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Should Laws Be Simple or Complicated? A Dialogue:
The exchange below between Eric Posner and Jonathan Adler brings up the classic tension between simple laws and more complicated ones, and I wanted to blog more about it. In the abstract, everyone wants laws that are simple. The ideal is simple and straightforward. But often a single rule must regulate a very wide range of different circumstances, and then you get pressure to be more flexible: Either to enact a very vague standard that isn't clear (like "act reasonably"), or else to start carving out exceptions to the rule for all the specific cases you think need different treatment. The best way forward can be tricky. Put another way, the ideal is for law to be clear, simple, and sensible. But these goals are often in tension.

  To see an example of this, consider the following hypothetical exchange over how much privacy Congress should extend to e-mail. I'll make the exchange between "Complicated Karen" and "Clear Chris," who are both trying to figure out the law of e-mail privacy and what Congress should do. Clear Chris wants a clear and simple rule; Complicated Karen is concerned with making sure the law produces sensible results in different settings.
Complicated Karen: I've been thinking about how much privacy the law should give to private e-mails held by an ISP. A lot of people think e-mail should be protected by a warrant requirement. What do you think?
Clear Chris: I completely agree. I propose a simple rule: E-mail should be protected by a warrant.
Complicated Karen: Great. Now let's start thinking about some exceptions. Imagine an Internet subscriber wants the ISP to disclose the contents of his e-mail. Maybe he has forgotten the password, or he needs an authenticated version. Should we have an exception for consent?
Clear Chris: Well, yes, of course. If the person really consents, then the government shouldn't need a warrant. That's obvious.
Complicated Karen: Great. What kind of standard would you choose for consent? Knowing? Knowing and voluntary? Intelligent? Is it consent in fact? Would you allow implied consent? And what about third party consent? How about business e-mail?
Clear Chris: Woah, that's a lot of questions! I don't really know, to be honest. I just want the exception to be clear so people can understand it.
Complicated Karen: Sure, I agree, clear is great. At the same time, we need to think about just what kind of consent you have in mind. Otherwise it will just punt the issue for the courts to make up the law later on. Moving along, what about an exception for emergencies? Should we have an emergency exception? For example what if the police tip off the ISP that the e-mail is being used by a kidnapper, and the government would need several hours or more to get a warrant. Should we allow emergency disclosure if the ISP wants to disclose?
Clear Chris: I don't know, once we start getting exceptions, it seems like the exceptions are going to swallow the rule. But I'm not a nut; if there's really a kidnapping, and the ISP is willing to disclose, I think an emergency exception for kidnapping is reasonable. But I want the exception limited to kidnapping.
Complicated Karen: How about terrorists attacks? Serial killers? Maybe we should craft a general exception for severe emergencies?
Clear Chris: I'll have to think about that one; I'm pretty skeptical, but I'm not sure I would want to totally rule that out. Let's come back to that one.
Complicated Karen: Sure. What about if the ISP is outside the U.S.? What then?
Clear Chris: Who has an e-mail account outside the U.S.?
Complicated Karen: A lot of people do, actually. Someone in the US might have an account with servers in Canada. And for that matter, someone in Paris might have a Gmail account in the U.S. Do you want to require a warrant for all of these cases?
Clear Chris: I've never thought about that one, I have to admit. But well, yeah, sure, let's have a warrant requirement for those. I want a clear and simple rule, so let's keep it clear and simple.
Complicated Karen: Sure, that's fine. But to do that, we're going to modify some other laws. Under current U.S. law, U.S. officials can't get a warrant for overseas: warrants are traditionally for U.S. use only. And how do you want to create U.S. jurisdiction over crimes occurring abroad? If a person commits a crime in France, that can't authorize a U.S. warrant under U.S. law. We either need to negotiate a treaty with the French government to handle that, or else we can say that French crimes committed in France are U.S. crimes, too, allowing warrants to be issued in the U.S.
Clear Chris: Yikes, are you nuts? Suddenly you're talking about the treaties and French law, and all I wanted to do was have a simple rule! You keep trying to make things complicated. Why not just make it simple?
Complicated Karen: I'm trying to keep it simple, actually. But to make the law what you want it to be, you need to think about these issues: Otherwise you'll announce a simple rule but it won't have any legal effect because of other aspects of existing law.
Clear Chris: Lawyers! You guys always like to make things complicated; No wonder you bill by the hour.
  Of course, none of this suggests that clear rules are bad. To the contrary, they are the ideal, in my view. But clarity and simplicity are only some of the goals of legislation, and I don't think it works to simply assume that we necessarily want the law to be very simple and very clear no matter what. Put another way, sometimes the law is complicated not because of those darn lawyers, or because of evil interest groups, but because it needs to be complicated to avoid being an ass.
PatHMV (mail) (www):
However complicated the subject matter, the laws apply to ordinary mortals, and so they need to be comprehensible to ordinary mortals. If current legislative drafters are unable to do that, it's time to find some better ones.

There is some really atrocious legislation drafting at the federal level. It's by no means entirely the fault of individual staffers, who have generally inherited complex and byzantine labyrinths of statutory structure. But it is possible, with some political will and intelligent drafting, to create relatively simple, comprehensible language which addresses all those complicated points.

I mean, if you want to say that people can only be prosecuted for federal crimes if it's clear from the summary that they violated the law, fine, but if you're going to hold them responsible for the actual law, I don't see how you can defend the complexity in any way.
9.24.2009 1:42pm
PatHMV (mail) (www):
I certainly don't deny that the massive growth in our economy in the last 60 years or so, the shift from being a primarily agricultural society to an industrial one (and now, rapidly, a post-industrial one), hasn't led, inevitably, to an increase in the amount of complexity required for routine governance.

I'm just saying that if we're going to have this acceptance that bills (even with the red-lined mark-ups and such) are too complex for Congressmen to really understand, I fail to see how any system of justice can hold ordinary people accountable for violating those same statutes.
9.24.2009 1:45pm
LN (mail):
I think Orin just defended the complexity, PatHMV. Did you read his post?
9.24.2009 1:45pm
Waste (mail):
I'm with Pat. The laws have to be understandable by the average person so that they can follow them. Making them so complicated that they have no idea what it means or applies to than you are going to have a large number of inadvertant violations. Laws should be written for the common person for the most part. Not for lawyers.
9.24.2009 1:46pm
OrinKerr:
PatHMV,

So how would you respond to Complicated Kate in her questions above?
9.24.2009 1:46pm
JMA (mail):
Not to nitpick, but... one wonders why the government would need a warrant to give permission to a private citizen to access and/or release the contents of his or her email account.

In order for the government to have access, perhaps, but that simply isn't the way the example reads. Is this in error, or have I missed something?
9.24.2009 1:46pm
Mike& (mail):
So average Americans should be subjected to laws - at the risk of imprisonment - that even lawyers would struggle with?

You're a brilliant guy, Orin. No doubt you can understand complex laws. Should people who lack your intelligence, insight, and experience go to prison for basically "being too stupid to understand complex laws?"

You are treating this debate very abstractly. Yet concrete harms happen. People - real people - get hurt. People are in prison for conduct that most of us would not consider immoral; but that fell under some complex law.

That bothers me. Doesn't it bother you?
9.24.2009 1:47pm
mf24 (mail):

You're a brilliant guy, Orin. No doubt you can understand complex laws. Should people who lack your intelligence, insight, and experience go to prison for basically "being too stupid to understand complex laws?"



No, they should go to prison for failing to pay huge hourly rates to brilliant guys like Orin.
9.24.2009 1:49pm
Ken Arromdee:
I would react "privacy of email should be treated similarly to privacy of physical objects, using the following analogies between email and physical objects, and using the following differences based on the inherent differences between email and physical objects". There is already a body of law related to privacy of physical objects, after all. We don't have to make everything up from scratch.
9.24.2009 1:51pm
Steve:
However complicated the subject matter, the laws apply to ordinary mortals, and so they need to be comprehensible to ordinary mortals. If current legislative drafters are unable to do that, it's time to find some better ones.

But the choice is not between simple legislation and complex legislation. The choice is between simple legislation accompanied by a crazy quilt of judicial decisions to fill in all the blanks, or complex legislation that fills in all the blanks on its own.
9.24.2009 1:52pm
OrinKerr:
Mike,

Ease up there; we're talking about a privacy law, not a criminal law. If Congress doesn't write such a law, there is no privacy. That prospect might not bother you, but it bothers me, and I'm simply bringing up the problems with drafting a privacy law in the right way.
9.24.2009 1:55pm
LN (mail):

Making them so complicated that they have no idea what it means or applies to than you are going to have a large number of inadvertant violations.


