What Is Government Failure?

I. Introduction

In Capitalism and Freedom, Milton Friedman explained why “the scope of the government must be limited.”¹1.Milton Friedman, Capitalism and Freedom 2 (1962). “The existence of a free market,” Friedman wrote, “does not . . . eliminate the need for government. On the contrary, government is essential both as a forum for determining the ‘rules of the game’ and as an umpire to interpret and enforce the rules decided on. What the market does is . . . minimize the extent to which the government need participate directly in the game.”²2.Id. at 15. Friedman firmly believed that it was not “an accident that so many . . . government reforms [go] awry.”³3.Id. at 196. The “central defect” of regulatory measures, he argued, is that “they seek through government to force people to act against their own immediate interests in order to promote a supposedly general interest.”⁴4.Id. Under this thesis, the government is likely to fail whenever it interferes with the freedom of choice. Thus, since “pretty much all law consists in forbidding [people] to do some things that they want to do,”⁵5.Adkins v. Children’s Hospital, 261 U.S. 525, 568 (1923) (Holmes, J., dissenting). the failure is inevitable.

The concept of “government failure” is somewhat peculiar. People and institutions may fail in their actions, but they may also fail by not taking action. The phrase “government failure,” however, as it is commonly used, connotes ineffective government action, implying that less government action is necessarily better.⁶6.See generally Peter L. Kahn, The Politics of Unregulation: Public Choice and Limits on Government, 75 Cornell L. Rev. 280 (1990). In Milton Friedman’s words: “[T]he government solution to a problem is usually as bad as the problem and very often makes the problem worse.”⁷7.Milton Friedman, An Economist’s Protest 6 (1975). See also Milton Friedman, Why Government is The Problem (1993).

The phrase “government failure” emerged as a term art is in the 1960s with the rise of intellectual and political criticism of regulation.⁸8.See, e.g., Roland N. McKean, The Unseen Hand in Government, 55 Am. Econ. Rev. 496 (1965); Charles Wolf, Jr., A Theory of Nonmarket Failure: Framework for Implementation Analysis, 22 J. L. & Econ. 107 (1979). See also Barry Goldwater, Consciences Of A Conservative (1960) (introducing a general critique of government regulation). Building on the premise that the only legitimate rationale for government regulation is market failure,⁹9.See Francis M. Bator, The Anatomy of Market Failure, 72 Q.J. Econ. 351 (1958). Executive Order 12,866 states that “material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people” may establish a “compelling public need” for regulation. Exec. Order No. 12,866 § 1. economists advanced new theories explaining why government interventions in markets are costly and tend to fail. This line of literature supposedly established the theoretical foundations of the phrase “government failure.”

Despite their growing popularity, the phrase “government failure” and its relatives (e.g., “government breakdown,” “regulatory failure”) do not have any clear meaning.¹⁰10.See generally Cary Coglianese ed., Regulatory Breakdown: The Crisis Of Confidence In U.S. Regulation (2012). Some use these phrases to describe government intervention in the private domain that results in undesirable outcomes. For others, these phrases may also mean lack of or inadequate government regulation. Yet, many identify a government failure in any perceived societal problem. Thus, people who use the phrase “government failure” often disagree with each other about what a failure means. Neither the prevalence of studies of government failures nor the use of the phrase “government failure” necessarily says much about the standards of “failure.”

This essay intends to clarify the general meaning of the term “government failure” by focusing on a few properties of failures.

[Figure 1: omitted]¹¹11.For the methodology and its limitations, see Jean-Baptiste Michel et al., Quantitative Analysis of Culture Using Millions of Digitized Books, 331 Sci. 176 (2011).

II. Inaction as a Failure

Can government inaction ever be a failure? A byproduct of the controversy over regulation is an artificial distinction between action and inaction.¹²12.The analysis of the distinction is of course rather old. For example, Thomas Aquinas distinguished between sins of commission and sins of omission, arguing that the latter are “less grievous” than sins of commission, but stressed that inaction may constitute a sin. Thomas Aquinas, 1 The Summa Theologica 316-20 (Fathers of the English Dominican Province trans., 1981). On one side of the controversy, people see over-regulation. On the opposite side, people observe insufficient regulatory safeguards―too little regulatory action or frequent inaction.¹³13.See generally Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260 (2006). These opposite perspectives delineate the approaches to government inaction. Some posit that inaction cannot be scrutinized, let alone considered a failure,¹⁴14.See, e.g., Heckler v. Chaney, 470 U.S. 821, 831-32 (1985): The reasons for (the general unsuitability for judicial review of agency decisions to refuse enforcement) are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. (T)he agency must . . . assess whether a violation has occurred, . . . whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and (other factors). . . . In addition(,) . . . when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. . . . while others maintain that similar rules should apply to action and inaction.¹⁵15.See, e.g., Bagley & Revesz, supra note 35.

