THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, March 19, 1995 TAG: 9503170758
SECTION: COMMENTARY PAGE: J1 EDITION: FINAL
SOURCE: BY BILL SIZEMORE, STAFF WRITER
LENGTH: Long : 101 lines
Philip Howard is a lawyer, but he thinks America would be a better place if half its lawyers dropped off the continent tomorrow. In a new book, he argues that a gargantuan maze of laws and regulations is strangling American democracy by squeezing common sense out of public decisions. Politicians of all stripes, running scared from the national explosions of voter anger in 1992 and 1994, are rushing to embrace his analysis as a prescription for radical reform.
In doing so, they may be looking for a magic bullet that isn't there.
In ``The Death of Common Sense: How Law Is Suffocating America,'' Howard indulges with soaring hyperbole in one of our era's most popular pastimes: government-bashing.
``Government acts like some extraterrestrial power, not an institution that exists to serve us,'' he writes. ``Its actions have an arbitrary quality: It almost never deals with real-life problems in a way that reflects an understanding of the situation.''
Howard thinks he's found the reason for this failure of government: a body of regulatory law that has become so enmeshed in minutiae that it holds no room for regulators to exercise good old-fashioned judgment.
``In the decades since World War II, we have constructed a system of regulatory law that basically outlaws common sense,'' he writes. ``Modern law, in an effort to be `self-executing,' has shut out our humanity.''
Politicians are listening, on both sides of the partisan divide. Bob Dole, leader of the new Republican majority in the Senate, has quoted from Howard's book while putting his own spin on the House GOP's Contract with America. Florida Gov. Lawton Chiles, a Democrat, used the book for inspiration in drafting his most recent State of the State speech. Howard got national exposure debating Ralph Nader on CNN's ``Larry King Live.''
What gets people's attention is the stories he tells. They're what we in the media call ``high-outrage'' stories, about the failures and foibles of big government. One that Howard leans on heavily comes from Hampton Roads.
He tells how Amoco Oil Co. spent $31 million at the insistence of the Environmental Protection Agency equipping the smokestacks at its Yorktown refinery to filter benzene, a harmful pollutant. But the refinery kept right on pumping the stuff into the air - not through the smokestacks, where benzene emissions were minimal, but at the loading docks, where fumes escaped as gasoline was pumped into barges.
Once Amoco and the EPA finally got their heads together and attacked the problem rationally, Howard writes, the solution was easy and relatively inexpensive. But by then, the company had spent $31 million to satisfy an inflexible rule that ``was almost perfect in its failure: It maximized the cost to Amoco while minimizing the benefit to the public.''
At another point, Howard relates the sad saga of how New York City tried to provide much-needed coin-operated public toilets on the sidewalks of Manhattan, but was stymied by the discovery that they would be illegal under the city's anti-discrimination law because they weren't wheelchair-accessible.
To Howard, the story illustrates the downside of what he calls the ``rights revolution'': the series of anti-discrimination laws put on the books in the United States since the mid-1960s. While well-intentioned, he says, these laws have polarized and paralyzed American society. ``The idea of weighing priorities has somehow become un-American,'' he laments.
There is irony aplenty in this book. Here's Howard - a graduate of the University of Virginia law school and a founding partner of a New York law firm - trashing the law as an out-of-control monster devouring America.
In a telephone news conference recently with several reporters nationwide, he was asked what his ideas mean for the future of his profession. ``It probably means we would have half as many lawyers,'' he said, ``and that would be a great thing.''
It's interesting that it's being done here by an insider, but there is nothing new or revolutionary about trashing the law. It's been a popular pursuit for hundreds of years.
The dozens of anecdotes Howard relates about laws and regulations running afoul of common sense are infuriating. But they are only that - anecdotes. Any system of law governing an industrialized nation of 250 million people is inevitably going to miss the mark from time to time.
Howard gives us precious little big-picture data to bolster his case that American law is experiencing some sort of systemic failure. The body of law he targets for criticism - protecting the environment, promoting safety in the workplace, outlawing discrimination - has, in the main, served us well. The danger in Howard's book is that it will provide ammunition to those who want to reverse those gains.
That is not his aim, Howard insisted. ``I think the majority of the American people still want regulation. My book is about how you do it. We need a balance between guidelines and flexibility. We need to make people accountable.''
How to do that? Howard provides us no guidebook. He makes his case in broad, philosophical strokes. But foes of big government might want to take a closer look before rushing to embrace his approach. He wants to give bureaucrats more power, not less.
Too often, dealing with bureaucrats is ``like dealing with someone from Mars,'' Howard said. ``That's because their job is just to comply with the rules, not to listen or respond.''
Which leads him to this conclusion: ``Giving them responsibility is the only way to get anything done.'' ILLUSTRATION: Photo
Philip Howard argues that law has become a monster.
by CNB