_

The Death of Common Sense

deals with real-life problems in a way that reflects an understanding of the situation.We seem to have achieved the worst of In the winter of 1988, nuns of Mother Teresas Missionaries of both worlds: a system of regulation that goes too far while it Charity were walking through the snow in the South Bronx in also does too little. This paradox is explained by the absence of the one indispentheir saris and sandalsto look for an abandoned building that sable ingredient of any successful human endeavor: thz use of they might convert into a homeless shelter. They came to two fire-gutted buildings on 148th Street and, finding a Madonna judgment. In the decades since World War II, we have conamid the rubble, thought that perhaps Providence itself has structed a system of regulatory law that basically outlaws ordained the mission. New York City offered the abandoned common sense. Modern law, in an effort to be self-executing, buildings at $1 each, and the Missionaries of Charity set aside has shut out our humanity. $500,000 for the reconstruction. The only thing unusual about The motives to make the law this way had logic. Specific the plan was that the nuns, in addition to their vow of poverty, legal mandates would keep government in check and provide avoid the routine use of modern conveniences, and there would crisp guidelines for citizens. Layers of process-procedural be no washing machines or other appliances. For New York deliberations-would make sure decisions were responsible. City, the proposed homeless facility would literally be a godsend. Handing out rights would cure injustice. But it doesnt work. . Although the city owned the buildings, no official had the Human activity cant be regulated without judgment by humans, authority to transfer them except through an extensive bureau- adjusting for circumstances and taking responsibility. cratic process. For 18 months, the nuns were directed from The publics fury with government was demonstrated in the hearing room to hearing room discussing the project with November election, and the Republicans who won power now bureaucrats. In September 1989, the city finally approved the promise to get government off our backs. This rhetoric never plan, and the Missionaries of Charity began repairing the fire turns to reality, though, because the public does not want to cut damage. government essential services. The public is mad at how Providence, however, was no match for law. New Yorks government works-its perpetual ineptitude and staggering building code, they were told after almost two years, required waste-not mainly what government aims to do. an elevator. The Missionaries of Charity explained that because Moreover, the GOPs Contract With America proposes to of their beliefs they would never use the elevator, which also take only small steps in the direction of real reform. One would add upward of $100,000 to the cost. The nuns were told proposal would impose a moratorium on many pending regulathe law could not be waived even if an elevator didnt make tions-an idea equivalent to cutting off your leg to lose weight. sense. Another Republican theme is to return government functions to. in certain areas like welfare Mother Teresa gave up. Her representative said: The Sisters states, which could be a real benefit !ike environmental protection. The but disastrous inut;i<Z_ felt they could use the money much more usefully for sol*. and sandwiches. In a polite, regretful letter to the city, the Mission-federalism idea ignores the fact that state governments are aries of Charity noted that the episode served to educate us typically as ineffective and wasteful as the federal government. To liberate Americans from red tape., real reform must be aimed about the law and its many complexities.*. No person decided to spite Mother Teresa. It was the law of at simplifying how government works. Ending our suffocating government, which controls almost every activity of common legal system should be reformers goal. interest-fixing potholes, running schools, regulating day-care centers, controlling workplace behavior, cleaning up the enviLAW REPLACES HUMANITY ronment and deciding whether to give Mother Teresa a building permit. And what it required offends common sense. Law designed to make Americans lives safer and fairer has now The tension between legal certainty and lifes complexities was become an enemy of the people. a primary concern of those who built our legal system. The Government acts like some extraterrestrial power, not an Constitution is a model of flexible law that can evolve with institution that exists to serve us. The bureaucracy almost never changing times and unforeseen circumstances. Today, we no
From Us News 6 World Report, January 30. 1995. pp.

