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Thursday, July 29, 2010

Not Obvious to Me

Let me gently disagree with Eric's post below, which argues that "[o]ur system of justice is absurdly complex and time consuming," and that this is a problem that is generally unnoticed or unaddressed by the legal profession, including its academic arm.  In particular, Eric argues that "[e]ndeavoring 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."

First, I don't think this problem is either unnoticed or ignored.  Eric agrees that none of this is news, but says it is so apparent that we don't pay much attention to it.  Of course, some people may not pay attention to it because they think it's not a problem; more on that below.  Others do think it is a problem, and although I think there ought to be more scholarship on the relationship between law and complexity, it is certainly out there.  

Second, I think there are two levels of "what do you mean we?" response available to Eric when he says "our" system of justice is absurdly complex.  First, I'm not sure whether Eric is talking only about the United States.  But ours is not the only system of justice, even of common-law justice.  Many other nations have made great strides in legal reform, and should not be ruled out of the conversation.  So have many local jurisdictions within the United States.  Second, much depends on what Eric means by "our system of justice."  For the most part, he appears to be referring to the courts.  That's not the only place that either the legal system or legal reform takes place.  Some of those places look worse than the courts -- say, the immigration system.  Others look much better.  And in all these places, as well as in the courts, some reform is happening all the time.  I do tend to think the United States is more hidebound and less serious about legal reform than other countries may be, but we should not ignore the fact that it does occur, and not only through the courts.

As to complexity itself, we must be clearer on when and why this is a bad thing, and we mustn't lose sight of the responses to complexity that have been offered.  It is true that no lawyer can go through life anymore with just a copy of Blackstone by his side.  But we don't live in Blackstone's world.  If law has gotten more complex, surely that is because human affairs have gotten vastly more complex.  Unless one believes that life's complexity can be reduced to a set of "simple rules," as Richard Epstein has argued, then the mere fact that law has gotten more complex is not reason enough for a lament.  Moreover, I think that in emphasizing the "explosion" of technology and wealth and what it has contributed to law's complexity, Eric undersells the degree to which the same resources have been deployed to respond to that complexity.  There is vastly much more law than there was 200 years ago.  But our systems of researching, retrieving, and communicating within and beyond the law have also gotten much more sophisticated.  For all its flaws, Westlaw makes it much easier to marshal effective legal resources, even in a complex and law-filled world.  Nor does Eric give enough weight to the ways in which law has responded to factual complexity.  Much of our legal doctrine in and out of the courts, from the whole body of administrative law and particularly the Chevron rule to the post-Daubert era decisions on scientific evidence, are designed to respond to these issues.  And, oddly to me, he criticizes the fact that more resources may be spent on high-stakes litigation than on small-stakes litigation.  This, too, strikes me as a reasonable and market-driven response to law's complexity.  In short, we cannot effectively judge law's complexity unless we take into account the full panoply of responses to it.  

Nor can we effectively judge whether law's complexity is a problem without making some kind of comparative and/or normative assessment about whether we would be better or worse off with less complexity.  Simplicity is not a virtue in and of itself, nor is complexity necessarily a vice.  The question is not whether law is "complex" or "simple," but whether it brings the right resources to bear on the right problems.  That may call for more complexity in some areas and less in others.  The real question is whether law is appropriately responsive to social problems, not whether it does so simply or complexly.  

Along those lines, I have argued elsewhere that constitutional doctrine, and particularly First Amendment doctrine, is often influenced by, and harmed by, "the lure of acontextuality" -- by the urge to come up with doctrinal rules that are largely indifferent to context, that employ primarily legal rather than prelegal and functional categories in carving up the world, and that therefore risk becoming either unresponsive to real problems or, to the extent that they carve out numerous contextual exceptions without abandoning the general urge to acontextuality, becoming incoherent.  If I am right about that, then we might see this as an instance where law's preference for a particular kind of simplicity has made it less capable of keeping up with factual complexity and institutional diversity.  The solution to this, however, is not necessarily for law to become more complex.  It is for law to come up with better categories and better tools.  In some cases, it will mean focusing more on functional categories other than the legal categories the law currently uses -- to accept that sometimes and in some areas there ought to be a "law of the churn," in Holmes's mocking words, or that there are salient differences between the institutional press and the "lone pamphleteer."  In others, it will mean having law do less work -- as in a system of reflexive law, new governance, or democratic experimentalism, where law's function is to coordinate the self-regulation of complex entities rather than attempting to regulate them directly.  

