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Wednesday, July 28, 2010

The Huge, Obvious Problem with the Law

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

Everglades
A mighty swamp is our law.
(Image: Nat'l Park Service)

I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters - before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law's operating system. It's like trying to run new, bulky software on a really old computer. It's slow as heck.

To appreciate the absurdity of the burden we've imposed upon ourselves, it's helpful to get some context. Let's compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.

That's not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that's crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That's why plaintiffs' lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.

Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons - at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.

For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole - and the mighty swamp we've made of it.

Posted by Eric E. Johnson on July 28, 2010 at 06:18 PM in Civil Procedure, Judicial Process, Torts | Permalink

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One man's "mighty swamp" is another scholar's meal ticket!

Someone needs to teach new law students how to navigate the swamp... more tenured jobs at law schools with nice salaries, job security, and academic freedom.

The more exclusive the swamp, the more difficult it is to be a lawyer... thus decreasing the supply of legal services and hence increasing lawyer's wages.

Everyone in the legal profession stands to benefit from the "mighty swamp." So of course there's third party arbitration... the legal profession is a racket! If we're going to be screwed either way, we might as well cut out the middleman...

Posted by: James | Jul 28, 2010 6:25:53 PM

Indeed. A mighty fortress is our law.

Posted by: Jon | Jul 28, 2010 8:16:52 PM

I agree that (our) law is complex. But I don't understand the rest of the post. Is it that complexity is bad because it's inefficient and/or costly? Or because it's descended from old stuff that hasn't kept up with the typewriter and the garbage disposal (and if so, why aren't they bad, rather than law?). Or because simplicity is a supreme virtue and the legal profession ought to mobilize to realize it? If any of these three, I disagree across the board. If our law is a swamp, that's largely because we are swamp creatures.

Posted by: Marc DeGirolami | Jul 28, 2010 9:09:02 PM

I mostly agree with Marc.

Posted by: Orin Kerr | Jul 28, 2010 10:28:33 PM

If there is a problem, it might be that legal problems that don't involve a great deal of money are not commensurately less expensive to litigate than those that do. Part of that problem is not the archaic nature of the law but its development away from relatively straight forward rules toward less precise (but more flexible) standards. This makes outcomes harder to predict.

It may be that the health care model - where the disease controls the cost is ill suited for legal disputes that, at the end of the day, are about money. Binding arbitration is supposed to streamline the process (although, in high stakes cases, it really doesn't), but maybe the challenge is to imagine modified rules and processes for disputes that can't bear the cost of litigation under our current way of doing things. Small claims court is a way to do this for very low dollar cases, but maybe we need Intermediate Claims courts.

Posted by: Rick Esenberg | Jul 28, 2010 11:14:17 PM

Rick, of course I've written my own post about these issues, but I'll note quickly that in my view neither rules nor standards are on the rise across the board in the law -- not that you've said otherwise, but your comment could be read as suggesting that the law has broadly moved from rules to standards. In many respects much legal doctrine that once might have been either standard-based or simply underdetermined is now governed by a set of ostensibly clear rules; this includes some of constitutional law, for instance. In other areas it has become more standard-based. In either case, whether one approach or the other works better or leads to greater predictability will depend on a variety of factors. A set of clear rules might seem to promise predictability, but if the area of human activity they regulate is sufficiently complex, then those rules will quickly either proliferate and become unpredictable for that reason, or turn into standards, or stay the same but fail to regulate that activity effectively.

Posted by: Paul Horwitz | Jul 29, 2010 9:31:52 PM

Paul

I think that, as a generalization and over a long period of time (I'm thinking of the past century or so), we have moved to doctrine that attempts to consider more, rather than fewer, factors. I do agree that this is not across the board but my sense is that it has occurred in those areas of the law that are most likely to involve average citizens (e.g., not constitutional law).

That is not to say that this is a bad thing. Indeed your observation that the phenomenom (when it occurs) may be driven by a complexity in human affairs that pushes against the sustainability of a simple set of clear and determinate rules is well taken.

My point is more narrow. It is simply to suggest that this is one of the things (but not the only thing) that makes the resolution of lower dollar disputes less predictable and more expensive. The effect of this is often to let the loss remain where it falls and that problem is what I thought Eric was trying to get at.

Posted by: Rick Esenberg | Jul 29, 2010 11:29:04 PM

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