Jonathan Masur & Eric Posner, The Common Political Foundations of Originalism and Cost-Benefit Analysis, 77 Admin. L. Rev. 65 (2025).
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.
Professors Masur and Posner argue that originalism and cost-benefit analysis are best understood not as neutral methodological tools but as analytical frameworks that have risen to prominence through the financial backing and political mobilization of business interests. Their provocative paper presents originalism and cost-benefit analysis as ideas with shared genealogies and eerily similar effects: both emerged in the 1970s, both gained institutional traction through sustained advocacy campaigns, and both have served to constrain governmental action in ways that align with pro-business preferences. Far from being apolitical techniques that emerged organically from intellectual discourse, both of these “midlevel methods” (P. 68) were nurtured and promoted by “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” (P. 68).
The empirical case that the authors present centers on the period from the 1970s through the 2020s. They trace the rise of both methods by showing that references to cost-benefit analysis and original meaning show parallel rising trajectories in academic articles and judicial opinions (Pp. 75-77). They then consider why there was a joint rise in these ideas (P. 82). They contend that the emergence of neoliberalism helped along cost-benefit analysis, but argue that the “neoliberal turn, stimulated by economic stagnation that was blamed on policy judgment, not on judicial decisions, is not a good explanation for the rise of originalism” (P. 85). They reject the hypothesis that originalism and cost-benefit analysis achieved prominence because of their “democratic sanction” (P. 87), finding little evidence that either cost-benefit analysis or originalism has garnered meaningful support from Congress, the public, or the President. Ultimately, they maintain, the rise of this pair of ideas comes down to money and to the business interests that supply that money: “Ideas matter, but they matter more if they are funded.” (P. 93.) Their excavation of the organizational ecosystem that has supported both originalism and cost-benefit analysis is fascinating: they list about a dozen organizations “funded by the Koch network that have promoted originalism and cost–benefit analysis” (P. 99), and conclude that “business’s role in promoting cost–benefit analysis and originalism is unmistakable” (P. 100).
The authors next proceed to identify how, “like twins separated at birth,” the two theories “bear a striking conceptual resemblance” (P. 101). Both of them claim to constrain decision-making while preserving enough flexibility to avoid harsh outcomes in politically salient cases. Both rest on technocratic foundations that empower communities of experts—lawyers and historians for originalism, economists for cost-benefit analysis—to police the boundaries of acceptable practice (P.107). And both methodologies are tied to empirical anchors—history for originalism, math for cost-benefit analysis—that provide at least the appearance of “scientific rigor” (P. 107).
The question going forward is whether these two frameworks will endure. The authors detect growing “cracks” (P. 107) in the coalitions that have sustained both methods. The Biden Administration’s revision of OMB Circular A4 to incorporate distributional weights fractured the cost-benefit analysis community, with business groups and academic economists pushing back against what they saw as a departure from orthodox methodology to include welfarist concerns. (Pp. 109-11.) In the wake of this conflict, “[t]he bipartisan consensus that supported [CBA] has evaporated” (P. 111). Similarly, the authors hazard that we may have reached “peak originalism” (P. 111), as originalist justices occasionally rule against business interests on originalist grounds—a development that could eventually erode corporate support for the method. (They acknowledge, however, that another path forward would be simply “inconsistent originalism—originalism when it benefits the business community, but not when it harms it” (P. 113)). Ultimately, if “midlevel legal methods” such as originalism and cost-benefit analysis depend on coalition maintenance rather than on pure intellectual merit, they are vulnerable to the risk of losing influence when they turn out to produce outcomes that the members of their coalition do not support.1
Whether originalism and cost-benefit analysis will prove durable enough to survive the fracturing of their supporting coalitions—should that occur—remains an open question. But the paper’s recitation of their joint rise offers a valuable, if sobering, lesson about how legal ideas gain purchase and maintain influence in our law. The administrative state has always been a battleground for competing visions of the proper scope of government power. What Professors Masur and Posner’s paper helps to reveal is how two of the dominant ideas that have shaped the law and the functioning of the modern administrative state carry their own political baggage—baggage that (not coincidentally) contains some pretty fat wallets. But if our world is one in which legal methodology is really politics by other means, or really money in another denomination, perhaps the most important question is not which methods are right, but who is actually deciding which methods we use.
- For my own quite consonant exploration of how originalism’s engagement with civil procedure sheds light on the politics of originalist discourse and may affect the alliance between originalism and conservatism, see Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L. J. 941 (2023).
