David T. Zaring (University of Pennsylvania), Originalism’s Unbalanced Ledger, 75 Duke L.J. 1623 (2026) on SSRN. Here is the abstract:
This Essay examines the fundamental tension between originalism and cost-benefit analysis—the two dominant methodologies shaping modern, public law decision-making. Originalism, currently triumphant, prioritizes historical meaning and textual fidelity. It operates in stark contrast to cost-benefit analysis, the byword of the administrative state since 1982, which focuses on the future and efficiency. Descriptively, the two methodologies are irreconcilable. Nor is it possible to pair them by claiming they serve different purposes; originalism and cost-benefit analysis conflict when assessing agency design, constitutional rights, and judicial review of administrative action. As regulatory policymaking continues to rely on empirical and economic assessments, originalism’s influence in public law will face increasing pressure to adapt or retreat.
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As I understand Zaring’s argument, he argues that originalism and cost-benefit analysis are rival theories for the domain of administrative law. The obvious counter position, from an originalist perspective, is that, properly understood, originalism and cost-benefit analysis have distinct domains of application. Constitutional originalism determines the allocation of authority, both within the three branches of the national government (separation of powers) and between the states and the national government (federalism). Statutory textualism determines what authority has been granted to administrative agencies and whether that authority includes a requirement or permission to use cost-benefit analysis. Thus, if a statute grants an administrative agency regulatory power and instructs the agency to use cost-benefit analysis, the employment of cost-benefit analysis by the agency is required by statutory textualism. There are further constitutional questions, including (1) whether the statute is within the originalist conception of Congress’s legislative power, (2) whether the delegation of regulatory authority plus the cost-benefit directive is allowed by the understanding of separation of powers that follows from the original public meaning of the constitutional text? If both of those questions receive an affirmative answer, then cost-benefit analysis would be required by originalism.
Of course, this reconciliation of originalism and textualism with cost-benefit analysis is partial. What originalism and textualism do not permit is cost-benefit analysis as a method for the interpretation and construction of constitutional and statutory texts. But these approaches are currently “off the wall” for the mainstream of constitutional and statutory theory. There are many forms of living constitutionalism, but cost-benefit analysis is not a position held by any prominent constitutional theorist—although it bears some resemblance to Richard Posner’s pragmatism. Likewise, the current set of theories of statutory interpretation does not include cost-benefit analysis, although objective purposivism might include some elements of a cost-benefit approach.
Using cost-benefit analysis to determine federalism and separation of powers questions would create severe problems. There is no feasible method for applying cost-benefit analysis to these large structural questions on a wholesale basis—that would require assessing the costs and benefits of all of the federalism and separation of powers regimes within the feasible choice set—an unmanageable task for any institution and most certainly for courts. One might imagine cost-benefit analysis applied at the retail level—on a case-by-case basis. But that approach would entail different federalism and separation of powers regimes for each statute or policy question, resulting in an incoherent and chaotic system for the structure of government.
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