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The Death of Common Sense: How Law is Suffocating America (G K Hall Large Print Book Series) Hardcover – Large Print, 31 Dec 1995
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"Incendiary . . . stimulating and controversial.""--San Francisco Examiner
"[Philip K.] Howard's argument is fresh, reflecting an impressive combination of wisdom, wry humor, and quiet passion. . . . When we think about 'reinventing government, ' it's a good place to start.""--The New York Times Book Review"
"A valuable book . . . a call for personal responsibility and initiative in government."--"People"
"The delights of this policy prose poem lie in its perfect details, its civilized tone, its sure sense of where the ill-made legal shoe pinches.""--The Wall Street Journal"
"A brilliant diagnosis . . . forceful, trenchant, and eloquent."--Arthur M. Schlesinger, Jr.
"Excellent.""--The Washington Post"
Incendiary . . . stimulating and controversial. " San Francisco Examiner
[Philip K.] Howard s argument is fresh, reflecting an impressive combination of wisdom, wry humor, and quiet passion. . . . When we think about reinventing government, it s a good place to start. " The New York Times Book Review"
A valuable book . . . a call for personal responsibility and initiative in government. "People"
The delights of this policy prose poem lie in its perfect details, its civilized tone, its sure sense of where the ill-made legal shoe pinches. " The Wall Street Journal"
A brilliant diagnosis . . . forceful, trenchant, and eloquent. Arthur M. Schlesinger, Jr.
Excellent. " The Washington Post""
"Incendiary . . . stimulating and controversial."--San Francisco Examiner
"[Philip K.] Howard's argument is fresh, reflecting an impressive combination of wisdom, wry humor, and quiet passion. . . . When we think about 'reinventing government, ' it's a good place to start."--The New York Times Book Review
"A brilliant diagnosis . . . forceful, trenchant, and eloquent."--Arthur M. Schlesinger, Jr. "Excellent."--The Washington Post --This text refers to the Audio Cassette edition.
About the Author
Philip K. Howard is a lawyer and the author of The Death of Common Sense. He has advised leaders of both parties on legal and regulatory reform. Howard grew up in small towns in the South and is the son of a Presbyterian minister. He is a managing partner of an international law firm and lives in Manhattan with his wife. They have four children. --This text refers to the Audio Cassette edition.
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.
Phillip Howard details horrid abuses of the American lifestyle in this fast-read book perpetrated by a bureaucracy that is no longer able to get out of its own way and so ensnarls public servants that they are unable to fulfill the very roles with which they have been charged.
Howard talks of a charitable fund run by the organization with which Mother Theresa was involved. They bought from the city of New York a number of dilapidated structures and sought to renovate them for the homeless. However, when it came time to open them, the city decided that the three-story structures required the installation of elevators at $100,000 per building. The charity did not have the funds to install the elevators and so the homeless were denied clean, warm housing in the interests of not forcing them to endure the evils of walking up a flight of stairs.
OSHA promulgates thousands of pages of documents to protect American workers from the tyranny of unsafe working environments resulting in an atmosphere where the use of a hammer or stepladder is covered in hundreds of pages of unintelligible legalese. Howard talks at length of one firm which has now accepted the fines levied by OSHA as an expense of doing business since it is not humanly possible to comply with all of the requirements. In order to protect its workers, it instead implemented a "Safety First" campaign of its own imploring common sense while OSHA inspectors chose to concentrate on tape measures showing banisters to be installed at 44" from the floor rather than the 48" required by law.
And "Common Sense" is exactly the thrust of the book. We are "entertained" with tales of OSHA determining that bricks are a hazardous substance -- not because someone might hit you over the head with one, but because if one is sawed in half, the dust particles might be inhaled.
Affirmative action has created an atmosphere where a secretary in the government's employ who did not show up for work (and did not work when she showed up) could not be fired without years of legal battles while she was on "paid leave". The atmosphere leaves minority applicants in the position that they have to be not just qualified for a position but have to be far superior to the white, male competitor. Otherwise, employers feel they will face a lawsuit every time they need to discharge a minority employee for legitimate reason.
The abuses go on and on. My only complaint with this relatively short work is that it could have shorter. Mr. Howard belabors and repeats many points thus detracting from an otherwise excellent book, which should be read by every citizen of America.
This is a provocative book written by somebody that has been a practicing lawyer, as well as a teacher. These two hats permit the author to better size up the frustrations and limitations that paperwork and stupid regulations inflict upon the citizens.
It should be required reading for law students.
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