January 20, 2018

Could the proliferation of laws by state legislatures lead to overcriminalization?

Utah CapitolAre we legislating too much? What might be the effect of passing a law each time we find a problem?

I was struck by a photo posted by Utah state legislator Dan McCay recently. It was a shot of the voting screen in the Utah House of Representatives during a vote on something called “Dumb Ideas.” According to the screen, McCay was the only one voting “Nay.”


lockhrdGood for him, I say, even if it was something of a staged joke.  It raises an interesting question, though, one echoed by Speaker Becky Lockhart in her opening comments to state legislators last week at the opening of the 2013 Legislative Session. She said

We far too often look for problems where none exist. Can someone here please tell me what definition of “health and public safety” hair braiding falls into? Do we really need to license more so-called professions so as to artificially limit commerce? The free market?

So to you, the members of the House of Representatives, I’m pleading with you to remember this one word for the next 45 days: restraint. Restraint, representatives.  Make sure to take a second and third look at that legislation you are proposing. Do we really need it? It’s been said that we each commit three federal felonies a day whether we know it or not because of the complexity of federal code. […] Creating so many regulations, complicating so many issues, that the average citizen can’t help but run afoul of the law? Restraint, representatives.


But we’ve already got almost 1,000 bills being prepared this session. History says we’ll pass somewhere around 400 of them.

Four hundred new laws, folks. That’s a lot. It’ll keep the lawyers in business, but I’m not sure that’s always a good thing.

Lest you think that this is just political grandstanding by Utah’s “Iron Lady,” some are beginning to note that the costs of codification have not been adequately weighed. Dru Stevenson of South Texas College of Law posits that it may actually raise the costs on citizens, not to mention result in overcriminalization of society.  In an  article called “Costs of Codification,” Stevenson argues, according to the abstract, that

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts and citizens, as statutes proliferate. This Article takes a first look at this problem. On the legislative side, codification makes it easier for special interest groups to obtain their desired legislation. It facilitates Coasean bargaining between legislators, and encourages legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification changes how judges interpret statutes, prompting them to focus more on the meaning of individual words than on the overall policy goals of enactment, and to rely more on external sources, such as legislative history. For both legislators and courts, codification functions as a Hartian rule of recognition, signaling legality for enacted rules. For the citizenry, the reduced legislative costs mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs. More disturbingly, codification also fosters overcriminalization. While it may not be appropriate to revert to the pre-codified regime now, reexamining the unintended effects of codification can inform present and future choices for our legal system.

In other words, legislators are busy producing more laws than the typical citizen can keep track of (Curtis Haring excepted). The results are laws produced by active and activist minorities that produce benefits for them, but costs for the rest of us.

As Rep. Derek Brown once told me, if you want to know who a law benefits, just follow the money. Much of the time, the benefit is to a small and select group, not the general public.

Jestina Clayton braids the hair of her daughter, Esther Clayton, 5, at her home Monday, April 25, 2011, in Centerville, Utah. Clayton and the the Institute for Justice have filed a federal lawsuit seeking changes to Utah's hair braiding regulations.

Jestina Clayton braids the hair of her daughter, Esther Clayton, 5, at her home Monday, April 25, 2011, in Centerville, Utah. Clayton and the the Institute for Justice have filed a federal lawsuit seeking changes to Utah’s hair braiding regulations.

For example, read more about what I call the “Hair Stylist Industrial Complex,” cited by Lockhart in her speech, for an example of regulation out of control. It takes more time to earn a license to do hair than it does to earn a commercial pilot’s license. Does that make sense? Only if you’re one of the companies that owns the expensive cosmetology schools in Utah.

Another example is the annual requirement for cars to receive safety and emissions inspections. The requirement is misguided in many ways. First, there aren’t enough law enforcement personnel assigned to monitor safety and emissions companies to protect against fraud and to do so would take away police officers needed to protect against the real dangers to society, like as reckless drivers or bank robbers.

Second, fraud is, at least anecdotally, rampant. You bring your car in for a routine safety and emissions inspection and 15 minutes later receive a call from the mechanic that your car also needs X, Y, and Z done to it, none of which have anything to do with safety or emissions and won’t prevent your car from passage. And when you opt not to have the work performed, lo and behold, the inspection fails.

Last, are the inspections really that effective? You be the judge of that…but take a look out the window at the smog clogging Salt Lake Valley before you make a decision.

Does the legislature need to be so actively working to pass laws? I don’t doubt that there are always going to be laws that need to be updated to deal with changes in technology, the economy, population growth, and our culture. But updating laws and creating new ones are not the same thing, and too much of the first puts burdens on society that will only require revision in later years.

To echo Lockhart, let’s have a little restraint, this year and every year.

[h/t The Volokh Conspiracy]


About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

  • Merrill

    More laws tend to oppress the poor and middle class. They cannot afford the attorney, time and fees associated with mistakes. The wealthy can afford it and do not suffer the same consequences. This leads to arbitrary and potentially capricious enforcement.

    • Daniel B.

      True that.

  • In general, the market self regulates more effectively than government. Overall, we have way too may laws. Look at the federal law violations when the country as founded compared to now (3 to over 3K). Insane.

    • Daniel B.

      Word to that. While I don’t know that every law created since the birth of the Republic is without merit, I am certain that there are a few we could do without.

  • Bob Brown

    An easy fix would be to change the rules so as to require all bills proposed by the legislators of the state to cite the applicable sections of the state constitution which grants them the authority to pass such a bill, and to include the citation within the text of the bill. le

    • Daniel B.

      An interesting idea, Bob, but not a panacea. There are many laws that are clearly constitutional but are still dumb ideas. Or just not necessary.

  • Keith Seegmiller

    I’d like to know if it’s even possible for our legislators to carefully consider 1,000 bills (or intelligently pass 450) in 45 days. Maybe we should reduce the session to 15 days. Does anyone keep track of how many proposed bills are in conflict with the Utah or U.S Constitution or are time and resource-wasting “message” bills? That would be an interesting stat and would reflect badly on some of our lawmakers.

  • I had Dru Stevenson for Administrative Law! He was a great professor.

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