This also seems like a prime example of the problem—both within government operations and in terms of government policies regulating people and businesses—of creating an environment of “No one seems to know for sure what the laws/regulations do or don’t allow; you only find out for sure if someone decides you’ve broken them and takes enforcement action.” Everyone just sticks to whatever seems the safest option, whether it’s not peeling fruit or mandating an Enterprise Service Bus.
It should be easier to get definitive answers about what is allowed!
To be fair, such answers do exist for plenty of things, e.g. getting building permits approved prior to construction. But far too many other things effectively operate in a way that’s analogous to “we don’t issue building permits—just do your best to interpret the law, and we’ll take enforcement action after you’ve built the building if we decide you were wrong.”
People inside and outside of government ought to be able to get more definitive answers in the form of “GO energy” and not just “STOP energy” (as you referenced in the other post).
I own a building in Washington state that rents to a preschool. (MGP is my rep) You can't use the same sink for food prep as you do for washing hands, for example, so we had to install an extra sink. When we were going through the permitting process to get ready to open, the building department rep made a careless mistake that cost us an extra $10,000 and two months. They would sometimes give us incorrect information, we would follow their instructions, and then the inspector would tell us it was something different. No recourse - we just had to eat their mistakes. We have a huge waiting list for parents desperate to find care for their kids, but can't accommodate any more kids due to the bog of regulations that would make it prohibitively expensive to expand.
I have experience with getting wrong answers from junior employees in a building department. That is absolutely infuriating. If I act on information I received from the government agency, and then they come back and tell me, "whoops, we gave you bad info, guess you have to re-do the work", they should bear the f***ing cost for their mistake. I get why that kind of experience turns people into radically anti-regulation libertarians or Republicans.
Oh, I agree. I think people voting for Republicans because of this are being played for fools -- they sell policy to the highest bidder. But if Democrats don't take the concern seriously and deliver reform that works, the voters will opt for wreckers.
It's really absurd when government regulators can give you specific instructions and then go "never mind". There should be accountability. On the other hand, it's very reasonable to require that food prep sinks not be the same ones people use in toilets for washing their hands.
Have seen similar in other jurisdictions. What this evidence seems to tell us is not that the two sink rule, for example, is overreach and inefficient and irrational. Rather, the evidence is that the system put in place to ensure that the two sink rule is followed is rather broken. If the inspector or permit person cannot provide correct information, let's look at the context in which they are working. Safe bet it's the kind of environment that is practically designed to make mistakes and throw wrenches. But not literally "by design" - rather due to accretions of practices and policies it's what Meyer and Zucker called "permanently failing organizations" (1989). It would behoove us to calibrate our diagnostic tools to look first for things like this rather than prioritizing "find the bad regulation" or "find the bad civil servant."
At home, I don't use my food prep sink in the kitchen typically to wash my hands either.
Maybe you and MGP have different standards than me ..and that's ok and the way it should be as far as private preferences...but it's not just about the private good ..it's about the public good in this instance.
Public goods are always going to be costlier. I get public goods are mixed and have a private component attached to them..., but your critique offers nothing to overcome the cost of the free rider problem that in this case possibly arrives with transmission of health hazards .
These rules may seem excessive now to you by the using of counterfactuals that inconveniences you...but one can also counterfactually assume that they may have prevented plenty of gastroenteritis transmissions which you may be unaware of too,thereby saving more money .
It is a solid general rule that if you draw sneering opposition from Nathan Robinson you are doing something right. For a bunch of reasons his variety of socialism (not exaggerating, he actually identifies as a socialist) is a leading candidate for the party to throw under the bus to signal centrist appeal. MGP is picking a smart fight here.
the regulation about sinks is pretty meh, but Nathan is clearly railing against populism, anti-institutionalism, and the no-consequence political discourse. (of course, alas he's late by about a decade or simply naive -- or both)
This feels so validating, I took this same case and wrote [1] last week about how it doesn't make sense to be angry at this JUST because it smells like "anti regulation". You can believe that regulation & gov is good, AND that there's lots of bad regulations that are actively causing harm. To me the root cause is that people identify by the mechanism of a solution, and not with the ultimate goal. I think it's OK to want to side with your people/with your tribe, but we can't define our tribe by "those who use THIS specific tool to solve problems"
> You can believe that regulation & gov is good, AND that there's lots of bad regulations that are actively causing harm.
