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Notes -
I think since he brought in crypto regulation, it's important to bring up FTX.
FTX was one of the key companies fighting for crypto regulation since SBF was confident his political ties would put his company ahead.
The fact that he was fighting for regulation while committing massive crimes should tell you a few things about the sort of people the SEC is likely to put in charge.
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What this seems to suggest is that bureaucratic hurdles are also downstream from the threat of legal costs, much like the explosion of US medical expenses (mediated by insurance and certification costs). Could one put a lid on "dentist caused cosmetic damage, courts awarded more in damages than the patient will earn in a lifetime" scenarios that the US is famous for? Should one, given the tension with the other apparent failure mode being like "courts fine megacorp the statutory maximum of $1m for illegal practice that earns them >$1m per interval between successful court cases in profit"?
How do you reconcile the goal of having credible threats with which to make institutions follow the law with the goal of not incentivising institutions to realign themselves around the goal of mitigating that threat? It seems that the fundamental problem is that regulation rarely changes the topography of the incentive landscape per se - it just places spike pits into certain attractive valleys in it, making the incentive-followers strive to get as close as possible to the edge of the legal sanctions pit while not crossing the line. To make sure they actually don't cross it, they introduce ever more procedural requirements - the more you have, the closer to the pit you can venture while still feeling safe. The optimal institution is just barely on the safe and legal side, and has a mile-long paper trail to prove it.
Maybe this suggests replacing "sharp-edged" bans with "terraforming" taxes. Only, how do you sell that to the voting masses? In the FDA example, this would have to look something like "instead of making the FDA/its employees subject to legal penalty if they pass some threshold of neglect in approving a drug that passes some threshold of side effects, tie their funding/salary to the volume of side effects", and, yes, accepting that some whistleblower will report a decision was made that looks like "yes, we figured some patients would get birth defects, but in expectation the funding cuts looked better than the amount of people we would need to divert to shepherd additional tests".
But then you wouldnt take on new procedural costs that exceed the benefit of getting marginally closer. Total procedural costs would be bounded by the difference in profit between sitting precisely short of the edge and the best spot thats distant enough to be safe on its own. Its weird that this would be so large.
I think a lot of regulatory burden comes simply from the sheer number of requirements you need to consider. Theres a sort of phase transition where its not worth to consider any course of action besides those established as ok, because the legality is too complicated. Even requirements that are naturally tax-shaped often are done with a sharp cut-off to limit the number of people who have to think about it, and conversely, smoothing existing edges without loosening standards in some place means more people have to deal with it.
Why would they avoid diverting people? If anything, management likes to maximise their number of subordinates. Whatever the merits of the smooth regulations in general, I dont think you can correctly steer the state bureaucracy with them. Frankly, the expectation that a legislature can do that at all seems crazy to me.
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The regulation itself is the terraforming, not the snake pit. The snake pit is the "entist caused cosmetic damage, courts awarded more in damages than the patient will earn in a lifetime" scenario that you mention, and being in compliance with the applicable regulations is a guardrail against falling in. Take a basic traffic accident. If you're being sued for causing an accident, the fact that you were traveling within the posted speed limit and observed all applicable traffic laws makes it harder for the plaintiff to prove negligence than if none of these traffic regulations existed and drivers were asked to exercise their best judgment. If a road has a posted speed limit of 40 and you were traveling at 37 at the time of the accident, it's a tough sell to a jury that you're responsible because you were going too fast (the exception being if there were some condition, like weather, that made traveling that speed unreasonable). Contrast that with a world in which there are no speed limits. Was 37 too fast for that road? They can probably produce a witness who will say it was, and you'll have to produce a witness to say it wasn't, and now there's a 50/50 chance that the jury agrees with the plaintiff.
Now compare this to heavily-regulated industries. The snake pit is there. But any guard rails the company puts up are weak and self-serving. If a company tries to argue that it did x, y, and z to protect the public, the plaintiff's expert is going to unequivocally state that x, y, and z are not enough and that the policy was only put in place to create the appearance of mitigating the risk while placing the lowest possible financial burden on the company. A company can argue about how great its internal procedures and industry best practices are until it's blue in the face, but it doesn't carry the same kind of weight with a jury as being in compliance with regulations created by a neutral government body. Knowing that no matter how much they spend or how seriously they take their internal precautions it won't matter to a jury, there's a strong disincentive for making these procedures any more burdensome than the plaintiff's bar is claiming they are. It's better to just spend as little money as possible and hope you get sued. This is mitigated somewhat by the requirements of insurance companies, but insurance companies can't flat-out prevent suits the way governments can.
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I don't see what's wrong with such scenarios. By your reasoning, if someone was retired and a dentist ruined their appearance, the dentist should have to pay nothing at all. Or if the dentist harmed someone with a childhood disease who won't live to their income-earning years. And even if they had income it would be better to harm a poor person than a rich one.
