In which I discuss the possibility that the courts can be brought to realize that they founded the regulatory state on false premises, that they must meet their obligation to undo some of the damage they have caused, and that doing so will require a broader reform of civil litigation.
HAMMERING ON THE arbitrary and capricious enforcement of regulations is the easiest point of attack on the jurisprudence that created the regulatory state. Better law does not require the courts to nullify regulations but merely to nullify enforcement actions.
But going after enforcement doesn’t get to the bottom of things. Recall that the full phrase that holds regulatory agencies accountable is “agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The core problem isn’t that so many regulations are badly enforced but that so many regulations represent an abuse of discretion. Regulatory agencies take advantage of vague language in the legislation to create regimes of rules that a majority of Congress would not have countenanced if those rules had been explicit in the legislation.
Is there any chance that systematic civil disobedience backstopped by the defense funds can get the courts to accept that truth? Possibly. The difficulty isn’t making the case. Demonstrating that regulatory agencies abuse their discretion in creating regulations is as easy as demonstrating that they enforce regulations arbitrarily and capriciously. But the federal courts will rightly fear an explosion of their caseload if they open that door even a crack.
Coming to our aid will be some strategic truths about the legal system. At some point, the combination of the system’s sclerosis and its workload will lead to a crisis and some sort of resolution. A carefully crafted campaign to distinguish mandated regulations from discretionary ones could be instrumental in demonstrating to the courts that they have no choice but to act.
In 1977, Louis Ottati of Kingston, New Hampshire, had been working for a storage drum reconditioning company for seven years and decided he knew enough to go into business for himself.[1] He got his father-in-law, Wellington Goss, to help him finance the enterprise. They incorporated as Ottati & Goss, Inc.; leased a one-acre site in the midst of a thirty-four-acre site where other drum-reconditioning companies were operating; and bought a front loader, a mixing bin, and a platform truck. They did good business for a year, processing up to a hundred drums a day. Like the other drum-reconditioning companies around them, Ottati & Goss deposited the waste products from the reconditioning into dumpsters that were then taken to an approved disposal site. But then the EPA discovered that the drum-reconditioning companies, including Ottati & Goss, had allowed some of these waste products to leak from the dumpsters or had otherwise contaminated the ground. The EPA filed a complaint under the Resource Conservation and Recovery Act.2
In 1980, the EPA undertook the cleanup of the entire thirty-four-acre site and collected reimbursement of its costs from the companies at fault. But then the EPA decided that further cleanup was needed, and, among other things, required Ottati & Goss to incinerate the dirt on their acre to remove a small residual amount of diluted PCBs and components of benzene and gasoline. The incineration of the dirt would cost $9.3 million.
Ottati & Goss refused, arguing that the cleanup already completed was adequate. The EPA filed suit to compel them to undertake the cleanup. After five years of litigation, the case reached the United States District Court of New Hampshire, which ruled in favor of Ottati & Goss. But that wasn’t the end of it. The EPA appealed to the First Circuit Court of Appeals. After another five years, on April 4, 1990, the First Circuit affirmed the district court’s ruling.3 After ten years and who knows how much in attorneys’ fees, Louis Ottati and his father-in-law were vindicated.
What was the benefit of incinerating the dirt that drove the EPA to go to such extraordinary lengths? Here is the answer, in the words of one of the First Circuit’s judges, Stephen Breyer, later appointed to the Supreme Court:
How much extra safety did this $9.3 million buy? The forty-thousand-page record of this ten-year effort indicated (and all the parties seemed to agree) that, without the extra expenditure, the waste dump was clean enough for children playing on the site to eat small amounts of dirt daily for 70 days each year without significant harm. Burning the soil would have made it clean enough for the children to eat small amounts daily for 245 days per year without significant harm. But there were no dirt-eating children playing in the area, for it was a swamp.4
To Breyer, the case represented “how well-meaning, intelligent regulators, trying to carry out their regulatory tasks sensibly, can nonetheless bring about counterproductive results.”5 To me, it represents regulators who have lost all sense of proportion, and also lost sight of what they are doing to the lives of the people they go after. Louis Ottati and his father-in-law were not engaged in a criminal enterprise. They were making an honest living and performing a useful service. They had not been deliberately polluting the earth, and they had paid for cleaning up their mistakes. Surely “well-meaning” and “intelligent” officials, conscious that they are public servants, would want to make sure they weren’t asking Louis Ottati and his father-in-law to financially ruin themselves and their families for no good reason. Surely they made that $9.3 million demand for incineration only after determining, with all the technical expertise available to the EPA, that the remaining contamination posed a genuine risk. They apparently did neither of those things.
