Over Ruled and Over Burdened: The Case for Less Law

Over Ruled: The Human Toll of Too Much Law
Neil Gorsuch & Janie Nitze
Harper Collins Publishers
September 2024
304 pages
ISBN: 978-0063238473


One of the first cases I worked on as a trainee solicitor involved preparing a brief for a judicial review of proposed new rules regulating the fishing quotas for herring. Long hours poring over reams of UK legislation, EU legislation, fisheries management policies, treaties between Ireland and the UK and minutes of parliamentary committees left me wondering how the fishing of such a delightful fish could require a seemingly endless number of laws and rules.

In 2009, in a speech at the Lord Mayor of London’s dinner for the judiciary, the then Lord Chief Justice of England and Wales, aptly named Lord Igor Judge, memorably said:

“My request is one which has been frequently addressed, but so far without success. Can we possibly have less legislation, particularly in the field of criminal justice…. My Lord Mayor, in a rough and ready calculation, it seems to me that if every line of recent criminal justice legislation had been guaranteed by a payment to the Bank of England of £10,000 a line, the credit crisis would have been funded.”

The Halsbury’s Statutes is the nearest thing that the UK has to a statute book. At the beginning of the late Queen Elizabeth II’s reign in 1952, Halsbury’s Statutes ran to twenty-six volumes. This was the result of 740 years of legislating, stretching back to her predecessor King John and the Magna Carta. In the seventy years that she was on the throne, the number of statute volumes increased from twenty-six to eighty.

It is not just the number of Acts that has sharply increased but also the number of pages. In 1950, the average number of pages for a government Act was sixteen. In 2009, the average number of pages for an Act was 122. The unrelenting rise in the volume of legislation was pointed out in a brief laid before the House of Lords in 2013. Reading the appendix at the back, one gets a momentary frisson of Thatcherite zeal when one comes to 1986-87 and sees that the tide of legislation momentarily abates, before resuming its upward course. However, a recourse to the footnotes shows that it was in that year that the Queen’s printer moved from using the A5 page size to A4.

On the other side of the Atlantic, the issue of too many laws also prevails. In Over Ruled: The Human Toll of Too Much Law, current Justice of the Supreme Court of the United States, Neil Gorsuch and his co-author Janie Nitze, examine the burden of excessive statute on ordinary Americans going about their daily lives. “The truth is, something’s happening in our country. Law is multiplying, and its demands are growing increasingly complex,” Gorsuch writes. “So much so that ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all.”

The reader learns of the story of Florida fisherman John Yates, whose gruelling legal odyssey began with the charge that he had discarded undersized red grouper with the intent of impeding an investigation into his fishing practices. By doing so, he was accused of and ultimately convicted of, violating the Sarbanes Oxley Act. Though intended to regulate the financial industry, the act broadly criminalises the destruction not only of financial records but also of “tangible objects,” including (as the government insisted) fish. The Supreme Court overturned the conviction by a single vote. That was small comfort to a defendant whose livelihood had effectively been destroyed in eight years of litigation.

The authors also recall the tragic pre-trial suicide of 26-year-old computer programmer Aaron Swartz, whom prosecutors threatened with “decades in prison and millions in fines” for downloading articles from an online academic library without permission.

Other hapless citizens who get entrapped in the legal thicket range from a magician who failed to submit an adequate “disaster contingency plan” for his rabbit to the race-car driver Bobby Unser. He barely escaped a nasty blizzard in the San Juan Mountains in Colorado, only to be fined for operating his snowmobile in a protected wilderness area (he said he was only near one).

Gorsuch also decries draconian prison sentences and mass incarceration, again illustrating how his supposedly conservative instincts frequently overlap with progressive concerns.

He writes that the proliferation of criminal penalties has given prosecutors enormous power to ruin people’s lives, resulting in the nearly complete replacement of jury trials with plea bargains. “Some scholars peg the number of federal statutory crimes at more than 5,000,” Gorsuch states, while “estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions.” The fact that neither number is known with precision, they suggest, speaks volumes about the “unpredictable traps for the unwary” set by the government’s ever-expanding rules.

