A Modern Defense of Simple Rules for a Complex World

My 1995 book Simple Rules for a Complex World articulated a general proposition that, in most situations, simple legal rules perform better in two key dimensions: (1) they are simpler to interpret and enforce, and (2) they generate efficient incentives on the parties to whom they apply. I then applied that view to matters of general legal theory, to matters of environmental law, and to disputes over labor. These principles apply to all forms of legal regulation, but in this Article, I shall limit my analysis to the five articles in this Collection. These are by Richard Revesz on global warming, Cynthia Estlund on the contract at will, Lior Strahilevitz and Rebecca Hansen on labor organization efforts on company property, Lee Anne Fennell on price discrimination, and Franita Tolson on the independent state legislature theory.

The Revesz Article takes an extreme position on responses to global warming that misses the inherent cyclical nature of the underlying determinants of global warming, and thus calls for prompt intervention in energy markets that is likely to prove far more costly and socially destructive than the current energy markets dominated by fossil fuels. The Estlund Article imposes unworkable restrictions on the ability to hire and fire that cannot work especially in two key contexts: both start-ups with high turnover rates as well as mass layoffs. Hansen and Strahilevitz defend an unduly aggressive application of statutes of limitations that would, if adopted, make it vastly more difficult to mount any challenge against virtually any regulation. I then offer a brief and sympathetic comment on Lee Ann Fennell’s price discrimination analysis, which demonstrates the ability of standard contractual forms to facilitate beneficial cooperation in a wide variety of market situations.

Finally, the Tolson Article on the independent state legislature theory does not present challenges to the Simple Rules issue, but it does illustrate the perils often inherent in overly clever approaches to constitutional interpretation. A close examination of these articles shows how the dangers of complex legal rules, and the corresponding benefits of simple legal rules, are as relevant today as they were some 28 years ago.