Quickthink

A great image from Hot Screensaver.com  —- it actually does relate to the post!

One of the great debates over the last half century has been about ,,, drum role please … do we need rules? Here is the basic thread of the argument

Are we smart enough to regulate ourselves, or do we need rules to stop people from gaming the system?

Reagan on down to Greenspan argued that — at least in the commercial world — we are ”smart enough” (a caveat …. idiots who commit violent crime are too stupid to walk the streets, and should be locked up). But the recent … shall we call it …… errrr …… unpleasantness …. in financial markets is strengthening the “stop gaming the system” camp. Obama?

But here is the more sophisticated version of the above thread

Even if we need some rules, they usually impose too many unforeseen costs, so we have to tolerate some gaming of the system.

Take a look at a post from TechCrunch on this way of thinking by Eric Schonfeld, quoting tech VC Paul Graham. The point? Imposing systemic prudence by requiring  “approvals” comes at an unwelcome cost to creativity. (Please don’t tell my 12 year old son this!!!!)

A few points of order: (1) rules are supposed to add costs to certain types of behavior, in order to impose prudence when a lack of prudence is dangerous (see above image), (2) RIA and its parent, cost/benefit analysis are supposed to assess the anticipated costs of rules compared to their benefits, but the economist dominated incarnations of these systems are costly to use, (3) looking around the world, too many lawyers who actually draft rules have no idea what we are talking about.

So? Given the importance of the debate, I would pose three questions

(1) Why do we think this is a political question rather than a competence question?

(2) Why are there so few training programmes, and best practices that bring systemic learning or “checks” into rule/law drafting processes — so that more “costs” are foreseen and when unecessary, avoided?

(3) Is this why the US law drafting system relies so heavily on lobbyists to draft laws?

Errr ….. a final question ….  not to be rude, but why are people who have no law drafting skills the ones framing this debate? Isn’t this like commercial airline passengers arguing about pilot procedures????

Could this be due to a failure of leadership that is needed from lawyers?

This entry was posted on Sunday, November 30th, 2008 at 11:20 am and is filed under Law, Legal Reform, Professional Training. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.