The idea of "too much law"

Fordham Law Review

Volumn 80, Issue 4, 2012, Pages 1585-1632

  Sohoni, Mila ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 84859639965     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (227)

1. See, e.g., Philip K. Howard, Drowning in Law: A Flood of Statutes, Rules and Regulations Is Killing the American Spirit, N. Y. DAILY NEWS, Oct. 10, 2010, at 36.
2. See NICOLE V. CRAIN & W. MARK CRAIN, SMALL BUS. ADMIN. OFFICE OF ADVOCACY, THE IMPACT OF REGULATORY COSTS ON SMALL FIRMS 2-3 (Sept. 2010), available at http://www.sba.gov/advo/research/rs371tot.pdf (discussing estimates of the "annual cost" of federal regulations ranging from $51 billion to over $1 trillion).
3. Barack Obama, Op-Ed., Toward a 21st-century Regulatory System, WALL ST. J., Jan. 18, 2011, at A17.
4. See Richard Lazarus, Complex Laws Can't Spell Judicial Respect, ENVTL. F., Jan. - Feb. 2005, at 8, 8 (describing judicial antipathy to environmental law claims because of their technical and scientific nature, as well as their dense jargon).
5. Thomas J. Donohue, President & CEO, U. S. Chamber of Commerce, The Regulatory Tsunami-How a Tidal Wave of Regulations Is Drowning America (Oct. 7, 2010), available at http://www.uschamber.com/press/speeches/2010/regulatory- tsunamihow-tidal-wave-regulations-drowning-america.
6. See Editorial, An EPA Moratorium, WALL ST. J., Aug. 29, 2011, at A16.
7. Bayless Manning coined the term "hyperlexis" in a law review article published in 1977. Bayless Manning, Hyperlexis: Our National Disease, 71 NW. U. L. REV. 767, 767 (1977) ("Hyperlexis is America's national disease-the pathological condition caused by an overactive law-making gland."). Most subsequent discussion of hyperlexis has focused on the alleged excesses of lawsuits and lawyers, rather than on law per se.
8. See, e.g., Simon A. Cole & Rachel Dioso-Villa, Investigating the 'CSI Effect' Effect: Media and Litigation Crisis in Criminal Law, 61 STAN. L. REV. 1335, 1341-42 (2009) (asserting that "hyperlexis" is another word for the "litigation explosion");
9. Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 6 (1983) (examining "one component of the hyperlexis syndrome-the alleged high rates of disputing and litigation-in the context of current research");
10. Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion", "Liability Crisis", and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?, 78 N. Y. U. L. REV. 982, 985 (2003) (similar).
11. See RICHARD A. POSNER, A FAILURE OF CAPITALISM: THE CRISIS OF '08 AND THE DESCENT INTO DEPRESSION, at xii (2009) (arguing that "[t]he movement to deregulate the financial industry went too far", the economic crisis "is a market failure" and that "a more active and intelligent government" is needed to prevent future problems). The repeal of the Glass-Steagall Act of 1933 has often been blamed for the crisis.
12. See, e.g., Barbara Crutchfield George et al., The Opaque and Under-Regulated Hedge Fund Industry: Victim or Culprit in the Subprime Mortgage Crisis?, 5 N. Y. U. J. L. & BUS. 359, 385 (2009) ("[T]he present financial crisis begins with the repeal of the Glass-Steagall Act....").
13. Economic Stabilization Act of 2008, Pub. L. No. 110-343, §§ 101-136, 122 Stat. 3765, 3767-3800
14. (codified as amended at 12 U. S. C. §§ 5211-5241 (Supp. IV 2010)).
15. See Press Release, U. S. Dep't of the Treasury, Treasury Announces TARP Capital Purchase Program Description (Oct. 14, 2008), http://www.treasury.gov/ press-center/pressreleases/Pages/hpl207.aspx (announcing that the Treasury would buy up to $250 billion in preferred shares from qualifying banks).
16. FAQs: MBS Purchase Program, FED. RESERVE BANK OF N. Y., http://www.newyorkfed.org/markets/mbs-faq.html (last visited Feb. 23, 2012).
17. Programs, U. S. DEP'T OF THE TREASURY, http://www.treasury.gov/ initiatives/financial-stability/programs/Pages/default.aspx (last visited Feb. 23, 2012) (describing the Bush and Obama Administrations' automobile manufacturer bailout).
18. Press Release, Fed. Hous. Fin. Agency, Statement of FHFA Director James B. Lockhart 5-6 (Sept. 7, 2008), http://www.fhfa.gov/webfiles/23/FHFAStatement 9708final.pdf (announcing conservatorship of Fannie Mae and Freddie Mac).
19. Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified in scattered titles of U. S. C.)
20. amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (codified in scattered titles of U. S. C.).
21. Pub. L. 111-203, 124 Stat. 1376 (2010) (to be codified in scattered titles of U. S. C.).
22. See CURTIS W. COPELAND, CONG. RESEARCH SERV., R41180, REGULATIONS PURSUANT TO THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA), at Summary (2010), available at http://geoffdavis.house.gov/UploadedFiles/Regulations- Pursuant-to-the-Patient-Protection.pdf (noting that the report identifies "more than 40 provisions in PPACA... that require, permit, or contemplate rulemaking by federal agencies to implement the legislation");
23. CURTIS W. COPELAND, CONG. RESEARCH SERV., R41380, THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT: REGULATIONS TO BE ISSUED BY THE CONSUMER FINANCIAL PROTECTION BUREAU 3 (2010) [hereinafter COPELAND, DODD-FRANK], available at http://www.fas.org/sgp/crs/misc/R41380.pdf (noting that one source says that Dodd-Frank requires "a total of 243 'rulemakings'" while another "placed the number of rules expected to be issued pursuant to the act even higher").
24. See David Brooks, Op-Ed., The Tea Party Teens, N. Y. TIMES, Jan. 5, 2010, at A21 (noting that the Tea Party, which opposed "bloated government", was "more popular than either major party" and that it might "become a major force in American politics");
25. E. J. Schultz, 'Tea Party Patriots' Stage Rally: Sacramento Protest Targets Government, FRESNO BEE, Aug. 29, 2009, at A5 (noting that a Tea Party rally in Sacramento drew thousands "to protest government over-regulation").
