Why the 'Land of the Free' Is a Legal Swampland
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By Philip K Howard,
The Atlantic
March 12, 2012

Opinion-- America is mired in a tarpit of accumulated law. Reformers propose new laws to fix health care, schools, and the regulatory system, but almost never suggest cleaning out the legal swamp these institutions operate in. These complex legal tangles not only set goals but allocate resources and dictate the minutest details of how to meet those goals. Most are obsolete in whole or part.

Nothing important can get fixed without remaking a coherent legal framework.

The flaw is not one that can be solved by deregulation. Almost no one, for example, would disagree about the need to provide education for disabled children. But special education law, enacted in 1975, was structured as an open-ended mandate, and soon spun out of control. Today, special ed consumes 20 percent of the total K-12 budget in America. Programs for gifted children get less than half of one percent, and pre-K education gets almost nothing. Is this a sensible allocation of education dollars? No one is even asking the question.

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Congress treats most laws as if they were the Ten Commandments – except they're more like the 10 million commandments. Most legislative programs do not codify timeless principles of right and wrong. They are tools of social management. These laws allocate social resources – almost 70 percent of federal revenue in 2010 was consumed by three entitlement programs enacted a half century or more ago. Congress almost never goes back to rationalize these programs. Running government today is like trying to run a business using every idea every manager ever had.

At this point, democracy is basically run by dead people. We elect new representatives, but society is run by policy ideas and political deals from decades ago. Congress has a tragic misconception of its responsibility: It sees itself as a body that makes new law, not one that makes sense of old laws.

The problem of obsolete law is not theoretical. It's concrete, affecting daily choices across the country. It adds to cost, and slows productive activity to a crawl.

There are four problems caused by the accumulation of old law:

1. Too much law causes paralysis. Over the past century laws have piled up, like sediment in the harbor, until it's almost impossible to do anything sensibly. Building a "green infrastructure," for example, is stymied by environmental processes that sometimes consume upwards of a decade.

2. Laws have unintended consequences. Things never work out as planned. Sometimes a well-meaning idea, such as special education, ends up undermining other important goals.

3. Priorities change. The more specific a law, the faster it becomes obsolete. In the 1930s, when many farmers were struggling, Congress enacted farm subsidies. The crisis ended by 1941. Now, 70 years later, farm prices are at record highs, and much of farming is done by corporations. But the farm subsidies continue – $15 billion in 2010.