Chevronizing Around Cost-Benefit Analysis

34 Pages Posted: 18 Feb 2020 Last revised: 3 Nov 2020

See all articles by Jonathan S. Masur

Jonathan S. Masur

University of Chicago - Law School

Eric A. Posner

University of Chicago - Law School

Date Written: February 8, 2020

Abstract

The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded by erecting procedural hurdles to new regulations, concocting flawed cost-benefit analyses, and interpreting statutes so as to evade cost-benefit analysis. We evaluate these efforts, and conclude that the procedural hurdles may well be an effective means for slowing down regulation but not for eliminating existing regulations; that courts are unlikely to approve deregulation based on flawed cost-benefit analyses; and (most importantly) that the statutory interpretation route — which we call “Chevronizing around cost-benefit analysis" — creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of pushing agencies to regulate based on cost-benefit analysis.

Suggested Citation

Masur, Jonathan S. and Posner, Eric A., Chevronizing Around Cost-Benefit Analysis (February 8, 2020). Duke Law Journal, Vol. 70 (forthcoming 2021), University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 896, Univ. of Chicago Public Law Working Paper No. 735, Available at SSRN: https://ssrn.com/abstract=3538456 or http://dx.doi.org/10.2139/ssrn.3538456

Jonathan S. Masur (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.5188 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/masur/

Eric A. Posner

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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