But Breyer is correct in one sense: the “counterproductive results” of United States v. Ottati & Goss, Inc. are not the result of idiosyncrasies of individual EPA officials. Ottati & Goss is a parable illustrating the intersection of two ingredients of an eventual but necessary crisis: the dysfunction of the legal system, and the bankrupt premises on which the regulatory state is based.
The dysfunction of the legal system was the subject of chapters 2 and 3. Ottati & Goss exemplifies that dysfunction. That it took ten years and forty thousand pages of case record to decide the issues when both sides agreed on how little would be accomplished by the extra cleanup is ridiculous.
The second ingredient—the bankruptcy of the regulatory state’s premises—introduces some new themes that need elaboration. After I finish that task, I will describe how the dysfunction of the legal system and the dysfunction of the regulatory state might collide.
Eventually, reasonable observers will reach a point at which it is clear that the premises of the regulatory state are wrong. I don’t mean “wrong” from a particular political point of view, but empirically, indisputably wrong. An analogy with economics may clarify what I mean. Economists still fight about many things that are grounded in political ideology, from socialists at one end to libertarians at the other. All of the contending parties have empirically grounded arguments they can bring to the debate. But the range of debate has narrowed. Ninety years ago, Marxist economic theory was the ideological foundation of the young Soviet Union and was still considered by intellectuals throughout the world to have revealed laws of history. Today, Marxism is not taken seriously by anyone who has kept up with the state of knowledge about economics. The premises of Marxist economics turned out to be wrong—wrong about human nature, wrong about capitalism, and disastrously wrong in practice. The premises of the regulatory state are just as empirically wrong.
I could parse them more finely, but to simplify the argument I will put the premises this way:
• Problems of public policy can be analyzed so that they yield objectively correct solutions.
• The people who frame those solutions are disinterested experts who can put aside their own biases and institutional self-interest as they go about their work.
When the Supreme Court decided in 1943 to discard the requirement that regulators be constrained by a legislative “intelligible principle,” the justices had to believe both premises to be true because that decision, National Broadcasting Co. v. United States, turned over de facto legislative power to unelected bureaucrats. As I noted in chapter 4, that is a dicey thing to do, considering that the first words of the Constitution after the Preamble are “All legislative powers herein granted shall be vested in a Congress of the United States.” Delegating power to bureaucrats made sense only if, in the eyes of the Court, vague policy goals would be reliably implemented in a way that reflected what Congress had in mind. That belief is unsustainable without the two premises. Both premises required to make the logic work turned out to be wrong.
“Problems of public policy can be analyzed so that they yield objectively correct solutions.”
This premise is true of a subset of policy problems that meet the following three criteria:
1. The problem is extremely simple and can be objectively described.
2. The problem is perceived as a problem by a consensus of the people who will be affected by the solution.
3. The problem has a known technical solution (preferably only one technical solution).
The size of that subset of policy problems is greater than zero, but not much. Sewage and water systems usually meet the three criteria, for example. The size of the pipes, the location and capacity of the pumping systems, and the design of the sewage treatment facility are all engineering concerns. Everybody in town wants clean water and good sanitation, and they are indifferent to the technical choices made by the engineers as long as clean water flows from open taps and toilets flush (and as long as a proposed new sewage treatment facility is not going to be located in their backyard).[6]
Other examples of that subset are the great regulatory success stories. Earlier, I cited the Forest Service as one of the earliest success stories for the progressives’ ideal of independent agencies run by experts. That success was a reflection of an objectively describable problem (destruction of forests) that the public saw as a problem, with an obvious cause (indiscriminate logging), and a technical solution (sustainable logging). Also, the forests in question were owned by the government—a crucial caveat for creating consensus agreement that a problem existed.
Another great success story also occurred early, following the passage of the Pure Food and Drug Act of 1906, and it followed the same pattern: a simple, objective problem (adulterated or misleadingly described products) that just about everybody agreed was a problem, and a simple technical solution (require manufacturers of the products to list the ingredients on the package).