No. Look at the example Orin gives in this post. The relevant bill would be very long, but the only parties that are going to be that concerned about the intricacies of this law are law enforcement and the ISP. These parties can specialize in understanding this law.
9.24.2009 1:55pm
OrinKerr:
No, they should go to prison for failing to pay huge hourly rates to brilliant guys like Orin.

Just a beer would be nice.
9.24.2009 2:00pm
Sara:
Mike&: Can you provide examples of these prisoners?

Also, if a law is incomprehensible (vaugue, overbraoad) than the court will dismiss the case. Right?
9.24.2009 2:05pm
LN (mail):
I have some simple laws for you.

ONE: 'You shall have no other gods before Me.'

TWO: 'You shall not make for yourself a carved image--any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.'

THREE: 'You shall not take the name of the LORD your God in vain.'

FOUR: 'Remember the Sabbath day, to keep it holy.'

FIVE: 'Honor your father and your mother.'

SIX: 'You shall not murder.'

SEVEN: 'You shall not commit adultery.'

EIGHT: 'You shall not steal.'

NINE: 'You shall not bear false witness against your neighbor.'

TEN: 'You shall not covet your neighbor's house; you shall not covet your neighbor's wife, nor his male servant, nor his female servant, nor his ox, nor his donkey, nor anything that is your neighbor's.'

Is there anything else we might need?
9.24.2009 2:08pm
LN (mail):
Also, if a law is incomprehensible (vaugue, overbraoad) than the court will dismiss the case. Right?

I don't know, what does the law say about that?
9.24.2009 2:09pm
PatHMV (mail) (www):
Orin, I think it is possible to draft fairly comprehensible legislation which nevertheless addresses complex issues. Can I do it in between work assignments today? No. Does my experience with drafting regulations, contracts, and a few statutes convince me that it can be done? Yes.

Do you believe it just to hold people accountable, either civilly or criminally, for violating laws which are so complex they defy understanding even by ordinary members of Congress?

LN... it's not that simple, either. Do you know how broad the definition of "ISP" can be? That's not just AOL or your local cable or phone company. For some statutes, for some purposes, even a piddly old little blog can be considered an ISP. For example, my blogging software and my service from the ISP which hosts my blog allow me to grant e-mail accounts to lots of people using the blog's domain name. If I actually allowed commenters on the blog to create e-mail accounts, that would probably make me an "ISP" for purposes of a statute such as the one Orin describes.
9.24.2009 2:13pm
Bob from Ohio (mail):
Simple solution, don't pass the law.

Most laws are not needed. Even needed laws often (usually?) create just as many problems as they solve.
9.24.2009 2:14pm
Mike& (mail):
I'm simply bringing up the problems with drafting a privacy law in the right way.

Sure. The context, though, is federal laws more generally.

Also, is it really that complicated to write a law clearly saying:
A warrant is required except under the following exceptions:
A)
B)
C)

That adds nuance. But if it's written in clear language, it's not necessarily complicated.

Things start getting complicated when there are endless - and needless - cross references to various other federal laws and regulations.

The Lacey Act, e.g., seems facially simple: "It is unlawful for any person to import, export, transport, sell, receive, acquire, possess, or purchase any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any Federal, State, foreign, or Indian tribal law, treaty, or regulation."

Of course, David McNabb learned that the law was much more complex than anyone could have realized.

Also, too, the Clean Water Act is a mess. There are criminal penalties associated with violations of the CWA. I've seen some salt of the earth people go down for conduct that, intuitively, didn't seem illegal.

Now, you might say: "Mike, you are just proving my point. The Lacey Act's language is simple. And yet that simple language has led to complexity in the law."

My response would be: "I think we have different definitions of complex."

Imagine I say: "My latest comment hereby incorporates by reference herein: Every discussion we've ever had - whether over e-mail, in person, or in any other forum - real or imagined." That ain't simple! That's complex.

Laws should be simpler. That doesn't mean you use fewer words. It means that you use words thoughtfully.
9.24.2009 2:15pm
Sara:
ONE: 'You shall have no other gods before Me.'

Is "Me," in this context, the government? ;)
9.24.2009 2:15pm
Fub:
Complicated Karen: Great. Now let's start thinking about some exceptions. Imagine an Internet subscriber wants the ISP to disclose the contents of his e-mail. Maybe he has forgotten the password, or he needs an authenticated version. Should we have an exception for consent?

Clear Chris: Well, yes, of course. If the person really consents, then the government shouldn't need a warrant. That's obvious.
This makes no sense to me.

A subscriber who has forgotten his password will want his email (or his password) disclosed to him, not disclosed to the government.

If I forget my house key and I call a locksmith, I'm asking him to pick my house lock to let me enter my house, not to let the police enter.
9.24.2009 2:16pm
Ben P:

Is there anything else we might need?


Horrible example

There were actually 613 Commandments.
9.24.2009 2:16pm
...Max... (mail):
In Orin's example the rule "don't pass the law" applies especially well. If you want privacy, encrypt your bloody emails! If you lose your encryption key, that's your problem!
9.24.2009 2:16pm
LN (mail):
PatHMV,

Well would you want the bill to define "ISP"? That's going to add length and make it harder for ordinary mortals to understand. Or would you not want the bill to define ISP, and leave it up to the courts or to law enforcement to decide?

Complicated Karen didn't write a bill, she just asked some questions. As far as I can tell, answering these questions would require a fairly long and complex bill. It's interesting that commenters have decided to respond by moaning about all the poor people in jail for disobeying laws they couldn't understand. It's almost as if this is less about coming to grips with the actual causes of complexity in our legal system and more about nursing grievances, whether they are real or not.
9.24.2009 2:21pm
ShelbyC:
Well, if Complicated Kate's outcome is so complex that neither I, nor the agents who are serving the warant, can figure out when my email is protected, I'm not sure what good she's doing. And the law only means what the judge who reads it says it means anyway.

If the argument is that in order to get a clear rule about email, but I have to pay somebody $300/hr to tell me how that applies to me, and the rule is probably not very clear to him anyway, I'm not sure that's worth it.
9.24.2009 2:24pm
Kevin!:
Orin is too nice to state this, but the fact is that "common sense" as we think of it REQUIRES complex rules. Human behavior is complex! Our laws map onto a muddled, often contradictory sense of right and wrong.

Even killing another human being is a morass. It's easy to think of exceptions where killing is either partially excused or even completely justified. Self-defense springs to mind. And even that must yield to complexity. What if the killer was being robbed, but by an unarmed man? What if the killer acted to protect a third party? What if the killer was in his own home? What if the killer got into a fight, and his punch happened to knock the man into a live wire?

And yet, I can't think of an alternative that will work justice AND be so simple it could be summarized in a paragraph.
9.24.2009 2:24pm
ShelbyC:
Steve:

But the choice is not between simple legislation and complex legislation. The choice is between simple legislation accompanied by a crazy quilt of judicial decisions to fill in all the blanks, or complex legislation that fills in all the blanks on its own accompanied by a crazy quilt of judicial decisions.


Sorry dude, you know it's true. :-)
9.24.2009 2:26pm
Dilan Esper (mail) (www):
Professors Kerr and Posner are right.

If I can comment about what I suspect is the real issue floating in the background, I think a lot of folks who are suspicious of federal power and would like to see a more limited federal government assume that some sort of limitation on complicated legislation (whether by forcing legislators to read the bill or otherwise) will prevent big government.

I suspect this is both naive and wrong. It is naive because complicated legislation actually has very little to do with the extent of federal power. You can pass broad, vague statutes and grant the government a whole lot of power. Think about the provision of the Sherman Anti-Trust Act making contracts in restraint of trade illegal, for instance. Or Section 10 of the Securities Exchange Act.

Indeed, it is just as common that bills get complicated because of attempts to LIMIT federal power. For instance, the PATRIOT Act (a celebrated example of a bill that nobody read) contained various exceptions, exclusions, and sunset provisions to the powers that it granted. It would have actually been a lot shorter bill and easier to read if it had granted MORE power to the President.

And the "read-the-billers" are wrong in their assumption that a limitation on the amount or complexity of language in bills will lead to more limited government. Instead, it will lead to an expansion of the regulatory state. The problems that give rise to a popular desire for federal legislation, after all, will not go away. So instead of Congress passing the laws, they will likely just delegate and we'll have a proliferation of administrative rules that nobody reads instead. Instead of bloating the US Code, we will bloat the Federal Register.

