The Death of Common Sense: How Law Is Suffocating America

The Death of Common Sense: How Law Is Suffocating America

by Philip K. Howard


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“We need a new idea of how to govern. The current system is broken. Law is supposed to be a framework for humans to make choices, not the replacement for free choice.” So notes Philip K. Howard in the new Afterword to his explosive manifesto The Death of Common Sense. Here Howard offers nothing less than a fresh, lucid, practical operating system for modern democracy. America is drowning—in law, lawsuits, and nearly endless red tape. Before acting or making a decision, we often abandon our best instincts. We pause, we worry, we equivocate, and then we divert our energy into trying to protect ourselves. Filled with one too many examples of bureaucratic overreach, The Death of Common Sense demonstrates how we—and our country—can at last get back on track.

Product Details

ISBN-13: 9780812982749
Publisher: Random House Publishing Group
Publication date: 05/03/2011
Pages: 256
Sales rank: 201,850
Product dimensions: 5.20(w) x 8.10(h) x 0.60(d)

About the Author

Philip K. Howard is a lawyer and the author of The Death of Common Sense. He has advised leaders of both parties on legal and regulatory reform. Howard grew up in small towns in the South and is the son of a Presbyterian minister. He is a managing partner of an international law firm and lives in Manhattan with his wife. They have four children.

Read an Excerpt







In the winter of 1988, nuns of the Missionaries of Charity were walking through the snow in the South Bronx in their saris and sandals to look for an abandoned building that they might convert into a homeless shelter. Mother Teresa, the Nobel Prize winner and head of the order, had agreed on the plan with Mayor Ed Koch after visiting him in the hospital several years earlier. The nuns came to two fire-gutted buildings on 148th Street and, finding a Madonna among the rubble, thought that perhaps providence itself had ordained the mission. New York City offered the abandoned buildings at one dollar each, and the Missionaries of Charity set aside $500,000 for the reconstruction. The nuns developed a plan to provide temporary care for sixty-four homeless men in a communal setting that included a dining room and kitchen on the first floor, a lounge on the second floor, and small dormitory rooms on the third and fourth floors. The only unusual thing about the plan was that Missionaries of Charity, in addition to their vow of poverty, avoid the routine use of modern conveniences. There would be no dishwashers or other appliances; laundry would be done by hand. For New York City, the proposed homeless facility would be (literally) a godsend.

Although the city owned the buildings, no official had the authority to transfer them except through an extensive bureaucratic process. For a year and a half the nuns, wanting only to live a life of ascetic service, found themselves instead traveling in their sandals from hearing room to hearing room, presenting the details of the project and then discussing the details again at two higher levels of city government. In September 1989 the city finally approved the plan and the Missionaries of Charity began repairing the fire damage.

Providence, however, was no match for law. New York's building code, they were told after almost two years, requires an elevator in every new or renovated multiple-story building. The Missionaries of Charity explained that because of their beliefs they would never use the elevator, which also would add upward of $100,000 to the cost. The nuns were told the law could not be waived even if an elevator didn't make sense.

Mother Teresa gave up. She didn't want to devote that much extra money to something that wouldn't really help the poor: According to her representative, "The Sisters felt they could use the money much more usefully for soup and sandwiches." In a polite letter to the city expressing their regrets, the Missionaries of Charity noted that the episode "served to educate us about the law and its many complexities."

Law is generally thought of in its Perry Mason sense, but courtroom dramas do not touch most of our lives. The law of government, on the other hand, controls almost every activity of common interest-fixing the pothole in front of the house, running public schools, regulating day care centers, controlling behavior in the workplace, cleaning up the environment, and deciding whether Mother Teresa gets a building permit.

No person decided to spite Mother Teresa. It was the law. And what it required offends common sense. There are probably 1 million buildings in New York without elevators. Homeless people would love to live in almost any one of these. Walking up a flight of stairs is not, after all, the greatest problem in their lives. But the law, aspiring to the perfect housing abode, has accumulated so many good ideas that the only type of new housing that is permitted must satisfy middle- class standards. A law that dictates either a model home or no home is probably fine for some, but what about those trying to provide housing for the poor?

