Originally published in The Regulatory Review
As Cass Sunstein famously argued in a book published almost 25 years ago, the modern administrative state has become, in important respects, a benefit-cost state. Although benefit-cost analysis was once criticized as a deregulatory tool that would systematically disfavor environmental, health, and safety regulation, experience has increasingly shown otherwise.
Scholars such as Richard L. Revesz and Michael A. Livermore have documented how benefit-cost analysis can and should be used to support, rather than undermine, protective regulation. At the same time, I have argued that judicial review doctrines have reinforced this shift by demanding reasoned explanation and engagement with the administrative record, making rules supported by high-quality analysis more difficult to undo and helping stabilize rulemaking in predictable ways.