The Rule of Law – Part 9

Judicial immunity from lawsuits for harms resulting from judge's bad decisions.

Continuing this essay series on the rule of law, this essay explores more of Benjamin Barton’s book The Lawyer-Judge Bias in the American Legal System, a fascinating discussion of a little-remarked upon but very important aspect of our legal system.

Barton writes:

Like prosecutors, judges have been held immune from suit for an impressive list of activities, including ordering the sterilization of a fifteen-year old girl in an ex parte proceeding, conspiring with a prosecutor to convict a defendant, altering a trial transcript and docket sheet, singling out and yelling at a juror who refused to vote for the death penalty in a case, and allegedly taking bribes. Clearly, for prosecutors and judges, immunity really is absolute. Judges have been quick to note that this is not for their own benefit, but for the benefit of the public. Consider the following statement on judicial immunity [from a decision of the Supreme Court]: “[Judicial] immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation.” There is not a hint in this quote or other cases that the judges recognize their conflict of interest. These cases (by judges and for judges) decide that a judge acting as a judge can never be sued no matter what she does, so virtually all judicial behavior is free from suit. Prosecutorial immunity receives the same treatment, for identical reasons [according to this Supreme Court decision]: “To be sure, [prosecutorial] immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice … As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Although it is certainly correct that allowing absolute immunity does make the jobs of prosecutors and judges easier, it is worth considering whether the balance between “unredressed wrongs” and the working of the judicial process needs to be struck in such a one-sided manner.

As a result, judges have wide latitude to make both wise and terribly unwise decisions. They don’t have to worry about being sued for handing down bad decisions that do actual harm to other people. Federal judges are unelected and serve for life, and state judges are often appointed, and when they do run for election they often run unopposed and have lengthy terms. Of course, judges should be able to render decisions within the bounds of reason without being concerned about lawsuits against themselves, otherwise judges wouldn’t want to make any decisions at all. Yet it’s jarring to realize the Supreme Court has held that absolute judicial immunity applies to protect judges “even when the judge is accused of acting maliciously and corruptly.” This is so even though, as Peter Huber has written, “[t]he legal system has no special competence to assess and compare public risks, and the legal process is not designed or equipped to conduct the broad-ranging, aggregative inquiries on which sensible public-risk choices are built.” Given that freedom, some judges may accede to lawyers’ arguments to extend legal liability law, even when such decisions would best be made by legislatures that can assess the larger social impact of such changes in the law. Judges may be sincere in their beliefs regarding the law, but sometimes the results of their decisions, while perhaps benefitting a plaintiff in the courtroom, hurts society as a whole.

Other Supreme Court cases on this point include Bradley v. Fisher, holding that “[j]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly”); and Stump v. Sparkman, holding that “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority ....” In Stump, a state judge for a court of general jurisdiction ordered the sterilization of a fifteen year old girl upon her mother's petition in an ex parte proceeding. The mother claimed in the petition that her daughter was “somewhat retarded” and that sterilization was in the daughter's best interests “to prevent unfortunate circumstances ...” The daughter, however, had been lied to, as she was falsely told that she must have an operation to have her appendix removed. Two years after the operation, the daughter discovered she had been sterilized and brought suit in federal court for a violation of her constitutional rights. The Seventh Circuit held that the state judge had acted outside his jurisdiction and, therefore, was not immune from suit. The Seventh Circuit also held that the judge had forfeited his immunity by failing to comply with elementary requirements of procedural due process. However, the Supreme Court reversed and held that the judge was absolutely immune. Thus, in Stump, although no state law authorized the state judge to grant such petitions for sterilizations, the Court found that the state judge's action was within the trial court's general jurisdiction because the state's statute and case authority did not circumscribe the broad jurisdiction of the state circuit courts and foreclose consideration of the sterilization petition. The Court also found that the judge's motive is irrelevant: “A judge will not be deprived of immunity because the action he took was error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.”