Even serene suburban landscapes are stamped out of law's mold. Have you ever noticed how new housing subdivisions have an open, almost empty look? It isn't just the absence of trees. The streets are fifty feet wide, about 50 percent wider than streets were a few decades ago. Why? Because the traffic engineers who wrote the standard code after World War II believed that streets should be wide enough to allow two fire engines going in opposite directions to pass each other at 50 miles an hour. Andres Duany, a Miami architect who specializes in designing new towns, maintains that the traffic engineers have thereby depleted human interaction and fellowship from modern America. He calls them the "devils."

The two-fire-engine rule did not evolve because it was sensible or by amazing coincidence of judgment by town boards around the country. It was part of a model code that was accepted as "modern," and cities and towns fell before it like dominoes. Once the words were designated as law, there was no longer a need to think about it. Almost no one who builds new houses knows why the requirement is there. Nor do bureaucrats. They abide by it because they have to. It's the law.

John Marshall was an early chief justice of the Supreme Court, so it is fitting that the John Marshall Elementary School on Long Island should be perhaps the first primary school in America to recognize the legal hazards involved in children's art. Children's art, as we know, is usually made on paper. At the John Marshall Elementary School, as in every other school in America, children's art is tacked to the wall. Words and letters are also tacked up for the children to see. The law in New York, you may be surprised to learn, does not permit this, or at least not much of it. The state fire code actually addresses the public hazard explicitly: "[S]tudent art displays... [must be] kept at least two feet from ceilings, 10 feet from exits [which means any door] and...not exceed 20% of the wall surface."

The issue came up during a Halloween party in 1993. The local fire chief was there dressed as Officer MacGruff, "the

police dog who promotes safety and drug awareness." As a diligent officer of the law, he noticed all the Halloween decorations and student art that had been attached to the walls. Within days, Officer MacGruff had done his duty. The school, according to one observer, now looked "about as inviting as a bomb shelter." All the art was gone. The school superintendent, having been accused of permitting a legal violation, suggested that he was aware of the law all along but had used a rule of thumb "on how much to decorate." Liz Skinner, a first grade teacher, was confused: "The essence of primary education is that children show pride in their work." No one had ever heard of fire caused by children's art, but there was a law just to make sure. So the art came down.

Amoco Oil Company needs no Officer MacGruff to tell it the law. It has regiments of lawyers. When the Environmental Protection Agency (EPA), after years of hearings, passed a rule requiring that specific equipment be put in waste pipes to filter benzene, a harmful pollutant, Amoco complied and spent $31 million at its Yorktown, Virginia, refinery. In 1989 a chance encounter on an airplane between James Lounsbury of EPA and Debora Sparks of Amoco led to a discussion about the frustrations and inadequacies of environmental law. One thing led to another and, with some trepidation, Amoco let a team from EPA into its Yorktown plant to see how the environmental rules, written in windowless rooms in Washington piled high with scientific evidence and legal briefs, actually worked in practice.

EPA found that its precisely drawn regulation almost totally missed the pollution. The Amoco refinery was emitting significant amounts of benzene, but nowhere near the waste pipe. The pollution was at the loading docks, where gasoline is pumped into barges. Just as fumes escape when you use an old-style nozzle when filling up your car at the gas station, large quantities of benzene were escaping as Amoco pumped several hundred million gallons of gasoline every year into barges. Once EPA and Amoco officials actually stood on the dock together and realized the problem, the solution was easy and relatively inexpensive. Meanwhile, pursuant to the rigid dictates of a thirty-five-page rule that many government experts had spent years fine-tuning, Amoco had spent $31 million to capture an insignificant amount of benzene at the waste pipe. The rule was almost perfect in its failure: It maximized the cost to Amoco while minimizing the benefit to the public.

