Welcome to 2018

Welcome to 2018

I've noticed a couple of general themes that seem to interact to result in American distrust of "regulation" as compared to other countries:

1. Regulation that mandates outcomes, but leaves the route to the desired outcomes unspecified, tends to be better at coping with attempts to ignore regulations than regulations that mandate process but not outcomes. E.g. regulation that says that you must notify all vehicle owners of a failure to meet certain safety levels within 30 days of discovering that you did not meet those standards tends to do better than regulation that says that you must go through a mandated process of notifying an agency and performing a recall when you don't meet standards.
2. The USA prefers regulations where the mechanism to comply is obvious from the regulation, which tends to result in regulations that mandate process, but that don't mandate outcomes. This is argued as limiting the "red-tape" burden on business, by ensuring that if you've followed the letter of the regulations, a judge can't penalise you for not getting the desired outcome (the "spirit" of the regulations).

I speculate that the reason for (1) is that companies work out how to game a prescribed process - if you have to report something in a fixed form, they'll find ways to "accidentally" get it wrong and have it sent back, adding delay, and they'll find ways to report exactly what the process asks for, even if the next step involves asking them to clarify before you get useful outcomes. In contrast, outcome based regulations leave a lot of room for arguing on the degree of blame when the outcome doesn't happen, but they tend to force desired outcomes (because you're only arguing about degrees of liability if you don't meet the outcome, not about whether you're at fault at all); the result is that the risk-averse bits of the company tend to dump on anyone trying to avoid meeting the outcome required by law, because the argument will be about whether $1 or $100,000,000 is the correct penalty for breach, not about whether you broke the rules at all.

Put that together with the preference for regulations that mandate process, and you see that most regulation is broken - the outcomes are bad, even though the regulation is followed. It's not hard to combine that with genuinely bad regulations (and bad laws) to conclude that government is unfixable.

And I personally appreciate the irony of people saying that courts will enforce contract regulations against a company while simultaneously arguing that regulation is bad :D