Amy Sinden (Temple University - James E. Beasley School of Law; Center for Progressive Reform) has posted Windmills and Holy Grails on SSRN. Here is the abstract:
Professor Richard Pierce suggests that skeptics of cost-benefit analysis (CBA) stop “tilting at windmills.” He creates the impression that there is a widespread consensus in support of CBA across all three branches of government that includes “all nine Justices of the Supreme Court” and even the most liberal members of Congress. This is a misleading picture, but to understand why, it is important to define key terms. CBA comes in many varieties, only the most formal of which typically draw criticism from skeptics. Additionally, consideration of costs can refer to a broad array of regulatory assessment methods that includes but is not limited to CBA. Thus, when all nine Justices equate reasonable regulation with consideration of costs — as they did last term in Michigan v. EPA — that’s a very different matter from the Supreme Court unanimously endorsing CBA — especially the formal variety that Professor Pierce defends. Indeed, the Court has expressed considerable skepticism about formal CBA in recent decisions — and for good reason. With information that is inevitably incomplete, formal CBA produces results that are misleading at best and hopelessly indeterminate at worst.