Over Ruled: The Human Toll of Too Much Law by Neil Gorsuch, Janie Nitze

The author Neil Gorsuch is an Associate Justice of the United States Supreme Court. His most recent book, 'A Republic, If You Can Keep It', was a New York Times bestseller and won the 2022 Burton Award for Book of the Year in Law.

"Laws in this nation have exploded in number; they are increasingly complex; and the punishments they carry are increasingly severe. Some of these laws come from our elected representatives, but many now come from agency officials largely insulated from democratic accountability."

Laws, laws and more laws

"It turned out that the government produces such a large number of rules, at such a furious clip and with such complexity, that even the agency officials responsible for them had become confused."

"as a judge and realize that I had seen many—so many—cases where the sheer volume and complexity of our laws had swallowed up ordinary people."

"Often enough, men and women going about their lives with no intention of harming anyone are getting thwacked, unexpectedly and at times haphazardly, by our multitude of statutes, rules, regulations, orders, edicts, and decrees."

"Those who can afford sophisticated lawyers may be able to muddle through. Those armed with influential lobbyists may even find ways to make a profusion of laws work to their advantage.

But what about everyday Americans and the rights promised to them in our Declaration of Independence, Constitution, and Bill of Rights? What happens to those people and their foundational freedoms—like the right to speak, pray, and gather freely—when our laws increasingly restrict what we may say, monitor what we do, and tell us how we may live?"

"Law is multiplying, and its demands are growing increasingly complex. So much so that ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all."

Lawyers, lawyers and more lawyers

"Between 1900 and 2021, the number of lawyers in the United States grew by 1,060 percent, while the population grew by about a third that rate."

Heartless administration

"Almost always, one authority or another replies that, while the impact on the individual at hand is most regrettable, we should really focus on the greater good our laws and regulations seek to achieve and the collective social progress they promise."

The author gives an example of a fisherman pursued by Federal government. "How can a fisherman face the possibility of decades in federal prison under the Sarbanes-Oxley Act for allegedly throwing fish overboard and not one of the dozens of officials who touches his case says, 'Wait a minute...'? How can that same fisherman then go on to lose his livelihood—and lose his case before a jury and then again before an appellate court?"

In this example, it cost one fisherman $600k to avoid going to federal prison. "I lost a lot of wages because of this”—at least $600,000, he estimates."

Meanwhile, "taxpayers spent as much as $11 million prosecuting the case."

Administrative diktats

Besides the tsunami of laws, non-elected bureaucrats issue 'guidance documents'.

"Today, agencies don’t just promulgate rules and regulations. They also issue informal “guidance documents” that ostensibly clarify existing regulations but in practice often 'carry the implicit threat of enforcement action if the regulated public does not comply.'"

Why so many laws?

There are several reasons for so many laws.

Impatience and intellectual laziness: "When a problem arises, we are no longer so inclined to rely on individual judgment, our neighbors, or our local institutions to address it. When an idea becomes popular, it seems our first impulse is to embody it in law and debut the new rule on a national stage.

In our eagerness for quick solutions, we sometimes look to agency officials rather than our elected representatives. Sometimes, too, we do so with a demand for strict conformity and little effort to accommodate different views. All of these impulses have become deeply entrenched in our society. And they are developments thoughtful people of any stripe can appreciate hold serious consequences for the integrity of our law and the lives and liberties of every American."

People have bad upbringing.

Their lives are driven by expediency, trivia, entertainment, and pleasure. They don't think about the consequences of their actions.

They want government machinery to work for them to create a comfortable life for them. It does not work.

Democracy: Citizens ask for laws to protect themselves without realizing their implications. Politicians pander to their voters prejudice and desire for quick mob justice.

Desire for uniformity: e.g. everyones lawn should look the same, Housing Owners Association (HOA) rules.

Corporate greed and influence: Corporations lobby to get laws pass that favor them, and keep competition out. They pass laws to make it difficult to challengers to their business model to emerge.

"In 2010, The New York Times reported on the regulatory hurdles associated with opening a new restaurant in the city. It found that an individual 'may have to contend with as many as 11 city agencies, often with conflicting requirements; secure 30 permits, registrations, licenses and certificates; and pass 23 inspections.' And that's not even counting what it takes to secure a liquor license."

