Growth of the Law

January 1st, 2022 / By Deborah J. Merritt

How much has the body of legal rules grown over the last fifty years? Daniel Martin Katz, together with colleagues in the United States and Germany, offers some intriguing insights into that question. In a recent paper, Katz and colleagues estimate that the United States Code added about 322,600 new chapters, parts, or sections in just the 22 years stretching from 1998 to 2019. Those additions represent a 63% increase in the number of structural elements in the Code.

Growth in federal regulations was even more aggressive during that period. Chapters, parts, or sections of the Code of Federal Regulations increased from 1.4 million in 1998 to 2.7 million in 2019–an increase of 91%.

If federal law grew this much between 1998 and 2019, how much did it grow in the decades before 1998? It is unlikely that Congress and federal agencies were more active after 1998 than in the decades just before that time. And what about growth of statutes and regulations at the state and local level? Or the growth of legal rules generated by judicial decisions? How much more “law” is there today than there was 50 years ago?

I offer here a small complement to the research of Katz and others: a description of the growth in federal constitutional rules governing criminal procedure. At the end, I offer a few preliminary thoughts about why the substantial growth of legal rules matters.

Method

My method is embarrassingly humble compared to the sophisticated data analytics used by Katz and his colleagues. But measuring growth in the federal constitutional law of criminal procedure is much simpler than assessing growth in the United States Code or Code of Federal Regulations. Scholars need sophisticated methods to measure the latter growth; for my project, a much simpler method sufficed.

The language in the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution has not changed during the last 50 years, so growth in this field consists of judicial interpretations. I limited my study to decisions rendered by the Supreme Court of the United States, which (in these fields) bind all state and federal actors. Decisions by lower courts may signal changes in the law, but those changes do not become nationally binding until accepted by the High Court.

Conversely, I considered every SCOTUS decision as a change of some magnitude in the law. The Supreme Court does not accept cases that merely apply existing law to new facts. Instead, the Court grants certiorari only in cases that raise a new legal issue and/or represent a conflict among the lower courts. I decided, therefore, to count SCOTUS decisions explicating the constitutional law of criminal procedure through 1971–and then to contrast that number with the number of decisions in the same field rendered in 1972 or later.

As a source, I used a recent outline of the federal constitutional law of criminal procedure, Criminal Procedure, by Paul Marcus and Melanie D. Wilson (20th ed. 2021). I chose that text because it offers a concise, yet complete, overview of the field; includes significant historical discussion; and uses a format that made counting SCOTUS decisions relatively easy.

My method, like most estimates, is imprecise. Marcus and Wilson might have omitted some key decisions from their outline–although based on my knowledge of the field, the outline is quite complete. Some older decisions may have been superseded by more recent citations, which would lead to undercounting of decisions from before 1972. Marcus and Wilson’s frequent discussion of historical context, however, helped guard against this. Some decisions, finally, may have been double counted if they appeared in more than one discussion. One reason I chose the Marcus and Wilson text, however, was their diligent use of “supra” to cite cases that had been discussed previously. Overall, the estimates below offer a reasonable picture of how the federal constitutional law of criminal procedure has expanded during the last 50 years.

Results

I counted 160 pre-1972 SCOTUS decisions on the federal constitutional law of criminal procedure, and 692 of those decisions from 1972 through 2021. That represents an enormous expansion of the constitutional rules in this field: More than 430%. And, since most of the pre-1972 rules still bind the courts, the corpus of Supreme Court law in this field has grown from about 160 decisions to about 852 decisions. Lawyers studying or practicing criminal law today must master more than five times as many constitutional rules and nuances as their forebears did in 1971.

How did this growth come about? Some contemporary fields of constitutional jurisprudence emerged only after 1971. The Supreme Court, for example, first held a death penalty statute unconstitutional in Furman v. Georgia (1972). The Court’s increasingly detailed exposition of when and how the death penalty may be imposed all occurred after that year.

Similarly, much of the constitutional law governing collateral attacks on criminal convictions developed after 1971. The Warren Court suggested a broad role for these attacks in Fay v. Noia (1963), but subsequent Courts have cut back on the use of habeas corpus through dozens of decisions creating a complex set of rules limiting these challenges.

Explosive growth, however, has occurred even in fields that were well established by 1971. By that year, the Supreme Court had laid the foundation for the modern law of search and seizure, holding that the Fourth Amendment protects reasonable expectations of privacy (Katz v. United States 1967); that an arrest must be based on probable cause (Beck v. Ohio 1964); that the protections provided by the Fourth Amendment bind the states (Wolf v. Colorado 1949); and that the exclusionary rule likewise applies to the states (Mapp v. Ohio 1961). The Court had also recognized the various exceptions to the warrant requirement that it still permits today. In all, Marcus and Wilson cite 36 decisions delimiting the constitutional law of search and seizure through the end of 1971.

