As a practicing lawyer, I naturally have a professional interest in vague and/or complex legal rules that require lots of expensive legal research, training and experience to understand and explain. But complexity isn’t just costly to consumers of legal services, and thus a burden on business as well as on citizen access to the courts. It’s also a drag on the economy and on personal liberty, as businesses and ordinary citizens must choose between paying lots of compliance lawyers or steering too wide of increasingly large gray areas. It risks in particular the unfair, arbitrary and sometimes corrupt or discriminatory abuse of the criminal justice system to prosecute things that were hard to foresee as violations of the law. And it demeans democracy, as the actual making of law is done by judges and bureaucrats rather than citizen-elected legislators.
One of the greatest virtues of Justice Scalia in his quarter-century on the Supreme Court (he celebrates 25 years on the High Court in September) has been his structural critique of, and systemic assault on, unnecessary legal complexity. In three opinions this morning, he focused attention on three different aspects of that same problem – one of which was graphically illustrated by yesterday’s news regarding the widespread practice of waivers under Obamacare. And last week’s news regarding the indictment of John Edwards illustrates how the failure to heed Scalia’s wise observations has made a hash of efforts by campaign finance “reformers” to regulate political speech in the United States.