Superficially, both positions may appear plausible. Indeed, both positions have strong expressions in the case law of the U.S. Supreme Court,¹⁶16.See, e.g., DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989) (holding in a 6-3 decision that a local social service worker’s failure to prevent child abuse did not violate the Due Process Clause although the social worker “had reason to believe” abuse was occurring.); Massachusetts v. EPA, 549 U.S. 497 (2007) (holding in a 5-4 decision that the EPA’s denial of a petition for rule making was “arbitrary, capricious, or otherwise not in accordance with law”); Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009) (holding in a 5-4 decision that a judge’s failure to recuse, when a “probability of actual bias” exists, may make him subject to disqualification). and in the academic literature.¹⁷17.See, e.g., Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004); William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 Mich. L. Rev. 67 (1988); Kahn, supra note 8; Peter H.A. Lehner, Judicial Review of Administrative Inaction, 83 Colum. L. Rev. 627 (1983); Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689 (1990); Glen Stazsewski, The Federal Inaction Commission, 59 Emory L.J. 369 (2009); David A. Strauss, Due Process, Government Inaction, and Private Wrongs, 1989 Sup. Ct. Rev. 53 (1989); Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653 (1985). Several legal standards—such as standing,¹⁸18.See, e.g., Allen v. Wright, 468 U.S. 737 (1984) (denying standing to petitioners who sought to challenge agency inaction, specifically the agency’s failure to adopt standards for denying tax exemptions from racially segregated private schools); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (denying standing to petitioners that sought to challenge agency inaction—the Secretary of Interior’s refusal to enforce certain requirements of the Endangered Species Act); Massachusetts v. EPA, 549 U.S. 497 (granting standing to petitioners that that sought to challenge agency inaction— The EPA’s refusal to regulate greenhouse gas emissions). the interpretation of legislative inaction,¹⁹19.See Eskridge, supra note 37. Justice Scalia articulated the strongest opposition against giving any meaning to legislative inaction. See, e.g., Johnson v. Transp. Agency, Santa Clara Cnty., Cal., 480 U.S. 616, 672 (1987) (Scalia, J., dissenting) (“vindication by congressional inaction is a canard”). and the un-reviewability presumption²⁰20.The unreviewability presumption supposedly shields agencies’ inaction from judicial review. See Heckler v. Chaney, 470 U.S. 821, 832-33 (1985) (holding that an administrative agency’s decision not to take action is “presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”) In Massachusetts v. EPA, the Court clarified—effectively narrowed—the presumption, distinguishing rulemaking denials from decisions not to enforce and holding that the former are subject to judicial review. Massachusetts v. EPA, 549 U.S. 497 (2007). — frequently serve as tools for dismissing critique of inaction.

But distinction is artificial and analytically flawed. Values and other preferences often shape views regarding its relevance. For example, consider action and inaction of individuals. Assume an individual can take an action that would prolong her life, but some individuals do not take such action. Should the state require action? In Cruzan v. Missouri, Justice Antonin Scalia was willing to “acknowledge that the distinction between action and inaction has some bearing.”²¹21.Cruzan by Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 296 (1990). “It would not make much sense”, he explained, “to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing.”²²22.Id. Justice Scalia, therefore, argued that the distinction between action and inaction might be utterly irrelevant.²³23.Id. at 296-97.

In National Federation of Independent Business v. Sebelius (“NFIB”), the Court considered a similar issue: the validity of the so-called “individual mandate,” a minimum coverage of health insurance policy. Writing for the Court, Chief Justice John Roberts declared that “[t]o an economist, perhaps, there is no difference between activity and inactivity[, but] the distinction between doing something and not doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.”²⁴24.National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2589 (2012). In NFIB, Justice Scalia agreed with the Chief Justice on this point.

Moreover, government inaction means, among other things, accommodation of externalities. The underlying logic of exempting government inaction from scrutiny is that “government actions can violate the Constitution, but government failures to act against private wrongdoers cannot.”²⁵25.David A. Strauss, Due Process, Government Inaction, and Private Wrongs, 1989 Sup. Ct. Rev. 53, 53 (1989). See also David A. Strauss, Why Was Lochner Wrong?, 70 U. Chi. L. Rev. 373 (2003). Under this premise, for example, environmental regulation violates polluters’ constitutional rights, while government inaction on environmental issues does not violate the rights of those affected by pollution. Similarly, gun control measures abridge Second Amendment rights, but government inaction concerning gun control does not abridge victims’ rights. Or, restrictions on tobacco sales infringe constitutional rights of businesses, whereas inaction on tobacco does not infringe the public rights.²⁶26.See, e.g., Walgreen Co. v. San Francisco, 185 Cal. App. 4th 424 (2010) (addressing San Francisco’s ban on sales of tobacco products in pharmacies). And so on.

