Doctors learn about removing stitches. Dentists train to take off those pesky braces. Lawyers, however, spend little of their education studying when a law needs to come off the books. This isn’t a new problem. As noted by Karl Llewellyn in 1935, law students come to think that “for too much law, more law will be the cure.” The foreseeable result is a society in which the law hinders rather than accelerates progress. The overdue, yet inevitable backlash is showing up in a new community. Whether lawyers will join is an open question. Whether they should is less debatable. If lawyers take seriously their role in contributing to general prosperity, then it is time they seriously consider the Abundance Agenda.

Surfaced by Derek Thompson, the Abundance Agenda is a “policy agenda that is focused on solving our national problem of scarcity.” Writing in early 2022, Thompson observed that in addition to the scarcity that undermined the government’s response to COVID (too few masks, too few doctors, and, more generally, too little investment in public health infrastructure), scarcity can also explain some of the nation’s most pressing issues. There’s the housing shortage, the teacher shortage, the semiconductor manufacturing shortage. The list goes on.

Common frustration over a shortage of everything has rallied bipartisan support for the Abundance Agenda. Some YIMBYs in California are on board. The New York Times’s Ezra Klein is a backer, so much so that he is authoring a book with Thompson. Depending on who you ask, Republican members of Congress such as Sen. Todd Young (Ind.) likely embrace Abundance—at least on some policy questions. Folks with influence in the Trump Administration may also be sympathetic. The recently announced Stargate Project—a public-private endeavor that will rapidly build out the nation’s data center infrastructure—aligns with Abundance thinking. Industry support is also prevalent. There’s a lot of overlap between the principles behind Abundance and Marc Andreesen’s “little tech” agenda, for example. Thanks to Klein and Thompson as well as Marshall Kosloff and Steven Teles at Niskanen, adoption of the Agenda seems likely to spread. 

The legal community has the potential to play a major role in implementing the Abundance Agenda. Abundance advocates explain that their goal is not deregulation. They’d welcome a larger government footprint in many areas including but not limited to more spending on R&D, more investment infrastructure, and increased support for renewable energy projects. On the whole, the group acknowledges that many regulations are necessary and even beneficial for societal well-being. “Unblocking” is the Agenda’s real goal. 

In short, unblocking refers to removing regulations that decrease supply. One example of a blocking regulation commonly cited by Abundance folks is the National Environmental Policy Act (NEPA). Research by the Institute for Progress concluded that NEPA review of infrastructure projects “takes 4.5 years and thousands of pages on average to clear.” This review usually turns on consideration of environmental factors, such as anticipated effects on surrounding nature and wildlife. Abundance advocates would back significant NEPA reforms because “we don’t get enough value from NEPA reviews to justify their cost, and NEPA is overwhelmingly used by public interest groups to stop useful infrastructure from being built.” Put differently, if you asked the folks who originally backed NEPA whether they’d be in favor of more renewable energy projects, more affordable housing, and more public transportation, they’d assuredly say yes. Why then, respond Abundance backers, are we not critically analyzing well-intentioned, yet flawed regulations that stand in the way of those goals? 

Lawyers are partially to blame. In my own (admittedly limited) experience as a legal scholar and law professor, I can attest to the fact that despite law school being three years long, very few students will ever learn about laws that outlive their utility or actively undermine the goals of the authors and supporters of the law. Legislation and Regulation, the course that presumably would address such topics, is not required. It’s also not certain that Leg-Reg professors will cover topics like sunset clauses, regulatory sandboxes, and retrospective review. Law students rarely study the lifecycle of laws, from enactment to obsolescence. Those concepts are left for the public policy schools (again, speaking from my own experience). 

I learned about sunset clauses in my Masters of Public Administration program. We analyzed the pros and cons of writing laws with definite end dates or mandatory reauthorizations after a fixed period. That’s also when I came across Utah’s success in allowing many emerging technologies to go effectively unregulated, subject to specific conditions and ongoing study of their effect on consumers. As an Administrative Law professor, sunset clauses and regulatory sandboxes didn’t make the syllabus. I did find 15 minutes or so to cover retrospective review—when agency rules undergo post hoc analysis for their effectiveness—but I doubt that a fraction of one class stuck with students.

The upshot is that lawyers closely study how a bill becomes a law but pay little attention to when a law becomes a barrier. To borrow from Llewellyn again, “We spend most of our class-time playing checkers with pure substantive rules.” Lawyers in a complex society should be learning to play chess. Three changes to legal education can initiate that change: first, mandating that law students take Leg-Reg or administrative law (assuming those courses include coverage of the aforementioned topics); second, including more comparative law in all courses to expose students to alternative legal frameworks and regulatory regimes; and, third, providing students with more meaningful opportunities, such as via pro bono opportunities at legal aid clinics, to see how everyday people interact with the law. 

More law is not always the cure. Unblocking, with increasing frequency, is the necessary answer to increasing supply of the goods and services required for a better life. Lawyers should spend as much time asking how to prevent laws from hindering progress as they do thinking about how best to draft laws. Waiting until after graduation for lawyers to learn the negative ramifications of excess law, extreme regulations, and endless procedure is too late. By that time, more law has become the default answer. 

You may not embrace Abundance but you’ve surely found yourself caught in the “sludge,” as coined by Cass Sunstein, that characterizes much of daily life. Lawyers are to blame for many of the long lines you stand in, long forms you suffer through, and long permitting periods you bemoan. It doesn’t have to be this way. Sludge can be removed. Syllabi can be revised. A more nuanced understanding of the law can become the norm.  

Kevin Frazier is an Adjunct Professor at Delaware Law and an Emerging Technology Scholar affiliated with St. Thomas University College of Law.