March 16, 1978
Page 7280
HYPERLEXIS: OUR NATIONAL DISEASE
Mr. MUSKIE. Mr. President, Bayless Manning, former president, Council on Foreign Relations. Inc., and former dean of Stanford Law School, has written a thought-provoking article about the proliferation of statutes, regulations, and ordinances at all levels of government. Mr. Manning's article is not a standard conservative argument against government programs and social reforms. Rather, it is an attempt to impress upon the public and particularly those of us who enact laws that law-making and regulations carry with them costs to society that ought to be analyzed in relation to the benefits we hope to achieve.
Mr. Manning's article appears at a time when public cries of government interference and over-regulation are on the increase. For this reason and because the article places the problem in clear and reasoned perspective, I call it to the attention of my colleagues.
I might add, Mr. Manning argues that sunset laws, while not a cure-all, are "centrally sound" and deserve careful consideration. As principle sponsor of the sunset bill now before Congress, I was particularly pleased that Mr. Manning included this legislation in his analysis.
Mr. President, I ask unanimous con-sent that the article be reprinted in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
HYPERLEXIS: OUR NATIONAL DISEASE
(By Bayless Manning)
"Hyperlexis" sounds like some sort of serious disabling illness. It is. Hyperlexis is America's national disease — the pathological condition caused by an overactive law-making gland.
Measured by any and every index, our law is exploding. New statutes, regulations, and ordinances are increasing at geometric rates at all levels of government. The same is true of reported decisions by courts and administrative agencies. Whole new legal fields spring into being overnight, such as environmental law; older fields like real property are experiencing infinite fission. Statutory codes, such as those in the fields of commercial law and taxation, are becoming ever more particularistic, longer, more complex, and less comprehensible. We are drowning in law.
Out situation is aggravated by the wind of legal commentary set off by the firestorm of law. Law has always been one of the garrulous professions, and modern communications gadgetry makes it all too easy to record, reproduce, and distribute legal words. As in the wake of a great ship mewing seagulls follow, so legal commentators pursue the society's law-making machines, squabbling over the newly emitted material. Our law libraries are swamped, our citizenry is confounded by the legal blizzard, and our imperiled forest reserves are further depleted.
INCAPACITATIONS
Granted that we are awash with law, is it cause for any serious concern? Is hyperlexis a critically disabling disease or merely a nuisance? The answer is that it has already done a great deal of harm to the American body politic, and if it continues, it will incapacitate us in a number of different ways.
First, though not first in importance, is simple dollar cost. What does it cost to operate our elaborate institutional machinery of federal, state, and local courts, prosecutors, bailiffs, investigators, administrative agencies, police, examiners, lawyers, law schools, legal aid programs, law publishers, correctional facilities, etc.? We have no data on the amount of national resources that are devoted to operating our growing corpus of law. That, in itself, is a significant fact, reflecting the simple truth that we have never thought it important to ask the question. But the dollar figures are obviously measured in the tens of billions of dollars annually. Are we getting our money's worth as a matter of national priorities?
Second, on every hand we are presented with the visible fact that our legal system is clogging and choking into paralysis. Everyone knows that enforcement of the law has sunk to a new low for this country. Judicial and administrative backlogs make it impossible to dispose of disputes and charges expeditiously. The criminal process is in a state of epilepsy. This condition is caused in part by over-criminalization, by laws that declare behavior to be illegal but are either unenforceable or cannot be enforced with existing institutional means and resources. The flood of petitions to the Supreme Court is so great that numerous proposals are afoot to narrow the inflow of its work. The Chief Justice of the United States Supreme Court urges Congress once more to increase the number of federal judges to deal with the rising caseload. The same pressures are at work within the states. Insufficiency of resources produces the disgraceful, but necessary, practice of plea bargaining. The inability of traditional procedures to deal with the flood of automobile accident claims has led to experiments with no-fault administrative solutions. Probate procedure is a farce of delay and paper shuffling. Law suits are interminable, and it is no new discovery that justice delayed is often not justice at all. All legal circuits are overloaded and all warning lights are red.
Third, when the processes of the law coagulate, legislatures are deprived of the opportunity to make real public policy choices. It makes little actual difference what law is enacted if it will not, or cannot, be enforced.