Gorsuch notes that it is virtually impossible to definitively compile a “federal criminal code,” because laws carrying criminal penalties are peppered through Congress’s statutes and, even more so, in agencies’ regulations. They change constantly – “what was lawful today can become unlawful tomorrow”– and they are increasingly inexplicable. “If a criminal law does not reflect common institutions,” they ask, “how can an ordinary person be expected to know about it – or even know to look for it?”

Gorsuch roots these themes deeply in the American founding – especially the writings of James Madison, whose warning in Federalist No. 62 is particularly apt:

“It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.”

Nearly all the protagonists in Over Ruled resemble Franklin Delano Roosevelt’s “Forgotten Man.” FDR appears, too, when the authors recount his unsuccessful attempt to assert presidential control over the independent Federal Trade Commission.

One critic referred to Over Ruled as “standard conservative political propaganda – an anecdote-driven, broad-brush attack on legislators trying to solve contemporary social problems and on the executive branch officials trying to enforce the country’s laws.”

Yet, Gorsuch often crosses the ideological lines with references to liberal justices, including his past and present colleagues: Ruth Bader Ginsburg’s and Sonia Sotomayor’s agreement with Gorsuch in the case of the disabled construction worker; Sotomayor’s and Stephen Breyer’s agreement with him in a veteran’s disability case. William O. Douglas, William Brennan, and Thurgood Marshall all appear, too, as do progressive Judge Learned Hand and Professor Cass Sunstein, while conservative Justices Scalia, William Rehnquist, Byron White, and others go unmentioned. That irony may be lost on Gorsuch’s critics.

Days before the Senate Judiciary Committee convened in early 2017 to consider Neil Gorsuch’s nomination for the Supreme Court, the New York Times reported that Democrats had “zeroed in” on their main “line of attack.” They would paint Gorsuch, then a federal judge, as favouring “the powerful and well connected.” The headline put it bluntly: Judge Gorsuch was “No Friend of the Little Guy.”

His critics ran with it. At the confirmation hearing, Senator Mazie Hirono said, “a pattern jumps out at me. You rarely seem to find in favor of the little guy.”

Yet, as a judge on the US Court of Appeals for the 10th Circuit, Gorsuch had written remarkable opinions highlighting the basic questions of human dignity and vulnerability that are too often glossed over in complex administrative cases.

In one much-discussed case, Gorsuch had lamented the plight of Alfonzo De Niz Robles and other immigrants caught up by the administrative state’s constant blizzard of new rules and flip-flops: “Who can even attempt all that, at least without an army of perfumed lawyers and lobbyists?”

At his confirmation hearing, Gorsuch warned that judges must not let their sympathies skew their judgments. “A judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law. They do not come as rich or poor, big guy or little guy. They come as a person.”

When the Supreme Court upheld the government’s rejection of an injured construction worker’s Social Security claim, Gorsuch’s dissent began plaintively:

“Walk for a moment in Michael Biestek’s shoes. As part of your application for disability benefits, you’ve proven that you suffer from serious health problems and can’t return to your old construction job, yet the government rejects your claim and refuses to let you see its underlying evidence. Even without the data, the examiner states in her decision on your disability claim, the expert’s say-so warrants ‘great weight’ and is more than enough evidence to deny your application. Case closed.”

In another case, when the Court ruled in favour of the Creek Nation tribe’s broad assertions of sovereignty against Oklahoma, Justice Gorsuch’s majority opinion began: “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”

When it comes to the modern administrative state, Justice Gorsuch is particularly keen to focus on the personal stories – and human dignity – at stake. And now he has devoted an entire book to it.

Over Ruled is not a book one would expect to be written by a Justice of the United States Supreme Court. The reader will not find a long series of case studies or challenging lists of citations. Justice Gorsuch did not employ endless legalese one might expect of a lawyer or a jurist. As he says at the beginning of the book, “This isn’t an academic work or a legal brief. It is a book of stories – stories about real people, their struggles to make their way in a world awash with law and the toll on their lives and families.” What wonderful, yet concerning and unusual, stories they are.

About the Author: Gerard Scullion

Gerard Scullion studied law at Queen’s University Belfast and Trinity College Dublin and is a trainee solicitor based in Belfast. He writes periodically on the role of religion within law and diplomacy.