Twins Separated at Birth

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Publish Date:
September 15, 2025
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Source:
Jotwell
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Summary

Looming over our law, or lurking beneath it, are theoretical frameworks that guide how we think about it. With respect to administrative law, there are two such influential frameworks that will immediately spring to mind and that share much in common: originalism and cost-benefit analysis.

What? Readers might already be scratching their heads. This strange pairing would seem to be worlds apart. Originalism is the stuff of lofty theory and founding-era history and hard-fought debates concerning the nature of fundamental rights and the separation of powers. Cost-benefit analysis, in contrast, is the stuff of pocket protectors and green eyeshades and hard-fought debates concerning discount rates and valuations. Originalism is for lawyers; cost-benefit analysis is for economists. But as Professors Jonathan Masur and Eric Posner demonstrate in a recent article, The Common Political Foundations of Originalism and Cost-Benefit Analysis, the two have more kinship than meets the eye.

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