Philip K. Howard

H o w @ a 1r9 d9 . 4 b y P h ilip

57-61. Adapted f r o The mDeath ol C o m m o n S e n s e b y P h i l i K . H o w a r d . R e p rin te d b y p e r m is s io n o f R a n

Death of Common Sense longer remember that words can impose rigidity as well as offer The rest of us feel like laws victims. We divert our energies clarity. Law had an identity crisis when Oliver Wendell Holmes into defensive measures to avoid tripping over the rules. KnowJr., then a law professor, suggested in 1881 that law was not ing for certain that full compliance is impossible, and that the react ion may be wholly out of proportion, law has certain after all but depended on how the judge and jury saw governments the facts. This stimulated a wide range of reform movements, fostered what Prof. Joel Handler has described as a culture of especially to codify the common law into statutes. Progressives resistance where everyone is a potential adversary. at the turn of the century, New Dealers in the 1930s and Great Law that leaves no room for judgment loses its original goal. Safety inspectors wander around without even thinking about Society reformers in the 1960s expanded the role of government in huge ways. safety. The YMCA of New YorkCity, one of the last providers Another form of lawmaking also took hold in the 60s that of low-cost, transient housing, gets regular citations for code focused not on governments role but on its techniques. Legal violations like nonaligning windows and closet doors that do not Federal Register, a report of new and close tightly. Does the city think that those clean, inexpensive details proliferated. The proposed regulations, increased from 15,000 pages in the final rooms are somehow unworthy of a city that itself provides cots year of John Kennedys presidency to over 70,000 pages in the 18 inches apart for those who have no place td sleep? A city last year of George Bush%. inspector recently told the YMCA, after it had virtually comPrecision became the goal. The ideal of lawmaking was to pleted a renovation, that the fire code had changed and a different kind of fire-alarm system, costing an additional $200,000, anticipate every situation, every exception and codify it. With would have to be installed. Dont they realize that $2OO,CMXl the obligations set forth precisely, according to this rationale, can provideyearlong programs for a hundred kids? asked everyone would know where he stood. But the drive for certainty has destroyed, not enhanced, laws ability to act as Paula a Gavin, the YMCAs president. In our obsessive effort to guide. Regulation has become so elaborate and technical that perfect it a government of laws, not of men, we have invented a is beyond the understanding of all but a handful of mandarins, government of laws against men. argued former Stanford Law Dean Bayless Manning. No tax auditor, no building code examiner can possibly know all the rules in thick government volumes. What good is a legal system THE NEVER-EE;DING PROCESS that cannot be known? Instead of making law a neutral guidepost protecting against In 1962, Rachel Carson shocked the nation by exposing the unfairness and abuse, this accretion of law has given bureaueffects of DDT and other pesticides in her book Silenl Spring. crats almost limitless arbitrary power. A few years ago, the There was also another side to the issue: Pesticides give us federal Occupational Safety and Health Administration decided apples without worms and the most productive farms in the workers needed more protection from hazardous chemicals. world. In 1972, Congress required the newly created EnvironBureaucrats decided that everything that could conceivably have mental Protection Agency to review all pesticides (about 600 a toxic effect should be shipped with a Material Safety Data chemical compounds at that time) and decide which should be Sheet describing the possible harmful effects of each item. The removed from the market. The deadline was three years. More list grew and grew until it totaled over 600,000 products. than In 20 years have passed, and yet only 30 pesticides have been 1991, OSHA turned its attention to bricks. Bricks can fall on judged. Hundreds of others, including some on which there are people, of course, but they had never been considered poidata suggesting significant risk, continue to be marketed. At sonous. The OSHA regional office in Chicago sent a citation to this rate,said Jim Aidala. a onetime congressional pesticide a brick maker for failing to supply an MSDS form with each expert, the review of existing pesticides will be completed in the year 15000 A.D. pallet of bricks. If a brick is sawed, OSHA reasoned, it can release small amounts of the mineral silica. The fact that this Making decisions, it almost seems too obvious to say, is necessary to do anything. Every decision involves a choice and doesnt happen much at construction sites was of no consethe quence. Brick makers thought the government had gone crazy, likelihood that somebody will lose something; otherwise, there would be no need to decide. This is the issue that paralyzes and they feared a spate of lawsuits. They began sending the decision making. The problem with governform so that workers would know how to identify a brick government (a SchuItze of the Brookings hard ceramic body with no odor) and giving its boiling point ment , argues economist Charles (above3,500 Fahrenheit). In 1994, after three years ofInstitution, is that it cant ever be seen to do harm. Bureaulitigation, the poison designation was removed by OSHA. crats find it nearly impossible to say yes. Yet the act of not is not benign: We may eat something bad because the The proliferation of rules may not produce the benefits choosing of EPA never made a decision. certainty and fairness, but it creates endless opportunities for smart lawyers seeking angles and advantages. Law, supposedly Sometimes government cannot act even in the face of imminent peril. In the early-morning hours April of 13, 1992, in the the backdrop for society, has been transformed into one of its heart of Chicagos downtown Joop, the Chicago River broke main enterprises. For some billionaires, cable-TV companies, the masonry of an old railroad tunnel built inthe last congressmen and litigators, close scrutiny and manipulation through of century. Several hundred million gallons of waterthe from river the rules are a means to an end, The words of law give them lower were diverted into the basements of downtown office buildings, taxes, a way to circumvent price controls, a secret means of playing knocking out boilers, shortcitwiting countless electric switches, favorites and a tool to grind the other dide into the ground.

