The Idea of 'Too Much Law'
University of San Diego School of Law
February 10, 2012
Fordham Law Review, Vol. 80, 2012
NYU School of Law, Public Law Research Paper No. 12-03
If brevity is the soul of wit, what is verbosity the soul of? Of overweening, inefficient, even tyrannical government — at least according to the critics who, for years, have bewailed the fact that federal laws and regulations are growing by the minute, by the mile, and by the metric ton. These critics argue that America suffers from “hyperlexis,” or the existence of too much law, and their calls for remedies to that malady are now finding a receptive ear in the highest echelons of the federal government. The idea that there is too much federal law has been embraced by all three branches of government and by members of both major political parties.
This Article taxonomizes and evaluates the most common claims of hyperlexis in federal law, including the claims that federal laws and regulations are too numerous, too complex, too costly, and too invasive of state and local prerogatives. Once these arguments are untangled, their flaws become evident. Each account of federal hyperlexis faces serious conceptual obstacles. Either the diagnostic criteria for hyperlexis are faulty, or the prescribed cure has no logical relationship to the diagnosed ailment.
Despite these failings, however, the claim that there is “too much law” has, and will continue to have, corrosive effects. The hyperlexis critique implicates deeply embedded philosophical beliefs concerning the nature of individual liberty and the proper role of government. And the critique represents a challenge to the legitimacy of law that current theories of law’s legitimacy are not oriented to deflect.
We are left, then, in the worst of both worlds. The hyperlexis critique does not map out a means to achieve the goal of reducing the amount of federal law, but the currency of the critique has corrosive effects upon the sociological legitimacy of federal law and institutions. Moreover, measures intended to blunt worries about federal over-regulation — such as statutory provisions authorizing the executive to “waive” the application of federal laws — can backfire, by producing legal regimes that appear incomplete, unaccountable, or selectively enforced. Thus, the toll taken by the hyperlexis critique on federal law’s legitimacy may compound itself.
Number of Pages in PDF File: 49
Keywords: overregulation, over regulation, waiver, government by waiver, Dodd Frank, hyperlexis, regulation, legitimacy, REINS Act, Citizens United, administrative law, delegation, public choice
Date posted: February 13, 2012 ; Last revised: August 10, 2012