Case Law, Systematic Law, and a Very Modest Suggestion

Abstract

This paper suggests that there are different ways of writing the same rule, some of which will be more accessible and comprehensible to the reader than others. Elaborate “systematic” statutory law – of the type that characterizes much modern legislation – is contrasted, as to its accessibility, with case law or common law systems, partly relying upon text “readability” studies of the last eighty years. Drawing on the author’s previous analogy between rules and “fractals” – shapes, like coastlines, whose borders are infinitely complicated – the article suggests that one way to balance the ultimately irreconcilable rule-writing goals of precision and reasonableness is to make more use of rule construction devices like the “safe harbor.” Under the safe-harbor (or “unsafe harbor”) approach, a vague default standard is combined with specification of the outcomes for those fact scenarios that are foreseeably most likely to arise, creating a sort of synthetic case law in advance, and potentially minimizing the number of “hard cases” that will arise.

Keywords: jurisprudence, fractal, vehicles in the park, open texture, safe harbor, unsafe harbor, common law, penumbra, vagueness, specificity, complexity, rule style, tax law, employee benefits, pensions, legislation, drafting, formalism, textualism, legal philosophy