The legal industry has developed a comfortable consensus about what ails American regulation: fragmentation. Too many rules. Too many jurisdictions. Too many interpretations of the same basic principle. The solution, we're told, is harmonization. Standardization. Make the rules the same coast to coast, and everyone wins.
This narrative is pleasant. It's also incomplete. The better question isn't whether we need consistent rules. It's what consistency actually breaks when we finally achieve it.
Consider what's happening at the intersection of state authority and federal mandates. Recent disputes over Affordable Care Act coverage provisions pit states against federal regulators. Lawmakers in California have twice failed to fix warning systems for teacher misconduct. Maryland's synagogue faces county-level restrictions on firearms that collide with constitutional questions. These aren't failures of consistency. They're collisions between layers of governance operating under genuinely different priorities.
When we solve for consistency, we're really solving for centralization. Someone has to win. Someone's rules become the template. The comfortable consensus avoids asking: which values get flattened in that process?
The regulatory professionals I speak with rarely articulate this trade-off directly. Instead, they describe consistency as an unambiguous good. It reduces compliance burden. It creates clarity. It allows larger organizations to operate across borders more efficiently. All true. But efficiency isn't the only value in play.
What gets lost when a single standard replaces fifty different approaches? Experimentation. Local accountability. The ability for a smaller jurisdiction to say no based on its own community's assessment of risk and benefit.
This matters more than abstract theory suggests. When federal regulators set a national standard, a county in Maryland doesn't get to weigh firearms policy against security concerns specific to its own religious institutions. When California can't update its teacher misconduct warning system, it's partly because the regulatory structures around education were built assuming consistency would make everything better. When states challenge federal healthcare rules, they're partly fighting for regulatory space that harmonization promised to eliminate.
The uncomfortable truth: consistency and flexibility are often direct competitors, not complements.
Some will argue that local regulatory variation produces the worst outcomes: wealthy jurisdictions can afford strict oversight while poor ones cannot, creating a two-tiered system. Fair point. But the answer isn't necessarily to harmonize downward or upward. It's to acknowledge what we're trading away when we do.
The legal industry should be asking different questions. Not "how do we make these rules the same," but "which decisions actually require consistency, and which benefit from variation?" Not "how do we reduce regulatory burden across the board," but "whose burden matters most, and why?" Not "what's the efficient solution," but "which stakeholders are we choosing not to listen to?"
These questions are harder. They require acknowledging that every regulatory choice empowers some interests while constraining others. They require defending specific values rather than hiding behind the neutral language of efficiency and consistency.
The consensus won't change overnight. Consistency is easier to pursue than trade-offs are to navigate. Harmonization feels progressive. It appeals to tech companies, national firms, and compliance professionals who all benefit from reduced friction.
But anyone actually working in regulation knows that friction sometimes serves a purpose. It can slow bad decisions. It can create space for dissent. It can keep power from concentrating too quickly in too few hands.
The better question isn't whether we're consistent enough. It's what we break when we finally get there. Until the legal industry starts seriously answering that, our regulatory debates will remain trapped in a consensus that feels good without being honest.