Not to continue stealing interesting problems from Andrew Sullivan, but his co-bloggers think, in brief, that law is too hard, with judges and lawyers collaborating to make the system more complex, and less accessible to the common man. To the note that sophisticated parties prefer disputes resolved logically, which often involves competing considerations and complex rules, his response:
But what about those of us who aren’t “sophisticated parties” with “bargaining power”? The rule of law has value to us – but that value diminishes quickly when we can’t understand what the hell is going on, and finding out costs us so much money that we forgo certain opportunities entirely because we’re priced out by the necessary attorney fees. That a legal system meets every last need of the typical Skadden client doesn’t make it ideal for the rest of a country’s citizens.
But complexity isn’t a flat issue. It starts at one level, and escalates for all parties, because any dispute can quickly become multilayered, requiring complex rules, and a lawyer to parse them. This complexity is in fact necessary for all types of disputes, and also, unavoidable. True, the Bankruptcy Code is a labyrinthine mess, and true, Lehman Brothers (and more importantly, its creditors) probably need that byzantine complexity of the Bankruptcy Code to ensure a fair distribution. But take the law of causation, relevant to determine the consequential damages owed from a breach of contract:
It is well established that in actions for breach of contract, the nonbreaching party may recover general damages which are the natural and probable consequence of the breach. “[I]n order to impose on the defaulting party a further liability than for damages [which] naturally and directly [flow from the breach], i.e., in the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting.” In determining the reasonable contemplation of the parties, the nature, purpose and particular circumstances of the contract known by the parties should be considered, as well as “what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made.”
Kenford Co. v. Cty of Erie, 73 NY 2d 312, 319 (1989). This is a simple rule, with important parts appearing in bold, with great relevance to your average small business owner who, say, loses a big contract when a supplier falls through. An average businessman can probably understand the basic parts of the rule, too. But how do you assess “causation”? How do you determine the original contemplation of the parties? Both questions must be answered to ensure a fair judgment, require familiarity with a nontrivial volume of governing law, and will, in the hands of a good advocate, be made more not less complex as new distinctions are invented to better serve the client. Simplicity imports complexity. It’s the nature of justice, and the adversary system. It’s unavoidable, and we don’t have to be happy about it, but it’s also the way the system has always worked.