Document Type


Publication Title

Vanderbilt Law Review

Publication Date


Page Number





This article explores in detail the attributes and operation of historic baselines. That historic baselines are found throughout regulatory law is no accident. Particularly when the policy goal involves turning back the clock or halting an undesirable trend, historic baselines have distinct advantages compared to alternative techniques for standard setting. These advantages include rhetoric, familiarity, and flexibility. The use of the temporal reference point lies at the heart of what makes historic baselines distinct in this respect, yet it is also what makes them qualitatively different for purposes of gaming. Leveraging the past provides an additional dimension to the gaming potential found in other techniques, such as technology- or cost-based goals. This very attraction, however, equally limits historic baselines in some contexts. This limitation is most evident in climate change adaptation policy, where baselines simply do not easily fit because the policy goal is fundamentally about resetting the clock, not turning it back. There is no past to leverage when it comes to climate change adaptation. This may be true in other cases where massively transformative forces are at work, such as with the global financial crisis. Going back to the past may be appealing in these settings, but it is ultimately infeasible. Policymakers reaching for a more forward-looking policy thus should eye warily the appeal to the past embedded in historic baselines.

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.