Customer Reviews

The Death of Common Sense: How Law is Suffocating America

5 star:		(28)
4 star:		(22)
3 star:		(7)
2 star:		(3)
1 star:		(4)

 

 

Philip Howard's insights help us understand why government appears arbitrary, almost never able to deal with real-life problems in a way which reflects an understanding of the situation. Peppered with pointed anecdotes about absurd regulatory inflexibility and the lack of the use of judgement, Howard's book reveals that we have concocted a system of regulation that "goes too far while it does too little."

In the decades since WWII, specific legal mandates designed to keep government in check have proliferated. The result is not better government, but more and poorer government. In a free society, we are supposed to be free to do what we want unless it is prohibited. But highly detailed regulations proscribing exactly what to do turn us toward centralized uniformity, Howard says, where law has replaced humanity. Detailed rules and uniform procedures have nonuniform effects when applied to specific situations.

Our old system of common law recognized the particular situation and invited the application of common sense. Common law evolved with the changing times and its truth was relative, Howard tells us, not absolute. But in this century statutes have largely replaced common law, and in recent decades regulations have come to dominate the legal landscape. Howard observes that the Interstate Highway System (still the nation's largest public works program) was authorized in 1956 with a 28-page statute. Now, we attempt to cover every situation explicitly. He cites one contract lawyer who received a proposed definition of the words and/or that was over three hundred words in length. (Let alone the more recent and prominent lawyer who parsed carefully over the definition of what the word "is" is.)

Howard traces the growth of this regulatory "rationalism" from Max Weber - the German sociologist at the turn of the century who said that "Bureaucracy develops the more perfectly, the more it is `dehumanized'" - to Theodore Lowi - who in The End of Liberalism in 1979 saw greater regulatory specificity to be the antidote to special interest groups. But in truth, Howard shows us, the more precise we try to make the law, the more loopholes are created.

Centralized rules have caused us to cast away our common sense. Furthermore, "Coercion by government, the main fear of our founding fathers, is now its common attribute. But it was not imposed to advance some group's selfish purpose; we just thought it would work better this way. The idea of a rule detailing everything has had the effect of reversing the rule of law. We now have a government of laws against men."

The second section of Howard's book explains how the ritualization of bureaucratic process has brought us to the point where people argue, not about right and wrong, but about whether something was done the right way. He sees the agency as mainly a referee to the process, not a decision maker. He beautifully describes how the bureaucracy surges and falls, en masse, onto a decision. Even Sherlock Holmes wouldn't be able to identify an actual decision maker! The process decided.

In this maze of centralized, detailed regulation - a system designed to discourage individual responsibility - many have lost sight of what government is supposed to be doing. Howard argues that process is a defensive device; the more procedures, the less government can do. The paradox is that we demand an activist government while also demanding elaborate procedural protections against government. "The route to a public goal cannot be diverted through endless switchbacks of other public goals, for example, without losing sight of the original destination." He tells us that responsibility, not process, is the key ingredient to action. If responsibility is shared widely, then like the extreme where property is shared widely, it is like there being no responsibility at all.

Effective government, Howard suggests, is one which attracts the best people and gives them leadership responsibility. But we have created the opposite system, based on defensive formalisms, driving away good people who cannot abide the negativity of the process.

The last section of Howard's book explores the "rights revolution," where government has become "like your rich uncle under your personal control" and everyone now gets to be a part of a legally-mandated, discriminated-against minority. As rights weaken the lines of authority in our society, the walls of responsibility - such as how a teacher manages a classroom - have begun to crumble. We want government to solve social ills, but distrust it to do so. Congress has resolved this dilemma by using rights to transfer governmental powers to special interest groups. The result has not been bringing excluded groups into society, but rather has become the means of getting ahead in society. Howard makes the distinction that, "The rights that are the foundation of this country are rights against law. In James Madison's words, the Constitution provides for `protection of individual rights against all government encroachments, particularly by the legislature.' Rights - freedom of speech, property rights, freedom of association - were to be the antidote against any new law that impinged on those freedoms."

In this way, Howard finds that we have confused power with freedom. These new legislative rights aren't rights at all, no matter how righteous they sound. "They are blunt powers masquerading under the name of rights." He says we need to consider how these new rights impinge on what others consider to be their own freedoms. The flip side of the coinage of the new rights regime is called coercion.

Howard suggests that our loathing of government is not caused by its goals, but by its techniques. "How law works, not what it aims to do, is what is driving us crazy." Decision making must be transferred "from words on a page to people on the spot."

His book brings us closer to a place where what is right and reasonable, not the parsing of legal language, dominates the discussion. His thoughts shine needed light on the path to common sense and responsibility in government.

