Simpler: The Future of Government.

• Author: Driesen, David M.
• Position: Book review

1. INTRODUCTION II. PARKING REGULATIONS: SIMPLE AND COMPLEX A. More Conditions = More Complexity B. Simple Rules Can Be Costly C. Compromise and Moderation Generate Complexity D. Separating Uncertainty from Legal Complexity E. Separating Legal Complexity from Complex Compliance F. Needless Complexity III. INVOKING SIMPLICITY WHILE CONDUCTING BUSINESS AS USUAL A. What Sunstein Aims to Simplify B. Cost-Benefit Analysis C. Behavioral Economics and Nudges 1. Presentation of Information 2. Default Rules 3. Paternalism and Nudges D. Minor Simplification IV. TOWARD A DEBATE ABOUT TRADEOFFS BETWEEN SIMPLICITY AND OTHER VALUES A. Legal Complexity and the Problem of Audience B. Legal Complexity and Compliance Complexity C. Legitimacy D. Toward Accepting Some Tradeoffs in Order to Simplify Law. V. CONCLUSION I. INTRODUCTION

   Law students sometimes wish that law were simpler, and they are not alone. Clients, lawyers, and commentators also often complain about law's complexity. (1) In many areas of law--tax comes to mind--we should make simplification a priority; after all, a lot of people without expert training may find it impossible to comply if the law is too complex. But increased simplicity has proven an elusive goal for law, in part because it often conflicts with other goals. Tax experts, for example, frequently argue that tax simplification conflicts with the goal of equity. (2)

   Cass Sunstein, in a new book entitled Simpler: The Future of Government, argues that we should make government regulation simpler. (3) His book, however, uses Sunstein's recent experience as administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (OIRA) to argue that nudges--the employment of information and framing to influence peoples' decisions--and cost-benefit analysis (CBA) prove useful as legal reforms. (4) Reviewers writing in more popular venues than law reviews have broadly discussed Simple's agenda for legal reforms. (5) My main goal here is to pave the way for a better debate about simplification. In this sense, I primarily use Sunstein's work to illustrate a pervasive problem with the debate over legal complexity. Many actors who decry complexity and invoke simplicity do so to make a very different reform agenda appear more attractive, rather than to seriously address the tradeoffs involved in taking simplification seriously. The tendency to associate complexity with a wide array of evils, and simplicity with a wide array of virtues, tends to obscure fundamental questions about the meaning of simplicity and complexity. This tendency, which is rather pronounced in Simpler but also present in earlier legal scholarship, threatens to deprive the terms simplicity and complexity of any clear meaning. (6) In other words, the terms "simple" and "complex" become too complicated and uncertain if they are thought to embody too wide an array of vices and virtues. A clear theory of legal complexity and simplicity would aid legal reform. This Essay aims to provide the beginnings of such a theory, building upon previous scholarship along these lines and using Sunstein's book to show how difficult simplification can be even for those who profess to make it their chief aim. (7)

   I begin by developing a model of simplicity and complexity based on a very simple example of parking regulation. Although the model is simple, it provides a basis for distinguishing simplicity and complexity from other concepts, such as uncertainty and costliness, with which complexity is sometimes confused. (8) I then use this theory as a lens through which to examine Sunstein's book. My main conclusion is that his book has little to offer as a project for simplifying law, but may have some merit on other grounds. In the final Part, I focus on a question suggested by Sunstein's use of the concept of simplicity to advocate his own preconceived agenda: Should we have a serious interest in making things simpler, when doing so conflicts with a lot of other goals?

2. PARKING REGULATIONS: SIMPLE AND COMPLEX

   We intuitively have some shared sense of the difference between simple and complex rules. (9) Let's take a very familiar example. In my home city, we have two posted rules regarding parking. In some areas, one can see a sign stating "No Parking Any Time," a very simple rule. (10) In other places we have signs that say "No parking from 6 p.m. on Even Days to 6 p.m. on Odd Days." This Odd-Even Rule is more complicated than a simple No Parking Rule. But why exactly is this Odd-Even Rule more complicated than the No Parking Rule? And what does this example teach us about complexity and simplicity?