26. Kate Zernike, In Power Push, Movement Sees Base in G. O. P., N. Y. TIMES, Jan. 15, 2010, at A1 ("The Tea Party movement ignited a year ago, fueled by anti-establishment anger.").
27. Frank Newport, Americans More Likely to Say Government Doing Too Much, GALLUP (Sept. 21, 2009), http://www.gallup. com/poll/123101/americans-likely- saygovernment-doing-too-much.aspx ("Gallup data show that 57% of Americans say the government is trying to do too many things that should be left to businesses and individuals, and 45% say there is too much government regulation of business. Both reflect the highest such readings in more than a decade.").
28. For a more qualitative assessment of the impact on regulation on popular sentiment, see, for example, Susan E. Dudley, Administrative Law & Regulation: Prospects for Regulatory Reform in 2011, ENGAGE, June 2011, at 7, 7 ("Over the course of our history, concerns about the cumulative impact of regulations have occasionally reached a level of public discourse that led to meaningful efforts at regulatory reform (and even outright deregulation). There is evidence that we may be witnessing such a period today.").
29. James Gattuso et al., Red Tape Rising: Obama's Torrent of New Regulation, HERITAGE FOUND. 5 (Oct. 26, 2010), http://thf-media.s3.amazonaws.com/2010/ pdfbg2482.pdf.
30. See Exec. Order No. 13, 579, Regulation and Independent Regulatory Agencies, 76 Fed. Reg. 41, 587 (July 11, 2011);
31. Exec. Order No. 13, 563, Improving Regulation and Regulatory Review, 76 Fed. Reg. 3821 (Jan. 18, 2011).
32. Citizens United v. FEC, 130 S. Ct. 876, 889 (2010).
33. See, e.g., SIR THOMAS MORE, UTOPIA 100 (Gilbert Burnet trans., London, R. Reilly 1737) (1516) ("They have but few Laws, and such is their Constitution, that they need not many.... [T]hey think it an unreasonable Thing to oblige Men to obey a Body of Laws, that are both of such a Bulk, and so dark, that they cannot be read or understood by every one of the Subjects. They have no Lawyers among them, for they consider them as a Sort of People, whose Profession it is to disguise Matters, as well as to wrest Laws....");
34. JONATHAN SWIFT, GULLIVER'S TRAVELS 125 (Claude Rawson ed., Oxford Univ. Press 2005) (1726) ("No Law of that Country must exceed in Words the Number of Letters in their Alphabet; which consists only of two and twenty. But indeed, few of them extend even to that Length. They are expressed in the most plain and simple Terms, wherein those People are not Mercurial enough to discover above one Interpretation. And, to write a Comment upon any Law, is a capital Crime.").
35. See Steven V. Roberts, Democrats Press the 'Safety' Issue, N. Y. TIMES, June 3, 1986, at B6 (discussing how Democrats were reframing their pro-regulation campaign as a matter of "safety" instead of "fairness").
36. Though "[t]he sentiment, 'there's too much law', surely rings true to both practitioners and regulated parties,... there is remarkably little scholarship delving into this glib cliché" J. B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L. J. 757, 762 & n. 13 (2003). Existing literature touches tangentially on the hyperlexis critique in the federal regulatory context.
37. See, e.g., William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1, 37 (2003) (assessing "the overregulation hypothesis");
38. Richard W. Parker, Grading the Government, 70 U. CHI. L. REV. 1345, 1347 (2003) (noting that the "modern critique" of agencies is that "agencies-driven by ideology, bureaucratic ambition, or 'public interest' pressures-are regulating too strictly and too much").
39. But existing scholarship has not taken up Professor Manning's implicit challenge to break down systematically the "too much law" critique, see Bayless Manning, Hyperlexis and the Law of Conservation of Ambiguity: Thoughts on Section 385, 36 TAX LAW. 9, 12-13 (1982) (listing seven possible meanings of "over-regulation"), nor does it examine how the critique is being voiced by and influencing federal institutions.
40. On the implications of law's increasing pervasiveness, see PETER H. SCHUCK, THE LIMITS OF LAW: ESSAYS ON DEMOCRATIC GOVERNANCE 419 (2000).
41. In describing this elevation of congressional concern, this Article makes the parsimonious assumption that Congress is structured in such a way that its activities are driven to some extent by information received by its members regarding the effect of their choices on relevant outcomes, and that its activities thus represent the results of a collective choice that is modestly driven by this calculus. To employ the convenient shorthand, Congress acts upon "its" priorities through its activities. See Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L. J. 2, 13 n. 25 (2008) ("Characterizing the legislature, or the enacting coalition, as a unitary actor that 'knows' the effect of policies on outcomes and chooses the policy that would advance 'its' interest is a shorthand way of describing this more complex collective choice process.").
42. 5 U. S. C. §§ 500-706 (2006).
43. Congress has only exercised this veto once. Jonathan H. Adler, Would the REINS Act Rein in Federal Regulation?, REGULATION, Summer 2011, at 25.
44. 2 U. S. C. §§ 658-658g, 1501-1571 (2006). The Unfunded Mandates Reform Act requires an assessment of costs and benefits and an accounting, as well as other requirements, upon rules that require spending by state, local, and tribal governments or by the private sector when those required expenditures exceed $100 million in any one year.
45. 5 U. S. C. §§ 601-612. The Regulatory Flexibility Act (RFA) is designed principally to protect small businesses from excessive regulation by requiring agencies to consider the effects of their regulations on small businesses and explore alternatives to minimize the economic impact upon such businesses.
46. See, e.g., Unfunded Mandates, Regulatory Burdens, and the Role of the Office of Information and Regulatory Affairs: Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Relations & Procurement Reform of the H. Comm. on Oversight & Gov't Reform, 112th Cong. (May 25, 2011);
47. Unfunded Mandates and Regulatory Overreach: Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Relations & Procurement Reform of the H. Comm. on Oversight & Gov't Reform, 112th Cong. (Mar. 30, 2011);
48. Unfunded Mandates and Regulatory Overreach: Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Relations & Procurement Reform of the H. Comm. on Oversight & Gov't Reform, 112th Cong. (Feb. 15, 2011);
49. APA at 65: Is Reform Needed to Create Jobs, Promote Economic Growth, and Reduce Costs?: Hearing Before the Subcomm. on Courts, Commercial, & Admin. Law of the H. Comm. on the Judiciary, 112th Cong. (2011) [hereinafter APA at 65];
50. Federal Regulation: A Review of Legislative Proposals, Part I, SENATE COMM. ON HOMELAND SEC. & GOVERNMENTAL AFFAIRS (June 23, 2011), http://www.hsgac.senate.gov/hearings/federal-regulation-a-review-of- legislativeproposals-part-i;
51. Federal Regulation: A Review of Legislative Proposals, Part II, SENATE COMM. ON HOMELAND SEC. & GOVERNMENTAL AFFAIRS (July 20, 2011), http://www.hsgac.senate.gov/hearings/federal-regulation-a-review-of-legislative- proposalspart-ii.
