Is American law too complex? PrawfsBlawg featured an interesting exchange on this question last week. Eric Johnson initiated the exchange with this post, in which he observed:
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.
. . .
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.
In addition to a lively string of comments (including a couple by our own Rick Esenberg), Eric’s comments also prompted a thoughtful responsive post by Paul Horwitz. Paul questions, among other things, what the alternative is to our current, complex system and whether such an alternative really would be an improvement.
The civil litigation costs that are Eric’s real target are, it seems to me, simply a part of the transaction costs that result from the way we in the United States have chosen to regulate ourselves. One could imagine a number of other systems that might have significantly lower transaction costs (e.g., we could regulate ourselves by giving executive branch bureaucrats unreviewable discretion to resolve social problems however they see fit), but it is at least highly questionable whether any such alternatives would be preferable to what we have. To be sure, we should seek to minimize transaction costs, and there are undoubtedly many small reforms that we could adopt that would help the legal system to operate more efficiently. But, from a big-picture perspective, it is not clear to me that litigation-related transaction costs are an especially large drag on the American economy. Indeed, I would be surprised if they were not significantly less than the transaction costs associated with health care delivery.
Elsewhere in the blawgosphere, Corey Yung has an insightful post at Concurring Opinions on federalism in the Rehnquist and Roberts Courts. He writes,
As a result of the [Rehnquist] Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. . . . To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. . . . However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished.
. . .
One could simply view the Roberts’ Court’s counter-revolution as having shutdown Justice Rehnquist’s efforts. However, I think it is simpler and more accurate to say that there was never any revolution.
Finally, also at Concurring Opinions, Lawrence Cunningham has a helpful summary and critique of the new executive pay provisions of the Dodd-Frank Act.