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on 24 February 1999
Philip Howard's insights help us understand why government appears arbitrary, almost never able to deal with real-life problems in a way which reflects an understanding of the situation. Peppered with pointed anecdotes about absurd regulatory inflexibility and the lack of the use of judgement, Howard's book reveals that we have concocted a system of regulation that "goes too far while it does too little."
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.
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on 10 October 1997
Affirmative action legislation creates an atmosphere stifling the very goals it seeks to achieve. Environmental law pollutes our air and water. The cry for the rights of the few denies the same rights for the many. These are but a few of the outrageous abuses perpetrated on the American public by a well-meaning legal system run amok.
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.
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on 6 November 2002
This is food for thought, not only for law students, lawyers and practitioners but also for the common citizen. In particular, for all those that get lost in the ill conceived red tape of mother bureaucracy, get stuck in fragmentary and nonsensical regulations. Not only the author provides enough examples of organizational lunacy, due to excess of formalism or elaborate distorsions of clear legal texts and principles, but also gives some insights about possible solutions to the problem of the excessive weight of rules and procedures so precise that no one has the chance to think for himself or find a solution to a problem applying common principles...
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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on 1 September 1998
I agree with the reviewer who concluded that this book is much too long; Howard would have more compelling if he had prepared this as a (long) magazine article. In terms of style, the book is uneven and distracting. Howard overloads the book with anecdote after anecdote of bureaucratic bungling; between the anecdotes are interspersed quotations and the author's somewhat ponderous narrative. Despite the style problems and the excessive length, Howard makes some highly compelling points. He has broken down his subject into to three discrete governmental problems, nicely separated into distinct chapters. The first main chapter is about the 'bureaucrat as bull in a china shop' and government employees' inability to use common sense. This is the weakest chapter- even if all of the author's anecdotes are true, he gives no indication whether bureacrats act like this all the time, half the time, or 1% of the time. One suspects that there are some dedicated government employees out there who occasionally (maybe frequently) display common sense, but Howard gives no inkling that such an employee exists. The second and third main chapters are more compelling, because these chapters deal with systemic problems with the USA government and the legal system. The second chapter concerns the mindless fascination the government has with process and procedure, a truely fascinating commentary on our sclerotic government. The root problem, as the author notes, is that, except at the highest levels of a government, no one is authorized to make a decision. Inevitably, government gets staffed with hacks and drones who are comfortable with that role. Clearly, government will not be 'reformed' until it can operate more like a business enterprise. The third main chapter concerns the proliferation of 'rights' in America. This chapter is likewise compelling; his discussion of the hundreds of billions that America has spent to accomodate the 'rights' of every perceived disadvantaged group in America is less shrill than other tracts on the topic, but still compelling. In general, a worthwhile and educational read.
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on 21 December 1998
As the author notes in the book, these days it seems we're being ruled by law instead of the reverse. I found the book to be a fantastic and thought provoking read. I've experienced many similar instances of absurdity while threading my way through a frustrating gauntlet of regulatory hurdles in pursuit of the most mundane activities. What I never questioned until now was the basic philosophy of regulation. Human judgment has been removed from the equation. The rules are no longer a few well understood guidelines, they are an incomprehensible morass of instructions with which everyone must comply whether they apply or not. Solving the problem is no longer the goal, the process and its regulations are an end unto themselves. So we have EPA regulations that not only don't make the environment any cleaner, they needlessly make compliance hugely expensive. It's as if the government mandated a multi-billion program for holes to be dug then filled back in. I always knew I was frustrated, but at least I thought all the trouble and expense was necessary. Now I know better. Mr. Howard has neatly identified the problem. Perhaps in a hundred years we'll have implemented his solution.
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on 21 May 1996
Compelled to read this book by the author's appearance at a
conference I attended, and having worked for state government
for eight years, I heartily recommend it as an eye opener to
flawed bureaucracy and the lack of judgment and responsibility
which impedes "common sense governing." Wishing to avoid
the criticism everpresent in the political environment,
bureacrats refer citizens to the text of laws and rules
regardless of exceptional circumstances and with an instinctual
shoulder shrug, "it's the law..." The examples Philip Howard
uses will leave the reader slack-jawed in amazement and in
some cases simply outraged (...sure we want Mother Theresa
to build a homeless shelter here, but if she can't do it by
the book...). The buck rarely stops when no one wants to be
held responsible and the operating maxim is "cya." There's
defintely more than enough material for additional books
eulogizing common sense in governing and Howard's book sets
the stage in an impressive fashion!
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on 13 April 1998
This is a much more concise book than Bovard's "Lost Rights" - and yet makes the point that Bovard fails to: we are lost in a misguided legalism that is not to any person's benefit, except for those bureaucrats whose profession it is navigate the web of laws and regulations we have today in the United States. To find our way again we need to return to simpler a implementation our legal system. Much of our legal system could be boiled down to the Golden Rule. The founding fathers understood this principle when they wrote the U.S. Constitution. The next time you or someone near you says, "There oughta be a law", read or re-read this book. Besides, there probably already are a multitude of laws covering the act you want outlawed - just try to make sense of them.
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on 11 January 1998
The United States has 5% of the worlds populaton, yet 50% of the worlds lawyers. We have a problem here, too much law, too many inflexiable rules, and too many bottom feeders (lawyers). The book describes very well everything from farmers being made criminals on their own land for working soil which is the home to some endangered and useless rodent; $1.5 billion spent some nonendangered spotted owl; nonequal equal rights; and the loss of property rights and other freedoms. The writer is to be commended for explaining how educated fools, lawyers and politicians with good educations and no common sense are strangling freedom and liberty with heavy handed and misguided law. This book is a "must read" for all citizens.
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on 4 September 1999
The repetitive, silly prose near the end urging us to break free of the stranglehold of unjust and stupid laws (which we must) can easily be forgiven: this book exposes the arrogance and stupidity which have become "normal" legal proceedings. Like our friend Tacitus said: "The more corrupt the government, the greater number of laws." Message to God: "I will believe in You the instant every leeching lawyer that has contributed to America's current enslavement is struck by lighting!!!"
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on 31 July 1998
The audacity of this character, attacking the United States of America. Everything is perfect here and if your life isn't perfect you should kill yourself. How dare Phillip K. Howard attack the well thoughtout and organized system of judicial law and bureaucratic harmony that myself and others have built up around us. Spend a little less time on your knees and maybe you'll end up like me. Monica Lewinsky spent some time on her knees but now she's going to be a rich and fabulous bore. 46x2
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