No, you cannot. All the regulations in question were "good" and the result was still harmful. Once you realize this, you start questioning whether there are any truly good regulations.
Also there are thousands of cases like the fruit peeling example. Far too many for someone like Perez to be able to give her personal attention to every one of them. As such, which problems will actually get fixed? The ones that affect people who are sufficiently well connected. BTW, this phenomenon is the kernel of truth behind all the woke talk about "privilege".
Saying, "many regulations that were written with good intentions have bad consequences... therefore all regulation is bad!" seems like a slippery slope to anarchy. If it's impossible to impose regulations of any sort without doing harm, then how are even criminal laws OK? What if we pass a law saying you can't kill people, but then people are arrested for killing in self-defense, and hence that law against murder is doing harm?
I think the point that Jen added that instead of fixing the unintended consequences with a new layer of language, you should scrap the bad language and start over, is well-made. But just giving up on governance entirely would be much, much worse than where we are. (Like, I'd like to scrap _most_ of zoning. But I'd definitely keep the basic part where toxic industrial stuff is kept away from residential / commercial areas.)
Eh. I mean, I think it is worth it for policymakers to hear this stuff and approach it with a spirit of curiosity. Like, what happened to you that you're _so_ negative about _any_ regulation?
I think anti-regulatory extremists, if dropped back in 1850s England in a neighborhood next to one of the "dark Satanic mills", would suddenly realize that _some_ types of regulation are actually useful.
But let me tell you my own experience with local regulators. My spouse and I bought a house in 2017. We are only the second owners. It was built in 1940, and one of the members of the team that built our neighborhood bought a house in the neighborhood, and raised his family here. Died in the house at age 97. In the 77 years he lived here, he did a lot of un-permitted work. We set about bringing everything in the house up to code. (Among other things, we gutted and replaced the _entire_ HVAC and electrical systems, both of which were insane -- there was knob-and-tube wiring with all of its cotton insulation rotted away, so basically just bare copper, with blown-in foam rubber insulation losse on top of it; there was no actual air return to the furnace because termites had eaten the supports around it and it collapsed; it's _amazing_ the guy made it to 97 and didn't get killed by his own sloppy construction.) We also had to tear off and rebuild the entire roof (like not just the shingles, the decking and rafters).
Along the way, we learned that we _could not trust_ anything that the Building Department told us until it was confirmed by senior staff in writing. If I trusted something a junior person told me, and then spent some four figure amount of money having my contractor / architect / engineer team update plans based on what that junior person told me, there was something like a 50/50 chance that a senior person would later look at those plans and say, "oh, no, this is wrong, you have to change it again".
And that is _infuriating_. If their junior people are giving bad information, then they need to deal with disciplining and training those people. Our projects were delayed by _months_, and I ended up out something like $12k, by the time I was done fixing things that were _their f***ing fault_.
This kind of thing makes one want to become The Joker. I get why people have the impulse to burn down the whole system. I think they're wrong, and what we need is a government that has more "state capacity". But in the moment when you're dealing with something like this, it inspires _incandescent rage_.
it’s important to listen comprehendingly and empathetically, and not just ignore, of course. good old regulations. of course, of course. i’m mostly responding to uninformed, non-specific throw-government-overboard attitudes, as someone whose parents both worked for the Federal government and who did not choose that field in part due to what it had done to their use of language (now I see their value though)
Yeah, I grew up north of DC. My dad was an officer in the Public Health Service. Did both medical research and treatment of patients (through the public clinic at the NIH campus on the east side of Baltimore). My uncle was a lawyer for the Maryland government, and my aunt worked at NOAA.
I really wish we could make the WaPo series "Who is Government?" required reading for all these yahoos who think government is useless.
If you believe in something roughly like the social contract -- you're going to have to work out with the rest of the citizenry what exactly the government should be doing -- then you may have to accept that a lot of us think public-health-related concerns are part of the government's role in maintaining order / protecting public safety. Most people are not OK with the government just ignoring it if, say, a manufacturer dumps toxic waste into the water supply. Managing that kind of thing does require _some_ version of "the regulatory state".
