“Clear Law”: A Debate

While on the subject of government and the law, I’d like to point you towards an intelligent article in the Atlantic about laws, regulations, and the devil in the details of American bureaucracy. Its thesis—“a decades-long obsession with writing excessively detailed laws has made it impossible for real people to get anything done”—touches on the perhaps counterintuitive notion that by drafting increasingly specific laws and regulations, our lawmakers risk bogging the country down in a morass of inefficiencies.

Mitch McConnell employs a visual aid to demonize Obamacare (courtesy of examiner.com).

James Madison once warned that “It will be of little avail to the people if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

Laws these days are voluminous, certainly. Obamacare famously weighed in at 906 pages, and was accompanied by something like 33,000 pages of regulations. Health care regulators have devised 140,000 reimbursement categories for Medicare. Administrative expenses—overhead, in other words—dries up 30 percent of healthcare costs. (This is all straight from the article.)

But does it have to be this way? In a world of increasing complexity, don’t we require increasingly nuanced laws to match? Well, maybe. On the one hand, having a rule for just about anything can be useful. If you need a quick answer to a technical question, it’s nice to know there’s probably one out there somewhere, if only you had a Westlaw account to look it up. On the other hand, as the article points out, overly detailed laws can hamper the smooth functioning of government, sometimes to the point of perversity, and often with the result of slowing productivity to a standstill. When almost any action involving government requires miles of red tape to navigate around, it stands to reason that less will get done. Even more disturbingly, the confusion surrounding which laws to follow can create a system where it is impossible to obey them all.

So what’s the alternative? Well, as the article would have it, a better way might be to ground our system of law on broad principles, instead of narrow technicalities. In the author’s words:

Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Laws based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?

Of course there is great danger in “putting humans back in charge.” Discretion, while it allows the flexibility and autonomy to adapt to changing circumstances, can lead to inconsistent judgments and, if not properly monitored, corruption. Rules, even esoteric ones, can be useful in guiding and standardizing conduct, where broad principles can be ambiguous and difficult to apply in specific circumstances. Besides which, the whole “broad principles” scheme lacks a certain plausibility: Congress, after all, isn’t about to shrink Obamacare down to fifty-odd pages, even if doing would made the law itself easier to understand and, more importantly, easier to implement.

But all the same, it’s worth thinking about what we want, when it comes to our laws. Should our goal be to map out every conceivable situation through endless legislative and regulatory language, thus risking a descent down the whirlpool of technicalities? Or should we trust in broad generalities that guide us without telling us exactly what we need to know at any given time or place?

Which would you prefer?

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