Flavors of Freedom

There is a book review in the latest issue of the Washington Monthly of “No Freedom Without Regulation: The Hidden Lesson of the Subprime Crisis.”  It was written by a Professor Singer of Harvard Law School, and in it, he considers a type of freedom that gets short shrift from the various special interests who are constantly insisting that any and all government regulation constrains our liberties.

I found this passage illuminating:

When the state sets minimum standards of safety and transparency for the manufacture and sale of consumer products, it affords me the freedom to buy a toaster oven without first hiring a lawyer to read the fine print and an electrician to look over the specs to make sure it won’t catch on fire. Other restrictions protect us from negative externalities. Building codes may limit my neighbor’s ability to contract for the construction of a house with cheap material and bad wiring, but it protects my house from the fire likely to erupt in his.

As I have noted in previous posts, I’m grateful for the Food and Drug Administration that relieves me of the need to test that chicken I bought at Kroger for e coli. (Before the recent news from Flint, Michigan, I used to be more grateful for the EPA’s monitoring of water quality–now, I’d like to see those regulations stiffened up a bit…)

The ongoing debate about government regulatory activity displays all the deficiencies of American policy arguments generally: it oversimplifies, assumes an “either/or” answer, and focuses on the wrong questions.

Can regulation be too stifling? Can a “nanny-state” approach impose unnecessary costs on businesses and consumers? Sure.

Can the lack of appropriate regulation endanger innocent people, and impose additional costs on those same businesses and consumers? You betcha!

The questions we should be addressing are the “how” questions: is this particular regulation necessary? Is it “narrowly tailored” to accomplish its goal? Does it make sense from a cost-benefit standpoint?

We’ll still disagree, still argue about the extent and substance of regulatory activity. But at least we’d be arguing about the right things.


  1. The Republicans insist that we be free to consume worthless drugs, drink dirty water, eat dirty food, breath filthy air. Some freedom they want for us. I prefer to have our government regulate these things. Thanks for the topic Prof.

  2. I hope you are mending painlessly and perfectly. I admire your dedication to this blog in spite of your accident. This was a great piece this am. I have never lived in a state that complains more about government and taxes. I for one love the fact we have safety regulations. I only wish we had more inspectors to ensure our water, food, bridges, roads, tunnels, tracks, etc.

  3. This legislature and Pence forged more government to control women and the exercise of their roghts to control their bodies and healthcare. Less government is their mantra only so long as it benefits their donors.

  4. “Can the lack of appropriate regulation endanger innocent people, and impose additional costs on those same businesses and consumers? You betcha!”

    But; the appropriate regulations to protect consumers from harmful pollution are allowed to be ignored on the national level due to elected officials permitting businesses to reap higher profits rather than protect consumers. Locally, the biggest polluter is IPALCO. The cost of ignoring current regulations is passed on to consumers in the form of higher medical expenses due to the severe pollution in it’s many forms – think water in Flint, Michigan. Or go back to the 1970’s when Kerr-McGee had virtually no regulations regarding their use of or protection from handling plutonium or mining of uranium. What good are regulations when they are allowed to be ignored? Do the math! And this as always is another case of FOLLOW THE MONEY.

    I don’t know of anyone who has not been met with incompetence when attempting to deal with resolving a simple problem regarding the quality of goods or services. The incompetence is a money-saving factor in business due to lack of proper job training or oversight of employee competence. Has anyone tried to deal with Bright House Cable to resolve a simple problem regarding their service? Businesses will not regulate themselves if it means money out of their pockets. Almost weekly we see recalls of millions of goods in all forms, from baby pacifiers to SUVs, which either had no regulations to conform to or they were ignored to save the manufacturer money. But, how much of the blame can be laid to incompetence of employees, which is, or should be, part of the regulation factor? Too often this results in loss of lives.