52. H. R. 10, 112th Cong. (2011).
53. See Final Results for Roll Call 901, HOUSE OF REP. (Dec. 7, 2011, 5:30 PM), http://clerk.house.gov/evs/2011/roll901.xml.
54. H. R. Res. 72, 112th Cong. (2011).
55. Bill Summary & Status, 112th Congress (2011-2012), H. Res. 72, LIBRARY OF CONGRESS, http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HE00072
56. H. R. Res. 72.
57. See Mark R. Warner, Op-Ed., Red-Tape Relief for a Sluggish Recovery, WASH. POST, Dec. 13, 2010, at A19.
58. See Federal Regulation: A Review of Legislative Proposals, Part I: Hearing Before the S. Comm. on Homeland Sec. & Gov't Affairs (June 23, 2011) (testimony of Sen. Mark Warner) [hereinafter Testimony of Mark Warner], available at http://www.hsgac.senate.gov/download/2011-06-23-warner-testimony.
59. See, e.g., H. R. 527, 112th Cong. (2011);
60. H. R. 3010, 112th Cong. (2011);
61. SEC Regulatory Accountability Act, H. R. 2308, 112th Cong. (2011) (bill requiring SEC to conduct a cost-benefit analysis prior to issuing new regulations).
62. See, e.g., Bipartisan Tax Fairness and Simplification Act of 2011, S. 727, 112th Cong. (2011).
63. See MICHAEL J. GRAETZ, THE DECLINE (AND FALL?) OF THE INCOME TAX 134 (1997) (explaining why the 1986 tax reform act, instead of simplifying the tax code, actually introduced "staggering new complexities").
64. David A. Fahrenthold, 'Inspiring' Votes No Longer Fly in the House, WASH. POST, July 4, 2011, at A1 ("Something is off in the House of Representatives: It's already July 4, and the House still has not yet registered its opinions on bald eagles, motherhood or the American flag.");
65. 112th Congress Legislative Protocols, COMM. ON RULES (Feb. 23, 2011), http://www.rules.house.gov/about/PolicyDetail.aspx?NewsID=186.
66. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N. Y. U. L. REV. 461, 487-88 (2003) (summarizing the history of presidential efforts to reform regulation).
67. See Exec. Order No. 13, 563, Improving Regulation and Regulatory Review, 76 Fed. Reg. 3821 (Jan. 18, 2011).
68. See Regulatory Flexibility, Small Business, and Job Creation, 76 Fed. Reg. 3827, 3827 (Jan. 18, 2011). Under the RFA, agencies may consider such flexibilities as extended compliance dates, simplified reporting and compliance requirements, and partial or total exemptions for small businesses.
69. See 5 U. S. C. § 603 (2006). The Memorandum requires agencies to justify any failure to offer such flexibilities in proposed or final rules.
70. See Regulatory Flexibility, Small Business, and Job Creation, 76 Fed. Reg. at 3828.
71. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2290 (2001).
72. See Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments, 2011 DAILY COMP. PRES. DOC. 123 (Feb. 28, 2011).
73. See Exec. Order No. 13, 579, Regulation and Independent Regulatory Agencies, 76 Fed. Reg. 41, 587 (July 11, 2011).
74. Charles S. Clark, Obama Widens Regulatory Review to Independent Agencies, GOV'T EXEC. (July 11, 2011), http://www.govexec.com/dailyfed/0711/071111cc2. htm? oref=rellink (noting that Cass Sunstein, the administrator of OIRA, remarked that the order was "historic" because "there is no other such free-standing requirement for independent agencies"). Because the agencies are independent, the order is precatory, not mandatory; but it is, nonetheless, couched in strong terms.
75. See Mike Lillis, White House Expands Its Efforts to Reduce Red Tape, THE HILL, July 12, 2011, at 4.
76. See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 408-09 (1989).
77. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U. S. 519, 558 (1978).
78. See Cheek v. United States, 498 U. S. 192, 199-200 (1991) ("The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses.... This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.").
79. 547 U. S. 715, 719 (2006) (plurality opinion).1
80. The influence of concern about hyperlexis is similarly apparent in dicta in United States v. Sun-Diamond Growers of California, 526 U. S. 398, 412 (1999) ("[T]his regulation, and the numerous other regulations and statutes littering this field, demonstrate that this is an area where precisely targeted prohibitions are commonplace, and where more general prohibitions have been qualified by numerous exceptions. Given that reality, a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.").
81. 130 S. Ct. 3138 (2010).
82. Richard H. Pildes, Free Enterprise Fund, Boundary-Enforcing Decisions, and the Unitary Executive Branch Theory of Government Administration, 6 DUKE J. CONST. L. & PUB. POL'Y (SPECIAL ISSUE) 1, 1 (2010).
83. 130 S. Ct. 876 (2010).
84. (quoting Connally v. Gen. Constr. Co., 269 U. S. 385, 391 (1926)).
85. See, e.g., Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir. 2010) (Colorado's registration and reporting requirements are unconstitutional because "[t]he average citizen cannot be expected to master on his or her own the many campaign financial-disclosure requirements set forth in Colorado's constitution, the Campaign Act, and the Secretary of State's Rules Concerning Campaign and Political Finance. Even if those rules that apply to issue committees may be few, one would have to sift through them all to determine which apply.").
86. See, e.g., Thomas E. Baker, Tyrannous Lex, 82 IOWA L. REV. 689, 709 (1997) ("It seems that there is not an aspect of our everyday life, from cradle to grave, that is not ruledover by what George Wallace used to call 'pointy-headed, briefcase-totin'-burro-crats in Washin'ten Dee Cee.'").
