Decision is likely to lead to but good policy consequences the decisions requirements would not actually protect individual liberty as some sort of second best principle for achieving the th Amendment ‘sprotection of individual liberties at least not in the most natural way the decision will be implemented the practical on the ground response of many states to the Supreme Court’s decision will be simply to keep the regulatory boards in place and.
Then add a second layer of bureaucracy to insulate the boards from federal antitrust liability likely this will be nothing more than putting the boards under the super vision of someone sitting in a governor’s office somewhere this will mean that not only do we have an extra layer of bureaucracy involved we actually have an extra layer of bureaucracy involved that itself is subject to regulatory capture when Clark spoke so eloquently all those years back about defeating a bureaucrat in court I don’t think he was envisioning a situation where.
The Supreme Court chopped off the regulatory hydras one had to have to regulate regulators go back in its place the other most natural response that would take place is to replace active professional boards with career bureaucrats I have not seen any empirical or even anecdotal evidence to believe that this would lead to better governance more liberty or consumer protection perhaps Clark will have will say something differently during Q&A but I would guess.
That he hasn’t had much better experiences dealing with full time regulators taking away personal liberty and economic liberty has with active boards and then you know one other possibility raised by the commissioners remarks was well maybe these boards just shouldn’t violate federal antitrust law with all due respect that’s not realistic.
The composition and statutory requirement of a lot of these boards is to displace competition doing almost anything within their normal purview would be at least arguably a violation of antitrust law and so one of the two reforms I just talked about is likely to occur and will likely have no benefits to consumers or to entrepreneurs but let me add.
My let me end my gloom and doom presentation on a positive note that I think we can agree on the course decision as wrong as I think it was could lead to an important decision point certainly the court’s decision suggests that the most likely thing the states will do would be to just add more bureaucrats but that doesn’t have to be the case there is a good way going forward and again here I reemphasize that I’m only speaking for myself and not for the policies.
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