Fourth, public respect for the law, and attitudes toward voluntary compliance with the law, are clearly declining. Voluntary compliance sags and a scofflaw attitude is bred when the law is not enforced, or when its enforcement is diluted or erratic. Those who might have been deterred from criminal behavior by the prospect of punishment are not deterred when they observe that the law is seldom enforced in fact. In such an environment, those who are apprehended and punished feel themselves merely the victims of bad luck or discrimination, and not the objects of evenhanded justice. Proliferation of judges, police, examiners, auditors, inspectors, and other officials inevitably increases the risk — nay, the certainty — that some will be corrupt or corrupted and thereby still further degrade the law in the public's eyes. A legal system that is not respected by its people cannot be made to operate at all.
Fifth, when burgeoning law and scant resources make it impossible to enforce all laws against all offenders at once, then discretionary choices must be made by police, by prosecutors, and by bureaucratic officials. Increasingly in the United States, the choice as to what to enforce and against whom to enforce it is made by those persons. The exercise of that discretion is an explosive matter of the utmost delicacy. It will inevitably become a focal point for improper pressures and corruption. Improperly applied, it will lead to petty tyranny and intolerable discrimination against some citizens.
Sixth, the purpose of a large part of modern law is the elimination of unfair or unequal disparities among citizens. But hyperlexis works squarely against that objective. In a highly regulated environment of intricate restrictions, those best able to survive are those who are able to hire the new class of form-filling consultants — experts (mainly, but not exclusively, lawyers) who can invoke rules on behalf of their clients and pick their way among the bramble bushes. Such trained talent is rare and expensive; inevitably it will largely be commanded by those persons and organized groups that are best able to pay. Though everyone suffers from hyperlexis, the small are injured more than the great.
Seventh, a point of special interest to lawyers, hyperlexis has undermined the function of precedent and stare decisis on which the continuity of the common law was based. The lower courts today still try to follow the mandate of the highest court in their jurisdiction. But in many fields of the law the sheer proliferation of legal variants in thousands of published judicial decisions makes it impossible in all but the most gargantuan litigation for the lawyers or the judges to review the relevant earlier cases. As a result, the lawyers and the court can only pick and choose from the relevant precedential material — a radical departure from the intellectual premises of classical Anglo-American jurisprudence. Foreseeability is a critical element in public confidence in the law. Hyperlexis is helping to undermine that foreseeability and that confidence.
Eighth, the key to the unparalleled success of the economic system of the United States lies in its flexibility, its ability to respond quickly. Increasingly heavy regulation of economic activities is loading increasingly heavy cost burdens on businesses and on consumers. More serious than cost, the increased regulation and new requirements for prior clearances at all levels of government are hobbling the capacity of the economy to make necessary decisions rapidly. And it is not just private enterprise that finds itself regulated into slow motion. Governmental agencies also find themselves immobilized by their own regulations and stymied by those of other agencies.
Ninth, courts and legislatures have combined to produce a judicial process in which almost any proceeding will have some fatal technical defect, and almost any project undertaken can be blocked. Multiple appeals, collateral attack, procedural challenges, dilution of requirements of standing and the like are the hallmarks of our era. That every man should have his day in court is classical. But until now it has not been thought that every man should have 100 days in court, or that he should have a day in court on every social and political issue in the society. Proliferation of regulatory requirements and prerequisite clearances, dramatic increases in the circle of potential legal complainants and interminability of judicial proceedings are together making it increasingly difficult for the society to respond to the very social problems to which most of our regulation is addressed. The principle of "one person, one vote" threatens to become perverted to a principle of "one person, one veto." No society can operate on that basis.
Hyperlexis is not a nuisance. It is a heartworm that has literally fatal potential for the body politic of this country.
DIAGNOSIS
If hyperlexis is such a pernicious thing, why do we not, in true-blue American style, get about the job of fixing it? One reason is that we are just now at the first stage of identifying the disease and of realizing that we have it. But the second and more important reason lies in Pogo's immortal words — "We have met the enemy and he is us."