  5. I have Libertarians in my extended family and just others who are rabid about the so called Nanny State. Some how they think the corporations just volunteer to adhere to rules and regulations governing their activity. They think they can actually seek financial relief from a corporation with minimal effort and the corporation will pay for the damages.

    I suppose the latest poster child concerning regulation is Volkswagen and how they tried to evade regulations. There is also the case of Flint Michigan which seems to be stuck in the muck.

    Thanks to fracking, Oklahoma and Texas are now as earthquake-prone as California. A decade ago, an Oklahoman could count the number of noticeable quakes on her fingers. “In this past year, we had over 900,” says USGS seismic hazard expert Mark Petersen. “So the rates have surged.”

    Petersen says induced quakes have become more frequent because there’s more wastewater from oil and gas operations around the country that has to be disposed of. Companies pump it down into underground wells, and sometimes that water raises pressure on underground faults that then slip and cause small quakes.

  6. I agree with you, Professor Kennedy! Regulations are necessary for our quality of life.

  7. The Republicans have undercut the regulations that are to be enforced by the EPA, USDA and FDA by reducing the funding for those agencies to be able to carry out their duties. In addition, the heads of those agencies have been willing to accept bribes from corporations in order to publish false test results so their products can be deemed safe.

    I am not able to comprehend the greed and selfishness of a corporate hierarchy that causes them to be willing to destroy the future for their very own descendents, just for the pursuit of profit. They won’t be able to protect their families from the ultimate destruction they are causing.

  8. I have long believed that the need for regulation is highly negatively correlated with the level of ethical values and moral compunction in our corporations.

  9. The political spin is never about the dangers inherent in unregulated food, water, products; it’s always couched in the context of how it stifles job creation and start-ups. It is also said to impact small businesses more than larger ones. Who wants to trust the manufacturers and food processors, who are complaining about the cost of regulations, to provide adequate oversight of their processes, products and wastes, without the “stick” of regulations that makes doing the right things less costly than not?

    Small businesses create jobs. They and the regulators need to discuss how they can comply and remain viable; larger businesses may need to spend bonus money on compliance.

  10. I think the Takata airbag controversy spells out both how dangerous corporations can be and how hamstringed our government agencies have become. NTHSA took years to get to the point where it could enforce recalls of airbags that were killing people.

    Writing of regulations after a bill is passed and signed into law is far more complicated than most people imagine. In an era when government is in the hands of free market lovers, regulations water down the intent of the legislation. The public comment period allows them to focus on the comments from the “public they like,” to the detriment of the rules. In those eras when government is not in those hands, regulations are generally challenged in the DC Court of Appeals, which has been dominated by Republican appointees in recent decades.

    In essence, if they can’t stop regulations by defunding enforcement as they have done with both FDA and EPA, they still have another path to small government. Since so few people are even aware of the regulation process, not many ever speak in their own or the public’s interest.

  11. It’s the same old thing. 150 years ago we had to fight a war to prevent them from literally owning human beings. The question so why we the reasonable people have been unable or unwilling to teach the dumb people to ignore the propaganda of the reptiles.

  12. Martha: Re: the Indiana governor and legislature. I received a propaganda “newsletter” from Bosma in which he boasted about all of their accomplishments – transportation, education. It did not include a single reference to the social engineering that seems to occupy most of their work hours. It is clear that the legislature’s focus has been and continues to be telling others how to be better republicans and denying their right to make their own decisions.

    Sadly, most Hoosiers seem to like that.

  13. It isn’t until you know someone who has been irreparably harmed by a product that ultimately gets recalled and becomes the object of product liability lawsuits that you appreciate the importance of simple governmental safety oversight. Nowhere is this more necessary than the Food and Drug Administration because the public has no way to vet the adequacy and relevance of testing of drugs and devices. As Sheila points out, we aren’t all engineers and electricians. We also aren’t all doctors, but even if we were, we aren’t privy to the studies that were submitted to support marketing of drugs and medical devices.