If you want to shrink the size of the federal government, task numbers 1, 2, and 3 are to convince the public to shrink the size of the federal government. Not in abstract terms but very concretely-- cut programs A, B, and C, eliminate D and E, etc. Conservatives have failed to do that, because when it comes to specific programs, suddenly the American public doesn't seem so keen on cutting things (except for very small, symbolic programs).

But if you don't succeed at that, there's no magic bullet, whether through limitations on the language in bills or by trying to reinvigorate the limitations on the commerce power (an enterprise I actually think is somewhat correct as a matter of constitutional interpretation) that is going to work.
9.24.2009 2:29pm
einhverfr (mail) (www):
I think the obvious answer is that laws should be as simple as possible but no simpler. Laws should be as clear and understandable as possible but no clearer or understandable too.

I think the issue is whether simplicity and clarity in the law is an ideal worth striving for or whether we should just accept as much complexity as the congressional work schedule allows.
9.24.2009 2:29pm
Paul Horwitz (mail):
Not every law is a criminal law, of course, and not every non-criminal law is addressed in the first instance to or relevant to the general populace. Many are addressed to agencies with substantial expertise in these areas. One thing that seems to be missing from a lot of the discussion so far, Orin, is administrative law and the role of administrative agencies; perhaps it's time to bring it in.

A couple of points: 1) I will assume the commenters above who write in favor of the "simplest" possible laws, like the Ten Commandments or the Lacey Act, have no views on the matter of the judicial role. But it is worth pointing out, given the previously stated views of some other regular commenters on the blog, that the "simpler" the rule promulgated by the legislature, the more likely it is that courts will necessarily have to engage in extensive interpretation in given cases. One commenter above indeed recommends that we operate analogously in the kinds of cases Orin addresses in his post, and thus recommends that courts engage in a vast enterprise of common-law statutory interpretation. Lawmaking, law application, and law interpretation are interrelated activities, and simplicity at one end may generate complexity at another. So if the argument for the simplicity of legislation is about simplicity simpliciter, so to speak, and not about, say, legislative accountability, then one has to consider the system as a whole. In any event, without wanting to generalize too quickly, I am struck by the implicit tension between disliking legislative complexity and disliking an expansive judicial role -- unless one just wants both legislatures and judges to do less, which is a separate matter from how detailed the little they do must be. 2) A separate question raised by one commenter is how well or poorly legislation is drafted in Congress. This strikes me as a totally reasonable question, and an empirical one. Some legislative bodies in other states and countries relegate the role of legislative drafting almost entirely to professional drafting staffs; I believe congressional legislation is scrubbed but not drafted by permanent professional staff. Asking how we should structure legislative drafting in Congress strikes me as a reasonable question. But it suggests yet another tension with the "read the bill" arguments, since reposing this task with professional drafters is arguably both less democratic and further evidence that requiring members of Congress themselves to read every word of bills is not the highest and best use of anyone's time.
9.24.2009 2:30pm
Guest12345:
OrinKerr:

Ease up there; we're talking about a privacy law, not a criminal law. If Congress doesn't write such a law, there is no privacy.


I'm with ...Max... on this one. There is no law needed here, merely an educated set of IT processes. I could put together a 15 page pamphlet that will cover enough about encryption to create privacy and methods to be used at home to protect against the loss of your encryption keys. The whole thing would fit within the current framework of laws re. privacy. Zero new laws or court interpretations would be necessary.
9.24.2009 2:31pm
LN (mail):

It means that you use words thoughtfully.


I don't understand how you would have "thoughtfully" phrased the Lacey Act. In fact, I don't understand how McNab's problem was one of too much "complexity." According to the Reason article, he was not in violation of foreign law, but the US courts ruled that he was and the appeals court said they couldn't do anything about that.
9.24.2009 2:32pm
Kevin!:
Dilan: Your point about complexity equating to restrictions is very well made. I wish I had thought of it!

I think I got confused because exceptions to constitutional amendments often expand governmental power. But those are (rare!) limiting laws. Ordinary legislation is about positive power, which means that exceptions limit governmental reach and discretion.
9.24.2009 2:32pm
Fub:
Kevin! wrote at 9.24.2009 2:24pm:
Even killing another human being is a morass. It's easy to think of exceptions where killing is either partially excused or even completely justified. Self-defense springs to mind. And even that must yield to complexity. What if the killer was being robbed, but by an unarmed man? What if the killer acted to protect a third party? What if the killer was in his own home? What if the killer got into a fight, and his punch happened to knock the man into a live wire?
The laws on defenses to murder or manslaughter, though they vary by state, are relatively simple and easily understood by laymen. The examples you offer here are questions of fact that are routinely decided by juries of laymen applying those laws to the facts presented at trial.
9.24.2009 2:34pm
ShelbyC:

For instance, the PATRIOT Act (a celebrated example of a bill that nobody read) contained various exceptions, exclusions, and sunset provisions to the powers that it granted. It would have actually been a lot shorter bill and easier to read if it had granted MORE power to the President.


IIRC, it was also one of the most misunderstood laws in recent memory. On of the problems is that nobody knew how much power was being given to the President.
9.24.2009 2:37pm
PatHMV (mail) (www):
There must, of course, be some balance between comprehension-crippling levels of detail in statutes on the one hand and free reign to courts to make policy on the other hand. But I've yet to see anybody step up to the plate and say "yes, it's unjust to penalize somebody for breaking a law which is too complex for even an ordinary member of Congress to understand by reading it."

I'm well aware of the difficulties of legislative drafting. If you define "person" in one statute, and then insert cross-references adopting that definition of "person" in a couple of hundred related statutes, those statutes become harder to understand. But if you redefine "person" in each new, separate statute, you run the risk of accidentally creating new definitions for the term, so that "person" then means different things in different, but related, statutes.

I haven't yet seen anybody defend the actual level of complexity and complex drafting which we observe in most Congressional legislation today. Are the defenders of Congressional non-reading claiming that everything is just fine? No, Orin himself said in a comment yesterday that he's not denying the existence of a problem. So what solutions other than "read the bill" do you guys have?

And will anybody be man enough to say "no, it's not unjust to penalize a citizen for breaking a law which was too complex to be understood by ordinary members of Congress?"
9.24.2009 2:42pm
PatHMV (mail) (www):
And here's the other thing. Given the current level of complexity, those intricacies of drafting DO matter. Remember, a 1:1 scale map requires the exact amount of space as the space being mapped. A summary, even an honest and relatively well crafted one, necessarily fails to fully describe all of the ramifications of a statute. How complicated will the summary of the legislation being discussed by Complicated Karen and Clear Chris be? Will it answer questions in that same level of detail as Karen demands? I doubt it, because then the summary would be as long and as complicated as the bill itself, and no more comprehensible.
9.24.2009 2:46pm
Sara:

And will anybody be man enough to say "no, it's not unjust to penalize a citizen for breaking a law which was too complex to be understood by ordinary members of Congress?"


I might not be man enough, but if I am engaged in securitites transactions, I should have a better understanding of the law regarding securities than your average congress person.
9.24.2009 2:53pm
Officious Intermeddler:
The example entirely misses the point because it conflates comprehensiveness with complexity. The two are not the same.

In my previous life before becoming an attorney I was a software engineer, and was asked on countless occasions to produce code that would gracefully (or "sensibly") handle a wide range of anticipated and unanticipated states. It was never necessary, to solve these problems, to write something that would win prizes in an Obfuscated Perl contest. Even when the code ran to hundreds of thousands of lines in length, the "KISS" principle remained operative: classes were packaged in logical chunks, algorithms were chosen for clarity and elegance, and logic flows were documented in jargon-free detail to the point that non-technical people -- like our SOX auditors -- could review the code and rapidly understand what it was doing.

So it is with the law. The fact that human behavior has a lot of anticipated and unanticipated states does not necessitate the production of something as hopelessly Byzantine as, say, the U.S. tax code.
9.24.2009 2:57pm
frankcross (mail):
I'm against complex legislation, but the critics have it backwards. If legislation is simple, its inevitable lack of specificity will be resolved by a court. So citizens won't be on notice of the content of the law beforehand, because it will have to be resolved by a court. Perhaps an administrative agency. And it won't be "unjust to penalize" the citizen for something not clear from the face of the law, until interpreted by a court. I'm fine with this, I think courts and agencies are better than Congress at filling in the interstices. But the critics are missing the boat

The point about the tradeoff between complex legislation and delegation to courts and agencies has been made by multiple people, and I have yet to see any response to it, just hiding from the implications. But you have to come to grips with this if you are going to criticize complex litigation
9.24.2009 3:00pm
ShelbyC:
Sara:

I might not be man enough, but if I am engaged in securitites transactions, I should have a better understanding of the law regarding securities than your average congress person.