A fair amount of talk is to be heard these days in many and diverse circles about the need to get rid of "over-regulation." Most of this talk assumes, or implies, that "over-regulation" is a unitary thing, that it is the nefarious product of ambitious bureaucrats or crypto-socialists, and that it can be cured by a few bold surgical strokes of deregulation. The facts are quite otherwise.
Regrettably, hyperlexis is a subtle illness; its forms are many and its causes are multiple. Behind the superficial term "over-regulation" a number of different phenomena and forces are at work, most of them deeply rooted in American society and American attitudes.
The federal system
Part of the hyperlexis problem arises out of our layered federal system, the most complex governmental operation in the world. We maintain thousands of law-making instrumentalities, each of which merrily generates law on its own with little or no regard to the others. The tiers of government have become far more than the traditional triad of federal-state-local, as counties, districts and varieties of regional authorities and functional commissions have emerged as law generators in recent years. Moreover, the interface between federal programs and the administrative structures of state and local governments is a jumble of non-connections and mis-connections. Uncoordinated multi-layered regulations, licensing, and supervision have the capacity to bog down the workings of the entire society.
Ideology: The proper subjects for Governmental action
Classical American political thought conceived of a small discrete area as appropriate for governmental functions and a much larger area allocated exclusively to the private sector. In this century, the line between the two has become blurred and, in the minds of many of today's citizens, it has become altogether obliterated so that no limits on governmental regulatory activity are conceded to exist. This change in basic attitude is a major factor in the recent growth of regulation. Governmental regulation reaches out to more and more forms of citizen conduct because there is no longer a widely shared perception of a political-philosophic-legal barrier to inhibit or contain regulatory extension.
Ideology: Equality of opportunity and egalitarianism
As a part of the long historical thrust of the American dream, the Congress, the courts, and many local law-making bodies have made a major effort in recent years to tilt more of the benefits of life towards disadvantaged ethnic groups, lower income groups and women. The major instruments used for this purpose have been laws regulating the non-minority and laws granting enforceable rights to the minority. Implementation of these new laws in a great campaign to achieve equality of opportunity or, as some voices now advocate, equality itself, has called for great increases in regulatory mechanisms, in surveillance techniques, and in the decisional burdens carried by the courts and other tribunals.
Ideology: Distributing the risks of life
A significant contributor to the flood of litigation, regulations and legislation is a rising feeling among many members of the public that the society as a whole should in some way compensate the individual for almost any loss he sustains. That is a political proposition, not an attribute of the legal system itself. How far we should go toward trying to create a riskless society, at what cost, and paid for by whom will be the major American political issues for the rest of this century. However those issues are balanced out, the outcomes will be expressed in statutes, regulations and opinions, which will add to the inflated corpus of our law, and which will add to the burdens of our legal institutional process.
Ideology: Proceduralism and participationism
No society in history has been as deeply concerned with legal procedure as has the United States. Our traditional concern for the individual, for fairness and for due process has brought us to the point where almost any matter can be challenged and reviewed again and again, at the instance of large cohorts of complainants through extended formal adversary procedures and safeguards that were designed for (and once limited to) heinous crimes. To our concern for proceduralism has been added of late an increasing trend to engage the participation of larger numbers of citizens in all issues of public interest. Extension of voting rights has been one manifestation of the reach-out to extend participation; community action groups and self-styled "public interest" groups is another; and wider class actions and lower barriers to standing are others. Proceduralism and participationism together have increased geometrically the burdens of the courts.
Uses of the law and the judiciary
Critics of President Johnson's Great Society described its basic principle as follows: "Identify a problem, then throw money at it." But our true and peculiarly American governing principle, old enough and visible enough to have been noticed by De Tocqueville, is: "Identify a problem, then throw a law at it." Despite repeated disappointments, it continues to be almost universally accepted by Americans that legal resort is the most effective way to solve any problem.
Similarly, it has always been a peculiarity of Americans to turn to their courts for resolution of difficult problems. The special role of the Supreme Court as ultimate arbiter of constitutionality enhances that impulse, but the people's faith and reliance in its judges runs both wider and deeper than that. Whether in matters of civil rights, town planning, the economics of the market place, or labor-management relations, to name but four, the judiciary will play a key, and often determining, role in the United States. The inevitable result is that we are the most litigious people in the world. We go to great lengths to find ways to cast any and every problem into the familiar pattern of a two-party adversary trial and take it to court.