I would like a version of the regulatory state that is significantly slimmed down, because I think it's doing a lot of stuff that it shouldn't bother to do at all, and it could do a lot of the remaining things better / faster / at lower cost. But I'm _quite_ confident that giving up on this stuff entirely would make life much worse.
The conviction that there are no good regulations seems kind of absurd on the face of it. Should just anybody be able to start up an army? Should we get rid of the lines on the roads? Are stop signs outdated? Should incompetent doctors be allowed to practice? Can you next door neighbor get a wolf as a pet?
Behind the issues here seems to be the fact that humans want to be able to raise the baseline of "social order" that can be taken-for-granted so that attention and creativity and resources can be devoted to other stuff. One way we do it is to try to encode what we want to happen in rules. But it turns out that writing down what you want is actually a hard problem. It's hard when you write a contract (and thus we have lawyers and courts to work things out when things go awry). It's hard to do when we specify a reward function for a robot (and thus we have a whole thing called AI safety and assurance). And it's hard to do when trying to align behaviors in distributed organizational settings (like when we provide childcare through millions of separate micro-enterprises).
In terms of "styles of thinking," we might well characterize as "bad" both a mindset that is (blindly) "anti-regulation" and one that is (blindly) "pro-regulation." Shift the discussion to actual outcomes and then have a reasonable debate about how to achieve the ones you agree on and how to persuade folks about the ones you don't.
Has Nathan J. Robinson ever worker in government or deal with regulation? No. But he is a PhD candidate in sociology and cowrote a book with Noam Chomsky and another explaining why we should be socialists. So, of course we should folow his advice, lol. https://www.nathanjrobinson.com/
Ugh. Yes. Great story! Thanks for your reference to user research and usability testing. We need more of this *so badly* in gov. But it requires more work and more effort and more empathy and more passion….and it seems like so many people shy away from these things to take the path of least resistance. Why?! Why are we so afraid of hard work?!
I love your words here. It also requires 1) executives and 2) programmers with exalted job titles like "engineer" to actually PAY ATTENTION to the people who do the work with effort, empathy, and passion (not to mention the users.)
There's nothing more humbling than sitting down and watching someone use your wonderfully clever user interface. Tons of examples, but one of the standard ones is requiring typists to take their fingers off the keyboard because they have to keep using the mouse, as opposed to putting in useable tab sequences.
That is an excellent question. I've written about this in my book, and I'll find the right passages for you..but essentially it's culture and incentives. Also see the link to the cascade of rigidity piece.
In my experience in environmental review, the agencies subject to regulations are extremely risk-averse. I wouldn't be surprised if that contributes to the culture (and the incentives always include "don't get sued."
I read an article about why subway construction in NYC is so ridiculously expense. One factor was that state courts have a history of being overly sympathetic to contractors who don't deliver, so the city transport attorneys started writing more and more specific contracts in hopes of being able to hold contractors accountable, but ended up with huge complex contracts that were burdensome but not effective for purpose.
I work for a state-affiliated nonprofit that basically exists because public construction procurement is so broken that the only way to control costs is to do the work outside of government. For example, construction contracts held by my state are structured such that contractors CANNOT lose money unless what they've done is somehow criminal. Screwing up a project literally makes them more money than if they did it right the first time, and the incumbent large contractors spend a lot of money lobbying to keep it that way.
I am obsessed with this question. I can only speak to healthcare but I have long been fascinated by my community’s complete disinterest in subregulatory guidance, which actually governs how a surveyor interprets the relevant regulations and what the surveyor looks for when they walk in the door. If we are trying to change and improve behavior in healthcare, this is the moment that impacts how a patient is going to be cared for in that setting and the guidance in the surveyor’s hand is what governs it. I really think too many people are divested from implementation and from the moment when the policy touches the person. I don’t know why that is but probably has something to do with the environment around policy and advocacy where people chase the shiny thing (often on the Hill), look for the moment of credit taking, and ignore the rest (and the layers of incentives inside the Executive branch which have been described much better than I ever could).
Fantastic article drilling down on huge ideas through the lens of a very clear, specific example. I agree wholeheartedly with your conclusions, and really appreciate this clear portrait of the entire landscape and its complexities.