Since that time, however, the Court has added at least 198 new opinions–an increase of 550%. Those opinions have generated an extraordinarily detailed law of the Fourth Amendment. Before 1972, for example, the Court had done little to specify what expectations of privacy are reasonable enough to elicit Fourth Amendment protection. Now we know that individuals lack a reasonable expectation of privacy in their handwriting (United States v. Mara 1973); the sound of their voices (United States v. Dionisio 1973); telephone numbers they dial (Smith v. Maryland 1979); their bank records (Fisher v. United States 1976); the color and composition of the paint on their cars (Cardwell v. Lewis 1974); odors that a dog can detect from their luggage (United States v. Place 1983) or automobiles (Illinois v. Cabales 2005); the contents of their privately owned fields (Oliver v. United States 1984) and barns (United States v. Dunn 1987); objects on their private property that are visible from a low-flying helicopter (Florida v. Riley 1989) or through high-powered cameras (Dow Chemical Co. v. United States 1986); and any garbage they leave by the curb (California v. Greenwood 1988). The Court has approved warrantless searches in these and other areas.

On the other hand, the Court has recognized a reasonable expectation of privacy (or other Fourth Amendment protection) for the feel of an individual’s luggage (Bond. v. United States 2014); the movement of a car on public highways when tracked by a GPS tracking device (United States v. Jones 2012); the location of a cell phone (Carpenter v. United States 2018); odors a dog might detect from the front porch of a home (Florida v. Jardines 2013); the heat emitted from a home when detected by a thermal imager (Kyllo v. United States 2001); and data stored on a cell phone (Riley v. California 2014).

These post-1971 decisions do not represent obvious applications of Katz and other existing Fourth Amendment principles. Indeed, many of these opinions were issued by a divided Court. Instead, these and other decisions represent a detailed codification of the Fourth Amendment, with specific rules that criminal law practitioners must know or be able to find.

Similar growth has occurred in other areas of constitutional criminal procedure, including the legal principles governing the Sixth Amendment right to counsel; the contours of the Fifth Amendment right against self-incrimination; and the prosecution’s obligation to disclose information to the defense. The constitutional law of criminal procedure is much more complex today than it was fifty years ago.

Implications

Why does growth in the law matter, whether with repect to the constitutional rules of criminal procedure or in any other area? For the individuals and organizations seeking to comply with the law, growth may promote clarity. Police today know that they may not squeeze luggage to search for drugs, but may use a dog to sniff for that contraband. Similarly, homeowners know that the police may photograph their property from low-flying helicopters, but may not use thermal imaging devices to probe further.

On the other hand, this clarity increases complexity. Non-lawyers today have little hope of understanding the scope of their constitutional protections, and even lawyers struggle to keep up with all of the Court’s rulings. Criminal law practice has splintered into specialties, as lawyers strive to master these complex fields. A lawyer specializing in white-collar defense would have to bone up on the Fourth Amendment rules governing drunk driving cases to defend the latter type of case. And a lawyer who handles plea bargains and trials would have to master a new field before handling a collateral attack on a conviction.

As a law professor, I am particularly interested in how this growth in the law affects the ways in which we teach, learn, and test legal knowledge. In 1971, a professor of criminal procedure could lead students through all of the Supreme Court’s major opinions. The class could study those opinions in depth, studying the evolution of legal principles and their possible application to novel situations.

Today, we try to do the same, but there is so much more law to cover. How does one trace the evolution of principles through so many cases? And, although there are always novel situations to discuss, there is so much law to learn as a predicate for those discussions.

Equally important, our traditional ways of teaching omit some of the most valuable tools we can impart to today’s students. No one can remember the details of a criminal procedure class for very long, so how do practicing attorneys organize, remember, access, or find that information? Doctrinal professors have started teaching students about reference books and research tools in their field, but we need to do more of that. Similarly, we should help students develop the type of “cheat sheets” that practicing lawyers use to remember key points and assess cases. Today, those intellectual skills are as important as case analysis and synthesis.

And what about testing? Should exams require students to remember fine details? Or to discuss fundamental principles? Should exams be open or closed book? Most of my law school exams were open book during the 1970’s, a practice that seems even more appropriate today given the growth of the law since that time. Yet the trend in law school exams seems to have moved in the opposite direction.

How, finally, has growth of law affected the bar exam? The Multistate Bar Exam debuted in February of 1972, almost exactly 50 years ago. At that time, the criminal procedure portion of the exam would have been limited to testing the fundamental principles outlined in 162 or so Supreme Court opinions. That’s a healthy swath of law, especially for a closed book test covering numerous other subjects, but the field today is more than five times larger.

Does lawyering competence require memorizing the detailed rules that characterize much of the law today? That is both impractical and counterproductive. Today’s lawyers, more than ever before, need to know how to find rules–not recall them. Our contemporary definition of lawyering competence should focus on knowledge of threshold concepts (much like the foundational principles that existed in 1971) and the skills needed to implement those concepts and serve clients.

NCBE is designing a “Next Generation” of the bar exam that it suggests will test doctrinal rules “less broadly and deeply within the subjects covered.” At the same time, the new exam will place “greater emphasis . . . on assessment of lawyering skills.” If implemented, those commitments will serve our profession well: They recognize the enormous growth of legal rules over the last fifty years, as well as the importance of lawyering skills in managing that growth and serving clients effectively.

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