Interest group representation
Our political system for decision making is fundamentally built upon coalitions and tradeoffs among elected representatives of interest groups. Though each of us may say that he wants less law and less regulation, the fact is that every economic, ethnic, religious, or ideological group in the society wants something supported, regulated, or banned by the law. Every interest group does its best to capture the legislative, administrative, and judicial system and harness it to its particular ideas of the good, the true and the profitable. Coalition voting patterns in our legislatures guarantee that those efforts will often succeed, and that every year there will be a bumper crop of new laws.
Elected officials and scorekeeping
For elected officials, the most obvious route to reelection, and perhaps even to immortality, lies in new legislation. Who would recall Senator Sherman or Congressman Mann were it not for their Acts? As batting averages are to baseball players, stars to restaurants, ribbons to generals, and stock prices to corporate executives — so new statutes are at the heart of the scorekeeping system by which legislators are measured and measure themselves. No legislator gains recognition as a great non-law giver or as the Great Repealer.
Particularization
The national commitment to deal with the individual as an individual, to treat each case on its special merits, combines with our political system of interest group representation to produce law that is often highly, particularistic. Every group and subgroup seeks to obtain, and often obtains, special statutory provisions expressly aimed at its own particular circumstances. The result is an impenetrable legal jungle of special provisions. A significant part of the hyperlexis problem arises from the effort to deal with problems with too great particularity. Contrary to surface impression, detailed specificity in a legal provision does not reduce disputes; particularization merely changes the vocabulary of the dispute. The most detailed statutes, like the Internal Revenue Code, are the ones that proliferate most rapidly and generate both the greatest need for administration and the most disputes.
Technological and social change
The rate of change in the modern world has no precedent. That fact, too, is a contributor to the law explosion. Technological change often demands new public agencies and programs. The birth of the Atomic Energy Commission and its recent transmutations toward a Department of Energy are illustrative. Major technological change also inevitably brings social dislocations in its aftermath. Increasingly, it is coming to be recognized that the losses from such dislocations should not all have to be absorbed by those industries, workers, communities and institutions that happened to be hit by the change. The implication of that statement is, once more, an expanded function for the legal administrative process in order to distribute the loss. Analogously, major social change such as Black migration from the South. tends to lead to wider governmental activity, particularly at the Federal level.
Bureaucracy
As spiders by their nature utter cobwebs and spawn more spiders, administrative agencies by their nature utter regulations and spawn more administrative agencies. Administrative agencies and programs are remarkably hardy, capable of surviving virtually any effort to uproot or cut them off. Growth in legal activity would not be so difficult to accommodate if old agencies died off as new ones appeared. Alas, the process does not work that way. Old laws and old agencies neither die nor fade away; being nonbiodegradable they only accumulate.
No brakes
Finally, a negative point is worth noting. As our legislative and administrative system operates, there are no internal forces at work that tend to counter the process of law generating, to act as inhibitors or governors. Externally the same is true since many interest groups work increasingly to add, amend or delete particular laws, but there is no major interest group that focuses attention on the health of our legal order as a whole.
It is no wonder that the lawmaking engines of the United States grind out legal prescriptions like the fairy-tale salt mill at the bottom of the sea — unremittingly and in ever greater volume. Many powerful forces push in that direction, and no significant forces resist.
THERAPIES AND MITIGANTS
Can we do anything to check the advance of the nation's hyperlexis? A glance at the roster of root causes just listed will make it clear that most of them are congenital to our society and government. They arise straight out of the essence of the American experiment itself. They cannot, and should not, be made to go away. Our search therefore must be for helpful therapies and mitigants, not true remedies. In that direction, quite a lot can in fact be done if we will do it.
Public education
Highest on the list of therapies is public education, with the term "public" referring not only to the populace at large but also to legislators, administrative officials and judges at every level of government. That educational effort should stress five propositions that are true of any legal system — five truths that today we either do not recognize or willfully brush aside.
