The Perennial Problem of Complexity

About this talk

Complaints about the complexity of laws can be traced back many hundreds, if not thousands, of years.    But when people complain about complex laws, what exactly is the problem, and what can we do about it?

In this lecture Justice David Goddard will explore what it means for legislation to be complex in a sense that we should be concerned about, arguing that our primary focus should be on the interfaces through which the law’s ultimate audiences interact with the legislation and become aware of its implications for them.  Mostly, that interface is not the legislation itself.  However for an interface to be effective to reduce complexity the legislation will, usually, need to provide for that interface.   What does that mean for how we design legislation?

Drawing on his recently published book about the different ways in which laws fail to achieve their policy objectives, Justice Goddard will explore how complexity contributes to such failures, and what we can do to reduce avoidable complexity.  The approaches he will discuss include legislating for improved interfaces (in particular, use of digital technology); paying more attention to default outcomes (and their “stickiness”); providing for simplified initial determination processes and iterative decision-making; removing “sludge” that adds to the difficulty and cost of interacting with legislation; and making greater use of adaptive legislation so that over time we can learn about, and improve, the experience of the “users” of our laws and the effectiveness of those laws.  

We cannot eliminate complexity in our written laws.  But with good legislative design and thoughtful use of digital technology, we can significantly reduce the burden of complexity experienced by the people to whom those laws apply.  

About the speaker

Justice David Goddard was appointed as a judge of the New Zealand Court of Appeal in July 2019.  Before his appointment he had a wide-ranging litigation practice, with a focus on appellate litigation.  He was appointed Queen’s Counsel in 2003.

David also had an extensive involvement in law reform in New Zealand and overseas, advising ministers and government agencies, representing New Zealand in bilateral and multilateral negotiations, and drafting legislation and international agreements.  He was the Chair of the Diplomatic Session of the HCCH that adopted the HCCH 2019 Judgments Convention, Vice-President of the Diplomatic Session that adopted the HCCH 2005 Choice of Court Convention, and a member of the drafting committee for that Convention.

David spent the 2018-19 academic year at the New York University Law School as a Senior Global Fellow from Practice and Government, writing a book about the legal design process: Making Laws That Work: How Laws Fail and How We Can Do Better (Hart Publishing, 2022).

David is the chair of the New Zealand judiciary’s Legislation and Law Reform Committee, and of the joint judiciary/Ministry of Justice Information and Digital Governance Committee.  He led development of the Digital Strategy for Courts and Tribunals adopted by the New Zealand judiciary in March 2023.

David studied mathematics, law and French at Victoria University of Wellington before reading law at Oxford as a Rhodes Scholar.

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