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The Death of Common Sense

How Law Is Suffocating America
By Philip K. Howard
Random House, 1994

In this best-selling and widely discussed critique of America's system of governmental regulations, Howard argues that "democracy has become a passive caretaker to a huge legal monument." While Americans have always prided themselves on having a government of laws and not of men, our over-reliance during the last few decades on statutes and regulations as a means to creating a better society has in fact created its opposite: "a system of regulation that goes too far while it also does too little."

The book provides numerous examples of how bureaucratic rigidity, costly and ineffective regulation, and overly complex procedural rules have superseded good judgement and common sense. For example, Howard describes a proposal to convert an abandoned building into inexpensive housing for the homeless was abandoned after New York City's building code required the installation of an unnecessary elevator at a cost of $100,000. Another illustration is an oil company that spent $31 million to meet new EPA standards that turned out to have little or nothing to do with pollution. These and other examples underscore Howard's argument that laws and rules must be pared back to allow regulators greater freedom to enforce rules with discretion and common sense.

Our modern system of regulatory law can be traced back to the Enlightenment ideal of rationalism, Howard explains. From this ideal grew the notion that government should be "self-executing" and dispassionate, by functioning according to highly specific rules designed to anticipate every eventuality, preserve uniformity, and avoid discretion and abuse by officials. But the "rationalists' promise that all can be set out before we get there" has resulted in a system that is not only inefficient but also "precludes the exercise of judgement."

Howard argues that the growing dependence on law and regulation has had serious consequences for the quality of public discourse in America. Instead of fostering cooperation, our legal culture in effect undermines it. By emphasizing violations rather than problems, regulation promotes bitterness and conflict. This is exemplified, he says, by our fixation with rights. While rights are "as American as apple pie" and a quintessential part of our Constitution, they have taken on a new role in recent years. Today they are used not as they were originally intended — as protections against coercion by the state — but as "a new, and often invisible, form of subsidy." Legislating open-ended rights, Howard believes, undermines our capacity for deliberation and collective decision-making and thereby weakens democracy. "It also invites a free-for-all as different groups' entitlements begin to collide with each other and the rest of society."

Howard does not offer any concrete proposals for reversing America's growing dependence on regulation. But he does outline a number of guiding principles toward addressing the problem. "We should stop looking to law to provide the final answer," he says. "Law should articulate goals, award subsidies, allocate presumptions, and provide mechanisms for resolving disagreements, but law should almost never provide the final answer. Life is too complex. Our public goals are too complex.... Law can't think, and so law must be entrusted to humans and they must take responsibility for their interpretation of it."

Copyright 1995 by Scott London. All rights reserved.