The Multiplication of Laws and Lawyers
In the kingdom of the state, law and lawyers are numerous and ubiquitous. And this short text from a much larger excursus on Law (The Story of Law, 1927) is a further elucidation and confirmation of it.
The peculiar situation arising from the fact that the states are held to be foreign as to each other, necessitates a vast amount of legal work in regard to corporations. Since most large businesses in the country are carried on under the corporate form, it follows that a great amount of business is done by corporations in states other than the one in which the corporation is formed. Every state has laws requiring a corporation of another state to take out a license in order to carry on business. In many instances, for business or legal reasons, a corporation is incorporated under the laws of a state where it does no business. As long as the business is done from a home office, it may receive protection as interstate commerce, but as against foreign corporations the state governments are constantly striving to derive a revenue from those foreign corporations. As soon as the large interstate corporation finds it necessary to qualify as a foreign corporation to do business in states other than that in which it is incorporated, it becomes instantly an object of attack, if not of pillage, by the state taxing power. In such a business as insurance, which has been held not to be a form of interstate commerce, the exactions of the different states have been enormous, and they have added much to the cost of insurance. Far more than in any other civilized country is it necessary in the United States on account of the multiplicity of laws, for men engaged in business to have the constant advice of lawyers.
But this is not all. It is a common saying that the people in the United.
States are the most governed people in the world. If it were added that they
are in some respects the most and worst governed people in the world the
statement would be accurately true. It has been found that in the natural
course of events it was necessary to create long ago the Land Department
of the United States government, which had under its special control the
granting of the public lands. The power of the Federal government to grant
patents for inventions and copyrights and trade-marks added another large
department to the government. These departments performed duties that were
more or less judicial in their character, and a large bar was created whose
practice was mainly in these departments. Then a department and board for
the control of the rail-roads added the great number of lawyers who devote
themselves to practising before the Interstate Commerce Commission, which
was specially concerned for years in the task of ruining the railroads. The
slow and just processes of the courts were not found satisfactory in regard
to matters of trade and commerce and the Federal Trade Commission added its
activities. So it has gone on; government board after government board, all
with more or less judicial functions, has been created, always adding to
the business of lawyers.
At last came the income tax amendment and this vast department rapidly outdistanced all competitors in the magnitude of its work for the legal profession. The living having been taxed to the point of possible depletion, the taxing bodies turned to the property left by the dead. Inheritance taxes, added to other exactions, introduced into business the sudden shifts of property values caused by forced sales to cover the inheritance taxes due upon the estates of the deceased.
The state governments were not to be outdone in this work, and much of the activity of the Federal government was duplicated by every sort of state board, until at present a large business is hardly justified in doing the most ordinary act of corporate business without seeking legal advice in order to ascertain whether there is not some regulatory law that bears upon the matter. If these various governmental boards, both Federal and state, would be satisfied by ordinary voracity, the situation would not be so bad, but through the resources of the government printing office, they are enabled to deluge the land with masses of documents highly laudatory of their activities, and pointing out how further revenue can be obtained. They devote no little time to devising methods by which they can increase their own powers and further circumvent the helpless citizen by amending and reamending the law in the way in which the income tax law and the inheritance tax law are constantly made a still more dangerous morass for the man who carries on business or hopes to die leaving some property to his family. Congress and the state legislatures seem perfectly willing to pass any sort of law that any government board asks for. While everyone of substance breathes easier as soon as a legislative body is safely adjourned, there is rarely a session when new burdens have not been imposed upon the responsible public.
This constant flood of legislation is the worst feature of our polity. Laws that regulate minutely the affairs of the citizens are bad enough, but when they are constantly changing, the evil is vastly multiplied. Plato may have had a fantastic idea when he said that children’s games ought to be regulated so that they could not be changed, but his reason was this, that when these children were grown up they would not as citizens be constantly changing the laws. His idea was the direct result of the baleful legislative fecundity of Athens. Zaleucus, the lawgiver of the Epizephyrian Locrians, had the provision that the proposer of a law should appear before the assembly with a rope around his neck, and if the law failed of passage the proposer should be instantly hanged. At Athens if a law turned out badly, any citizen could bring a criminal action against the proposer. But under our representative system of government the responsibility for a law cannot be enforced against anyone. If in this country proposers of bad laws were indictable the number of courts would need to be doubled.
But on the other hand it is to be said that we are living in a country and in times of unheard-of industrial expansion. Many things take place in business that are indefensible. It is no doubt a very good thing that men can easily rise to great wealth, but when some one has done so by methods that resemble those of the bludgeon, the war club, the tomahawk, and the scalping knife there is a great outcry and demand for a law.It is the old cry against the barbarian methods of the Middle Ages. But the laws generally are not well conceived, and they accomplish the embarrassment only of those who would never think of using such methods. Administrative boards are multiplied but they seem to do no good. All we can say is that, in general result, the field of action for all kinds of lawyers, good and bad, honest and dishonest, is constantly increased. The profession of law has assumed far more importance in business life than it ever had before.