Why? A good chunch of us buy and sell stock and bonds. Does that count?
9.24.2009 3:00pm
Whadonna More:

LN:

SIX: 'You shall not murder.

Complicated Kate: We have to define "murder."
Clear Chris: Murder is the killing another person.
Complicated Kate: Does it include killing in self-defense or in the context of war?
Clear Chris: Ok, murder is the unpermitted killing of another person, so self-defense and war aren't murder.
Complicated Chris: What about mistaken cases of self-defense, or insanity, or immoral acts of war? How about paying another to kill, or killing yourself?
Clear Chris: Bite me, I'm an atheist.
9.24.2009 3:02pm
Han Solo:
Along the same lines...I think the people of the US have made a terrible mistake in allowing ANYONE to 'interpret' the laws.

If a law is unclear then it should be re-written, re-voted on and suspended until such thing occurs.


Same for the constitution. The supreme could should not have the ability to 'interpret'. If its unclear, than that section should be suspended until a new constitutional convention can occur and that part of the constitution can be re-written and re-voted on.


This 'interpreting' stuff just puts too much power in the hands of too few a number of people.
9.24.2009 3:02pm
Rich B. (mail):
To further Orin's point in a different way, many laws make drastic changes in what they DON'T say, rather than what they do.

I believe that some of the fuss about abortion in the health care bill was not that the bill said "Abortions will be covered," but that the bill did not specifically carve out abortions, which some interpreted as implicitly permitting coverage.

So, "reading the bill" doesn't get you anywhere without a background understanding of every other bill, so you would know whether there was a default position.
9.24.2009 3:02pm
KeithK (mail):
Certainly laws need a certain degree of specificity and detail to properly account for a wide range of subjects, particularly if one doesn't simply want to give broad sweeping powers to the government. However, if the number of special cases and exceptions and clarification clauses and so forth gets large enough its probably an indication that the design of the law is flawed at a fundamental level.
9.24.2009 3:06pm
pintler:
I think there are good points on both sides. Perhaps an alternative would be to rethink the 'ignorant of the law' defense. Obviously, you can't allow a blanket exception for ignorance of the law, or every defendant would be simply shocked to learn that bank robbery was against the law.

OTOH, it bothers me that a jury could get instructions that say 'if you believe the defendant unwittingly violated this obscure law, convict' when all twelve are thinking 'well, he sure did it, but I had no idea that was against the law'.

So perhaps we should allow a 'reasonable man' exception - if the jury believes that a reasonable man in the defendant's position wouldn't have had a clue that X was illegal', they can acquit.
9.24.2009 3:09pm
einhverfr (mail) (www):
Dilan:

I think the question has a lot more to do with rate of change than with complexity of the law today. While the latter is an issue especially when combined with the likelihood that most of us are federal criminals, the former is how we got here.

I think that it is good to request that our congressmen make a good-faith effort to read and understand regulatory and criminal legislation before voting on it. This doesn't mean that staffers don't have a role here. Certainly they can do many things to help the congressmen understand the bill, but the congressman should still attempt to read through bills to a reasonable degree as at least an extra set of eyes.

Obviously, I have always said appropriations bills are an exception. General provisions in the bills should be reviewed. Basic divisions of spending should be reviewed. Any areas of special interest should be reviewed. However the whole bill needs not be read.

Simplicity is an ideal. Clarity is an ideal. We should hope our legislators will strive towards these ideals. However no legislation can meet them perfectly, and some level of complexity and vagueness is unavoidable. However, that doesn't mean the ideal is not worth pursuing.
9.24.2009 3:10pm
einhverfr (mail) (www):
Han Solo's points are funny and bely entire ignorance of the study of human communication!
9.24.2009 3:12pm
yankee (mail):
Is there anything else we might need?

Perhaps some of these:

You shall not make for yourself an idol in the form of anything in heaven above or on the earth beneath or in the waters below; or

Love the Lord your God with all your heart and with all your soul and with all your mind; or

Love your neighbor as yourself; or

If anyone curses his father or mother, he must be put to death; or

Do not cook a young goat in its mother's milk.

There's plenty more where those came from.
9.24.2009 3:16pm
einhverfr (mail) (www):

Complicated Chris: What about mistaken cases of self-defense, or insanity, or immoral acts of war? How about paying another to kill, or killing yourself?


Suicide is murder and usually premeditated. It should be a capital crime.
/sarcasm
9.24.2009 3:20pm
einhverfr (mail) (www):
On the initial dialog, here are my thoughts:

1) Email contents should require a warrant, while outside-of-the envelope headers might only require a subpoena.

3) If the ISP consents to hand over private email contents, that is between the ISP and the customer, not between the ISP and the government. I.e. the ISP can do things but the customer should be able to sue. To beat the suit, the ISP should be granted a necessity defence.
9.24.2009 3:26pm
D.O.:
Prof. Kerr, wouldn't it be interesting to try one of those polls, which reveal judicial/political corelations of readers:
1) I am for requirying each legislator to read any bill cover to cover before voting "aye" AND I do prefer for Congress to pass what would be reasonable in my view form of health care bill this year
2), 3), 4) -- all combinations of negatives to the previous statements.
9.24.2009 3:26pm
Steve:
Sorry dude, you know it's true. :-)

Shelby, I find I must concede the point.
9.24.2009 3:26pm
Sara:

Why? A good chunch of us buy and sell stock and bonds. Does that count?


How does Shelby's law define "count"?
9.24.2009 3:36pm
Mike McDougal:
Something needs to be done with the notion that people are presumed to know the law.

The underlying notion is absurd. Not even the most experienced lawyers, judges, and legal scholars have anything remotely approaching actual knowledge of all the general issues in law, much less knowledge of the actual text. But it gets worse. Even if the law were immediately accessible to people, the vast majority of them would be unable to comprehend major portions of it (this is particularly true for federal legislation). Thus, people are forced to live a life in which there is the unavoidable risk that the government will crush them and there is little a person can reasonably do to avoid it.

I don't see this so much as an issue between simple laws and complex laws. Rather, I think the more important issue is whether those expected to fall within the law's grasp can reasonably be expected to comprehend the law. If the answer is no, enforcement of the law is a Kafka-esqe nightmare. It would hardly be worse for people to be regulated by secret laws or laws written in an unknown foreign language.
9.24.2009 3:41pm
Skyler (mail) (www):
I'm with JMA. The example was very poorly crafted, Orin.

First, what does it mean to be "protected by a warrant?" I take it that you mean that the government must get a warrant to view the email.

So, what on earth does this have to do with an ISP? Unless the ISP is the government? And even then, your example is simply asking the ISP for the password to the account. Why would I need a warrant for that?

Do I need a warrant to go to home depot and make a copy of my key to my house? Or rekey the locks on my car?

Complicated Karen is a bit of a dizzy dame, and Clear Chris is a dunce as well.

The rule is simple. Laws should be clear and as simple as possible, with exceptions spelled out as clearly as possible. But what we want is irrelevent. I want a lot of things that I'm not going to get.
9.24.2009 3:46pm
Mike McDougal:

Orin is too nice to state this, but the fact is that "common sense" as we think of it REQUIRES complex rules. Human behavior is complex! Our laws map onto a muddled, often contradictory sense of right and wrong.

When the law becomes incomprehensible, its enforcement is reprehensible.
9.24.2009 3:48pm
LN (mail):
It's fascinating just how much more complicated the law got after November 2008. I mean, wow.
9.24.2009 3:56pm
Brian Garst (www):
Saying that today's laws are entirely too complicated does not mean that one thinks laws must be extremely simple. Rules can be robust enough to deal with the complexities of life without requiring 70,000 pages, like our tax code does.

I just don't get the insistance on caricatures and false delimmas around here lately.
9.24.2009 3:56pm
PatHMV (mail) (www):
LN... how many bills were pushed through, during the Bush Administration, which affected over 10% of GDP, without adequate time for the public to read and understand them? To forestall arguing the point, I'll cede you the PATRIOT ACT. Name another.
9.24.2009 3:59pm
Brian Garst (www):
And let's not forget that the "complexity" of modern law is not necessarily from each bill being lengthy and complex (though some obviously are), but a consequence of the sheer scope and breadth of issues which the federal government has taken up, despite what is often a clear lack of authority to do so.

The "complex problems require complex solutions" defense just doesn't do much to satisfy complaints about the government specificy fonts to go on signs, or the size of holes allowed in Swiss cheese, and on and on the stupidity goes.
9.24.2009 4:01pm
Dilan Esper (mail) (www):
LN... how many bills were pushed through, during the Bush Administration, which affected over 10% of GDP, without adequate time for the public to read and understand them? To forestall arguing the point, I'll cede you the PATRIOT ACT. Name another.

