Posted by Orin Kerr:
Should Laws Be Simple or Complicated? A Dialogue:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253813251
The [1]exchange below between Eric Posner and Jonathan Adler brings up
the classic tension between simple laws and more complicated ones, and
I wanted to blog more about it. In the abstract, everyone wants laws
that are simple. The ideal is simple and straightforward. But often a
single rule must regulate a very wide range of different
circumstances, and then you get pressure to be more flexible: Either
to enact a very vague standard that isn't clear (like "act
reasonably"), or else to start carving out exceptions to the rule for
al the specific cases you think need different treatment. The best way
forward can be tricky. Put another way, the ideal is for law to be
clear, simple, and sensible. But these goals are often in tension.
To see an example of this, consider the following hypothetical
exchange over how much privacy Congress should extend to e-mail. I'll
make the exchange between "Complicated Karen" and "Clear Chris," who
are both trying to figure out the law of e-mail privacy and what
Congress should do. Clear Chris wants a clear and simple rule;
Complicated Karen is concerned with making sure the law produces
sensible results in different settings.
Complicated Karen: I've been thinking about how much privacy the
law should give to private e-mails held by an ISP. A lot of people
think e-mail should be protected by a warrant requirement. What do
you think?
Clear Chris: I completely agree. I propose a simple rule: E-mail
should be protected by a warrant.
Complicated Karen: Great. Now let's start thinking about some
exceptions. Imagine an Internet subscriber wants the ISP to
disclose the contents of his e-mail. Maybe he has forgotten the
password, or he needs an authenticated version. Should we have an
exception for consent?
Clear Chris: Well, yes, of course. If the person really consents,
then the government shouldn't need a warrant. That's obvious.
Complicated Karen: Great. What kind of standard would you choose
for consent? Knowing? Knowing and voluntary? Intelligent? Is it
consent in fact? Would you allow implied consent? And what about
third party consent? How about business e-mail?
Clear Chris: Woah, that's a lot of questions! I don't really know,
to be honest. I just want the exception to be clear so people can
understand it.
Complicated Karen: Sure, I agree, clear is great. At the same time,
we need to think about just what kind of consent you have in mind.
Otherwise it will just punt the issue for the courts to make up the
law later on. Moving along, what about an exception for
emergencies? Should we have an emergency exception? For example
what if the police tip off the ISP that the e-mail is being used by
a kidnapper, and the government would need several hours or more to
get a warrant. Should we allow emergency disclosure if the ISP
wants to disclose?
Clear Chris: I don't know, once we start getting exceptions, it
seems like the exceptions are going to swallow the rule. But I'm
not a nut; if there's really a kidnapping, and the ISP is willing
to disclose, I think an emergency exception for kidnapping is
reasonable. But I want the exception limited to kidnapping.
Complicated Karen: How about terrorists attacks? Serial killers?
Maybe we should craft a general exception for severe emergencies?
Clear Chris: I'll have to think about that one; I'm pretty
skeptical, but I'm not sure I would want to totally rule that out.
Let's come back to that one.
Complicated Karen: Sure. What about if the ISP is overseas? What
then?
Clear Chris: Overseas? Who has an e-mail account overseas?
Complicated Karen: A lot of people do, actually. Someone in the US
might have an account with servers in Canada. And for that matter,
someone in Paris might have a Gmail account in the U.S. Do you want
to require a warrant for all of these cases?
Clear Chris: I've never thought about that one, I have to admit.
But well, yeah, sure, let's have a warrant requirement for those. I
want a clear and simple rule, so let's keep it clear and simple.
Complicated Karen: Sure, that's fine. But to do that, we're going
to modify some other laws. Under current U.S. law, U.S. officials
can't get a warrant for overseas: warrants are traditionally for
U.S. use only. And how do you want to create U.S. jurisdiction over
crimes occurring abroad? If a person commits a crime in France,
that can't authorize a U.S. warrant under U.S. law. We either need
to negotiate a treaty with the French government to handle that, or
else we can say that French crimes committed in France are U.S.
crimes, too, allowing warrants to be issued in the U.S.
Clear Chris: Yikes, are you nuts? Suddenly you're talking about the
treaties and french law, and all I wanted to do was have a simple
rule! You keep trying to make things complicated. Why not just make
it simple?
Complicated Karen: I'm trying to keep it simple, actually. But to
make the law what you want it to be, you need to think about these
issues: Otherwise you'll announce a simple rule but it won't have
any legal effect because of other aspects of existing law.
Clear Chris: Lawyers! You guys always like to make things
complicated; No wonder you bill by the hour.
Of course, none of this suggests that clear rules are bad. To the
contrary, they are the ideal, in my view. But clarity and simplicity
are only some of the goals of legislation, and I don't think it works
to simply assume that we necessarily want the law to be very simple
and very clear no matter what. Put another way, sometimes the law is
complicated not because of those darn lawyers, or because of evil
interest groups, but because it needs to be complicated to avoid
[2]being an ass.
References
1. http://volokh.com/posts/1253805296.shtml
2. http://www.bartleby.com/73/1002.html
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