fallacies were better understood and avoided, Elliott argues that “BCA can be a very useful, albeit imperfect, technique for comparing policies.”

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