The EPA’s successes in reducing smog in major cities and restoring rivers to health are also classic examples. The problems and solutions were both simple. If a few million cars and trucks are on a city’s roads every day, emitting large quantities of the stuff that constitutes smog, something that everyone in the city hates, then a regulation requiring a device on auto exhaust systems that reduces those emissions is going to have a big positive effect on that city’s air pollution. If factories along a river are disgorging millions of gallons of contaminated wastewater into a river every day, requiring those factories to clean up their wastewater before releasing it into the river is going to have a big positive effect on the quality of water in the river.
Once one moves from problems that are simple and objective, consensually seen as problems, with known technical solutions, the ideal of objectively correct public policy recedes beyond our grasp. To see how even the simplest policy problems spill over into subjective preferences, suppose we talk about traffic control.
Aren’t traffic problems fairly simple and objective from a technical point of view? Don’t citizens, by consensus, want traffic to flow efficiently? Aren’t there well-analyzed technical solutions? “More or less” is the answer to all three questions—and in that mild qualification, “more or less,” lies a tangle of complications.
Do you support or oppose synchronized stoplights on main arteries? Right turn on red? One-way streets? Limited-access highways running through the city? Bike lanes? Bus lanes? Traffic circles instead of stoplights? Speed bumps? No matter what your answers might be, I assure you that a substantial number of your fellow citizens disagree. A traffic expert can calculate and describe objective truths about the pros and cons of each of those options. But opinions differ on whether those objective truths describe outcomes to be desired or opposed. The choice of which options to employ is thus intensely political. If a city council were to establish a traffic department and give it authority to create “an efficient and orderly traffic system” independently of any more specific (that is, “intelligible”) principles to guide the traffic experts’ decisions, the city council would have no way of predicting what mix of solutions the experts might come up with. It would depend on the definitions and priorities that the traffic experts attached to “efficient” and “orderly.”
That’s why most cities don’t turn over discretionary power to their traffic experts. Instead, any major change in the traffic system usually ends up coming before the city council for a vote. It’s too politically sensitive to leave to the experts. The experts explain the options, but the politicians vote on the ones to adopt.
The federal regulatory state is established on exactly the opposite approach: the Congress legislates vague mandates, then turns the job over to the experts and lets them do as they think best. It asks the experts to do something that is usually impossible to do. With the rarest exceptions, there is no such thing as objectively correct public policy. Tip O’Neill famously said that “all politics is local.” Similarly, all public policy is ultimately political.
“The people who frame those solutions are disinterested experts who can put aside their own biases and institutional self-interest as they go about their work.”
There are two problems with this premise. First, expertise in the policy sciences isn’t the same as expertise in, say, electrical engineering. Second, bias is inevitable.
THE TECHNICAL IMMATURITY OF THE POLICY SCIENCES. Even when regulations involve the hard sciences or engineering, the state of knowledge keeps changing, and what was thought to be the right solution twenty years ago is no longer thought to be the right solution now. The Forest Service once again is a case in point. The Great Idaho Fire of 1910 led to a new mission for the Forest Service: preventing forest fires. The Forest Service pursued this new goal energetically and succeeded in lowering the annual number of forest fires. But whereas the science of timber harvesting was already reasonably well understood in the early part of the twentieth century, the science of maintaining healthy forests was not. At the time that the Forest Service started its fire-prevention work, it was not yet known that fires are a necessary part of maintaining healthy forests. The policy that the Forest Service pursued for more than fifty years turned out to be scientifically wrongheaded.7
For policies informed by the social sciences, the situation is much worse. Science, good or bad, is often irrelevant. The latest received wisdom about best practice is more often driven by ideology than evidence. Education is the leading case in point, with numerous policies—No Child Left Behind is the poster child—that were already known to be scientifically wrongheaded when they were promulgated.8
I hesitate to mention a topic as emotional and divisive as climate change, but it is such an appropriate illustration of the immaturity of policy analysis that I must. Is the state of hard scientific knowledge about climate change good enough to tell us what has been happening to the world’s climate? Yes, with some caveats. Is the state of hard scientific knowledge good enough to justify the inference that human activity is playing some role in climate change? Yes, with still more caveats. Are the hard-science models of climate change good enough to tell us what will happen in the future? No, the models are constantly being modified because new data persistently fail to conform to predictions. Are the social sciences good enough to tell us how effective proposed policy measures will be in slowing climate change once the practical problems of implementation are taken into account? Not even close.
