The Death of Common Sense: How Law is Suffocating America

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9780679429944: The Death of Common Sense: How Law is Suffocating America
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Distressing, disturbing, devastatingly detailed--this stunning examination of how modern laws are diminishing America exposes the drawbacks of rule-bound government, tells why nothing gets done, reveals the phony pretensions of law, and shows why well-intentioned laws have actually devalued rights. In short, The Death of Common Sense demonstrates how the buck never stops and how ell-meaning laws are creating a nation of enemies. (Poltics/Current Events)

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About the Author:

Philip K. Howard is a lawyer and the author of The Death of Common Sense. He has advised leaders of both parties on legal and regulatory reform. Howard grew up in small towns in the South and is the son of a Presbyterian minister. He is a managing partner of an international law firm and lives in Manhattan with his wife. They have four children.

Excerpt. Reprinted by permission. All rights reserved.:

I

The

Death

of

Common

Sense

In the winter of 1988, nuns of the Missionaries of Charity were walking through the snow in the South Bronx in their saris and sandals to look for an abandoned building that they might convert into a homeless shelter. Mother Teresa, the Nobel Prize winner and head of the order, had agreed on the plan with Mayor Ed Koch after visiting him in the hospital several years earlier. The nuns came to two fire-gutted buildings on 148th Street and, finding a Madonna among the rubble, thought that perhaps providence itself had ordained the mission. New York City offered the abandoned buildings at one dollar each, and the Missionaries of Charity set aside $500,000 for the reconstruction. The nuns developed a plan to provide temporary care for sixty-four homeless men in a communal setting that included a dining room and kitchen on the first floor, a lounge on the second floor, and small dormitory rooms on the third and fourth floors. The only unusual thing about the plan was that Missionaries of Charity, in addition to their vow of poverty, avoid the routine use of modern conveniences. There would be no dishwashers or other appliances; laundry would be done by hand. For New York City, the proposed homeless facility would be (literally) a godsend.

Although the city owned the buildings, no official had the authority to transfer them except through an extensive bureaucratic process. For a year and a half the nuns, wanting only to live a life of ascetic service, found themselves instead traveling in their sandals from hearing room to hearing room, presenting the details of the project and then discussing the details again at two higher levels of city government. In September 1989 the city finally approved the plan and the Missionaries of Charity began repairing the fire damage.

Providence, however, was no match for law. New York's building code, they were told after almost two years, requires an elevator in every new or renovated multiple-story building. The Missionaries of Charity explained that because of their beliefs they would never use the elevator, which also would add upward of $100,000 to the cost. The nuns were told the law could not be waived even if an elevator didn't make sense.

Mother Teresa gave up. She didn't want to devote that much extra money to something that wouldn't really help the poor: According to her representative, "The Sisters felt they could use the money much more usefully for soup and sandwiches." In a polite letter to the city expressing their regrets, the Missionaries of Charity noted that the episode "served to educate us about the law and its many complexities."

Law is generally thought of in its Perry Mason sense, but courtroom dramas do not touch most of our lives. The law of government, on the other hand, controls almost every activity of common interest-fixing the pothole in front of the house, running public schools, regulating day care centers, controlling behavior in the workplace, cleaning up the environment, and deciding whether Mother Teresa gets a building permit.

No person decided to spite Mother Teresa. It was the law. And what it required offends common sense. There are probably 1 million buildings in New York without elevators. Homeless people would love to live in almost any one of these. Walking up a flight of stairs is not, after all, the greatest problem in their lives. But the law, aspiring to the perfect housing abode, has accumulated so many good ideas that the only type of new housing that is permitted must satisfy middle- class standards. A law that dictates either a model home or no home is probably fine for some, but what about those trying to provide housing for the poor?

Even serene suburban landscapes are stamped out of law's mold. Have you ever noticed how new housing subdivisions have an open, almost empty look? It isn't just the absence of trees. The streets are fifty feet wide, about 50 percent wider than streets were a few decades ago. Why? Because the traffic engineers who wrote the standard code after World War II believed that streets should be wide enough to allow two fire engines going in opposite directions to pass each other at 50 miles an hour. Andres Duany, a Miami architect who specializes in designing new towns, maintains that the traffic engineers have thereby depleted human interaction and fellowship from modern America. He calls them the "devils."