Barton also describes how difficult it is to sue a regular practicing lawyer for simple negligence:

[W]hat about a suit [against a lawyer] for simple negligence? Anyone who has been involved in a lawsuit knows a sloppy or overzealous lawyer can impose a great deal of cost and pain on an opposing party. That is where the “litigation privilege” comes in. Courts have uniformly held that a lawyer owes no duty whatsoever to anyone besides the client and the court [the following quote is from Clark v. Druckman, 624 S.E.2d 864, 869 (W.Va. 2005)]: “The attorney's paramount duty is to the trial court, as a licensed attorney and officer of the court, and to his client. No cause of action in negligence can lie because the overriding public policy guarding free access to the courts and the fact that the attorney's legal duty is to his own client demands a finding that the attorney owes no duty to an adverse party that would give rise to a claim in negligence, whether to investigate fully the client's claim prior to filing suit or to avoid filing a suit which he knew or should have known was frivolous.” This privilege essentially eliminates all third-party liability for a lawyer's actions in litigation. When there is no duty, there can be no liability. The litigation privilege also applies to any defamatory statements or questions by a lawyer before, during, or after a trial, as long as the statements are somewhat connected to the litigation. This privilege means that a lawyer can make a false and defamatory statement or ask a loaded question during a trial with no fear of civil reprisals. The privilege is defended as “the backbone to an effective and smoothly operating judicial system,” and “is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.” … The justifications are now familiar: the “overriding public policy guarding free access to the courts” and the sanctity of the lawyer–client relationship. The problems that third-party liability might cause in a professional–client relationship are not unique to lawyers, however. Certainly doctors, accountants, or architects would report that their primary responsibility is to serve their clients’ interests and that worrying about third-party liability is an impediment to the fullest possible confidence in that relationship. Nevertheless, in those relationships courts credit the need to protect third parties above the desire to have an all powerful professional–client relationship. Moreover, even though the functioning of the litigation process is important, it is worth wondering whether, given the choice, the public would balance it so heavily against punishing negligent or misbehaving lawyers. It is unclear whether the fulsome litigation privilege helps or hurts the litigation process. If lawyers were more concerned about treating opposing parties fairly, perhaps the entire process would be better run and more streamlined. Certainly, in other areas of the law, judges have expected the threat of liability to ameliorate harmful behavior. The litigation privilege is also an absolute privilege. Could the same goals be met by a conditional privilege, waived on a showing of malice, for instance? … Again, it is obvious why judges would feel that such a privilege was necessary: without it, collateral litigation from irritated litigants could become the norm. Nevertheless, note the stringency of an absolute bar to any suits based on what happens or is said in a lawsuit. Although tort liability has grown in almost every other area of American endeavor, judges have kept the operation of their own courts free from the distracting threat of possible liability. When other types of litigants argue that the threat of a lawsuit disrupts their place of business or their ability to do a job, courts are generally unsympathetic: the threat of a lawsuit is exactly what keeps these industries and professions safe for the rest of us. When this reasoning is used against lawyers or courts, however, there is an overriding public policy interest in avoiding lawsuits. Between these rules and the relative lack of judicial or disciplinary authority oversight, what is keeping us safe from incompetent or malicious lawyering?

Barton then discusses the ramifications of the “attorney-client privilege”:

One of the oldest and most ingrained examples of the lawyer–judge bias is the attorney–client privilege, which has a unique and vaunted position among all professional privileges. The primacy of the attorney–client privilege – compared with those accorded to physicians, spouses, or clergy – cannot be justified solely jurisprudentially. Instead, the difference is the result of inherent judicial sympathy for the attorney–client relationship. For a particularly blunt comparison between the attorney–client and physician–patient privileges, it is helpful to look where the rubber hits the road: the wisdom of trial attorneys. In Trial magazine, the privileges are compared as follows: “All states recognize the attorney-client privilege … On the other hand, the physician-patient privilege is weak.” The other privileges do not fare much better: “The psychotherapist-patient privilege (which includes counselors, psychologists, and therapists) is generally stronger than the physician-patient privilege. The parent-child and accountant-client privileges are very weak. The journalist privilege is also subject to extreme variation.” … The importance placed on the attorney–client relationship, and the relative disrespect paid to doctors and patients and other professional relationships, is striking. If candor between attorneys and clients is so critical that we should protect it in court, is candor between doctors and patients any less important? In many people's minds, health advice frequently (if not always) trumps legal advice in importance. Similarly, the relationship between a worshipper and a clergyperson seems equally worthy of societal support and protection. Under the First Amendment, clergy have a much stronger constitutional argument for a privilege than lawyers do.