The Amoco incident brought to the surface a long-simmering suspicion that, in the words of EPA administrator Carol Browner, there are "really serious problems" with environmental regulation in this country. Environmental laws and rules, now seventeen volumes of fine print, often seem to miss the mark or prove counterproductive. Under one requirement, before industrial land with any toxic waste can be used, it must be cleaned up to almost perfect purity. It sounds great, but the effect is to drive industry out to virgin fields, where it encounters no such costs. Instead of cleaning up one dirty lot, the strict law creates a second dirty lot. Then, of course, jobs are moved away from cities, to places that workers can only reach by driving long distances, which causes yet more pollution. A final irony is that whoever cleaned the polluted land would often be required to incinerate it, literally burning tons of dirt, a process that itself generates significant pollution. Environmental laws have accomplished much, but not because the laws were generally sensible. Spending a trillion dollars in the last twenty years was bound to clean some things up, however inefficiently.

Big government is the usual suspect for these failures: If only government got out of our hair, many think, everything would work fine. But dreaming of an agrarian republic is not likely to help much. No one I know wants to eliminate environmental protection. Fire codes are a good idea; we wouldn't want the house next door built of kindling. The more important question is not why government is so big- we know in our hearts that any reduction would only occur at the edges-but why, with a few exceptions, it fails in even its simplest tasks. Government has imposed fire codes for centuries, but only our age has succeeded in barring children's art from school walls.

Politicians spend their lives apologizing for government. They all promise to fix it, but the slogans are so tired and the performance so dismal that the overall effect is more like propaganda. "A More Responsive Government" and "A New Age" are typical recent campaign slogans. Everyone wants to help. Universities and think tanks frequently put out excellent studies and ideas that Congress listens to with interest but rarely acts on. I always liked the idea of Robert Litan and William Nordhaus for a "regulatory budget": No law could be passed without a budget detailing its actual cost to society. David Osborne's and Ted Gaebler's Reinventing Government is filled with good ideas about government management, and Vice- President Al Gore and Massachusetts governor Bill Weld have picked up on them to try to improve government services. In the wake of the Amoco episode, EPA administrator Browner has suggested that Congress needs to give agencies greater leeway; another expert recently wrote a book arguing more or less the opposite, that Congress has to exercise more control over inept bureaucracies.

Most of these efforts seem to be bumping up against a larger problem. So far in my adult life nothing significant seems to have changed, except that government has become increasingly distant. "The characteristic complaint of our time seems to be not that government provides no reasons," said former justice William Brennan, "but that its reasons often seem remote from human beings who must live with the consequences." Government acts like some extraterrestrial power, not an institution that exists to serve us. Its actions have an arbitrary quality: It almost never deals with real-life problems in a way that reflects an understanding of the situation.

Most people don't think about the connection between government and how law works. Government can't do anything except as law allows. We know Congress passes laws and authorizes bureaucracies to pass rules and regulations, but we focus mainly on what we want the law to do. Only a few specialists within the Beltway question how the laws and rules are implemented. And while these specialists debate numerous

issues-for example, whether it is Congress or agencies that should establish the details of implementation-the one question they apparently almost never raise is whether the rules should be detailed.

Making rules as precise as possible has become almost a religious tenet. "Only precise, specific guidelines," said Herbert Kaufman, of the Brookings Institution, in 1977, "can assure common treatment of like cases." Otherwise, he said, "programs lose all consistency." As nearly as possible, another scholar wrote, legal rules should be "self-executing" and "aim toward solutions that can be carried into effect without discretionary administration." In 1970, during a lawmaking surge that began with Lyndon Johnson's Great Society, federal appeals judge J. Skelly Wright attacked the idea of administrators having freedom to make decisions as the "soft underbelly of the American legal system" and called on "all branches of government to join in the fight against discretion" by passing more rules: "An interlocking network of rules, laid out in advance, can serve as a bulwark which strengthens the agency and prevents co- option by the forces which it is attempting to regulate." Professor Kenneth Davis, the author of perhaps the most famous administrative law text, asserted that "[a]dministrative rule-making of the greatest inventions of modern government." Through detailed rules, regulation would be made certain.

