Regulatory Economics in the Courts: An Analysis of Judge Scalia's NHTSA Bumper Decision

Abstract

The automobile bumper standard issued by the National Highway Traffic Safety Administration (NHTSA) in 1982 was the product of a decade of policy debate.' This debate continued in the courts until ultimately the NHTSA bumper standard was upheld in 1985. Judge Antonin Scalia authored the majority opinion in the case upholding the standard, and his opinion is the subject of this paper. The NHTSA bumper standard is by no means a landmark regulation with sweeping economic consequences. The debate over the standard centers on the degree of protectiveness to be required of front and rear automobile bumpers. In particular, the issue is whether either or both bumpers should be required to withstand a 2.5 mph crash or a 5.0 mph crash. The impact of speed on bumper effectiveness, however, is a concern primarily with respect to minor accidents. Bumper effectiveness is less of a concern in severe crashes, where occupant safety is at stake. As a result, economic rather than safety concerns dominate the debate over the bumper standard. The fundamental question is whether stronger bumpers will save consumers money.