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Tag Archives: Over-regulation

You Probably Broke The Law Today

15 Wednesday Apr 2015

Posted by Nuetzel in Over-Criminalization

≈ 1 Comment

Tags

Due Process, Glenn Reynolds, Ham Sandwich Nation, Michael Anthony Cottone, Over-criminalization, Over-regulation, Presumed Knowledge of the law, Prodecutorial Discretion, Regulatory Crime, Volokh Conspiracy

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More widespread ignorance of “the law” is an implication of a regulatory state growing in size and complexity. The tendency of expanding regulation to over-criminalize prompted this reexamination of the legal doctrine of “presumed knowledge of the law”, by Michael Anthony Cottone (abstract at the link, but it offers a free download of the full paper). I believe the cause of justice compels additional protections for individuals or companies against administrative accusers. Not only does this appeal to my sense of fair play, it also should incent bureaucrats to write clear rules and minimize conflicts with existing regulations. And it may discourage overaggressive bureaucrats from pursuing charges over disputes whose resolution might be subject to more reasonable compromise.

Over-criminalization was also the impetus for Glenn Reynolds’ “Ham Sandwich Nation: Due Process When Everything is a Crime” (another abstract with a free download available):

“Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in.”

The “due process gap” is said to give rise to the expression, “a good prosecutor can get an indictment against a ham sandwich.” Here is a good discussion of the Reynolds paper at The Volokh Conspiracy, with additional links. Reynolds offers a number of possible remedies, including the creation of certain forms of liability for prosecutors, banning plea bargains, and limiting criminal prosecution for regulatory crimes. There are a few other interesting suggestions at the last link.

Heavy regulation of economic and social affairs places burdens on a society’s ability to prosper economically and culturally. It requires real resources to administer and imposes compliance costs on those it regulates. There are unnecessarily high social costs to a system of detailed rule-making by unelected bureaucrats who have incentives to both increase their dominion and to enhance their long-term career prospects. The latter is often accomplished via “partnership” with some of the largest regulated entities, which leads to rules favoring those entities at the expense of smaller competitors. And a large regulatory complex also offers an avenue through which the executive branch can promulgate rules based on expansive interpretations of existing law, circumventing checks on executive power enshrined in the Constitution. To these drawbacks we can add the consequences of over-criminalization. These should be addressed through limits on prosecutorial discretion and a more neutral perspective on presumed knowledge of administrative law.

Statists Make a Mess of Markets

20 Tuesday Jan 2015

Posted by Nuetzel in Markets, Regulation

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Foundation for Economic Education, Government Interference, Howard Baejter, Mark Perry, Markets, Mises Daily, Over-regulation, Patrick Barron, regulation, Self-Regulation, statism

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Government is not well suited to regulate markets in many respects. In the first place, regulation is never absent from free markets: consumers, competitors, technology and all factors of production such as labor ultimately represent a network of forces that regulate market outcomes. The power of market self-regulation, and the often destructive results of government regulation, are discussed by Howard Baejter in “There is No Such Thing as an Unregulated Market“. Beyond the efficiency with which markets direct resources, Baejter notes that markets regulate the quality and pricing of goods and services. Mark Perry reviews Baejter’s post approvingly and adds some thoughts of his own:

“… the ruthless consumer-regulators also waste no time praising, endorsing and recommending the products, restaurants, movies, services, sellers, contractors and businesses they like, both by supporting them with plenty of their regulatory certificates of approval (dollars), and by giving them positive, sometimes even glowing reviews on Amazon, Yelp, Rotten Tomatoes, eBay, Angie’s List, Uber, etc….”

Baejter’s concluding section covers some ways in which government regulation short-circuits healthy market regulation. Regulatory actions not only impose significant compliance costs, but they often have the effect of suspending market price signals and hampering voluntary adjustments to change that would otherwise lead to improved welfare. Furthermore, regulated firms are often successful in “capturing” regulators, enabling the most powerful players in an industry to manipulate and obtain regulatory treatment that blunts competition. As Baetjer says:

“… government regulation often “crowds out” regulation by market forces and consumer-regulators, and markets therefore operate less efficiently because the interests of the producers take priority over the interests of consumers…”

The Mises Daily ran a post in early January by Patrick Barron in which he elaborates on the truism that peaceful, voluntary exchange necessarily improves well-being relative to third-party interference. Such interference may take the form of forced exchanges, rules, mandates, price controls, or distortions from taxation. A recent post on Sacred Cow Chips, “The State and the Invisible Future Lost“,  emphasized the sacrifice of human well-being brought on by over-regulation. From that post:

