tag:blogger.com,1999:blog-6885340672616713863.post157604181080299371..comments2023-09-25T04:08:57.897-04:00Comments on American Counterpoint: Is The Administrative State Entering Meltdown? Keith Robertshttp://www.blogger.com/profile/18115490864347645607noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-6885340672616713863.post-90720743083146535722016-09-08T11:40:12.648-04:002016-09-08T11:40:12.648-04:00These remarks strike me as suggesting a genuinely ...These remarks strike me as suggesting a genuinely innovative approach to the problems of regulation. Regulation fails for numerous reasons, but the most fundamental of them are: (a) ill-defined or overly-broad regulatory mandates and (b) politicization of the process. These problems tend to feed one another. The "common law" approach Keith alludes to might indeed potentially alleviate some of this by turning the process it over to qualified pragmatists who could agree on the nature of the regulatory problems and follow common-sense heuristic methods in solving them.<br /><br />There's no silver bullet here, of course, but there is the germ of a new idea. It would be interesting to see it explored further.<br />Mark Bachmannhttps://www.blogger.com/profile/16864483782023806885noreply@blogger.comtag:blogger.com,1999:blog-6885340672616713863.post-87409755097239112972016-09-07T15:42:04.006-04:002016-09-07T15:42:04.006-04:00Let me elaborate by discussing the case of antitru...Let me elaborate by discussing the case of antitrust. The antitrust laws of the US take up a page or so, and basically prohibit business practices with the aim or effect of restraining trade or competing unfairly. Prior to 1970 or so, the courts--mainly the US Supreme Court--developed a body of rulings to carry out this legislation. Unfortunately, in many situations the rulings were inconsistent, and lawyers had trouble advising their corporate clients on what would, or would not violate these laws. Since violation could carry severe penalties, this was a big problem.<br /><br />By 1970, a legal and economic analysis centered on the U. of Chicago had emerged. Its approach was to claim that the basic purpose of the antitrust laws was to keep business from raising consumer prices. Using this touchstone, the Chicago School argued that most claims of antitrust violation should be judged on whether prices would rise as a result of the questioned activity. If not, no problem. If perhaps yes, then further inquiry was necessary because sometimes the activity might nevertheless be justified.<br /><br />Liberals look at the Chicago doctrines with grave suspicion, because in practice most of the activities that had been forbidden were allowed under these doctrines, and so the Reagan and Bush courts held. I agree that the doctrine went too far, and that other important considerations, ones manifested in the legislative history of the antitrust laws, were improperly ignored in the cases that followed. But I do not agree that this doctrinal development resulted from an academic or political intent to achieve the outcome of industrial consolidation that has resulted. Those attempting to grapple honestly with difficult situations will normally make mistakes, fail to take all factors into account, and suffer unintended consequences.<br /><br />But the antitrust approach, unlike that of regulation, allows for correction when error appears. It is an approach based on incremental learning, adaptation to new conditions, and the application of keen intelligence to highly specific factual situations that have arisen in the real world. By contrast, regulation not only responds to real world issues, but attempts to foresee new conditions. It takes so long to develop, is so hard to get formulated, and represents so many politically potent interest groups that it can easily serve as a straitjacket long after conditions have greatly changed.<br /><br />Keithhttps://www.blogger.com/profile/06837652665211522032noreply@blogger.comtag:blogger.com,1999:blog-6885340672616713863.post-7996055238954264852016-09-07T15:23:02.588-04:002016-09-07T15:23:02.588-04:00I agree with Mark and the rational conservatives t...I agree with Mark and the rational conservatives that regulation can and does stifle business. I also agree with his implicit message that even if the goal of regulation is laudable, and the need for it is great, the opportunity cost can outweigh its potential benefits. That is why I would like to see more of a common law approach to regulation than now prevails. By this I mean a system in which the regulatory goals are broadly and generally specified in enabling legislation, and the specifics get worked out on a case-by-case basis through a judicial-style system with reviews and ultimate decision-makers who can reconcile conflicts. Although not perfect, as witness the state of antitrust regulation through this common law system, this approach has the great virtue of reducing or perhaps eliminating the vast regulatory overhead created by the prevailing system of detailed rules promulgated and upheld after years of review and appeal. It channels lobbying into a highly structured format aimed at legal interpretation, rather than a contest of political power. Keithhttps://www.blogger.com/profile/06837652665211522032noreply@blogger.com