The Death of Common Sense

THE OPEN MIND
Guest: Phillip K. Howard
Title: “The Death of Common Sense”
VTR: 3/4/97

I’m Richard Heffner, your host on The Open Mind. And during all these years that I’ve made that introduction, no words repeated here impressed me more than old Henry Reston’s wonderful, “Rules make decision easy, but they rob it of wisdom.” Not, at least, until I encountered The Death of Common Sense: How Law is Suffocating America, the provocative title New York attorney Phillip K. Howard gave his slim but splendid Random House volume a couple of years back. And, to be frank, I don’t understand just why I didn’t read Mr. Howard at the time, for one couldn’t help then but be impressed then with the extraordinary impact The Death of Common Sense had upon public figures everywhere. The governor of Florida was reported as buying 200 copies and sending them to all his state’s top bureaucrats. Bill Clinton and Al Gore touted the book, and, as columnist/novelist Joe Klein noted in Newsweek in March 1995, “Even Bob Dole was flaking the book in speeches and op-ed pieces, inviting Howard to testify before the Senate Judiciary Committee.”

Well, I didn’t read his book then, but I have read it now, do admire it enormously, and am particularly impressed with attorney Howard’s insistence that “Law can’t think, and so law must be entrusted to humans, and they must take responsibility for their interpretation of it.” But I want now to ask my guest how that insight squares with the continuing outcry that ours is a government of laws, not of men. How do you make those jibe?

HOWARD: Well, it’s all a matter of degree. These are matters of gray, not black and white. You don’t want to have no laws, because then you’d have either a tyranny or you have anarchy. But if you have too many laws, what you have is central planning. If you don’t tell, if you not only tell people what they should do, “Cut the pollution,” but also tell them exactly how to do it, “You put a scrubber in that pipe here,” what will happen is that you will end up catching the pollution in the wrong place, which is what happens every day, because our environmental code, 10,000 pages of detailed rules, not only tells people to meet standards, it also tries to tell them how to do it, and it backfires.

HEFFNER: Yes, but your call for common sense, and your plaint that common sense has died in our times, does call for a kind of reasonableness, a kind of rationality that we don’t really find so often, do we, these days.

HOWARD: No, because we’ve lost the culture. We’ve lost the goal of reasonableness.

HEFFNER: What do you mean, “Lost?”

HOWARD: Well, to be more effective, more accurate, we’ve banded. We have this notion of law today, it’s really a modern notion we got in the 1960s, that it’s a kind of software program. That you detail all the conditions, whenever a new set of facts comes in, you plug it into the legal system, and the answer comes out. Well, life’s too complicated for that. The complex shapes of every human choice, whether it’s how a teacher runs a classroom or how you stop pollution, never fit into the square legal holes. It doesn’t matter how many legal holes you have; life is more complicated than that. And so, as a result, people are frustrated all day long trying to do what they know is the right thing, and finding themselves foibled or whatever the right word is. Finding themselves running into requirements that don’t make any sense. They are told not to be reasonable, but simply to comply.

HEFFNER: You say this is a function of the 1960s. How and why do you date it that way?

HOWARD: Well, because that’s when we changed our philosophy of law. There was something called the “legal process movement,” that came into being then. And that’s when we started writing the codebooks with all the detail. The 1950s a forest ranger did his job with a little pamphlet, a general guideline; today a forest ranger has several volumes of detailed requirements exactly how to do his job.

HEFFNER: But, you see, one of the blessings of getting as old as I’ve gotten is that I can remember back to the Thirties, and I can remember back to the same charge being made about the bureaucrats in The New Deal. So it really isn’t a function of the last 30 years. Isn’t it a function simply of the progress, if I may call it that, from smaller to larger public entities?

HOWARD: Well, that’s part of the problem. And government has always been a problem. [Laughter] You could go back thousands of years, how best to govern a society is an extremely complex subject about which billion people spend their lives studying and making suggestions. In fact, going back to the 1930s, that is an interesting case study because the society was in trouble, President Roosevelt wanted to put in all these new programs to get people employed and to do something to get the society started again. And he did that, by and large, by ignoring all existing rules. He ignored the Civil Service system, set up new agencies where he could hold people accountable without being subject to those constraints, he gave people authority with a minimum of rules, told them just to go out and do it, didn’t require permits. There were literally thousands of sewage-treatment plants built in about three years in the 1930s. Today it would take about ten years just to get the permit for one sewage-treatment plant. That’s the difference. The difference is not that government today is a problem whereas it wasn’t in the past; the difference is simply how we’re going about doing it. There were problems back then, and there are different kinds of problems today. The problems today is that we don’t allow people to think and take responsibility.