SOCIAL INSTITUTIONS CRISIS AND CHANGE: IN

Political Sphere

ruining computers and turning files into wet pulp. Total losses projects get held up by procedural concerns. Potentially imporwere over $1 billion. Several weeks before the accident, the leak tant breakthroughs in medicine wait for years at the Food and Drug Administration. Even obviously necessary safety projects in the tunnel had come to the attention of John LaPlante, then Chicagos transportation commissioner, a public servant with cant break through the thick wall of process. In 1993, during a 30 years of exemplary service. He knew that the river was snowstorm at New Yorks La Guardia Airport, a Continental immediately overhead and that a break could be disastrous. He Airlines DC-9 had to abort a takeoff and ended up with its nose ordered his engineers to shore up the ceiling. As a prudent in Long Island Sound. Another 100 feet and many lives would administrator, he also asked how much it would cost. The initial probably have been lost. Two years earlier, another plane had ,OOO-foot 7 runway is guess was about $10,000. His subordinates then went to a slid off the runway, killing 27 people. The reputable contractor, who quoted $75,000. Although the amount about 70 percent aslong as those at most commercial airports, was paltry, the discrepancy gave LaPlante pause. He put it out and the Port Authority of New York and New Jersey, which runs feet for six years. But the for competitive bids. Two weeks later, before the bidding the airport, had been trying to add 460 agency had spent years talking to environmental agencies and process had even begun, the ceiling collapsed. Bureaucrats dont even seem capable of looking in the right community groups whose procedural rights took precedence direction. How things are done has become far more important over making the airport safer. than what is done. The process has become an end in itself. A The irony of our obsession with process is that it has not weakness of human nature that prompts many to avoid respon- prevented sharp operators from exploiting the governments sibility has become institutionalized in layers of forms and contracting system, as the weapons-procurement scandals of the meetings. As a result, government accomplishes virtually noth- 1980s showed us. Its dense procedural thicket is a perfect hiding ing of what it sets out to do. It can barely fire an employee who place for those who want to cheat. It has also led to a system so doesnt show up for work. inconclusive that fairness is lost: Advocates can bludgeon their The actual goals of government are treated like a distant adversaries endlessly in public disputes that become too costly vision, displaced by an almost religious preoccupation with to see to a conclusion. And nothing ever gets done. procedural conformity. Public servants who dare take the We must rememberwhy we have process at all. It exists to initiative can be smothered. In the late 1980s Michael McGuire, a serve responsibility.Process was not a credit card given out to senior research scientist at the University of California at Los each citizenfor misconduct or delay; nor was it an invisible Angeles, found himself in trouble. His lab is funded by the shield given to each bureaucrat. Responsibility, not process, is Veterans Administration. Its lawn also needs to cut. be When H hat matters. the lawn mower broke, McGuire decided to buy another one. During a subsequent routine audit, the federal auditor asked why the lawnmower.was different. McGuire told the truth: He A NATION OF ENEhllES had thrown out a broken federal lawn mower (after saving usable spare parts). That prompted an investigation resulting in Finding a public bathroom in New York City is not easy. To several meetings with high-level federal officials. After months, remedy the problem, Joan Davidson, then director of the J. M. they rendered their findings: They could find no malice, but Kaplan Fund, a private foundation, proposed in 1991 to finance they determined McGuire to be ignorant of the proper pro- a test of six sidewalk toilet kiosksin different sections of the cedures. He received an official reprimand and was admonished city. The coin-operated toilets, which cleaned themselves after to study VA procedure, which he noted was about the size of every use, were small enough not to disrupt pedestrian traffic an encyclopedia.One other fact: McGuire bought the labs and would pay for themselves with the sale of advertising for the lawn mower with his own money. side panels. The proposal was greeted with an outpouring of Orthodoxy, not practicality, is the foundation of process. Its enthusiasm. Then came the problem: Wheelchairs couldnt fit credo is for complete fairness: its demons are corruption and inside them. The director of the mayors Office for People with Disabilities said the idea was discrimination in its purest favoritism. But concepts like equality and uniformity have no logical stopping point; no place where they say, The Chicago form. The citys antidiscrimination law, she pointed out, made commissioner shouldnt worry about bidding procedures with it illegal to deny to the disabled any access to public accomthe river only a few feet above the leak. No one risks drawing modation. A protracted battle ensued. the line. Any potential complaint is answered with one more The ultimate resolution, while arguably legal, was undeniareview or fact finding procedure. . bly silly: Two toilet kiosks would be at each of the three One destructive message of this is that bureaucrats cant be locations, one for the general public and the other, with a trusted to exercise their judgment. And the cost of this mistrust fulltime attendant, for wheelchair users only. The test proved is almost inconceivable. The paperwork it generates in the namehow great the demand was. The regular units averaged over of oversight and accountability often costs more than the 3,000 flushes per month. The wheelchair-friendly units were product it purchases. The Defense Department announced last basically unused; the cost of the attendant was wasted. Making trade-offs in situations like this is much of what year that it spent moreon procedures for travel reimbursement ($2.2 billion) than on travel ($2 billion). government does. Almost every government act, whether alSetting priorities isdifftcult in modem government because locating use of public property, creating new programs or process has no sense of priorities. Important, often urgent, granting subsidies, benefits one group more than another, and