How about Medicare Part D?
No Child Left Behind?
The 2001 Budget Reconciliation / Tax Cut Bill?
TARP?
The Authorization to Use Military Force in Iraq?

Those are just off the top of my head.
9.24.2009 4:07pm
LN (mail):
So 10% is the magical cutoff number? How much time the public have to look at TARP? (Heh.) How much time did people spend reading the details of No Child Left Behind, Bush's Medicare reform, Bush's tax cuts? How transparent was the buildup to the Iraq War?

Really, is the worry truly that the evil socialists currently running the government aren't going to be sufficiently careful in writing up their totalitarian health care bill?
9.24.2009 4:07pm
ChrisatOffice (mail):
What Dilan and Frankcross said.
9.24.2009 4:08pm
Brian Garst (www):
frankcross:


The point about the tradeoff between complex legislation and delegation to courts and agencies has been made by multiple people, and I have yet to see any response to it, just hiding from the implications.

It's a false dilemma that assumes the conclusion. Only if you start with the erroneous assumption that all complexity within the law is vital for rulemaking do you think that any simplification necessarily means handing the law over to the judiciary.

Some of it is just crap. It's there to create a dedicated function for a few elites to whom we must all turn if we want to actually understand the rules which we are making for ourselves.
9.24.2009 4:15pm
Brian Garst (www):

How about Medicare Part D?
No Child Left Behind?
The 2001 Budget Reconciliation / Tax Cut Bill?
TARP?
The Authorization to Use Military Force in Iraq?

Those are just off the top of my head.


The Authorization for the Use of Military Force Against Iraq was 3 pages. Somehow I think they had time to read it.
9.24.2009 4:21pm
Dilan Esper (mail) (www):
Some of it is just crap. It's there to create a dedicated function for a few elites to whom we must all turn if we want to actually understand the rules which we are making for ourselves.

It is wishful thinking to think that we can escape this.

Take securities law. Most people like the stock market. It's great that people can invest their money in corporations, and that corporations can grow that money and make the country wealthier. It provides for people's retirements, etc.

But when you actually get down to the nitty gritty, securities law is REALLY COMPLICATED. Why? Because the underlying transactions are really complicated. Sure, one could probably draft some simple rules if the only two instruments that people were allowed to buy and sell were one class of common stock and one type of bond. But if you believe-- as most conservatives do-- that the various types of futures and derivatives and investment vehicles tailored to different risk levels and securitized mortgages and commodities contracts and options and hedge funds and all the rest are valuable to society, well, there goes your simple rules. Because all of those investments are very complicated, and regulation is needed because on the one hand, entities which invest in these vehicles may be too big to fail, and on the other hand, the wealth-maximizing potential of the markets will not be realized if the public thinks they are rigged.

So suddenly, you need an SEC, and you need specific rules. And then, over time, the rules become an iterative process where ever more precise rules are needed to address the flaws in earlier rules.

There's no escape for this, unless your solution is just let the markets crash and the public suffer.
9.24.2009 4:21pm
Dilan Esper (mail) (www):
The Authorization for the Use of Military Force Against Iraq was 3 pages. Somehow I think they had time to read it.

However, they didn't review the intelligence that was necessarily to correctly evaluate the Iraq War. Which is a nice demonstration of how controlling the size of bills won't necessarily get you good legislation.
9.24.2009 4:22pm
PatHMV (mail) (www):
Medicare Part D I'll grant. I did not approve of the parliamentary maneuvering that went on at the time. Of course, conservatives out in the country largely opposed that bill, and Democrats objected only because it did not provide enough benefits, in their view.

No Child Left Behind? You'll have to take that up with its co-sponsor, the late Teddy Kennedy.

The Authorization to Use Military Force in Iraq was a grand total of 4 1/4 pages long. Anybody could have read that in full with about 15 minutes to spare, and they had much more time to debate it than that.

I'll also agree that TARP was handled terribly, and I can most definitely assure you I was screaming as loud as I could about it at the time, as were many other conservatives and libertarians. In fact, I specifically asked for justone week to read the bill.
9.24.2009 4:26pm
ShelbyC:
Sara:

How does Shelby's law define "count"?


A good chunck of us, sorry for the typo. I'm wondering if the minor stock trading that many of us do means that, per your statement above, we should have a better understanding of the law regarding securities than your average congress person. It sound like you're saying that if we do anything subject to regulation, we should be pro's at it.
9.24.2009 4:27pm
Mary Rosh:

No Child Left Behind? You'll have to take that up with its co-sponsor, the late Teddy Kennedy.


Oh so you're saying that this is just a partisan squabble dressed up as some high-minded concerns about transparency in government? Gotcha.
9.24.2009 4:28pm
PatHMV (mail) (www):
But Dilan your same example is an excellent illustration of the need to hold Congressmen accountable for reading what's required to make a proper decision. In the case of the Iraq resolution, nobody on the Democratic side, as I recall (certainly none of the Democratic leadership) actually disputed the intelligence. They disputed whether war was the proper response to the intelligence, but they didn't dispute the intelligence... because it was the same intelligence which had been gathered and evaluated and promoted by the Clinton Administration just 2 or 3 years before.
9.24.2009 4:29pm
Brett Marston:
I'm with Dilan and Kevin!. Devising rules to limit complexity without losing the advantages that complexity provides is very difficult.

The problem is kind of built in to notions of legitimacy of modern law, as Habermas (and others) have noted. Modern law rests in part on the claim that law must be public, general, and accessible to be rational and therefore legitimate. In particular instances this is usually (but not always) straightforward, but looking at the law as a system, it's hard. So the urge to simplify, wipe it away, start over, etc., is a constant theme in modern politics.

You can also deal with the tension by inventing corruption stories about our decline from simpler ages. See Glenn Beck; c.f. Jon Roland's claim on the previous thread here that we need to purge laws starting with 1886 going forward. Or if you are not happy with the corruption genre, you can try shifting around institutional responsibilities, like saying federal common law should trump statutes. But the issue runs really deep in our political culture.

For me, that's why the discussion is interesting, even if the starting point - "Read the Bill" - is not really on target. It opens up a lot of other, more fundamental issues.
9.24.2009 4:30pm
alkali (mail):
@Brian Garst: Rules can be robust enough to deal with the complexities of life without requiring 70,000 pages, like our tax code does.

You're off by a factor of 4. You can buy a nicely annotated two volume set of the federal tax code that clocks in at just under 5,000 pages. If you want a complete set of the tax regs, that will be six volumes and 11,700 pages.

That's not to say that we couldn't have a shorter tax code, but don't believe the hype. (Incidentally, if you ever feel enthusiastic about urging that we should make the tax code a lot simpler without raising anyone's taxes a penny, you might think for a while about whether that is something that could really be accomplised in practice.)

Relatedly, if you've never seen a copy of the entire US Code, do your patriotic duty and go to a good public library sometime and sit down with it for an hour or two. Keeping in mind that the US is the most technologically advanced society in human history, our legal code is big, but not as big as you might think. The U.S. Code Annotated, a standard version with lots of little notes that aren't part of the code itself, takes up about a bookcase and a half. The complete set of federal regs takes about about as much space.
9.24.2009 4:30pm
einhverfr (mail) (www):
LN:

Some of us have been saying this for years, regardless of who is in charge.
9.24.2009 4:31pm
einhverfr (mail) (www):
(Also it is true whether we are ruled by bloated elephants or asses.)
9.24.2009 4:31pm
PatHMV (mail) (www):
No, Mary, I think there are good arguments for transparency, and I've listed times when I disagreed with the prior administration and prior Congressional handling of similarly weighty matters. I was doing so in response to a suggestion by LN that the demand for transparency was partisan, because he thought it seemed to have magically arisen since Jan. 20, 2009. My reference to Ted Kennedy was to demonstrate that, whether NCLB was railroaded through or not, it was not a good example for his suggestion of partisanship by the transparency advocates, because if anybody railroaded it through, it was Ted Kennedy who helped do it.
9.24.2009 4:32pm
ShelbyC:
Above should be:

It sounds like you're saying...

Geez. It's a good think I'm not doing work...
9.24.2009 4:32pm
Dilan Esper (mail) (www):
But Dilan your same example is an excellent illustration of the need to hold Congressmen accountable for reading what's required to make a proper decision. In the case of the Iraq resolution, nobody on the Democratic side, as I recall (certainly none of the Democratic leadership) actually disputed the intelligence. They disputed whether war was the proper response to the intelligence, but they didn't dispute the intelligence... because it was the same intelligence which had been gathered and evaluated and promoted by the Clinton Administration just 2 or 3 years before.