I was talking about a similar topic with a friend just last night. We both come from the world of dialysis where rampant abuse of Medicare payment led a highly restrictive bundled payment system. She’s still in government, I am not. She’s now working on a program where she’s been asked to spend a lot of time and resources on monitoring participants in this program for abuse of the rules. I said I agreed with the approach: good oversight is the basis for allowing for and promoting innovative healthcare delivery. My friend disagreed and pointed to dialysis as a case study. It’s so regulated that nobody can compete in the market besides the big two and that’s bad for patients who should have access to a robust, competitive market. Her point was: why would we go looking for things that are more likely to be misinterpretations of the rules than ill will, and that even if they were ill will, we’d probably not do anything about. In the end, she’s right and I am not and I concede the point. I think it does come down to: do you think the industries you are regulating are basically good actors or basically bad. Even if the impact is mixed/bad I do think the intent, at least in healthcare, comes from mistrust, which is often earned. You can’t just ask “is this implementable” or “how can we do this better” because those questions are tough to parse out from the incentive of building up the share price. TL;DR: regulation is hard, overall I think we have too much of it in healthcare, and I feel for the civil servants who feel the best thing they can do to protect beneficiaries is play defense, no matter the impact.
I’m surprised that no one pointed out the similarity between Robinson’s “it’s not illegal to peel bananas” and the claims by abortion ban defenders that it’s not illegal to provide competent obstetric care. There’s a case in which progressives understand that something doesn’t have to be literally illegal to be made too risky for private enterprise!
I was at a party this weekend with a group of folks in the Bay Area who are all 1 - 2 steps removed from a lot of the billionaire technologists in the news at the moment who have seemingly shifted towards the right-wing party in the U.S. There was a lot of discussion about why that is happening (at least nominally on some fronts) and I offered and got general agreement that it seems to come down to politicians, maybe unfairly over-represented by the Democratic party in the U.S., who care "more about following the process than about the outcomes". The type of people who build the most valuable companies in the world tend to be outcome-focused ("results oriented"). The current housing crisis in the U.S. combined with the difficulty in building anything because of rules / regulations / difficult to follow processes is a perfect encapsulation of that frustration.
I came across your article at just the right moment to reinforce a lot of the comments and opinions shared during that conversation. I think the example of the daycare and the bananas is a case of caring more about defining a process and then asking that people follow it rather than actually establishing what successful outcomes would be and building and improving the process to get to those successful outcomes.
The government should step in and provide child care services if it's cost prohibitive for private individuals to run them for profit while complying with safety/health regulations.
We need not let our solutions be limited to the narrow minds of the clowns who valorize "small business".
I sounds like we need a sort of "user research" function in connection with policy making. Honest, rigorous, and sober research about how regulations play out on the ground. We have implementation research and we have cost/benefit research but both of these tend to be built on a raft of assumptions about how people and organizations accommodate their practices to the web of constraint that a rule creates IN CONJUNCTION WITH ALL THE OTHER RULES that the agent has already tailored practices to be be compatible with.
This probably means that a direct port from the realms of product-oriented user research won't do. There we too often focus on the use of a product in relative isolation from other concerns. Here we really want an in situ examination.
Ironically, or perhaps not, this is precisely what one can imagine anti-regulation folks to support as well, but that shouldn't make us turn out backs on it. Our goals in all policy making should be on the outcomes actually produced. To pull that off, you need to know a lot more than we typically do about rules in practice.
This also seems like a prime example of the problem—both within government operations and in terms of government policies regulating people and businesses—of creating an environment of “No one seems to know for sure what the laws/regulations do or don’t allow; you only find out for sure if someone decides you’ve broken them and takes enforcement action.” Everyone just sticks to whatever seems the safest option, whether it’s not peeling fruit or mandating an Enterprise Service Bus.
It should be easier to get definitive answers about what is allowed!
To be fair, such answers do exist for plenty of things, e.g. getting building permits approved prior to construction. But far too many other things effectively operate in a way that’s analogous to “we don’t issue building permits—just do your best to interpret the law, and we’ll take enforcement action after you’ve built the building if we decide you were wrong.”
People inside and outside of government ought to be able to get more definitive answers in the form of “GO energy” and not just “STOP energy” (as you referenced in the other post).