HEFFNER: What’s happened? Your book came out two years ago. It made a tremendous impact at the time. And, as I noted, whether it was the Democrats or the Republicans, people wanted you to deliver your message. Now, how impactful two years later?

HOWARD: Well, I’m happy to say that some things have happened. There’s a federal environmental program that allows factories, in essence, to ignore their 10,000 pages of rules if they can convince EPA that their own pollution-control plan would be overall better for the environment. I think that’s a very sensible program, because each factory is different from the next, and the people who run that factory know them better, much better, than any bureaucrat writing a rule in Washington. The State of Massachusetts last year went through their entire 20,000-page codebook and modified or repealed two-thirds of it. And so now a bunch of copies of my book, and I went up there and talked to them and helped them out. The Governor of Georgia got rid of the Civil Service system. A lot of things have happened that I think are productive, but not nearly as much as should happen for a variety of structural reasons, which we could talk about. But it’s very hard for people to begin to take responsibility when we’ve had a culture now for decades in which people are told, in essence, that they can’t take responsibility, whether it’s in a school, decisions a principal can make about teachers, teachers can make about students, or whether it’s in a bureaucracy. We have a culture of no responsibility that this system imposed upon us.

HEFFNER: Now, what’s the way out?

HOWARD: Well, the way out is, among other things, real leadership. And by “real leadership” I mean something that we really haven’t seen in the last few decades, which is someone standing up to the system, to all the special interests. I’m amused by all of these educational reforms that come out that always have a suitably diverse group on their board of the reform. They’ll have somebody from the unions and every ethnic group and academics and the like. And they always come out with some, I think the last one was we need better credentials for teachers. The one before that was that we needed national curriculum, as if reading, writing, and arithmetic were not fairly basic. You know, I think it can be figured out by the local schools. And what they’re all missing is, and what none of them ever recommends, is a system in which the people within it can actually take responsibility for the results within it. Anybody who’s gone to school knows that there’s not one way to teach a classroom; it’s a curious combination of inspiration and idiosyncrasy, and depends on the kids, depends on the teacher, depends on the other teachers, it depends on the neighborhood. And you need, for people to use all that’s within them to bring out interest and spark learning. Instead, what you do is impose these reforms. These reformers impose more requirements. It doesn’t take very much bureaucracy to kill that little sparkplug that is needed inside each person in that system to be creative.

HEFFNER: Yes, but make the step, take that step, and then members of your profession, the legal profession, come along and sue because there will be still some provision of the law somewhere which they can use to take exception to what the responsible person does.

HOWARD: We’ve elevated law to a place where it can be and survive. We allowed, in Boston last year there was a lawsuit by a mother over a disagreement between two three-year-olds in a sandbox. And a judge actually granted the injunction against one child going to the sandbox. I mean, that’s absurd. Law shouldn’t involve that. The mother who didn’t like what was going on should have just left.

HEFFNER: But wait a minute. You say law shouldn’t resolve that. But it wasn’t the law; it was a responsible person in the person of a judge. Now, at what level do we make these decisions?

HOWARD: Well, at every level. Then let’s talk about judges for a second, because judges have, the same infection has destroyed what it means to be a judge in this country. And the result is that Americans believe, correctly in my view, that there’s no institution above them that sees it as their job to safeguard the reasonableness of their decision. What happens today when you go to a judge is that the judge must act like a referee, because they see their job in this new legal system to let one side argue and then let the other side argue, like the O.J. Simpson case, or whatever, and then to throw it at the jury. Well, that isn’t the only job of a judge. The job of a judge, if you read Justice Cardoza or the old greats, is to, among other things, set the outer boundaries of community knowledge. If somebody goes in an amount, say a car wreck, and says, “I want $100 million for pain and suffering because I was injured and in the hospital for four weeks,” the judge ought to say, “Wait a minute. That’s way outside the boundaries of what is reasonable in our society today. I’m not allowing you to bring that claim.”

HEFFNER: And then there will be an appeal and he will be castigated for abusing his authority, right?

HOWARD: Right. But that’s because all the judges, both him and the appellate judges above him, don’t acknowledge that judges need to draw those boundaries. And so, in fact, I’m going around talking. I’ve talked to a quarter of the federal judges, and I’ve talked to all the chief judges of the states. And last week I talked with all the California presiding judges. I’m talking to judges precisely on this point. Courts are there not as a kind of, again it’s not like a software program where anybody can make any argument and get away with murder, or any lawyer can be disingenuous and say, “Well, I’m just representing my client.” Courts are there mainly to be reasonable, to make sure society sort of stays towards the center and people don’t get away with murder and get away with the schemes that everybody knows are cynical. Instead, they’re now forums inhabited mainly by people gaming the system, trying to figure out ways to get rich, whether it’s lawyers or others, using litigation. And the judges let them get away with it.