The two-fire-engine rule did not evolve because it was sensible or by amazing coincidence of judgment by town boards around the country. It was part of a model code that was accepted as "modern," and cities and towns fell before it like dominoes. Once the words were designated as law, there was no longer a need to think about it. Almost no one who builds new houses knows why the requirement is there. Nor do bureaucrats. They abide by it because they have to. It's the law.

John Marshall was an early chief justice of the Supreme Court, so it is fitting that the John Marshall Elementary School on Long Island should be perhaps the first primary school in America to recognize the legal hazards involved in children's art. Children's art, as we know, is usually made on paper. At the John Marshall Elementary School, as in every other school in America, children's art is tacked to the wall. Words and letters are also tacked up for the children to see. The law in New York, you may be surprised to learn, does not permit this, or at least not much of it. The state fire code actually addresses the public hazard explicitly: "[S]tudent art displays?.?.?.? [must be] kept at least two feet from ceilings, 10 feet from exits [which means any door] and?.?.?.?not exceed 20% of the wall surface."

The issue came up during a Halloween party in 1993. The local fire chief was there dressed as Officer MacGruff, "the

police dog who promotes safety and drug awareness." As a diligent officer of the law, he noticed all the Halloween decorations and student art that had been attached to the walls. Within days, Officer MacGruff had done his duty. The school, according to one observer, now looked "about as inviting as a bomb shelter." All the art was gone. The school superintendent, having been accused of permitting a legal violation, suggested that he was aware of the law all along but had used a rule of thumb "on how much to decorate." Liz Skinner, a first grade teacher, was confused: "The essence of primary education is that children show pride in their work." No one had ever heard of fire caused by children's art, but there was a law just to make sure. So the art came down.

Amoco Oil Company needs no Officer MacGruff to tell it the law. It has regiments of lawyers. When the Environmental Protection Agency (EPA), after years of hearings, passed a rule requiring that specific equipment be put in waste pipes to filter benzene, a harmful pollutant, Amoco complied and spent $31 million at its Yorktown, Virginia, refinery. In 1989 a chance encounter on an airplane between James Lounsbury of EPA and Debora Sparks of Amoco led to a discussion about the frustrations and inadequacies of environmental law. One thing led to another and, with some trepidation, Amoco let a team from EPA into its Yorktown plant to see how the environmental rules, written in windowless rooms in Washington piled high with scientific evidence and legal briefs, actually worked in practice.

EPA found that its precisely drawn regulation almost totally missed the pollution. The Amoco refinery was emitting significant amounts of benzene, but nowhere near the waste pipe. The pollution was at the loading docks, where gasoline is pumped into barges. Just as fumes escape when you use an old-style nozzle when filling up your car at the gas station, large quantities of benzene were escaping as Amoco pumped several hundred million gallons of gasoline every year into barges. Once EPA and Amoco officials actually stood on the dock together and realized the problem, the solution was easy and relatively inexpensive. Meanwhile, pursuant to the rigid dictates of a thirty-five-page rule that many government experts had spent years fine-tuning, Amoco had spent $31 million to capture an insignificant amount of benzene at the waste pipe. The rule was almost perfect in its failure: It maximized the cost to Amoco while minimizing the benefit to the public.

The Amoco incident brought to the surface a long-simmering suspicion that, in the words of EPA administrator Carol Browner, there are "really serious problems" with environmental regulation in this country. Environmental laws and rules, now seventeen volumes of fine print, often seem to miss the mark or prove counterproductive. Under one requirement, before industrial land with any toxic waste can be used, it must be cleaned up to almost perfect purity. It sounds great, but the effect is to drive industry out to virgin fields, where it encounters no such costs. Instead of cleaning up one dirty lot, the strict law creates a second dirty lot. Then, of course, jobs are moved away from cities, to places that workers can only reach by driving long distances, which causes yet more pollution. A final irony is that whoever cleaned the polluted land would often be required to incinerate it, literally burning tons of dirt, a process that itself generates significant pollution. Environmental laws have accomplished much, but not because the laws were generally sensible. Spending a trillion dollars in the last twenty years was bound to clean some things up, however inefficiently.

Big government is the usual suspect for these failures: If only government got out of our hair, many think, everything would work fine. But dreaming of an agrarian republic is not likely to help much. No one I know wants to eliminate environmental protection. Fire codes are a good idea; we wouldn't want the house next door built of kindling. The more important question is not why government is so big- we know in our hearts that any reduction would only occur at the edges-but why, with a few exceptions, it fails in even its simplest tasks. Gover...

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