The Death of Common Sense: How Law Is Suffocating America

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“We need a new idea of how to govern. The current system is broken. Law is supposed to be a framework for humans to make choices, not the replacement for free choice.”
--Philip K. Howard, The Death of Common Sense

Niall Ferguson, in his book The Great Degeneration, identifies the four pillars that lifted Western Civilization, which Ferguson calls The Four Black Boxes. They are:

1. Democracy -- the consent of the governed.

2. Capitalism -- and the vibrant society healthy markets produce.

3. Rule of law -- secure property rights, fairness and (in theory) equality.

4. Civil society -- how we treat one another.

Ferguson's book is a warning though. The 2010 volume is subtitled How Institutions Decay and Economies Die. In the book he shows how all of these platforms have become corrupted and are in the process of decay. It's not a pretty picture. 

I mention Ferguson's book in order to reference point 3, the importance of the rule of law. When I read Philip Howard's The Death of Common Sense: How Law Is Suffocating America in the 1990s, I immediately placed it on my Top Ten Recommended Readings list. It's apparent that regulations and red tape are both strangling our economy and stealing our joy. 

Here's a quick overview of the book.

The bloated bureaucracy; the rules; the laws; the regulations; are so integral to our lives that we no longer would recognize a life without these burdensome evils. We continue blindly with no discretion, a growing behemoth, with no end in sight; this was never meant to be. With the thousands upon thousands of pages of rules and regulations we believe we can remove all conceivable risks, contemplate every eventuality, plan for everything; all in the name of "rights", and fairness. What is meant for good, and to bring about harmony, only results in stagnation, closed businesses, higher prices, less choice, rise of litigation, etc. We all pay a price. Ingenuity pays a price. Ironically, "[t]he more precise we try to make law, the more loopholes are created." Mandated perfection only ends in the opposite, along with an incredible waste of money and manpower, not to mention it treats individuals as criminals. This expansion of law into agencies and programs was never meant to be. Three big culprits (though there are many) are OSHA, EPA, and the USDA.

For example, right now the U.S. is experiencing a housing crisis. Even though most community leaders are aware of it and are making pronouncements about fixing it, very few seem to recognize how deeply entrenched government regulation is contributing to the problem, almost always in the name of virtuous aims such as safety and fairness. Examples abound.

Here's another example. We complain about the high price of meds while failing to see the mind-boggling amount of paperwork required by the FDA to get a drug approved. I once read that the paperwork alone would fill a semi trailer. There has to be some kind of incentive for doing 10 years of research to get a product approved. (This is not a defense for the excesses of Big Pharma, but important for the sake of perspective.)

Ferguson, in his book, tells a story about how it took a little girl months to get a permit to set up a lemonade stand in New York City.

Here's more about Howard's book:

"The Death of Common Sense" consists of four long chapters, presented without an introduction or conclusion. They deal with (1) the impossibility of devising laws and regulations that will sensibly address every variation and permutation of a given problem without the need for human judgment; (2) the pitfalls of elevating legal process over objectives; (3) the destructive consequences of creating "rights" for more and more disadvantaged groups without much heed to the burdens imposed on the rest of the population; and (4) the author's proposed solution to the problems discussed, which is for all concerned to stop looking to the law as a source for "final answers."

Reviews from Amazon:

Totally Amazing and Scary!
The message is quite clear: our legal system is very sick, if not broken. The result is that no one wants to take responsibility for fear of being sued or inconvenienced. Plus, the definition of "rights" has been so badly distorted by legislation and court system that the social and actual costs to Americans is becoming intolerable. The direction we are all heading is only making the conditions worse. Something has to change, but how long are we willing to wait?

Frustrating In Its Accuracy
This book came highly recommended by an attorney friend. I have not finished reading yet because it is so frustrating in its accurate portrayal of government and its often illogical way of operating. Having worked in government, I do understand the need for rules and consistency, however the examples portrayed in this book so clearly display how so many rules exist for the sake of the rules themselves. The intent behind the rules are lost and the results often are more harmful than good. If only our government officials could take off their blinders and take to heart the messages from this book. This country would be in a far better place.

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Something to think about.

If interested, you can find a copy of this book here on Amazon.

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