Sunday, February 17, 2008

Why Federal Statutes Are Terrible

In my five quarters of law school, I have become familiar with two basic legislative drafting styles: federal and state.  In my humble opinion, the States generally do a better job drafting legislation (and administrative rules, for that matter) than do either Congress or the federal agencies.  While I'm rather ashamed of the Texas Constitution, there are myriad federal laws equally as (uselessly) complex.  I'll name two biggies I've studied: the Internal Revenue Code (Title 26 of the U.S. Code) and the Immigration and Nationality Act (part of Title 8 of the U.S. Code).

Wray Herbert may shed some light on this phenomenon through a recent post on his fascinating blog, "We're Only Human."  In it, he writes about an experiment recently performed at Indiana University where the researchers had various size groups try to solve problems.  (He describes the experiment in more detail.)  He notes that:

When the problems were easy, the [biggest] networks did best. . . . But as the problems became trickier, the small[er] networks tended to perform better. In other words, the truism that more information is always better proved untrue when life got a little messy. And as the problems became even more complex, the small[est] networks proved most clever.

Given that statutes try to resolve some of the most complex issues facing society, it's worth noting that a federal law must be approved by no fewer than 269 individuals (218 of 435 Representatives and 51 of 100 Senators).  The same law being passed by, for example, the Texas Legislature, would require the approval of only 92 individuals (76 of 150 Representatives and 16 of 31 Senators).  I did some quick research, and the average requisite majority among the state legislatures is 75, about 1/4 what Congress requires.  Only seven States require 100+ majorities: New Hampshire (214), Pennsylvania (128), Georgia (120), New York (108), Massachusetts (102), Minnesota (102), and Missouri (100).  Several States do not even have 100 legislators (most notably, Delaware (62) and Nevada (60)).

All this to say two things.  First, I like numbers.  Second, two heads may not always be better than one.  Or maybe I should say: 535 heads may not always be better than 60.

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