HEFFNER: Well, I remember when Judge Harold Rothwax was sitting where you’re sitting now, and we talked about his recent book, Guilty. His rather harsh examination and evaluation of our justice system. Anyway, Harold said, “I don’t belong to the potted-plant school of the judiciary.” And I gather you don’t accept the potted-plant idea either, that the judge just sits there and acts as that kind of referee.

HOWARD: Well, what happens again is that people take advantage of the system, and then the rest of us lose our confidence and everyone starts acting defensively. Look at doctors. One of my clients is a big hospital in New York. They did an informal survey of defensive medicine. And their own doctors estimate that 15 to 25 percent of all their procedures are unnecessary or duplicitous, done solely to provide a possible defense in a lawsuit. And we’re talking about close to a billion dollars of waste, all of which could be used, if they weren’t scared, in providing medical care for people who use it. And their reaction far exceeds their real risk in the lawsuit. It’s just that when people lose confidence, when you don’t trust the authority, in the words of ?????? that said, “Authority makes you free,” that’s true. I mean, it does. If you don’t trust the authority above you, if everyone’s not going to play in a reasonable environment, people become incredibly defensive.

HEFFNER: But you see, when you say, “If you don’t trust authority,” and as I read The Death of Common Sense, I was so intrigued with it, and wanted to say to you (that’s why I called you and invited you here as soon as I had read it), “Where do we go now?” Because that trust, that faith that obviously is so basic to the common sense that you miss, we don’t have that trust, we don’t have that faith, we don’t believe in authority. How do you see this ever turning around as we get larger and larger?

HOWARD: First I’ll give you the abstract. The abstract answer is that you need systems of accountability, from the teacher to the principal to the superintendent to a politician that are relaying. Today, because of all the legal rules, no one can do anything about any other person. They are

HEFFNER: You mean someone who can fire.

HOWARD: Yeah. Yeah, absolutely. Get rid of someone or do whatever is required when they’re not doing the job properly or when the school is not teaching the children. Up and down that chain. And that requires, among other things, an idea of accountability in which you hold people accountable for how they are doing, rather than what we have today as a system of defensive accountability, if you will, which is where you have to comply with all of these rules before you do anything. For example: all the rules having to do with public integrity basically assume that everyone’s a crook, and make everyone fill out lots of forms, comply with all these detailed requirements that most of the people wasting their time doing that are honest, like most people. But the other day I ran into someone who just finished a conversation with a campaign manager having a debate over whether the chicken would be in bite-sizes or full pieces at a campaign fundraiser, because of a rule that said if it’s in full pieces you have to record it and make it part of the campaign contribution, but if it’s in bite-sizes it qualifies as hors d’ouvres and therefore doesn’t fall into this legal network. That’s absurd. Now, in the meantime, people are collecting millions of dollars from Indonesians. You know, we’re having grownups talking about whether the chicken is in bite-sizes or not. What we need to do is go to a system where we hold people accountable of where they’re raising their money and how they’re doing it; not the size of the pieces of chicken, which is what we have in this country today.

HEFFNER: You know, it seems to me that key to everything you have written, everything that you say, is this question of trust. How, in a Darwinian marketplace society where we say that the best thing is “I’m all right, Jack, I’ve got mine,” and that we maintain the sanctity of the marketplace where you get the largest possible share, how do you ever trust if…

HOWARD: You don’t trust anybody. I just want to hold them accountable. I don’t trust… In fact, up and down this line I’m talking about I distrust them more than most of your viewers do. I’m not giving them responsibility because I think they’ve done a great job; I’m giving them responsibility because it’s the only effective way of holding them accountable.

HEFFNER: Yes, but if you don’t trust, then how can you say, “Let’s just establish the larger framework of what we want, and sort of assume that people of goodwill don’t need to have laws written, regulations delivered that make them do this and that and the other thing, which bollixes up our society.” Doesn’t it come back to trust?

HOWARD: No. It comes back to accountability. I’m trying to think of a simple… If the school isn’t working well…

HEFFNER: Yeah.

