E. Donald Elliott (Yale Law School) has posted Using Domestic Comparative Law Methods to Ration Analysis of Job Losses and Gains on SSRN. Here is the abstract:
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This paper identifies an approach to scholarship called 'Domestic Comparative Law.' This method involves learning the lessons of experience by applying the method of legal precedents to policy questions, as well as to legal issues in court. Its application is illustrated by applying it to a current policy controversy: whether to quantify and include in the benefit-cost analysis the job losses (or gains) anticipated from major rules during the OMB/OIRA review process. It is argued that we can gain valuable perspective on how this question should be answered by comparing it to analogous situations in which a policy-maker must decide in advance of conducting an analysis which factors to include and which to leave out. This process is usually called 'scoping,' and we have experience with it under the National Environmental Policy Act and in doing scientific risk assessments. Drawing on the lessons from this experience, and considering the goals and objectives of the Executive orders establishing the OIRA review process, it is argued that job losses or gains should be quantified in three situations when preliminary estimates of the net magnitude of job losses and gains suggest that they may be significant enough to affect the calculus of net social welfare, where the distributional effects of particular job losses on individuals and communities may be significant, and on a discretionary basis, where the computation may make a significant contribution to on-going public policy debates. The difficulties of doing Domestic Comparative Law are also considered, and it is compared to the 'anchor and adjust' heuristic.