Hello, everyone. Thank you for being here today. I am here to talk to you about a problem that affects all of us as citizens of this country: the complexity of our legal system. I am sure you have heard or experienced some examples of how complicated and confusing our laws and courts can be. Whether it is filing taxes, applying for a permit, suing someone for damages, or defending yourself from a lawsuit, you probably have encountered some difficulties or frustrations with the legal process. You are not alone. Many people, including lawyers, judges, scholars, and policymakers, have recognized that our legal system is too complex and needs reform.
But what do we mean by complexity? And why is it a problem? Complexity is not just a matter of having many laws or rules. Complexity is also a matter of how those laws or rules interact with each other and with the reality of human behavior and social change. Complexity is also a matter of how accessible and understandable those laws or rules are to the people who are affected by them. Complexity is also a matter of how fair and efficient those laws or rules are in achieving their goals and resolving disputes.
According to some experts, our legal system suffers from all these aspects of complexity. For example, one study found that the United States Code, which contains all the federal statutes enacted by Congress, has grown from about 1,400 pages in 1926 to over 200,000 pages in 2012¹. That is an increase of more than 14,000 percent! And that does not even include the thousands of regulations issued by federal agencies, the hundreds of thousands of court decisions interpreting those statutes and regulations, or the millions of state and local laws that also govern our lives.
Another example is the difficulty of understanding and applying those laws. Even lawyers and judges often struggle to comprehend and follow the legal rules that they are supposed to know and enforce. One study found that federal judges disagree with each other about how to interpret federal statutes about 20 percent of the time². Another study found that lawyers spend about 30 percent of their time researching legal issues³. And another study found that ordinary people have trouble understanding basic legal terms and concepts⁴. How can we expect justice and fairness when the law is so obscure and confusing?
A third example is the inefficiency and ineffectiveness of our legal system in resolving disputes. Our courts are overloaded with cases that take too long and cost too much to resolve. One study found that the average civil case in federal court takes about two years from filing to trial⁵. Another study found that the average cost of litigation for small businesses is $150,000 per case. How can we expect justice and fairness when the law is so slow and expensive?
These are just some examples of how complex our legal system is and why it is a problem. But what can we do about it? How can we make our legal system simpler and better? There are many possible solutions, but I want to propose one that I think is simple, radical, and effective: let juries decide civil cases.
What do I mean by that? I mean that instead of having judges apply complex and rigid legal rules derived from centuries-old precedents or statutes, we should have juries apply common sense and moral values derived from contemporary community standards. I mean that instead of having lawyers argue over technicalities and formalities, we should have parties tell their stories and explain their perspectives. I mean that instead of having courts impose uniform and impersonal outcomes, we should have juries craft flexible and individualized solutions.
Why do I think this would work? Because this is the original purpose and function of juries. Juries were not meant to be passive observers or rubber stamps for judges. Juries were meant to be active participants and representatives of the people in the administration of justice. Juries were meant to protect the rights and interests of the parties from the tyranny or corruption of the government or the elites. Juries were meant to reflect the values and norms of the society in which they live. Juries were meant to be the voice of fairness and reason in the legal system.
But over time, juries have lost their power and influence in our legal system. Judges have taken over most of the functions and decisions that used to belong to juries. Lawyers have manipulated and intimidated juries with complex and confusing arguments and evidence. Legislators have restricted and regulated the scope and authority of juries. And the elites have avoided and bypassed juries with alternative dispute resolution methods.
It is time to restore the role and dignity of juries in our legal system. It is time to let juries decide civil cases based on fairness instead of the precedent or codes. It is time make our legal system simpler and better for the American people.
First, this would make our legal system more accessible and understandable to the people. People would not need lawyers or judges to explain or apply complicated legal rules that they do not know or care about. People would only need to use their common sense and moral judgment to decide what is right or wrong in each case. People would feel more confident and comfortable in participating in the legal process as jurors or parties.
Second, this would make our legal system more responsive and adaptable to changing circumstances. Juries would not be bound by outdated or irrelevant precedents or statutes that do not reflect the current reality or needs of society. Juries would be able to consider new facts, issues, or values that arise in each case. Juries would be able to create new solutions or remedies that fit each situation.
Third, this would make our legal system more fair and effective in resolving disputes. Juries would not be influenced by external factors or pressures that may affect judges or lawyers, such as political agendas, personal biases, professional interests, or financial incentives. Juries would only be guided by their conscience and sense of justice. Juries would also be more likely to reach a consensus or compromise that satisfies both parties, rather than a winner-take-all verdict that may leave one party feeling cheated and resentful.
Of course, this proposal is not without challenges or drawbacks. There are many practical and theoretical questions that need to be answered before such a radical change in our legal system could completely replace our current system. For example, how would we select and train jurors for this task? How would we ensure that juries are diverse and representative of the community? How would we balance the rights and interests of the parties with those of the public? How would we review or appeal jury decisions? How would we coordinate or harmonize jury decisions with existing laws or institutions?
These are important questions that deserve careful consideration and discussion. But they are not insurmountable obstacles that should prevent us from pursuing this idea. I believe they are opportunities for innovation and improvement that should inspire us to improve our education system, social services, and the checks and balances in our political system.
In conclusion, I have argued that our legal system is overly complicated and that one possible solution would be to have local juries decide civil cases based on fairness instead of the common law or the civil law. I have explained what I mean by this proposal, why I think it would work, and what challenges it may face. I hope I have convinced you that this is a worthwhile idea that deserves your attention and support.
Thank you for listening. I welcome your questions and comments.
Source: Conversation with Bing, 4/5/2023
(1) Introduction to the American Legal System | LexisNexis.
(2) Complexity And Power In The Legal System – NPR.
(3) Measuring, Monitoring, and Managing Legal Complexity – SSRN..
(4) The Complexity Of The United States Legal System. Bartleby
(5) Measuring, Monitoring, and Managing Legal Complexity. university of Iowa.