Attorneys also enjoy a “work product privilege”:

The work product protection covers a key chink in the legal profession's armor, as the attorney–client protection does not cover notes from discussions with outside parties, such as witnesses, or many trial preparation materials. Although the rule does make it much easier for a lawyer to prepare a case for trial, it imposes significant costs systemwide. In the typical civil case, a party will claim that at least some of the relevant documents in its possession are protected by the privilege. The party seeking discovery then faces an unpleasant choice: either accept the assertion of privilege and lose access to those documents or fight out the issue in collateral discovery litigation. In millions of lawsuits across the country, each of these choices imposes costs in additional litigation or lost information. Given these costs, it is hard to argue that on balance the privilege helps clients, let alone the truth-seeking function of the justice system.

Attorneys also have legal advantages in collecting payments:

The second type of common law lien is called a charging lien. It allows a lawyer to place a lien on any judgment or settlement for repayment of legal fees. Similar to the retaining lien, this right is afforded only to lawyers. In the case of In re Meyer, a New York court made this quite explicit by rejecting an accountant's request for a lien because “[i]t is a rule of universal recognition that … no one has a lien upon the property of another with whom he deals unless it is conferred by contract or by some rule of law and no statute, in this state, has been cited, creating a lien in favor of … the accountant.” This is, of course, a perfectly rational response to the accountant – why should a court allow a lien unless it has been legislatively created? Nevertheless, in the very next paragraph, the court granted a charging lien for the attorneys involved, citing the judge-created common law charging lien.

And attorneys, unlike other businesses, can’t be sued for violating various consumer protection statutes:

All fifty states have some form of consumer protection act that bars deceptive trade practices. Although these state laws vary, they all trace back (one way or another) to Section 5 of the Federal Trade Commission Act (FTCA). Section 5 bars “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” Because of their relation to Section 5 of the FTCA, these state acts are often called “little FTC Acts.” … [T]he application of the state “little FTC Acts” to the “learned professions” has been a mess, with multiple approaches. A handful of states have exempted specific licensed professionals by statute. Other states do the same by judicial decision. In these states, consumers can still sue for legal malpractice, but not under the consumer fraud statute, even if an attorney's advertising is deceptive or her billing is fraudulent. The decisions exempting lawyers strain to find reasons why their states’ consumer protection acts do not apply to legal services. For example, in Frahm v. Urkovich, an Illinois appellate court analyzed an Illinois consumer protection act that applied to “consumers” who purchase “services.” The court noted that as a consumer protection statute, “the act is to be liberally construed.” Nevertheless, the court briskly determined that the practice of law is not a business and held that the consumer protection act does not apply to lawyers: “The interpretation urged by plaintiffs here, however, would necessarily equate the practice of law with an ordinary commercial enterprise, a proposition for which we find no support in case law or public policy.” … In Cripe v. Leiter, the Illinois Supreme Court took a different tack, holding that historically “the regulation of attorney conduct in this state has been the prerogative of this court” and that in “the exercise of this power, this court administers a comprehensive regulatory scheme governing attorney conduct.” Accordingly, “the attorney-client relationship in this state, unlike the ordinary merchant-consumer relationship, is already subject to extensive regulation by this court.” Because of this extensive regulation, the court reasoned that if the legislature wanted the consumer protection act to apply to attorneys, it should have stated that “intention with specificity” – all this despite the fact that the statute itself protected “consumers” who purchased “services.” … In Beyers v. Richmond, the Pennsylvania Supreme Court took an even more muscular stance, holding: “[The] General Assembly has no authority under the Pennsylvania Constitution to regulate the conduct of lawyers in the practice of law. Thus, we conclude that any application of the [consumer protection act] to the facts of this case would purport to regulate the conduct of attorneys and would be an impermissible encroachment upon the power of this Court.” … Therefore, insofar as the state consumer protection act purports to regulate attorneys, it is unconstitutional and the state disciplinary rules “provide the exclusive remedy for the attorney misconduct in this case.”