   1. More Conditions = More Complexity

      The Odd-Even Rule is more complicated because it has more conditions. An outright prohibition of parking--or any other activity--is quite simple. A rule that allows parking on some days and not others is inherently more complex. We frequently refer to the tax code as complex because it subjects any particular question to numerous conditions, often stated in different sections of the Internal Revenue Code. (11) A large number of conditions is the hallmark of complexity as ordinary people understand it. (12)

   2. Simple Rules Can Be Costly

      Simple as this observation is, it immediately leads to an observation that may seem counterintuitive to some: Complexity has no fixed relationship to a rule's costs or benefits. The parking example can help illustrate this observation. Notice that the more restrictive No Parking Rule is easier to understand and hence simpler than the less restrictive Odd-Even Rule. In economic jargon, the simpler rule generates larger compliance costs than the more complex rule, because the simple No Parking Rule may necessitate parking on a distant street and walking farther more often. (13)

      Lax rules can also, however, prove simple. Suppose that we had a different rule: Parking OK All the Time. (This is the default rule in places where no sign is posted.) This Parking OK Rule is as simple as the No Parking Rule, but generates no compliance costs. Hence, two equally simple rules generate widely varying costs. Simplicity and complexity do not correlate with costs and therefore have no particular relationship to cost-benefit ratios. (13)

   3. Compromise and Moderation Generate Complexity

      Law frequently becomes complex because it embodies compromises between competing needs and values. (15) In other words, complexity is often the hallmark of moderate law. This desire for compromise among competing values probably explains my parking example of complex law. In some places, a parked car would obscure visibility and create a hazard at any time, leading the municipal government to prohibit parking outright. In other words, the municipal government carries out no balancing of needs and values, because safety is involved. (16) There are other places where no such hazard exists and the municipal government freely permits parking, giving the value of drivers' parking convenience absolute priority. These absolutist rules are quite simple. The complex Odd-Even Rule on many streets reflects an effort to balance drivers' desire to have a convenient place to park with the need of city plows to access the street during frequent snowstorms. This principle--that complexity is the hallmark of moderation and simplicity can be the hallmark of absolutism--has wider applicability than may be immediately apparent. For example, an extreme libertarian society might have no pollution control laws, a very simple form of environmental law. A society committed to making us completely safe from pollution might very well ban certain polluting activities outright (e.g., a rule prohibiting coal-fired power plants from operating), again, a very simple rule. (17) Although one can find examples of both types of absolutism in our law, the more typical response is to have a rule requiring compliance with some sort of pollution limit, which is a more complex rule.

   4. Separating Uncertainty from Legal Complexity

      None of my three parking rules exhibits significant uncertainty. The No Parking and Parking OK rules are extremely certain. The Odd-Even Rule might raise questions about whether parking is illegal or not precisely at 6 p.m. Most rules generate some sort of uncertainty at the margins. But in any given 24-hour period this rule operates uncertainly for only a minute or two.

      Most commentators associate complexity with uncertainty. (18) Separating those two concepts, however, would aid legal analysis, even though there is some relationship between them. To see why, let us posit a different rule--or more precisely, a principle: Parking Permitted When Reasonable. This Reasonable Parking Rule greatly exacerbates uncertainty. The driver now must determine for herself how close to an intersection she can park without creating a hazard or what parking times and locations would inconvenience the snow plows too much. And doing so would require judgment under conditions of uncertain information. The Reasonable Parking Rule's generality creates uncertainty.

      Now most complexity commentators associate uncertainty with the proliferation of very specific rules, not a high level of generality. (19) But the above example shows that a simply stated rule can generate uncertainty because of its generality. (20) Indeed, proliferation of very specific rules can sometimes reduce uncertainty. (21) The complexity literature recognizes that a desire for more specificity to limit uncertainty often leads to a proliferation of specific rules. (22)

      At other times, increased complexity can have little or no effect on uncertainty. For example, imagine a rule combining the Odd-Even Rule with an exception permitting parking on every Thursday, "notwithstanding any other provision of law." This combination of the Odd-Even Rule with the Free Thursday Rule adds complexity because it requires the assimilation of several conditions in order to figure...