New York City laws forbidding Mother Theresa from opening a two-story homeless shelter unless she installs an elevator. A 33 page manual describing the qualifications and uses of a hammer. Contract bidding procedures that unintentionally but blatantly encourage corruption.

These snippets sound like lines from a Letterman or Leno monologue, but discouragingly they are all actual government dictates documented in this chilling expose. Phillip Howard does an admirable job of identifying the consequences when good-hearted bureaucrats create well-intentioned regulations, and government services get caught in a stranglehold.

Perhaps even more bilious than these splenetic monuments to red tape, are the huge work forces of administrators who are imprisoned by this uncontrollable system. Howard employs some macabre humor in redacting the plight of one troublesome government employee who purchased a lawn mower with his own money rather than navigate the labyrinth of paperwork necessary to order a replacement. For this breech of procedure, he earned a formal demerit.

Although the subject matter is serious and in deed frequently depressing, Howard often utilizes jocular techniques to make his point. His step by step specifications of NYC's contract bidding ritual would be the envy of any stand-up comic. Unfortunately, the laughing stops upon the realization that this vapid inefficiency is pandemic throughout all levels of our government. It's scary to see just how big Big Brother has become.

I wouldn't agree with the categorization of this book as an "explosive manifesto" (back cover), nor would I call this "incendiary ... stimulating" (front cover). As an American who too often cringes when our country's regulatory red tape strangles expediency and constructive decision making, I'd say "The Death of Common Sense" offers some poignant anecdotes in describing today's bureaucratic morass. Beyond this, author Philip K. Howard documents well the mentality which has spawned our dependency and passivity, and how we can refocus on how democracy is supposed to function.

Mr. Howard's messages, evident throughout, are very obvious: we have substituted innovation with process, created enemies instead of cooperative societies, and squashed case-by-case reasoning under mountains of procedural law. There are so many "rights" covering every interest group that very little gets done for the benefit of the majority. "Trusting in the law" now means being wary of nearly everyone. Although sounding a bit rant-stricken at times, Mr. Howard offers up lots of food for thought ... some amazing stories. It's all pretty interesting and easy to read.

In my opinion, the last (and shortest) of the book's four parts, entitled "Releasing Ourselves," falls short of hitting on a way to get out from under suffocating law. I agree that initiative and responsibility are admirable attributes for executives in both the public and private arenas, and further, that universally applied policies that regulate the most minute procedural detail should instead have flexibility for more real-world applications. However, what happens when the most innovative of directives winds up injuring or killing someone? Will Joe Citizen give up his right (there's that word) to sue? I doubt it. And, as long as legal recourse remains the ultimate equalizer, the happy medium between "buried in the fine print" and "total judgment call" will be awfully hard to come by. Mr. Howard doesn't address this issue.

This is a very good read; however, a better balance between problem and solution would have made this book outstanding.

This is a quick, easy read and I can relate to this book. My parents run a small, family business and we waste so much time and money to try and sort our way through all of this nonsense when we should be coming up with ideas to be more productive. After you read this book, you realize how much of a strain this puts on everyone.

I agree with the reviewer who concluded that this book is much too long; Howard would have more compelling if he had prepared this as a (long) magazine article. In terms of style, the book is uneven and distracting. Howard overloads the book with anecdote after anecdote of bureaucratic bungling; between the anecdotes are interspersed quotations and the author's somewhat ponderous narrative. Despite the style problems and the excessive length, Howard makes some highly compelling points. He has broken down his subject into to three discrete governmental problems, nicely separated into distinct chapters. The first main chapter is about the 'bureaucrat as bull in a china shop' and government employees' inability to use common sense. This is the weakest chapter- even if all of the author's anecdotes are true, he gives no indication whether bureacrats act like this all the time, half the time, or 1% of the time. One suspects that there are some dedicated government employees out there who occasionally (maybe frequently) display common sense, but Howard gives no inkling that such an employee exists. The second and third main chapters are more compelling, because these chapters deal with systemic problems with the USA government and the legal system. The second chapter concerns the mindless fascination the government has with process and procedure, a truely fascinating commentary on our sclerotic government. The root problem, as the author notes, is that, except at the highest levels of a government, no one is authorized to make a decision. Inevitably, government gets staffed with hacks and drones who are comfortable with that role. Clearly, government will not be 'reformed' until it can operate more like a business enterprise. The third main chapter concerns the proliferation of 'rights' in America. This chapter is likewise compelling; his discussion of the hundreds of billions that America has spent to accomodate the 'rights' of every perceived disadvantaged group in America is less shrill than other tracts on the topic, but still compelling. In general, a worthwhile and educational read.

