Why do people hate government?  Intrusive?  Proliferous?  Bureaucratic?  Costly?  I vote for “None of the above.”  Rather I think attorney Philip Howard finds the culprit:  laws.  They’re designed not to work.  That’s not the intentional, of course, but it’s the outcome of laws written in such detail and so process-laden that those charged with implementing them, the much maligned bureaucrats, can’t do anything more than mind the process to see that it’s followed, consequence and commonsense be damned.

Which is why he titles his book “The Death of Common Sense:  How Law is Suffocating America.”   I learned of this book after reading a David Brooks column.  I thought it was a recent book, but it was written in 1995.  Yet it captures, I think, why government is so mistrusted (even though most folks can name a few big programs they love: think Medicare and Social Security).  Laws today are nothing more than byzantine processes that bureaucrats are bound to follow.  If a situation arises that defies commonsense, procedure prevails. 

Howard believes this all started with the Civil Rights Act.  While he agrees with the need for the law, it spurred a raft of legislation that was more concerned that no one was denied something they had a right to than in solving problems.  “Rules replaced thinking.  Process replaced responsibility.”

The book is filled with anecdotes, maybe too many, but they drive home the point.  For example, he cites the case in New York City where officials were offered a chance to try out portable public restrooms.  They would be placed curbside, similar to what you find in Europe.  But once the project was announced, the disabled community threatened a law suit unless every one of the units were wheelchair accessible.  The experiment died before it was started.  The rights of the disabled community trumped the benefit the rest of us would have enjoyed.

Howard points out that laws used to be relatively brief documents.  The one that authorized the Interstate Highway system ran 28 pages.  By now we all know that the Obama health care law consumed about 2,000 pages.  Today laws are laden with detailed process that commands more detailed regulations so as to ensure that no one is treated unfairly.  What’s missing today is personal responsibility, Howard argues.  Rather, he would prefer that laws set out priorities and intentions, and we let the bureaucrats implement them and be responsible for the outcomes.

Therein, lies the rub, of course.  Would those same  (hated) bureaucrats pervert the laws intention to match their own prejudices.  Or would laws change dramatically depending on who were in the appointed positions in the bureaucracy? 

It would be easy to dismiss the book as a thinly veiled attempt by a conservative to do just that.  I’m not sure of Howard’s political persuasion, but the legal reform coalition he chairs has a mix of both left and right on the advisory board.  Whatever his political views may be, progressives, especially, might listen closely to his argument and find that things like tort reform and personal responsibility have their merits.  That is, if you want government to accomplish anything.

Posted in: Books.
Last Modified: November 10, 2010