It is obviously an open question whether these reforms will be preferable to our current state.  But they don't turn on either complexity or simplicity: they turn on whether law is doing the right job, with the right tools, and in response to the right stimuli.  None of this means that Eric hasn't identified a possible problem, or that he is wrong to complain about how poorly the law fares in particular areas.  But I think, with respect, that he is wrong to pin the blame on "complexity," or to pin our hopes by implication on "the opposite of complexity."      

Posted by Paul Horwitz on July 29, 2010 at 03:28 PM | Permalink

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I have recently written a post that was inspired, at least in part, by this discussion. I believe the complexity of the law is a very important topic. For my two cents please see "Measuring the Complexity of the Law : The United States Code"

http://computationallegalstudies.com/2010/08/02/measuring-the-complexity-of-the-law-the-united-states-code/

This post relates to this paper:

"A Mathematical Approach to the Study of the United States Code"

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1578094

Posted by: Daniel Katz | Aug 3, 2010 1:27:14 AM

Yes, the law is complex, as I know first hand in the course of over 50 years of practice. Perhaps the complexity was always there, but what seemed fairly simple to me back in 1954 turned out, fairly quickly, to be complex in actual practice, a complexity that perhaps law schools did not then, or perhaps even now, impress upon students. Back in 1954, law texts often used black letter law that the student generally retained, perhaps ignoring the follow up text with nuances and gray areas. (I taught a shareholders/corporate tax law course for 7 years beginning in the mid 1970s in a graduate tax program. The first day I would tell my students that I took my first federal tax course in 1953, which was followed the next year with the 1954 Code; then I would recite the important tax laws enacted thereafter, often including the word reform in the titles. Many more tax laws were enacted after I stopped teaching. Tax law is only one aspect of law and it is quite complex. So are many other areas of the law.)

Despite the complexity, when it comes to litigation, competent counsel in adversary proceedings could simplify the issues to be determined by the court if they chose to do so. But the adversary process often results in foot-dragging because it may benefit a client. One attorney may wish to try a case fairly promptly. An opposing attorney may, to benefit his/her client (for various reason), wish to have the case drag on. Rules of Civil Procedure can narrow the issues but this can take an inordinate amount of time.

Perhaps if litigating attorneys took seriously the concept that they are "officers of the court" and have a gatekeeping role, they might on their own fairly promptly narrow the issues to accommodate a fairly quick and fair trial. Alas, the interests of clients in litigation differ and their attorneys have to accommodate their clients; after all, clients are the sources of attorneys' incomes. So what is complex about the law becomes even more complex, because that is the way of the adversary system, as attorneys look for and take advantage of loopholes in the law. It's a living.

Posted by: Shag from Brookline | Jul 30, 2010 7:47:06 AM

Let me add a couple of cites, while I'm at it: R. George Wright, The Illusion of Simplicity: An Explanation of Why the Law Can't Just Be Less Complex, 27 Fla. St. U. L. Rev. 715 (2000); Eric W. Orts, Simple Rules and the Perils of Reductionist Legal Thought, 75 B.U. L. Rev. 1441 (1995); and Peter H. Shuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 Duke L.J. 1 (1992).

Posted by: Paul Horwitz | Jul 29, 2010 9:39:10 PM

Anon: fair point. I don't think it's dispositive of anything here, but it's a good reminder to those of us who tend to take our WL access for granted.

Posted by: Paul Horwitz | Jul 29, 2010 8:17:07 PM

"For all its flaws, Westlaw makes it much easier to marshal effective legal resources, even in a complex and law-filled world."

For those legal practitioners who can afford Westlaw.

Posted by: anon | Jul 29, 2010 7:41:13 PM

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