Genealogies of cost–benefit analysis in transatlantic regulatory cooperation

Cost–benefit analysis (CBA) has become a quintessential tool in administrative law informing a variety of modes of regulatory governance. It provides a justification for the regulation of markets based on a quasi-scientific and seemly neutral logic to assess the impact of secondary legislation by government agencies. A new frontier for CBA is the promotion of trade liberalization. It features prominently in the regulatory chapter of the Transatlantic Trade and Investment Partnership (TTIP). During the TTIP negotiations, scholars deployed CBA as a “neutral” tool to achieve greater convergence or reassert divergence and experimentalism in regulatory governance across the Atlantic. A genealogical examination reveals the existence of at least two strains of cost–benefit analyses in Western legal thought. The first one goes back to social orientations in private law translating into social–scientific expertise for regulators and proportionality for judges. The second one goes back to neoclassical economics in private law translating into economic–scientific expertise for regulators and balancing for judges. Today, scholars in their convergentist, divergentist, or experimentalist approaches to governance deploy CBA and regulatory science as a neutral and quasi-scientific method to legitimize the subjection of national regulation to more demanding standards. Instead, the genealogical approach reveals that CBA is a contingent and open-ended regulatory tool that justifies Contentious political decisions about regulatory strategies while allowing lawyers who apply CBA to remain agnostic on its distributive impact.