HOWARD: …we ought to be able to blame someone who we can elect or have some power over, and get rid of them because the school isn’t working well. Today what happens is we complain to that person and say, “Yeah, you know, I’d love to do something about it, but I really don’t have any control. The teachers’ union have all these contracts, and because of Civil Service I really can’t get rid of the person who is there unless I can prove affirmative misconduct. And, well, their credentials are all right, so we really don’t have a basis for complaint.” Everyone knows they’re doing a lousy job, but no one has control, because the system, because these mayors of law, the mayors of legal installation, have protected everyone from everyone else. Meanwhile, no one’s going anywhere, no one’s accomplishing anything, because there are too many layers of legal insulation. It doesn’t allow you to do anything.

HEFFNER: Those layers of legal insulation were designed (let’s go back to the Thirties and The New Deal), were designed to correct evils. Do you think we can avoid going back to those evils, to the exploitation that these laws and regulations and custodians were established to avoid?

HOWARD: Sure. It’s just a question of how you do it. It’s a tension. It’s a tension between guidelines, a balance between guidelines, telling people what they have to do. Take environmental law. You certainly can’t tell somebody not to spill the pollutants. If it’s cheaper, they’ll do it. So you have to have environmental rules to tell people what the standards are. But, on the other hand, you have to leave discretion in the hands of the officials to make exceptions or to make deals or the like, not because you trust them, because ultimately it’ll be better for the environment if they’re able to say, “You know, we’ll let out a drop of mercury, which is a terrible thing, but by doing that we’ll capture, you know, a thousand gallons of some other acid.” I mean, those are tradeoffs that happen all the time in manufacturing processes. And someone — not the manufacturer, but the official — needs to be able to make those deals. And when he does make a deal, have it be transferred, you know, have it…

HEFFNER: Well, one of the troubles with what you’re saying is just that word, “Makes a deal.” Because, in our lexicon, what that means is something shady. “He’s made a deal. He hasn’t adhered to the law. He hasn’t made them put this many nails in and screw these many screws in.”

HOWARD: That’s right. These are human institutions. And if we don’t have a way of seeing what the humans are doing and holding them accountable, then terrible things will happen. But if you don’t allow humans to engage in… There was a story in the book about an Amoco plant which complied with the rule which said it had to put a scrubber in some pipes to catch the benzene. It cost $31 million. They complied. It turns out there was almost no benzene going into those pipes. It also turned out that the Amoco loading dock, tons of benzene was escaping. But there was no rule for the loading dock. So all the money was spent to catch the pollution in the wrong place. That’s our choice: we either have a version of social planning in which all the money will — not all the money, but much of the money — will be spent to catch the pollution in the wrong place; or we can take the human risk of allowing people to try to do the right thing, knowing that people will screw up sometimes or be sleazy sometimes, and have mechanisms to try to catch them. I vote for the human institution where people in the school can do their best to educate the children rather than complying with the bureaucracy, where people in an environmental agency can do their best for the environment, and again develop mechanisms for holding people accountable.

HEFFNER: Do me a favor. We’re almost at the end of our program. Make a bet. Do you think that is what is going to happen largely, overall in our country? The kind of change that you would opt for.

HOWARD: Absolutely. It has to happen. Because people are frustrated. Not because we’re not prosperous. We are a very prosperous country. People are frustrated because they’re not allowed to make choices in their own jobs. People can’t live their lives, the schools can’t be the way people want them to be, other aspects, because we have these unnecessary constraints put upon us. And I think people are trying to burst free of it, not to get away with something, but to do something that’s good. Yeah, it will happen. The schools will change, all the bureaucracies will change. It will have to change.

HEFFNER: As a lawyer, where do you get this optimism?

HOWARD: I don’t know. I mean, maybe because I read the law and see how stupid it is.

HEFFNER: That’s an interesting… What do you mean, “Stupid?” You don’t mean that, do you?

HOWARD: Absolutely I mean it. The law forces people to do things that are wrong every day. If you live as a lawyer… My biggest fans are lawyers and bureaucrats, the people who have to live this system and understand how much they could do if they weren’t required to dance through these legal mazes that consume much of their lives.

HEFFNER: Well, I’d certainly hope that you’re right. But when you write The Death of Common Sense, it sounds rather final to me. And you’re talking now about coming back to life.

HOWARD: I’m talking basically about humanism, honoring what it means to be a human being, honoring the greatness, willingness, the senses that we all have to try to make things happen. And it’s not that everyone has common sense. Many people, as we know, do not. But we have to get, let people have the chance to try. And, as a society, that’s what this country was built on, is trial and error, and people going out and doing what they had in them. And that’s how our country retains its greatness.

HEFFNER: Maintain your optimism, and we’ll talk about the temporary death of common sense. Mr. Howard, thank you for joining me on The Open Mind today.

HOWARD: Thanks, Dick.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.

Meanwhile, as an old friend used to say, “Good night, and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.