87. Bond v. United States, 131 S. Ct. 2355, 2364-66 (2011);
88. Florida ex rel. Bondi v. U. S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N. D. Fla.) (holding that if Congress could use the Commerce Clause to require everyone to buy health insurance, then "Congress could require that people buy and consume broccoli at regular intervals")
89. aff'd in part and rev'd in part, 648 F.3d 1235 (11th Cir.)
90. cert, granted, 132 S. Ct. 604 (2011).
91. See, e.g., Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Ensnared, WALL ST. J., July 23-24, 2011, at A1 ("As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law."). This Article only briefly touches upon the concept of "over-criminalization. "
92. For a recent effort to formulate standards by which to measure whether there is too much criminal law, see DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW (2008).
93. See, e.g., Christopher M. Pietruszkiewicz, Discarded Deference: Judicial Independence in Informal Agency Guidance, 74 TENN. L. REV. 1, 42 (2006) ("The Internal Revenue Code itself is approximately 1.5 million words long, and in excess of 9, 500 pages of text, not counting five volumes of regulations.").
94. (statement of Susan Dudley, Director, George Washington University Regulatory Studies Center) (showing growth in the number of pages in the Federal Register between 1940 and 2010);
95. CLYDE WAYNE CREWS JR., COMPETITIVE ENTER. INST., TEN THOUSAND COMMANDMENTS: AN ANNUAL SNAPSHOT OF THE FEDERAL REGULATORY STATE 13-17, 37-38(2011), available at http://cei.org/sites/default/filesAVayne%20Crews%20- %2010, 000%20Commandments%20 2011.pdf (discussing growth in pages of the Federal Register).
96. See, e.g., Robert C. Ellickson, Taming Leviathan: Will the Centralizing Tide of the Twentieth Century Continue into the Twenty-First?, 74 S. CAL. L. REV. 101, 105 (2000) ("In 1928, the unannotated version of the United States Code appeared in two tall volumes that totaled six inches in width. The 1988 version of the unannotated Code included twenty-nine volumes that spanned six feet, a twelve-fold increase.").
97. See, e.g., Sean Gorman, Rep. Forbes Says Federal Register Containing Regulations Has 34, 000 Pages, Weighs 340 Pounds, POLITIFACT (July 1, 2011, 11:27 AM), http://www.politifact.com/virginia/statements/2011/jul/01/randy- forbes/rep-forbes-saysfederal-registration-containing-re/ (responding to a congressman's estimate that the Federal Register weighs 340 pounds by noting that the regulations are printed on both sides of each page and not just one, as Representative Forbes apparently assumed).
98. Politicians from both major parties campaign in parallel against the complexity of the tax code. See Remarks on the Federal Budget and Job Growth Legislation, 2011 DAILY COMP. PRES. DOC. 650 (Sept. 19, 2011) (announcing that, because of the "decades of accumulated loopholes, special interest carve-outs, and other tax expenditures.... [President Obama is] eager[] to work with Democrats and Republicans to reform the Tax Code to make it simpler");
99. Ron Scherer, Herman Cain's '999 Plan': Long Overdue Tax Reform or Job Killer?, CHRISTIAN SCI. MONITOR (Sept. 30, 2011), http://www.csmonitor.com/USA/ Elections/President/2011/0930/Herman-Cain-s-999-planlong-overdue-tax-reform-or- job-killer. Even a division of the IRS bemoans the tax code's complexity.
100. See NATIONAL TAXPAYER ADVOCATE, TAXPAYER ADVOCATE SERV., 2010 ANNUAL REPORT TO CONGRESS 4-6(2011), available at http://www.irs.gov/pub/irs-utl/ execsummary-2010arc.pdf (highlighting the enormous compliance costs and size of the tax code).
101. The last Congress-the 111th-passed 383 public laws. Browse Public Laws, LIBRARY OF CONG., http://thomas.loc.gov/home/LegislativeData.php?n=PublicLaws;c= 111 (last visited Feb. 23, 2012).
102. The preceding Congress passed 460. 122 Stat, iv (2009).
103. The 109th Congress passed 482. 120 Stat, iii (2007).
104. The 108th Congress passed 498. 118 Stat, iv (2005).
105. The 107th Congress passed 377. 116 Stat, iv (2003).
106. The 106th Congress passed 580. 114 Stat, iv (2001).
107. The 105th Congress passed 394. 112 Stat iv (1999).
108. And the 104th passed 333. 110 Stat, iv (1997).
109. with CLYDE WAYNE CREWS JR., COMPETITIVE ENTER. INST., TEN THOUSAND COMMANDMENTS: A POLICYMAKER'S SNAPSHOT OF THE FEDERAL REGULATORY STATE (1996), available at http://cei. Org/cei-files/fm/active/0/10KC-1996.pdf.
110. Mark Drajem & Catherine Dodge, Obama Wrote 5% Fewer Rules than Bush While Costing Business, BLOOMBERG (Oct. 25, 2011, 4:20 PM), http://www. bloomberg.com/news/2011-10-25/obama-wrote-5-fewer-rules-than-bush-while-costing- business.html.
111. Consider City of Boerne v. Flores, 521 U. S. 507(1997), the subsequent legislation enacted by a nearly unanimous Congress in response to Boerne (the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)
112. 42 U. S. C. § 2000cc (2006)), and the regulations and litigation spurred by RLUIPA.
113. See Ralph Wilde, Legal "Black Hole"? Extraterritorial State Action and International Treaty Law on Civil and Political Rights, 26 MICH. J. INT'L L. 739, 772-73 (2005) (collecting sources claiming that detention and interrogation of the terrorist suspects in Guantanamo Bay occurred in a lawless zone or legal black hole).
114. A cursory search indicates that few seem to want a wholesale return to the common law. Those who do are often far out of the mainstream, advocating religious law or anarchism. E.g., David Van Drunen, Common Law and the Free Society, RELIGION & LIBERTY (Acton Inst., Mich.), July-Aug. 1999, at 8, available at http://www.acton.org/sites/v4.acton.org/files/pdf/rl-v09n4.pdf. However, many mainstream commentators favor the common law over statutory law in certain respects. Richard Posner prefers the common law for its economic efficiency.
115. See Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487, 502-07 (1980) (defending common law as efficiency-seeking). J. B. Ruhl has argued in favor of "a system that relies on common law, rights-based solutions as a predominant, if not preferred, approach", in part, because of its flexibility.
