The Death of Common Sense, by Philip K Howard
GLENDON, MARY ANN
THE LAW AS OBSTACLE COURSE THE DEATH OF COMMON SENSE How Law is Suffocating America Philip K. Howard Random House, $18,202 pp. Mary Ann Glendon Philip Howard begins his indictment of...
...It is in the nature of continued conflict, as well as law's inadequacy as a vehicle to happiness, that the ostensible winners have found, not justice and fulfillment, but isolation and recrimination...
...The process of transferring an abandoned building from the City of New York to the order filled a year and a half with paperwork, meetings, and hearings...
...Mary Ann Glendon Philip Howard begins his indictment of proliferating regulatory law with the story of a failed attempt by Mother Teresa's Missionaries of Charity to establish a homeless shelter in the South Bronx...
...Rights, intended to bring an excluded group into society, have become the means of getting ahead of society...
...Unfortunately, those are highly difficult matters to which American lawyers and law schools have devoted too little attention...
...Where the book comes up short is on the jacket's promise to "set us on a course to take back control of our lives...
...Howard solves that problem nicely with abundant examples that will have most readers nodding their heads in agreement as they recall their own run-ins with the administrative state and its legal apparatus...
...The struggle with American red tape was too much even for Mother Teresa...
...There was no way to waive the requirement...
...That's why Howard is on the right track when he emphasizes the importance of leaving room for trial and error, and (by implication) of admitting how much we do not know about the effectiveness and unintended consequences of law...
...To minimize the problems Howard describes, Americans (not just lawyers) would have to re-examine some basic decisions made in this century about regulation, federalism, and the relation between the state and civil society...
...When it comes to the "how" of regulation, the devil is not in details and procedures as such...
...Some of the most important decisions are about whether to regulate at all, who should do the regulating, and how closely and by whom regulators ought to be supervised...
...What particularly concerns Howard is that overly rigid regulation, by driving out human judgment, stifles "trial and error-the key to all progress...
...Let judgment and personal conviction be important again...
...Howard's second target is a concept of process that increasingly subjects routine decisions like firing a civil service employee to judicial oversight almost as rigorous as that applied to criminal trials...
...Think of tax law, building codes, or workplace health and safety regulations...
...That energy and resourcefulness, not millions of legal cubicles, is what was great about America...
...A few sentences from the final paragraph give the flavor: "[W]e have to go out and try to accomplish our goals and resolve disagreements by doing what we think is right...
...But everyone is losing...
...But when taken to extremes it can have the opposite effect...
...His complaint here is that too many procedural obstacles (also known as safeguards) discourage individual responsibility while promoting inefficiency...
...It's just common sense...
...how to arrive at the optimum mix of rules and discretion, generality and specificity, private ordering and public regulation...
...Finally, Howard blasts the recent expansion, by courts and legislatures, of citizens' rights to sue public and private establishments for various forms of discrimination...
...Then, after spending two years on renovations, the nuns (who avoid the use of modern conveniences whenever possible) were told that the building code required a $100,000 elevator in their four-story structure...
...Legal specificity has the virtues of letting those affected know where they stand and keeping official discretion within bounds...
...The problem is to know when and how to deploy the various tools in the legal kit...
...The law becomes incomprehensible, and official arbitrariness can run rampant amidst the confusion...
...Even when legal detail does promote certainty, it has costs...
...Like printing money, handing out rights to special interest groups for thirty years has diminished not only the civil rights movement but the values on which it was founded...
...Like other Americans, we lawyers have grown impatient with fine detail and intolerant of complexity...
...But a country with a complex economic system and a large diverse population does need a rather elaborate legal system...
...Common sense, as philosopher Bernard Lonergan points out in Insight, is a fine thing, but will only get you so far, especially in times of crisis and change: "Common sense knows, but it does not know what it knows nor how it knows, nor how to correct and complement its own inadequacies...
...Many current legal ills have arisen from violating what Christian social thought calls the principle of subsidiarity, according to which no task should be assigned to a group or institution larger than the smallest that can satisfactorily perform it...
...The sisters gave up on the project, explaining in a polite letter to the city that they needed to conserve their limited resources for feeding and sheltering the poor...
...Howard's brief concluding chapter, titled "Releasing Ourselves," offers little more than an admonition that principles and common sense are better than detailed regulations and rigid formulas...
...Like many other critics of hyper-regulation, Howard finds much illustrative material in well-intentioned legislation designed to aid persons with disabilities...
...As a result, we have tended to neglect the very skills that a society like ours most needs from the legal profession-preventive planning and creative problem solving...
...Since lawmakers rarely tidy up the work of their predecessors, these ills tend to worsen as one layer of regulation is piled upon another...
...Much bureaucratic law is highly rigid and detailed...
...It is no mean achievement to portray a society suffocating in the toils of regulatory law without suffocating the nonspecialist reader...
...The principal victims of regulatory excess, he believes, are "small enterprises, poorer segments of society, and the spirit of ingenuity," which the country needs to deal with new challenges...
...The stifling of that wholly benevolent project sets the stage for Howard's argument that American law has become an impediment, rather than an aid, to common-sense problem solving in our society...
...It didn't matter that the nuns never planned to use an elevator...
...With one discouraging example after another, he shows how frequently the proliferation of rights has proved an unhappy substitute for pragmatic reflection on costs, efficacy, and priorities...
...The main counts of Howard's indictment concern three good legal ideas run amok: specificity, process, and rights...
...Increasingly in our procedural republic, "the buck never stops...
...Well, yes...
Vol. 122 • March 1995 • No. 6