Proposition 1: To declare a law is very cheap; to administer or enforce a law is very expensive.
As there is no such thing as a free lunch, so there is no such thing as a free law. To achieve even modest effects through law requires huge investments in institutional machinery. It is an ineluctable fact of life that every new chore we assign to our legal system must either be accompanied by a commensurate investment of additional resources into the legal institutional system, or the new legal initiative will merely dilute or displace institutional energies away from other tasks that have been assigned to the system.
We have finally begun to learn that the world's natural resources are finite and increasingly expensive. We will eventually have to learn that our legal system is also a limited resource. With a limited resource one must inevitably make choices and establish priorities among objectives.
Proposition 2: The secondary costs of a law are often greater than the direct costs.
Apart from the obvious direct costs for enforcement machinery, legal regulation often entails other hidden costs that are very large. It is not my point here, though it is true, that the substantive objective of a legal program often demands costly tradeoffs as where, for example, pollution abatement may reduce productivity and increase unemployment and price levels. The costs to which I refer here are hidden, private administrative costs that are almost never recognized or considered.
How many millions of citizen-hours per year are poured into the preparation of federal, state and local income taxes — hours that could have gone into productive activity or into leisure time pursuits even more enjoyable than tax computation? What is the total national economic expenditure currently required of all employers and employing agencies to complete and file reports on securities issues, retirement plans, health conditions, taxes, safety, pollution, affirmative action programs and the like?
If we stay on our present course, a caricature of tomorrow's American society will be a six-person model — a regulator (and his lawyer), one who is regulated (and his lawyer) and an adjudicator (and his administrative assistant) which resolves disputes between regulator and regulatee. Without counting review mechanisms, that makes five persons engaged somewhere in the process of regulating the sixth, with four of them on the public payroll. Not even the bureaucracy of imperial China reached that height of civilization.
Ancient Mediterranean societies found it necessary to develop a paid professional class of temple votaries who assisted the citizenry in the complexities of their prayers and ritual sacrifices to keep on good terms with their deities. Modern America is generating a new class of form-filling specialists (many of them lawyers) to help the citizenry keep on good terms with their regulators.
Every new statute or regulation adds to the number of the new class and increases the demand for their services. Members of the new class are intelligent and energetic, and their training represents a very large social investment. Are the costly skills of these professionals today being utilized to maximum constructive social advantage? What is the annual aggregate of their fees, and who really pays it?
The direct costs for legal administration and enforcement of our laws are only the tip of the iceberg of the true costs of a highly administered society.
Proposition 3: The capacity of law to change human behavior is limited.
To be effective, any law must rely upon a base of supporting public opinion and voluntary compliance. Even when those supports are as assured as they are in the case of laws against violent crime, the actual effects of the law as written are always marginal. Where public opinion is indifferent and voluntary compliance spotty, the effects of law will be minimal, regardless of investment in enforcement. The lesson of the Volstead Act must not be forgotten. Law is not only costly, it brings only a limited return as a device for actually affecting human behavior.
Proposition 4: Even where a law may effectively achieve its primary purpose, the side effects may be too great and too negative to warrant its adoption.
As in physics, Newton's third law of motion governs, so in a society every legal action produces its own reactions; those side effects are frequently both major and undesirable.
Tariffs and import prohibitions produce smugglers; harsh criminal laws generate plea bargaining; all-out enforcement campaigns threaten civil rights; extension of remedies and procedural nicety lead to judicial clog; protecting consumers by subjecting third-party financers to the seller's warranty constricts consumer credit and increases its cost; the most nobly inspired regulation breeds ignoble bureaucracy; minimum wage legislation contributes to unemployment; open-ended governmental medical assistance leads to inflation of medical costs and fraud; protective regulation for employees' retirement plans produces a decline in the number of such plans; high malpractice awards lead to soaring insurance rates, reductions in service, and increases in medical fees, etc., ad infinitum.
Law's benefits are not only limited; its byproducts are often affirmatively damaging.
Proposition 5: Many problems are not amenable to legal solution at all.
Legal fiat cannot create resources; it cannot repeal economics; and it cannot supplant psychological causes of human behavior. Law is a useful tool; it is not an all-purpose tool.
