Saving lives through administrative law and economics

Abstract

This Article examines the recent history and the future of federal lifesaving regulation. The Article argues that, considering both philosophical and practi- cal perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages compared to regulation informed by the main alter- natives to BCA. Contrary to the popular belief that BCA exerts only an an- tiregulation influence, I show, based on firsthand experience in the White House from 2001 to 2006, that BCA is also an influential tool in protecting or advancing valuable lifesaving rules, especially in a pro-business Republican administration. Various criticisms of BCA that are common in the legal litera- ture are shown to be unconvincing: the tool’s alleged immorality when applied to lifesaving situations, its supposed indeterminacy due to conceptual and em- pirical shortcomings, and the alleged biases in the way benefits and costs are computed. But the Article also pinpoints problems in the benefit-cost state, and opportunities for improvement in the process of lifesaving regulation. Innova- tions in analytic practice, coupled with improvements in the design of regula- tory systems, are proposed to strengthen the efficiency and fairness of federal life- saving regulation. The Article’s suggestions provide a menu of promising reforms for consideration by the new administration and the new Congress as they take office in January 2009.