Cost-benefit analysis normalizes the status quo and caps law at incremental tinkering

Evidence

As generally practiced, regulatory costbenefi t analysis offers a semblance of comprehensiveness and evenhandedness by arbitrarily normalizing the status quo distribution of rights and resources; in this way, environmental law’s scope becomes limited to consideration of merely incremental changes to a sociolegal system that is otherwise unquestioned. In the welfareeconomic sense, optimization comes to mean evermorerefi ned tinkering with a given liberal market system, the unexamined rules of which help to form the set of constraints under which optimization occurs. The transformative potential of law is thus curtailed: Just as economics experienced a marginalist revolution in the nineteenth century, promoters of costbenefi t analysis hope to subject law to a marginalist revolution in the twenty- fi rst. — Douglas A. Kysar, Regulating from Nowhere, 615

Categorization

• recurring: this claim recurs 2 times within its source
• XREF: connects to: Cost-benefit analysis’s appearance of rationality masks its insensitivity to systemic, long-term context — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 16; Law’s defining trait is its capacity for foundational reordering, which cost-benefit analysis suppresses — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 616; Cost-benefit analysis treats dynamic policy processes as static snapshots — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 311