We Americans act as though regulatory law were an all-purpose instrument, free of negative side effects, and a free good. We must come to understand that regulatory law is in fact of limited utility, accompanied by significant and frequently harmful side effects, and expensive. A great deal of public education will be required to bring about that change.
A public interest group on the state of law
The nation's legislatures and administrative agencies (and perhaps the courts, too) desperately need some organized institutional voice that continuously reminds them and the public of the importance of maintaining the operability, integrity and efficacy of the functioning legal system as a whole. Each so-called "public interest" group today tends to work in a narrow corner of the law, and will be found to have a particular policy perspective of its own. A new public interest vehicle should be organized specifically with a broader concern for the state of the law as a system, drawing upon the organized bar, the national court and the state court centers, the administrative conference, and a combination of other components of the apparatus of the legal system, such as the prosecutors, the police and the public defenders.
Once established and funded, this new organization would take a leading role in the public education mission just described, would do continuing research on the true cost of implementing legal programs and would monitor the functioning of the legal system to detect the location and causes of the worst strains and bottlenecks.
The judiciary can often gauge better than others the true impact of programs upon the legal system. Currently, however, we have no way for the judiciary's voice to be heard by our legislatures, since it cannot effectively organize itself to speak as a lobby before the legislature. Chief Justice Burger deserves particular credit for his personal leadership in speaking up on such matters, but the job is immense and calls for the continuity of institutional help.
Cost research
The Congress, executive branch and judiciary — and state governments too — should set up ongoing machinery for ascertaining the true economic costs, direct and indirect, of administering our existing legal programs.
Initial estimates will be very crude, but they will provide some benchmarks where today we have none.
Impact statements
Each new legislative or regulatory proposalshould be required to be accompanied by an "actual cost" impact statement that brings before the legislature at least a gross estimate of the true costs and implementation burdens of the program, direct and indirect. It is tempting to argue for a rule that requires one old program to be repealed for every new one enacted. But in the absence of that quixotic principle, legislatures can at least establish procedures that will require them to weigh the true costs and burdens of a legal program when they consider whether to adopt it. And no legislative bill should be allowed to pass without appropriations to provide administrative, judicial and other legal agency resources required to give it effect.
How to apply a similar principle to sweeping pronouncements by courts and administrative agencies is a puzzle for which no solution is apparent. At a minimum, however, the consciousness of courts and agencies can be raised to the reality that some answers to some questions before them wouldadd very large additional amounts to the direct or indirect social costs of the legal system.
Self-executing substitutes for regulation
Our law should not rely so heavily upon the administrative and judicial process for its effectiveness. The most cost-effective laws are those that are complied with in response to incentives and disincentives that are built into the law itself. We should make greater use of that self-executing principle to relieve the insupportable pressure now being imposed upon our administrative and judicial systems. Our scholars and our governmental staffs should undertake more diligently to search for and to invent more legal devices that employ this principle in place of monitoring by administrative agencies and litigation in the courts.
Sunset laws
Laws that set up programs, or declare something illegal, or establish a regulatory body are virtually never repealed. Duration limits should be required to be included in every such statute or regulation so that it will after a time expire automatically if not repromulgated. Serious support for such so-called sunset laws has begun to appear in Congress. This approach is not a cure-all and it entails some fearsome difficulties in its implementation, but the idea is centrally sound and deserves full exploration.
Program evaluation
The practice of post-evaluation of the actual results of governmental programs is in its infancy, but it has at long last been born. Many statutes on the books either have no real impact, or are counterproductive to their purpose, or produce only marginal impact, at high cost, or generate unacceptably negative side effects. Legislative programs should be required to be periodically evaluated to see whether they are achieving the intended effects and at what costs and with what side effects. Provision for such evaluation should be made initially in all new program legislation; and evaluation should proceed on a continuing basis. Such evaluation should be an absolute prerequisite to repromulgation of a provision that has expired by its own sunset terms.
Decriminalization
Virtually all students of the subject, and many criminal enforcement officials, now recognize that action should be taken to reduce the mass of criminal law now on the books. As the situation now stands, decriminalization takes place anyway, but it is done through police non-enforcement rather than by proper legislative act.