116. J. B. Ruhl, Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State, 45 DUKE L. J. 849, 860-61, 920 (1996). Richard Epstein has argued that "[t]he growth of statutory law has lead us away from questions of first principle, and from questions of political morality." (Pubitemid 126413896)
117. Richard A. Epstein, Introduction: Baron Bramwell at the End of the Twentieth Century, 38 AM. J. LEGAL HIST. 241, 245 (1994). Commentators have also argued for a return to common law principles in targeted areas.
118. See, e.g., Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L. J. 1357 (1983) (arguing for a return to common law in the field of employment law);
119. Larry E. Ribstein, Private Ordering and the Securities Laws: The Case of General Partnerships, 42 CASE W. RES. L. REV. 1 (1992) (arguing that securities law policy supports allowing parties to contract out of the rights and requirements created by positive securities law).
120. See Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L. J. 1, 6 (1992) (noting that he could not "prove increased regulatory burdens by counting pages in the Federal Register (although many have purported to do so) ").
121. See, e.g., John S. Baker, Jr., Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 AM. U. L. REV. 545, 548 (2005) (collecting data).
122. See An Act for the Punishment of Certain Crimes Against the United States, ch. 9, 1 Stat. 112 (1790);
123. See Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 590 n. 13 (2005);
124. see also Stuart P. Green, Why It's a Crime to Tear the Tag off a Mattress: Over criminalization and the Moral Content of Regulatory Offenses, 46 EMORY L. J. 1533, 1610 & n. 264 (1997).
125. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 508 (2001).
126. Tom Stacy & Kim Dayton, The Underfederalization of Crime, 6 CORNELL J. L. & PUB. POL'Y 247, 252 (1997).
127. See MARK MOTIVANS, BUREAU OF JUSTICE STATISTICS, FEDERAL JUSTICE STATISTICS, 2005, at 6(2008), available at http://bjs.ojp. usdoj.gov/content/ pub/pdtffjs05.pdf ("Felony convictions in federal court increased from 4% of the nation's felony convictions in 1996 to 6% in 2004.").
128. See, e.g., Lambert v. California, 355 U. S. 225, 230 (1957) (noting that a due process violation would exist if a criminal law were "written in print too fine to read or in a language foreign to the community").
129. RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD 29 (1995).
130. The ancient rules-versus-standards debate proceeds. For an example of recent pro-standards scholarship, see Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 HARV. L. REV. 1214, 1223-25(2010), which argues that standards necessitate moral deliberation and thereby promote democracy.
131. Louis Kaplow, A Model of the Optimal Complexity of Legal Rules, 11 J. L. ECON. & ORG. 150, 161 (1995) (describing the elimination of complexity as "misguided" because of uselessness of "the simplest rules"). The main objection to complexity is the difficulty in compliance.
132. See Adam J. Hirsch & Gregory Mitchell, Law and Proximity, 2008 U. ILL. L. REV. 557, 589 ("[P]sychology brings to light a previously unrecognized virtue of legal complexity-to wit, its potential to calm citizens' reactions in their engagement with rules, to the extent complexity is manifested as gradations of legal consequences.").
133. R. George Wright, The Illusion of Simplicity: An Explanation of Why the Law Can't Just Be Less Complex, 27 FLA. ST. U. L. REV. 715, 718 (2000) ("[C]omplexity in the law cannot simply be reduced in any reasonably uncontroversial way. Simplifying the law in general, or even some particular area of the law, takes on the profitlessness of the proverbial wild goose chase.").
134. Citizens United v. FEC, 130 S. Ct. 876, 889 (2010).
135. For an example of a short legal rule unreadable to a layperson, see Skilling v. United States, 130 S. Ct. 2896, 2927 (2010) (parsing "the intangible right of honest services").
136. See U. S. CITIZENSHIP & IMMIGR. SERVICES (Feb. 12, 2012), http://www.uscis.gov/portal/site/uscis (collecting handbooks, guidance, manuals, "how to" guides, and other resources).
137. Citizens United, 130 S. Ct. at 916 (striking corporate independent expenditures provisions but preserving disclosure and disclaimer requirements).
138. For discussion of how states have reacted to Citizens United, see Alex Grout & Shanna Reulbach, CU+The States, WM. & MARY ELECTION LAW SOC'Y, http://electls.blogs.wm.edu/links/citizens-united-and-the-states/ (last updated Nov. 2, 2011).
139. Stephen G. Wood et al., Regulation, Deregulation and Re-regulation: An American Perspective, 1987 BYU L. REV. 381, 383 (describing "[a] world of partial deregulation"
140. (quoting Thomas J. Campbell, Regulation, Deregulation, and Re-regulation: Theory and Practice, 20 STAN. LAW. 25, 25 (1985))).
141. See generally Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915 (2005).
142. Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 776 (2005);
143. John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 TEMP. L. REV. 673, 712 (1999);
144. Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L. J. 1135, 1136 (1995).
145. See Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 182 (2010) ("[I]f the severity of punishment for the same crime differs between two states, then rational criminals have an incentive to commit their crimes in the state with milder punishment. Perceiving this fact, states might enact severe punishments to deflect crime away from themselves and onto others. This interstate externality could cause the states to race towards severity, even though all states would benefit from lowering average punishments and reducing the burden on their prisons. Could Congress rely on this rationale to federalize all of criminal law?").
146. See, e.g., United States v. Comstock, 130 S. Ct. 1949, 1982 (2010) (Thomas, J., dissenting). In that case, twenty-nine states appeared as amici to argue that the federal government's civil commitment scheme for sexual offenders was constitutional because, among other reasons, "the cost of detaining such persons is 'expensive'-approximately $64, 000 per year-and these States would rather the Federal Government bear this expense."
147. (quoting Brief for the States of Kansas et al, as Amici Curiae in Support of Petitioner at 2, Comstock, 130 S. Ct. 1949 (No. 08-1224)).
148. Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1035, 1036-37 (2006) ("The question, 'Why do legislators delegate?' and the closely related question, 'Why do legislators draft ambiguous statutes?' are the subject of a rich literature. Suggested explanations include the need to leave technical questions to experts, politicians' desire to duck blame for unpopular choices or to create new opportunities for constituency service, the inability of multimember legislatures to reach stable consensus, and the impossibility (or excessive cost) of anticipating and resolving all relevant implementation issues in advance.").
