Americans often complain that our laws are too complicated, with many statutes running to dozens or even hundreds of pages of dense language. When the late Herman Cain was briefly the frontrunner for the 2012 Republican presidential nomination, he drew sustained applause by vowing to veto any bill longer than three pages.
More serious political figures in both parties realize that complex issues – such as health care, taxes and national security – must be addressed in detail. But it is still reasonable to ask why so many statutes appear to be so long-winded.
It is certainly true that legislators tend toward verbosity, but there are often good reasons for laws to be as long as they are. President Obama’s Affordable Care Act, affecting nearly one-sixth of the U.S. economy, famously runs to about 900 pages, while President George W. Bush’s USA Patriot Act, passed in the aftermath of 9/11, clocks in at 132 pages. A more recent example is the 81-page Bipartisan Safer Communities Act, just signed by President Biden, which, among other things, closes the notorious “boyfriend loophole” in the law limiting gun possession by convicted domestic abusers.
As originally written, a federal law prohibited access to firearms by a person who had been “convicted of a misdemeanor crime of domestic violence,” but only if they were a “current or former spouse, parent, or guardian of the victim [or] a person who is cohabiting with or has cohabited with the victim,” or with whom they have a child. That left a glaring exception for certain domestic abusers who had never married, parented with or lived with their victims. (A different law makes it illegal for any convicted felon to possess a firearm.) Although expanding the law might seem like an easy fix, it turns out to be not quite so simple.
Marriage, parenthood and cohabitation all have plain legal meanings, but less determinate relationships can be just as abusive and therefore in need of protection. The drafters of the Bipartisan Safer Communities Act settled upon “current or recent former dating relationship” as the operative term to plug the loophole, but that was only the beginning. After all, what constitutes a “dating relationship”?
If the statute left that unanswered, the result would be chaotic. There are over 1,500 federal district judges and magistrates in the U.S., and each one could potentially have a different conception of “dating relationship,” leading to the inconsistent application of a law that carries criminal penalties. Just last week, the U.S. Supreme Court issued a sweeping decision expanding Second Amendment rights, so a law limiting gun ownership must be written with special clarity.
Consequently, closing the boyfriend loophole required two pages of definitions, explanations and limitations. A dating relationship is defined as “a continuing serious relationship of a romantic or intimate nature,” to be determined by considering factors such as “the length of the relationship,” the “nature of the relationship” and the “frequency and type of interaction between the individuals.” Importantly, the statute provides that a “casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship.” Moreover, the provision is not retroactive, and it does not apply to offenses that have been pardoned or expunged.
The definitions do leave open questions – how recent is “recent”? how intimate is “intimate”? – but at least they provide some guidance for the courts. (The original statute, before the addition of “dating relationship,” includes another four pages defining “firearm” and related terms, which is necessary if the government is going to prosecute somebody for possessing one.)
Eliminating the boyfriend loophole is only one part of the Bipartisan Safer Communities Act. Some of its more extensive provisions include funding for states to establish crisis intervention orders and violence prevention initiatives, additions to the Instant Criminal Background Check System, improved classification of federally licensed firearms dealers, access to juvenile court records for firearms purchasers under 21, new penalties for “straw purchasers,” incentives for state “red flag” laws, funding for 11 different community-based mental health services and funding for improved school safety measures.
Because they were the product of intense negotiations between Republicans and Democrats, each of these provisions had to be set out with great specificity, describing the programs, goals and limitations for funding, penalties for violations, lines of authority, means of implementation and, of course, definitions for dozens of terms. It is somewhat encouraging that the Bipartisan Safer Communities Act could encompass so many disparate and controversial subjects with such relative economy in so few pages.
It can be frustrating even for lawyers that statutes are so long and complex. But shorter statutes would inevitably result in additional gaps, ambiguities and unintended consequences — such as the one that led to the boyfriend loophole in the first place.
Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”