In a world of pure analytics and theory, the criminal law is recognized as overlapping with, but entirely separate from, moral prescriptions. There may be good reasons to make price fixing a criminal offense while the pulpits never mention it; religious leaders may inveigh against worshiping idols while the criminal law is silent on the subject. Ideally, too, since enforcement of the criminal law should be strict, certain and swift, in order to maximize its deterrent effect, the criminal law system should not be asked to do more than can be effectively and swiftly enforced.
In real life, however, the situation is very different. Most Americans do not distinguish between moral precipitations and legal mandates. It is a striking characteristic of American history and attitudes that we have persisted in the idea that, though church and state are separate, the engines of the state should be invoked to punish all behavior that we find morally objectionable. As a result, our criminal codes are full of mandates about personal behavior that are unenforced but unrepealable; no legislator can safely vote to make activities legal that profoundly offend the moral and social sense of his constituents. As a result, decriminalization is very difficult.
Can nothing, then, be done? One thought would be for legislatures to embark upon a serious program of public hearings and review of local criminal laws specifically focused on three questions: Which criminal laws are not being enforced and why? What resources would be required to enforce them all? What priorities should be followed by enforcement officials if they are forced to give up enforcing some laws in order to apply resources to the enforcement of others?
The result of such an undertaking would be very constructive. The public, and the legislature, would have to confront the problem squarely and honestly. Pressures for still more criminal laws might be headed off. A few criminal statutes might actually be repealed. The public would learn something of the costs of increasing criminalization, and the low return. And out of the process, some sense of legislative priorities might emerge formally or informally, and thereby provide a more legitimate basis for selective non-enforcement than now exists.
Countering particularism
Efforts must be made in every area to simplify the law and to produce what may be called generalizable, as opposed to particularistic, law. We must, for example, reorder the present maze of tax laws, and substitute a taxing scheme that is simple enough and general enough as applied to the individual to be understood by the average citizen. Of course it is true that the more general a legal provision is, the less the result is hand-tailored to the circumstances of the individual case. But the more the law undertakes to handcraft a tailored result for every individual — with a full panoply of traditional legal review procedures — the greater the obscurity to the general citizen and the greater the burden upon the system in money, manpower, time and effectiveness. The time has come when a balance between generality and hand-tailoring must be struck nearer to the former. We must learn to legislate by approximation. So far, we have not yet acknowledged that elemental truth.
Institutional change in the legal system
Hyperlexis compounds, and is compounded by, other difficulties that beset our system of justice and dispute resolution today. Those difficulties mainly arise from structural defects, from uninventiveness and inertia in the face of social change, from institutional anachronisms, from inattention to elementary principles of administration, and from the effort to misapply traditional processes to modern problems. We shall have to deal with those conditions as well as hyperlexis itself, and indications are that major changes are coming soon in our system of justice.
As the courts clog, mediation and arbitration are coming into their own as dispute-settling mechanisms. No-fault is nearly here in the automobile field. Simplified small claims court procedures available on a neighborhood basis are desperately needed and are coming. Paralegal personnel will become a useful resort to the average citizen. The docket of the Supreme Court will in some way be curtailed. Today's probate procedures will be superseded by simpler ones for most estates. The jury system will be made less expensive, in some circumstances through smaller juries, and we will eventually curtail its automatic availability. The extremes of proceduralism have been reached and the pendulum will swing toward limiting and eliminating appeals, speeding up the disposition of litigation by rigorous methods, narrowing the avenues for collateral attack, imposing order on class suits, and recognizing that issues of less moment do not demand the elaborate procedural safeguards that are appropriate for issues of greater moment.
More new ideas of this kind are needed to expedite the functioning of the system and increase its accessibility to the average citizen. Happily, most of the organized bar has come to see the desirability and inevitability of these developments and is today playing a responsible role in adapting traditional ways to new conditions.