It's off the topic, but basically, the way the Iraq War went down had little to do with what the intelligence said-- there were clearly some dissenters in the intelligence community who were putting out warning flags to those who would listen-- and more to do with what Republicans and Democrats wanted to do. Republicans wanted to invade Iraq and support Bush; Democrats wanted to avoid opposing a (then) popular war. So everyone had an excuse to ignore the warning signs and they did.

That, of course, is another point about this discussion. Most voting decisions in Congress are based much more on the next election than what is in the bill, and this is true of both parties. Reading the bill isn't going to change these incentives.
9.24.2009 4:32pm
LN (mail):
My point was that it's very odd that all these people are suddenly concerned about the complexity of federal legislation, as if that suddenly came into existence 2 months ago. Pointing to a bill that hasn't even passed yet does not seem to be an adequate explanation.
9.24.2009 4:33pm
rj (mail):
Oh great, now we're debating the Iraq War.

...anyway, my question is this: do we really have an epidemic of people going to jail for good-faith violations of statutes they can't understand? Has the private sector gone into a state of paralysis because a corner grocer can't grasp the complexities of SarbOx?

For better or worse, we have been writing wordy, complicated laws for a long time and the nation hasn't collapsed. Why should that change now that different people are writing the laws?

Every time an administration changes, the losers of the previous election start claiming that America will crumble if the winners implement their platform. They warn of incipient communism or fascism. It doesn't seem to happen, ever. As boring as it sounds, the system works.
9.24.2009 4:38pm
Dilan Esper (mail) (www):
Pat:

I don't think you can get off the hook simply by saying that Republicans supported these bills but conservatives opposed them.

This may or may not be true, but it's worth noting that movement conservatives have quite a lot of power when they wish to use it. We don't have a comprehensive immigration bill partly because of that. And we are seeing right now the power of the movement on health care reform. We also saw it on Terri Schiavo.

For whatever reason (and I think I actually know the reason), movement conservativism decided NOT to go to the mat on NCLB, Medicare Part D, and TARP (until Obama was elected). They whined, but they didn't protest, they didn't hold huge letter writing campaigns, they didn't innundate Fox News and talk radio, etc.

Now, this, by the way, doesn't necessarily make conservatives bad people. It's natural to want your side to win. I can tell you there are a lot of liberals who favor single payer and who think Obama's health care plan is a terrible way to go but who will nonetheless mute their opposition to it. And there were clearly conservatives (and liberals) who muted their opposition to the Iraq War in 2002.

But it also means that you can't really point to conservative statements against Bush big government initiatives and say "you see, this doesn't prove anything, it was all Bush and congressional Republicans' fault and the base opposed it". The base opposed it, but didn't really oppose it. They opposed it just enough to give them some deniability.

Bush, in all RELEVANT respects, was a candidate and President who received the deep and fervent support of movement conservativism. Thus, it's perfectly legitimate to hold conservatives responsible for the non-conservative parts of his agenda.
9.24.2009 4:40pm
LN (mail):

My reference to Ted Kennedy was to demonstrate that, whether NCLB was railroaded through or not, it was not a good example for his suggestion of partisanship by the transparency advocates, because if anybody railroaded it through, it was Ted Kennedy who helped do it.


"If anybody did it, it was Ted Kennedy who helped do it." Yes, he single-handedly helped out.

Go to the Wikipedia page for NCLB. It apparently amended something like 30 other acts (right sidebar). Sounds like horrible complexity to me.

I don't remember anyone complaining about "read the bill" back then. What does Ted Kennedy have to do with anything? The President and virtually everyone in Congress was on board... and not a peep from the transparency folks.
9.24.2009 4:42pm
Sara:
Shelby, I think I am saying that if you engage in areas governed by specialized law, you should/would know more about that law then someone who does not, whom merely has a generalists knowledge of the law.
9.24.2009 4:50pm
CDU (mail) (www):
Orin is too nice to state this, but the fact is that "common sense" as we think of it REQUIRES complex rules.


True. Look at artificial intelligence research, for example.
9.24.2009 4:51pm
wyswyg:

Complicated Karen: Great. Now let's start thinking about some exceptions. Imagine an Internet subscriber wants the ISP to disclose the contents of his e-mail. Maybe he has forgotten the password, or he needs an authenticated version. Should we have an exception for consent?




Sorry, but resetting your password has nothing to do with the contents of your email. "Authenticated version" is likewise meaningless.
9.24.2009 4:54pm
Jozxyqk:
@Skyler:

Clear Chris is a dunce as well.


True. I completely agree with Prof. Kerr on substance, but Clear Chris was just too stupid to take the dialogue seriously. He (Chris, not Kerr) is particularly good, however, if you read him in Keanu Reeves's voice.

"Woah, that's a lot of questions!"
9.24.2009 4:54pm
wyswyg:




It's off the topic, but basically, the way the Iraq War went down had little to do with what the intelligence said-- there were clearly some dissenters in the intelligence community who were putting out warning flags to those who would listen-- and more to do with what Republicans and Democrats wanted to do.



The intelligence supported the invasion of Iraq.
9.24.2009 5:04pm
ShelbyC:
Sara:

Shelby, I think I am saying that if you engage in areas governed by specialized law, you should/would know more about that law then someone who does not, whom merely has a generalists knowledge of the law.


So are you saying that the read the bill requirement would eliminate a certain form of rent, that is the need to acquire a certain level of knowelege before engaging in areas governed by specialized law?
9.24.2009 5:05pm
Dilan Esper (mail) (www):
The intelligence supported the invasion of Iraq.

No, it really didn't. The summarized and stovepiped intelligence did, but there were plenty of doubters in the intelligence community; you just had to dig down to find them.

Some of the major claims made by intelligence officials (such as the aluminum tubes, the Yellowcake purchase from Africa, and the supposed connections with Al Qaeda) were either known or suspected of being false by many in the intelligence community.

The point is exactly this-- you could have read the Iraq War resolution and understood it. But what you really needed to do was find out the actual facts (as opposed to the line of BS the Bush Administration was feeding the public and Congress). Reading the bill was little help in making the right decision.
9.24.2009 5:10pm
wyswyg:

we're talking about a privacy law, not a criminal law. If Congress doesn't write such a law, there is no privacy. That prospect might not bother you, but it bothers me, and I'm simply bringing up the problems with drafting a privacy law in the right way.




I have to take issue with the notion that we need a law, complex or otherwise, in order to have privacy. For most of American history people had all the privacy they could wish, despite the lack of laws giving it to them.

You are making this far more difficult than it needs to be. If the government wants to look at someones mail, paper or electronic, they need to get a warrant and show justification for why the warrant is needed. Nothing new and complex needed here.
9.24.2009 5:14pm
CJColucci:
Something needs to be done with the notion that people are presumed to know the law.

The underlying notion is absurd. Not even the most experienced lawyers, judges, and legal scholars have anything remotely approaching actual knowledge of all the general issues in law, much less knowledge of the actual text. But it gets worse. Even if the law were immediately accessible to people, the vast majority of them would be unable to comprehend major portions of it (this is particularly true for federal legislation). Thus, people are forced to live a life in which there is the unavoidable risk that the government will crush them and there is little a person can reasonably do to avoid it.



rj's response put it more succinctly than I had planned to:

do we really have an epidemic of people going to jail for good-faith violations of statutes they can't understand? Has the private sector gone into a state of paralysis because a corner grocer can't grasp the complexities of SarbOx?

Most of the vast complexity of the law, particularly federal law, has next to nothing to do with most of us. The complex stuff, for the most part, is specialized and regulates the behaviour of specialists, in it for the money, who can and should and do consult with experts.
9.24.2009 5:15pm
LN (mail):
I completely agree. I propose a simple rule: E-mail should be protected by a warrant.
9.24.2009 5:15pm
LN (mail):
Writing in response to wyswyg.
9.24.2009 5:17pm
wyswyg:

No, it really didn't. The summarized and stovepiped intelligence did



Yes, it really did. Are you really against summarizing documents? "Stovepiping" is one of those phrases the left whipped up to try to suggest that something underhanded was going on. Multiple investigations have found zero evidence that the intel was being politicized. Stop pushing insane conspiracy theories.



what you really needed to do was find out the actual facts (as opposed to the line of BS the Bush Administration was feeding the public and Congress).



