Have You Thanked a Regulation Lately?

 

I recently talked to a lawyer of my acquaintance, whose practice is focused on educational institutions. She represents schools and universities in their relations with the Department of Education, and she does her best to keep her clients compliant with that department’s many regulations.

She felt the need to add, somewhat sheepishly, that she wasn’t sure those regulations were still in force, or whether the Department of Education, as she’s known it, even exists.

As the junta keeps tampering with the gears of the federal government, we’re all left wondering what happens when the rules are no longer there. In the same week that I talked to her, the six grand inquisitors on the Supreme Court were happy to overturn a lower court ruling, thereby giving the green light to major “workforce reductions” in the Department of Education. 1,400 or so employees — people responsible for regulating schools — were subsequently laid off, a good chunk of them just last week, as part of the government shutdown.

No doubt, some of these layoffs were of people this lawyer was dealing with at the department, and I’m guessing she’s having to reassess parts of her career path as a result.

The department does indeed seem to be disappearing, sabotaged by the government itself. To say that this won’t end well goes without saying — nothing ends well with these vandals. But that’s not why I bring it up.

I want to talk about regulation, and about the lawyers who deal with it. I’ve written quite a bit about lawyers and law firms lately, because the most significant battles to save democracy are largely happening in the courtroom, at least for now, and they’re being fought largely by lawyers, some more willingly than others.

I’m not referring to the high-profile heroes, like Marc Elias, who fight for the big issues like free and fair elections. This is more about those lawyers working in the trenches, interpreting rules that have been written, over generations, to keep an eye on companies that might otherwise harm society. When you yank those rules away, the harm always returns.

Back in my school days, many of my peers wanted to be lawyers, with no real idea of what that meant. In their hearts, which were generally in the right place, they’d be the next Atticus Finch or Clarence Darrow, defending the downtrodden and prosecuting the felonious.

I was not one of them. While plenty of them ended up going to law school, I was happy to skip that experience. Nonetheless, my own career has brought me in contact with a wide variety of lawyers, so I get to see, at least somewhat, how those dreams of glory have played out.

Because it turns out, defending the downtrodden and prosecuting the felonious doesn’t pay very well. Certainly not on the lawyer pay scale. Certainly not with a half-million in student loan debt from law school hanging over their head.

The real money, they soon find out, is in corporate law. It’s in big companies with deep pockets. It’s in defending those companies against allegations of, say, sexual discrimination or toxic waste emission. It’s in helping them buy and sell other companies, usually by weighing their acquisitions down with crippling amounts of debt.

But our budding lawyers — soon working eighty-hour weeks in some sterile Manhattan office tower — also discovered that there were good, lucrative legal careers to be had in understanding government regulation.

To most of us, regulation is a sort of abstraction, something other people worry about. We hear the words “government regulation,” and automatically our guard goes up, even if we’re basically in favor of it. It’s something that everybody hates a little, but some people hate a lot.

Actually, most people love regulation, they just they don’t know it. They don’t realize that regulation is core to the way a modern society runs, and that without it, chaos, lawlessness and, yes, fascism rapidly ensue. As we’re finding out.

Regulation is, basically, the laws businesses live by, laid out in granular detail. It’s all the many hundreds of thousands of rules, codified and enforceable, that keep our food edible, our drugs safe, our water drinkable, our planes flying, and, generally, our population protected from those who would put profit above the public good. We are not nearly grateful enough for these rules.

The junta is in the process, not just of rolling back regulation across the board, but of trying to obliterate it altogether. The damage is already substantial, and we’re about to feel a lot more of that damage at the grassroots level. We’re watching in real time what happens when the guardrails are ripped away by people not interested in the law.

Fortunately, the law is pushing back. And it’s lawyers of all kinds — defense attorneys, prosecutors, litigators, regulators, and judges — who are trying, with some success, to hold back the Huns.

So let’s get back to our once-idealistic lawyers, who by now have carved careers out of their intimate knowledge of the regulations that govern their corporate clients. Sometimes called compliance lawyers, much of their job is to keep those clients on the straight and narrow with whatever regulatory agency affects them.

Nobody makes movies about compliance lawyers. Dealing with regulatory agencies on a day-to-day basis is hardly glamorous. They speak for their clients to those agencies, and they take what the agencies say back to their clients. They rarely, if ever, set foot in a courtroom, yet they are, in a way, an essential interface between big business and the government.

But now, as the junta takes a blowtorch to the rules, the lawyers are in a dilemma. On the one hand, they know damn well that many of their clients —  the stupider ones — are quite giddy about no longer having to follow rules they’ve always hated. On the other hand, they’ll need to convince those clients that the rules were there for a reason, and that they’ll miss them when they’re gone.

Regulation is there to level the playing field, to make sure every business is following the same rules, and nobody gets to cut corners. It’s not a perfect system, and lots of wrongdoing falls through the cracks. But ironically, the people who hate the rules most — usually rapacious capitalists — are the ones who get the most benefit from them. The restrictions placed on the marketplace are what help it best to flourish.

As the pushback against the junta continues, much of it will take the form of lawsuits brought against the government by businesses currently getting screwed. Those lawsuits will be based on regulation that will still be on the books.

And that’s where our compliance lawyers will hopefully have an advantage. They understand the regulations far better than the hack lawyers representing the government. Any case drawing a reasonably impartial judge — not a given, I know — will be open and shut.

Will that ultimately matter to the march of fascism? Hard to say. But fronts of resistance are opening up, and a whole lot of lawyers — including those with unglamorous practices — will find themselves manning the barricades.