The limits of the legal sanction
Our legislatures, courts and agencies must eventually recognize, and the public must come to see, that the legal system simply cannot operate if it tries to provide for every citizen and institution a law suit against every other citizen and institution to resolve every difference of view or interest, to redress every perceived invasion of privilege, and to recompense every risk of living. The ultimate results of that approach will be to halt the legal process and simultaneously frustrate the society's capacity to make policy decisions. However unpalatable and unpopular it may be to say it in today's climate, the American legal system must continue to concentrate upon the rights of the individual, but it must now also turn its attention to the collective need of the community for a governmental and legal system that functions with reasonable effectiveness. The alternative will be a massive socio-legal traffic jam. In a legal system that tries to offer everybody a remedy for everything, no one will have a remedy for anything.
The federal system
Most overwhelming is the question of the federal system and what can be done to make it 'work better in modern conditions. The answers must lie in the direction of a greater degree of coordination among the levels of government, and, almost certainly, a major recasting of the way the federal government laterally administers its own programs and fits into state and local structures. This is a subject of high politics, and it will probably take the rest of this century to develop new working principles within the framework of the Constitution that are compatible with, and responsive to, the realities of an increasingly administered society. It may be hoped that the new administration in Washington, and its future successors, will give this extraordinarily important and difficult subject the high priority it deserves.
Resource investment
Even if all these things are done, substantial additional dollar resources will have to be invested in the legal system if it is to be expected to handle its increasing assignments. The legislatures cannot, in hyperlectic abandon, simply keep loading more on to the same camel; eventually it will either lie down or its back will break.
CONCLUDING COMMENTS
The thesis of this article is easily susceptible to misunderstanding, not to say vulgarization. It should not be confused with standard conservative American political oratory decrying governmental programs and opposing social reform. The government will, and in my view must, often intervene in the social process through regulation and law. Many governmental programs in operation today are essential in a decent society, and more are imperative in the near future, particularly programs addressed to our cities and the problems impacted within them. The thesis argued here is a clinical one — a matter of cost/benefit analytics. As new programs are proposed, it must come to be recognized, as it is not today, that the cost of more regulation and law making are great and grow geometrically — and the payoffs decline correspondingly — as the nation's legal institutional circuitry becomes increasingly overloaded.
We all want our idea of the good to be done, and we all want everyone to receive justice. But law is not a free good. If we were willing to devote a large percentage of our GNP to an expanded system of dispute resolution, and another large percentage to enforcement of legal compliance, we probably could for a time make the present system work despite our overactive law-making gland.
So far, however, we have not been willing to commit those resources. For the future, if we continue to generate new law at the rate we are going, no amount of resources will be sufficient to administer them effectively. Unless we change our ways along the lines indicated here, the inevitable result will be a gradual winding down of our legal system and a corresponding decline in the effectiveness of our law and of its standing in the public eye.
One should have no illusions that the democratic law-making process can be made, or should be made, a model of efficiency. Its democratic character is worth far more than cost/benefit elegance. It is inevitable that legislators and other public officials will sometimes use law making for moral posturing. If a bill is proposed to declare sin illegal, very few legislators can be expected to vote against it on the ground that it will not be effective, will be expensive to try to enforce, and will dilute the efficacy of the rest of the legal system — even though all that is true. Nonetheless, we can do quite a lot to build into the law-making machine a series of governors or brakes to inhibit our presently unrestrained law-generating process.
For the first time in the nation's history, today's public is politically receptive to understanding and responding to that need. We appear to have learned something from the inattention of Great Society programs to problems of implementation. Governmental effectiveness has, at last, begun to take hold as a political issue among the public at large.
Clearly audible in today's political sound backdrop is also a complaint by everybody — employer, worker, welfare recipient, real estate operator, government official, university administrator, policeman, doctor, lawyer — about the amount of legal paper work they are required to do and the legal entanglements that encircle them. After a generation in which the most rapidly growing sector of the economy has been state and local government, all of a sudden a large segment of public opinion has begun to press for smaller government, not larger. The 1976 presidential candidates heard and reflected the same ground swell.
These public reactions are a direct product of hyperlexis — public reaction to a degree of legal pollution that is greater than the atmosphere can carry. We have now the political opportunity to get to work on the problem. If we let that opportunity slide by, hyperlexis will slowly but steadily drag our whole legal system to the ground and we shall have dissipated one of our most priceless national treasures: the confidence of the people in, and their voluntary compliance with, the law.