    Every time I see commercials for Xarelto causing bleeding on the brain competing with commercials depicting Arnold Palmer and other celebrities hawking the drug, I wonder how much testing was required before this drug was allowed to be sold to the public, whether the testing was sufficiently designed to disclose this problem, whether the adverse effects were fully disclosed and why this problem became sufficiently widespread after the drug hit the market that attorneys are advertising for clients. This is just one example and it causes me to wonder whether new drugs are really fully tested on the public.

    I do know of physicians who won’t prescribe a new drug or use a new device until it’s been on the market for awhile, and this is the reason, so keep this in mind when the commercials advise you to ask your doctor about a drug. I also question the wisdom and ethics of direct marketing of drugs to consumers. While they are listing the possible adverse and side effects, they usually show some happy user dancing around because her cholesterol numbers are down or a cutesy cartoon of your formerly irritated colon watching a ball game or watching fish in an aquarium.

  14. Natacha; I have mentioned this before but it bears repeating today. My 16 year old grandson has a severe alienation disorder which is similar to autism, Aspberger’s (sp?) syndrome, etc., but he is super smart with all high grades being home schooled It was caused by his mother being prescribed Terbutaline to prevent premature labor. It wasn’t till the mothers began developing heart problems that medical researchers began testing the effects of Terbutaline on them; at the time it was only approved by the FDA for treatment of asthma. Also used by vets as birth control in dogs. Only the past few years have brought studies regarding effects of the drug on the fetus and they quickly found the results mentioned above. Why doctors thought to prescribe an asthma medication (and canine birth control) to prevent premature births goes beyond FDA regulations into the realm of questionable medical practice.

  15. Our regulations cannot keep up with e colli , in any way. Health department samplers do that constantly, same as growing cultures of what’s in a single patient’s throat that is causing inflammation or another tone change — even in a tooth. We rely now on computer-generated images…but have to look at the right spectrograph. Last I checked, the numbers of women law, regulation, rules, policies ‘according to State and Federal […], were 0 at the Harvard’s library foundations of student works from 1636 to whenever was born the first woman Harvard College of Arts and Sciences authoress. Not graduate scholar or other employee. All in all, it’s books that can make better walls between neighbors than their contents.

    Three days on one 95-person crew, all the work had to be cleaning house, getting in supplies, because Indiana had no regulations where Federal lawmakers had de-regulated the speedy Federal codes etc. That thereby required Indiana lawmakers to grandfather in a pre-1980 code.It took three days for legislators to read into laws of the legislators a clearly dated and inapplicable regulations. In that amount of time, what kind of interest was accruing on printers’ debts alone — way more than e coli from Tyson or another chicken farm supplier. Lilly workers do not grow opium plants in Indiana, but use that extract in the billions of bacterium sized amounts….Since there are so many more of them, let’s hope your health department chemists are checking Indiana poultry, dairy, hospital sanitation lines, than Kroger’s hook ups.

  16. To JoAnn Green in re: Terbutaline-
    So I looked it up and found this comprehensive report on Terbutaline published in 2011 by the NIH. To manage my healthcare, I always Google newly prescribed medications. Twice in my lifetime I have been directed by a physician to take a medication that was NOT indicated for the particular treatment. Doctors get bombarded, entertained and/or misled by pharmaceutical corporations. What else is new?
    I’m now taking 7 prescription pills each day. I have Googled them all and am satisfied that I need to take them although I will be talking to the doctor who prescribed the most recent one that after two months of dosing it is not helping with the critical condition (angina pectoris) for which it was prescribed. Maybe the doctor will want to prescribe a different drug or increase the current dosage.

  17. Of the many lies told to sell us particular politicians the biggest one IMO is the connection between politicians and jobs. Politicians have little to do with job creation either plus or minus. In fact corporations have little to do with job creation either. The good fortune of innovation is the biggest factor in job creation. When innovation allows consumers to fill a previously unmet need of theirs they create jobs if they can afford it.

    No magic.

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