Commentary Magazine


The Death of Common Sense, by Philip K. Howard

Wrongs from Rights

The Death of Common Sense: How Law is Suffocating America.
by Philip K. Howard.
Random House. 202 pp. $18.00.

Until recently, the federal government purchased hammers according to a 33-page specification sheet; its Occupational Health and Safety Administration (OSHA) required that bricks be labeled a hazardous substance in the workplace. In New York City, which frequently provides the limiting case for such stories, it takes up to two years and over 209 steps to purchase many capital items. The city’s attempt to provide much-needed public toilets was derailed because the experimental Parisian-style kiosks could not be made accessible to wheelchairs as required by law. And city rules forbid bus drivers from dislodging coins accidentally wedged in fare boxes, lest the drivers fall prey to the blandishments of a stray quarter.

All these stories—and more—appear in Philip Howard’s disquieting book. Howard, a practicing lawyer active in New York City public life for more than twenty years, has accumulated a remarkable litany of governmental folly, bureaucratic ineptitude, and individual foolishness. The Death of Common Sense is a lawyer’s plain-language brief about the failure of American law, and it has clearly struck a responsive chord, remaining high on the best-seller lists for weeks on end.

The first part of Howard’s book is devoted to America’s effort to achieve a risk-free society by eliminating all conceivable dangers from the home, the highway, the environment, the workplace—even from government itself. The second part chronicles our efforts to neutralize disparities of birth and fortune. In the former, Howard takes on overregulation; in the latter, he tackles the evil twin of the regulatory state, the so-called rights revolution.

According to Howard, in the 1960′s many academics and policymakers became convinced that the road to a more efficient and equitable society would be paved with more detailed laws. If the laws were clear, they argued, people could obey them more easily; and the more precisely the laws were elaborated, the clearer they would be.

The results of this approach, however, have been exactly the opposite. Law is now too detailed for anyone to know, much less to obey, creating ample room for the very abuses that the increased detail was intended to prevent. Moreover, by burying both government and industry in paperwork, the government’s forest of laws and regulations has created enormous transaction costs and imposed a drag on efficiency—in plain language, nothing gets done and it costs a lot of money not to do it.

But as I noted, the proliferation of law is only half of Howard’s story; the proliferation of rights fills out the rest. In a particularly telling section, Howard shows how the laudable goals of the civil-rights movement were hijacked to create a new discourse of rights.

Until recently, Howard explains, rights were understood as protections against governmental intrusion into people’s lives. This shield, however, has turned somehow into a sword. Individuals and groups use the language of rights to demand benefits from government and society. Now, every American enjoys the right to be free from discrimination based upon any differentiating characteristic; and as a community, we all vie with each other for the prized status of victim.

Nowhere is this more obvious than in the workplace. Howard cites a remarkable statistic: 43 million Americans fall under the anti-discrimination protections offered by the Americans with Disabilities Act. By my count, that means approximately one in five Americans is qualified to sign up as disabled in some way. The rest, courtesy of other federal statutes, can claim discrimination based upon race, sex, religion, or—if over forty—age. The few who still fail to qualify can always sue their employers for reverse discrimination.

Is it any wonder that relations in the workplace are stifled, and our public dialogue focuses not on what we have in common but on what sets us apart?

_____________

 

Howard draws a compelling picture of our national problems. This book’s undeniable emotive force derives from his overwhelming compilation of anecdotal evidence. Unfortunately, so do its limitations. Already, press reports have surfaced to debunk one or another of his stories. But even if they were all true, it is still the case that he avoids grappling with some of the really hard issues they raise, not to mention the really hard solutions they may require.

Consider, for example, Howard’s discussion of federal laws mandating publicly-funded education for children with disabilities. On the one hand, he points to the high cost of these special-education mandates, exemplified by parents who use the law to force local school boards to send disabled children to expensive private schools—in one case, at a cost to taxpayers of $200,000 a year. On the other hand, he recounts the problems associated with main-streaming handicapped students into ordinary public-school classes, including higher academic-failure rates for the ostensible beneficiaries of such programs.

If special education is too costly, and mainstreaming too disruptive, what would Howard have us do? Should we abolish the federal mandate and consign the disabled to the private resources of their families? No, says Howard: this would signal a return to the bad old days when the handicapped were closeted away. Instead, his answer is to grant greater flexibility to officials so that they may exercise common sense in the allocation of resources. But are these not the same administrators who, according to Howard, have given us 33 pages of rules on what to look for in a hammer? Quis custodiet ipsos custodes? Who will guard these guardians? It is a question Howard fails to treat.

Howard’s inclination to sidestep difficult issues creates other odd gaps as well. Who, for instance, is responsible for the mess he so eloquently depicts? Throughout, Howard writes about “law” as if it were a person, and a rather energetic one at that. Thus, law tries “to make sure nothing goes wrong”; law “doesn’t respect the idiosyncrasy of human accomplishment”; law “notices” people who are out of step with its “approved methods.”

In Howard’s view, “law” seems to have acquired all these nasty habits from consorting with “rationalism,” by which he refers to the Enlightenment belief that a perfect government could be modeled rather like a perfect machine. It is “rationalism,” he says, that has given us the vain hope of drafting “self-executing” laws to cover every contingency. But that same Enlightenment rationalism also yielded the United States Constitution, a document that has managed to keep us tolerably well-governed for upward of 200 years. And rationalism was also rattling around the American intellectual landscape long before OSHA started declaring that bricks are hazardous to our health.

Howard does, to be sure, offer up a more recent villain: Charles Reich, formerly of Yale University Law School. Most notorious for his 1970 book, The Greening of America, Reich is also the author of a 1964 article, “The New Property,” which Howard credits with setting off the rights revolution.

In order to protect individual liberties against government expansion, Reich argued that governmental largesse—welfare payments, broadcasting licenses, teaching positions at public universities, and the like—should be treated as a form of property. Then, government could not act arbitrarily to deprive recipients of that largesse without constitutional “due process” of law. According to Howard, under the direct influence of Reich’s ideas largesse quickly turned into “entitlement,” and the courts got into the business of enforcing a host of new rights on behalf of disgruntled litigants.

Howard’s discussion of Reich’s article highlights the most striking omission of all in this book: nowhere does he consider the rather obvious fact that America is not only generating more regulations but regulating more things. Worse: in a fundamental paradox, Howard wants to continue this trend. Despite his harsh indictment of the regulatory state and the rights revolution, Howard still wants government to protect workers, watch over the environment, provide education for all children regardless of disability, house the poor, tend to the sick, care for the aged, and make life more comfortable and fairer for everyone. He just wants it to do all these things better than it now does.

Howard appears to believe that with the right laws in place—laws which give more, rather than less, discretion to bureaucrats—government will be restored to competence, and will perform all of its many functions efficiently and well. His vision is thus at once profoundly nostalgic and dangerously activist. The Death of Common Sense is eloquent when describing disease; but it not only fails to offer a proper diagnosis, it prescribes a lethal cure.

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