Jacobsen: If a regulation is worth having, it's worth enforcing - Albuquerque Journal

Jacobsen: If a regulation is worth having, it’s worth enforcing

Joel Jacobsen

Twenty-four years ago, Turkey’s northwest was struck by a 7.4 magnitude earthquake. More than 17,000 people died, mostly from collapsing buildings. In the aftermath, Turkey enacted strict building codes to ensure new construction would withstand future quakes.

Following the even-stronger Feb. 6 earthquake, many news outlets reported that the tough new regulations had been widely disregarded. Deeply distressing evidence supports the reporting. The BBC obtained video of an apartment building in the moment of its collapse. Other buildings around it remained standing. The collapsing building was brand new, completed just last year. The BBC also showed before-and-after shots of two other apartment buildings, both dating from 2019, both likewise reduced to rubble.

An academic expert in emergency planning and management spelled out the obvious: “We can conclude out of the thousands of buildings that collapsed, almost all of them don’t stand up to any reasonably expected earthquake construction code.”

Market forces aren’t effective at protecting tenants from earthquake risk. That’s true all across the world. A sobering Los Angeles Times report described the thousands of buildings in California, built before 1971, that share the same basic construction flaws of many of the pancaked Turkish buildings. Those California buildings are seismic time-bombs. But if landlords found it difficult to rent them out, they would have been retrofitted or replaced long ago.

Market forces don’t work because prospective tenants lack information. Most of us have no way to tell whether the buildings we enter are sound or not. In Turkey as elsewhere, consumers’ ignorance was exploited by the unscrupulous. Advertisements for the brand new building in the BBC video reportedly boasted that it was built “in compliance with the latest earthquake regulations.” How could renters have evaluated the truthfulness of that claim?

When market forces don’t protect the public from foreseeable harm, regulation is necessary. The Turkish tragedy is proof of that axiom, but also illustrates, by negative example, some of the reasons regulations can be so irksome.

Three questions ought to be asked about any regulation. Does it address a genuine problem? Does it solve or at least ameliorate the problem? Does it do so without imposing grossly disproportionate costs?

Assuming all three conditions are met, it becomes essential that the power of the state is used with sufficient rigor to ensure compliance. If a regulation is worth having, it’s worth enforcing.

In the 19th century, American courts referred to the executive branch’s authority generally as the “police power” of the state. That legal usage has long since fallen out of favor but it captured two important points. First, regulations, to be meaningful, must always be backed by a credible threat of punitive action, something that can be compared to what cops do to crooks. Also: the police are a regulatory agency.

The big tech companies sometimes give the impression that disregarding legal obligations is part of their business plan. The famous motto might be updated to “move fast and break the law.” A quick internet search for “Facebook fines” or “Google fines” brings up story after story from around the globe. Those companies, rolling in advertising dough, seem to view fines as overhead.

As with Turkey, so with Silicon Valley. It does no good to have wise laws on the books if they don’t alter the behavior of people in the real world.

Many reports out of Turkey explain the widespread non-enforcement of building codes as a product of pervasive corruption. Assuming the reports are true, they buttress the conclusion of a 2011 “Nature” article that found “83% of all deaths from building collapse in earthquakes over the past 30 years occurred in countries that are anomalously corrupt.”

Among its many other socially-corrosive effects, corruption gives a competitive advantage to the business world’s worst actors. If the law’s enforcers can be bought off, honest business people will always be undersold by unscrupulous competitors who cut costs by cutting corners.

The strongest protection against corruption is a governmental workforce heavily incentivized to make no exceptions. Which translates into inflexibility at the point of contact with the public. The very thing that makes dealing with the bureaucracy such a pain is also its greatest strength.

It’s possible for a governmental agency to be rigorous without being rigid. A well-managed agency will overlook inconsequential minor irregularities so long as the law’s overarching purpose is achieved. In a badly-run agency, enforcement becomes its own goal.

Excessive inflexibility in a regulatory body is maddening, imposing needless costs on the regulated. But as the Turkish disaster reminds us, it’s still a million times better than a system that swings too far the other way, with so much flexibility that corruption becomes routine.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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