Richard Moorhead, UK academic, expert on self-represented issues, and frequent source of ideas for this blog, has a fascinating post up on the Guardian’s blog.
He talks about the claimed relationship between legal complexity and predictability and discusses a recent study tending to cast doubt on the claim.
There is some reason to doubt that complexity increases judicial objectivity. A recent study by Laura P Moyer in Law and Policy adds to a significant body of work on how judicial decision making is influenced by underlying political attitudes. I don’t much like the simplification of judges into liberal and conservative (left and right to us [in the UK]) – judicial attitudes are much more nuanced than that, I suspect. Nevertheless, this literature has yielded some very interesting results. Moyer’s study is particularly interesting because it looks at the interaction between complexity and judicial ideology. If complexity rendered law more certain and objective, judges’ ideology would have less influence on case outcomes as complexity increased. In fact, the opposite occurred. The more legally complex cases became, the more judges decided cases on the basis of their ideological inclinations.
Sadly the underlying paper does not seem to be available for free.
I guess I would need analysis that goes beyond ideology to be convinced that complexity leads to lack of consistency.
What I do feel pretty sure of is that in that in cases without counsel, complexity of law or procedure leads to uncertainty and unfairness because it is much harder to make sure that the issues are either narrowed appropriately or all fairly addressed.
My own view is that in many jurisdictions with complex underlying law, when tenants are well represented they can get very good results, but that when they are self-represented it may be impossible for them to take advantage of the rights nominally given them by the legislature or by appellate court decision. The end result can be a massive difference in outcomes depending on whether there is a lawyer. That can hardly be fair.
Ironically, given the ways that systems respond to pressures, making sure that all tenants had lawyers might well result in less favorable outcomes for tenants with a lawyer, and perhaps little or no average change in result, only a redistribution of outcomes in favor of those who previously had no lawyer.
This is only one part of the case for simplification, but it is a strong one.
One way of responding to you doubt about the ideology-complexity point would be to ask, If the judges are deciding on the basis of ideology and complexity then what purpose does complexity serve?
You’ll have seen me blog a few times about Wright/Ellinghaus which gets more into the relationships between predictability, efficiency and fairness and reduced complexity. See here for example: