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Costs of Codification

Drury D. Stevenson

South Texas College of Law

August 2, 2012

University of Illinois Law Review, Forthcoming

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts and citizens, as statutes proliferate. This Article takes a first look at this problem. On the legislative side, codification makes it easier for special interest groups to obtain their desired legislation. It facilitates Coasean bargaining between legislators, and encourages legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification changes how judges interpret statutes, prompting them to focus more on the meaning of individual words than on the overall policy goals of enactment, and to rely more on external sources, such as legislative history. For both legislators and courts, codification functions as a Hartian rule of recognition, signaling legality for enacted rules. For the citizenry, the reduced legislative costs mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs. More disturbingly, codification also fosters overcriminalization. While it may not be appropriate to revert to the pre-codified regime now, reexamining the unintended effects of codification can inform present and future choices for our legal system.

Number of Pages in PDF File: 49

Keywords: legislation, codification, Bentham, interpretation, statutory construction, statutes, regulation, overcriminalization, hyperlexis, legislatures, transaction costs, information costs, rule of recognition

JEL Classification: D2, D23, D7, D72, K1, K23, K14

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Date posted: August 2, 2012 ; Last revised: September 27, 2013

Suggested Citation

Stevenson, Drury D., Costs of Codification (August 2, 2012). University of Illinois Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2122741 or http://dx.doi.org/10.2139/ssrn.2122741

Contact Information

Drury D. Stevenson (Contact Author)
South Texas College of Law ( email )
1303 San Jacinto Street
Houston, TX 77002
United States
713-646-1897 (Phone)
HOME PAGE: http://www.stcl.edu
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