149. See, e.g., Indus. Union Dep't, AFL-CIO v. Am. Petrol. Inst., 448 U. S. 607, 686-87 (1980) (Rehnquist, J., concurring);
150. DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993);
151. Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 AM. U. L. REV. 295, 295-96 (1987).
152. See Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474 (2001) ("In the history of the Court we have found the requisite 'intelligible principle' lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring 'fair competition. '").
153. See Richard J. Pierce, Jr., Political Accountability and Delegated Power: A Response to Professor Lowi, 36 AM. U. L. REV. 391, 404 (1987) ("Given the nature and level of government intervention that Congress now authorizes, it could not possibly make the hundreds, or perhaps thousands, of important policy decisions that agencies make annually.");
154. See, e.g., David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1259 (1985) (distinguishing acceptable from unacceptable delegations).
155. MARK KELMAN, STRATEGY OR PRINCIPLE? THE CHOICE BETWEEN REGULATION AND TAXATION 44 (1999) ("[R]egulation and taxation are substitutes one for the other" and thus states may achieve policy goals "either through the public-spending programs that tax revenues finance or through regulatory mandates requiring that actors take certain steps and forbear from others").
156. See Clinton v. City of New York, 524 U. S. 417, 467 (1998) (Scalia, J., concurring in part and dissenting in part);
157. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 TUL. L. REV. 265, 320 (2001) (noting that the Constitution's history, purpose, and structure indicate that non-delegation doctrine does not apply to appropriations laws);
158. Douglas A. Kysar, Discounting... on Stilts, 74 U. CHI. L. REV. 119, 135 (2007) (explaining that opportunity costs should be incorporated into cost-benefit analysis, although not without "first asking important normative questions about intergenerational justice").
159. See, e.g., EBAN GOODSTEIN, THE TRADE-OFF MYTH: FACT AND FICTION ABOUT JOBS AND THE ENVIRONMENT 19-20 (1999) (noting that "environmental regulation does not place any restrictions on job growth" and that such regulation may actually help in a downturn);
160. Bruce Bartlett, Misrepresentations, Regulations and Jobs, N. Y. TIMES ECONOMK BLOG (Oct. 4, 2011, 6:00 AM), http://economix.blogs.nytimes.com/2011/10/ 04/regulation-andunemployment/ (noting and disputing the popular argument that "Barack Obama has unleashed a tidal wave of new regulations, which has created uncertainty among businesses and prevents them from investing and hiring");
161. Jan Eberly, Is Regulatory Uncertainty a Major Impediment to Job Growth?, DEP'T OF TREASURY (Oct. 24, 2011), http://www.treasury.gov/connect/blog/Pages/ Is-Regulatory-Uncertainty-a-Major-Impediment-to-Job-Growth.aspx (using financial and survey data to argue that regulatory uncertainty is not causing unemployment);
162. see also Robb Mandelbaum, Do Small Business Owners Feel Overtaxed and Overregulated? A Survey Says No, N. Y. TIMES YOU'RE THE BOSS BLOG (Nov. 21, 2011, 11:00 AM), http://boss.blogs.nytimes.com/2011/ll/21/smallbusinesses-over- taxed-and-over-regulated-a-survey-says-no/ (noting that small businesses cited regulations and taxes as less important than the lack of paying customers and unspecified complaints about the economy).
163. Marc Galanter, The Turn Against Law: The Recoil Against Expanding Accountability, 81 TEX. L. REV. 285, 298 (2003). Professor Galanter is addressing arguments about the harms to competition of the proliferation of lawsuits, not regulatory costs, but his insight applies in this context.
164. see also J. Scott Moody et al., The Rising Cost of Complying with the Federal Income Tax, SPECIAL REP. (Tax Found., D. C.), Dec. 2005, at 1, available at http://www.taxfoundation.org/files/srl38.pdf ("In the last century the cost of tax compliance has grown tremendously.").
165. See, e.g., Press Release, Business Roundtable, America's CEOs Lay Out Roadmap for Comprehensive Regulatory Reform (Sept. 20, 2011), http://businessroundtable.org/uploads/studies-reports/downloads/ BRT-Srnarter-Reg-One-Pager-09-20-11.pdf (arguing that a Business Roundtable report "finds that federal regulation costs too much" and therefore "[i]t's [t]ime to [e]nd [o]verly [prescriptive and [b]urdensome [f]ederal [r]egulation");
166. see also Bus. ROUNDTABLE, ACHIEVING SMARTER REGULATION 5(2011), available at http://businessroundtable.org/uploads/studiesreports/downloads/2011-09-BRT- Achieving-Smarter-Regulation.pdf ("[W]hile any individual regulation might be cost-effective, the cumulative impact of all regulations can be anything but.").
167. See Richard A. Posner, Some Uses and Abuses of Economics in Law, 46 U. CHI. L. REV. 281, 287 (1979) ("In measuring economic costs and benefits, the economist qua economist is not engaged in the separate task of telling policymakers how much weight to assign to economic factors.").
168. Cass R. Sunstein, Cost-Benefit Analysis and the Separation of Powers, 23 ARIZ. L. REV. 1267, 1273 (1981).
169. Cass R. Sunstein, Cost-Benefit Default Principles, 99 MICH. L. REV. 1651, 1661 (2001).
170. But see Paul Rosenzweig, Over criminalization: An Agenda for Change, 54 AM. U. L. REV. 809, 815 (2005) (arguing that "one should demand of Congress that it begin efforts to measure" the costs of overcriminalization).
171. PPACA § 9006
172. 26 U. S. C. § 6041 (Supp. IV 2010).
173. See Richard B. Malamud & Richard O. Parry, It's Time to Do Something About the Tax Gap, 9 HOUS. BUS. & TAX L. J. 1, 11-15 (2008) (describing GAO activism on the tax gap).
174. See U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-07-1014, TAX GAP: A STRATEGY FOR REDUCING THE GAP SHOULD INCLUDE OPTIONS FOR ADDRESSING SOLE PROPRIETOR NONCOMPLIANCE 48-49(2007), available at http://www.gao.gov/assets/270/265399.pdf (suggesting that Form 1099 could include sole proprietors' gross receipts and transactions less than $600).
