Just how experienced is a regulator's experience?

Courts sometimes use a regulator's experience to justify rulings. Is that fair if there's no data to back up regulators' claims?

By , Guest blogger

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    Jon Leibowitz, chairman of the Federal Trade Commission, discussed new actions to combat fraud against consumers in the housing markets at a September press conference. Courts sometimes rely on regulators' experience to justify rulings in their favor.
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A simple but effective trick the state uses to eliminate due process and violate individual rights is experience. What do I mean? The foundation of all regulatory “law” is the notion that any body of regulators created by Congress possess, by virtue of said creation, unlimited expertise and experience over whatever subjects they regulate. This regulatory “experience” creates a strong judicial presumption in favor of the regulator; the presumption of innocence and individual rights gives way to disproving the “experience” of the regulator.

I was reviewing a 2005 Federal Trade Commission case earlier. The details are unimportant. The Commission decided a certain activity was harmful to consumers. There was no empirical data to support this claim, but the reviewing court reasoned that data was unnecessary, because the Commission’s “experience” allowed it to instinctively know the challenged activity was bad. Ergo, it was the defendant’s burden to disprove the Commission’s experience, which of course it couldn’t. Victory to the FTC.

Regulatory “experience” is a strange type of patent. Most FTC members are, of course, antitrust lawyers. Their “expertise” derives largely from having graduated law school. Yet with an FTC commission in hand, they become authorities on health care, manufacturing, retailing, et al. There’s no mechanism for an accused individual or firm to dispute this “expertise,” because any such process would require the regulator himself to acknowledge he’s, in reality, not an expert. As Ralph Wiggum would say, “that’s unpossible!”

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