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January 25, 2011


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Ross McSweeney

Professor Masur-

Thanks for this interesting post. It seems like retrospective analysis of cost-benefit analyses makes a lot of sense, but I wonder what (if any) impact you think this might have on judicial review of agency regulations. For instance, from State Farm we know that the Court will conduct a rather searching review of an agency's factual basis for regulation. If we could imagine State Farm being relitigated after President Obama's Executive Order, could the agency enter its "success" in past cost-benefit analyses as at least somewhat persuasive evidence that the Court should defer to its decision in this instance? On one hand, this would seem reasonable, since the Court would be reassured that the agency is properly exercising its relevant expertise advantage. On the other hand, this seems like it could combine with Chevron to allow an agency to evade reviews of both fact and law, so long as it is "successful," whatever that means.

Thanks again.

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