The Common Flaw: Needless Complexity in the Courts and 50 Ways To Reduce It

Connecticut complex-litigation judge Moukawsher’s book begins and ends with a critique of the U.S. Supreme Court Dobbs decision, which handed states the power to ban abortion. The author asserts that the Dobbs ruling relies on legal formalism and that this elevation of form over substance has taken over the legal profession. The book calls for a return to pragmatism and common sense. It provides a list of 50 proposed changes to legal procedure, such as forcing parties in a lawsuit to agree to most facts, allowing trials to be conducted online, simplifying legal instructions, and ending hourly billing for attorneys. What the book fails to address is that while court procedures can be simplified, laws are drafted by legislatures, with complexity added by interested parties. Administrative regulations to interpret the laws come from agencies with financial repercussions and disputes over the meaning of a single word. Philip K. Howard’s The Death of Common Sense and even Charles Dickens’s Bleak House make similar points. The advent of artificial intelligence may make a difference, but this isn’t addressed.