In sum, the distinction between action and inaction is often a matter of framing, and cannot be depicted as substantive. When applied to the government, the distinction narrows the government’s fundamental duty to “restrain men from injuring one another.”²⁷27.See, e.g., Thomas Jefferson, Inaugural Address, 10 Annals Of Cong. 763, 765 (1801) (“(A) wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”). If government inaction cannot constitute a failure, than people are free to harm each other, including by imposing one’s costs on society.

III. Imperfection as a Failure

What degree of imperfection defines a government failure? Thomas Aquinas taught believers that “[t]o sin is to fall short of a perfect action”²⁸28.Aquinas, supra note 14, at 138. and that “sinning is . . . a deviation from that rectitude which an act ought to have.”²⁹29.Id. at 312. Today, people understand that the pursuit of perfection is impractical.³⁰30.See, e.g., Herbert A. Simon, Models of Man 198 (1957) (“The capacity of the human mind for formulating and solving complex problems is very small compared with the size of the problems whose solution is required for objectively rational behavior in the real world.”). For example, in corporate law, fiduciary duties and the business judgment rule emphasize that officers and directors can make mistakes.³¹31.See, e.g., In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996); In re Citigroup Inc. Shareholder Derivative Litigation, 964 A.2d 106 (Del. Ch. 2009); Stone v. Ritter, 911 A.2d 362 (Del. 2006); In re Walt Disney Co. Derivative Litigation, 907 A.2d 693 (Del. Ch. 2005); Brehm v. Eisner, 906 A.2d 27 (Del. 2006). Yet, people sometimes perceive deviations of public policies from ideal norms or theoretical solutions as government failures. Such perceptions, the so-called nirvana fallacy,³²32.Harold Demsetz, Information and Inefficiency: Another Viewpoint, 12 J. L. & Econ. 1, 1 (1969) (criticizing the “nirvana approach” to public policy). are common among both critics and advocates of regulation. In effect, they reflect unrealistic demands for perfection in the spirit of Thomas Aquinas.³³33.See Barak Orbach, What Is Regulation?, 30 Yale J. Reg. Online 1, 6 (2012) (defining “regulation” as “state intervention in the private domain, which is a byproduct of our imperfect reality and human limitations.”).

In this spirit, many critics of regulation focus on ideal norms of liberty and freedom, and believe that most regulatory measures are imperfect and fail society; that is, “government is the problem.”³⁴34.President Ronald Reagan’s Inaugural Address, 127 Cong. Rec. 715, 716 (1981). Likewise but with different values, many advocates of regulation are troubled by “problems”—imperfections in our world—and believe that society can address such problems with regulations.

