LAW AND ECONOMICS IN THE RIA WORLD
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1 LAW AND ECONOMICS IN THE RIA WORLD Improving the use of economic analysis in public policy and legislation Andrea RENDA intersentia Cambridge - Antwerp - Portland
2 CONTENTS Foreword vii 1. Prologue: The birth of administrative law and economics Twins separated at birth? Motivation for this research project Main research questions What this book is not Methodology Structure of the book 13 PART I. THE RIA WORLD RIA in the United States A historical account The early years The Reagan and Bush (Sr.) Administrations RIA under the Clinton administration RIA under George W. Bush RIA under Barack Obama: back to the future? The US RIA model: main features The scope and purpose of RIA in the United States Governance and procedural aspects of RIA in the United States OIRA as a watchdog Quis custodiet ipsos custodes? Judicial oversight Transparency and publication requirements RIA under attack: the debate on the role of quantitative cost-benefit analysis in the United States The impact of RIA in the US: available evidence EU impact assessment: history, practice and outcomes History and evolution of the EU impact assessment system The early years: The BIA system The 2001 White Paper and the Mandelkern Report 49 XI
3 Away from RIA: Building the Integrated Impact Assessment The re-launch of the EU IA system in Evolution oftheeu impact assessment system since The 2009 Impact Assessment Guidelines: features and scope of the EU IA system The oversight querelle Intra-institutional oversight: the Impact Assessment Board Evaluating the practice of Impact Assessment in EU institutions: a look at the evidence Previous scorecards and evaluations An updated scorecard Types of proposals Assessment of impacts Assessment of alternatives Methodology Other EU institutions EU impact assessment: towards reform? RIA in EU Member States: emerging trends 81 PART II. LAW AND ECONOMICS: POSITIVE, NORMATIVE AND FUNCTIONAL APPROACHES Ex ante policy appraisal: insights from positive, normative and functional schools of law and economics From Bentham to Sunstein: a brief, "instrumental" account of the evolution of law and economics The pioneers Coase, Calabresi, Becker Richard Posner and "Efficiency as Justice" The "greatest gig in the sky" Schools of law and economics today Positive law and economics: insights for ex ante policy appraisal Understanding human behavior: from homo oeconomicus to neuroeconomics Norms, groups and institutions: challenging methodological individualism Social norms and the law Network effects and herd behavior Concluding remarks 123 Xli
4 4.3. Normative law and economics: how the law ought to be Efficiency, fairness, market outcomes and distribution: a simple numerical example Efficiency and wealth maximization: from Bentham, to Bentham? The Kaldor-Hicks or "net benefits" principle The practice of cost-benefit analysis today: the endless quest for prices Pricing the priceless? Alternatives to the "efficiency as justice" paradigm Refining Kaldor-Hicks to incorporate equity and fairness "Pre-constitutional approaches" Welfare as happiness: back to Bentham? RIA and distributional concerns: into the wild Functional approaches: emerging patterns in public law and economics Nudging administrations: RIA as a means The architecture of RIA: a "behavioral" approach Nudging people: Law as a means Overcoming informational deficits in policy: time-shifting rules, optional law, and "pragmatic libertarianism" Enforcement and compliance: exploring the missing link "De-biasing through law" and libertarian welfarism theories Libertarian paternalism: who's afraid of "nudge"? Non-concluding remarks: the residual role of law and economics in ex ante policy appraisal Informing RIA through sound law and economics: miscellaneous examples Thinking "outside the box" with law and economics: optional law in spectrum policy Emissions trading: a tale of serendipity and opportunity costs Asking the right questions in impact assessment: the case of private antitrust damages actions Distributional issues and the 2007 roaming regulation The very strange case of large exposure reporting Who protects consumers from consumer protection? The European Commission and retail financial services 195 Xiii
5 5.7. Nudging and energy efficiency: the behavioral economics of cheap reforms Achilles and the turtle: ten years of failed attempts to enforce copyright in cyberspace Conclusions: the many facets of law and economics in the RIA world 218 PART III. CONCLUSION: LAW AND ECONOMICS IN THE RIA WORLD The future of RIA - and how law and economics can help Should law and economics be more integrated with the practice of ex ante impact assessment? In what ways can law and economics contribute to the quality, usefulness and effectiveness of ex ante impact assessment? What does the law and economics literature imply for the design and organization of policy evaluation within government? What would a stronger integration between law and economics and RIA mean for the US and EU impact assessment systems? Agenda for future research 239 Selected References 243
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