Finally, Barton writes:

Our last example is a particular way that judges have found to support legal nonprofit entities. In the past forty years, class action lawsuits have grown exponentially in both frequency and the amount awarded. Many of the cases involve large classes of putative plaintiffs who eventually win small amounts. Because the class sizes are large and class members are often difficult to find or reach, it is quite common for some of the class action damages to go unclaimed. In these circumstances, courts are called on to determine what to do with the leftover funds. Courts have often turned to the doctrine of cy pres in these circumstances. Cy pres originated in the law of trusts and estates. When the original purpose of a trust had become impossible to fulfill, courts had to decide what to do with the trust's residual funds. Rather than have the funds go unused, the courts tried to find an “as near as possible” option that still reflected the trust's original purpose. As transplanted to class actions, however, the requirement that the award match the original purpose of the underlying lawsuit has been watered down. Some courts have disbursed unclaimed class action funds based on the judge's perception of the public good, rather than to benefit the putative class members. The title of a recent article in the ABA publication The Judges’ Journal puts it quite succinctly: “What Can a Court Do with Leftover Class Action Funds? Almost Anything!” To access these funds, courts have had to elide state and federal statutes that call for unclaimed court funds to escheat to the government. For example, in Van Gemert v. Boeing Co., the U.S. Court of Appeals for the Second Circuit found that the federal statute that provides for the deposit of unclaimed funds in the U.S. Treasury “does not limit the discretion of the district court to control the unclaimed portion of a class action judgment fund.” … It should come as no surprise that these grants for the general good have drifted over time toward the benefit of the legal profession. Charles Keckler has done a study of recent cy pres awards from class action funds and discovered that “they were predominantly directed to law-related entities such as law schools, pro bono advocacy organizations and the like.” … [L]egal services corporations (LSCs) often appeal to lawyer-dominated sources of funding … LSCs have likewise been frequent recipients of cy pres class action funds. Bar associations and LSCs have actually created publications encouraging courts to donate their cy pres funds to legal aid organizations. Law schools have likewise been the recipients of these funds … [S]uch uses are very unlikely to directly or even indirectly benefit class action plaintiffs.

Barton concludes his book with a discussion of how the burdensome complexity of the law benefits all lawyers. He writes:

