If brevity is the soul of wit, what is verbosity the soul of? Of overweening, inefficient, even tyrannical government—at least according to the critics who, for years, have bewailed the fact that federal laws and regulations are growing by the minute, by the mile, and by the metric ton. These critics argue that America suffers from “hyperlexis,” or the existence of too much law, and their calls for remedies to that malady are now finding a receptive ear in the highest echelons of the federal government. The idea that there is too much federal law has been embraced by all three branches of government and by members of both major political parties.
In order to analyze these claims, this Article taxonomizes and evaluates the most common claims of hyperlexis in federal law, including the claims that federal laws and regulations are too numerous, too complex, too costly, and too invasive of state and local prerogatives. Once these arguments are untangled, their individual flaws become evident. Almost each account of federal hyperlexis faces serious conceptual obstacles in either its technique for measuring hyperlexis or in its method for remedying it.
This Article then notes one argument that has not been convincingly made: the argument that the proliferation of federal law results from a democratic failure. No public choice account plausibly explains the persistent and widespread overgrowth of law. But the absence of such an account cannot, of course, put a stake through the heart of the hyperlexis critique, which implicates deeply embedded philosophical beliefs concerning the nature of individual liberty and the proper role of government. The critique represents a challenge to the legitimacy of law that current theories of law’s legitimacy are not oriented to deflect. We are left, then, in the worst of both worlds. The hyperlexis critique does not map out a means to achieve the goal of reducing the amount of federal law, but the currency of the critique has corrosive effects upon the sociological legitimacy of federal law and institutions.
