Introduction

Politicians and pundits seem inclined to say two things about law: there is too much, and there is not enough. Too much, because law is “strangling” the economy (Investor’s Business Daily, 2015), because “a flood” of lawsuits is sweeping through society (Brovard, 2015; Kilpatrick, 1984), because small business is “drowning” in regulation (Fox News, 2011). The metaphors are often aquatic, suggesting that like water, law is displacing the oxygen we need for our social institutions—profits for business, problem solving for governments, peaceful and orderly life for our communities. Law, this perspective suggests, is enveloping us, choking the life out of our workplaces, institutions and communities, and displacing traditional virtues of self-reliance with a culture of complaint (Hughes, 1993). Something must be done to restore “common sense” (Howard, 1994).