The essence of the scientific method is the acquisition of explanatory power—to be able not only to observe phenomena systematically but to explain those phenomena so well that we are able to predict what will happen if the same causal conditions are replicated. To do that requires accurate measures of both the phenomena themselves and powerful analytic techniques for measuring how different phenomena are related, both of which must be quantitative. In the hard sciences, that process started four hundred years ago. In the social sciences, it started fifty years ago.[9]
As someone who has been a practicing policy analyst for more than forty of those fifty years, I am unable to come up with a single example of an important social phenomenon we can predict precisely and consistently. We have ascertained that certain phenomena are correlated at predictable levels given adequate sample sizes. But even though we can predict the correlation within a fairly small range, the size of the correlation is usually modest. Even a correlation of 0.5, large for the social sciences, means that 75 percent of the variance in a phenomenon is unexplained. Besides that, the causal reasons for the correlations can seldom be clearly distinguished from the noncausal reasons. Today’s social scientists are to social scientists a century from now as alchemists are to chemists. The idea that scientifically objective social policy is feasible today is risible.
THE INEVITABILITY OF BIAS. In the traffic example, I could stipulate that traffic experts might disinterestedly project the changes in traffic flow resulting from, say, synchronizing traffic lights on a main artery. The first premise is still wrong. There is no objectively right policy answer to the question “Do you want traffic flow on Main Street to have a median observed speed of 15 mph or 25 mph?”
In reality, however, experts within the regulatory bureaucracies are not saints, and the range of things they can do disinterestedly is narrow. Only at the lowest levels of authority can specialists go about their work disinterestedly. A fingerprint specialist in the FBI forensics labs can analyze fingerprints disinterestedly. An expert on bear habitat in the Fish and Wildlife Service can count bears disinterestedly. A hydraulic engineer in the Army Corps of Engineers can calculate a dam’s energy output disinterestedly.
But as soon as people with these nonpolitical expertises move into managerial jobs, their ability to be disinterested is constrained. The fingerprint specialist who becomes a manager in the FBI will be pulled in all sorts of directions dictated by political considerations. So will the expert on bear habitats who becomes an administrator of the Endangered Species Act. And as for managerial positions held by engineers, the Army Corps of Engineers is notorious for its enthusiasm for building dams indiscriminately.
Apart from the influences of personal opinions and personalities, the decisions of bureaucratic managers are influenced by institutional self-interest. The FBI is constantly fighting over turf with a half dozen other agencies that deal in crime and domestic security. The Fish and Wildlife Service is constantly trying to protect its programs and prerogatives in each new budget cycle. So is the Army Corps of Engineers.
Such observations were formalized into a field of academic study known as public choice theory. Mancur Olson, who figured so prominently in chapter 5, is one of its major figures. So are noted scholars from the left (Kenneth Arrow and Anthony Downs, for example). The indispensable book on public choice theory is usually identified as The Calculus of Consent: Logical Foundations of Constitutional Democracy (1962), coauthored by two economists of the right, James Buchanan and Gordon Tullock. For our purposes, the main contribution of public choice theory has been to systematize an observation that will not come as news to anyone who has been around a functioning government agency: Officials in bureaucracies are like everyone else. They have opinions, passions, and interests, and their decisions are influenced by them.
Many of these influences are not political. For example, people have different levels of tolerance for risk. Some people enjoy risk; others want life to be as risk-free as possible. If someone is working for a regulatory agency, that personality trait makes a big difference in how regulations are framed. But political ideology does play a role as well. It should not be necessary to belabor that point. To list just some of the major areas of government regulation—employment, environment, safety, energy, health care, and drugs, for example—is to make it obvious how ideologically charged regulatory decisions must be.
Whether the influences are personal or political, what it comes down to is that the EPA’s experts are no more disinterested about the correct operation of oil refineries than are the experts at Exxon; the experts at the EEOC are no more disinterested about proper grounds for firing an employee than the experts at Walmart. I am not picking out bureaucrats for special criticism on this score—to repeat, they’re like everyone else.
They are not like everyone else, however, when it comes to the effects of their preferences. The EPA’s built-in biases are well known. Sometimes, those biases will lead to choices that Exxon’s experts think are clear mistakes even given EPA’s priorities. But there’s no way to force the EPA to back off those mistakes. EPA’s choices are imposed on refineries nationwide. Once again, demonization is unnecessary. We may assume that the EPA’s experts believe in their innermost heart of hearts that their policy judgments are in the public interest. But it cannot be assumed that they have been able to reach those judgments disinterestedly. We’re all biased, but only people within government have the power to impose those biases on their fellow citizens with the force of law. For the leaders of the progressive movement to have believed that experts are disinterested, and for the Supreme Court to have accepted that position in NBC in 1943, was monumentally naïve.