The references to the invisible hand and the precautionary principle as plausible guidelines for public policies illustrate these perspectives. Invisible hand arguments ordinarily propose that markets are generally efficient and government actions burden and disrupt them.³⁵35.For discussions of several aspects of the invisible hand thesis see Barak Orbach, Invisible Lawmaking, 79 U. Chi. L. Rev. Dialogue 1 (2012); Barak Orbach, Regulation: Why And How The State Regulates 144-55 (2012); Adrian Vermeule, The Invisible Hand in Legal and Political Theory, 96 Va. L. Rev. 1416 (2010). The precautionary principle prescribes that activities that pose certain risks to the environment or human lives should be banned until safety is established.³⁶36.See, e.g., Douglas A. Kysar, Regulating From Nowhere: Environmental Law and the Search for Objectivity (2010). San Francisco supposedly expressly endorsed the Precautionary Principle. See San Francisco, Resolution No. 129–03 (Mar. 13, 2003); San Francisco Environment Code and Precautionary Principle Policy, Ordinance No. 171–03 (July 3, 2003). Similarly, the 1957 Delaney Clause effectively adopted this principle. The Delaney Clause banned all food additives having the potential of “induc(ing) cancer in man or animal.” 21 U.S.C. § 348(c)(3). See Less v. Reilly, 968 F.2d 985 (9th Cir. 1992). Both concepts offer reliance on simplistic frameworks that never have proved themselves, or more precisely, have proved their ineffectiveness.³⁷37.For the invisible hand see, for example, The Financial Crisis and the Role of Federal Regulators: Hearing Before the H. Comm. on Gov’t Oversight and Reform, 110th Cong. 17 (Oct. 23, 2008) (testimony of Alan Greenspan, Former Chairman of the Federal Reserve) (stating that “those of us who have looked to the self-interest of lending institutions to protect shareholders’ equity (myself included) are in a state of shocked disbelief. . . . The whole intellectual edifice . . . collapsed.”); Joseph Stiglitz, Regulation and Failure, in New Perspectives On Regulation 11, 17-18 (David Moss & John Cisternino eds., 2009) (“the primary reason for the government failure (that led to the Great Recession) was the belief that markets do not fail, that unfettered markets would lead to efficient outcomes, and that government intervention would simply gum up the works.”); Henry T.C. Hu, Efficient Markets and the Law: A Predictable Past and Uncertain Future, 4 Ann. Rev. Fin. Econ. 179 (2012); Carmen M. Reinhart & Kenneth Rogoff, This Time is Different: Eight Centuries of Financial Folly (2009); Steven G. Medema, The Hesitant Hand (2009); Robert J. Shiller, Irrational Exuberance (2d ed. 2005). For the precautionary principle see generally Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005); Cass Sunstein, Irreversibility, 9 Law, Probability & Risk 227 (2010). Proponents of these concepts will always identify government failures. Under invisible hand theories, government regulation is unwarranted intervention in markets. Under the precautionary principle, the government is unlikely to do enough to prevent all activities that pose risks to lives and the environment.

Imperfection is not all about the degree of government conduct; it may also be about the form. Two general forms of imperfections are commonly used to define government failures: a deviation from adequate cost-benefit analysis and a mismatch between normative expectations and public policies.³⁸38.See, e.g., Bus. Roundtable v. S.E.C., 647 F.3d 1144, 1148-49 (D.C. Cir. 2011): (The SEC) acted arbitrarily and capriciously for having failed once again . . . adequately to assess the economic effects of a new rule. Here the Commission inconsistently and opportunistically framed the costs and benefits of the rule; failed adequately to quantify the certain costs or to explain why those costs could not be quantified; neglected to support its predictive judgments; contradicted itself; and failed to respond to substantial problems raised by commenters. Com. v. Wasson, 842 S.W.2d 487, 501 (Ky. 1992): By 1974 (when Kentucky enacted its anti-sodomy law) there had already been a sea change in societal values insofar as attaching criminal penalties to extramarital sex. The question is whether a society that no longer criminalizes adultery, fornication, or deviate sexual intercourse between heterosexuals, has a rational basis to single out homosexual acts for different treatment.

Cost-benefit analysis as a standard for government failures underscores the inability to define ex ante precise criteria for government failures and potential misuse of hindsight.³⁹39.See, e.g., John F. Morrall III, A Review of the Record, 10(4) Reg. 25 (1986); John Morrall III, Saving Lives: A Review of the Record, 27 J. Risk & Uncertainty 221 (2003). For a discussion of the controversy over cost-benefit analysis, see Orbach, Regulation, supra note 40, at 113-18. For the hindsight bias, see Scott A. Hawkins & Reid Hastie, Hindsight: Biased Judgments of Past Events after the Outcomes Are Known, 107 Psych. Bull. 331 (1990); Kim A. Kamin & Jeffrey J. Rachlinski, Ex-Post ≠ Ex Ante, 19 L. & Human Behavior 89 (1995); Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi L. Rev. 571 (1998). When undesirable outcomes materialize, we can supposedly employ a Learned-Hand-like formula (or a more sophisticated analysis) to examine whether the government adequately invested in precautions to address the risk.⁴⁰40.United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) (Hand, J.). See generally Mark Grady, Untaken Precautions, 18 J. L. Stud. 139 (1989); Allan M. Feldman & Jeonghyun Kim, The Hand Rule and United States v. Carroll Towing Reconsidered, 7 Am. L. & Econ. Rev. 523 (2005). Such inquiries do not account for budgetary constraints, ex ante knowledge of risks, and available precautions. Therefore, such inquiries may be reasonable for certain domains but not for others.

