Patient: “It hurts when I do this.” Doctor: “We’ll design it so that when you do this your arm will accordion but you won’t be hurt.”

Performance mandates are often proposed as a solution for ensuring that government technology requirements don’t block innovation in the same way that mandating specific technology does. For example, mandating that cars use specific technology to reduce emissions is prescriptive. It doesn’t matter what emissions the car actually produces, what matters is that the car use, say, a catalytic converter. Under such regulations, a perfectly clean car that doesn’t use a catalytic converter is designated dirty. On the other hand, a regulatory environment mandating crumple tests would be performative. It doesn’t matter how the car reduces the impact the passengers feel, just that it does so to the extent mandated.

A performance mandate mandates outcomes; a prescriptive mandate mandates how the outcomes are arrived at, locking in specific technology. Performance mandates are an attempt to replicate the amazing transformative effects that result from letting people decide what features they want and how much they value those features.

But performance mandates don’t actually do what they’re supposed to. For all the good intentions, they’re still not the choices of the people who matter. They’re the choices of government bureaucrats and their definitions. Government definitions always skew innovation away from revolutionary breakthroughs and toward gaming the mandate: any progress is toward pleasing the bureaucrats and their definitions, and not the actual users of the product. Performance mandates don’t come anywhere near the strength of millions of people all making decisions independently. They’re no different than the fake-market exchanges that caused California electricity to become both expensive and unreliable back when I lived there, or the insurance exchanges that that are doing the same right now. Bureaucrats don’t understand the power of people’s choices, nor do they trust people to make choices. It’s crazy to expect them to successfully emulate people’s choices.

Performance mandates mean undergoing tests to confirm that the performance is as defined, which is not necessarily progress. Imagine that you have found a way to use modern AI and sensor technology to create a car that never gets into an accident.¹ This would be a huge benefit to drivers, pedestrians, and society in general. Economically, you’d be able to make much less expensive cars that use much less fuel, because you’d no longer need to armor your cars like tanks. In fact, I suspect that if such a technology is possible, it will require lighter cars that can react more quickly because their lightness gives them less momentum to overcome.

But the performance mandate still requires that the car be able to crumple successfully in a crash, even if it is never going to be in one. If your software doesn’t work in heavier cars, you cannot build your revolutionary vehicle that never gets into a crash to begin with.

And that’s not even the half of it. Even supposing that you can get your car to crumple successfully in the tests, you have built this amazingly smart car that refuses to crash. The performance mandates force you to create a hook into your car’s code that will reprogram it to deliberately crash itself into a hard wall. In other words, disable the one feature that makes your car special. Apple rightfully complained that being forced to create a back door into their phones ran the risk of more bugs and lower security in everyone’s iPhones, because the code will eventually get into the wild. What if your revolutionary uncrashable car’s “crash now” code, which not only shuts down the actual innovative accident-avoiding software but also reverses it to force a deadly crash, is exploited by hackers or, through a regulatory accident, gets into people’s cars?²

You’re going to get sued. And hard.

When it comes to really revolutionary ideas, the kinds of breakthroughs that turn an industry upside down, prescriptive vs. performance doesn’t really matter. Both kill innovation by locking out truly innovative avenues of research. Real breakthroughs literally break through the problem and make it irrelevant. Performance mandates mandate that the problem not be broken through.