Regulation

I think that I understand what Mitt Romney is driving at when he says (quoted here) that “[w]e as Republicans misspeak when we say we don’t like regulation. We like modern, up-to-date dynamic regulation that is regularly reviewed, streamlined, modernized and effective.” Romney is right to unpack an easily-parodied rallying cry, particularly when deregulation has been cast as the bad guy in our recent economic travails (an absurd theory, but that's a subject for another day), in order to show why the parody misses the mark. Nevertheless, Romney's remark strikes me as imprecise. I really don't like regulation, particularly federal regulation, and suspect that most who would align themselves with the GOP feel the same. Rather, I (or we) accept that it is sometimes necessary. I really don't like going to the dentist, but that doesn't mean I don't dutifully show up twice a year.

As a general matter, I accept the propriety of government regulation in either of two categories:

• where regulation will increase market efficiency—antitrust, for instance (see, e.g., Kintner, Bauer, & Allen, Application of the Antitrust Laws to the Activities of Insurance Companies, 63 N.C. L. Rev. 431, 432 (1985)), or reporting requirements that diminish information asymmetries; and
• where there is a traditional state interest in the subject of regulation—requiring schooling of children, for instance - more on this anon.

That is only one part of the analysis, however: which government is to do the regulation has to be addressed. That question that may well bear on the previous question (a rule that would be efficient if imposed nationally may be inefficient if imposed by a single state, or a state may have a sufficient traditional interest that the federal government does not). Subsidiarity and federalism must also be considered (cf. this post). And I think that regulations should be (to borrow terminology) congruent and proportional to their objectives, reasonably tailored to achieve their objectives using minimally invasive means; a state can require schooling of children, for example, but I don't think that the state can mandate attendance at any particular school, so while a regulation that homeschooled children must pass certain tests would be permissible, a prohibition on homeschooling would not. [Would this standard allow a state to assert an interest in regulating some of the more out-of-control naming choices by parents?]

And, of course, regulations -- particularly directly economic regulation (notice that in this post, I've by-and-large assumed a broader definition of "regulation" than would be found in administrative law hornbooks) -- ought to be efficient. They ought to conform to Romney's point: "modern, up-to-date dynamic regulation that is regularly reviewed, streamlined, modernized and effective." Those are necessary attributes for regulations, certainly, but they are by no means sufficient. I hope that Romney (a pragmatist, to be sure, but not a technocrat, I had thought) is not implying otherwise.

See also: AMA v. Obamacare (June 2009).

Post facto:
Disclosure it is, then (2/25/10) (followed)