175. See U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-238, TAX GAP: IRS COULD DO MORE TO PROMOTE COMPLIANCE BY THIRD PARTIES WITH MISCELLANEOUS INCOME REPORTING REQUIREMENTS 8(2009), available at http://www.gao.gov/new.items/d09238.pdf (noting that the Bush 2008 and 2009 budgets incorporated the 1099 rule);
176. Julian Pecquet, Obama Budget Retains Part of Health Reform's 1099 Tax Reporting Requirement, HILL HEALTHWATCH (Feb. 14, 2011, 6:03 PM), http://thehill.com/blogs/healthwatch/healthrcform-implementation/ 144003-obama-budget-retains-part-of-health-reforms-1099-taxreporting- requirement (noting that, even after momentum for repeal emerged, Obama still included some of the 1099 rule in his 2011 budget).
177. N. C. Aizenman, Health-Care Funding Provision Could Face Repeal, WASH. POST, Aug. 29, 2010, at A4 ("[The provision] was projected to raise $17.1 billion over 10 years toward the cost of the health-care law.... [I]n the spring of 2009, as Baucus and others were looking for ways to offset the cost of the health-care bill, the 1099 provision offered a ready answer.").
178. Cf. Friebel v. Paradise Shores of Bay Cnty., LLC, No. 5:10-cv-120, 2011 WL 500001 (N. D. Fla. Feb. 7, 2011) ("This is a run-of-the-mill buyers' remorse case, where the Plaintiffs are unsatisfied with the condition of their recently purchased condominium unit.").
179. E.g., Press Release, Congressman Mike Pence, Pence Supports Repeal of 1099 Section of Obamacare and Onerous Reporting Requirements (Mar. 3, 2011), http://mikepence.house.gov/index.php?option=com-content&task=view&id= 4517&Itemid=55 ("Repealing the onerous 1099 requirement from Obamacare is a victory for Hoosier families, small businesses and family farms, as it will cut bureaucratic red tape and foster job creation. ").
180. Address Before a Joint Session of the Congress on the State of the Union, 2011 DAILY COMP. PRES. DOC. 47 (Jan. 25, 2011).
181. Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011, Pub. L. No. 112-9, § 4, 125 Stat. 36, 36-37.
182. The repeal was ultimately made revenue neutral by "forcing greater repayment of health insurance subsidies for families whose income unexpectedly exceeds certain thresholds." Felicia Sonmez, Obama Signs Repeal of Health Care Law's '1099' Tax Reporting Rule, WASH. POST (Apr. 14, 2011), http://www.washingtonpost.com/blogs/2chambers/post/obama-signs-1099-repeal-into- law-marking-first-repeal-of-national-healthcare-law-provision/2011/04/14/AFRh YjeD-blog.html;
183. see also Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011 § 4, 125 Stat, at 36-37.
184. See CASS R. SUNSTEIN, THE COST-BENEFIT STATE: THE FUTURE OF REGULATORY PROTECTION, at ix (2002) (The "American government is becoming a cost-benefit state" and "government regulation is increasingly assessed by asking whether the benefits of regulation justify the costs of regulation").
185. See Laurence H. Tribe, Ways Not to Think About Plastic Trees: New Foundations for Environmental Law, 83 YALE L. J. 1315, 1320 (1974) (noting how consideration of nonmonetizable values implicates, albeit not uniquely so, the "universal difficulty of choosing among incommensurables").
186. On net, the OMB's numbers indicate that major federal regulations generate annual benefits in the aggregate between $132 billion and $655 billion, while the estimated annual costs are in the aggregate between $44 billion and $62 billion. OFFICE OF MGMT. & BUDGET, OFFICE OF INFO. & REGULATORY AFFAIRS, 2011 REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES 3, 14(2011), available at http://www.whitehouse.gov/sites/ default/files/omb/inforeg/2011-cb/2011-cba-report.pdf.
187. See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1266 (2006) (noting the concern that in OIRA review "regulatory benefits would be systematically undervalued");
188. But see Robert W. Hahn, The Economic Analysis of Regulation: A Response to the Critics, 71 U. CHI. L. REV. 1021, 1026-27, 1029-30 (2004) (disagreeing with Parker and arguing that the benefit of saving future lives should be discounted);
189. See, e.g., Rapanos v. United States, 547 U. S. 715, 721-22 (2006) (plurality opinion) (quoting the fact that '"over $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits, '" but not quoting any information about the corresponding benefits);
190. See Testimony of Mark Warner, supra note 47.
191. See Susan Collins, Op-Ed., The Economy Needs a Regulation Time Out, WALL ST. J., Sept. 26, 2011, at A15.
192. See Statement on the Ozone National Ambient Air Quality Standards, 2011 DAILY COMP. PRES. DOC. 607 (Sept. 2, 2011).
193. For the EPA's assessment of the benefits of the proposed rule, see EPA, REGULATORY IMPACT ANALYSIS, FINAL NATIONAL AMBIENT AIR QUALITY STANDARD FOR OZONE 7, 8 figs. S1.1 & S1.2(2011), available at http://www.epa.gov/glo/ pdfs/201107-OMBdraft-OzoneRIA.pdf.
194. Neil R. Eisner & Judith S. Kaleta, Federal Agency Reviews of Existing Regulations, 48 ADMIN. L. REV. 139, 148 (1996) ("Excessive time and scarce resources devoted to a formal review of all regulations could result in insufficient attention to other regulatory needs or statutory mandates. In some instances, a formal review of all regulations of one agency may result in the elimination of several obsolete rules, but may preclude consideration of a more important regulatory action. "). (Pubitemid 126408796)
195. (quoting JONATHAN RAUCH, GOVERNMENT'S END: WHY WASHINGTON STOPPED WORKING 180 (1999))).
196. Cass R. Sunstein, Administrator, Office of Info. & Regulatory Affairs, Prepared Testimony Before the House Energy and Commerce Committee Oversight and Investigations Subcommittee 2 (June 3, 2011), available at http://Republicans.EnergyCommerce.house.gov/Media/file/Hearings/Oversight/ 060311/Sunstein.pdf.
197. See Memorandum from Cass R. Sunstein, Administrator, Office of Info. & Regulatory Affairs, for the Heads of Independent Regulatory Agencies, M-11-28, at 4 (July 22, 2011), available at http://www.whitehouse.gov/sites/ default/files/omb/memoranda/2011/m11-28.pdf. In the meantime, of course, the ordinary process of rulemaking proceeds apace.
