Too Much Law?

I'm delighted to be following Howard Wasserman (usually a good idea) in blogging about a review essay I recently published in Fordham Law Review Res Gestae.  The essay is a review of Mila Sohoni's article, "The Idea of Too Much Law."  Sohoni's article considers claims of "hyperlexis" -- literally, claims that we have too much law.  She provides "accounts" of hyperlexis -- explanations that center on metrics such as the complexity and sheer volume of laws, as well as critiques that focus on the dynamics that generate hyperlexis.  She finds these accounts difficult to accept: the metrics because they require major assumptions (e.g., what makes a legal system complex), and the explanations of hyperlexis's dynamics because they are simply unconvincing as broad explanations for hyperlexis (assuming that it exists).  She concludes with what she describes as a "counsel of despair": hyperlexis claims are difficult to credit in the abstract, for the reasons she gives, but the hyperlexis critique of American law resonates powerfully, and corrodes citizens' faith in our regulatory system.

Sohoni's critique makes a lot of sense, and her focus on the hyperlexis concern is an interesting take on the ongoing debate about the scope and style of government regulation.  But, as I suggest in the essay, uncovering the popular concern about hyperlexis may require thinking about hyperlexis as it's actually experienced -- citizens' day-to-day encounters with the legal system that might generate claims that there's, literally, too much law.

As luck would have it, we have a recent Supreme Court case that illustrates a citizen's encounter with a potentially hyperlexified regime.   In Sackett v. EPA the Supreme Court held that pre-enforcement review was available when the EPA issued a compliance order to a couple who owned land that allegedly contained wetlands, and who were ordered to take significant remediation measures, backed by daily penalties for non-compliance, when they disturbed those alleged wetlands.

The legal analysis in the case was (pardon the pun) dry -- couched in the details of the APA.  What was more interesting for my purposes was the Sacketts' description of their plight.  The Sacketts described themselves in their briefing in ways that painted a picture of a couple doing everyday, normal activity -- clearing land on a lot in a residential subdivision so they could build their home -- when the EPA swooped in, issuing a compliance order that imposed onerous burdens based on conclusions (about the wetlands character of their property) that were difficult to verify.  To top it off, the order imposed daily penalities for non-compliance, but the EPA took the position (rejected by the Court) that the orde, and thus the liabilities for the penalties, were not subject to judicial review until the EPA brought an enforcement action (which it might never do).  Even though the Court's (unanimous) opinion was, as I said, couched in the dry terms of the APA, this picture was enough to make Justice Alito incredulous, both in his concurring opinion and at oral argument -- where, at one point, he asked the EPA's counsel if, when presented with these facts, a homeowner would exclaim that that simply couldn't happen in America.

The Sacketts' self-description, and Justice Alito's reaction to it, reflect a picture of hyperlexis that turns less on abstract metrics such as complexity or high-level dynamics such as over-delegation by Congress, and more on the lived experience of the legal system striking a seemingly law-abiding citizen like a lightning bolt out of the blue.  To be sure, this isn't the only situation that might lead a citizen to get a gut sense that there are too many laws.  Other pictures might be painted from other stories.  For purposes of my review of Sohoni's article, the point is that hyperlexis may be more experienced than understood as an intellectualized, abstract matter.  We still might be able to draw larger conclusions from those stories, but those conclusions perhaps should come from the bottom up -- as conclusions we reach from an inductive, experience-based, learning process.

Anyway, Sohoni's article is a nice contribution to the literature on regulation.  It deserves a read.