Competition among laws
Declan McCullagh writes cogently [link to http://news.com.com/Regulatory+happy+feet/2010-1029_3-6056763.html no longer works] on the matter of national security breach legislation. His article makes many important points, and should be read widely.
However, his overall thrust — that federal legislation is inferior to state legislation as a means of addressing security breaches — touches too briefly on an important point: we can have both.
McCullagh presents a picture of the legislative process in which states act as incubators of a sort, with the best legislation being readily emulated by others. I haven’t read enough empirical work to know whether this hypothesis is false, but part of me wants to say it’s easier to buy off a state legislator than it is a congressman. Moreover, state laws can be ‘sticky’. New Jersey, for example, has had plenty of opportunity to learn from other states’ freedom of information laws. They haven’t. How quickly will Delaware or North Dakota be to copy New York’s notification law?
Anyway, read Declan’s piece — in his final paragraph he seems to be arguing not against a federal law per se, but against one that pre-empts state law. If that is the case, I could not agree more. Let the Feds set a low-water mark, and allow the states to exceed as they choose.
The canonical citation for the “50 policy laboratories” theory is
Walker, Jack L. 1969. “The Diffusion of Innovations among the American States.??? American Political Science Review, 63(3): 880-889.
I’m guessing you’ll need JSTOR to get this, but if someone really wants it, email me. I think this would be a fascinating area to do more research on. I’m a little swamped at the moment, but if anyone wants to chat more, let me know.
On the flip side, consider the standard line against sales tax on the net: it would be too expensive and onerous to comply with 50 sets of regulations and payment plans. Wouldn’t this arguement apply equally to compliance with 50 distinct notification procedures? As heterogeneity and state-specific policies increase, it would only create larger pressure for federal pre-emption.
It would help all pro-notification forces to encourage standardization across states to ease the compliance burden. See also: standarization of state IDs.
The Uniform Commercial Code, Uniform Motor Vehicle Code, and to some extent the electrical and building codes might be examples of states spontaneously standardizing on useful legislation.
All of those are relatively non-controversial. Hmm.
Criminal law diverges more, but then that gives sociologists a chance to do comparison studies.
Some things seem to really resist standardization, though. Building codes, for example, aren’t even standardized within most states, much less between them. And there are odd little bits of the motor vehicle codes that don’t line up from state to state, either, such that a vehicle that’s street legal in one state isn’t always legal in another.