Jonathan S. Masur and Eric A. Posner, University of Chicago Law School, have published The Common Political Foundations of Originalism and Cost-Benefit Analysis in the Administrative Law Review:
Cost-benefit analysis (CBA) and originalism are rarely discussed together and seem to belong to different worlds of legal scholarship. The two methods are used by different institutions in different spheres of lawfor different puwposes; what could they have in common? Nothing or so it would seem. Yet closer inspection reveals surprising commonalities-both in terms of structure and function, on the one hand, and in historical pedigree and political economy, on the other. CBA and originalism are what we will call midlevel legal methods. Midlevel legal methods are neither normative commitments nor legal doctrines, but recurrently used methodologies that are applied to multiple substantive areas of law. What is peculiar and interesting about these two particular midlevel methods is that, despite the fact that they cover such divergent domains, they have developed similar structures to fill similar roles.
How did these two methods with such similar structural and functional characteristics arise? We argue that the answer lies with their shared political history. Both methods have been propelled forward by significant financial support from an overlapping web of business groups and intellectual support from academic supporters associated with pro-market trends in intellectual and political circles in the 1970s and 1980s. Accordingly, both methods were originally backed largely by conservatives and associated with the conservative legal movement. But even that has shifted over time, and roughly contemporaneously. Yet the story of originalism and CBA is one of dynamic instability. New political forces and new populist trends pose threats to the continued preeminence of both methods.
--Dan Ernst
