Question: How Many US Laws Are There? No One Knows!

Question: How Many US Laws Are There?

I saw this question on Quora this morning and thought it deserved a serious anwer.

Here is what I can say: No one knows.

What is a Law? 

Even the definition of law is complex. I think regulations count. I think municipal ordinances count. Do industry standards count? Most would say “no,” unless they are incorporated into an enforceable statute, regulation or ordinance. Sometimes they are. When they are, how you count them?

What about case law? Many cases decided by courts announce rules of law explicitly, and sometimes, implicitly. Does such rules count? Do they count only if they are binding authority in a certain jurisdiction? What about if they are “persuasive” authority and therefore likely to be followed? What about lower court decisions applicable only in some jurisdictions or parts of jurisdictions? What about administrative decisions?

And sometimes, “laws” state rules, but impose no consequences for ignoring them. Are these really laws?

The Volume of Law is Huge and Growing.

In 1973, before I went to law school, I had a full-time internship for a Vermont Assistant Attorney General. My first assignment was to read every section of Vermont’s statutes, and prepare a chart identifying every crime, noting its citation and whether it was punishable by more or less than a year in prison. At that time, the Vermont statutes, published as Vermont Statutes Annotated were only in books, not on a computer. And the crimes were not just in one volume, they were spread through all the volumes of our statutes, more than 30 of them. I did it. I think it took me a solid month, at 8 hours a day, 5 days a week, plus. It was hard. It would be far harder today. I would not still have the combination of self-discipline and youthful enthusiasm that it took to do it.

I don’t think anyone has ever collected and counted all the federal crimes.

The Collateral Consequences of Criminal Convictions as a Bad Example. 

I was involved in persuading the federal government, with the help of Senator Patrick J. Leahy (who with his staff, deserves credit for the effort), to establish a grant program to count and collect all the “collateral consequences of criminal convictions” provided for by federal and state law. It did not even propose to collect local (county and municipal laws). One and half million dollars were awarded to the ABA Criminal Justice Section to do the study. It cost at least twice that much (and probably a lot more), and took far longer than expected to do the initial job.

The Council of State Governments has taken on the job of improving, updating, and maintaining the research. You can see it here: National Inventory of Collateral Consequences of Conviction.

Take a look. It will stun you! By one count there are more than 45,000 federal and state laws and regulations limiting what people can do if they have a record of having been convicted of a crime. It’s overwhelmingly complex. How can a person with a record hope to comply?

Every Man is Presumed to Know the Law!

The idea that “every man (and woman) is presumed to know the law,” is just that, a necessary presumption. It is contrary to the truth. It is actually better put as “ignorantia juris non excusat,”[1]  meaning ignorance of law is no excuse.

This is one way to view the question. It’s also possible to see if from a simpler point of view: is this particular thing I want to do legal? Thinking that way simplifies things a lot, but it’s still not easy.

Even lawyers Don’t Know the Law.

No lawyer “knows” all the law. Lawyers know how to find the law on particular point.  At least they do when the law is reasonably clear. Often it is a judgment call. That’s one reason we have so many lawyers and so much money is devoted to the legal system. It’s a key reason that lawyers are so influential in our society.

Law is Important.

I am a big “L” liberal. I believe in the power of government to improve our collective lives and the importance of the rule of law. We have done very well as a society in part because our law provides an infrastructure for human interaction and cooperation. Flawed as it is, it is far better than the law of the jungle.

But I am sympathetic to the view that we have too many laws and regulations. The problem with just dumping them, is that if you look at them individually, most of these laws make at least some sense. And so if you dump them without careful, individual thought, you will do great harm.

Can We Do Better?

Yes, we can do better. We can try to simplify and make more uniform the laws that we have. (That’s one reason I have devoted significant amounts of my time and energy for the last 24 years to working, without compensation, as a Uniform Law Commissioner.The Uniform Law Commission drafts uniform laws on subjects where state law should be the same or similar.)

The Congress and state legislatures can establish “sunset’ provisions automatically repealing new laws after a time, unless they are extended. They can establish commissions to study existing laws for possible repeal. As voters, we can support politicians who initiate repeals of outmoded or unneeded laws.

Is it too much to expect that people of normal intelligence and diligence should be able to find and understand the laws that regulate them? It is today. I assure you that writing clear and simple laws is very difficult. And repealing old law is very difficult as well.

A Dozen Principles For Improvement.

I think that legislatures, and Congress, should keep in mind a few principles to try and reduce the problem. Here are my dozen:

  1. Congress and Legislatures should adopt a standard for readability for all laws (say, a 12th grade reading level) and employee experts to review and simplify laws to meet that standard.
  2. All public laws should be published, for free, on the internet and available to all.
  3. All judicial and administrative decisions should be published and available for free on the internet.
  4. No law should incorporate by reference rules that are not generally available for free.
  5. Agency practices and rules of thumb should not be given the force of law. To become mandatory, they should be adopted as regulations.
  6. The concept of no “ex post facto” laws–that is that law should not retrospectively apply to behavior that has already occurred–should be applicable to all statutory and regulatory law, not just criminal law.
  7. When new laws are adopted, lawmakers should look at existing, related  laws and repeal them, or at least deal with the problem of consistency between new and old law.
  8. Government should not delegate lawmaking power to private organizations or worse yet, to cartels.
  9. More steps should be taken to make more lawyers available at more reasonable costs to ordinary people.
  10. We should be careful about the urge to license and regulate occupations. Conservatives have a point when they say that regulated communities often end up capturing the regulators. Sometimes public welfare requires regulation, but it is often a classic example of “rent seeking behavior.” If an occupation seeks to be regulated, beware! (And take note, right wingers have become the biggest rent seekers of all time!)
  11. Lawmakers should be careful in responding to a single outrageous event by outlawing previously legal behavior. Lawmaking by anecdote is dangerous. This is particularly true of criminal law.
  12. We need to reduce the power of money in our politics.

Some of these principles would result in more published laws than we have now. That’s not ideal, but it is more transparent. Better more laws, than secret laws.

We live in a very large and complex culture and our law must be correspondingly complex.  But yes, we have too many laws and they are too complex. We will not solve the problem overnight. It’s hard to imagine that anything will completely solve it. But we can move in a better direction.

Rich

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