Regulate or Permit?

As someone who has worked in tech for nearly my entire career, it’s natural for me to think a lot about innovation. Innovation – or at least the aspiration to innovate – runs in the veins of any successful technology company. It’s what leads to breakthrough growth, opens up new markets, provides new answers to old problems, and makes the leading companies wildly successful.

But here’s the thing: we lawyers aren’t the most comfortable around innovation.  We’re trained to respect precedent.  It’s a principle that’s great for stability, but it doesn’t lend to our being drivers of rapid change.  And that’s OK to a point – the role of the lawyers is, in many cases, to be the voice of caution in the room, the one highlighting the potential risks and problems that shiny innovations can leave in their wake.

Unfortunately, our profession is also possessed of another tendency that’s actively harmful to innovation – our regulatory bias.  Because we are trained in drafting and interpreting rules, we lawyers have a tendency toward addressing problems and uncertainties by creating rules. 1

This regulatory bias, in combination with our backward-looking emphasis on risks, acts as a very real brake on innovation.  This manifests itself in the widespread favoring by lawyers of what’s known as the “precautionary principle:” the idea that the best way to handle changes and new developments is carefully and cautiously, with rules and regulations governing the acceptable parameters of such changes.

The trouble with the regulatory bias is that it offers only the illusion of control.  Prophylactic regulation of new technology almost always prevents the benefits of such technology from being fully realized.  It slows things down.  Sometimes that’s OK.  It can be a useful brake on concepts that are getting ahead of themselves.  But such regulation frequently leads to unforeseen, negative consequences – consequences which are sometimes far more significant than the theoretical harm the regulation was intended to prevent. 2

But as Adam Thierer argues persuasively in his book Permissionless Innovation, there’s an alternate model to the lawyerly reflex to regulate new technology. Under Thierer’s model, the default is instead to be hands-off, letting things develop with a minimum of regulation – at least until (and unless) such regulation proves to be necessary. This model requires that lawyers do something that may feel a bit unnatural, which is step back from their role as rule-makers and wait for firm evidence that rules are needed before restricting new technology.

Permissionless innovation requires acknowledging the hard truth behind regulation: no matter how noble its ends, it is often wholly ineffective – and it often produces unanticipated consequences to boot. 3 Yes, sometimes it succeeds. And sometimes we are willing to accept a fair dose of imperfection and high cost because the choice of not regulating is even worse.

However, this is rarely the case with new innovations. Are there risks to holding off and letting innovation flourish, free of regulation?  Of course.  But it defies the history of regulation to assume that regulators can deftly avoid those risks, optimize the benefits of innovation, and also keep any unanticipated consequences from popping up.

And to bring this full circle to the subject of this blog – permissionless innovation is a mindset that can be applied to many areas even outside of technology. As I’ve argued many times before, the sprawling pages of lawyer advertising regulation do far more harm than good. In attempting to address any number of potential marketing techniques and theoretical harms, the rules only succeed in keeping consumers uninformed about legal services. The vast majority of actual consumer harm from lawyer advertising could be addressed through a simple rule prohibiting false and deceptive advertising.

My railing against precautionary regulation isn’t a political point, or an objection on principle to ALL government regulation, which is often necessary and sometimes effective. It’s simply a reminder that we as lawyers, instead of rushing in to propose new rules, should regularly pause and reflect whether the better course isn’t to simply let things play out.

Because a great deal of the time, it’s going to be.

Notes:

  1. If you’ve even been in a fantasy football league run by lawyers, you’ll know what I mean.
  2. There are many, many examples, but this article from the Freakonomics guys is a good place to start.
  3. These realities are documented exhaustively and persuasively by Yale law professor Peter Schuck in his recent book, Why Government Fails So Often: And How It Can Do Better.

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