Managing the Monster

One of President Donald J. Trump’s earliest executive orders, like those of many of his predecessors, was devoted to reducing regulatory burdens. This goal was not exceptional; most developed jurisdictions around the word have similar ambitions. The United Kingdom, for example, has established a policy that calls for eliminating three regulations for every one new regulation—although this policy is not implemented in practice. Canada and Australia have legislation dedicated to reducing regulation. Similarly, the European Union has an entire body devoted to regulatory reduction; related EU guidance notes are over 600 pages long. The question for policymakers is why these various attempts, if they are supposedly necessary, have actually had little to no impact in reducing regulatory overload. Officials in most jurisdictions have some qualms about the growth in the volume of law. In the United Kingdom, the position was highlighted by one of its leading judges, the Right Honorable Sir Brian Leveson, who observed in relation to the encyclopedia of the criminal statutes of England that “more than four times as many pages were needed in Halsbury’s Statutes to cover laws created in the 24 years between 1989 and 2013 than were needed to cover the laws created in the 637 years prior to that.” It is not only the judges who complain. David Cameron, a recent U.K. Prime Minister, explained that “we need to tackle regulation with vigor to free businesses to compete and create jobs, and give people greater freedom and personal responsibility.” He emphasized his desire “to be the first Government in modern history to leave office having reduced the overall burden of regulation, rather than increasing it.” Prime Minister Cameron did not succeed. Meanwhile, laws and regulatory codes around the world continue to expand. There have been innumerable methods adopted to try to cut off at least some of the heads of the regulatory Lernaean Hydra. In the United States there are, of course, not only executive orders but also the Office of Information and Regulatory Affairs. Other jurisdictions have adopted sunset clauses or have occasional deregulatory acts repealing some obsolete law. For example, the U.K. Statute of Marlborough 1267 has been reduced to four chapters, down from 29. The United Kingdom also has an Office of Tax Simplification and a Better Regulation Executive, whose jobs are to make sure law is simpler and shorter. And throughout the world, there are programs of simplification, consolidation and codification, and of pre- and post-legislative scrutiny. But they are ineffective. Lawmakers and regulators everywhere have little attention to spare for revisiting old regulation to simplify it. Since few deregulatory efforts seem to have had much effect, it may be time to explore whether, if there genuinely is excess regulation, there is an alternative approach. It is curious that so much regulation is dedicated to ensuring that professionals who could do harm—such as lawyers, doctors, beauticians and bus drivers—are required to have training and qualifications before they are let loose. Yet politicians and regulators, who may have some experience in the military or in business, rarely—if ever—have training in the principles of lawmaking, alternatives to lawmaking, risk analysis in regulation, cost-benefit analysis in rulemaking, principles of drafting, the law of unintended consequences, the importance of tone in regulation, or the advantages and challenges of codification. And they have to learn about procedural issues on the hoof. Maybe it is time to devise a program of improvement to help lawmakers and regulators provide a better service to the public. This could include not only training—and maybe qualifications, so that no one could stand for office or take a job in regulation without a diploma in lawmaking—but also the swearing of an oath to uphold the principles of honest rulemaking—and maybe to comply with a code of practice. Of course, none of this would be enforceable, nor should it be. But it might work over time to change the mindset of our lawmakers. In 1595, litigant Richard Mylward upset a senior High Court judge in England by setting out his complaint in 120 pages. The judge ordered a hole cut in the middle of the 120 pages, Mylward’s head to be thrust through it, and him to be paraded through the courts as an example—in addition to paying a substantial fine. It seems to have worked.

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