Certainty, we seem to think, is important to law. Of course it is, you are probably muttering under your breath. It is, after all, the law. But look up at what we've built: a legal colossus unprecedented in the history of civilization, with legal dictates numbering in the millions of words and growing larger every day. Our regulatory system has become an instruction manual. It tells us and bureaucrats exactly what to do and how to do it. Detailed rule after detailed rule addresses every eventuality, or at least every situation lawmakers and bureaucrats can think of. Is it a coincidence that almost every encounter with government is an exercise in frustration?

This system is not some constitutional mandate (although most people treat it with that kind of reverence) but a comparatively recent invention. Only three decades ago, in the 1960s, government puttered along without detailed rules to meet every eventuality. Forest rangers, as Al Gore has noted, could carry the list of rules in their shirt pockets. They did just fine armed with a pamphlet of rules and their own common sense. Now they have to consult several volumes of fine print.

It is not hard to imagine a world in which New York City could easily accommodate the Missionaries of Charity in their preference not to use elevators. No spasms of fear would overtake most principals or fire marshals called upon to take the risk, if it can be called such, of having children's art on the walls. One can even imagine that Amoco, instead of dutifully (and at great expense) trying to comply with thousands of pages of awkward legal requirements, might prefer to sit down with environmental regulators and negotiate a pollution- control plan.

But that is not the way we have constructed our modern legal system. We seem to have achieved the worst of both worlds: a system of regulation that goes too far while it also does too little.

This paradox is explained by the absence of the one indispensable ingredient of any successful human endeavor: use of judgment. In the decades since World War II, we have constructed a system of regulatory law that basically outlaws common sense. Modern law, in an effort to be "self-executing," has shut out our humanity.

The motives were logical enough: Specific legal mandates would keep government in close check and provide crisp guidelines for private citizens. But it doesn't work. Human activity can't be regulated without judgment by humans.

Blinded by Certainty

Table of Contents

IThe Death of Common Sense1
IIThe Buck Never Stops55
IIIA Nation of Enemies111
IVReleasing Ourselves169
Author's Note on Sources193

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Death of Common Sense 4 out of 5 based on 0 ratings. 8 reviews.
Tenor62 More than 1 year ago
This book should be required reading for all elected officials. Voters will get good insight into the process of government.
melydia on LibraryThing More than 1 year ago
This is not a good bedtime read. It's frankly aggravating, but I knew that coming in. This is, more or less, 287 pages of stating the obvious, but in ways that continue to amaze and infuriate anew. In short, there are too many laws, and more specifically, too many highly detailed universal regulations that don't actually apply to anything in the real world. It was a little upsetting how this book reminded me of all the things I don't like about my job: the idiotic paperwork and endless mandatory procedure that goes along with basically everything. This book simply gave me more reasons to roll my eyes. Sure, I didn't quite see eye to eye with the author on everything - I am not quite as enamoured of the New Deal as he, for instance - but he makes enough valid points to give me plenty of food for (frustrating) thought. There is, luckily, a marginal amount of hope offered in the last chapter. I think the author's purpose here was mostly to point out the inanity of the current climate, to show us just how far down the slope we've slid. I doubt we are quite as close to the authoritarian, death-of-democracy dystopia as he implies, but there are unquestionably problems with the way things are being done. This is a book more people need to read, especially those who work as bureaucrats and special-interest advocates.
keylawk on LibraryThing More than 1 year ago
The author is a practicing corporate lawyer. His research on legal regulations across a broad horizon finds that the detailed volume of law is un-read, expensive, and often defeats the stated purposes: "We seem to have achieved the worst of both worlds: a system of regulation that goes too far while it also does too little." [11]Without laying blame upon any particular individual or faction, the paradox is explained by the absence of the one indispensable ingredient of any successful human endeavor: use of judgment.Noting that detailed laws are designed to reduce arbitrary human discretion, but they increase bureaucratic red tape. The rules interfere with common sense, make personal responsibility too remote, and have taken away citizens' power to make decisions--the core principle of freedom."We need to fundamentally change the rules." Make personal responsibility the law of the land and the goal of the law.
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