In response to John D. Graham, Saving Lives Through Administrative Law and Economics, 157 U. PA. L. Rev. 395 (2008). The debate that has raged in the legal literature for the last decade about benefit-cost analysis (BCA) in regulatory decision making about the environment has not been very productive for two key reasons: (1) it has focused on the way that BCA is used in the OIRA review process to "fine tune" regulations just before they are issued, and (2) it has suffered from "selective realism" - by discussing the flaws of BCA but not comparing them to the flaws of human decision making unaided by BCA. John Graham's 146 page, fiull-throated defense of BCA brings much needed balance to this debate by answering the critics. His article is particularly useful for making accessible to lawyers and law students the ethical and philosophical underpinnings of BCA, and also for demonstrating by example that BCA is not inherently antiregulatory and can be useful for convincing skeptical politicians to sign off on tough environmental regulations. But, unfortunately, Graham's article implicitly buys into the two conceptual traps that it inherits from the critics: both the "fine tuning" and the "selective realism" fallacies.
Date of Authorship for this Version
Elliott, E. Donald, "Only a Poor Workman Blames His Tools: On Uses and Abuses of Benefit-Cost Analysis in Regulatory Decision Making About the Environment" (2009). Faculty Scholarship Series. 5094.