We’ve known for decades that the law is “choking on statutes”. The author of that concept is now known to me.
He is an American jurist and legal academic, Guido Calabresi. He wrote “A Common Law for the Age of Statutes” (Harvard University Press, 1985, 332 pages) based on lectures he gave in 1977.
It will soon be 30 years since those lectures. Business, real productive and sustainable business, can today choke to death on legislation (aka statutes).
All the above came to mind during a software demo last week run by a Sydney magistrate. She mentioned Calabresi and her book. She was demonstrating her self-produced Filemaker Pro database product under development designed to help magistrates and other lawyers navigate through a decision tree on determining issues in cases before the local court. The tree is designed for users to navigate the forest of statutory and common law.
It is a forest that no magistrate or lawyer can remember. There is too much law to remember and often you need references to many ideas to help prompt thinking. Law is not necessarily always about applying rules. Law also has many principles which are flexible enough to be customised for specific circumstances.
In mid-2013 journalist Marcus Priest reported in The Australian Financial Review:
“There are now 26 acts on the Commonwealth statute book with substantive text more than 500 pages. … Over the past decade the total page count of bills introduced per financial year doubled to around 9,000 pages per year. In part, this is a response to the increasing complexity of the modern economy – but it also reflects the desire by legislators to cover every conceivable possibility.”
In this Lightbulb blog we’ve written on legal complexity and solutions for that many, many times. The complexity arises from many sources, including too much law and law in merely text format when alternatives might have a better fit for purpose.
- In Legal nonsense there was discussion of the concept of thickets of law and solutions for cutting through.
- The answer to Is more law a good thing? was an obviously “no”. The article discusses five solutions.
- Graphics and software was discussed as a solution in Law with graphics and software.
- Information mismanagement sinks businesses. That’s discussed in Legal compliance in financial record keeping.
Here’s what is particularly depressing when law expands excessively. It makes compliance a sustainable and growing industry in Australia, the United States and other countries.
In Australia the compliance industry is perhaps bigger today than manufacturing, measured by a few different metrics, eg number of people involved or quantity of revenue generated? Included in those numbers are the hundreds of thousands of public servants, lawyers, accountants, consultants and compliance officers in industry, commerce, schools and government all involved in teaching, recording, assessing and shuffling records about compliance.
In our firm the indication we have that compliance and statutory law are out of control is that a stream of new ventures regularly arrive at our office offering products and services designed to make compliance better, faster or cheaper. We advise the clients, and then reflect on this question: What’s the net societal return from these ventures? This question can lead to conclusions similar to those indicated in President Dwight D. Eisenhower’s famous final speech in 1960 on the risks to America of its Military-Industrial Complex.
Like the American Military-Industrial Complex, in Australia compliance is a huge industry. It attracts automatically recurring revenue and finds political and other levers to pull to fight for its survival against alternatives.
For younger readers, the idea behind the title to this article and the last two paragraphs is that just as military expenditure can and has become a self-promoting and self-sustaining industry, so too can what has been termed as the compliance industry.
The alternatives to snowballing traditional legal compliance text are many and need exploration. For example they may be non-law solutions, less law, simpler law, briefer law, and law delivered with software or as visualisations. We don’t now need more of the same, mountains of text spewed out by multiple parliaments.
Do not misunderstand. Law and compliance are good, in proper measure. Lawyers who at best struggle to keep up with law is not a useful thing in society, nor is a compliance industry leaving little room for others. Because we believe law and compliance are good, we’ve provided a great deal of practical guidance in this blog on the subject:
- Checklist of 51 hints for data and IT security
- 10 legal tasks for an import or export business
- Litigation lawyers need your e-files
- 5 key contracts for an online business
- Unfair contracts or terms are unenforceable
- Regulations framework for e-commerce pharmaceuticals
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