You might argue that if someone stands to make a lot of money from their appearance, the dentist has done additional damage, but that's just an additional amount of harm that is done by something that causes a base amount of harm to everyone, and it wouldn't consider all income, just appearance-based income.
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Strathern/Goodhart's law - Any measure that becomes a target ceases to be a good measure. You haven't actually solved anything - you've just changed the incentive to "control the number of side effects which get reported, or the number of incidents which legally can be described as 'side effects'."
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The general solution is contempt of court - i.e. the first time you do it, you get "illegal practice, $1m and you're ordered not to do this again", and if you do it a second time, you get "contempt of court, penalty is whatever the hell we want". Contempt of court has very few hard limits because the whole point is to patch this loophole by allowing unlimited escalation in case of defiance; I know the statutory maximum in the USA for individuals is life imprisonment, and for corps it's probably something equally dire.
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This is not an unreasonable take, except the FDA will never think that, they will have to be told that. "Your HR budget is now 50% of what it was and you cannot sneak in additional headcount through contractors. Here's a list of non-negotiable KPIs you have to meet. I want a new cost allocation for 2025 that reflects both these facts by Tuesday. The first slide should show the biggest roadblocks we have to get the Congress to remove"
It is an unreasonable take, precisely because the FDA is a government agency that respond to political and legal forces, not market ones. The whole point of the article is that it fundamentally misunderstands what drives government waste. If you sack half the staff of a private firm, they'll respond by reducing the scope of their activities. Government agencies don't really have the latitude to do that. They have some ability to alter their internal processes, but their legal incentives and political directives push them towards slow, restrictive processes over fast, permissive ones, and they generally can't just say "we're not doing X anymore".
Or what? Like, what happens when FDA staff slow-roll you because they know you're not going to abolish the FDA, or because your non-negotiable KPIs are delusional?
Fire more of them and replace with new recruits?
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I think a lot in here depends on how much one thinks that government agencies are actually responsive to political and legal forces... and how much ability they have to alter their internal processes. I imagine there are a variety of answers for the many, many agencies in question.
I've heard legends of a head of an agency taking a huge, 500+ page binder of rules, policies, and procedures to his bureaucratic overlords (plenty of agencies are subordinate agencies), basically begging for some of the constraints to be lifted and other authorities to be delegated down. Many hindrances come from other bureaucrats. I don't know if I'd call this a third axis or a part of the second axis.
The gold standard of have-to-dos are statutes and judicial rulings. I think most everything else is flexible... if you can get it to the right high-level bureaucrat or political appointee to sign off on it. I have to imagine that, like any sufficiently sizable company with loads of legacy internal 'rules', some of them just get conveniently forgotten anyway, unless some top-floor Joe gets a bee in his bonnet about it. So the question is what does the ratio of have-to-dos to flexible look like for different agencies? Of course, this plays into Scott's point; the measurement here is difficult - and different from just counting the number of bureaucrats.
I think that goes back to how much one thinks that government agencies are actually responsive to political and legal forces. This is picking a different point on the 'responsiveness to political forces' scale.
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I think the central point of this piece is sound but that it underrates how much of this dispute is about power rather than how well the bureaucracy works.
The idea that regulation grows to meet state capacity should be taken a lot more seriously than it is here, and so is the idea that bureaucrats aren't all good faith actors.
For instance, the unpopularity of Gensler's SEC isn't down to an inability to process things due to the requirements of ass covering. It's an active nuisance that sued whole financial sectors in bad faith and continued to do so after being slapped by the courts. And all to attempt an extralegal extension of its remit and play favorites for political favors.
It is true, most of the issues with regulation can only really be resolved by changing the law. But unless you want those idle hands to start making stuff to do, you also need to cull the bureaucrats.
That might not be incompatible with what Scott says. If read in a certain way (I'm not sure he's actually trying to say this), one could come to the conclusion that adding more bureaucrats will result in more red tape being unnecessarily made, but that once it's there, cutting bureaucrats won't get rid of it easily. The red tape is now in place and can be abused across bureaucracies. Once the legal bureaucracy is in place to sue over various things, then that can be used easily by remaining bureaucrats to be targeted in suing any other bureaucracies that don't have the resources to preemptively protect themselves.
Maybe on some level, we can think of this like the arguments that gun control won't work in the US, because guns are already too ubiquitous here. Trying to remove them all will just result in the people who don't comply having undue power.
A Gordian knot with a Mangioni solution!
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I don't believe in the ratchet for government regulation because there are many examples of periods of deregulation, and we are all contemporaries of Javier Milei.
I understand most people don't actually agree with me that "let people figure things out" leads to no more insane results than statism. But I know it does because I've seen it.
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