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Point being, why not write simpler laws and regulations and leave it to the courts to interpret what adheres to the spirit of it? With the barriers of entry gon
by harryh 7y ago
Point being, why not write simpler laws and regulations and leave it to the courts to interpret what adheres to the spirit of it? With the barriers of entry gone, I think we'd see a renewed vitality to many ossified sectors.
I agree with your overall point, but you have the regulatory differences between the US and Europe exactly backwards. Europe (excluding England somewhat) has a statutory legal system. Things are either legal or illegal according to laws that have largely been written down ahead of time that anyone can go read and figure out.
In the US we have a common law system where much of our law is written by the courts in response to specific cases where judges interpret the general principles described in the "simpler laws" you speak of.
In practice this means that, under many circumstances, things move a lot slower in the US because of the time and expense of litigation (and even the threat of litigation). This is one of the reasons that it's harder to build things in the US. Our public transportation systems (trains, subways, etc) cost on the order of 5-10x more than similar ones in Europe. Our different legal systems is one of the big reasons why.
- oxymoron 7y agoI may not have expressed that point very well, but it seems like the common law system would encourage less explicit regulation rather than more, so that seems like a bit of a contradiction. Does the need for more litigation drive a desire to be more explicit in how statues are written?
- harryh 7y agoCorrect. Common law = less explicit legislature passed regulation. We have far less regulation of this kind in the US than in Europe BUT we have far more common law regulation.
- XorNot 7y agoIt means power is captured by those who can afford lawyers, and lawyers are expensive. There's no way to plan your risks up front in an area with not a lot of case-law, because you don't know them - your business plan now gets to be "hopefully we win this case in our favor in the next 3 years, but if it goes all the way to the supreme court..."
- kds3 7y agoLawyers are expensive only if _you_ have to pay for them. In English law (UK/EU) loser pays most lawyer's fees. This also disincentivizes businesses to start unwinnable cases in order to ruin other businesses with legal fees.
- 3ygun 7y agoAs the parent notes. The issue is if you have a simple law say "Do not dump harmful chemicals into waterways used for drinking, shipping, etc." this leads to a lot of litigation regarding what is a "harmful chemical". If instead you have it all spelled out "harmful chemicals being one of coal ash, hydrochloric acid, asbestos, ..." (don't quote me on these). Business's know what the variables/costs effecting operations are up front. Only reacting and being liable if the list changes through the political process. The parent was saying the US approach instead define what a harmful chemical is after the fact. Leaving companies to need "insurance"/a cost benefit wager before something is built. Otherwise they could be screwed later after litigation. IMO, I can see both sides but preferably I would want simpler laws from political processes which are then refined into explicit interpretations by subject matter expert strong government institutions. But we have lobbying/revolving door government employees and trashy textualists in the US so it doesn't work out that way... [1] https://en.wikipedia.org/wiki/Textualism https://en.wikipedia.org/wiki/Textualism
- harryh 7y agoThis is a great description. And, to be clear, I"m not really advocating for either system being better. Just pointing out some of their differences.
- BurningFrog 7y agoI think the modern US version is different: A federal 3 letter agency unilaterally writes detailed regulations, that are for practical purposes law. One problem is that the regulatory agency gets captured by the industry, which means the regulation ends up being a way for the established industries and companies to make competition unfeasible.
- selectodude 7y agoWe'll see how long that continues to be the case. Chevron deference is under fire from our whackjob supreme court. https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
- 7y ago
- renewiltord 7y agoYeah, but when the practice of this is different with it often being up to regulators what actually is allowed and what isn't. The obvious recent example is that GDPR enforcement is (often intentionally) not strictly following the letter of the law.
- vanviegen 7y agoWell, GDPR is not actually a law, but a framework that must be used by EU member states to implement their own laws. That may be one cause of local enforcement being not fully aligned with GDPR. But yes, the local GDPR laws do seem to be intentionally underspecified, like you said.