Saving Lives through Administrative Law and Economics

This Article examines the recent history and the future of federal lifesaving regulation. The Article argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages compared to regulation informed by the main alternatives to BCA. Contrary to the popular belief that BCA exerts only an antiregulation influence, I show, based on firsthand experience in the White House from 2001 to 2006, that BCA is also an influential tool in protecting or advancing valuable lifesaving rules, especially in a pro-business Republican administration. Various criticisms of BCA that are common in the legal literature are shown to be unconvincing: the tool’s alleged immorality when applied to lifesaving situations, its supposed indeterminacy due to conceptual and empirical shortcomings, and the alleged biases in the way benefits and costs are computed. But the Article also pinpoints problems in the benefit-cost state, and opportunities for improvement in the process of lifesaving regulation. Innovations in analytic practice, coupled with improvements in the design of regulatory systems, are proposed to strengthen the efficiency and fairness of federal lifesaving regulation. The Article’s suggestions provide a menu of promising reforms for consideration by the new administration and the new Congress as they take office in January 2009.