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There are two basic ways for government to regulate activity in the
private sector of a free society:
The first approach is to create general rules and when suspicious
activity is detected by a policeman/regulator the activity is referred
to a judge or independent jury to make a determination as to whether or
not the general rule has been violated. The general rule in a service
business might simply read: “a businessman must be honest and diligent
when performing services for his customers.”
The second approach is to specify a large number of very detail
rules that must be followed. When one or more of the detail rules is
broken then the regulator can say “Oh, you broke this rule; we feel its
a minor (or major) infraction so we will .....” This approach allows the
policeman/regulator to 1) eliminate the need to go before an independent
judge or jury to have the activity evaluated, and 2) gives the
policeman/regulator the power to dictate the punishment: letter of
caution, small fine, large fine, restrict scope of future activity, or
complete shut down. Since it is impossible to obey floods of rules,
particularly if those rules change regularly, the policeman/regulator is
always able to find violations and thus the regulated entity is always
at the mercy of the policeman/regulator. The policeman/regulator is
thus able to make “suggestions” about how the regulated entity should be
operated, “suggestions” which really can’t be complained about or
ignored. This means that the policeman’s/regulator’s power is not
limited to area addressed by the written detail rules but extends
effectively to every part of the entity’s operation.
But how does all this relate to the “lawyer’s mentality”? As
pointed out elsewhere is this web site, lawyers are inclined to be
intelligent, introverts who desire power over other peoples lives and
derive that power from their mastery of the details of the law and legal
processes. In civil litigation situations, a lawyers looks at factual
situations and says to his client “this is the result we would get if we
went to court” but they add “of course it would be prohibitively
expensive to actually test my belief by going to court” and then he says
“so we’ll settle this out for some cents on the dollar” and finally
“because this is embarrassing to the other side we may get a quicker
settlement if we offer to sign an agreement saying we’ll never discuss
this matter in the future”. Notice what has been eliminated by this
process: no judge or jury for independent evaluation of the facts,
transfer of decision making to the lawyer(s), settling out at on some
middle figure that may or may not be fair, and understanding that there
will be silence about the dispute so subsequent evaluation of the
lawyer(s) behavior is unlikely in other words no publicity, no
“sunshine”.
In a regulatory situation, the lawyer/policeman/regulator comes
with a 2000 page rule book and begins his audit first checking to make
sure mountains of records have been kept, and then checking the accuracy
and completeness of the records. The when mountain of records are
checked against thousand of rules, errors are discovered. At that point,
the regulator has the regulated entity at his mercy and the demands for
corrective action begin: prepare a plan for correcting the problems,
write a letter admitting that violations have occurred, agree to pay a
fine without objecting (if you object and ask for a hearing the charge
might be upgraded and the possible fine increased), agree to fire or
transfer certain individuals or shut down certain operations or
divisions, etc. If the entity cooperates the pain will be minimal; if
its response is even half heatedly, the consequences begin. If the
initial audit has not disclosed any really serious violations, the
initial audit might be followed by a new audit every month until the
regulated entity “gives in” accepts the “suggested reforms” or “closes
down”.
Note the similarity with the civil process set out earlier, 1) the
process rarely leads to a forum where an impartial decision maker ( i.e.
a jury) looks at the situation, 2) the lawyer/policeman/regulator takes
control and becomes the decision maker, 3) there is agreement that the
regulated entity will adopt all (or at least most) of the regulator's
suggestions, and, of course, 4) no one talks about the rules violations
that were found and/or the suggested changes that were implemented.
Negative comments or publicity can lead to a series of return audits.
This similarity is not accidental. The major regulatory entities in this
country are dominated by lawyers. For instances, the EPA is headed by a
lawyer, not by a Ph.D.. environmentalist as one might expect. The NASDR
which regulates much of the brokerage industry is headed by a lawyer not
by someone who did the work of a broker. The Transportation Dept. is
headed by a lawyer not a former airline pilot or railroad executive.
The list of lawyer regulators is nearly endless. It is no wonder that
the lawyer’s love for complex systems which leave them in a position to
make decisions, take control, cut deals, and compel (or strongly
encourage) silence manifests itself in the nation’s regulatory agencies.
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