Death of Common S&se usually at the expense of everyone else. Most people expected age of harmony and understanding in the workplace? Hardly. leaders to balance the pros and cons and make decisions in the Even those who are successful are bitter. Ellis Cose, in The public interest. The government of New York, however, lacked Rage of a Privileged Chm, describes the extraordinary anger of this power because it had passed an innocuous-sounding law successful blacks-partners in law firms, executives in comthat created rights elevating the interests of any disabled panies-who feelthey are being held back because of race. These feelings, however, mirror those of white professionals person over any other public purpose. Rights have taken on a new role in America. Whenever there who believe blacks are promoted primarily because they are is a perceived injustice, new rights are created to help the black. victims. Yet these new rights are intended as an often invisible A paranoid silence has settled over the workplace. Only a form of subsidy. They are provided at everyone elses expense, fool says what he really believes. It is too easy to be misunbut the check is left blank. They give open-ended power to one derstood or to have your words taken out of context. Those hurt . group, and it comes out of everybody elses hide. The vocabul- most by the clammed-up workplace are minorities and others ary of accommodation, the most important language for a whom the discrimination laws were intended to help. The dread of living under the cloud of discrimination sensitivity and the democ.racy, is displaced. door The rights revolution did not begin with any of this in lurking fear of potential charges often act as an invisible mind. It was an effort to give to blacks the freedom the rest of blocking any but the most ideal minority applicant. Beyond the workplace, public schools have been the hardest the citizenry enjoyed. The relatively simple changes in law in the Civil Rights Act of 1964 sparked a powerful social change hit by the rights revolution, especially when it comes to special for the good. But that inspired reformers in the 1960s to education. Timothy W. was a profoundly disabled child, born consider using rights as a method to eliminate inequality of with quadriplegia, cerebral palsy, cortical blindness and virall kinds. Reformers zeroed in on the almost nuclear power that tually no cerebral cortex. His mother thought he should go to rights could bring to their causes. People armed with new school. Experts consulted by the Rochester, N.H., school rights could solve their own problems by going straight to court, district concluded he was not capable of benefiting from educational services, but a federal judge ruled that the school bypassing the maddeningly slow process of democracy. The most influential thinker was Charles Reich, at Yale. In was obligated to provide a program because under the Individhis 1964 article The New Property, Reich laid out a simple uals with Disabilities Education Act, it didnt matter whether he formula to empower citizens: Government decisions should be could benefit. Law books are filled with such cases as local considered the property of the people affected. Government school districts try to stem the hemorrhaging of their budgets. employees facing termination, professionals licensed by the But the districts almost always lose. A right is a right. state and contractors doing government business no longer Teachers, too, have suffered as the rights accorded stuwould be subject to the judgment of government officials. dents have allowed disruptive students to dominate classrooms. Everyone would have a right that government would have no Except in the cases of egregious student conduct, most teachers choice but to respect. In a follow-up article, Reich focused on often dont bother to act at all against misbehaving students. The what he thought was the area