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Exploring “First Principles” for Optimal Regulation

In my fifteen years as a law professor, I’ve become convinced that there’s a hole in the law school curriculum.  When it comes to regulation, we focus intently on the process of regulating and the interpretation of rules (see, e.g., typical administrative law and “leg/reg” courses), but we rarely teach students what, as a matter of substance, distinguishes a good regulation from a bad one.  That’s unfortunate, because lawyers often take the lead in crafting regulatory approaches. 

In the fall of 2017, I published a book seeking to fill this hole.  That book, How to Regulate: A Guide for Policymakers, is the inspiration for a symposium that will occur this Friday (Feb. 8) at the University of Missouri Law School.

The symposium, entitled Protecting the Public While Fostering Innovation and Entrepreneurship: First Principles for Optimal Regulation, will bring together policymakers and regulatory scholars who will go back to basics. Participants will consider two primary questions:

(1) How, as a substantive matter, should regulation be structured in particular areas? (Specifically, what regulatory approaches would be most likely to forbid the bad while chilling as little of the good as possible and while keeping administrative costs in check? In other words, what rules would minimize the sum of error and decision costs?), and

(2) What procedures would be most likely to generate such optimal rules?


The symposium webpage includes the schedule for the day (along with a button to Livestream the event), but here’s a quick overview.

I’ll set the stage by discussing the challenge policymakers face in trying to accomplish three goals simultaneously: ban bad instances of behavior, refrain from chilling good ones, and keep rules simple enough to be administrable.

We’ll then hear from a panel of experts about the principles that would best balance those competing concerns in their areas of expertise. Specifically:

Hopefully, we can identify some common threads among the substantive principles that should guide effective regulation in these disparate areas

Before we turn to consider regulatory procedures, we will hear from our keynote speaker, Commissioner Hester Peirce of the SEC. As The Economist recently reported, Commissioner Peirce has been making waves with her speeches, many of which have gone back to basics and asked why the government is intervening and whether it’s doing so in an optimal fashion.

Following Commissioner Peirce’s address, we will hear from the following panelists about how regulatory procedures should be structured in order to generate substantively optimal rules:

As you can see, this Friday is going to be a great day at Mizzou Law. If you’re close enough to join us in person, please come. Otherwise, please join us via Livestream.