As with the Lancaster Brick scenario, I offer a scenario that surely won’t work out exactly this way, but gives a sense of the possibilities.
We again assume that the defense funds have been operating for several years. The public’s awareness of the regulatory overreach has been raised. The success of the defense funds’ strategy has forced regulatory agencies to move tacitly toward a “no harm, no foul” enforcement policy.
But something new has been emerging as well: cases that challenge the content of regulations instead of their enforcement. Like the Sackett case, many of these have been high-profile cases brought by ordinary people of modest means helped by the Madison Fund. In other cases, an occupational defense fund has challenged the content of a regulation on behalf of a member of a particular craft or profession. In still others, corporations have challenged the content of regulations on their own.
These various cases have all been batted down by the administrative courts, but occasionally a defense fund has obtained review by a federal appeals court. This is the generic argument that the defense fund’s counsel has made:
This case brings to the court a dilemma of the federal judiciary’s own making. In 1943, the Supreme Court made an error in deciding NBC. Whether it was an error of constitutional law is not at issue. Rather, the Supreme Court made an error in assessing reality, akin to a formula for antifreeze based on the assumption that ice forms at 28 degrees Fahrenheit. In NBC, the Court assumed that good public policy can be defined objectively. More precisely, it thought that general goals stated in legislation imply an appropriate, objective set of regulations that can be created by disinterested public officials. More than seventy years of experience since NBC have proved that the Court was wrong.
General goals can be implemented in radically different ways depending on the necessarily subjective operational definitions applied to words such as “fair,” “equitable,” “just,” “reasonable,” “safe,” or “healthy” that are used to express the goals.
General goals can be implemented in radically different ways depending on readings of the state of knowledge on which experts disagree, and depending on the results of analyses using methods and data on which experts disagree.
General goals can be implemented in radically different ways depending on the political ideology and on the personal preferences and proclivities that regulators bring to implementation.
In sum, the Supreme Court’s practice of ignoring its own previous requirement of “intelligible principle” has been a mistake. Policy formation doesn’t work the way that the Supreme Court in 1943 thought it did. Bureaucrats don’t work the way that the Supreme Court thought they did. The Court’s decision in NBC was a mistake that allowed the construction of a vast edifice of law that is based on the decisions of unelected officials, not on the will of elected representatives expressed in legislation. That edifice of law affects the lives of all Americans, directly or indirectly. Some unknown but large portion of those laws would never have been passed by Congress if they had been specified in the legislation. This body of law by bureaucratic proclamation is illegitimate.
We understand that a federal court’s de facto freedom to act is circumscribed, and therefore do not ask you to reinstate the requirement for an intelligible principle. To do so would call into question the constitutionality of hundreds of laws passed by Congress since 1943. As a practical matter, that is impossible.
But consider the position of our client as a matter of justice. We believe we have presented clear and convincing evidence that the content of the regulation he is accused of violating is technically unsound and counterproductive. It is a bad law. Let us assume for the moment that the court agrees with that conclusion. If this regulation implemented an intelligible principle in the authorizing legislation, we would not be here. As the court has clearly stated in the past, it is not the judiciary’s function to throw out laws just because they are bad. When Congress, a state legislature, or a city council passes a bad law, there’s nothing to be done about it except try to get the law changed. But the regulation our client is accused of violating does not have that standing.
We do not ask you to void the regulation because it is “arbitrary, capricious, [or] an abuse of discretion.” We ask you to recognize that it was, in fact, discretionary and extralegal—a regulation that government officials chose to create, not one that they were legislatively obliged to create—and accord it no special deference. In other words, we ask you not to reverse NBC but to modify Chevron. We ask that our client’s dispute with the government regulatory agency be treated the same way the courts treat disputes between private parties—to be decided on the merits of the cases made by the opposing parties without favoring either side a priori. If, having done so, you agree with our position that this regulation is not only extralegal but bad, we ask that you rule that our client was justified in not complying with it.