[Here] we consider a more diffuse, but equally insidious, consequence of the lawyer–judge bias: how the lawyer–judge interrelation leads to … overweening legal complexity … Law professors, judges, and lawyers have a very hard time seeing what seems obvious to outsiders – the American legal system is hopelessly and miserably complex and much more complicated than it needs to be … [A]s I have practiced and taught law for years, the main tenets of this chapter strike me as painfully obvious: (1) American law is more complex than it needs to be; and (2) one major reason for this is that complexity behooves two of the main players in the system – judges and lawyers. For those who consider the first proposition controversial, consider the following. Robert Kagan has collected and digested various empirical studies that show American law to be unusually expensive, expansive, complex, and uncertain. He terms this American “exceptionalism” and argues that these studies describe a legal system that is uniquely complex and unwieldy: “For one social problem after another, the studies show, the American system for making and implementing public policy and resolving disputes is distinctive. It generally entails (1) more complex bodies of rules; (2) more formal, adversarial procedures for resolving political and scientific disputes; (3) more costly forms of legal contestation; (4) stronger, more punitive legal sanctions; (5) more frequent judicial review of and intervention into administrative decisions and processes; (6) more political controversy about legal rules and institutions; (7) more politically fragmented, less closely coordinated decisionmaking systems; and (8) more legal uncertainty and instability.” In short, American law is especially prone to complexity, more pervasive in more areas of our lives, and more suffused with uncertainty … Moreover, judges, lawyers, law professors, economists, and the public have noticed an ever-growing and unhealthy complexity in American law. The opacity of the legal system, much of which is a result of the natural indeterminacy that comes from complexity, is a main source of public distrust and unhappiness with the legal system. This drift toward indeterminate complexity is harmful. The most obvious expense is in transaction costs. When the law is complicated, individuals need to hire lawyers to help decode it. When the law is complicated and indeterminate, consumers receive the worst of all worlds – the expense of seeking legal advice without any clear answer about how to proceed. Evidence of the drift into indeterminate complexity is all around us. The past forty years have seen a huge uptick in the number of lawyers per capita, the money spent on lawyers, and the number and pages of reported judicial decisions … Much of the complexity in American law comes as a result of legislation or regulation that is outside the realm of the lawyer–judge bias. Nevertheless, there is a persuasive argument to be made that the creeping “legalization” of all areas of American life is itself a reaction to judge-made complexity, as private entities, regulators, and legislatures try to craft rules that will stand up in court. As the legal system increasingly pervades American life, some of the most damaging aspects of the shared lawyer–judge proclivities have crossed over: treating every disagreement as an opportunity for a formal adversary process and the overuse of technical language in endless sentences. Thus, the complexity that first seemed only the domain of the legal system has leaked out, transforming institutions and social interactions far beyond the courthouse walls … Louis Kaplow's relatively straightforward statement that “the relative complexity of legal rules refers to the number and difficulty of distinctions the rules make.” This simpler definition will work fine for our purposes … [B]y any definition, American law is extremely complex. One reason is the lawyers’ obsession with precise definitions and continual worry about gray areas, rather than black and white areas of general agreement … Not all complexity is bad, and complex systems are not necessarily indeterminate. Complexity will sometimes add granularity and certainty. If an area of law is one in which it is critical to have very precise calibration, complexity is often necessary, even if it is not efficient. The tax code is an example of an area in which the drafters have clearly attempted to be complex, yet as precise as possible. That said, much of the judge-made complexity drifts into what I call “indeterminate complexity.” In these situations, legal complexity offers the worst of both worlds: it is complicated and it makes predicting the outcomes of cases more difficult. In determining whether complexity is helpful or not, consider two separate continuums for judge-created law. One continuum considers whether the law is simple or complex; the second considers whether the law is relatively determinate or indeterminate … One hallmark of indeterminate complexity is the multifactor test in which it is unclear which factor weighs the most – or even that every factor needs to be considered. Remember the test for the forfeiture of a legal fee when the lawyer has breached an employment contract through poor performance: A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation for the matter. Considerations relevant to the question of forfeiture include the gravity and timing of the violation, its willfulness, its effect on the value of the lawyer's work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies. The seven- pronged test for determining who is a debt collector under the Fair Debt Collection Practices Act … is another great example. Most would agree that these tests are confusing and will prove difficult to apply, and that predicting an outcome in any close case will be impossible. Litigants facing these tests must hire a lawyer to gather information and argue all the different factors with little clue as to how the case will come out at trial.

Barton then states the legal truism that:

Lawyers and appellate judges love complexity. [This discussion] focuses on the appellate, lawmaking courts in comparison with law-applying district courts. In analyzing legal complexity, it is critical to separate out these different types of courts, because their incentives and responsibilities differ greatly. Notably, district courts bear the brunt of the costs of complexity, whereas appellate courts reap the benefits … Lawyers have multiple reasons to favor complexity. First, lawyers sell a single good: technical expertise of the legal system. The more complicated that system is (and that includes procedural and substantive complexity), the more business there will be for lawyers. If the system were to grow simpler, usage of lawyers would decline … Lawyers are a well-organized interest group that pushes for beneficial law (in this case, complicated law and procedure) at the expense of the public … Gillian Hadfield has likewise argued that the American lawyer's dedication to zealous advocacy on behalf of individual clients virtually guarantees complexity and ignores the broader benefits of simplicity. If a more complex solution will best suit a lawyer's client that is the rule the lawyer will suggest, regardless of the overall effect on the law. The sum total of each of these individual case decisions in favor of complexity results in a system heading toward entropy.

As Barton explains:

Complexity is not good for legal clients or for society as a whole. Nevertheless, because of informational asymmetry (which means that the lawyers have much better information than their clients about any given case and the system as a whole) and agency costs, clients are not usually in a position to advocate for a simpler result over more complexity in any given case, let alone across the law in general.

