Richard Posner’s New Book Addresses Sources of Complexity in the Law

I have to admit that I am responding to the New York Times review of Posner's new book, not the book itself.

But I was fascinated by this distinction from the review.

At the outset, Posner distinguishes between two kinds of complexity: external and internal. Law regulates external complexity but does not create it — think of sexting (in a First Amendment case), the science of the human genome (in a patent case) or the nature of the Nazarite vow (in a religious liberties case). In contrast, law creates internal complexity — think of intricate rules of interpretation, bloated conventions of citation or vague and poorly written opinions. While the judiciary cannot do much about the former kind of complexity, it can — and in Posner's view, must — address the latter.

Both forms of complexity, of course, have always existed. Yet Posner believes the rise of external complexity has triggered the rise of internal complexity. Judges, he fears, "escape from complexity into complexity." Posner lambastes this move. Significantly, he takes aim at formalism — the view that legal rules stand above and apart from politics — particularly as embodied in "Reading Law," a recent book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. At face value, one might think formalism would clarify rather than complicate, given that it relies on rules that must be applied without regard to the judge's personal views. Yet after noting that Scalia and Garner offer 57 varieties of interpretation, many of which conflict, Posner attacks their formalism as byzantine obfuscation.

The point for those of us pushing for simplification is that we need to be able to distinguish when legal complexity may be unavoidable because of the underlying field about which decisions are being made, and when it is being superimposed by the legal system for its own reasons.  My own view (link to recent paper) is that much of the complexity of law comes from its inherently political nature, not just that the law is making, in a sense political, and particularly distributive, decisions, but because the back and forth between political interests leads to complexity, regardless of whether it is in a substantive statute, a procedural rule, or judicial interpretations that often seek to change results by creating exceptions or divisions within prior rules.

In any event, discussion of the sources of complexity can only serve to clarify whether it is, in a particular situation necessary, or the kind that we need,  and thus help move towards appropriate simplification.

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