Academic journal article Environmental Law

Complexity and Simplicity in Law: A Review Essay (Cass R. Sunstein, Simpler: The Future of Government (2013))

Academic journal article Environmental Law

Complexity and Simplicity in Law: A Review Essay (Cass R. Sunstein, Simpler: The Future of Government (2013))

Article excerpt

I.   INTRODUCTION II.  PARKING REGULATIONS: SIMPLE AND COMPLEX      A. More Conditions = More Complexity      B. Simple Rules Can Be Costly      C. Compromise and Moderation Generate Complexity      D. Separating Uncertainty from Legal Complexity      E. Separating Legal Complexity from Complex Compliance      F. Needless Complexity III. INVOKING SIMPLICITY WHILE CONDUCTING BUSINESS AS USUAL      A. What Sunstein Aims to Simplify      B. Cost-Benefit Analysis      C. Behavioral Economics and Nudges         1. Presentation of Information         2. Default Rules         3. Paternalism and Nudges      D. Minor Simplification IV.  TOWARD A DEBATE ABOUT TRADEOFFS BETWEEN SIMPLICITY AND      OTHER VALUES      A. Legal Complexity and the Problem of Audience      B. Legal Complexity and Compliance Complexity      C. Legitimacy      D. Toward Accepting Some Tradeoffs in Order to Simplify Law. V.   CONCLUSION 

I. INTRODUCTION

Law students sometimes wish that law were simpler, and they are not alone. Clients, lawyers, and commentators also often complain about law's complexity. (1) In many areas of law--tax comes to mind--we should make simplification a priority; after all, a lot of people without expert training may find it impossible to comply if the law is too complex. But increased simplicity has proven an elusive goal for law, in part because it often conflicts with other goals. Tax experts, for example, frequently argue that tax simplification conflicts with the goal of equity. (2)

Cass Sunstein, in a new book entitled Simpler: The Future of Government, argues that we should make government regulation simpler. (3) His book, however, uses Sunstein's recent experience as administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (OIRA) to argue that nudges--the employment of information and framing to influence peoples' decisions--and cost-benefit analysis (CBA) prove useful as legal reforms. (4) Reviewers writing in more popular venues than law reviews have broadly discussed Simple's agenda for legal reforms. (5) My main goal here is to pave the way for a better debate about simplification. In this sense, I primarily use Sunstein's work to illustrate a pervasive problem with the debate over legal complexity. Many actors who decry complexity and invoke simplicity do so to make a very different reform agenda appear more attractive, rather than to seriously address the tradeoffs involved in taking simplification seriously. The tendency to associate complexity with a wide array of evils, and simplicity with a wide array of virtues, tends to obscure fundamental questions about the meaning of simplicity and complexity. This tendency, which is rather pronounced in Simpler but also present in earlier legal scholarship, threatens to deprive the terms simplicity and complexity of any clear meaning. (6) In other words, the terms "simple" and "complex" become too complicated and uncertain if they are thought to embody too wide an array of vices and virtues. A clear theory of legal complexity and simplicity would aid legal reform. This Essay aims to provide the beginnings of such a theory, building upon previous scholarship along these lines and using Sunstein's book to show how difficult simplification can be even for those who profess to make it their chief aim. (7)

I begin by developing a model of simplicity and complexity based on a very simple example of parking regulation. Although the model is simple, it provides a basis for distinguishing simplicity and complexity from other concepts, such as uncertainty and costliness, with which complexity is sometimes confused. (8) I then use this theory as a lens through which to examine Sunstein's book. My main conclusion is that his book has little to offer as a project for simplifying law, but may have some merit on other grounds. In the final Part, I focus on a question suggested by Sunstein's use of the concept of simplicity to advocate his own preconceived agenda: Should we have a serious interest in making things simpler, when doing so conflicts with a lot of other goals? …

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