This is food for thought, not only for law students, lawyers and practitioners but also for the common citizen. In particular, for all those that get lost in the ill conceived red tape of mother bureaucracy, get stuck in fragmentary and nonsensical regulations. Not only the author provides enough examples of organizational lunacy, due to excess of formalism or elaborate distorsions of clear legal texts and principles, but also gives some insights about possible solutions to the problem of the excessive weight of rules and procedures so precise that no one has the chance to think for himself or find a solution to a problem applying common principles.
As Howard points out: "The sunlight of common sense shines high above us whenever principles control: What is right and reasonable, not the parsing of the legal language, dominates the discussion.With the goal shining always before us, the need for lawyers fades along with the receding legal shadows. People understand what is expected from them."
This is a provocative book written by somebody that has been a practicing lawyer as well as a teacher. These two hats permit the author to better size up the frustrations and limitations that paperwork and stupid regulations inflict upon the citizens.
It should be required reading for law students.

If you're the sort who enjoys fuming at absurd lawsuits and incomprehensible government action, Howard's "The Death of Common Sense" may well be right up your alley. A brisk read, the 200 or so pages here are filled with examples of government gone awry, absurd legal maneuvers, and public policies that defy common sense.

Silly lawsuits and wholly unnecessary laws are central to Howard's rants on over-aggressive government. The book is filled with specific examples, usually followed by pretty sound reasoning as to WHY we, too, should be irritated. All that is missing are solutions. The author offers some, but they are few and far between.

One thing is certainly welcome: Politics rarely intrude here. Well-written and to the point, Howard doesn't appear to be walking far to the right or the left. The political neutrality is welcome. There is probably a libertarian bent present, but it's hardly intrusive; this is not a political book. And in these times of overly political books, that is a classic Good Thing.

A quick read, paced well with plenty of examples, this is a good pick for those who enjoy peering at the foibles of misguided government.

As someone who has struggled to comply with reams of intractable federal regulations, I've often paused at this thought: there's something massively wrong with laws in the US. Howard captures the essence of the problem admirably. It's reassuring to know you're not alone in being bewildered by a system that has gone so awry.

This book provides a devastating critique of the blizzard of rules & regulations that government has promulgated in the past century and the damage they have caused to our society & our economy.

Howard provides numerous examples of nonsensical regulations (New York City refusing to allow Mother Teresa to build a homeless shelter unless a $100,000 elevator is installed, the EPA ruling that bricks are poisonous because if they are sawn in pieces there may be some silicate particles, etc.), but these are easy targets.

The most graphic illustration of the insanity of government regulation comes in his discussion of the Americans with Disabilies Act & the mayhem it has caused: kneeling buses spend a half hour during people's work commute, loading & unloading a wheelchair rider; public transportation vehicles end up with far less seats than before in order to accomodate the chairs; street curbs are ramped for the wheelchairs, but now the blind have trouble telling where the curb ends, etc. It's time to ask whether all this is a worthwhile price to pay to benefit a minute proportion of the population.

Equally disturbing, is the discussion of Special Education. What is the sense of an educational system that devotes a huge proportion of it's resources to nearly ineducable students?

The most interesting part of the book may be his examination of the motivation behind the regulatory scheme we now face. He points out that the original motivation for regulation was fairness. Social policy planners believed that only be having an elaborate & inflexible pattern of regulation that covered every eventuality, could you guarantee that bureaucrats would be freed from outside influences. However, the result has been to require that everyone follow the same scheme of rules, regardless of whether they make any sense.

As Howard argues, this has brought us to a crisis point in American life. We are increasingly frustrated by the intrusion of these rules into our lives, increasingly distrustful of government & increasingly willing to find ways around these regulations.

However, and this is a significant weakness of the book, Howard does not offer a real prescription for these problems. His critique is powerful enough that it's hard to believe that we wouldn't be better off if we scrapped all government regulation & started over, but Howard understandably shies away from any such radical solution.

GRADE: B

Compelled to read this book by the author's appearance at a conference I attended, and having worked for state government for eight years, I heartily recommend it as an eye opener to flawed bureaucracy and the lack of judgment and responsibility which impedes "common sense governing." Wishing to avoid the criticism everpresent in the political environment, bureacrats refer citizens to the text of laws and rules regardless of exceptional circumstances and with an instinctual shoulder shrug, "it's the law..." The examples Philip Howard uses will leave the reader slack-jawed in amazement and in some cases simply outraged (...sure we want Mother Theresa to build a homeless shelter here, but if she can't do it by the book...). The buck rarely stops when no one wants to be held responsible and the operating maxim is "cya." There's defintely more than enough material for additional books eulogizing common sense in governing and Howard's book sets the stage in an impressive fashion!