Publication Date



Temple Law Review


Cost-benefit analysis does not age well. As scientific understanding of health, safety, and environmental risks accumulates over time — and as the technology to mitigate those risks becomes more affordable — the assumptions underlying a rule’s cost-benefit analysis obsolesce. Yet because of agency inaction, rulemaking ossification, and inattention to priority setting, outdated rules persist. In order to combat obsolescence, agencies should use cost-benefit analysis as a commitment device. When an agency analyzes a rule, it should precommit to subsequently adopting a more stringent rule than the one it initially promulgates, if and when a private actor credibly demonstrates that the stricter rule has become cost-benefit justified. Using cost-benefit analysis as a commitment device would (1) more accurately calibrate rules over time, (2) induce innovation in risk-mitigating technologies by signaling to investors that future regulation would create demand, (3) improve the adversarial dynamic of the rulemaking process by encouraging innovator firms to defect from entrenched anti-regulatory coalitions, and (4) reorient the way administrations and agencies set regulatory priorities. Cost-benefit analysis has been used to constrain regulation, but it can — and should — be used to compel regulation and expedite the regulatory state’s reduction of risks over time.



First Page



Beasley School of Law


agencies, administrative law, regulations, rulemaking



Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.