On the Genre “Too Much Law/Too Little Law”

Mark Tushnet

The publication of “Over Ruled: The Human Toll of Too Much Law” by Justice Gorsuch and Janie Nitze (no link, deliberately), coupled with my getting to another book in the genre “too much law” as I read down my accumulated shelf of unread books provoked me to think about the genre.

The form of the genre is this: (1) an account of some horror stories in which law or the absence of law inflicted real human harm according to the author, who typically offers an unnuanced and somewhat distorted account of the facts and the law (or non-law) at issue followed by (2) a diagnosis, often sounding in political economy, of why these horror stories occurred, and concluding with (3) some prescriptions about what to do about the problem. My general sense, and something that might be worked up by someone else into an interesting survey article, is that there’s typically a disconnect between the diagnosis and the prescription, which ordinarily occurs because the author isn’t willing to rethink the hard-wired features of the US Constitution that give rise to the political economy that causes the problem. (That’s drastically simplified, and a full account would say something about American Political Development and about how sometimes modest prescriptions can dynamically change the surrounding political economy—a bit more on this later.) 

As I’ve suggested there are conservative and liberal exemplars of the genre. Strikingly, though, it seems to me that authors on both sides converge on a political economy story in which the self-interest of political actors and special interest groups determine policy, along the lines of Mancur Olsen’s “concentrated benefits/distributed costs” model. One might think, then, that the prescriptions would try to work out governance structures that would be less vulnerable to the Olsen-like problems. 

And sometimes you do find such prescriptions. Conservatives, for example, argue for a sharply reduced scope of public power so that special interests can’t get any concentrated benefits from government. Liberals, in contrast, follow James Madison’s model of an expanded republic with substantial power in the center, which increases the costs of organizing to obtain concentrated benefits (though when you get them, the benefits are larger than would occur in a less centralized government). Notably, it often takes a fair amount of pulling and hauling to get these results out of the existing hard-wired US constitutional system. 

So, the prescriptions get a bit removed from the diagnosis. Sometimes the prescription is something along the lines of “Shape up and fly right.” That is, the people should become more politically active and in particular should vigorously oppose candidates supported by special interests. Here the difficulty is that the prescription doesn’t address the “distributed costs” part of Olsen’s argument (or, if you want, doesn’t address the paradox of voting in large polities, to put it telegraphically). 

Another favored prescription is judicial empowerment (or engagement in the Institute of Justice’s preferred language). The judges we have, selected in the way we select them, should (and will, if only they read this book?) interpret the Constitution and existing statutes in an anti-Olsen way. Here the Institute for Justice’s favorite cases, some of which Gorsuch and Nitze apparently discuss—undertakers, hair-braiders, flower arrangers—are pretty good exemplars, as are the stories of intrepid plaintiffs’ side lawyers successfully taking on corporate power. Except for the facts that (a) the IJ’s cases involve rather small problems in an overall scheme of “too much/too little law” and (b) those cases, and even more the liberal-side cases, are probably better addressed through centralized initiatives like the Obama and Biden administrations’ campaign against “professional” licensing laws and non-compete clauses and aggressive centralized regulation. 

A further problem with the judicial empowerment prescription is that it lacks a political economy. Or, maybe better, it doesn’t have an account of how judges selected in an Olsen-like political process will actually administer the preferred remedies. We now know enough about state-level judicial selection to see the problem—and it’s a defect in the legal and political science literature that we don’t have a decent account of the political economy of federal judicial selection today (the historical literature, and in particular Jed Shugerman’s book, does offer a political economy account of state-level and, a bit, national-level judicial selection from the founding to roughly the end of the New Deal/Great Society era). 

As I’ve hinted, another route would be to locate Olsen-like governance structures in the hard-wired Constitution—and to attempt to eliminate those structures by radically restructuring the Constitution—abolish federalism or radically decentralize, regionalize, get rid of the Senate, mandate proportional representation, whatever. I’m not interested in the merits of these prescriptions but rather am interested in their structure. 

I think you can find a tiny bit of this kind of thinking among strong conservative libertarians, typically (I think) not embedded in today’s legal community. My guess is that the reason is that today’s conservatives think, perhaps correctly, that they have a lock on the federal judiciary and so judicial empowerment is good enough even if they understand it’s a contingent fact rather than the result of something structural about the political system. One possible result of this year’s presidential election might be to place this contingent fact under pressure (the other result would of course solidify it). 

There’s a bit more of structural thinking on the progressive side, perhaps (the obverse of my observation about conservatives and the federal courts) faut de mieux. Campaign finance reform is probably the most prominent example, though it seems to me that discussions of such proposals by liberals don’t take seriously enough the Olsen-like problems associated with getting campaign finance reforms actually enacted and implemented. 

Advocacy for non-reformist reforms by today’s LPE scholars is probably a better example. In my understanding (which I stress might not be that of proponents of the non-reformist reforms on the table), non-reformist reforms are within the range of policy innovations that might plausibly emerge from our current governance structures but that, when implemented, might have a dynamic effect of destabilizing those structures (particularly when taken together with seemingly unrelated non-reformist reforms in entirely separate domains). 

Policy prescriptions aren’t my bag so I can’t say much about non-reformist reforms except this. First, they do connect the diagnosis and the prescription in the right way. Second, to my taste (which is historically contingent and influenced by living through the CLS experience), the LPE project is a bit too hostile to whacko policy proposals that have no chance whatever of adoption in the reasonably short run but push the normative commitments of progressives and liberals to the limit and thereby might (I think CLS did) dramatically expand the range within which non-reformist reforms might operate. (I have a sociological account of the CLS-LPE relation that’s akin to but somewhat different from Sam Moyn’s.) I should note as well that there's a parallel involving whacko proposals on the conservative side.