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Consequences of Complications

With all of the complications in our various laws, some of the consequences are not as intended. Such is often true with efforts to control situations with too many variables. When you think of the variables necessary to control human behavior in a large heterogeneous society such as ours, it is easy to see why such efforts do not work.

There are over 285,000,000 people in the United States. Controlling the behavior of this many people is essentially impossible, even in the most egregious circumstances. We cannot stop the worst crimes. Therefore, we cannot expect to exercise reasonable controls over behavior when the choices made are essentially preferences and opinions and not circumstances in which something is clearly right or wrong.

Among other things, the ever increasing complexity of our laws have lead to excessive litigation, increased cost of living, ruined relationships, loss of civility and unintended loss of safety. The problems addressed below are not set forth to argue against having laws in some of the affected areas. Instead, the problems are noted to indicate why we need to be careful when enacting laws. The role of government needs to be circumscribed substantially in order to restore balance to our laws and legal system.

Excessive Litigation. There are several ways in which the ever-increasing number of complex laws have added to the litigation in this country. Regulators responsible for enforcement frequently have to go into court to enforce the laws for which they are responsible.

Some laws which regulators are to interpret and then enforce are so general that they allow agencies to become little legislatures without any controls. Two good examples of such regulatory agencies are the Occupational Safety and Health Administration which essentially has open-ended authority to dictate any workplace safety regulations it wishes and the Federal Trade Commission which can control any commercial practices affecting consumers which the Commission deems to be deceptive. When such broad powers are given to uncontrolled agencies, they will use the powers and, thus, add to their own enforcement responsibilities and accompanying litigation.

Many of the laws and regulations also either directly provide for private causes of action or have been interpreted to provide for private causes of action. Thus, many private individuals sue to enforce the rights created by these uncontrolled legislatures.

With so much being regulated, people become accustomed to having problems which affect their lives somehow controlled by the law. When they cannot get their way through legislation, increasingly they sue. The tobacco litigation was a perfect example of this sort of litigation. There is another effort now underway to get rid of all lead paints in various buildings around the country, something not required by any law, but being pursued by some ambitious lawyers.

With increasing litigation has come a gradual loosening of the restraints on class actions so that they are now used for all sorts of litigation for which they were not intended and are not well suited.

To deal with all of this burgeoning litigation we have more and more lawyers. The need is more than just one lawyer for a law suit. Lawyers have the greatest marketing tool for their services ever invented - the law suit. When a person hires a lawyer to sue another, the other person also needs a lawyer. Such is not the case in other professions. If you hire a doctor to perform an operation, there is no need for someone else to hire another doctor because just you are having surgery.

Thus, unchecked increasing complexity in our laws adds substantially to litigation.

Increased Costs. In a complex society with complicated laws, costs must increase to handle the complexity. Compliance with laws adds costs in several different ways. People and businesses must spend more time and more money on compliance with the laws.

Governments at all levels have increased costs for making regulations and enforcing laws and regulations.

As pointed out above, many laws rely upon private enforcement or permit redress of private wrongs resulting from failure to comply with some laws. Private enforcement involves both sides normally getting attorneys to represent them, which adds costs to the system. Often the laws are written in such a way so that a minor violation leads to absolute liability with no test of reasonableness. Such liability for minor infractions can be substantial. I have seen some very legitimate small businesses driven out of business by such costs.

All of these costs are ultimately born by individuals, not by some impersonal fictitious entities called corporations. Customers pay more; employees are paid less; or the owners get less. Ultimately all customers, employees and owners are individuals. Thus, we have regularly increasing costs of living that have little or nothing to do with the inherent costs of producing the products we need to live.

Ruined Relationships. Relationships are often ruined because of the complexity of our laws or unintended consequences of our laws. An excellent example of this problem is seen in our welfare laws as they were originally enacted. At one time a person could not receive any sort of public assistance if there was a second able-bodied person in the home. This person was usually the husband. Therefore, a requirement which was intended to protect government's money in fact lead to the breakup of many poor families and greater poverty.

There are more subtle negative impacts upon relationships resulting from increasing complexity of our laws. Many laws enacted in our complicated society result in one group getting a benefit that another group does not have. The various farm programs are laws of this nature. The tax law is full of benefits to one type of business or another, such as the insurance industry and the credit unions. In order not to lose out, people form groups to fight for or against different advantages in the laws. As pointed out above, we also have increased litigation. Thus, we often turn to legislatures or courts as mediators of what under other circumstances would be personal matters settled among neighbors by talking through the problem. We lose our willingness and ability to deal directly with each other.

Another way in which we ruin relationships is by relying too much upon government to do things which are better done by people dealing directly with each other. Excellent private programs and person-to-person programs to help the less fortunate are often displaced by government programs. In fact, when I have worked with some charitable organizations, I have occasionally had people refuse to contribute to programs because they viewed their tax dollars as being the way they contributed to helping the less fortunate. When we act through a person whose job it is to police the people to whom assistance is extended, we lose the chance to reach out to our neighbors directly and, thus, to build better community relations.

Loss of Civility. With more and more laws controlling our lives, we begin to accept such laws as the only proper means of controlling action. At the same time that we have had increasing legislation and litigation, we have also had pressures for less and less judgment about actions at once thought to be totally inappropriate. The combination of more laws controlling our actions and less acceptance of people interacting with each other to correct unacceptable behavior has fostered the attitudes that no one has a right to criticize another's actions, and that, if it is not illegal, then it is acceptable. This latter attitude has gradually degraded even further to the point that, if one does not get caught, even if it is illegal, then the activity is acceptable. This attitude can be seen in how people drive anymore. There is very little concern for others when driving. People frequently have the attitude that, if they can get through a red light without being caught by a policeman and without being hit by another car, then they have a right to do so.

An excellent book pointing out the importance of the civilizing nature or social opprobrium is Adam Smith's Theory of Moral Sentiments, a book I highly recommend. Alexis de Toqueville noted in Democracy in America how the people in New England towns in the 1830's had so few laws to govern their actions and then went on to note that, with the strong moral values of the people, there was little need for laws. The loss of civility and the lack of acceptance of personal and social correction reveal a truly sad degeneration in our society.

Loss of Safety. This consequence is rather limited in scope and in fact is one which is an example of unintended opposite negative consequence from seemingly good actions. The area where this is obvious is gun control. Many people are constantly pressuring for more and more gun controls to stop violent crime. Yet we do not adequately enforce the laws we now have. There are two sayings which highlight some of the problems with this effort: "When having a gun is a crime, only criminals will have guns." "Guns do not kill people, but people do."

The book More Guns, Less Crime by John Lott supports the greater safety provided by right-to-carry concealed weapons laws versus gun control laws. In essence, right-to-carry laws tend to cut down on violent person-on-person crimes in a way that benefits minorities and women the most of all groups in society. While these conclusions may seem counter-intuitive to some - though not to all - the solidness of Mr. Lott's work and conclusions have withstood scrutiny.