"George Stigler, the Nobel Prize–winning economist famed for his theories on regulatory capture. At the seminar, Stigler “proved” that it would be impossible to deregulate the airline industry; too many players had vested interests in keeping regulatory arrangements just as they were."

Bureaucratic hurdles help entrenched monopolies by making it very difficult and expensive for new business to challenge them.

Fear: Government want more laws to create fear of the government in people.

"The Roman emperor Caligula used to post his new laws on columns so high and in a hand so small that the people could not read them. The whole point was to ensure the people lived in fear—that most powerful of a tyrant’s weapons."

Big government: Government officials want big government. Big teams and big budgets to go with their inflated egos. So they naturally tend to grow their sectors by creating problems.

The big government create problems where none exist to justify their existence. Government creates problems, their solutions (laws) make things worse. The cycle repeats.

"Next door to the White House sits the Eisenhower Executive Office Building. It once housed the State, Navy, and War Departments. Now the same building cannot even hold all of the White House staff. The State Department has moved to its own colossal building spanning 2.5 million square feet."

The author writes about "Parkinson’s Law. In 1955, a noted historian, C. Northcote Parkinson, posited that the number of employees in a bureaucracy rises by about five percent per year “irrespective of any variation in the amount of work (if any) to be done.”

He based his amusing theory on the example of the British Royal Navy, between 1914 and 1928, during which time the number of navy ships fell by 67 percent. It seemed to Parkinson that in the decades after World War I, where the number of administrative officers on land grew by 78 percent and the number of navy officers and seamen dropped by 31 percent. It seemed to Parkinson that in the decades after World War I, Britain had created a “magnificent Navy on land.”"

Show me the man and I’ll show you the crime

The author gives examples of criminalizing trivial offences.

"A 24-year-old who downloads academic articles that don’t belong to him isn’t just reprimanded; now we threaten him with decades in federal prison."

Founding Father's Vision

The author writes that James Madison, one of the Founding Fathers, had the vision to divide "governmental powers both vertically and horizontally. It did so vertically by leaving most lawmaking power in the hands of state and local authorities—those closest to the people (a division of power called federalism). To the central government in a remote capital, the Constitution afforded only certain limited and enumerated powers: the power over foreign affairs, for example, along with other matters of a distinctly national character."

"Making new laws was supposed to be a difficult business. As Madison saw it, by requiring such a long and deliberative process, one so dependent on consensus, the Constitution would ensure that any new law—any new restriction on liberty—enjoys wide social acceptance, profits from an array of views during its consideration, and as a result proves more stable over time."

"Madison hoped that the Constitution’s arduous requirements would result in less law and more freedom—and at the same time yield laws that are wiser, more respected, and more apt to protect minority rights."

"In governments where lawmaking is easy, he wrote, laws can quickly become “so voluminous that they cannot be read, or so incoherent that they cannot be understood,” and they may “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

The “sagacious, the enterprising, and the moneyed few” may be able to anticipate, influence, and even profit from so much shifting law. But the “industrious... mass of the people” can do none of those things. In the end, law serves as an instrument only “for the few, not for the many."

"The notion that a people could govern themselves wisely and with due respect for individual liberties was nothing short of revolutionary. Past republics had sometimes flickered brightly only to die away quickly. Few around the world thought that democratic majorities would long respect minority rights or avoid devolving into mob rule and tyranny.

Daniel Webster once called our republic a miracle. But he also warned that “miracles do not cluster” and “that, which has happened but once in six thousand years” of human history “cannot be expected to happen often.” Even a quick look at our world today confirms his assessment. The conviction that people can both govern themselves and respect individual liberty along the way still faces skeptics and challenges."

Lesser of two evils

Federalism creates local laws which are different for each province, region, city, community. This further leads to confusion.

"The competition that federalism invites among states can also lead to a regulatory race to the bottom. And this diffusion of power can generate inefficiencies when businesses and individuals who work across state lines are forced to comply with an array of different rules."

However, this is lesser of two evils. Federalism preserves individual liberty, minority rights, and allows laws which are better suited to individuals.

"The lower you go, the more variances in opinions and values can be accounted for. "

"By contrast, when decision-making is consolidated in agencies in Washington, D.C., it becomes harder to account for all these differences. "



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