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The Death of Common Sense: How Law is Suffocating America
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From Publishers Weekly
Lawyer Howard's indictment of governmental bureaucracy and excessive regulations was a PW bestseller for 25 weeks.
Copyright 1996 Reed Business Information, Inc.
From Library Journal
The nuns of the Missionaries of Charity believed two abandoned buildings in New York City would make ideal homeless shelters. The city agreed and offered to sell the building for one dollar each. Yet the shelter project faltered: the city's bureaucracy imposed such expensive remodeling requirements on the buildings that the shelter plans were scrapped. To Howard, an attorney practicing in New York City, this is but one of many examples of the law's suffocating Americans by extensive decrees on what may and may not be done. His book is truly a catalog of horror stories, actually quite engrossing and adding to the story of public inefficiencies chronicled by David Osborne's Reinventing Government (Addison-Wesley, 1992). What Howard does not do as well, however, is offer guidance on remedies. His answer seems to be that we should take personal responsibility, gather up our courage, and step out into the sunlight away from government's shadow. More highly recommended as a study of the negative impact of law is Walter K. Olson's The Litigation Explosion (LJ 2/15/91) even though its focus is on lawsuits and the courts.
Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
Copyright 1995 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.
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Top Customer Reviews
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.
Howard says this emotionally based attitude has replaced humanity; and, that it has its roots in rationalism. He gives numerous examples, with many rulings so ridiculous even to the point of laughable. Although Wilson's "Great Society" and Roosevelt's "New Deal" (whom he quotes) spawned this form of bureaucracy it still took many more presidents to bring us to this point. These two progressives probably never envisioned it to this degree. It takes more than an individual, it requires an unbridled beast--the first beast--government. His sources are lengthy for so compact a volume. There is also a lengthy bibliography, but it would have been helpful to add endnotes.
We need to get back to individual responsibility; the direction we're headed is simply not attainable.
"The virtue of rights, at least to the advocates, is that they are absolute. What's a little inefficiency when there is complete justice for me? Absolutes sound good, but generally leave behind a landscape of paradoxes and bruised victims."
This book also appeals to government bashers. If you enjoy reading about how stupid laws can be, you don't mind ignoring all the good laws can do, and you like reading people slam the government, this is a good choice.
But, if you really care, you won't want to waste your time with this book. Howard offers no practical solutions. I can summarize his proposed remedies with two words: Benevolent Dictator. Howard calls for laws as general principles with justice metted out by wise "judges". This type of system, rife with corruption since man first walked the earth, concentrates power in the hands of a few and leaves the common man without recourse.
Sure, our legal system is too big. Yes, we have too many laws. But the solution should be reform, not a backward revolution.