Stephen Gottlieb: Why Law?

Feb 13, 2018

Governments, including democracies, make laws and rules. Lots of folk spend lots of time telling us we don’t need regulation, or at least we need lots less. Laws and rules are restraints on our freedom to do what we want. And most people are honest. So why do we need law?

Let me tell you about the very much beloved John DeMatteo who grew up living in an apartment in Albany Law School and then took care of maintenance there for decades. Our gymnasium is named for John. He was always ready to lend a helping hand, often going way out of his way to help out. He hired students for the maintenance staff, giving them ways to earn the money they needed to get through their schooling. During breaks, especially the summer break, John used to put out an urn of coffee strictly on the honor system. Put in a quarter and take a cup. No one was watching. What John told me was fascinating. He never had any problem with people helping themselves to free coffee. I’m sure some people must have paid a little later when they got that quarter. But they were honest. However, and this is a big but, every summer someone figured out where he kept the money. It only took one. John still put the urns out but he told me that it barely paid his expenses. The vast majority of us were honest, but one dishonest person changed everything.

Law is for the few people whose unscrupulousness can make life miserable. I’ve heard a Harvard dean claim that a code of professionalism is better than law because scientists will follow it. But if there is any significant profit to be made from being unscrupulous, someone will follow that path too. Business tells us that most businessmen are honest. I’m sure that’s true. But how many unscrupulous business people does it take to make life miserable for the rest of us – especially when the unscrupulous, who cut corners that endanger the rest of us, can brag about how cheap their stuff is. Cheap indeed. And that puts pressure on everyone else. It puts pressure on other businesses, especially when it’s hard to find out who’s doing what. How easy is it for us to know that the workers who make our beloved running shoes are treated well? Or to understand the medical implications of all the stuff that goes into our food. Competition isn’t a level playing field. Many regulations are appreciated by business because they squeeze out the unscrupulous and make it easier to treat customers well and still stay in business. Generic chants about regulation are just sloppy reasoning that hide serious issues.

So when Trump and his cabinet officers tell you they’re going to weaken or eliminate regulations, does that mean everything is going right so we can trust what people are doing? Or does it mean a green light for those who are going to take advantage of non-enforcement to do us harm? Most people want to treat others well, but the few that don’t care will make life difficult for the rest of us. Sloppy language covers serious mistakes.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School. A widely recognized constitutional scholar, he has served on the New York Civil Liberties Union board, the New York Advisory Committee to the U.S. Civil Rights Commission and was a US Peace Corps Volunteer in Iran. His latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics.

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