“Our society routinely destroys economic opportunities as a matter of policy. This includes immediate discouragement of economic activity via tax disincentives and regulatory obstacles as well as lost capital investment and innovation. And it includes actions that grant protected status for monopolists, a steady by-product of the regulatory state.“

There Oughta NOT Be a Law

11 Thursday Dec 2014

Posted by Nuetzel in Uncategorized

≈ 1 Comment

Tags

Alexis de Tocqueville, Eric Garner, Eric Raymond, Ferguson Mo, J.D. Tuccille, Jonah Goldberg, Jonathan Gruber, law enforcement, Mark Perry, MIchael Brown, Michael Munger, Nanny state, Obamacare, Over-criminalization, Over-regulation, Police Power, Randy Soave, Sin taxes, Soft despotism

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We have too many laws and too many busy-bodies wishing to force others into conformity with their own moral and  behavioral strictures. It is more excessive in some jurisdictions than others, but the unnecessary criminalization of harmless behavior is a spreading canker. The death of Eric Garner  in New York City exemplifies the horrible consequences, an aspect which sets it apart from the death of Michael Brown in Ferguson, Missouri. Last week, Mark Perry posted links and summaries of three essays on Garner’s death “and what it teaches us about over-criminalization, government force, police brutality, the regulatory superstate, and the violence of the state.”

Both the Brown and Garner cases involved tobacco products, a primary target of busy-bodies worldwide. Garner was choked to death by police who restrained him for violating a law against selling individual cigarettes (“loosies”). Brown, then a suspect in a strong-arm convenience store theft of Swisher cigarillos, was shot by an officer claiming that Brown charged him in the street after a physical altercation moments earlier. Both incidents are said to have involved excessive force by police toward African Americans, but grand juries refused to indict the officers in both cases. Whether excessive force was used against Brown or Garner, or whether racism was involved, a major contrast is that the Garner case involved the enforcement of a law that seems ridiculously petty.

The three links provided by Perry are from:

    • J.D. Tuccille, who argues that over-regulation of behavior not only leads to conflict but also encourages corruption in law enforcement.
    • Randy Soave, who discusses the incentive structure faced by police and the extent of over-regulation, “from cigarettes to sodas of a certain size, unlicensed lemonade stands, raw milk, alcohol (for teens), marijuana, food trucks, taxicab alternatives, and even fishing supplies (in schools)“.
    • Jonah Goldberg, who elaborates on a simple truism: if you pass a new law, it must be enforced. Enforcement means force, and force is what government is all about. Therefore, if you insist on more detailed control over others, you can expect some violence.

Michael Munger makes the same point, condemning both the left and the right for their failure to understand the simple but far-reaching flaw in our polity:

“The left is outraged that the state is not doing exactly what the left expects from an idealized, unicorn state. In fact, the state is actually made up of actual human-style people, and people are flawed. The left wants to rely on abstract systems, and then be perpetually astonished when things go really wrong. It’s not bad people that are the problem. The THING, the thing itself is the abuse, folks…. The right is just denying that there is a problem, the system is working, the jury has spoken, etc.”

In “Worse Than Racism,” Eric Raymond discusses Garner’s death in the context of Alexis de Tocqueville’s  “soft despotism,” our penchant for promulgating rules for others “all justified in soothing ways to achieve worthy objectives. Such as discouraging people from smoking by heavily taxing cigarettes. Eric Garner died in a New York minute because ‘soft despotism’ turned hard enough to kill him in cold blood.”

Raymond presses hard:

“Every one of the soft despots who passed that law should be arraigned for the murder of Eric Garner. They directed the power of the state to frivolous ends, forgetting – or worse, probably not caring – that the enforcement of those ‘small complicated rules’ depends on the gun, the truncheon, and the chokehold. 

But we are all accessories before the fact. Because we elected them. We ceded them the power to pass oh, so many well-intentioned laws, criminalizing so much behavior that one prominent legal analyst has concluded the average American commits three inadvertent felonies a day.”

Finally, here’s an interesting connection: research  advocating high taxation of cigarettes  was published in 2008 by none other than Jonathan Gruber. Yes, the architect of Obamacare who often gloated on camera at academic conferences about the clever lack of transparency in the health care law and the stupidity of the American voter. He was also busy providing a rationale for the morality meddlers to more heavily tax and regulate “unacceptable” behavior. It is fitting and ironic that such an infamous elitist as Gruber has a connection to the soft despotism that led to the death of Eric Garner.

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