The Magazine

Misrule of Law

A dose of medicine for ‘runaway legalism.’

May 26, 2014, Vol. 19, No. 35 • By ROBERT WHITCOMB
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At least since his 1994 bestseller The Death of Common Sense, the New York lawyer, author, and founder/chairman of the reform group Common Good Philip K. Howard has been trying to rescue Americans from ever-denser laws, regulations, and litigation. (Disclosure: I have known  Howard for half a century and, several years ago, worked with him on a project.) General principles, based on widely accepted views of morality and wedded to common sense, should be the guiding force in our public life, he writes—not a rigid legalism created on the fool’s errand of trying to anticipate and micromanage all human problems. Howard says that our runaway utopian rules and regulations hamstring urgently needed decision-making and ingenuity, and dehumanize our relationships with each other and with government. 

Lemonade!

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He sometimes seasons his points with (entertaining) hyperbole, but he’s basically, and alarmingly, correct. He argues that legislators, bureaucrats, and others have become so eager to avoid any legalistic second-guessing, PR problems, and/or lawsuits and to please powerful interest groups (many of which profit richly from our bureaucratic bathos) that Americans are becoming paralyzed in the face of society’s problems. 

Howard provides many examples of “automatic government,’’ including the legal barriers to addressing a big, outdated bridge in New Jersey or removing a tree that fell into a stream, causing flooding; the legalism that helps make our medical care the world’s most expensive and erodes our electrical grid; the banning of children’s lemonade sales on sidewalks; the incomprehensible “Volcker Rule,” meant to stop banks from irresponsibly speculating with federally insured funds; the regulations that entangle caregivers trying to address the unpredictable needs of children in daycare or residents of nursing homes; and—the coup de grâce—a California man drowning because of potential rescuers’ fear that to help might jeopardize their jobs.

He mixes folksy stories with philosophical discussions based on his wide reading in history, philosophy, and other fields. James Madison, for example, is quoted as writing that “it will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.’’ In analyzing the “catastrophic mismatch between the ideology and the reality of automatic government,’’ Howard quotes the late Václav Havel’s call to “abandon the arrogant belief that the world is merely .  .  . a body of information to be fed into a computer in the hope that sooner or later it will spit out a universal solution.’’

Howard wants to reenergize officials’ authority to use their moral and practical personal judgment to make decisions, of all things. We must, he writes, give “responsible officials—real people—the authority to make practical choices.’’ The “core flaw’’ of our current approach is that “it aspires to make choices without human judgment at the moment of action.’’ And we must accept “a lack of perfect uniformity among public choices. These differences are inherent in the idea of each human taking responsibility.’’ He accurately blames liberals and conservatives alike for their roles in creating the mess: liberals for underestimating life’s complexity, and conservatives for being so afraid that government officials, including judges, will overreach that they overly limit their ability to act.

Then there are cowardice and sloth, which he could have discussed more. Many officials want to avoid any heat from making controversial decisions, so they tend to delegate responsibility to impersonal regulation even when they could make a decision. They can blame their inaction by citing a rigid adherence to The Law, even though they themselves may not understand its application to the issue at hand. Administrators’ aim in such an environment is to get it off their desks by claiming powerlessness.

Given the entrenched interests that prosper in our regulatory/legal swamp—trial lawyers, accountants, some big companies, environmental perfectionists and other NIMBYs, politicians’ anxiety about advocating  structural change—I share Howard’s view that things probably must get worse before our leaders will address our runaway legalism. But he holds out hope. He shows how some other developed countries have much simpler, more flexible, and more effective rules. And he proposes amendments to the Constitution that would “sunset’’ old laws and regulations, give the president power to manage the executive branch more effectively, widen judges’ power to dismiss unreasonable lawsuits, and create a council of citizens to act as an advisory body that would make recommendations on how to improve government.

I have reservations about that last idea, but the others sound alluring.

Robert Whitcomb, a writer and former newspaper editor, is a management consultant in the health care industry.