Mismatches between normative expectations and public policies may also establish perceptions of government failures. Examples of such perceptions may include the inability of the federal government to address child labor until 1938,⁴¹41.The 1938 Fair Labor Standards Act was the first federal legislation that set limit on child labor that survived scrutiny of the Supreme Court. Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding that the Keating-Owen Child Labor Act of 1916 that restricted child labor was unconstitutional); The Child Labor Tax Case, 259 U.S. 20 (1922) (invalidating a federal tax imposed on goods produced with child labor); United States v. Darby, 312 v. 100 (1941) (upholding the constitutionality of the Fair Labor Act). For the history of the child labor debate, see Hugh D. Hindman, Child Labor: An American History (2002); Kriste Lindenmeyer, A Right to Childhood: The U.S. Children’s Bureau and Child Welfare, 1912–1946 (1997). the endorsement of eugenics and the maintenance of eugenics programs until 1974,⁴²42.North Carolina, the last state to engage in eugenics, sterilized people “for the best interest of their mental, moral or physical improvement” until 1974. N.C. Ch. 1281 § 35-36 (1973). See The Governor’s Task Force to Determine the Method of Compensation for Victims of North Carolina’s Eugenics Board: Final Report (Jan. 2012); Kim Severson, Thousands Sterilized, a State Weighs Restitution, N.Y. Times, Dec. 10, 2011, at A1. See also Buck v. Bell, 274 U.S. 200 (1927) (Holmes, J.) (“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”). and the choice to ignore irrational exuberance during the housing bubble of 2000s.⁴³43.See National Commission On The Causes Of The Financial And Economic Crisis In The United States, The Financial Crisis: Inquiry Report (final report, Jan. 2011). The existence of a mismatch implies that the underlying normative expectation is not in consensus. For some portion of the public there is no mismatch.⁴⁴44.Lawrence v. Texas stands for the potential normative mismatch that the majority may have to tolerate. Lawrence v. Texas, 539 U.S. 558, 577 (2003) (“(T)he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”). But those, whose normative views clash with existing public policies, may perceive the contrast as a government failure. Normative contrasts of this type begin with the general controversy over regulation: For some a government failure is a consequence of too much regulation, while for others it is a result of too little regulation.⁴⁵45.See supra Section I; Orbach, What Is Regulation?, supra note 35.

In sum, every government failure represents some imperfection in government performance, but not every imperfection in government performance is a failure. Although we often “see” government failures, threshold standards that separate tolerable imperfections from government failures do not exist. In corporate law, only extreme situations of improper intent, conflict of interest, carelessness, and inattention or a failure to be informed of all facts material to a decision may result in liability for decisions made or not made.⁴⁶46.See supra note 33. By contrast, under some theories, the government fails whenever it acts because of the inevitable imperfections. Such theories are impractical.

IV. Defining Failure

What government’s actions and inaction ought be considered government failures? When “bad things” happen, such as a natural disaster hits a major city, a financial bubble bursts, or a Ponzi scheme unravels, a government failure is often declared.⁴⁷47.See, e.g., Hurricane Katrina Lessons Learned, Staff, The Federal Response to Hurricane Katrina: Lessons Learned (Feb. 2006); National Commission on the Causes of the Financial and Economic Crisis in the United States (final report, Jan. 2011) (hereinafter, Inquiry Report); U.S. Senate Permanent Subcommittee on Investigation, Committee on Homeland Security and Governmental Affairs, Wall Street and the Financial Crisis: Anatomy of a Financial Collapse (Apr. 13, 2011); U.S. S.E.C. Office of Investigations, Investigation of Failure of the SEC to Uncover Bernard Madoff's Ponzi Scheme (Aug. 2009). The reasoning for such public verdicts is that “the public stewards . . . ignored warnings and failed to question, understand, and manage evolving risks . . . to the well-being of the American public.”⁴⁸48.Inquiry Report, at xvii. Such failures supposedly refer to substantial imperfections in government performance.

Designed by humans for a complex reality, regulations tend to be imperfect. Government failures, including a lack of, or inadequate regulation, merely reflect the imperfect nature of regulation. Indeed, the phrase “government failure” as a term of art was born in critique of regulation.

“Government failure” as a concept in regulation refers to substantial imperfection in government performance. Such imperfections are comprised of inadequate actions and unreasonable inactions. The scope of the imperfection is related to the level of a disregarded risk, inadequacy of cost-benefit analysis, deviation from popular normative expectations, and magnitude of misallocated resources. In essence, government failures are accidents that cannot be eliminated, but their costs can be reduced.

Barak Orbach is a Professor of Law at the University of Arizona College of Law. www.orbach.org. This is the second essay in the Series “What Is . . . ?” that explores the meaning of basic terms in regulation. See Barak Orbach, What Is Regulation?, 30 Yale J. Reg. Online 1 (2012). I thank Paul Connell and Sivan Korn for comments and suggestions.