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11 - Complexity and the Lawyer–Judge Bias

Published online by Cambridge University Press:  03 May 2011

Benjamin H. Barton
Benjamin H. Barton
Affiliation:
University of Tennessee, Knoxville
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Summary

The broadest judicial bias I see … is the bias in favor of legal complexity. The volumes of the third edition of the Federal Reporter spread themselves like Kudzu vine over the shelves of law libraries.

– Dennis Jacobs, Chief Judge, U.S. Court of Appeals for the Second Circuit

The multiplication of rules and standards, carrying in its train as it does endless debate over boundaries, is one of the banes of the American legal system, a source of its appalling complexity.

– Holmes v. Buss

EARLIER CHAPTERS OFFER MULTIPLE EXAMPLES OF THE lawyer–judge bias in case law. Chapter 10 discusses Enron as a recent real-world example of the way in which the lawyer–judge bias has important and deleterious consequences. In this chapter, we consider a more diffuse, but equally insidious, consequence of the lawyer–judge bias: how the lawyer–judge interrelation leads to the overweening legal complexity described by the judges at the start of this chapter.

Before defining legal complexity, let me start with a caveat. I have presented parts of this book at law schools and conferences all over the country and I have had multiple colleagues read it in draft. This chapter is invariably their least favorite. Law professors, judges, and lawyers have a very hard time seeing what seems obvious to outsiders – the American legal system is hopelessly and miserably complex and much more complicated than it needs to be.

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The Lawyer-Judge Bias in the American Legal System , pp. 259 - 284
Publisher: Cambridge University Press
Print publication year: 2010

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References

Howard, Philip K., The Death of Common Sense – How Law Is Suffocating America (New York: Warner Books, 1994)Google Scholar
Epstein, Richard A., Simple Rules For A Complex World (Cambridge, MA: Harvard University Press, 1995)Google Scholar
Schuck, Peter H., “Legal Complexity: Some Causes, Consequences, and Cures,” in Peter H. Schuck, The Limits of Law: Essays on Democratic Governance (Boulder, CO: Westview, 2000), 3–46Google Scholar
Hadfield, Gillian K., “The Many Legal Institutions that Support Contractual Commitments,” in Handbook of New Institutional Economics, eds. Claude Menard and Mary M. Shirley (Dordrecht, Netherlands: Springer, 2005), 191–92Google Scholar

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