Unicorns are mythical creatures that don't really exist. A rhinoceros only has one horn, but the lumbering behemoth is nothing like the sleek, frilly unicorn. There are the oryx, those antelope-like animals in Africa that look like they have only one horn when you look at them from the side, but that is just an optical illusion.
The unicorn has a lot in common with the "free market" -- neither exists.
Spend any time around law books and you quickly learn that the free market is actually a creation of the government, born and bred out of the statutes. No statutes or rules, no market.
Way too much of our political and legislative discourse is centered on "laws vs. no laws" or "regulation vs. no regulation." This is a wrong- headed argument. The correct discussion should be on whether the laws or regulations create a better or worse market, rather than getting lost in the blather about nonexistent unicorns.
For all the free market folks out there, let me explain using something that is close to home -- your home. The real estate market, when it is working well, employs real estate agents, contractors, surveyors, title insurance employees, bankers, landscape crews and architects, while providing shelter, a fundamental human need. The real estate market gives birth to a host of ancillary businesses to supply home furnishings, building materials, electronics and everything ever purchased that is now in the garage gathering dust while the car rusts outside. And the real estate market doesn't exist without law and regulation.
Almost every time someone buys a house in Utah, a title company will research the ownership records of the property back to when the real estate market was created and a private individual first owned the land. The Utah Enabling Act and the Utah Constitution, followed by the Utah Code (currently Title 57), create and maintain the basic structure of the Utah real estate market.
The real estate market is a complete creation of the government and is enforced by governmental power. Real estate records are kept by the local county governments. Disputes over title and ownership are settled in the courts. If you don't have the right to possess the land, the sheriff will come and remove you.
The beauty of the system is that you can rely on the integrity of the law to provide the comfort and security to buy, sell, lease and participate in the real estate market with some foreknowledge of the results. No law, no market.
If you still aren't convinced, look at the crash of the real estate market in 2008 that devastated jobs in construction and real estate and rippled across the entire economy. The problem in 2008 wasn't the real estate market, but the fact that another government-created, but poorly designed, market (the financial market, particularly the market for exotic financial instruments derived from existing laws and lax regulation) inflated the real estate market in order to smash it with a sledgehammer.
You cannot separate government out of the markets, because the markets operate on laws and regulations the participants rely on. You can't have a financial market without money. You can't have a real estate market without a deed. You can't buy and sell anything without laws defining who has the right to own something.
Until our political and legislative discourse focuses on how to legislate and regulate our markets to run smoothly, consistently and fairly, we are just wasting our time looking for a free market unicorn.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or email@example.com.