On The Volokh Conspiracy Ilya Somin remarks on the perhaps unintended consequence of SCOTUS Justice Sotomayor’s remark on the mass of laws we have today:
During last week’s Supreme Court oral argument in Christie v. NCAA, an important federalism case, Justice Sonia Sotomayor noted a dangerous feature of our legal system. We have far more laws than the state and federal governments can effectively enforce:
[I]f every governor enforced every law on the book, the state would be more than bankrupt. It would have no way of surviving…
There are countless laws, and even laws that are in force, that are not enforced totally….
States make choices [about which laws to enforce] all the time.
Justice Sotomayor is absolutely right. At both the state and federal levels, we have so many laws that law enforcement officials can only target a small fraction of offenders; so many that the vast majority of adult Americans have violated state or federal law at one time or another. The executive therefore exercises enormous discretion about which lawbreakers to go after and which ones to leave alone.
This, in turn, has dire consequences for the rule of law in our society: It makes it very difficult for ordinary citizens to determine what laws apply to them and how to avoid violations, and ensures that whether a given lawbreaker gets prosecuted depends far more on the exercise of police, prosecutorial, and executive discretion than on any objective application of legal rules. Thus, the rule of law is in large part supplanted by the rule of whatever men and women control the levers of power at any given time. As Sotomayor notes, those people have vast discretion in deciding which of the “countless laws” on the books they want to enforce, and when.
So what’s to be done about this? If citizens have to keep track of all the laws applicable to themselves then they’ll simply lose their minds. But the complexity of modern society more or less demands a complex legal system. Without it, we run a couple of unacceptable risks:
1. Exploitation by those we currently call criminals, particularly of the white collar sect, and
2. The problems that come from unforeseen consequences for the typical citizen. There are good reasons for most laws we pass, and many have to do with the long-term consequences if many of us took certain actions. This can be pollution problems, this can be taking advantage of banking systems in which a single case of a particular incident happening is not a big thing, but when everyone does it, then the banking system loses the confidence of the populace, and before you know it you have chaos.
The only palliative I can think of is unpalatable – implement a system where, at least for more obscure crimes, you get a warning not to do that, and on repeat then you get hit by punishment. The apparatus to monitor that is, I suspect, intolerable.
