Religion and Regulation

• Publication year: 2019

Religion and Regulation

Reuben Guttman

RELIGION AND REGULATION

Reuben Guttman^*

Nobel Laureate economist Joseph Stiglitz said that one man's freedom is the right not to be injured by another's wrongdoing. Stiglitz made that comment during remarks given at the 2011 International Bar Association's Annual Convention in Dublin, Ireland. At the time, the United States—and indeed the globe—was just three years removed from a financial crisis that nearly wrecked the economy.

The debate over whether to regulate or deregulate is an ongoing dialogue; it is reasoned discourse in a liberal democracy where there is a continuous effort to balance individual freedoms against the restraints of regulation.¹ Yet, acknowledging the need to balance is not the same as maintaining that all regulation is unnecessary. Opponents of regulation seemingly believe that people and companies in a free, unregulated market will do the right thing and may be even more productive. This premise has apparently been the rationale for the Trump Administration's sweeping attack on regulation.

Just ten days after his inauguration, on January 30, 2017, the President issued an Executive Order directing that "for every new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process."² No doubt the Executive Order failed to account for the exhaustive administrative processes, and even court challenges, that typically create and temper regulation

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in the first place. Nor did the Executive Order account for the historical context of regulation; perhaps even a tragic event or loss of life leading to a rulemaking. To the contrary, the Executive Order approached regulation generally as a blight impeding man's ability to do good. Such logic ignores at least that of contemporary western legal tradition; it is a throw-back to the logic of Lochner, whose majority holding was attacked by Justice Holmes' dissent³ and later rejected by the Court through Justice Douglas' 1955 majority opinion in Williamson v. Lee Optical of Oklahoma.⁴ Curiously, this "Trumpian Lochnerism" should be antagonistic to Mr. Trump's purported evangelical base and yet it is not.

Setting aside Supreme Court logic of the past century, the western rule of law is premised on the age-old notion that even good men - or women - when left to their own devices, are prone to do bad things. We regulate to account for imperfections in the human existence; greed and jealousy, in particular, channel individual conduct across the line of propriety.

The notion that humans are imperfect and must be guided by a set of rules is fundamental to the Judeo-Christian tradition. Though the Old and New Testaments have their stories of heroes, they are also replete with tales of those who went astray. Begin with Genesis, 4:1-16, and the story of Cain and Abel, the first two children of Adam and Eve. Cain murdered Abel and was sentenced to a life of wandering. Or consider the story of Jezebel, 1 Kings 21:1-16 where Jezebel fabricated false claims about an innocent landowner who refused to sell his property to the king. It is the Judeo-Christian tradition that reminds us of man's imperfections and the need to account for them. The notion that humans in the modern world are somehow different is a notion without merit. The Book of Ecclesiastes, 1:9 reminds us that "what has been will be again, what has been done will be done again, there is nothing new under the sun."

It is, of course, not surprising that monied interests and corporate executives, who make their dollars on stock options that are taxed at lower rates than the taxes on the income of most wage earners, oppose any restraints on their method of operation. It is, though, a bit curious that these same people—using the ploy of a pro-life agenda—have created a coalition with the evangelical voters on a

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mission favoring the elimination of the very regulation seemingly supported by fundamental biblical principles.

The Fifth Commandment, "you shall not murder," can be taken to proscribe classic acts of violence, or perhaps even contemporary pharmaceutical marketing schemes that cause patients to take drugs that place their lives at peril.⁵ Or maybe the Commandment envisions a fact pattern wherein a mine owner's dereliction of safety standards, embodied in federal agency regulations, leads to the type of "mining disaster" that causes death. Consider, for example, the Mining Disaster at the Upper Big Branch Coal Mine on April 5, 2010,⁶ where twenty-nine miners perished "in a massive coal dust explosion that started as a methane ignition."⁷ A Department of Labor Report on the tragedy placed the mine owner's conduct into context:

The investigation... revealed multiple examples of systematic, intentional, and aggressive efforts by PCC/Massey to avoid compliance with safety and health standards, and to thwart detection of that non-compliance by federal and state regulators.

The Upper Big Branch Mining Disaster is not an aberration when it comes to finding examples of corporate wrongdoing meriting both regulation and compliance enforcement. Countless lives have been lost because the asbestos industry concealed the hazards of a substance that is a direct cause of mesothelioma, a deadly cancer.⁸ One could also look at the tobacco industry, which for years concealed the hazards of cigarettes while continuing to market them to vulnerable populations.⁹

As scripture also makes clear, regulation is not just...