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How would CBA work in practice, if applied to specific, important, representative rules, and what is the alternative?Westlaw leverages a long-standing history of proprietary analysis of the law and exclusive tools like Key Numbers and Key Cite, as well as headnotes, notes of decisions, indexes, and secondary sources.Couple our editorial excellence with West Search, the world's most advanced legal search engine, and you quickly get the documents most relevant to your search query.Judicial review of quantified CBA can be expected to do more to camouflage discretionary choices than to discipline agencies or promote democracy., and to workshop participants at Harvard Law School, Harvard Business School, Columbia Law School, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Public Company Accounting Oversight Board. A movement is afoot to impose cost-benefit analysis (CBA) on financial regulation (CBA/FR).1 The housing and financial crises of 2008 led to the Dodd-Frank Act,2 which restructured the financial regulatory agencies, mandated more than 200 new rules, and required changes to many older rules.3 The sweep of regulatory change has reignited criticism for failure to base the changes on adequate CBA/FR.4 Bills have been introduced to provide explicit authority for the President to require CBA/FR from independent agencies,5 even as critics argue that existing law already requires the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) to conduct a particular form of CBA/FR: judicially enforced quantification.6 One panel of the United States Court of Appeals for the District of Columbia Circuit, composed entirely of Republican-appointed judges, held that existing law requires the SEC to quantify the costs and benefits of its proposed rules,7 while another judge—appointed by President Obama to the D. Circuit—subsequently held that such quantification is not mandatory, at least when the SEC is required by statute to adopt a rule, and the benefits sought to be achieved are humanitarian and not economic in nature.8 This Article critiques efforts to impose judicially reviewed, quantified CBA on independent financial agencies, while also attempting both to explore how conceptual CBA/FR could lead to better policy and to advance the substantive project of quantitative CBA/FR itself.
Circuit, and the legal academy are promoting a particular, abstract form of cost-benefit analysis for financial regulation: judicially enforced quantification.