In some jurisdictions the building permits are just as insane. (SF, CA.)
I own a building in Washington state that rents to a preschool. (MGP is my rep) You can't use the same sink for food prep as you do for washing hands, for example, so we had to install an extra sink. When we were going through the permitting process to get ready to open, the building department rep made a careless mistake that cost us an extra $10,000 and two months. They would sometimes give us incorrect information, we would follow their instructions, and then the inspector would tell us it was something different. No recourse - we just had to eat their mistakes. We have a huge waiting list for parents desperate to find care for their kids, but can't accommodate any more kids due to the bog of regulations that would make it prohibitively expensive to expand.
I have experience with getting wrong answers from junior employees in a building department. That is absolutely infuriating. If I act on information I received from the government agency, and then they come back and tell me, "whoops, we gave you bad info, guess you have to re-do the work", they should bear the f***ing cost for their mistake. I get why that kind of experience turns people into radically anti-regulation libertarians or Republicans.
The error is in assuming Republicans will or even want to make it better.
Oh, I agree. I think people voting for Republicans because of this are being played for fools -- they sell policy to the highest bidder. But if Democrats don't take the concern seriously and deliver reform that works, the voters will opt for wreckers.
Aren't you making an error assuming bad motivations of others?
It's really absurd when government regulators can give you specific instructions and then go "never mind". There should be accountability. On the other hand, it's very reasonable to require that food prep sinks not be the same ones people use in toilets for washing their hands.
Not if the food prep in question if peeling a banana.
why would you peel bananas in a sink?
Doesn't matter. Peeling bananas is still considered "food prep", as such in order to do it one must have a facility authorized for food prep.
in fact, they have to feed kids in day care too - so they have to have a food prep facility - which doesn't need much.
You're slowly confessing the Perez was in fact correct.
Have seen similar in other jurisdictions. What this evidence seems to tell us is not that the two sink rule, for example, is overreach and inefficient and irrational. Rather, the evidence is that the system put in place to ensure that the two sink rule is followed is rather broken. If the inspector or permit person cannot provide correct information, let's look at the context in which they are working. Safe bet it's the kind of environment that is practically designed to make mistakes and throw wrenches. But not literally "by design" - rather due to accretions of practices and policies it's what Meyer and Zucker called "permanently failing organizations" (1989). It would behoove us to calibrate our diagnostic tools to look first for things like this rather than prioritizing "find the bad regulation" or "find the bad civil servant."
At home, I don't use my food prep sink in the kitchen typically to wash my hands either.
Maybe you and MGP have different standards than me ..and that's ok and the way it should be as far as private preferences...but it's not just about the private good ..it's about the public good in this instance.
Public goods are always going to be costlier. I get public goods are mixed and have a private component attached to them..., but your critique offers nothing to overcome the cost of the free rider problem that in this case possibly arrives with transmission of health hazards .
These rules may seem excessive now to you by the using of counterfactuals that inconveniences you...but one can also counterfactually assume that they may have prevented plenty of gastroenteritis transmissions which you may be unaware of too,thereby saving more money .
It is a solid general rule that if you draw sneering opposition from Nathan Robinson you are doing something right. For a bunch of reasons his variety of socialism (not exaggerating, he actually identifies as a socialist) is a leading candidate for the party to throw under the bus to signal centrist appeal. MGP is picking a smart fight here.
the regulation about sinks is pretty meh, but Nathan is clearly railing against populism, anti-institutionalism, and the no-consequence political discourse. (of course, alas he's late by about a decade or simply naive -- or both)
https://www.currentaffairs.org/news/why-is-this-member-of-congress-claiming-its-illegal-to-peel-bananas-in-a-daycare
This feels so validating, I took this same case and wrote [1] last week about how it doesn't make sense to be angry at this JUST because it smells like "anti regulation". You can believe that regulation & gov is good, AND that there's lots of bad regulations that are actively causing harm. To me the root cause is that people identify by the mechanism of a solution, and not with the ultimate goal. I think it's OK to want to side with your people/with your tribe, but we can't define our tribe by "those who use THIS specific tool to solve problems"
[1] https://defenderofthebasic.substack.com/p/blue-tribe-is-starting-to-win-by
Exactly!!
