Measuring, Monitoring, and Managing Legal Complexity
Do you believe the U.S. Tax Code is too complex? If so, you are in good company—most Americans believe the Tax Code is too complex.1 Many legal scholars believe the Tax Code is too complex.2 Even the Internal Revenue Service’s own National Taxpayer Advocate Service believes the Tax Code is too complex.3 And this is not a new sentiment in society—“[s]ince the inception of the federal income tax, commentators have viewed complexity as virtually inevitable.”4 But prove it! That’s right, prove the Tax Code is too complex.
How would you do that? How would you prove the Tax Code—or any other statute or regulation—is too complex? Making such a claim about some element of law requires proof of two related hypotheses. The first is descriptive: the law is complex. The second is normative: the law is too complex. Both are, in theory, empirically testable hypotheses. The claim that a body of law is complex requires some convention for defining legal complexity and then some way of measuring whatever that is. Further, the claim that a body of law is too complex requires identifying an optimal legal complexity and some way of comparing a particular law’s complexity to that standard. With all the arm-waving about the excessive complexity of the Tax Code, one would think these two sets of metrics are well established and routinely applied across a wide berth of the legal domain. That would be a mistake. Law’s complexity, while often invoked in rhetorical policy debates, is in fact one of the least understood and measured features of law. Thus, making the legal system less complex, or “simpler,” remains a popular but elusive remedy for “too much complexity,” with prescriptions often appearing more complex than the problem.5
As intuitive as it is to any lawyer that the law is complex, getting a handle on exactly what that means and what to do about it is no simple matter. First, one needs a theoretical foundation to describe complexity in terms relevant to legal systems. What is legal complexity, and what attributes and variables go into making legal systems complex? Then one must develop metrics and methods to measure and monitor those attributes in the legal system. Armed with such data, legal theorists, politicians, and citizens can begin an evidence-based debate regarding how complex the law should be. And, if it were determined that the law is too complex or not complex enough, it would be useful to have the means to adjust and manage the law’s complexity. Of course, none of these is a small task.
