White-Collar Crime

Remembrance of Things Past, Like When We Had Simpler Laws

Too many laws make a country that isn't just confusing, but less founded in moral reasoning.

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Laptop in classic libraryMany bar associations have publications. And many of those publications feature a column by the President of the bar association. As a genre, this may not make for the most fascinating reading; these columns tend to promote something great the bar association is doing, extol the virtues of something unquestionably good like pro bono service or civility, or commemorate something that has happened in the life of the relevant legal community.

I don’t mean that as a knock on these columns — bar associations should rightly promote what they’re doing, pro bono service and civility are unquestionably good, and good things should be commemorated.

Current DC Bar President Tim Webster’s recent column is, I think, a little different and a little deeper (while still being an appropriately light read).

In the January issue of Washington Lawyer — the DC Bar’s monthly magazine — Webster takes on the thicket of laws that make up our lives with a timely call for reform as Congress considers criminal justice reform and issues of overcriminalization are gaining currency.

Here’s how Webster starts:

Fourteen million, nine hundred and ninety-seven thousand, six hundred and sixty-one. That’s the number of words in Title 40 of the Code of Federal Regulations. I know because I counted them myself (more accurately, I summed the numbers the computer counted for me). The longest novel in history, Marcel Proust’s seven-volume tome Remembrance of Things Past, by contrast, is a mere 1,267,069 words. Almost 12 of them would fit into Title 40. It would take the average American about 1,250 hours to read Title 40, cover to cover, but by then various provisions would have changed or been added as a result of the unending revision process. Can you imagine the final exam after that course of study?

So far, this is standard fare — making a little fun of how crazy dense our laws are. There are a lot of laws and that’s what keeps lawyers in business. But Webster goes farther into why this quirk is really a problem.

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What’s wrong with having so many laws and regulations? The system certainly plays to our strengths as lawyers, but is it realistic for the whole country, from the least to the most sophisticated, to understand and comply? The old but still applicable adage ignorantia juris non excusat (ignorance of the law is no excuse) is based on two premises. First, were ignorance of the law a defense, it would lead to the societal moral hazard of willful blindness. To avoid that, we are expected to study up on applicable legal requirements. Second, it is generally presumed that laws are based on fundamental societal customs and values that we should all know anyway, or that should be intuitive.

Both premises are hard to justify in today’s law-heavy world.

Exactly!

Yet, as just about any casual reader of this column — or observer of what is happening in the world of white collar criminal defense knows — running afoul of our complex regulatory state’s rules too often lands someone in criminal trouble.

People shouldn’t go to prison for violating rules that it would take a fleet of lawyers to understand. Yet, these days they do. See, e.g., United States v. Clay, where executives at a health care company adopted an interpretation of law that their lawyers signed off on and were convicted of health care fraud for it.

As Webster explains,

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As Title 40 of the Code of Federal Regulations alone illustrates, even the most diligent among us could not possibly remember all the laws out there, even in just one area like environmental law. The situation is far more dire nationally, with average reading comprehension and 15-second attention spans. Moreover, while some laws are intuitive (malum in se—wrong in itself), such as criminal prohibitions for various forms of lying, cheating, stealing, and hurting others, many of the billions of words of laws and regulations in the United States are not. I don’t mean funny old laws you hear about from time to time (in Topeka, Kansas, for instance, wine may not be served in teacups); I mean laws applicable to everyday activities across the country. If laws and regulations were given one-to-five star Internet ratings, I’d be shocked to see many higher than two stars.

Webster is right — wine should be served in teacups. Moreover, our laws should be simpler and make sense.

His call to action is to have Congress or administrative agencies make the laws shorter and less complex, though I suspect he doesn’t see a lot of hope for that reform.

Here’s a simpler idea — make ignorance of the law a defense. In tax evasion cases, if you can show that you honestly believed that the law was what supported your tax return, that can be a valid defense. That’s the case even if your interpretation of the law was off the walls crazy.

Let “but I thought it was legal” be a defense more broadly to anything that isn’t malum in se. If you didn’t learn the rule in kindergarten, there should be a different standard if you’re being prosecuted for violating it.

Webster writes that our current over regulated system “dilutes the necessity for moral reasoning.” He’s right. Criminal law should be about morality, not bureaucracy.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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