That would be the exact same line of BS which the Democrats under Clinton were feeding the public in the ninties. There were no "actual facts" out there waiting to found if only people took the trouble to look at them. The intel was what it was. Was it wrong? Sure. But it takes a warped mind to concoct a scenario in which it was deliberately deceptive. Unless you think that the entire leadership cadre of the Democratic Party was in on the neocon plot.
9.24.2009 5:23pm
Bill Harshaw (mail) (www):
A former government professor of mine, Theodore Lowi, won some fame in 1969 by writing "The End of Liberalism". His argument then IIRC was that New Deal and Great Society liberalism had sold out its principles by delegating too much authority to the bureaucrats. Implicitly he was arguing for Complicated Karen's position. (Of course, I did badly in his course, so I may have it all wrong.)

For those who argue that simple laws leave much to judges to interpret, I'd remind them that most simple laws first must pass through the bureaucratic regulation-writing process, where dedicated bureaucrats try to resolve the ambiguities our illustrious solons leave in their laws, before the judges get their chance at adding clarity.
9.24.2009 5:31pm
Deoxy (mail):
If it's too complicated for someone with an IQ of 80 to understand, it's too complicated to be enforced on them. End of story.

The world is simply NOT that complicated. It gets MADE complicated to serve the people who are trying to complicate it.

Privacy law is a great example of this. There is not one bit of privacy law that would not be simpler as property laws. You can't look into my house without my permission because IT'S MINE, not because of some penumbrally-invented "privacy".

Your email example is great for this. When can the government look at your email? Use the same rules about looking in your house. The information they learn that way is still YOURS, so they may only do with it what they could do with anything they can legally TAKE from you.

There's no special rule needed for email, any more than there is a special rule needed for STUFF you keep in a foreign country. The rules are made complex to serve the people who want them to be difficult to understand. Or by the lazy, that happens, too.
9.24.2009 5:34pm
alkali (mail):
Privacy law is a great example of this. There is not one bit of privacy law that would not be simpler as property laws.

And property law is so simple?
9.24.2009 5:37pm
Dilan Esper (mail) (www):
Yes, it really did. Are you really against summarizing documents? "Stovepiping" is one of those phrases the left whipped up to try to suggest that something underhanded was going on. Multiple investigations have found zero evidence that the intel was being politicized. Stop pushing insane conspiracy theories.

This is just bats. The actual intelligence showed that (1) the aluminum tube story was false, (2) there was no purchase of yellowcake from Africa and the documents that showed such a purchase were forged, and (3) there was no operational connection between Iraq and Al Qaeda.

So how, exactly, did the contrary claims come to be endorsed by Bush Administration officials. It doesn't matter what LABEL you put on this-- it is a clear disconnect between what the intelligence said and what the policymakers said it said.

That would be the exact same line of BS which the Democrats under Clinton were feeding the public in the ninties.

So what? Clinton supported war with Iraq. We know this. Look, "Clinton did it too" is not an excuse for selling the country a line of BS about Iraq.

There were no "actual facts" out there waiting to found if only people took the trouble to look at them. The intel was what it was. Was it wrong? Sure.

You are defining "intel" very narrowly as "that stuff which the Bush Administration approved for public consumption". It was "intel" that determined that the yellowcake documents were forgeries, that there was no operational connection between Iraq and Al Qaeda, and that the aluminum tubes story was BS.

So, SOME intel was wrong. Other intel was right. And the administration chose the intel most favorable to its case.
9.24.2009 5:39pm
James Kliegel (mail):
The example is complicated because your architecture is bad. Sending clear email over the internet should have no expectation of privacy. If you want privacy use encryption. Then there is no need to pester the ISP. If there is a need to examine the email, get a warrant, and compel the revelation of the key.

Rather than further complicate the law, repeal all of the privacy laws regarding wire taps, etc. Technology has removed the need for creating privacy in the law, we now have real privacy if wanted.
9.24.2009 5:47pm
Sara:

So are you saying that the read the bill requirement would eliminate a certain form of rent, that is the need to acquire a certain level of knowelege before engaging in areas governed by specialized law?


No. I don't see how reading the bill could substitute for working within the regulated area, unless, you, otherwise, became an expert through intensive study, which would involve years more work than reading the bill and, also, probably, involve years more work than working in the specialized field.

Life of the law is experience; experience is the best teacher (and all that).
9.24.2009 6:02pm
Off Kilter (mail):
This seems pertinent...



Summary of Three Felonies a Day
How the Feds Target the Innocent
HARVEY SILVERGLATE

"The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, even for the most seemingly innocuous behavior.

The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance."
9.24.2009 6:15pm
Off Kilter (mail):
Link above didn't work. For your interest: www dot encounterbooks dot com forward-slash books forward-slash threefelonies
9.24.2009 6:17pm
SamW:
Off Kilter, what percentage of the population worries about breaking federal law? Even your book blurb says, no one. Probably, because almost no one is arrested for federal crimes.
9.24.2009 6:26pm
Off Kilter (mail):
I'm sure very few people worry about it, SamW...until it happens to them. I imagine Cheye Calvo, the mayor of Berwyn Heights, MD, didn't worry about SWAT raids at his residence last summer, until the police did a home invasion on his house, killed both his dogs, and held him in a state of terror for several hours until deciding they had made a mistake... He discussed the current state of the incident after one year has passed recently in the Washington Post. No redress for him or his family; no apology; no cops held responsible.

People don't have to worry about something for it to be significant, Sam. If you're violating on average 3 felonies a day and don't know it, that suggests the laws are not clearly written. If you can be prosecuted at any time on the whim of the DA, that suggests a government of men not of laws.
9.24.2009 6:46pm
TNeloms:
Off Kilter, your link intrigued me, and I actually got excited about reading it, but then I found this review, http://blog.simplejustice.us/ 2009/07/11/ book-review-three-felonies-a-day.aspx (take out the spaces), which basically says that the book offers few or no examples of everyday activities that normal people do that could be crimes.

Have you read the book? Do you think the review is wrong? Do you know of any specific examples of crimes that average people unknowingly commit?

(By the way, I hope the review is wrong, because it looked like a fascinating book.)
9.24.2009 6:54pm
LN (mail):

the police did a home invasion on his house, killed both his dogs, and held him in a state of terror for several hours until deciding they had made a mistake


I really don't see how this relates to the complexity of federal law.


If you're violating on average 3 felonies a day and don't know it, that suggests the laws are not clearly written.


This book is reviewed here.


More troubling was that the book essentially disproves its thesis, that while the government could use the broad, vague wealth of laws available to it to go after the most innocuous conduct by ordinary people, the book offers nothing to suggest it actually does. In almost every instance, the conduct involved emitted a sufficient odor to distinguish it from the type of things that ordinary folks do. While they reflect prosecutions that should never have happened, they aren't so absurd or off the wall to cause fear amongst the masses or outrage within the bar. The distinctions often relied on a technical understanding of law that only a legal wonk could appreciate.
9.24.2009 6:56pm
Off Kilter (mail):
LN/TN: No, I haven't read the book. I happened to come across it on the Net, recognized the author as someone I had read before and respected, and thought based on the Internet blurb it was pertinent to this discussion. The review suggests otherwise. Sorry to have bothered you.
9.24.2009 7:16pm
Jon Roland (mail) (www):
Perhaps a better approach would be some kind of sunset requirement, such as this one:

Sunset of legislation
Every bill enacted by Congress shall expire one year after enactment unless re-enacted, and unless the re-enactment shall be by a 60% vote in each House, it shall be rescinded to the date of previous enactment.

That would limit the damage of bad legislation and give people time to review it, and put the burden on proponents to re-enact rather than on opponents to mount an effort to repeal it.
9.24.2009 7:35pm
Jon Roland (mail) (www):
The hypo problem is an attempt to define the term "reasonable" as it applies to warrants, presumably because the legislators don't trust judges to exercise that discretion nonabusively. That is a reasonable concern, but there is a reason beyond brevity that the framers did not try to define it. They had a rule of common law construction:


In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.


That means, for interpreting the term "reasonable", if there is any doubt it is reasonable, don't do it. And if it is done anyway, it is up to a jury to decide whether it was reasonable, beyond a reasonable doubt if it becomes a criminal matter.
9.24.2009 7:54pm
Jon Roland (mail) (www):
Einstein said about theories, and we can say about laws, that they "should be as simple as possible but no simpler". Of course, we have the problem of tradeoffs, as between statute, regulation, and judicial application.

One way to simplify is to stop legislating without constitutional jurisdiction. That would eliminate most federal statutes.
9.24.2009 7:57pm
Skyler (mail) (www):
It's nice to want laws written simply.

It's nice to want world peace, too.

Both have the same bearing on actual events.
9.24.2009 8:04pm
Fub:
TNeloms wrote at 9.24.2009 6:54pm:
Have you read the book? Do you think the review is wrong? Do you know of any specific examples of crimes that average people unknowingly commit?