> You can believe that regulation & gov is good, AND that there's lots of bad regulations that are actively causing harm.
No, you cannot. All the regulations in question were "good" and the result was still harmful. Once you realize this, you start questioning whether there are any truly good regulations.
Also there are thousands of cases like the fruit peeling example. Far too many for someone like Perez to be able to give her personal attention to every one of them. As such, which problems will actually get fixed? The ones that affect people who are sufficiently well connected. BTW, this phenomenon is the kernel of truth behind all the woke talk about "privilege".
Saying, "many regulations that were written with good intentions have bad consequences... therefore all regulation is bad!" seems like a slippery slope to anarchy. If it's impossible to impose regulations of any sort without doing harm, then how are even criminal laws OK? What if we pass a law saying you can't kill people, but then people are arrested for killing in self-defense, and hence that law against murder is doing harm?
I think the point that Jen added that instead of fixing the unintended consequences with a new layer of language, you should scrap the bad language and start over, is well-made. But just giving up on governance entirely would be much, much worse than where we are. (Like, I'd like to scrap _most_ of zoning. But I'd definitely keep the basic part where toxic industrial stuff is kept away from residential / commercial areas.)
all of the arguments here against all government regulation are an example of things the government shouldn’t listen to
Eh. I mean, I think it is worth it for policymakers to hear this stuff and approach it with a spirit of curiosity. Like, what happened to you that you're _so_ negative about _any_ regulation?
I think anti-regulatory extremists, if dropped back in 1850s England in a neighborhood next to one of the "dark Satanic mills", would suddenly realize that _some_ types of regulation are actually useful.
But let me tell you my own experience with local regulators. My spouse and I bought a house in 2017. We are only the second owners. It was built in 1940, and one of the members of the team that built our neighborhood bought a house in the neighborhood, and raised his family here. Died in the house at age 97. In the 77 years he lived here, he did a lot of un-permitted work. We set about bringing everything in the house up to code. (Among other things, we gutted and replaced the _entire_ HVAC and electrical systems, both of which were insane -- there was knob-and-tube wiring with all of its cotton insulation rotted away, so basically just bare copper, with blown-in foam rubber insulation losse on top of it; there was no actual air return to the furnace because termites had eaten the supports around it and it collapsed; it's _amazing_ the guy made it to 97 and didn't get killed by his own sloppy construction.) We also had to tear off and rebuild the entire roof (like not just the shingles, the decking and rafters).
Along the way, we learned that we _could not trust_ anything that the Building Department told us until it was confirmed by senior staff in writing. If I trusted something a junior person told me, and then spent some four figure amount of money having my contractor / architect / engineer team update plans based on what that junior person told me, there was something like a 50/50 chance that a senior person would later look at those plans and say, "oh, no, this is wrong, you have to change it again".
And that is _infuriating_. If their junior people are giving bad information, then they need to deal with disciplining and training those people. Our projects were delayed by _months_, and I ended up out something like $12k, by the time I was done fixing things that were _their f***ing fault_.
This kind of thing makes one want to become The Joker. I get why people have the impulse to burn down the whole system. I think they're wrong, and what we need is a government that has more "state capacity". But in the moment when you're dealing with something like this, it inspires _incandescent rage_.
it’s important to listen comprehendingly and empathetically, and not just ignore, of course. good old regulations. of course, of course. i’m mostly responding to uninformed, non-specific throw-government-overboard attitudes, as someone whose parents both worked for the Federal government and who did not choose that field in part due to what it had done to their use of language (now I see their value though)
Yeah, I grew up north of DC. My dad was an officer in the Public Health Service. Did both medical research and treatment of patients (through the public clinic at the NIH campus on the east side of Baltimore). My uncle was a lawyer for the Maryland government, and my aunt worked at NOAA.
I really wish we could make the WaPo series "Who is Government?" required reading for all these yahoos who think government is useless.
https://ourpublicservice.org/blog/who-is-government-series-the-washington-post-event-recap/
The purpose of government is to maintain peace and order within its territory. Nearly everything else is mission creep.
