Simplicity Is Not Always A Virtue

March 24, 2010

Alan Siegel gave a lovely TED talk discussing the role of simplicity in legal agreements.  More specifically, he calls out the health care reform bill.  Why, when we have a 16 page Constitution with which we govern our country, do we need a 2100 page health care bill?

Well, we don’t.  We could have a 16 page health care bill, filled with generalities, and trust in courts or administrative agencies to fill in the blanks.  Just like with our Constitution.  We don’t have a 16 page Constitution, in practice.  We have a 16 hundred thousand page Constitution – and that number is probably conservative!  All of the decisions interpreting Constitutional provisions, the scholarship surrounding the Constitution, all of this goes into how our country is run, just with respect to the Constitution.  Ask a constitutional scholar – the crowning glory and the fatal flaw of the United States governing document is the same, that generality and flexibility.  Entire constitutional theories are generated primarily to provide better interpretative guidance, with less flexibility, out of those lovely generalities.

So, yes, we could write our health care bill that way.

Should we?  The complexity of the health care bill is partially an attempt to remove that kind of flexibility in order to retain the specificity the legislature intended.  Of course, some portion of it is a result of interest group negotiation, but that’s democracy.  In the end, the complexity of bills and legal language in general is not an attempt to avoid simplicity so much as an attempt to promote finality and clarity in a different way – not necessarily easy to understand initially, but with only one possible interpretation.

Whether that attempt works… is a topic for another time.

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