in which government largess was procedures they have to follow are just too onerous. The easiest most important to the individual: welfare. He called for a bill course is just to do nothing. Rights are not the language of democracy. Compromise is. His vision heralded a new era of of rights for the disinherited. self-determination. Power would be transferred to the wards of Rights are the language of freedom and are absolute because the welfare state. Who would draw the line? Lawyers, he their role is to protect our liberty. By using the absolute power of freedom to accomplish reforms of democracy, we have proclaimed, are desperately needed now. Reich got his wish. Today, even ordinary encounters-be- undermined democracy and diminished our freedom. tween teachers and students, between supervisors and employees-now involve lawyers. Like termites eating their way THE RETURN TO PRINCIPLES through a home,rights began weakening the lines of authority of our society. Traditional walls of responsibility-how a Like tired debaters, our political parties argue relentlessly over teacher manages a classroom or how a social worker makes governments goals, as if our only choice is between Big judgments in the field-began to weaken. Brother and the laissez-faire state. They miss the problem The Supreme Court embraced Professor Reichs concepts in entirely Our hatred of government is not caused mainly by what a 1970 decision,Goldberg x Kelly, which held that welfare government aims to do. Its how law works that drives us crazy. withbenefits were property and could not be cut off without due Law is hailed as the instrument of freedom because outlaw there would be anarchy, and we would eventually come process. Congress began handing out rights like land grants. Floodgates opened allowing juveniles, the elderly, the disabled, under the thumb of whoever gets power. Tbo much law, we are the mentally ill, immigrants and many others-even animals learning, can have a comparable effect. It is no coincidence that included under the Endangered Species Act-their days in Americans feel disconnected from government: The rigid rules shut out our point of view. By exiling judgment, modern law court. After 30 years of expanding rights against workplace dis- changed its role fromuseful tool to brainless tyrant. crimination, Congress has succeeded in protecting over 70 Before American law became the worlds thickest instruction percent of all American workers. But are we witnessing a new manual, its goal was to serve general principles. The sunlight of

SOCIAL INSTITUTIONS IN CRISIS AND CHANGE: Political Sphere

we are prevented from doing anything about it. Our common sense shines high whenever principles control: What ironclad, is founders would wince; they knew that the greatest menace to right and reasonable, not the parsing of legal language, domifreedom,* as the late Chief Justice Earl Warren reminded us in nates the discussion. With the goal always shining before us, the 1972, is an inert people. need for lawyers fades. Both regulators and citizens understand what is expected of them and can use their judgment. They can Law cannot save us from ourselves. Waking up every mornalso be held accountable. ing, we have to go out and try to accomplish our goals and _ We have invented a hybrid government form that achieves resolve disagreements by doing what we think is right. Energy nearly perfect inertia. No one is in control. No one makes and resourcefulness, not millions of legal cubicles, are the things decisions. This legal experiment hasnt worked out. It crushes that make America great. Let judgment and personal conviction our goals and deadens our spirits. Modern law has not protected be important again. There is nothing unusual or frightening us from stupidity and caprice but has made stupidity and caprice about it. Its just common sense. dominant features of our society. And because the dictates are