We began by saying that this case poses a dilemma to this court. We used the word dilemma in its true meaning: a problem in which all of the alternative solutions have defects. It is wrong that citizens of the United States are subject to thousands of laws that are the creation of unelected government officials, but it is impossible to get rid of them without creating chaos. At the same time, it is wrong for the courts to continue to allow citizens to be punished for breaking bad laws created by unelected officials. It violates a foundational principle of American democracy. Some corrective measure, however imperfect, is required. The withdrawal of deference from regulations deemed to be discretionary and therefore extralegal is both appropriate and practicable.
As that argument is repeated time and again, in cases where reasonable observers agree that the regulation in question is obviously bad, we can hope that it will begin to get traction in public opinion. As in the case of “arbitrary and capricious,” the objective is to develop an emerging social consensus: a recognition that the real problem with the regulatory state is not just that the execution of its rules may be bungled but that it is a dysfunctional system founded on wrong assumptions.
This much is within the power of the defense funds to accomplish. But is it realistic to hope that the Supreme Court will ever withdraw Chevron deference from regulations judged to be discretionary and therefore extralegal?
On the optimistic side, this argument allows the Supreme Court to modify Chevron without provoking a constitutional crisis. It’s not as if modifying Chevron would require dismantling the regulatory state. All of the agencies, all of their staffs, and all of the 200,000-odd pages of the Code of Federal Regulations would be left in place after a Chevron modification.10 Agencies would still be permitted to create regulations that are not mandated by an intelligible principle in the legislation. The only difference is that the courts would distinguish between two kinds of regulations. Those that follow directly from the expressed will of Congress—to resurrect the old language, follow from an intelligible principle—would continue to be upheld as long as they are also constitutional. Regulations that are deemed to be discretionary—were not mandated by an intelligible principle—would not be accorded deference. In defending discretionary regulations, a government agency would be subject to the same treatment that all other entities in American society are supposed to get: When you walk into the courtroom, you have exactly the same standing as your opponent. What matters is not who you are but how strong your case is. Being a member of the Wiseman family doesn’t help anymore.
But at this point comes the collision. Even if they wanted to, five justices would still be understandably reluctant to modify Chevron because of the dirty little secret illustrated by the parable of the dirt-eating children: The legal system is so sclerotic that it could not possibly cope with the flood of litigation that would be unleashed against the regulatory agencies if they were not shielded by Chevron deference. As matters stand, even corporations with the deepest pockets are reluctant to challenge bad regulations, sometimes paying billion-dollar fines instead, because Chevron deference sets the bar so high for making their cases. Given a level playing field, fighting all sorts of bad regulations would make economic sense. Added to that are all the cases that would be brought by the occupational defense funds, and the rich new vein of cases that the Madison Fund could take up. The Supreme Court must expect that even modifying Chevron deference would swamp the legal system.
But envision the situation if the Supreme Court refuses to budge on Chevron deference for that reason, in the face of an emerging social consensus that the regulatory state is out of control, and with growing acceptance by the public (which is happening already) that overregulation is having terrible effects on the economy, technological innovation, and the provision of services. What does it say about the state of the American legal system if the only reason not to allow Americans to challenge extralegal laws is that the court system can’t handle the workload?
Therein lies the possibility that systematic civil disobedience and the defense funds will trigger a badly needed crisis: the courts will realize they have to give people a chance at their day in court, but things have got to change so that those days in court don’t become ten-year cases with forty-thousand-page case files. The courts will get the push they have needed to reform civil litigation.
What needs to be done to fix the legal system is not mysterious. The civil legal system once worked pretty well. Civil legal systems in other advanced societies of the West work pretty well. As described in chapter 2, the changes that produced the current mess are known, and so are the fixes that could incrementally create new case law that moves us toward a more sensible system. The Supreme Court can do much to push that process along. But the only way to get the justices to do that is by giving them no alternative. That’s what the pressure brought on the courts by the defense funds might accomplish: force the courts to reform or be overwhelmed.
What are the odds of this scenario, or something like it, actually happening? Probably small. But reality has a way of ultimately forcing confrontations. Herb Stein’s law is true: “If something cannot go on forever, it will stop.”11 Two compelling realities are that the legal system really is broken and must eventually be fixed, and that Americans really are forced to comply with thousands of rules that legislators would not have passed on their own. The Supreme Court might prefer to turn a blind eye to both realities. But systematic civil disobedience and the defense funds can make that hard to do.