(By the way, I hope the review is wrong, because it looked like a fascinating book.)
I haven't read the book, but I read the review you linked and the comments to the review.

Based on those comments, it appears that the reviewer missed the point of the book. The point is not that prosecutors routinely prosecute low profile citizens for crimes that the citizens don't even realize they might have committed. The point is that some prosecutors decide, for very personal reasons unrelated to law enforcement, to prosecute particular citizens who have personally offended them in entirely non-criminal ways; and they can always find something to bring a prosecution for.

That doesn't mean there are large numbers of such prosecutions. It only means that anybody can become an arbitrary target if a prosecutor decides he doesn't like them.

It's a bit like the scene in The Great White Hope where the a racist prosecutor struggling to find some charge to bring against Jack Johnson says "let's ask the fine print boys."
9.24.2009 8:38pm
Officious Intermeddler:
Because all of those investments are very complicated, and regulation is needed because on the one hand, entities which invest in these vehicles may be too big to fail, and on the other hand, the wealth-maximizing potential of the markets will not be realized if the public thinks they are rigged.


The portion of this sentence beginning with the words "and regulation is needed" -- indeed, Dilan's precious belief that the SEC serves a useful function -- is certainly a popular notion among statists but is pretty much the opposite of true. Complex investment vehicles have existed a lot longer than the modern regulatory apparatus surrounding them, and yet for most of that time caveat emptor didn't result in a massive loss of public confidence in the markets. In point of fact most of the significant disruptions in securities markets of the last hundred years have been caused by the very regulations that the statists have repeatedly assured us all are necessary to the markets' smooth operation. This notion that without Byzantine securities law the financial markets would be falling apart around our ears is I-Believe-In-The-Tooth-Fairy level fantasy (which helps to explain why Dilan subscribes to it).

As for this "too big to fail" crap, didn't the ship sail on what's-good-for-GM-is-good-for-America a long time ago? This is nothing more than transparent apologia for corporate welfare. It was apologia for corporate welfare when the Bushies pushed it, and it's apologia for corporate welfare when Obamaphiles push it.
9.24.2009 8:48pm
Dilan Esper (mail) (www):
The portion of this sentence beginning with the words "and regulation is needed" -- indeed, Dilan's precious belief that the SEC serves a useful function -- is certainly a popular notion among statists but is pretty much the opposite of true. Complex investment vehicles have existed a lot longer than the modern regulatory apparatus surrounding them, and yet for most of that time caveat emptor didn't result in a massive loss of public confidence in the markets.

I love how glibertarians just assume that things that are inconsistent with their ideology never happened.

Meanwhile, in the real world, there were periodic panics in the 19th Century that resulted in massive disinvestment, burying money in the mattress or the backyard, etc. Indeed, people didn't regain confidence after the Great Depression started for another 10 years or so.

In point of fact most of the significant disruptions in securities markets of the last hundred years have been caused by the very regulations that the statists have repeatedly assured us all are necessary to the markets' smooth operation. This notion that without Byzantine securities law the financial markets would be falling apart around our ears is I-Believe-In-The-Tooth-Fairy level fantasy (which helps to explain why Dilan subscribes to it).

Then why doesn't Somalia have a functioning investment market? And why do China and Singapore have pretty strong ones. If statism were such a barrier to investment markets, it should be the other way around, right?

This is truly amazing. Really, breathtaking, the ignorance on display here.

As for this "too big to fail" crap, didn't the ship sail on what's-good-for-GM-is-good-for-America a long time ago? This is nothing more than transparent apologia for corporate welfare.

Enterprises get too big to fail because we don't stop them from getting that big. But indeed, too big to fail is not "crap". I don't particularly care for the Detroit bailout, for instance, but have you ever calculated how many people would be out of work if the Big Three did, indeed, fail? All those parts suppliers along with them?

Didn't think so. Glibertarians always assume the market will take care of it.
9.24.2009 9:31pm
Off Kilter (mail):
Actually, Dilan, the Great Depression occurred after significant government regulation began, and was in the 20th century. The 19th century panics you describe WERE significant--and some thoughtful economists attribute them to state and federal regulations rather than free banking--but the key thing is they were over so quickly. The stock market downturn in 1921 was every bit as bad as the one in 1929, but Harding did nothing, and the country was back to baseline in about a year. 8 years later, Hoover engaged in what were up to that point unprecendented interventions that only look threadbare when compared to FDR's continuing along the same vein interventions. And it took until after WWII (according to economic historian Higgs) to recover.

You may have a worthwhile point, but you haven't made it yet.
9.24.2009 9:45pm
Dilan Esper (mail) (www):
Actually, Dilan, the Great Depression occurred after significant government regulation began, and was in the 20th century. The 19th century panics you describe WERE significant--and some thoughtful economists attribute them to state and federal regulations rather than free banking--but the key thing is they were over so quickly.

Really? The "Long Depression" was over quickly?

"Thoughtful economists"??!?!?!?!?!???????

I'm debating a flat-earther here.
9.24.2009 10:01pm
AST (mail):
Laws always beget complexity, but they needn't be as long and incomprehensible as they are. You could enforce a rule that every bill has only one subject and not allow all kinds of irrelevant amendments and earmarks to be added. Of course, "only one subject" requires some expansion, but it needn't require 100 pages.

I've tried drafting a Zoning Ordinance from the ground up to make it more comprehensible, and I know that a certain amount of complexity is unavoidable.

What bothers me more, and what created this discussion, is when bills get pushed through without giving anybody, particularly the public and other legislators, an opportunity to look at them and ask questions. That's what this Congress did with the "Stimulus" and spending bills. What to we pay these jerks for if not to understand and debate what they're passing into law? Nobody expects every member to read every word, but when the leadership keeps the bill secret until they're supposed to vote on it, that's criminal. Why don't we just scrap Congress and keep their staff who do the actual drafting, if this is how we're going to run things?
9.24.2009 10:45pm
BGates:
My point was that it's very odd that all these people are suddenly concerned about the complexity of federal legislation

Well, we have to talk about something, and it seems like there just aren't any discussions about politicizing the Justice Department, faith-based initiatives, or firing missiles into nations that aren't at war with us any more for some reason.

But what you really needed to do was find out the actual facts (as opposed to the line of BS the Bush Administration was feeding the public and Congress).

No, if I put all my faith into another person to accurately summarize the issues for me, everything will work out fine.
9.24.2009 11:03pm
Jon Roland (mail) (www):
Fub:

Based on those comments, it appears that the reviewer missed the point of the book.

Or the cover title and blurb were written by a staffer working for the publisher and not by the author, and failed to properly summarize the content.

I've ordered the book and will report back when I have had a chance to read it. If it disappoints then perhaps it will inspire someone to write one that better fulfills the promise of the title.
9.24.2009 11:45pm
Off Kilter (mail):
Dilan Esper, who fancies himself an expert in monetary theory and American economic history, it seems, feels anyone who talks of free banking or denies the significance of the Long Depression (1873-88) is a "flat earther"

This must include such crazies, then, as Don Boudreaux, chairman of the economics department at George Mason University, who in a recent letter to the New Republic on Judge Posner's analysis of John Maynard Keynes' General Theory says, of a point Posner got wrong:

"Judge Posner, alas, misses some vital points of economic history. For instance, it’s untrue that “a general fall in the price level – deflation – imperils economic stability.” In the U.S. the price-level fell pretty steadily from 1865 through 1898 – a period of rapid economic growth unmarred by any unusual instability. Deflation is desirable if it is caused by rising productivity (as was the case in the late 19th century) and not by contractions of the money supply (as happened in the early 1930s)."

Why Dilan feels a dropping price level at a time of low unemployment and increasing productivity is a threat to the Republic, even if labeled a Depression in the history books, is something he should inform of us before sailing off the edge...
9.25.2009 8:12pm
Eli Rabett (www):
This reminds Eli of an Angry Bear post, which concludes

So the process continues… Eventually, the Army has a spec that indicates even situations that a rational person would say – “This makes no sense. Everyone knows that.” But the rational person wouldn’t realize that when the Army specifies that no sawdust is to be used in making flour, or that no more than X parts of per million of rat droppings will be in the cookie, that the Army has a damn good reason for having that in there, namely that some upstanding leader of the community who waves a flag and is a member of the local Kiwanis actually tried to pass such things off on American military personnel. And of course, that upstanding leader of the community who waves a flag and is a member of the local Kiwanis is happy to lecture one and all about how much more efficient the private sector is than the public sector – exhibit A being the Army’s specs on making a chocolate chip cookie.
9.25.2009 11:16pm

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