But complexity is good for judges:

How does complexity benefit judges? Complex systems are harder to administer, so one might think that judges would seek simplicity – but they rarely do. A study of judicial incentives and behavior helps explain why. There are multiple reasons for judges, like lawyers, to favor complexity. The first is that the courts most affected by complexity – trial courts – are not the courts generally responsible for its creation. Lawmaking appellate courts are in charge of creating precedential complexity, and complexity affects them only the next time that issue appears on appeal. These courts are not on the front line of deciphering or applying complexity.36 It is quite common to hear district courts grousing about the complexity of the law they must apply. Second, judges tend to favor lawyers because lawyers and judges are the system's repeat players … [J]ust as complexity has benefits for the legal profession as a whole, it carries great benefits for the lawmaking judiciary as well [that is, judges who want to impose their own views on others through their interpretation o fthe law]. Complexity makes it easier to decide almost any case in line with the judge's other preferences. Complexity is a powerful tool for any part of the government. Complex rules allow more latitude and less accountability throughout the government because it is costly for the public to decipher or lobby against complex systems. Complexity allows any government official to pursue her individual goals under cover of an opaque legal system that the public cannot disentangle … [C]omplexity does have costs [for judges], but lawyers do a great deal of every judge's work … [I]n the advocacy system judges rely on lawyers to do the bulk of the work in trying, briefing, researching, and investigating cases. When the system is working properly, the judges sit back and decide cases based on the legal and factual work presented by the lawyers. On appeal, the lawyers generally find and research the law, place it in written briefs, and then apply it to the facts at hand for the judges. As such, complexity arrives for the judge hand-wrapped by the litigants. Judges can, of course, disregard the lawyers’ legal research and theories of the case. But insofar as that requires independent research or a novel legal outcome (and, in most cases, a simplification of the law would be novel), substantial additional work is required … Thus, paradoxically, a judge seeking simplicity will have to work much harder than a judge who applies the complex theories and law presented by the lawyers in the case … [A]lthough innovation in almost all areas of legal practice and judging has been painfully slow, one area of a judge's work – writing opinions – has been greatly streamlined by word processing technology. One hundred years ago it took substantial physical effort to write or edit a legal document. Even forty years ago, judges worked through multiple drafts, writing their changes by hand in an effort to reach a final edit. Word processors have revolutionized this process, so a practical barrier to complexity (the hassle of committing it to paper) has been removed.

Law schools perpetuate this complexity as well:

Justice Felix Frankfurter once opined that “the law is what the lawyers are. And the law and lawyers are what the law schools make them.” The stated goal of American law school, to teach law students to “think like a lawyer,” is an explicit attempt to pass along the rules of an institution. American law schools are aimed at the study (and celebration) of indeterminacy. In class and exams, students are repeatedly presented with an unclear area of the law and asked to argue both sides of the issue. “Thinking like a lawyer” requires a student to see each issue as multifaceted and to recognize that the law likely does not have a clear answer for the questions raised in class or on the exams. Students are instructed that the important point is not to find the “right” answer, because there likely is no right answer. Instead, students are taught and graded on their thinking processes: Did they spot all the potential issues? Once they spotted the issues, did they correctly analyze them and note the different ways in which the law could apply? I have previously called this approach to teaching law “the siren song of indeterminacy.” Law school's continual focus on gray areas is a specialized training in complexity. The students who are best at it end up with the best grades and the highest credentials when they exit law school … The lawyers who are selected to be lawmaking (i.e., appellate) judges come from the elite of the profession. As members of this elite, these lawyers have mastered the skills involved in the creation and understanding of legal complexity. Furthermore, it is likely that they actually quite enjoy the entire process. When lawyers, judges, or law professors talk about a “true love of the law,” they are talking about this exact process of digesting and generating complexity … [T]he “costs” of complexity do not deter lawmaking judges. To lawmaking judges, complexity is not a bug; it is a feature. If complexity means that later interesting appeals, raising new and different legal questions in the same complex area, will arise in the future, that is sauce for the goose.

And complexity helps assuage a judge’s conscience:

As a psychological matter, this quest to decide each case justly and correctly helps explain the desire to add exceptions to codicils under subrules in multifactor tests. Again, the damage from these cases is the cumulative effect systemwide. In trying to get each case perfect and trying to write down reasons for that perfection, complexity multiplies exponentially … Often, smart people working on hard problems produce a vast quantity of unnecessary complexity … The cases are often split. They frequently involve lengthy dissents and multiple concurrences.

In the next essay in this series, we’ll explore the exponential growth of complexity in the law, and its adverse effects on individual liberty, using Supreme Court Justice Neil Gorsuch’s book Over Ruled: The Human Toll of Too Much Law.