If you believe in something roughly like the social contract -- you're going to have to work out with the rest of the citizenry what exactly the government should be doing -- then you may have to accept that a lot of us think public-health-related concerns are part of the government's role in maintaining order / protecting public safety. Most people are not OK with the government just ignoring it if, say, a manufacturer dumps toxic waste into the water supply. Managing that kind of thing does require _some_ version of "the regulatory state".
I would like a version of the regulatory state that is significantly slimmed down, because I think it's doing a lot of stuff that it shouldn't bother to do at all, and it could do a lot of the remaining things better / faster / at lower cost. But I'm _quite_ confident that giving up on this stuff entirely would make life much worse.
The conviction that there are no good regulations seems kind of absurd on the face of it. Should just anybody be able to start up an army? Should we get rid of the lines on the roads? Are stop signs outdated? Should incompetent doctors be allowed to practice? Can you next door neighbor get a wolf as a pet?
Behind the issues here seems to be the fact that humans want to be able to raise the baseline of "social order" that can be taken-for-granted so that attention and creativity and resources can be devoted to other stuff. One way we do it is to try to encode what we want to happen in rules. But it turns out that writing down what you want is actually a hard problem. It's hard when you write a contract (and thus we have lawyers and courts to work things out when things go awry). It's hard to do when we specify a reward function for a robot (and thus we have a whole thing called AI safety and assurance). And it's hard to do when trying to align behaviors in distributed organizational settings (like when we provide childcare through millions of separate micro-enterprises).
In terms of "styles of thinking," we might well characterize as "bad" both a mindset that is (blindly) "anti-regulation" and one that is (blindly) "pro-regulation." Shift the discussion to actual outcomes and then have a reasonable debate about how to achieve the ones you agree on and how to persuade folks about the ones you don't.
Has Nathan J. Robinson ever worker in government or deal with regulation? No. But he is a PhD candidate in sociology and cowrote a book with Noam Chomsky and another explaining why we should be socialists. So, of course we should folow his advice, lol. https://www.nathanjrobinson.com/
Ugh. Yes. Great story! Thanks for your reference to user research and usability testing. We need more of this *so badly* in gov. But it requires more work and more effort and more empathy and more passion….and it seems like so many people shy away from these things to take the path of least resistance. Why?! Why are we so afraid of hard work?!
I love your words here. It also requires 1) executives and 2) programmers with exalted job titles like "engineer" to actually PAY ATTENTION to the people who do the work with effort, empathy, and passion (not to mention the users.)
There's nothing more humbling than sitting down and watching someone use your wonderfully clever user interface. Tons of examples, but one of the standard ones is requiring typists to take their fingers off the keyboard because they have to keep using the mouse, as opposed to putting in useable tab sequences.
But why does not each layer, closer to the actual practice, make the reg more flexible?
That is an excellent question. I've written about this in my book, and I'll find the right passages for you..but essentially it's culture and incentives. Also see the link to the cascade of rigidity piece.
In my experience in environmental review, the agencies subject to regulations are extremely risk-averse. I wouldn't be surprised if that contributes to the culture (and the incentives always include "don't get sued."
I read an article about why subway construction in NYC is so ridiculously expense. One factor was that state courts have a history of being overly sympathetic to contractors who don't deliver, so the city transport attorneys started writing more and more specific contracts in hopes of being able to hold contractors accountable, but ended up with huge complex contracts that were burdensome but not effective for purpose.
I work for a state-affiliated nonprofit that basically exists because public construction procurement is so broken that the only way to control costs is to do the work outside of government. For example, construction contracts held by my state are structured such that contractors CANNOT lose money unless what they've done is somehow criminal. Screwing up a project literally makes them more money than if they did it right the first time, and the incumbent large contractors spend a lot of money lobbying to keep it that way.
I used to work in NYC and this totally tracks, unfortunately...
I am obsessed with this question. I can only speak to healthcare but I have long been fascinated by my community’s complete disinterest in subregulatory guidance, which actually governs how a surveyor interprets the relevant regulations and what the surveyor looks for when they walk in the door. If we are trying to change and improve behavior in healthcare, this is the moment that impacts how a patient is going to be cared for in that setting and the guidance in the surveyor’s hand is what governs it. I really think too many people are divested from implementation and from the moment when the policy touches the person. I don’t know why that is but probably has something to do with the environment around policy and advocacy where people chase the shiny thing (often on the Hill), look for the moment of credit taking, and ignore the rest (and the layers of incentives inside the Executive branch which have been described much better than I ever could).