198. see also Laura Meckler, White House to Scale Back Regulations on Businesses, WALL ST. J., Aug. 23, 2011, at A2.
199. Darryl K. Brown, Criminal Law's Unfortunate Triumph over Administrative Law, 7 J. L. ECON. & POL'Y 657, 664-65 (2011) ("In significant part, I suggest, federal criminal law is so expansive because ideological support for the federal regulatory state is comparatively thin. ").
200. See Deborah L. Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 DUKE L. J. 447, 456 (2004) (noting "the perennially popular assertion that the United States is experiencing an escalating epidemic of litigation and has become 'the world's most litigious nation'").
201. The evidence is ambiguous. See Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for A Complex World, 72 CHI.-KENT L. REV. 987, 999 (1997) ("[V]oters through the 1980s relentlessly insisted that they wanted less government and more environmental protection. In the 1990s, we profess a strong commitment to achieving more affordable, broadly available health care, yet we simultaneously insist on our desire to retain a high degree of individual freedom of choice.").
202. Cynthia R. Farina, Faith, Hope, and Rationality or Public Choice and the Perils of Occam's Razor, 28 FLA. ST. U. L. REV. 109, 110 (2000).
203. See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE (1991).
204. See, e.g., Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L. J. 65, 99-100 (1983) (noting the indeterminate results for rule precision of the competing preferences of regulated entities, new entrants to markets, beneficiaries of regulation, and consumers).
205. David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 GEO. L. J. 97, 122 (2000) ("[I]nterest groups do not generally rush to Congress and plead, 'Regulate us!' The impetus for the Clean Air Act, the Occupational Safety and Health Act, and other such laws was not intensive industry lobbying. To the contrary, the special interest groups tend to resist social regulation and complain about its costly mandates once it is passed.").
206. See Daniel Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s, 139 U. PA. L. REV. 1, 67-68 (1990) (criticizing public choice writing "particularly from law schools" as "falsifying] not only human nature, but observable facts about the legislative process", "[f]lattening and minimizing the roles of politicians and unorganized voters, and overlooking empirical evidence that could be found through a simple library search").
207. See, e.g., Thomas J. Donohue, Regulations Devastate Economic Growth, U. S. CHAMBER OF COMMERCE (Oct. 14, 2010), http://www.uschamber.com/press/opeds/ regulations-devastate-economic-growth (arguing that regulations threaten "free enterprise").
208. See, e.g., Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 739 (2005).
209. See, e.g., Bond v. United States, 131 S. Ct. 2355, 2363-64 (2011).
210. Jeff Zeleny & Megan Thee-Brenan, New Poll Finds a Deep Distrust of Government, N. Y. TIMES, Oct. 26, 2011, at A1.
211. Congress' Job Approval Entrenched at Record Low of 13%, GALLUP (Nov. 14, 2011), http://www.gallup. com/poll/150728/congress-job-approval-entrenched- recordlow.aspx [hereinafter Congress' Job Approval].
212. Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1795 (2005).
213. 1 MAX WEBER, ECONOMY AND SOCIETY 37 (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., 1968).
214. See JEREMY WALDRON, LAW AND DISAGREEMENT 53 (1999) ("The political value most naturally associated with the modern legislature and with the authority of its product-legislation as positive law-is democratic legitimacy").
215. See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy, in DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 67, 72-73 (James Bohman & William Rehg eds., 1997).
216. See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1518 (1992) (describing the agency expertise model).
217. See PPACA § 1332
218. 42 U. S. C. § 18052 (Supp. IV 2010).
219. See Julian Pecquet, HHS Approves 200 More New Healthcare Reform Waivers, HILL HEALTHWATCH (May 13, 2011, 3:52 PM), http://thehill.com/blogs/healthwatch/ healthreform-implementation/161203-hhs-approves-200-more-new-healthcare-reform- waivers ("The Obama administration approved 204 new waivers to Democrats' healthcare reform law over the past month, bringing the total to 1, 372.").
220. See Richard A. Epstein, Government by Waiver, NAT'L AFF., Spring 2011, at 39, 52.
221. See Helene Cooper & Jennifer Steinhauer, Bucking Senate, Obama Appoints Consumer Chief, N. Y. TIMES, Jan. 5, 2012, at A1.
222. See, e.g., Alan M. Parker, Richard Cordray Recess Appointment Sparks More Bickering, U. S. NEWS & WORLD REP. (Jan. 4, 2012), http://www.usnews.com/ news/articles/2012/01/04/richard-cordray-recess-appointmentsparks-more- bickering (reporting a comment that recess appointment controversy adds '"one more arrow'" to the quiver of those who wish to challenge the legitimacy of the CFPB's regulations or actions).
223. See Gretchen Morgenson & Louise Story, A Financial Crisis with Little Guilt, N. Y. TIMES, Apr. 14, 2011, at A1 ("[S]everal years after the financial crisis, which was caused in large part by reckless lending and excessive risk taking by major financial institutions, no senior executives have been charged or imprisoned....").
224. See Preet Bharara, Corporations Cry Uncle and Their Employees Cry Foul: Rethinking Prosecutorial Pressure on Corporate Defendants, 44 AM. CRIM. L. REV. 53, 59-60 (2007) (citing Professor Stuntz's observation of the "institutional bias" in favor of broadening criminal liability and criticizing the "manifold" ways in which Congress has expanded corporate criminal liability). Over three years since the crisis began, his office has yet to indict one of these banks for criminal fraud stemming from the financial crisis.
225. See Mark Landler, Protests Offer Obama Opportunity to Gain, and Room for Pitfalls, N. Y. TIMES, Oct. 7, 2011, at A13 ("[T]he [Occupy Wall Street] protesters do not think the president has done nearly enough to crack down on abuses. Several pointed out the lack of prosecutions of investment bankers or others involved in the mortgage-finance industry.").
226. * 5 (S. D. N. Y. Nov. 28, 2011) (Rakoff, J.) ("But the S. E. C, of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if it fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency's contrivances.").
227. EDWARD FITZGERALD, THE RUBÁIYÁT OF OMAR KHAYYÁM: FIRST AND FIFTH EDITIONS 15 (Stanley Appelbaum ed., Dover Publ'ns, Inc. 1990).