Risk aversion. Also, the more onerous regulation does not affect the bureaucrat.
This is excellent, thank you.
Fantastic article drilling down on huge ideas through the lens of a very clear, specific example. I agree wholeheartedly with your conclusions, and really appreciate this clear portrait of the entire landscape and its complexities.
I was talking about a similar topic with a friend just last night. We both come from the world of dialysis where rampant abuse of Medicare payment led a highly restrictive bundled payment system. She’s still in government, I am not. She’s now working on a program where she’s been asked to spend a lot of time and resources on monitoring participants in this program for abuse of the rules. I said I agreed with the approach: good oversight is the basis for allowing for and promoting innovative healthcare delivery. My friend disagreed and pointed to dialysis as a case study. It’s so regulated that nobody can compete in the market besides the big two and that’s bad for patients who should have access to a robust, competitive market. Her point was: why would we go looking for things that are more likely to be misinterpretations of the rules than ill will, and that even if they were ill will, we’d probably not do anything about. In the end, she’s right and I am not and I concede the point. I think it does come down to: do you think the industries you are regulating are basically good actors or basically bad. Even if the impact is mixed/bad I do think the intent, at least in healthcare, comes from mistrust, which is often earned. You can’t just ask “is this implementable” or “how can we do this better” because those questions are tough to parse out from the incentive of building up the share price. TL;DR: regulation is hard, overall I think we have too much of it in healthcare, and I feel for the civil servants who feel the best thing they can do to protect beneficiaries is play defense, no matter the impact.
I’m surprised that no one pointed out the similarity between Robinson’s “it’s not illegal to peel bananas” and the claims by abortion ban defenders that it’s not illegal to provide competent obstetric care. There’s a case in which progressives understand that something doesn’t have to be literally illegal to be made too risky for private enterprise!
I was at a party this weekend with a group of folks in the Bay Area who are all 1 - 2 steps removed from a lot of the billionaire technologists in the news at the moment who have seemingly shifted towards the right-wing party in the U.S. There was a lot of discussion about why that is happening (at least nominally on some fronts) and I offered and got general agreement that it seems to come down to politicians, maybe unfairly over-represented by the Democratic party in the U.S., who care "more about following the process than about the outcomes". The type of people who build the most valuable companies in the world tend to be outcome-focused ("results oriented"). The current housing crisis in the U.S. combined with the difficulty in building anything because of rules / regulations / difficult to follow processes is a perfect encapsulation of that frustration.
I came across your article at just the right moment to reinforce a lot of the comments and opinions shared during that conversation. I think the example of the daycare and the bananas is a case of caring more about defining a process and then asking that people follow it rather than actually establishing what successful outcomes would be and building and improving the process to get to those successful outcomes.
DOGE
It is probably safe to assume that our incompetent government should be removed from every area not absolutely in need of regulation.
“government as the vehicle for achieving our collective aspirations.” Hilarious!
The government should step in and provide child care services if it's cost prohibitive for private individuals to run them for profit while complying with safety/health regulations.
We need not let our solutions be limited to the narrow minds of the clowns who valorize "small business".
What would you recommend be done until universal public daycare is set up?
Ah, the old regulation the private sector out of existence and then nationalize the industry trick.
I sounds like we need a sort of "user research" function in connection with policy making. Honest, rigorous, and sober research about how regulations play out on the ground. We have implementation research and we have cost/benefit research but both of these tend to be built on a raft of assumptions about how people and organizations accommodate their practices to the web of constraint that a rule creates IN CONJUNCTION WITH ALL THE OTHER RULES that the agent has already tailored practices to be be compatible with.
This probably means that a direct port from the realms of product-oriented user research won't do. There we too often focus on the use of a product in relative isolation from other concerns. Here we really want an in situ examination.
Ironically, or perhaps not, this is precisely what one can imagine anti-regulation folks to support as well, but that shouldn't make us turn out backs on it. Our goals in all policy making should be on the outcomes actually produced. To pull that off, you need to know a lot more than we typically do about rules in practice.